Monday, July 22, 2002

DISPARATE IMPACT & JUDICIAL RESTRAINT. John Rosenberg takes issue with my previous statement that "disparate impact" law is now "corpse, executed and interred by conservative courts." He points out that disparate impact may still be applied to landlords under the Fair Housing Act (FHA), though the Court has granted cert in a case and may yet reconsider the question.

Although I was overly broad when I said "disparate impact is dead," what Rosenberg points to here is a little different than the kind of disparate impact we were talking about earlier -- that was whether a statute or government policy ran afoul of the equal protection clause. In that previous context, disparate impact is pretty much dead, at least currently.

However, the context of government regulation of what individual economic actors can do -- e.g., regulation of landlords -- is substantially different. This involves the definition of discrimination under the Fair Housing Act, not under the Equal Protection Clause. Indeed, equal protection doesn't apply to non-state actors. Thus, all we're talking about here is a statute that could be repealed or amended by Congress in a second if Congress wanted to. Given that the Court previously interpreted discrimination under the FHA to include disparate impact, and given that Congress could easily change this but hasn't, the Court should not modify its previous interpretation lightly when more a more democratic branch can make the decision.

I suspect Rosenberg may feel this distinction is a cop-out -- he likes to think of "discrimination law" as one single concept -- but there actually is a pretty big difference between what the Constitution forbids legislatures from doing and the way Congress chooses to regulate private actors in the economy. The fact that Congress cannot be held to have discriminated simply because one if its statutes has a disparate impact does not require it to be barred from creating a statutory disparate impact standard in regulating housing, regulating food and drugs, regulating securities, or regulating any other sector of the economy.

Since the Court already spoke once on the matter, in Town of Huntington v. NAACP, the question of whether disparate impact may qualify as "discrimination" for purposes of the FHA should be left to Congress, since -- unlike with constitutional matters -- Congress can always undo the Court's interpretation by amendment. Ironically, for just this reason, the Court is generally much more hesitant to overrule a past decision when it comes to interpreting a statute then when it comes to interpreting the Constitution, because if there is a problem with a statute, Congress can always fix it if it wants to. Unfortunately, since the Supreme Court has granted cert on this question, it looks as if they may be ready to reverse Town of Huntington. I say "unfortunately" mostly because I think the Court should accord considerable respect to the fact that the legislature could have easily amended the FHA to nullify Town of Huntington, yet for decades it has not. Questions of re-interpretation should be left to the most highly democratic institutions whenever possible, but I fear a majority of the current Court may be willing to leave that principle by the wayside in order to achieve political ends. Unfortunately, this contradicts not only my personal opinion, but general notions of judicial restraint of which who but John Rosenberg seems to approve.
REASON, REASON, REASON. Sasha Volokh takes me to task for "confusing libertarians with conservatives" in a recent post. But wait -- what did I actually say? Let's take a peek:
I don't think you'll see Reason so quickly conflating outright demands and conditional grants when we're talking about welfare given on condition of the recipient surrendering some constitutional right....When it comes to conditional grants of welfare, most conservatives will suddenly forget the Nollan logic, and make a big deal of the compulsion-vs.-conditional grant distinction. When it comes to welfare, conservatives in general suddenly start treating the condition as increasing the choices of the welfare recipient.
And then again:
I do wonder if [Doherty would] see that the same coercion is also present when we're talking about more desperate recipients of conditional grants. Most conservatives, including a current majority of the Supreme Court, find conditional grants very problematic when imposed on the propertied, but display a sort of amnesia when it comes to applying the same logic to those less well off.
If you read this language closely, Sasha, I think you'll see that I don't actually say Reason is conservative. I merely say -- in extremely repetitive fashion -- "I don't think you'll see Reason/Doherty applying the same logic to conditional grants of welfare," and then I say "most conservatives do." Both statements were true -- though I may very well be wrong (Steven E. Ehrbar writes in an email, "Reason also already opposes government benefit conditionals, like testing for drugs as condition of participating in after-school activities."), I did think Reason probably wouldn't apply the same logic to conditional grants of welfare. I also am pretty confident that most conservatives don't, though I was basing that primarily on the discussion of the subject in Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv.L.Rev. 1413 (1989).

But, despite Sasha's criticism, I actually never equate Reason with conservatives. There's an inference Sasha must read into the space between those two statements into to find me "confusing conservatives with Reason." I'll grant that the implication was there, but as a matter of logic, it doesn't actually follow from anything in my post that Reason must be conservative. Still, I do apologize if I created any implication that Reason might be conservative -- that's a pretty heavy charge, so I can see why Sasha took the time to set everyone straight just in case anyone had gotten the wrong idea from my post. .

And finally, on a related point, Sasha does try to slide in a way of distinguishing conditional building permits from conditional welfare grants:
[I]t's true that libertarians draw a sharp distinction between extending your house (presumptively a right) and getting welfare payments (presumptively not a right).
Problem is, this really isn't really a fair distinction. Yes, as a matter of libertarian dogma, building whatever you want on your own property is "presumptively a right," but as a matter of reality it is not. Owning a parcel of land does give you choices, but those choices are not unlimited. You have to comply with the local government's zoning ordinances, which may put limits on height, business use, building materials, etc., unless you get a variance. It may require permits to be obtained, and it may require building codes to be followed.

Now, your run-of-the-mill libertarian may well have a conception of property that views land-use regulation as an infringement on a "natural right of property" or something to that effect. Not that there isn't something to that view, but local government land-use regulation is all a valid exercise of the police power. And I for one am not that upset by it -- in fact, I was glad to grow up in sleepy little residential neighborhood, something that probably would have been impossible if buying a parcel of property in that neighborhood had entitled every owner to do whatever they wanted with it, whether building a bar, a strip club, or even a movie theater or shopping mall. The fact is, these restrictions are imposed by the local government, which on average represents the interests of the majority of people in the town. You may be offended that municipal ordinances prohibit you from building a strip club on your property, but many other people may be happy that their homes down the road remain good places to raise a family, and that their property value has not been eviscerated. There are property rights on both sides in such a situation, and a yelling match before the city council is how the issue is resolved, not recourse to some ethereal theory of what property really means. "Property rights" of some are often defended by limiting the "property rights" of others.

My impression is that many libertarians think they can solve almost any problem by simply incanting the words "property rights", but this cannot solve problems where there are competing property rights on both sides. When Sasha says "extending your house" is presumptively a right, he's being a little unfair. There are plenty of places in our perfectly property-loving country where you don't have an unqualified right to extend a building to eight stories; similarly, in the Nollans' case, they didn't have an unqualified right to turn their beach bungalow into a mansion. The reason: the democratic processes of local government manifested the locals' preference for a relatively undeveloped and quiet beachfront. In such an atmosphere -- at least, in the actual legal framework of local government land-use regulation -- building permits are not always "rights", but can be just as much "benefits" as a grant of welfare. Libertarians think property exists in nature, but that simply isn't true. Along with being protected by the state, property is defined by the state, in part to balance the property interests of all.

Friday, July 19, 2002

AND WHILE WE'RE ON THE SUBJECT OF TAKINGS. A telling misconstrual of a case in a Reason article by Brian Doherty that appeared in the Wall Street Journal:
The CCC [California Coastal Commission] used to frequently demand that landowners grant easements along property between the road and the sea for public access. This practice was curtailed by the U.S. Supreme Court's 1987 decision in Nollan v. California Coastal Commission.
That is not at all what Nollan, 483 U.S. 825 (1987), was about. The Coastal Commission did not demand anything; they merely conditioned building permits on the grant of easements (The Nollans already had a house; they wanted to build a bigger house). You might think zoning laws are wrong, but there was no doubt that the local government could withhold the permit. The question in Nollan was whether that uncontested greater power to not grant a permit included the lesser power to ask the owner to do something in exchange for the permit. The Supreme Court said no, the beach easement was not germane (whatever that means) to possible reasons for withholding the permit, so the conditional grant was coercive. The CCC was not simply taking the easements, as Reason suggests; it was saying, hey, if you want a permit to build a bigger house, you have to grant an easement to the public so they can walk by your house to the beach. We don't have to give you the offer at all, and you don't have to take it, so what's the problem? We're just increasing your options. The Supreme Court had none of it: the greater power does not always include the lesser power, it said.

Reason, though, sees no difference between a conditional grant (if you want X, you must agree to Y), and simply demanding Y. In general, I agree -- conditional grants are often just as bad as direct compulsion. But I don't think you'll see Reason so quickly conflating outright demands and conditional grants when we're talking about welfare given on condition of the recipient surrendering some constitutional right. See, e.g., Wyman v. James, 400 U.S. 309 (1971) (upholding condition of receipt of Aid to Families with Dependent Children on acquiescing to warrantless searches) When it comes to conditional grants of welfare, most conservatives will suddenly forget the Nollan logic, and make a big deal of the compulsion-vs.-conditional grant distinction. When it comes to welfare, conservatives in general suddenly start treating the condition as increasing the choices of the welfare recipient. This has never made sense to me -- why are the affluent Nollans considered coerced when they have to decide between not building a bigger beach house or building a bigger house but also granting an easement, while the willingness of impoverished people to waive constitutional rights in order to obtain basic necessities is considered the product of unconstrained free choice?

I'm actually totally with Doherty that conditional grants can be just as coercive as direct compulsion -- though he conflated the two concepts, in doing so he got the gist of the case: conditional grants aren't always so different from outright demands. I do wonder if he'd see that the same coercion is also present when we're talking about more desperate recipients of conditional grants. Most conservatives, including a current majority of the Supreme Court, find conditional grants very problematic when imposed on the propertied, but display a sort of amnesia when it comes to applying the same logic to those less well off. It is a major tension in the current Unconstitutional Conditions doctrine, and one I hope will someday be remedied.
BYE-BYE BIRDIE. With regard to the recent fining of two bald-eagle shooters in Texas, Sasha Volokh remarks:
Some way to protect our American symbol of freedom, especially in Texas.
By what, protecting it? While Sasha doesn't offer much in the way of commentary, I take it he's lamenting the "irony" of our national symbol being protected by fining a couple of farmers for merely defending their property. (The farmers were understandably concerned that the eagles would harm their livestock.)

But wait -- killing bald eagles is in general a crime. True, it doesn't look like a crime because inner-city poor people don't do it regularly, but if you take a look at the Bald Eagles Protection Act, 16 U.S.C.A. § 668 et seq. and the Migratory Bird Treaty Act, 16 U.S.C.A. § 703 et seq., you'll see that in fact it is a prohibited activity. While you can self-defend your person, you can't just blow people away because they stepped on your flowers. You certainly don't have a right to sell drugs or insider trade no matter how much it might help you protect your property. Indeed, if you are convicted of a drug-related crime, you will be susceptible to forfeiting your property to the government in a civil forfeiture proceeding. Similarly, you don't have a right to blow bald eagles away just because they're near your livestock.

Note that the article does not say the eagles actually harmed the livestock, just that the owners were trying to scare them away, though that could be part of the article's slant. But even if the eagles were killing the farmers' livestock, shooting them probably wasn't the only way to scare them off. And even if it was the only way to scare them off, that still doesn't mean the farmers were justified in shooting. While it is true the Constitution protects property rights, it doesn't give people a blank check to enforce those rights themselves, the law be damned. Indeed, when a bald eagle protected by federal statute starts eating your livestock and you can't do anything for fear of prosecution, that's much the same as when the federal government decides to build a highway through land you own (bald eagles don't hold hearings before they take your property, but otherwise it's the same). In neither case is it time to reach for your shotgun. When the government requires you to try potentially less effective methods than shooting to deter bald eagles to protect your property, and as a result more of your livestock dies than might otherwise die, there's a pretty decent argument that that's a taking, and Andrus v. Allard is distinguishable. Since livestock are compensible, the farmers' property right in their livestock is easily protected by the remedy the Constitution prescibes -- not a right to shoot at will, but a right to just compensation when the government takes your property, including tying your hands so that you can't protect your property as fully as you might otherwise.

Sasha knows all of this quite well -- in fact, he's probably more of an expert on takings law than me -- which is probably why he limited his commentary to an unsubstantive quip. But lest readers be fooled into thinking something particularly wrong happened in the case of the bald eagle shooters, I've outlined my response above.

A couple other things are worth noting: the $1,000 fines the bald eagle shooters each paid to the government were substantially less than the maximum fines allowed under the Eagle Act and Migratory Bird Act. Those acts also permit imprisonment for this crime of up to a year (or more in the case of a second offense), again a possible penalty not imposed. Rather than an overzealous prosecution, the US Attorney in this case was actually quite moderate.

You needn't be an environmentalist to be for protecting bald eagles; indeed, environmentalism isn't really my thing. Nor must you be some kind of anti-gun zealot. But the right to bear arms is not the same as the right to bear arms without consequences, as the case of the bald eagle shooters effectively demonstrates.

Sasha generally demonstrates excellent judgment in choosing what materials to blog -- for instance, he's been known to link to me -- but frankly, I don't see what the big deal is with the story above.

Wednesday, July 17, 2002

REBUILDING THE WTC. Just viewed the recently released six proposed rebuild concepts. I know a lot of people put a lot of thought into these proposals, but I'm not sure how I feel about any of them. I mean, I'm pretty sure the Memorial Square concept won't be a success, because it basically looks like a big hypodermic needle. But with respect to the others, there's something conspicuously missing: height. Seems like a decision was made not to build anything as dominant and imposing as the WTC; of course, the WTC's prominence in the skyline made it an easy target. Part of me thinks it wise to avoid the hubris of building another sure target towering over Manhattan -- indeed, it would be difficult to find tenants for such a building -- but part of me thinks not to do so would be tantamount to backing down. Indeed, the first time I thought about the question, my impulse was to build it bigger, or maybe build three 110-story towers, or something to that effect. This is, after all, going to be one of the great symbols of America -- and as Americans, we're supposed to be indomitable and brash, challenging the rest of the world with our confidence in the future and ourselves. An imposing rebuild would be like a giant middle finger directed at America's enemies. But all of the proposed concepts, topping out at lower heights than the two towers, have at least a tinge of meekness to them. Memorial Promenade, seen below, tries to split the baby, adding twin "skyline features" going up to 1,500 feet to mark where the towers used to be. Again, I am not sure if twin "skyline features" will provide an appropriate memorial or a reminder of a now cautious nation's former boldness.

Tuesday, July 16, 2002

THE BATTLE RAGES ON. Brendan O'Neill v. The Rest. I have to say, I like Mr. O'Neill's style.

Monday, July 15, 2002

IN PRAISE OF WARTS. Just came across Brendan O'Neill's anti-blogo philippic (courtesy of Indepundit - congrats on the new site, btw). Wiser heads than I have already issued replies, but, never one to miss an opportunity to hear my own keys go clicky-clack, I'm going to respond as well.

O'Neill blasts the blogs for "poor quality of writing," "celebration of pithy opinion over considered judgement," "over-long posts," and of course, a general lack of people who "spell [his] name correctly." Most responses, taking the prudent rhetorical road to credibility, admit these flaws yet say blogging still has something to offer. For instance, Indepundit writes:
It is what it is, Brendan - warts and all. I believe the appeal of weblogs lies in their unabashed imperfection; I humbly acknowledge that I am not a professional writer, and I freely admit that my writing could use a full-time editor. But the wonderful thing about this format is that my readers are getting my thoughts and opinions unfiltered by anyone but myself. The trade-off is that they will have to put up with an occasional typo or misspelling.
I, on the other hand, would like to take those so-called flaws and, in the most "pompous, told-you-so style" I can muster, celebrate them.

"poor quality of writing" - Back in the 16th century, Erasmus, when asked by his students how they could improve their writing, simply said: "Write, write, and again write." Yet, O'Neill would limit the right to write to writers. How are those who haven't ascended to O'Neill's journalistic heights ever to improve? And don't say by writing in solitude; along with providing some purpose motivating people to practice their writing with often frightening frequency, posting in the Blogosphere exposes writing to that all-important crucible, actual, real-world criticism. O'Neill may complain about poor writing in the Blogosphere, but I praise it and marvel at it -- indeed, I hope that through the experience blogging brings, countless inarticulate idiots will gradually develop into articulate idiots. I certainly hope I do.

"celebration of pithy opinion over considered judgement" - Frankly, for someone with such a clear appreciation of pith ("'The best way to be boring is to leave nothing out."), this beef seems somewhat disingenuous. Moreover, to be "pithy" is to have substance and point, to be tersely cogent. In complaining about lengthy posts while criticizing short zingers, O'Neill is guilty of trying to have it both ways. I value both pith and thoroughness, but the two are in some degree of tension. And of course, if I had to choose, I'd rather be pithy any day. Indeed, it's pretty much my only aspiration.

"over-long posts" - I certainly value concise prose, but given the purpose and nature of the Blogosphere, length is hardly a damning sin. No one is required to read every blog post, and no one does. The Blogosphere is a complicated, organic filtering system, and those long posts are boiled down by other bloggers, who are boiled down by other bloggers, and so on. Some posts die, others live. Successful memes spread. O'Neill's post is a case in point: several key paragraphs have been cited on prominent blogs like Indepundit and Dr. Weevil and propagated through the system as far as the idea and its responses can carry it. Despite its length, a paragraph or a sentence with a link may be all of O'Neill's post that that reaches most readers. In such a world, being overlength is really not a concern -- unlike the professor who laments her inability to keep up with bloated scholarly literature, no one feels remorse when they lose interest in an over-long blog post and move on. And it's not as if trees were falling to overkill blogging. The cost in memory of a few thousand extra ASCII characters is less than a single GIF or JPEG. Extra long reads are available for those especially interested in the subject or the writer, while for everyone else the Blogosphere's legion of glossators provide convenient capsule summaries. Blogs shouldn't be read one at a time; they should be peeled like onions, starting from a preferred top layer like Instapundit and working down, as it strikes your fancy. The Blogosphere is what you make of it.

a general lack of people who "spell [his] name correctly" - Don't take offense Brendan: "O'Neal" is just the favored American spelling. ;-)

So there you have it: my opinion. Not particularly "considered," but I had fun writing it nonetheless. As O'Neill aptly puts it in his cross-Atlantic translation of Clint Eastwood, "Opinions are like arseholes - everybody's got one." I am certainly no exception. Just be glad I resisted the urge to post a JPEG of my arse.

Sunday, July 14, 2002

WHAT IS NEUTRALITY? After some very worthwhile back-and-forth with John Rosenberg, I've been thinking about the very basics of how the legislature can violate constitutional principles of neutrality, principles like the establishment clause, or, as currently constituted, the equal protection clause. The government doesn't have to be neutral all the time, but it does have to act neutrally in areas like race and gender and religion. (For purposes of this post, I'm going to talk about just race and religion) Especially in the race context, there used to be many who thought that equal protection meant the government couldn't discriminate in ways that harmed "discrete and insular minorities," while it could "discriminate" against majorities to achieve certain objectives, because presumably in our democratic system majorities had the political clout to protect themselves. But though I hope some of that thinking comes back in ten years when the pendulum swings the other way, at the moment it's not the dominant view. Within the current thinking, the government must be neutral in certain areas, and that's that.

Still, for all the praise of "neutrality" one hears, the term is not self-defining. Different people mean different things when they say something is "neutral." Much of the real action and impassioned debate in current discrimination law today is about what it means for government action to be "neutral." Differing opinions on the vouchers case reflect these competing notions of neutrality. There are two basic ways a statute can possibly be non-neutral or discriminatory. It can have a non-neutral intent, that is, the legislators pass it with the specific goal of hurting or helping a specific race or religion. Or, it can have a non-neutral effect, that is, it hurts or helps some race or religion while having the opposite or no effect on others.

As I noted in a recent post, current law is in general much more concerned with the neutrality of "intent". But since I'm talking about basic building blocks of what "neutral" means or could mean, I'm including consideration of non-neutral effects as well. Especially since John Rosenberg has suggested an "intent plus effects" test under which even laws of non-neutral intent would be permissible so long as the non-neutral effets were small (i.e., "under God" in the pledge), I've been thinking about combinations of intent and effects tests. Much of this is very basic, but I think it may be worthwhile -- at least for myself -- to lay it out somewhat systematically. The 2-by-2 matrix presents four possible ways of thinking about neutrality, considered below:

Intent Alone. Under this test, the currently dominant test for neutrality, a statute is neutral if its intent is neutral, regardless of its effects. This makes good, common sense. Legislators take the world as they find it, and if they pass a race-neutral tax law that happens to take proportionately more money from people of Religion A than Religion B because members of Religion A happen to make more per capita, is that the legislature's problem? Indeed, if unintended effects could result in the overruling of perfectly well-meaning legislation, legislatures might have trouble accomplishing anything.

But, how the heck do you tell what the legislature's "intent" was? One way is to look at the statute. If the statute says "Blacks don't get to vote", we know it has a non-neutral intent -- it said the word "Blacks." Some people think that as long as a statute doesn't explictly make some impermissible classification, it's neutral. But what if legislators start hiding their intent? Doing so is not very hard. Some legislatures figured out pretty quickly that poll taxes combined with a "grandfather clause" could be used to effectively disenfranchise Blacks without saying the word "Blacks" in the statute. I think even opponents of disparate impact thinking such as John Rosenberg would recognize such legislative disenfranchisement schemes as having a non-neutral intent. Yet, where do we get that intent from? It's not in the face of the statute. It might be in the legislative history -- though many people have reservations about overruling a law simply because some representative shot off his or her mouth -- but what if all the legislators simply said, regardless of what they believed in secret, that, "our intent is to help raise much-needed funds while simultaneously rewarding families who have shown a commitment to long-term participation in democratic institutions." Neutral statute, neutral legislative history, but we'd still strike it down, and have. "Intent alone" isn't perfect, and while current law mostly accepts this conception of "neutrality", I doubt it will ever go all the way there.

Effects Alone. On the other hand, it also makes good common sense to say that there's more to life than what's on a piece of paper; goings-on in the real world matter too. It might seem pretty reasonable to only consider the effects of a statute when determining whether it is neutral. Indeed, doing so is, at least in some sense, downright practical. Who cares about something as intangible and difficult to pin down as intent, the line might go, when what really matters is what happens in the real world? If the statute hurts group A more than group B, that is what non-neutrality means; whatever is going on in people's heads is just all not that important. One problem with this view is that it is very hard to disentangle disparate effects caused by the statute from differences that simply exist for reasons outside the statute, though they manifest through the operation of the statute. Intent, at least that apparent "on the face" of the statute (in the statute's text), is much easier to detect than determining what effects really come from the statute itself. While it might seem weird to say that appearances are more important than actuality, that is in fact the very heart of democratic capitalism -- we're not a communist country, and the constitution that created our system does not demand actual equality, just formal equalty. Indeed, regardless of effects, intent should matter as well -- a statute that explicitly tries to keep minorities down but fails shouldn't be permissible, if for no other reason than the sake of appearances. Finally, there's the view that what really matters is not what actually happens but what is in the legislator's "hearts" when they were drafting the statute.

Intent plus Effects. This is the approach John Rosenberg suggested: a statute must have non-neutral intent AND non-neutral effect to be struck down. In my opinion, I feel this is trying to have it both ways, as discussed in my previous post; someone who so firmly believes a statute's disparate impact is irrelevant shouldn't be able to find a statute is permissible because it doesn't have a disparate impact. It certainly is the least likely to find anything to be non-neutral. In effect, this view a presumption in favor of saying a statute is neutral. In any event, between my post and Rosenberg's excellent response, the pros and cons of this combination have been covered, so I won't belabor them further here.

Intent or Effects. Finally comes this hybrid approach. It accepts that intent matters, for discriminatory legislative intent is the true evil to be combatted in protecting formal equality, yet it also recognizes that intent can be easily hidden. Thus, something else must be used to get at that intent, and what else do we have but effects? Thus, it is not that unequal effects are bad -- actual inequality is a part of our system -- but that statutes that apply unequally can serve as a proxy for a hidden intent not apparent on the face of the statute. Legislators may often by sly, but they generally aren't stupid; they often have some sense of what effects a statute will have. Thus, effects can shed light on intent. Even if a grandfather clause statute (as discussed above) doesn't say the words "Blacks", the effect is so clearly discriminatory that those effects come pretty show non-neutral intent.

But there's a problem with this: it's too restrictive. Sure, it's good for stopping sneaky legislative end arounds. But it can also tie the legislature's hands. Lots of statutes have disparate effects even without impermissible intent. Striking down such statutes is something with which John Rosenberg -- and the current Supreme Court -- is quite troubled. And indeed, striking down statutes of neutral intent is something that should trouble everyone. But it's not the only thing.

Assume that some statutes have disparate effects despite totally neutral intents. Though some would argue with this, I think such an assumption is pretty safe. But also assume that some statutes have non-neutral, discriminatory intents that are successfully hidden in facially neutral language. Though again some might disagree, I think this too is a safe assumption. So as between approach one (intent alone) and approach four (intent or effects), no matter which approach to neutrality we select, we will always have problems. Under approch one, we will let in all the perfectly fine statutes that have a disparate impact but benign intent, but we will also allow statutes where non-neutral intent has been successfully hidden. Under approach four, we will strike down those statutes with hidden non-neutral intents, but we will be overly restrictive: all those statutes with benign intents that just happened to have disparate impacts will be struck down as well. Both results are ones which should trouble us.

How do we choose between these two, less-than-ideal results? Mostly, the choice depends on what you think is more important -- making sure not to allow laws with discriminatory intent in, or protecting laws with neutral intent, even if that means letting in some laws with hidden non-neutral intents. I can't say with certainty which situation is better -- different people feel differently about this -- but I can say I personally prefer nixing some neutral intent laws to make sure no non-neutral intent laws go by.

This adopts what is called a prophylactic rule, and it is used routinely in other areas of law, where we're willing to risk stopping the government from doing permissible things to make sure it doesn't do bad things. For instance, it's often said that it's better that several guilty men go free than that one innocent man be found guilty, because an innocent being convicted is more offensive to our sense of justice than a guilty man going free. As a result, we have very high standards in the criminal justice system, we know it, and we generally accept it as OK. (See Sasha Volokh's simultaneously brilliant and hilarious n Guilty Men). When it comes to racial classifications or religious, why not apply the same idea? Now, I know some will see this as favoring approach one ("Better that n non-neutral statutes go free than for one neutral statute to be struck down."), and as most literally applied, I suppose it does. Nonetheless, I think thinking of neutrality in prophylactic terms most strongly supports approach four: Better that all statutes with non-neutral intent get struck down than that many are permitted for the sake of some statutes of neutral intent. Better that people be protected against discriminatory laws than that the government be protected against having some of its laws unfairly struck down. Taking equal protection and the principle of neutrality seriously seems, to me, well worth the cost of a few extra statutes not being passed. The legislature can always try again to achieve its legislative goals some other way, as many times as it likes.

Perhaps I am wrong, though: currently the first view, "intent alone," is ascendant. But it is not the only possible approach nor is it necessarily the best. I hope I have made some case that the fourth view, "intent or effects", at least some effects, is not an absurd one either, but I realize it has flaws as well. Upholding the principle of neutrality is a difficult task which presents many tough problems. There's a reason we fight over it viciously and so endlessly. The debate between the competing views, especially between view one (intent alone) and view four (intent or effects), may be intractable. I hope I have identified some of the fracture lines and some of the tensions which plague this debate. I'm interested in hearing arguments as to why any one of the four approaches is better than the others -- or indeed, why I'm an idiot and totally wrong -- so if you have a view on any of this, I would love to hear from you.

Friday, July 12, 2002

I CAN HARDLY TYPE THIS because I went rock-climbing for the first time last night (harness, belay, really tight rock-climbing shoes -- the works). It was in a gym, of course, but still very cool. I had a great time -- I managed to climb a couple of "5.7s", which my sycophant friends say is respectable for a first-timer -- though my fingers now feel like fat hot dogs. They say your fingers eventually get accustomed to hanging onto rocks. Soreness notwithstanding, it's highly recommended.

Thursday, July 11, 2002

GTEXTS IN THE PARK. Went to a Shakespeare in the Park production of Twelfth Night last night, and it was fantastic. The set, the delivery, the cool midsummer night's breeze all contributed to make this performance of the play by far the best I have seen, but above all I think it was the actors. I went in with some skepticism, as the group -- Julia Stiles (10 Things I Hate About You) as Viola/Cesario, Christopher Lloyd (Back to the Future) as Malvolio, Jimmy Smits (NYPD Blue) as Orsino, Kristen Johnston (Third Rock) as Olivia's prankster lady-in-waiting, and Zach Braff (Scrubs) as Viola's twin brother Sebastian -- didn't strike me as the ideal Shakespearean troupe. But they were fantastic, particularly the sitcom actors. I guess sitcoms prepare actors for more than one might think. (Though I also think much of Twelfth Night is the Elizabethan equivalent of a modern sitcom -- indeed, the situational irony brought about by (a) Viola's pretending to be a man and (b) confusion of identity between the twins would be quite at home on Frasier. But then again, Frasier is not simply a mere sitcom; it is the height of the art form, transcending the genre itself.)

The only question is: Why is it called Twelfth Night? Apparently the twelfth night after Christmas has some religious, festival-type significance , but that still doesn't answer my question.
KNOT QUITE RIGHT. I've always marveled at the existence of ties: where do they come from, and why do we still have them in a sector of the economy -- business -- that is supposedly most committed to rationality, efficiency, and clear thinking? You might expect some fru-fru artist to tie an uncomfortable, decorative silk strip around his neck, but the CEO of a Fortune 500 company? For a while, the corporate casual revolution might have been ascendant, but in the current economic doldrums people are going back to basics, that is, back to dangling useless silk ribbons from their necks. Clearly an unfortunate atavism we would all be better off without.

However, I must say that the tie has some interesting history -- derived from the cravat, which it appears is a bastardization of the word Croat, the ethnicity of crack soldiers from the Austro-Hungarian Empire who caught Louis XIV's eye (and maybe even both eyes) with their colorful neck scarves shortly following the close of the Thirty Years' War. If you want to read how the meme spread, see Alan Flusser's history of neckwear (I don't know how much of this is apocryphal, but it's a moderately entertaining read). But though the necktie may have had an interesting history, the time has come for that history to end.

(As you can tell from my vengeful state of mind, I'm just bitter about being required to wear a
EPIPHANY. Grammatical errors are more embarrassing than farting.

Wednesday, July 10, 2002

OF MEN AND GOATS. Last night I managed to come by a chance ticket to Edward Albee's new Broadway play The Goat, or Who is Sylvia? Not quite Urinetown (which I hope to see sometime soon), but hey, you can't complain about what gifts Fortune brings. Besides, Bill Pullman was starring, so I could enjoy the glow of his intermediate celebrity. Anyway, the play was a rather vulgar tragicomic exploration of the intersection of taboo and betrayal; the plot -- and I'm not spoiling anything here, for whatever merit the play has is in its dialogue, not its plot developments -- was about a family torn apart by the husband/father's admission that he is having a love affair with a goat. (Passing appropriate, as I remember from high school English, because tragedy or tragoidia basically derives from the Greek "goat song", whatever that was -- I forgot that part, if I ever knew. Maybe the companion play will be a satire about some foul-mouthed Satyr.) Anyway, watching A Goat was a strange experience, because half the audience was always giggling while the other half was clearly identifying more with the pathos (bathos?) of the play. Others flipped between the tragic and the comic stance. Very odd stuff. But that's what wins you a Tony these days.
SOME WORTHWHILE COMMENTARY on vouchers, the pledge, neutrality, and religion from Dennis Rogers et al, in part prompted by the conversation between John Rosenberg and I regarding the same subject.

Tuesday, July 09, 2002

CONTRA BATMAN. I criticized Superman below, but Batman's not all peaches and cream either, of course. Here we have a rich boy who "gives back" to the community by beating up criminals driven into financial desparation by the very economic system from which he derives his opulent lifestyle. True, this may not be very different from the way the general criminal justice system works, but at least there criminals get their day in court; Batman's vigilante justice is a far cry from affording anyone due process. Industrial magnate that he is, you'd think Batman would put more effort into fighting crime by creating jobs, especially in Gotham's blighted inner city. In solving problems with his fists, Batman may be trying to exorcise the demons of his parents' deaths, but that seems awfully selfish of a man with the financial resources to do so much good on a broader scale than one alley at a time. At the very least he could hire hundreds of toughs to police the alleys and slap around the other toughs for him, clearing up his schedule to spend more time using the Batcomputer to solve major social problems. Beyond that, Batman should generally aspire to be more like Bono and less like Bluto. Until then, Batman won't ever truly merit "hero" status.
AND SPEAKING OF SUPERMAN... If Superman swears by "Truth, Justice, and the American Way," why is he at such pains to conceal his identity? Is it "the American Way" to beat up people much weaker than you? (Lex Luthor) Moreover, why must (1) Truth (2) Justice and (3) the American Way be separately enumerated? Are Truth and Justice different? Inconsistent? Does The American Way not encompass Truth and Justice? One can only conclude that these noble concepts are just ex post justifications for Superman's acting without regard to morality or principle. He is, after all, an ubermensch. Good luck Batman, we're pulling for you.
MEN IN TIGHTS. Looks like there's a new movie in the works pitting Batman against Superman (link via Common Sense & Wonder). I hate to spoil it for Batman fans, but I've run the analysis already, and unfortunately there's no way Batman stands a chance., always the leading commentator on all things SuperFriends, puts it best. On Batman's general ineptness:
Batman did the best he could as a superhero, but there's only so much you can do with no powers and a bunch of toys. If the Super Friends were fighting an army of robots, Superman would melt hundreds by looking at them, Samurai would tornado them into space, and Firestorm would turn the rest into pretty balloons. They always had to save one for Batman, though, who would spend five minutes working out a complicated pulley system with his batropes to tie one up, and hope it breaks when he bonks it gently into a wall. Thanks, Batman, we couldn't have done it without you....

[Batman is] basically as clumsy, stupid, and inept as everyone else on the show, but doesn't have any powers to help you forget. I think that's why he hangs out with Robin. Because when you're standing next to a little masked boy in his underwear, the last thing people are going to mention is how you're useless in a fight.
In contrast:
With Superman around there was no point in having anyone else on the team. Name one problem that a bat-shaped boomerang could solve that Superman couldn't solve in one billionth of the time....If Chuck Norris' copdog sidekick had all its legs removed and then you glued its mouth shut, you have a vague understanding of how useful the rest of the team was to Superman.
There you have it (apologies for spoiling the movie). But though he doesn't have a chance, you gotta give Batman credit for even trying -- standing up to Superman takes guts (and stupidity). Here's a hint, Batman: the real way to beat Superman is not through strength, but by convincing Superman that the malleable concepts of "truth, justice, and the American way" are aligned with him doing your bidding.
AD CLINTONEM ARGUMENT. See Sasha Volokh's great post about some commentary on Clinton's recent law review article.

Sunday, July 07, 2002

WAITER, COULD I HAVE IT BOTH WAYS PLEASE? John Rosenberg recently directed me to his post on vouchers and the pledge. I had suggested that the voucher decision and the pledge decision were much more consistent than many people were letting on. Toward the end of his post, Rosenberg noted that he supported the vouchers case and opposed the pledge case on grounds that he thought were perfectly consistent. He wrote:
Perhaps we should come up with a new standard that would require both an impermissible intent AND sufficiently extensive effects in order to find [an] Establishment violation.
A nice try, but I don't think this cuts it either, even on Rosenberg's own terms. One of the big themes of Rosenberg's generally thoughtful blog is his staunch opposition to disparate impact thinking. Under this approach, only government intent should matter: So what if the effect happens to be lots of federal funds to religious schools? (restating the rationale of the vouchers case). Then, Rosenberg turns around and suggests that even when the government intent is promotion of religion, if the effects are small it should be permitted. (arguing for overruling of the pledge case)

This, I believe, is a classic case of wanting to have it both ways. When it comes to saying vouchers don't violate the establishment clause, Rosenberg wants us to look to the government's neutral intent and disregard whatever non-neutral effects it might have. But when it comes to saying "under God" in the pledge is OK, suddenly Rosenberg rests his argument on its effects. As Rosenberg would have it, effects aren't always irrelevant -- it turns out they matter a lot when having them matter is convenient. In fact, this is pretty close to an admission that a law's actual effects matter, something Rosenberg (and many others) have invested lot of energy in disputing, and pretty successfully at that.

Perhaps it's just me, but Rosenberg's logical whipsaw seems the very height of inconsistency. This is just the kind of trouble you get into when you engage in result-oriented thinking rather than picking a principle ex ante and sticking to it, even if this sometimes creates results you don't like.

Friday, July 05, 2002

COLLEGE GIRLS GONE WILD. There's been some interesting news lately about how several percentage points more women are enrolling and graduating from American colleges than men. This has prompted John Rosenberg to go on a pretty serious rant about how this means admissions programs are creating a disparate impact program against men. Rosenberg argues that just like universities can lose federal funding if they don't achieve proportional gender representation in sports, they should lose federal funding if the male-female ratios in colleges isn't balanced. As Rosenberg would have it, it is time for "preferentialists" to reap what they have sown: there's a disparate impact against men, and therefore men are being discriminated against.

Unfortunately for Rosenberg, he's mostly tilting at windmills. True, there are still some people who believe that "neutral" criteria -- for instance, giving civil service job preferences to veterans -- can sometimes have the effect of discriminating against women. In fact, I'm one of them. But despite what Rosenberg seems to believe, the sixties are over, and the "preferentialists" he's so afraid of lost out long ago. Take the civil service job preferences to veterans, where way fewer women are veterans because of combat restrictions and the draft. In Feeney, 442 U.S. 256 (1979), the Court held civil service preferences to veterans to be just fine. The current Court could not be more agreed with this conception of neutrality when it comes to Equal Protection issues (or indeed, certain religious issues, as we've seen in the vouchers case).

The majority of Rosenberg's argument is based on "disparate impact law":
The whole corpus of disparate impact law is based on the view that policies or practices that are neutral on their face and non-discriminatory in their intent can nevertheless be illegally discriminatory if they have a disparate impact on minorities. This is the sort of complaint, for example, that is frequently lodged against the SAT and other tests. Disparate impact law was legitimized by the Supremes back in 1971 when they held that Duke Power Company's policy of requiring all employees to have at least a high school diploma or pass an intelligence test violated the Civil Rights Act of 1964 (Griggs v. Duke Power Company, 401 U.S. 424).
But the "whole corpus" is a corpse. The fact that some cases may be lodged against the SAT doesn't mean those cases will be won. Those suits against the SAT or against use of the SAT by state colleges are sure losers; use of scores on a test graded without knowledge of the test-taker's race or gender (in fact, graded by a machine) is never going to be challenged by the Rehnquist Court or any court which adheres to its precedents. Just take a look at Washington v. Davis, 426 U.S. 229 (1976); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, (1977); Personnel Administrator of Mass. v. Feeney, 442 U.S. 256 (1979); Hernandez v. New York, 500 U.S. 352 (1991). Particularly relevant for the SAT case is Washington v. Davis. In that case a test for government employment on which minorities always did far worse was upheld because facially neutral. Griggs is a dead letter -- some lower courts have already recognized that it has been overruled sub silentio, and they are 100% right. Facially neutral policies will almost always be upheld in the race area (with very rare exception when there are truly egregious disparate impacts, such as in Gomillion, 364 U.S. 339 (1960), where after a 28-sided redistricting gerrymander, 400 blacks found themselves outside the city limits but oddly, no whites had been moved outside). In the gender area, where only intermediate scrutiny applies, facially neutral policies with disparate impacts will be upheld even more often, if that is possible.

Thus, all that's left of this part of Rosenberg's argument is the rather odd contention that if the discredited and unsuccessful legal theories of the "preferentialists" he ridicules were in play, it might be possible to help keep men from losing ground in the nation's public universities. A better argument of his is that because of Title IX, which prohibits gender discrimination in federally funded schools, this disparate impact needs to be remedied too. Gender differences in resources going to sports are grounds for withholding federal funds, Rosenberg notes, so why shouldn't gender differences in admissions or graduation rates?

On first inspection, this looks like a pretty good point. But it's not quite the "gotcha" Rosenberg thinks it is. Differences in funding and sports programs don't simply materialize through the application of neutral criteria; they are the result of specific choices by school sports administrators. School administrators choose to have a football program, or a field hockey program, or to have JV women's basketball, or lightweight crew. They choose to put money into sports recruiting. Any gender imbalance in sports is at least substantially attributable to conscious decisions by school officials. There's no gender-blind "Sports SAT" that students can be given for a school to pick out the top 200 athletes, and place them into an athletic program, and then after the test, the officials notice, "Hey, whaddaya know, we've got more male athletes than females." The very nature of sports -- an outstanding miler might make a terrible linebacker -- makes such an approach impossible, even within one gender.

On the other hand, we do have a gender-blind test for academics. We as a society seem to believe that high school grades and SAT scores, plus some extra factors like extracurriculars, are pretty good grounds to select students, regardless of race or gender. (I'm not sure I agree, but we'll just assume this is so for the sake of argument) Specific quotas for race -- and presumably for gender -- are in fact unconstitutional violations of Equal Protection, Regents of University of California v. Bakke, 438 U.S. 265 (1978), so I have to say I'm not sure how Rosenberg would have schools correct the slight gender imbalance currently "favoring" women. A "Harvard-style" system where male applicants in ties got a bump or where their maleness was considered as one of many factors in a larger equation would probably be permissible, but quotas would not. Unlike sports, where funding choices are directly made by some administrator, admissions in general are in large part based on scores and grades, and are quite constrained by Bakke, the case that struck down affirmative action quotas as discrimination against whites. In the end, Rosenberg ends up bumping his head into a case I'm confident he thinks was quite correct.

So there are my quibbles with Rosenberg's response to the new statistics on the gender breakdown in the nation's universities. I am glad to see, however, that he is taking disparate impact seriously. As a theory, it's pretty much fallen off the face of the legal world, and isn't really particularly relevant anymore, but if enough people keep complaining about "disparate impact law", who knows? -- maybe it might come back.

And one last note for those of you who like vouchers -- watch out. Rosenberg sagely points out that the government does have power (though I'll add not unlimited power) to condition grants of federal money on compliance with certain government goals if it wants to. I.e., Title IX. If religious schools become dependent on vouchers, they may open the door to increased federal intervention though conditional funding.
VOUCHERS AND PLEDGE 24-7. Just got an email from Steve Chapman of the Chicago Tribune reacting to my vouchers/pledge post:
I saw your item wondering why voucher proponents don't support neutrality on the Pledge issue, and thought you might be interested in knowing that one voucher supporter does.
Chapman agrees with my view that the vouchers decision and the pledge decision are actually not inconsistent; in fact, he beat me to the punch by a couple days, publishing a great editorial on June 30th. A couple excerpts from his outstanding editorial:
The two court decisions are opposite sides of the same coin. The Cleveland program gives parents vouchers that can be used to pay up to 90 percent of tuition at private schools, including religious ones....

The departure from neutrality comes not in the Cleveland voucher program but in the Pledge of Allegiance. The establishment clause of the 1st Amendment clearly means the government cannot pass a law declaring an official religion of the United States. But that's effectively what Congress did in 1954 when it inserted the words "under God" into the pledge....

Defenders of the pledge say it's "absurd" to treat those two words as a constitutional violation. They would feel differently if Muslims gained control of a school board and instructed teachers to start each day by leading students in chanting, "Allah Akbar!" (Arabic for "God is great").

The only difference is that the words in the pledge are familiar and in keeping with the sentiments of most Americans. But familiarity and popularity are no excuse for putting government policy and funding squarely on the side of religion.

Thanks, Steve. I'm glad to see that there are some commentators out there who see that the vouchers case and the pledge case are two sides of the same coin. Unfortunately, I don't think five Supreme Court justices will. The "ceremonial deism" line of precedent is available, and they'll almost certainly use it. However, I think the "ceremonial deism" argument is a cop-out; it is tantamount to saying some religious things are so general and harmless and perfectly acceptable to the majority of people that they don't really count for Establishment Clause purposes. Personally, I believe the opposite -- I think that the smaller the religiously marginalized group, the stronger the Establishment Clause should be. The religious mainstream will use their clout so that "Allah Akbar!" will never be statutorily required, while "one nation under God" will be and has been. It's the small groups who are afraid to speak up for fear of ostracization that the Establishment Clause really should serve. An Establishment Clause that only protects against things most people are offended by is a pretty useless provision. It may seem counterintuitive, but the fact that only very few people are bothered by the religious component of the Pledge of Allegiance is, to me, a reason we should take the Establishment Clause especially seriously -- not less seriously -- when it comes to something most people find as innocent as nonsectarian references to God by the federal government.
BRIN WEIGHS IN. Glad to know Sci-Fi legend David Brin, if not on the same page, is in a similar chapter on reactionary elements in popular science fiction and fantasy. (See posts here and here) (links via this blog).

Indeed, before I heard about Brin's position, in my rant about xenophobic speciesism in the film Titan A.E. I identified him as an author I wish more science fiction and fantasy writers emulated. Guess this was no coincidence: Brin is conscious of how regressive the mine run of writing in the genre is, and expresses his concern (of course) far more articulately than I ever could. Although I did admittedly go on to praise Star Wars as well -- and I still think that was correct in the area of race relations; while Star Wars has its problems, humans-vs-aliens thinking is not one of them -- I wrote:
I wish someone would make a movie version of David Brin's The Uplift War. Now that's some sci-fi, a series that doesn't just replay the same tired old formula: humans suffer at hands of aliens, then humans get revenge. Rather, the Uplift War depicts a much more rationalized scheme of intergalactic relations, where younger sentient species apprentice out to older, more experienced species.

Wednesday, July 03, 2002

THE PLEDGE AND ISLAM. John Hudock is understandably critical of Interaction Publishers' Islam: A Simulation of Islamic History and Culture, 610-1100, descibed here. Hudock wryly notes:
Where is the Ninth Circuit Court? I guess open promotion of religion in schools doesn't count as long as the religion is not Judeo-Christian.
Well, for one, the article does say there has been a federal lawsuit filed, so Hudock will vicariously get his day in court eventually. I myself am not sure whether the pledge case should be extended to wipe out the Interaction module. There are certainly potential distinctions between the Interaction module and the pledge -- students are told the pledge is real but are told that the module is just role-playing to teach them about other perspectives. Students are never told the pledge is just an educational game. Students do the Islam module in one class for three weeks; students say the pledge every morning for thirteen years. The Islam module is taught in conjunction with other lessons -- over the course of a social studies class, kids might also study China, ancient Sumeria, even the European Middle Ages, including cathedrals, or maybe even competing Christian doctrines during a study of the Reformation. While the Islam module is one of many in a semester or year-long social studies class, the pledge is the same thing, every day, for thirteen years. No teacher ever tells students that "Under God" in the pledge is an "alternative cultural perspective." So I don't think study of world religions from a social or historical perspective necessarily need be wiped out by the pledge decision -- there are at least some differences.

I don't know that the Interaction Publishers educational material on Islam will withstand a trial -- there are elements of the role-play described that are pretty questionable (though I think they become less questionable as the students participating becoming older, and more able to distinguish acting from reality). I do think public schools would be the poorer if they had to teach wholly religion-sanitized versions of the Crusades, the Reformation, and Puritans in history class, and couldn't teach parts of the Bible, as well as other religious texts, as historical primary sources, literature and cultural case studies (though not as religious truth, of course.)

And a quick final note -- if you're for keeping "Under God" in the pledge and for the Ninth Circuit being overruled, then you should also be for the constitutionality of a public school teaching the Interaction Islam module. Whatever problems the module might have, it is less religiously indoctrinating then the pledge, as I discuss above. On the other hand, if you don't like how it makes you feel that the Islam module is being taught (probably a lot of people don't like it; I myself am not thrilled by the fact) then you probably have some sense of how the athiest Newdow felt at having "under God" in the pledge, with the Pledge of Allegiance being a lot more serious a part of schools than some silly three-week module.
TLC IS "THE LYING CHANNEL": MacKenzie smells a rat in The Learning Channel's investigative reporting.
THE WHEEL OF TIME COULD USE SOME OIL. I just finished reading Robert Jordan's Winter's Heart, the ninth installment of his behemoth Wheel of Time fantasy epic. The books used to have halfway descriptive names (The Great Hunt, The Dragon Reborn, etc.) but Winter's Heart could be an Eskimo romance or an account of the battle of Stalingrad for all the title tells us. Winter's Heart is descriptive in one sense: True to the book's name, the plot moves at a glacial pace. Evidently chilled by the cold, the storyline has gone into hibernation. David Dalgleish largely concurs with my assessment in his review, The End is Not in Sight.

When I first started reading the series in seventh grade, I was blown away by Jordan's fast-paced storytelling, all while juggling innumerable subplots. 6000 pages later (each book is in the neighborhood of 600-1000 pages long) I feel like I've been captured. After putting such a big time investment into the characters and plot (I actually re-read the first five books at one point) I'm not about to give up now. But instead of enjoying the books, I'm starting to feel like I'm merely enduring them. For the most part, Jordan is becoming increasingly mired down in absurdly detailed descriptions -- one reader called the descriptions "fetishistic" -- of minor characters' clothing. Reading 700 pages simply to get one plot development just isn't a good investment return. Like millions of other novelistic kidnappees, I'll read the rest of the Wheel of Time, catapulting every volume high in the bestseller lists. But that doesn't mean I'll like it.

Part of the enscription that begins each book reads: "There are neither beginnings nor endings to the turning of the Wheel of Time." Well, I'm not sure about the no beginnings part, but the part about no endings is turning out to be dead-on prophetic.

Tuesday, July 02, 2002

THOUGHTS ON VOUCHERS, PLEDGE. There's been a lot of activity on the blogs regarding the Supreme Court's decision that neutrally administered vouchers are OK, as well as general outrage about the Ninth Circuit's decision that the statute adding "Under God" to the Pledge of Allegiance violates the Establishment Clause. I flatter myself that anyone would care what I have to add to the discussion, but hey, it's my blog. (For more in-depth commentary, see Prof. Volokh and Dennis Rogers parts I and II).

Personally, I was less than thrilled by the voucher decision. But while I do have an urge to whine, it's worthwhile to suppress that urge at least momentarily and accept that the Supreme Court has decided, and the permissibility of vouchers is now the law. Of course, whining is highly relevant to the upcoming legislative policy debate -- vouchers are permissible, but the Supreme Court's decision doesn't require Congress or any state to provide them -- but that's not what concerns me right now.

What concerns me is the inconsistency of many who celebrate the vouchers decision while decrying the pledge decision. The core principle of the vouchers decision is that government does not collide with the Establishment Clause when it provides religiously neutral aid, which some or most individuals receiving the aid independently chose to spend on religious education and indoctrination. This is no different, at least in theory, from a bureaucrat giving part of her salary to a religious group, a student spending a Pell grant at a religious college like Notre Dame, or 501(c)(3) deductions for donations to a church (deductions are tax expenditures just as much as giving someone cash aid directly). Neutrality, neutrality, neutrality has always been the mantra of the Rehnquist Court -- beginning with eviscerating the old focus on protecting discrete and insular minorities in Carolene Products footnote 4 in favor of neutrality in the area of Equal Protection doctrine. Now the climb up Neutrality Mountain is nearly complete in the Establishment Clause area. If there's one message the Rehnquist Court wants to get across, it's that actual results don't matter; facially neutral policies are all we ask for.

The vouchers decision has continued this trend: when it comes to the Establishment Clause, the Supreme Court now says government neutrality is the touchstone. But if religiously neutral policies like vouchers get upheld, then religiously non-neutral policies should be struck down. A federal statute creating an official national pledge which asked students to say "one nation under Allah" would be religiously non-neutral, and should be struck down, and "one nation under God" is really no different -- it contains a religious, albeit nonsectarian, message. If the pledge statute said: "one nation under [students say whatever you want here]", and almost all students happened to insert "God" of their own volition, now that would be religiously neutral.

Yet I don't think you'll find many proponents of vouchers seeking to apply the same principle of neutrality they applaud in the context of vouchers to the pledge case. To me this seems inconsistent, but I have to admit, people are sometimes inconsistent. And I'm not saying that inconsistency is limited to any particular ideology or partisan group. But I do think that when the Supreme Court overrules the pledge case, it will still be acting in a way that is, at its root, in substantial tension with the voucher case. The fact that the Court will likely rely on all the various instances of "ceremonial deism" that have been allowed for so long in our society -- "In God We Trust", even "God save this Honorable Court", etc. -- doesn't make the decision any more principled. It's funny how things in the real world suddenly matter so much to people when they want to say "Under God" is no different from what's already going on out there, but the fact that 90-plus percent of voucher aid was going to religious schools in real-world Ohio is somehow irrelevant to the question of whether vouchers are an unconstitutional entanglement of government and religion. But disparate impact arguments are a lost cause, and I promised I wouldn't whine.

Assuming that the Supreme Court resolves the circuit split regarding the legality of "under God" in the pledge in favor of keeping "under God" -- a pretty conservative prediction -- we will then live in a world where the government's religious neutrality is taken seriously only when doing so is convenient. The reason this tension will develop is not because people are fundamentally unprincipled, but because the real principle driving such decisions -- approval of government support for mainstream religion -- must remain hidden under the Establishment Clause.
THREE CHEERS FOR THE GREEN GOBLIN. I've been thinking about the Spiderman movie, and have concluded that you gotta give the Green Goblin credit. He could easily have moved to a sprawling city like Los Angeles where Spiderman couldn't travel by webslinging and set up his fiefdom there, but no, he was willing to take on Spiderman on ground favorable to Spiderman: New York. That took guts. Along with bravery, the Green Goblin clearly enjoyed his job as well. He could have just killed Spiderman when he was paralyzed by the Goblin's paralysis smoke, but no, that would have been too easy. Instead, the Green Goblin thoughtfully crafted a way to impale Spiderman on the horns of an impossible dilemma, simultaneously letting Mary Jane and a car full of schoolchildren fall to their apparently imminent death, expecting Spiderman to only be able to save one, and then, as Spiderman was split between the two, trying to attack him. (Remember, the Goblin was foiled here not by Spiderman but only by the interference of rock-throwing spectators on the bridge -- hardly a fair fight). Even though the M.J.-or-kids dilemma didn't work out in the end for Green Goblin, you have to give him credit for going the extra mile when he didn't have to (again, think paralysis smoke). Cheers to Green Goblin, for taking villainy seriously. People say Hollywood's to blame for all sorts of problems, but the Green Goblin teaches children that while not everyone gets to be the hero of the movie, anyone can work hard and take pride in what they do. The Green Goblin did, and for that, he's a role model.
DEFENSOR ELVES. Read Brélan's rebuttal here.

Monday, July 01, 2002

GROUNDSWELL AGAINST THE ELVES. Apparently my elves post has gotten some more attention. See HokiePundit (analogizing various races of Middle Earth to various European nations); Distorting the Medium (calling the piece "funny"); Centrepullball ("a thoughtful twist"); and even a nod from Instapundit himself. It's nice to know you're making a difference and getting the message out.
TURNING TURNBULL'S BULL. Craig Biggerstaff weighs in with some thoughts on the marriage penalty, partly in response to my first post on the subject, as well as criticizing Douglas Turnbull's commentary. Turnbull complains about an "annoying bit of sophistry" -- yes, I got excited for a moment, but unfortunately he was not referring to anything I said, but to mainstream political opposition to the marriage "penalty" in general. Turnbull essentially invokes the concept of imputed income (income that slides under the radar of the tax system, as when someone does housework for themselves, or mows the lawn, or the like) to argue that the marriage penalty actually makes good economic sense:
[A] married couple living together has substantially more disposable income than two single people making the same salaries. As such, the married couple is taxed more. And if you support a graduated tax schedule, you should support this outcome as well.

In fact, I’ll go further and say that, for most people, even including the marriage penalty, a married couple will end up with significantly more disposable income (after taxes) than two single people with the same salaries. So the whole debate about the marriage penalty is complete nonsense. It’s a debate over a non-issue; the pretense that there is a financial penalty to getting married is simply wrong. There actually is a substantial financial benefit to getting married.
A great point on first inspection. Of course, imputed income wreaks havoc among economists and tax policymakers, and always has, so they generally tend to try and ignore it. But housewives or househusbands undoubtedly create unrecognized and untaxable income, and surely even when two working people get married, they benefit from economies of scale. But Turnbull's point notwithstanding, we really don't have a measure for the income created by marriage, at least not one we can all agree on. The marriage penalty might be too high to offset the imputed income created by marriage, or it might be too low.

Basically Turnbull is arguing against the version of the marriage penalty criticism that he already admits to be fallacious -- that it's a penalty against marriage in general. The remaining criticism of the so-called penalty -- that it penalizes two-earner families relative to their one-earner counterparts -- is not addressed by Turnbull's invocation of imputed income. In fact, inasmuch as one-earner families presumably have even more imputed income created by the homemaker spouse, we can easily turn Turnbull's bull on its head. He argues against the criticisms in the popular debate; but actually the ideas he uses can be made to serve critics of the marriage penalty as it actually operates: to penalize two-earner couples vis-a-vis their one-earner counterparts. Since one-earner couples have more imputed income than two-earner couples, the disparity between treatment of two-earner couples and one-earner couples is magnified even further if we take imputed income into account. If we're talking about the relative tax effects on one and two-earner couples, Turnbull's imputed income point actually cuts the other way, and becomes yet another criticism of the marriage penalty.

Biggerstaff, however, beats me to the real uppercut against Turnbull's argument -- and maybe even against my initial social conservatism rant -- the imputed income Turnbull talks about is really the result of cohabitation, not marriage:
There are definite financial benefits to cohabitation, but it is a fallacy to assume that these benefits only accrue to the married. If there is a tangible financial benefit that occurs solely upon legal marriage, I'd like to hear about it.
(Great point, though I must note that for one-earner cohabitators, they actually do get a tax benefit upon marriage, which is tangible and financial. I also note that there's a great deal I like about what Turnbull has to say, but I let my opinions be driven by the headlines that could accompany them, and "Turning Turnbull's Bull" was too good to pass up. Apologies, Douglas.)

Sunday, June 30, 2002

THE WORLD ACCORDING TO DISNEY. After seeing Disney's new animated feature, Lilo & Stitch, I was reminded of Sasha Volokh's outstanding article about the role of property in Disney movies. In particular, Volokh juxtaposes the competing visions of property in Pocahontas ("environmentalist anti-property message") with those in Lion King ("property as a necessary condition for stability, prosperity and environmental protection") and The Hunchback of Notre Dame (property as sanctuary from oppressive authorities; property as a bulwark against tyranny and intolerance) (Warning: spoiler below; don't read if you want to see the movie without knowing about the plot)

In Lilo & Stitch, a mad scientist in some far-off galaxy creates "Number 626" through genetic tampering. Along with being an "abomination" according to the alien tribunal, the cute-and-cuddly blue monster is actually incredibly dangerous -- quick, strong, smart, and lacking any real desires save destruction of large cities. 626 escapes in an exciting space battle and, after making the jump to lightspeed, crashes his ship on one of the Hawaiian islands. Unable to cross water because of his density, 626 is stuck. Meanwhile, the alien authorities decide not to destroy Earth to kill 626 because, as a pesky alien bureaucrat points out, Earth is home to an endangered species protected by the galactic federation: mosquitos. Instead, the aliens send the mad scientist and the bureaucrat to track 626 down and capture it. In order to escape his hunters, 626 poses as a dog and is adopted by the lonely but quirky Lilo, a little girl who names him Stitch. Lilo's parents are dead, and she is being raised by her older sister Nani, who is having difficulty handling the responsibilities of working to support them and simultaneously raising the feisty Lilo. With the ultra-destructive Stitch in the picture, who Lilo loves, everything falls apart, and the social worker is about to take Lilo away when both Stitch and Lilo are captured by alien forces. Stitch breaks out then goes to save Lilo, wreaking plenty of havoc in the process. In the end, galactic authorities prepare to take Stitch away, but Lilo comes forward and presents her license from the dog pound -- she annouces that she bought Stitch for 2 dollars, and that if the galactic authorities take Stitch away, it would be stealing. Always ones to obey rules, the kind-hearted galactic leader agrees that Stitch should stay there, and places Stitch and his "family" under the protection of the space federation. Everyone lives happily ever after.

First of all, one of the key jokes in the film -- that the aliens have been bamboozled into believing that Earth is a wildlife refuge for mosquitos and that humans are important as mosquitos food supply -- lampoons the excesses of environmentalism. One for Lion King, zero for Pocahantas.

But Lilo & Stitch also goes in some new directions, pitting the safety of the entire galaxy from a dangerous genetic experiment run amok against a two-dollar contract. In the end, the two-dollar contract wins out. Of course, this is played for the cute ending it is. But it also represents a view that individual ownership should, at least in some circumstances, trump collective security. It's not really a view I much agree with -- Stitch had done what must have been thousands of dollars in property damage to the island, and was an even greater danger if he ever got off the island, and allowing Lilo to endanger countless people and their property by "holding out" seems to accord just too much weight to private ownership. Private ownership is important, yes, but that should not be the end of the inquiry; inasmuch as a free-ranging Stitch endangered others' equally legitimate property ownership, seizure with compensation to Lilo seems a much fairer balancing of everyone's interests. (Although talk of the hyper-intelligent Stitch's price and value smacks of slavery). So there you have it -- by ending the story with Lilo's assertion of a property right over Stitch, Disney is doing its part to create a generation of children with a one-sided conception of property.

We also get a glimpse of Disney's position on genetic experimentation (and presumably cloning, stem-cell research, and the like). Stitch is the project of a genetic experiment. Echoing modern opponents of genetic experimentation, the alien tribunal calls Stitch an "abomination" because he was the product of a lab, and imprisons him (though he escapes). As the audience comes to identify with the irrepressable hijinks of Lilo and Stitch, the alien pronouncements against genetic tampering seem more and more unreasonable; we're pulling for the four-armed blue rascal. In Lilo & Stitch, we see that far from disaster, genetic tampering can result in creatures with cool powers.

So, to wrap up the messages of Lilo & Stitch: environmentalism is silly, property rights are absolute and never conflict, and genetic experimentation is cool. I might not agree with the entirety of the Lilo & Stitch plank, but at least Disney took a stand and kept it interesting. It was, after all, a comedy.

My bizarre musings notwithstanding, I thought Lilo & Stitch was an excellent movie -- always funny yet at times strangely touching. Though Disney cut some corners with the animation, Lilo & Stitch is definitely a welcome addition to the canon after some of the studio's recent fare.
MORE ON MINORITY REPORT. My brother Brélan today pointed out another problem with Minority Report that I thought worth fleshing out here: Why are the precrime authorities so darn Draconian with their punishments? The normal would-be criminal has their crime stopped, and then is “haloed”, that is, has some kind of neural device attached to their head which utterly paralyzes them. Then the haloed criminals are loaded into some kind of Matrix-esque body storage system where they apparently remain imprisoned forever.

I think it’s worth noting that presently, we aren’t that harsh even with most people who commit crimes, let alone those who are stopped before they go through with it. True, some murderers are executed and some are given life with or without possibility of parole, but quite a few are not “taken out of circulation” forever. Not to mention that the kinds of “depraved heart” and “heat of passion” murders depicted in the movie – i.e., a husband walks in on his cheating wife and lover in flagrante delicto and is about to kill them by stabbing with a pair of scissors – would almost certainly not be grounds for life imprisonment.

Yet, in Minority Report, just such crimes are grounds for life imprisonment, except that the crimes never actually happen because they are prevented by precrime. It’s unclear to me why the criminal justice system of future DC goes so far. There’s no need for retribution since the crime never happened. The whole “locking up people dangerous to the community” argument (deterrence) no longer holds, because precrime stops murders from happening in the first place; it’s not like the would-be murderers are going to kill again if they remain on the streets. (Of course, if you’re one of those who believe it’s not the act of killing someone but the guilty mind that desired to kill that deserves punishment, then maybe lifetime haloing is justified, but I still prefer to punish acts more stringently than thoughts.)

If anything, precrime seems to present the ideal opportunity for a rehabilitative criminal justice system, one that focuses on taking would-be murderers and reintegrating them into society. Unlike our own time, in which we are leery of wholehearted experiments with rehabilitative criminal justice systems out of fear of putting dangerous criminals on the streets, in the precrime era there’s no reason not to try – if the rehabilitation program fails and the killers strike again, they’ll be stopped, so what’s the big fear?

Better yet, would-be murders could be slapped with a stiff, revenue-raising fine. Since murders can be so easily stopped, locking people up doesn’t seem to make much sense. If an attempted – and stopped – murder was turned into a basically taxable event, the government could turn a profit on precrime rather than enduring the expense of locking people up forever in state-of-the-art neuroprisons.

In the end, the fact that haloed prisoners are apparently incarcerated for life may be explained more by the symbolic value of doing so than any retributive or deterrence-based purpose. Total punishment for trying to commit a crime that could never happen can be explained no other way than that policymakers were out to make an impression, perhaps trickling down to smaller-time criminals who precrime could never catch (it only prevents murders). Still, I have to think locking the cheated-on husband away for the rest of his life is going too far, especially when (1) he didn’t actually kill anyone and (2) modern criminal justice systems wouldn’t lock him away forever even if he did kill. Symbolic ends should not be achieved by imposing disproportionate punishments on anyone, whether they committed a crime or not. Unfortunately, dystopian fantasy stories may not be the only places where such thinking prevails.

(See my earlier discussion of the movie.)

Friday, June 28, 2002

(b) Conduct during playing.--During a rendition of the national anthem--
(1) when the flag is displayed--
(A) all present except those in uniform should stand at attention facing the flag with the right hand over the heart;
(B) men not in uniform should remove their headdress with their right hand and hold the headdress at the left shoulder, the hand being over the heart...
MORE ON HEADDRESSES. A similar problem to that discussed below is seen in 4 U.S.C. §9:
§ 9. Conduct during hoisting, lowering or passing of flag
During the ceremony of hoisting or lowering the flag or when the flag is passing in a parade or in review, all persons present except those in uniform should face the flag and stand at attention with the right hand over the heart. Those present in uniform should render the military salute. When not in uniform, men should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart. Aliens should stand at attention. The salute to the flag in a moving column should be rendered at the moment the flag passes.
I have to admit, I still don't see what is accomplished by not asking non-uniformed women to comply as well; they're citizens too. And I'm still scratching my head over that "headdress" business.

Thursday, June 27, 2002

ANOTHER CHALLENGE TO THE PLEDGE? There've been a lot of rumblings on the blogs about the recent 9th Circuit decision holding the "under God" part of the pledge statute an unconstitutional violation of the establishment clause. (For some balanced discussion, see Prof. Volokh's commentary). Rather than talk about the establishment clause issue -- there's already a vast chorus, and I'd add little, plus the Supreme Court is going to reverse this 5-4 anyway -- I thought I'd consider another potential legal problem with the pledge statute, 4 U.S.C. §4:
The Pledge of Allegiance to the Flag, "I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under God, indivisible, with liberty and justice for all.", should be rendered by standing at attention facing the flag with the right hand over the heart. When not in uniform men should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart. Persons in uniform should remain silent, face the flag, and render the military salute.
Headdress? Where did Congress get that?

Seriously, though, I couldn't help but note that the statute reads "When not in uniform men should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart." Apparently non-uniformed women (note it neutrally says "persons in uniform") don't have to do anything. So there you have it: the statute classifies on the basis of gender. Under the equal protection clause, such a gender-based classification must survive intermediate scrutiny, that is, it must serve important governmental ends and the means used to achieve those ends must be substantially related to the ends, or be struck down. (Whatever that means -- I admit I haven't really been able to figure it out.) Even though the statute doesn't really have any bite -- people aren't required to say the pledge or salute the flag, Barnette -- such a classification is still of at least symbolic significance. In order to comply with the official pledge, men have to do more than women. Without combat risk or pregnancy-related biological differences in play, I'm not sure gender discrimination in the pledge statute can be said to survive intermediate scrutiny, especially when keeping VMI all-male didn't survive it. Based on VMI and similar precedents, this element of 4 U.S.C. §4 could theoretically be grounds for a successful suit striking the gender discriminatory part of the statute. It just goes to show that seemingly sacrosanct government institutions can pretty easily have at least potential legal flaws with them. That is to say, there's an argument based on mainline equal protection law (though courts are always prone to carving out exceptions). They probably wouldn't carve one out here -- unlike striking out "under God," I don't think 99 senators would oppose changing "men" to "persons." So such a suit could have a chance of success.

Of course, I would be pretty surprised if anyone brought such a suit; until then, it's purely academic. Just because something could be done doesn't mean it will. There are lots of potentially "unconstitutional" statutes floating around, but the doctrine doesn't matter until it actually gets before a court.

Wednesday, June 26, 2002

THE TWENTY-SIX-MILE LIE. The story of Pheidippides' famous run from the Battle of Marathon to Athens to announce the news of the Greek army's victory over the Persians, after which he collapsed from exhaustion and died, has troubled me for some time. As the familiar test of endurance in our own time takes its name from these purported events, we moderns perhaps have some stake in protecting the traditional account, but that's no reason to perpetuate untruths.

My problem with the canonical version is a simple one: Where were the horses? Sending messengers 26 miles to deliver a message (indeed, Pheidippides had apparently gone over a hundred miles the day before from Athens to Sparta, to beg the gerontocracy for Spartan military muscle at Marathon) seems pretty foolish if you have horses on hand. The Athenian military may have been based on infantry hoplites, but the fact they weren't cavalry-centric doesn't mean they didn't have horses. Ancient Greek culture clearly shows exposure to horses (think Pegasus or Hercules and the Augean stables), and if you're ever going to use your horses, getting messages around in wartime seems the time to do it. Because of this, I've long felt there was something fishy about the classic marathon tale.

I've let this suspicion ferment for a while without doing anything about it -- I'm a far cry from a classicist and I don't have everyday exposure to resources for resolving this question without going a little out of my way. Whenever I discussed the issue with people (i.e., my dad), I got responses based on the hilliness of Greece in general, and specifically the terrain surrounding the plains of Marathon, which might have made it difficult for the Greeks to pony-express it.

But yesterday I got my hands on F.J. Frost, The Dubious Origins of the 'Marathon', 4 American Journal of Ancient History 159-63 (1979). While I'm the first to admit that publication in an academic journal is no seal of uncontrovertible truth, it is nice to know that I have an expert on my side. Frost talks at length about whether the original runner's name was really Philippides and "Pheippides" was a copyist's error, as well as how various versions of the story from Herodotus got passed down through the hands of Plutarch and his ilk, and was finally whipped into truly modern shape in Robert Browning's 1879 poem from Dramatic Idylls. This is all very interesting, and probably would be even more so if I knew what Frost was talking about, but more important is what he has to say about what I really am concerned with -- the horses:
Unfortunately for the legends of long distance runners, someone in one of the many villages along the route undoubtedly jumped on a horse and swiftly outdistanced those on foot.
For a moment I felt validated, but then I realized Frost had preempted my marthon myth-busting argument with an article written the year I was born. There is nothing new under the sun.

Seriously, though, Frost's article makes some nice points, and in the end we have to chalk up the marathon story not to athleticism but to the obscuring mists of a Herodotus-to-Plutarch "telephone game." As Frost aptly observes:
For all we know, every great battle in antiquity eventually attracted anecdoctal embroidery like this, with a runner arriving at the gates of the victorious city, gasping out the good news and breathing his last.
In the end, the lesson of the Marathon Myth is one we already knew: show some healthy skepticism whenever you hear anyone tell you "the fish was THIS big..."