Eugene Volokh's Blog, page 2597
March 12, 2012
Ending the Conflict Over Contraception
Virginia Postrel suggests an easy way to expand access to contraception without risking any imposition on religious institutions: Make oral contraceptives available without a prescription.
True, making the pill available over the counter could reduce the amount of outrage and invective available for entertaining radio audiences, spurring political fundraising and otherwise amusing the American public. But the medical risks are quite low.
Partly because birth-control pills are available only by prescription, people tend to think they're more dangerous and less well understood than they actually are. In fact, "more is known about the safety of oral contraceptives than has been known about any other drug in the history of medicine," declared an editorial in the American Journal of Public Health back in 1993. That editorial accompanied an article arguing for over-the-counter sales.
Unlike most medications, the article noted, birth-control pills require no medical diagnosis: "A woman herself determines her need for oral contraception; she assesses her own risk of pregnancy … and the costs and benefits of both pregnancy and alternative contraceptions." Nearly two decades later, birth- control pills look even safer than they did then, and recent research indicates that women are both able and eager to manage their own purchase decisions.
This approach won't satisfy those who want others to pay for their contraception, nor will it please those who believe the widespread availability of contraception is a cause of cultural decay. For the rest of us, however, this would seem like a reasonable way to make it cheaper and more convenient for those who wish to use oral contraception to obtain it without any risk of imposing on the religious beliefs of those who believe contraception to be immoral — and for these reasons the likelihood of such a policy being adopted is small.
Koch v. Cato – Levy Responds
I had not planned to post more on the Koch-Cato kerfuffle, barring meaningful developments. This morning, however, I received notice of a statement by Cato Institute Chairman Bob Levy responding to the statement by Charles Koch released last week. It is a lengthy and powerful reply that goes far beyond his interview with Skip Oliva. It is filled with detail about key events and other verifiable facts. This is the sort of information necessary to evaluate the competing claims about each side's actions and intent, and is the sort of information that was conspicuously absent from the Koch statement. Levy's statement, assuming it accurately recounts events, also makes a compelling case that the Kochs are after control of Cato above all else. Nothing I have yet seen from the Kochs or their representatives (on-the-record or otherwise) demonstrates otherwise, though I will try to keep an open mind on this point.
As before, I will update this post with any updates or substantive responses I come across.
UPDATE: Skip Oliva catches Cato conspicuously revising the text on its lawsuit website.
Court Orders Indiana Newspaper to Take Down Article from Web Site
[UPDATE: Marcia Oddi (Indiana Law Blog) reports that the Indiana Attorney General has withdrawn the state's attempt to block the newspaper from running the article, so the order that it be removed is presumably being vacated by the court, and the article will presumably be reposted again shortly. I don't know if the newspaper agreed to any redactions from its article in order to get the state to do this. Thanks to Jordan Stover and Ashby Beal for the pointer.]
From the South Bend Tribune:
The Indiana Court of Appeals granted a request Friday that prevents The Tribune from publishing records the newspaper obtained from the Department of Child Services.
The appeals court's ruling came three days after a local judge ordered the release of phone records from DCS's child abuse hotline related to 10-year-old Tramelle Sturgis and his family …. The records include four audio recordings of hotline calls and accompanying transcripts related to Tramelle, who was found tortured and killed in his home Nov. 4.
But an hour after The Tribune published a story on its website Friday that described one of the phone calls and raised related issues, the appeals court granted the emergency stay DCS requested to prevent The Tribune from publishing the material.
On advice from its attorney, The Tribune removed the story from its website and is forced to refrain from publishing information about the content of the calls. If it does otherwise, the newspaper could be held in contempt of court….
At [the earlier] hearing before St. Joseph Probate Court Judge Peter Nemeth [which led to the release of the records], DCS attorneys … stated that releasing the audio of the calls and the transcripts to the newspaper would jeopardize confidentiality promised to those who report child abuse and have a "chilling effect." …
This strikes me as an unconstitutional prior restraint, even if it is supposed to be just a temporary stay pending further review. The Pentagon Papers case (1971) held that even a temporary injunction can't be justified in order to prevent publication of documents, even when the documents were improperly leaked and even when they assertedly threaten to harm national security; this suggests that this injunction is unconstitutional as well, even if publication of such documents could in the long run deter some people from reporting child abuse. And Florida Star v. B.J.F. (1989) held unconstitutional a statute that banned publishing the names of rape victims, despite the argument that the statute helped encourage rape victims to call the police; the newspaper was held to have a First Amendment right to publish information that had been released by a government official, even if the official acted contrary to government policy in releasing that information. This similarly suggests that the South Bend Tribune has a right to publish the information that had been released to it pursuant to a court order, even if the court order mandating the release is later found to have been issued in error.
I therefore expect the injunction to be reversed, and, I hope, very soon. If anyone has more information on the case, such as the text of the court of appeals order (if it's anything other than a one-line and unexplained "stay granted"), please do pass it along. Thanks to Ken Fowler for the pointer.
The Machinery of Criminal Justice: Colonial Criminal Justice as a Morality Play
I'd like to thank Eugene and his fellow co-conspirators for graciously letting me guest-blog this week about my new book, The Machinery of Criminal Justice, which was just published by Oxford University press and is available here. In a nutshell, the book is about:
1) how America moved from a populist system of public jury trials and punishments to a hidden plea bargaining assembly line run by lawyers;
2) what we have lost in our quest to process ever more cases efficiently; and
3) how we could swing the pendulum part-way back toward greater public involvement and confidence within a lawyer-run system.
I can't cover the entire book in a week and won't try to excerpt it. But I hope to give you a sense of how far modern American criminal justice has drifted from its roots and the hidden costs of efficiently boosting the quantity of cases prosecuted at the expense of the quality of how we do it.
Let me start today and tomorrow by canvassing how, without much thought, we have drifted over the past four centuries from the colonial morality play to the modern criminal justice machine. There's no question that professionalization has brought tangible benefits, especially the ability to handle staggering caseloads. What I want you to see, however, is the price we have paid to purchase more and more efficiency.
In the seventeenth and eighteenth centuries, of course, most people lived in small towns and villages. Communities were very cohesive, as everyone knew everyone else and word of mouth traveled quickly. They were very often ethnically and religiously homogeneous, with a shared sense of what was and always had been wrong. The downside, of course, is that social and legal pressures to conform could be stifling.
But there were upsides too. Because informal social pressure did so much work in preventing and responding to lawbreaking, there was less need for professional state intervention and coercion. Because the moral consensus emphasized that everyone was weak and fallen, there was more understanding and brotherly love to moderate criminal punishments.
And because morals crimes cut across the social spectrum, criminal justice didn't create a discrete criminal underclass; everyone could occasionally stumble. People paid their dues, were forgiven, and could reenter society with a clean slate and rise to high office and social station. There was no gulf between the governors and the governed, the law-abiding and the lawless.
It's also extremely significant that colonial justice was the business of amateurs: laymen, not lawyers. Ordinary white men took turns serving as night watchmen and constables, and when victims shouted out a hue and cry all the neighbors were supposed to rise up to help catch the perpetrator.
Criminal cases were decided by local juries, who applied their common-sense notions of right and wrong to decide who was factually guilty and morally blameworthy. At first there were no American law books or law schools, and very few lawyers overall. Thus, even the judges had little training, and many if not most cases were prosecuted by victims pro se (without lawyers) and defended by defendants pro se, each telling his side of the story.
The lack of professionalization certainly had its downsides; for example, it left amateur night watchmen poorly equipped to deal with dangerous professional criminals. But it also meant that trials were straightforward contests about who had done what and who deserved what punishment.
There were no lawyers to generate and argue over technical rules of evidence and procedure, nor to draw out pretrial motions and post-trial appeals. The side issues that today distract from factual and moral guilt, such as Miranda warnings, the exclusionary rule, and the intricate hearsay rules, were far off in the future.
Before prosecutors took over, victims literally had their day in court; and before defense counsel took over, defendants could not remain mute and simultaneously challenge the prosecution's case. Criminal trials publicly aired each side's story, both in deciding factual guilt and in weighing the punishment deserved. It was a matter of common sense, not legal technicality.
So, with apologies to professional legal historians for oversimplifying, that's a rough snapshot of what colonial American criminal justice looked like. Tomorrow I'll explain the dramatic changes it underwent over the nineteenth and twentieth centuries.
Is Daylight Savings a Waste of Time?
Daylight savings time began this weekend. The daylight savings period is longer than it used to be. The Energy Policy Act of 2005 made daylight savings time start a few weeks earlier and end a week later. It now starts in March and ends in November, meaning we're on daylight savings time for over seven months. Is it worth it? Ask me when I've adjusted. In the meantime, the Los Angeles Times has a short story about the controversy over daylight savings time and those who seek to abolish it.
March 11, 2012
Prof. Stephanos Bibas (University of Pennsylvania Law School) Guest-Blogging
I'm delighted to report that Prof. Stephanos Bibas of the University of Pennsylvania Law School will be guest-blogging here this coming week about his new book, The Machinery of Criminal Justice. Prof. Bibas has clerked both on the court of appeals and the U.S. Supreme Court, worked as a federal criminal prosecutor, and written extensively about many aspects of criminal law and criminal procedure; here's the publisher's summary of his new book:
Two centuries ago, the American criminal justice was run primarily by laymen. Jury trials passed moral judgment on crimes, vindicated victims and innocent defendants, and denounced the guilty. But over the last two centuries, lawyers have taken over the process, silencing victims and defendants and, in many cases, substituting a plea-bargaining system for the voice of the jury. The public sees little of how this assembly-line justice works, and victims and defendants have largely lost their day in court. As a result, victims rarely hear defendants express remorse and apologize, and defendants rarely receive forgiveness. This lawyerized machinery has purchased efficient, speedy processing of many cases at the price of sacrificing softer values, such as reforming defendants and healing wounded victims and relationships. In other words, the U.S. legal system has bought quantity at the price of quality, without recognizing either the trade-off or the great gulf separating lawyers' and laymen's incentives, interests, values, and powers.
In The Machinery of Criminal Justice, author Stephanos Bibas surveys these developments over the last two centuries, considers what we have lost in our quest for efficient punishment, and suggests ways to include victims, defendants, and the public once again. These ideas range from requiring convicts to work or serve in the military, to moving power from prosecutors to restorative sentencing juries. Bibas argues that doing so might cost more, but it would better serve criminal procedure's interests in denouncing crime, vindicating victims, reforming wrongdoers, and healing the relationships torn by crime.
Is Atheism a Religion?
At the Reason website, Kennedy (who apparently has only one name), argues at length that atheism should be considered a religion:
[W]hether you make sense of the world as an atheist and don't require the God postulate to complete your understanding, or you are a theist and your feelings and experiences tell you something greater is there, biologically speaking, that big blob of gray Jell-O in our skulls is like a giant arrow pointing us in the same direction. I believe that is delicious. And religious….
I contend that if your system is about God—or about the non-existence of God—God is still at the center of the argument's "aboutness." In the spirit of that "off is a TV channel" comment above: God is the TV. Religions are the channels. If it is off, maybe he's dead or disengaged, but at least you admit there's a TV….
When atheists rail against theists (as many did on my Facebook page), they are using the same fervor the religious use when making their claims against a secular society. By calling atheism a religion, I am not trying to craft terms or apply them out of convenience. I just see theists and atheists behaving in the same manner, approaching from opposite ends of the runway.
These kinds of claims are often made, but they fall apart under close inspection. Obviously, if you define the term "religion" broadly enough, atheism can qualify. But such a redefinition obfuscates important differences between atheism and religion, and is also contrary to ordinary English usage.
Kennedy argues that atheism is like religion because both atheists and theists 1) try to understand the nature of the world, 2) have beliefs about God, and 3) are often emotional about their beliefs and intolerant of opposing views. All of these points are true, but none of them prove that atheism is a religion.
It is true that both atheists and theists try to understand the world. But only the latter are committed to a religious explanation for reality, which depends on the actions of supernatural beings. The former, by contrast, can try to explain reality by natural, scientifically verifiable causes. There is an important distinction between a naturalistic worldview and one that incorporates an important role for supernatural beings.
Moreover, atheism as such is not an explanation for the nature of the world akin to various religions who explain reality by reference to God (or multiple gods). Atheism is merely a rejection of the existence of supernatural gods, which does not preclude atheists from disagreeing among themselves about the fundamental nature of reality (e.g. – some atheists are materialists, whereas others are not; some atheists even reject the genetic theory of evolution, as the officially atheistic Soviet government did for many years).
It is also true that both atheists and theists have beliefs about God. However, if believing there is no God makes you religious, then disbelieving in ghosts makes you a believer in the existence of the afterlife and disbelief in phrenology makes you a phrenologist. Both phrenologists and anti-phrenologists have beliefs about the question of whether or not feeling the shape of a person's skull tell you something useful about their personality. Similarly, both atheists and theists have beliefs about the existence of God. I am not suggesting that all theistic beliefs are as easily falsified as phrenology (some probably are, while others are not). But rejection of theism does not make you a religious believer, just as rejection of phrenology does not make you a phrenologist.
Finally, it is certainly true some atheists get emotional about their beliefs and are intolerant of opposing views – as is also the case with some theists. But emotionalism and intolerance are not enough to qualify a belief system as a religion. If they were, then conservatism, liberalism, Marxism, libertarianism, vegetarianism, environmentalism, and many, many other views all qualify as religions too. Many of their adherents are also emotional about their beliefs, and intolerant of opposition. The same goes for many sports fans. Some North Carolina basketball fans are very emotional about their team and famously hostile to Duke fans, and vice versa. Yet being a UNC basketball fan is not a religion, except perhaps in a metaphorical sense.
To be sure, we sometimes refer to adherents of some political or moral view as having a "religious" fervor. But this is a metaphorical use of the term "religious," not a literal one. We don't really mean that a person with a "religious" dedication to vegetarianism is necessarily actually religious. We just mean that he has as strong a faith in his beliefs as many religious people do in God and their theological commitments.
Perhaps these terminological battles don't matter very much. So long as we all use terms in the same way and everyone understands what they mean, it may not matter whether we define religion broadly or narrowly. However, I do worry that efforts to define atheism as a religion may obscure the genuine and important difference between atheists and religious believers: that the one view explains reality (and often morality) by reference to supernatural beings, whereas the other does not.
Sec. of State Clinton–Don't Believe our Pro-Israel Rhetoric (or Anything Else we Say)
Here's Clinton speaking in Tunisia. Note that the questioner operates under the assumption that to be pro-Israel is to be against the "common Arab citizen," and Clinton not only fails to challenge that assumption, but implies that rhetoric that pleases the "Zionist lobby" is somehow anti-Muslim. She then suggests that Americans (and others) are fools if they take seriously anything said during campaign season.
QUESTION: My name is Ivan. After the electoral campaign starts in the United States – it started some time ago – we noticed here in Tunisia that most of the candidates from the both sides run towards the Zionist lobbies to get their support in the States. And afterwards, once they are elected, they come to show their support for countries like Tunisia and Egypt for a common Tunisian or a common Arab citizen. How would you reassure and gain his trust again once given the fact that you are supporting his enemy as well at the same time?
SECRETARY CLINTON: Well, first, let me say you will learn as your democracy develops that a lot of things are said in political campaigns that should not bear a lot of attention. There are comments made that certainly don't reflect the United States, don't reflect our foreign policy, don't reflect who we are as a people. I mean, if you go to the United States, you see mosques everywhere, you see Muslim Americans everywhere. That's the fact. So I would not pay attention to the rhetoric.
Secondly, I would say watch what President Obama says and does. He's our President. He represents all of the United States, and he will be reelected President, so I think that that will be a very clear signal to the entire world as to what our values are and what our President believes. So I think it's a fair question because I know that – I sometimes am a little surprised that people around the world pay more attention to what is said in our political campaigns than most Americans, say, are paying attention. So I think you have to shut out some of the rhetoric and just focus on what we're doing and what we stand for, and particularly what our President represents.
I'm sure Clinton didn't mean it the way it came out, but it's embarrassing nevertheless. As Glenn Reynolds likes to say, the country is in the best of hands.
UPDATE: Several early commenters suggest that Clinton's comments were directed at GOP rhetoric in this campaign season. That makes sense [better put, it makes Clinton's comments more comprehensible], but the questioner wasn't asking about what one commenter suggested was the GOP's "belligerent" rhetoric. Rather, he was clearly asking about both sides' rhetoric–I've now highlighted the "both sides" in the original question so it's clear what the questioner was saying: every campaign season we see both Republican and Democratic candidates [including, obviously, Pres. Obama] appealing to pro-Israel constituencies, and then when they get into office we see they aren't as hostile to Arab individuals as we thought, even though they still support the Arabs' "enemy". "Don't believe what you hear in campaigns" isn't even the beginning of an adequate answer to that.
FURTHER UPDATE: Some commenters are also insisting that Clinton's comments are directed at GOP rhetoric on Iran. I don't see any indication in either the question or the answer that Iran is under discussion. Moreover, Iranians are not Arabs–I'm sure Clinton is aware of this–and the questioner references only Arab countries (Tunisia and Egypt) and the "common Arab on the street." Indeed, it's kind of odd that Clinton segues into a discussion of Muslims in the U.S.; the questioner didn't suggest that the U.S. is hostile to Muslims, but to Arabs because the U.S. supports Israel. I'm guessing that Clinton had some talking points she wanted to express, and tried to awkwardly shoehorn them into an answer to a question they weren't responsive to. So awkwardly, in fact, that when she tried to circle back to answer the question she wound up saying "don't pay attention to anything American politicians say during campaign season."
Is Legal Secession a "Category Error"?
As part of the ongoing discussion of libertarian views on the Civil War and secession, Jason Kuznicki of Cato and David Drumm of the Jonathan Turley blog have argued, in Kuznicki's words, that "[s]ecession is the decision to step out of an existing political order, so it's a category error to try to justify it legally."
I generally agree with Drumm's and Kuznicki's condemnation of libertarian defenses of Confederate secession. But I don't think that legal secession is necessarily a "category error." Like many other legal relationships – partnerships, clubs, corporations – a federal system of government can incorporate rules that provide for its own dissolution. For example, the Canadian Supreme Court has ruled that Canada's Constitution allows Quebec to secede so long as the secessionists prevail in a referendum and negotiate certain issues with the rest of Canada. If Quebec does secede in the aftermath of a secessionist referendum victory, the resulting secession will be perfectly legal under Canadian law. There are other federal constitutions that explicitly provide for a right of secession. The most famous recent example is Article 72 of the Soviet Constitution, which numerous constituent republics seceded under in 1990-91.
The US Constitution, of course, is one of many where secession is neither explicitly banned or explicitly permitted. As a result, both critics and defenders of a constitutional right of secession have good arguments for their respective positions. Unlike the preceding Articles of Confederation, the Constitution does not include a Clause stating that the federal union is "perpetual." While the Articles clearly banned secession, the Constitution is ambiguous on the subject.
Even if state secession is constitutionally permissible, the Confederate secession of 1861 was deeply reprehensible because it was undertaken for the profoundly evil purpose of perpetuating and extending slavery. But not all secession movements have such motives. Some are undertaken for good or at least defensible reasons. In any event, there is nothing inherently contradictory about the idea of a legal secession.
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