Wednesday, July 31, 2002

ROSENBERG REJOINDER. John Rosenberg has written a downright magisterial response to my latest disparate impact post. Because of the increasingly unblogly lengths our forth and backs have been reaching, I'm going to keep this post as short as I can, and avoid chasing every stray rabbit.

Separation of powers, word games, democracy, and state action doctrine aside, the biggest area of conflict between us is over whether disparate impact should have any place in discrimination doctrine. To Rosenberg (and correct me if I'm being unfair), "discrimination" is when person A makes a choice to treat person(s) B unfairly and to their detriment because of their race, gender, or the like. This makes sense, says Rosenberg, and it's a perversion of this ideal when mere neutral rules which happen to fall heavier on one race or gender is said to also be discrimination.

While there's room for disagreement, I happen to agree with Rosenberg on all of this. A disparate impact, in and of itself, certainly need not necessarily be the result of discrimination. Nor do I demand absolute equality. There are some people who do hold these views, but I don't. (Note that Rosenberg had to import a quote from Rick Hertzberg to criticize; couldn't find that material in anything I said).

Where Rosenberg and I differ, in fact, is not in our concept of discrimination, but in our concept of reality. Rosenberg criticizes me for not understanding the difference between "disparate treatment" and "disparate impact." What Rosenberg fails to see is that legal reality is constructed in a courtroom. In an ethereal ex post, perfect-information fantasyland Rosenberg's thinking on disparate impact is exactly the way to go.

The reality though, is that judges are not infallible or omniscient. They cannot intuit whether a disparate impact was the result of hidden discrimination or merely an unfortunate confluence of events. They cannot tell whether the facially neutral employee preference scheme which redounds to the detriment of women was intentional or accidental. Yet they have to make do with what they've got, and try to see justice done. I'll posit that all (successful) discrimination results in a disparate impact; disparate impact is a signature discrimination leaves behind. That said, there are also some -- even many -- disparate impacts that do not result from discrimination.

That leaves us with a dilemma. Either way there are problems. Which side are you on in our imperfect world? In the statutory context, I'd choose to err in the side of taking equal protection seriously, even if it means striking down some laws that wouldn't be struck down in a perfect world. In the individual context, it's different -- I don't want people being subjected to well-hidden discrimination, but neither do I want people to be punished for wholly legitimate acts that just happened to have a disparate impact. That's why I think the burden-shifting approach of the civil rights laws strikes a good balance. It accepts that intentional discrimination can be hard to detect unless you use its signature, disparate impact. But it also recognizes that disparate impact can yield false positives, and so it provides a way out.

To me, this is making the best of an admittedly imperfect situation. It's not the only approach possible, of course. These are very hard questions, and people can and do disagree with the kind of quasi-religious fervor Rosenberg and I have displayed on our blogs. Yet, despite being well-versed in the counter-arguments, I have never been persuaded by them. Although I make no statement about Rosenberg's political alignment, I'll close with a quote from my response to a recent Charles Krauthammer piece which I think is appropriate for the present discussion:
Conservatives believe that human nature is fundamentally good. The fact that this is contradicted by 4,000 years of, say, racial hatred, slavery, and ethnic warfare is beside the point. If there's a facially neutral policy that happens to lead to racial minorities holding the short end of the stick every time, conservatives find it shocking when liberals suspect that the formally neutral rule is being used as a pretext for the same racial discrimination that has gone on as long as anyone can remember. Conservatives suffer incurably from naivete, though sometimes one finds this naivete awfully convenient.

QUITE A COLLECTION of law-related blogs out there. (click expand all). Maybe this doesn't make lawyerblogging a full-fledged anomaly, but it's still impressive.
GREAT SPIN from Austin Meredith, arguing for moving beyond a Library of Congress based on bound volumes:
At one time, at one population level, putting bound volumes into the Library of Congress and allowing public access may have been the best way to make the texts democratically available. Nowadays, at present population levels, with present technologies, there are such better ways that putting bound volumes into a public-access library in Washington DC might almost count as intentional and undemocratic sequestration, as unavailability rather than as democratic availability.
(emphasis mine). Meredith may have said this in 1994, but as far as I know it's worth repeating today.

The physical Library of Congress sure is a nice place to do research, though.

Tuesday, July 30, 2002

BACK & FORTH. People often talk about going "back and forth." See post below. But don't you have to go forth ("onward in time, place, or order") before you can go back ("to, toward, or in a place from which a person or thing came")? Isn't "backness" only defined with reference to "forthness"? Thus, shouldn't it be forth and back?

Anyway, John Rosenberg has done something; whether it's "back" or "forth" is matter of taste. A great post; I'll have to work up a response, but not today. This whippersnapper is tired.

Monday, July 29, 2002

LAWYERBLOG. A lotta lawyers are blogging: profs, practitioners, law students (not that I'm going to go much into substantiating this claim right now). It seems like there's something that compels law types to take up blogging. The secret, pretty clearly, is seen in lawyers' ability to produce monumental amounts of bad writing.

Kidding -- mostly. But what's up with all this lawyer blogging? There are a lot of general answers: lawyers are generally argumentative, articulate, and like to hear themselves talk (or type). Lawyers are trained in critical thinking, seeing both sides of an argument, yadda, yadda, yadda. You've heard it before. Plus, even I can use blogger; the technological barrier to lawyer blogging is pretty low.

The above, however, is not a particularly good explanation. Lawyers don't have a monopoly on any of the above qualities. Some deeper force has to be at work.

That force is the nature of legal writing. Take the following description:
A focused piece taking a stand on one issue or combination of related issues. The piece draws on an almost uncomprehensibly vast array of possible sources. These sources draw on other sources in similar fashion, creating an impossibly complex web of ideas.
What am I describing here? It could easily be a blog, frequently linking to earlier blog posts by that author and others as the blogger makes her point. But on the other hand it could be a judicial opinion, a legal brief, or a law review article. Much like blog writing, legal writing is heavily peppered with direct links to the writing of others.

Ah ha, you say, but what about other types of scholarship? Every other academic discipline has its footnotes and citations. True, but none are quite so compact or so usable as those in law. The footnotes of a historian may take years to track down in some obscure original manuscript; 956 F.2d 1163 can be quickly pulled off the shelf. In fact, legal sources have proved perfectly adaptable to hypertext; Westlaw and Lexis now turn most every legal citation into a hyperlink for you, so you can just click to the cited opinion.

Legal writing also rewards linking, and has done so for centuries. Unlike other, originality-centric disciplines, a statement is much more impressive in law if you can cite to 10 courts that make it look like you're not thinking for yourself. It's better if you can cite a relatively high court (for bloggers, links to the Washington Post, to Slate, to Instapundit), but if they're not saying what you want, you'll cite to whoever you can (for bloggers, links like this).

Lawyers are trained to operate in a world were they are constantly building on what other lawyers have done, constantly referencing, refiltering, repackaging, and respinning the opinions of yesterday. It's why Franz Kafka said, somewhat unflatteringly, that reading legal briefs is like being fed on "sawdust which had already been chewed by thousands of other mouths." In some ways, that description could apply equally well to blogging, although somewhat surprisingly, rechewed sawdust can often be quite interesting, rewarding, even entertaining.

Having rechewed legal sawdust for centuries, lawyers are at an obvious advantage when it comes to rechewing cyberspace sawdust. Hence, lawyerblogging.

Sunday, July 28, 2002

ROSENBERG REVISITED. John Rosenberg and I have been going back and forth (and back and forth and back and forth and most recently back). Phew!

Rosenberg's latest post raises a number of questions. I fully admit that there were a number of flaws in my most recent post. For instance, I went back and looked at Town of Huntington v. NAACP, 488 U.S. 15 (1988), and indeed, the Court did tread cautiously around the disparate impact question:
Since appellants conceded the applicability of the disparate-impact test for evaluating the zoning ordinance under Title VIII, we do not reach the question whether that test is the appropriate one. Without endorsing the precise analysis of the Court of Appeals, we are satisfied on this record that disparate impact was shown, and that the sole justification proffered to rebut the prima facie case was inadequate.
Indeed, I recalled the holding (though not the judgment) of the case incorrectly, and I have to thank Rosenberg for correcting me on this one.

Of course, this moots my point about the Court being more hesitant to reverse itself on a statutory construction question. Still, I must point out that Rosenberg missed some nuance there when he said "what Moritz wants here is not judicial deference to Congressional action, but to Congressional inaction." I was not saying, or at least it was not my point, that the fact that Congress could alter the statute but didn't is exactly the same as passing a statute. Instead, I suggested this: (1) Stare decisis requires the Court to defer to its prior decisions in all but emergencies; (2) When the Court interprets a statute to say X, it is possible for Congress to rewrite the statute to make it clear the statute means Y; (3) If the Court has already interpreted a statute to say X, it's hard to say there's an emergency justifying reinterpretation. Regardless of the issue, it always looks bad when a court says one thing and then changes its mind later; when it happens, it does something to undermine the rule of law. That's not to say that cost isn't sometimes justified, because in certain situations, courts do have to change their minds. It's just that they should never do so lightly. In fact, courts should almost never reverse themselves outside of Constitutional questions. If the Court won't admit it was wrong on a Constitutional question, no one can change the law short of a revolution (or an amendment). But if the Court sticks to its original interpretation of a statute, Congress can always change the statute. It's not that Congress ratified the interpretation; it's that the justification for the Court enduring the embarrassment of reversing itself is much less when there are better ways out of the pickle, involving the legislature, the branch whose very job it is to collectively change its mind, try experiments, and respond to public opinion. That's all I was saying -- the Court should be much more hesitant to reverse itself on statutory construction issues than constitutional ones. You needn't infer a thing about congressional intent or think inaction is the same as action to reach this conclusion.

The above, however, is admittedly a detour, though a fun one. The crux of the dispute between Rosenberg and myself is well captured in the following statement of his:
It is worse than awkward for "discrimination" to mean one thing under the 14th Amendment and something else under the Civil Rights Act or Fair Housing Act.
I won't beat around the bush: I don't share his concern with the same word having slightly different definitions in two quite different contexts. I might prefer "disparate impact" to count as discrimination in both the equal protection and the FHA context, but nothing requires a word or phrase to have the same meaning everywhere it appears. There are plenty of areas in law and in just everyday language where the same word derives a different meaning from its context. (Compare "The boss is discriminating against minority employees" with "She has very discriminating tastes"; or "He's on fire! Get him the ball!" with "He's on fire! Get a bucket!"; or "Doesn't she look great?" with "Great, yet another disparate impact post"). Words having different or even opposite meanings depending on the context should not in itself be too much of a cause for alarm; we do it every day without even noticing.

Thus, if we say "discrimination" always includes disparate impacts whenever it appears solely because we "demand coherency," we're subjecting the word "discrimination" to different rules than other words. In law, as in language, the dominant rule is not that a word always means the same thing, but rather that words should be read in light of their surrounding words.

While Rosenberg suggests that for "discrimination" to exclude disparate impact for equal protection purposes but include it for FHA purposes would nothing less than incoherent, in fact this combination is potentially quite coherent. I hinted at this in my previous post, but I will expand here.

In the Equal Protection context ("[N]or shall any State...deny to any person within its jurisdiction the equal protection of the laws."), we are talking about a limitation on what legislatures can do. There, saying disparate impact is not part of "discrimination" takes away power from the courts. The broader the conception of discrimination there, the more Congress's hands are tied. Many of the civil rights statutes -- Title II, the ADEA, the FHA -- are exercises of Congressional power under the Commerce Clause. Ever since the Great Depression, Courts have given Congress considerable latitude in regulating interstate commerce. To say that discrimination in the context of statutes like the FHA can't include disparate impacts is to tie Congresses hands. On the axis of Congressional power, the permissible boundaries of discrimination operates quite differently -- with regard to Equal Protection, broadening it is used to shift power to the courts, while with regard to statutes, broadening it shifts power to Congress.

More importantly, it is not true now, nor was it ever, that disparate impact under civil rights statutes necessarily equals a finding of discrimination. Rather, it serves a burden-shifting function. That is, if a plaintiff comes forward and shows a disparate impact, plaintiff is held to have made a prima facie case, and then the plaintiff will win unless the defendant comes forward with enough evidence to rebut the prima facie case. Disparate impact cases are -- quite properly -- often rebutted.

Somewhat amazingly, the burden-shifting aspect of the civil rights statutes strikes one of the most delicate balances imaginable. As I wrote earlier, there is a fundamental difficulty when it comes to stopping discrimination: some discrimination, the worst kind of discrimination, discriminates without speaking its name. Sometimes an employer fires every black employee and no whites, and yet does not say "I hate blacks, so I fire them"; instead, they say, "I am committed to racial equality; however, I am also a businessman and and these particular workers were simply not cost-justified." If that's true, it's a legitimate business purpose and will rebut the prima facie case proved by a showing of disparate impact; for instance, if the employer shows data on employees which proves the point. However, if the employer has no data, or data that shows that the workers were just as productive as anyone else, they'll probably lose.

When it comes to striking down statutes for violating equal protection, there is no "prima facie case" burden-shifting analysis. This is because of the way statutes are made: we can't put Congress on trial and ask them to rebut; it wouldn't make sense. Instead, some statutes are subjected to "strict scrutiny", which means they are almost always struck down. Right now, statutes that explicitly classify on the basis of race get "strict scrutiny", which almost no statute survives, but statutes which happen to have a disparate are subjected to "mere rationality" scrutiny, which is the lowest standard; all statutes must pass "rationality," no matter what they do. Now I don't like this situation because I think it misses some actual discrimination, but I do admit that excluding disparate impact in the analysis of the constitutionality of statutes makes much more sense than excluding disparate impact from the analysis in application of civil rights statutes. After all, saying there is a prima facie case for a business having discriminated is quite different than saying Congress discriminated, because the business can mount a defense and rebut the prima facie showing. With respect to "Equal Protection", a finding of "discrimination" means, more or less, that the statute gets struck down. In contrast, disparate impact as we're talking about it in the context of the FHA and other civil rights statutes merely is something that can constitute a "prima facie case" of "discrimination," which can be rebutted unless the defendant really did discriminate.

When it comes to application of the FHA and similar statutes, disparate impact analysis can be used in tandem with burden-shifting and rebuttal to get at real discrimination while shielding disparate impacts incidental to legitimate business purposes. Yet, to Rosenberg, "coherency" somehow demands that we import the limitations inherent in policing legislatures to all contexts. To me, it is that which is incoherent.

Still, despite my quite earnest disagreement with Rosenberg on this issue, I once again have to commend the attitude with which he always approaches our now lengthy debate. My thinking about disparate impact has been undoubtedly enriched by our exchanges. Our back-and-forths have always been a joy, and he certainly has kept me honest, particularly in his most recent post where I must concede he got me on a number of (fortunately immaterial) points. Finally, I have to say I am impressed with his endurance -- it's no small feat for a man his age to keep up with a whippersnapper like me.

Friday, July 26, 2002

EQUAL OPPORTUNITY STUPIDITY. In yesterday's column, Charles Krauthammer opens with a provocative statement:
To understand the workings of American politics, you have to understand this fundamental law: Conservatives think liberals are stupid. Liberals think conservatives are evil.
There's something to that, though of course it's an oversimplification. There's also a strong conservative current that paints certain liberals as "pointy-headed intellectuals" who can't see common sense. (I'm getting there myself, I like to think) Krauthammer's statement that "conservatives think liberals are stupid" must be reconciled with conservative anti-intellectualism, conservative hatred of all things Chomsky, and a general conservative celebration of unsophistication and "common sense." Despite the vaunted place of "common sense" in American political history, it really is a celebration of first impressions and gut instincts over actual investigation and thought. Conservatives may be many things, but they're definitely not the side of intellectual snobbery.

Despite the commonplace conservative mockery of liberal intellectuals as overly smart, conservatives like Krauthammer would certainly like to believe that all liberals are nice, well-meaning people who just happen to be stupid and naive. To this effect, Krauthammer writes:
Liberals believe that human nature is fundamentally good. The fact that this is contradicted by, oh, 4,000 years of human history simply tells them how urgent is the need for their next seven-point program for the social reform of everything. Liberals suffer incurably from naivete, the stupidity of the good heart.
As much as conservatives like to applaud themselves for claiming the cynical low ground, this whole way of framing things is easily flipped. I might just as easily say that liberals fundamentally believe that everyone is fundamentally bad while conservatives are naive and trusting. For instance, take this passage from Anti-Krauthammer:
Conservatives believe that human nature is fundamentally good. The fact that this is contradicted by 4,000 years of, say, racial hatred, slavery, and ethnic warfare is beside the point. If there's a facially neutral policy that happens to lead to racial minorities holding the short end of the stick every time, conservatives find it shocking when liberals suspect that the formally neutral rule is being used as a pretext for the same racial discrimination that has gone on as long as anyone can remember. Conservatives suffer incurably from naivete, though sometimes one finds this naivete awfully convenient.
I'm not sure Anti-Krauthammer has got it entirely right either, but I'm pretty sure there's something to what he's saying. As for Krauthammer, he's a fine journalist whose recent column was a good read, but I think he's a little unfair in suggesting that liberals have a monopoly on stupidity. No, if there's one axiom I hold dear, it's that pretty much everyone is stupid at some time or another. I'll leave you with this passage from Anti-Krauthammer:
Three white boys have been playing Monopoly for several hours. Most of the properties are owned and are built up with houses. There's a hotel on Park Place. A black girl comes up and asks to play. After some wrangling, the original players reluctantly allow her to join the game late. The liberal observer suggests they start over or change the rules to give the new player a fighting chance, to make the game fair and fun for everyone. The conservative observer scratches his head; he can't understand the point of this. Rules are rules, the conservative says, and it would be unfair to the boys to change the rules or start over now. But the new player must start in the same position the other players started in -- that's a rule too. As the game progresses, the conservative looks at who is winning and praises the boys for being more skillful players. Whenever the girl complains about the game being unfair, the conservative can't understand where the unfairness is, tells the girl to stop whining, and chides her for not trying.
Now that's what I call stupidity.
AS ALWAYS, the real winner in this thing is fair Harvard.
STOP ME IF YOU'VE HEARD THIS ONE. A man is given an advance tour of Heaven and Hell. Heaven is great: really peaceful, serene, and beautiful -- you know, pearly gates and such. Then he's shown Hell, a nonstop party with great food and freely flowing booze; everyone is having a great time. When asked which he prefers, he responds, "I thought I'd like Heaven better but after seeing them both I have to say I prefer Hell." He lives out the rest of his life, dies, and finds himself in Hell, where he burns in endless agony. He turns to a demon and says, "When I was here before, it was so great -- what happened?" The demon responds, "Oh, that was our summer associate program."

(Lawyer humor)
SEQUOIA FIRE. Quite disturbing if they're actually burning (story via §23).

Thursday, July 25, 2002

GOOGLE IS WATCHING YOU. I was checking out this Times article (via Max Jacobs) on Google's potential for allowing people to find out the scoop on you and I was surprised to see that the article was almost entirely about Camberly Crick, from my freshman entryway (not to mention JZ got a piece of the action). Probably an all-time personal high for connections to something in national print media. Anyway, most of the story detailed her experience with some tutee digging up a ridiculous amount of information -- including a short story she had written as a child -- after Googling her. Based on my post, I guess the blogs are watching her too, as is the Times.

Fortunately, the angle on Google's invasion of privacy seems pretty weak. No one forces anyone to post things on the net, and most of us are actually quite happy when people find our screeds. Really, the only truly disturbing thing in the article was the forty-year-old tutee's comment "You've been a busy bee," which I think was something Hannibal Lecter said to Clarise. The problem isn't Google; it's creepy old men.
BARBIE GOES TO FEDERAL COURT. Despite the best efforts of several high-paid "Lawyer Barbies," it looks like toymaker Mattel lost in one of the most zany free speech cases since The Wind Done Gone. Did Judge Kozinski really tell the parties to "chill"? ("The parties are advised to chill," the article reports him as saying, though I figure this must be taken out of context). I can't wait to read this one.

UPDATE: nope, not really out of context at all. Check it out.
SHOPLIFTING IN THE STORE? I've been accused of "giving up the store" with my "tactical concession" below that "[I]t may very well be that a state college requiring students to read a book about Islam violates the Establishment Clause."

I'm not sure what store that is, though. I actually have a "broad" conception of what religion under the Establishment Clause is -- I think it can include required readings of religious texts or commentaries on them, whether the texts are Christian or Islamic or otherwise. There is of course also a legitimate secular, historical-cultural approach to those texts, and the UNC policy may also very well be within that. I was required to study Greek mythology over the summer in public high school, and because that was for secular historical and literary educational purposes, I think there is no way that assignment violated the Establishment Clause (unlike Islam or Christianity, no one believes in Greek gods anymore). It's far from impossible that the Bible or the Koran could be presented for similar educational purposes not including any claims about the truth of the texts. I do think that the Islam program is certainly much less an Establishment than "under God" in the Pledge. If "under God" is not a big enough deal to be stricken down, neither is the Islam program. That's all I was saying.

Religious majority, choose your poison.

Wednesday, July 24, 2002

SOME THINGS ARE CLASSICS. I remember applying the same high-school English lesson to the same song. Looks like they're still doing it today, though with more recursion.
ISLAM IN THE CLASSROOM. Some rumblings on the blogs about UNC's requiring incoming freshman to read a book about Islam -- specifically, about approaches to the Koran -- and the First Amendment challenge filed in response. (story here)

My take on this is similar to my previous discussion of the "Interaction Islam" module, so I'll try to be brief. While it may very well be that a state college requiring students to read a book about Islam violates the Establishment Clause, the religious indoctrination involved in such an assignment is also less than that involved in having "under God" in the Pledge. Asking college-age students to complete a one-time reading of a book to introduce them to some of the concepts underlying Islam is simply not as indoctrinating as asking six-year-olds to repeat the same Pledge every day for thirteen years. Along with the obvious differences in age of exposure and amount of repetition, the Pledge is in no way presented as an "alternative cultural perspective." Unlike the Islam book, the Pledge is presented as truth. While opponents of exposing students to nonmainstream ideas can celebrate their catching "liberal" and thus normally Establishment-clause loving creators of the UNC policy in supporting the Islam reading assignment, they should also realize that victory here will only put another quiver in the bow of those who would like to see the Ninth Circuit decision regarding "under God" affirmed. Whether that's a good thing depends on your perspective.
LATEST MANIFESTATION of the Huntingtonian "Clash of Civilizations." Look here, for a WTC rebuild design more in line with my recent post. (warning: immature use of photoshop)

Tuesday, July 23, 2002

ROAD TO PREDICTION. My youngest brother's great reviewer catchphrase for the apparently none-too-surprising Road to Perdition. Nice work, B. (link currently afflicted by blogger bug)

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.
GEEKS TAKE HEART. Look here.
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 leash...er...tie.)
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. Seanbaby.com, 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.