Eugene Volokh's Blog, page 2618
February 9, 2012
Obamacare in Wonderland
That's the title of a new article by Gary Lawson and me, forthcoming in a symposium issue of Boston University's American Journal of Law & Medicine. The Journal has a large readership among medical professionals who are interested in legal issues relating to medicine. Accordingly, if you have been following the VC's debate on the ACA over the past couple years, most of what is in the article will already be familiar to you. Here is the abstract:
The question whether the Patient Protection and Affordable Care Act ("PPACA") is "unconstitutional" is thorny, not simply because it presents intriguing issues of interpretation but also because it starkly illustrates the ambiguity that often accompanies the word "unconstitutional." The term can be, and often is, used to mean a wide range of things, from inconsistency with the Constitution's text to inconsistency with a set of policy preferences. In this article, we briefly explore the range of meanings that attach to the term "unconstitutional," as well as the problem of determining the "constitutionality" of a lengthy statute when only some portions of the statute are challenged. We then, using "unconstitutional" to mean" inconsistent with an original social understanding of the Constitution's text (with a bit of a nod to judicial precedents)," show that the individual mandate in the PPACA is not authorized by the federal taxing power, the federal commerce power, or the Necessary and Proper Clause and is therefore unconstitutional.
Resolving Conflicting Legal Norms Between US and Foreign Courts: UVA Symposium
If you happen to be around Charlottesville tomorrow, Friday, February 10, you might want to come over to a symposium on how to resolve conflicting legal norms in US and foreign courts:
The conference – organized by the student-run Virginia Journal of International Law and the John Bassett Moore Society of International Law – will explore how to resolve conflicting legal norms found in the United States and abroad, particularly as domestic laws extend their reach beyond countries' borders. "Although domestic and foreign legal norms have always interacted, the particular issues that will be addressed during our 2012 symposium have yet to be given significant attention in legal scholarship," said third-year law student Zach Torres-Fowler, managing editor of the Virginia Journal of International Law.
The keynote speaker for the conference will be the Honorable Harold Koh, Legal Adviser to the State Department, speaking at 9 am Friday; and the day's panels feature many leading professors. If the sponsors post up podcasts or video, I'll come back and link to it later, but I believe papers from the conference will be published by the Virginia Journal of International Law. The topic has always been around, but is an increasingly important one – conflicts of norms and how courts around the world should resolve them. Leaving aside the much discussed question of constitutional norms and foreign courts, the whole body of "ordinary" law presents many conflicts questions in novel areas.
For example, the Second Circuit ruled against Chevron in its on-going dispute with Ecuadorian plaintiffs, and the US court talked about "comity" and respect for other legal systems in its opinion. In other cases, on the other hand, many involving the Alien Tort Statute (which, as my earlier post noted, will be revisited by the Supreme Court), US courts essentially ignore local courts or courts that plainly have a closer nexus of jurisdiction in favor of jurisdiction of US courts found under the ATS. As the amicus filings of Germany, the UK, and the Netherlands indicate in the Kiobel case – revisiting the ATS in the Supreme Court this term – this creates considerable friction with other states. But there are many other situations that weren't really seen in earlier periods – libel tourism, for example, and the clash of free expression and libel norms between the US and the UK. So although the topic of conflict of legal norms appears quite abstract, it actually takes up some of the most pressing issues among court systems of the world.
I'll be moderating one of the panels – and I had better get on the road down to C'ville. Hope to see you there!
February 8, 2012
Reinhardt's Minimalism, Lowering the Stakes
In contrast to Judge Walker's maximalist opinion striking down Prop 8, it's generally accepted that Judge Reinhardt's opinion was minimalist.
There's a commonsense way in which the opinion is not at all minimalist. It reverses the results of a plebiscite, which followed the expenditure of $80 million and the mobilization of millions of voters. It brings full same-sex marriage to a state whose cultural, political, and legal influence on the rest of the country outstrips even its massive population. It's by far the biggest prize (sorry, New York) in the fight over gay marriage. Advocates on both sides know this. Winning California is not the beginning of the end, but it is at least the end of the beginning.
In legal terms, as well, minimalism may not precisely describe the opinion. Reinhardt decided that Prop 8 was unconstitutional on Equal Protection grounds only in the specific and unusual circumstances of California, which are not likely to be repeated: full rights and non-marital status given to same-sex couples, followed by court-granted marital status, followed by actual marriages, followed by popular denial of marital status but leaving in place full rights. Whether the opinion can really be cabined to apply only to these unique circumstances is doubtful. Can you really say, as a colleague of mine commented today, that the state must move you from the middle of the bus to the front, but not from the back of the bus to the front? But suppose the decision really is a constitutional ticket good-for-this-ride-only (like the Supreme Court's decision in Bush v. Gore). Minimalism is not the narrowest possible ground on which a court can rule. It's the narrowest plausible grounds on which a court can rule, with at least some theoretical underpinning that helps us understand it as a principled decision, even if a badly principled decision, rather than as simply an order. The panel's decision is not so much under-theorized in the way minimalists love; it hardly has any theory. It is so minimalist one might call it minisculist.
Here's a way we might understand what the panel is doing with such a narrow and shallow opinion. For all the complaints about its activism, the Supreme Court usually moves incrementally. For all the complaints about its countermajoritarianism, it rarely resists a strong national consensus for very long. One very crude way to measure the degree of the Court's activism and countermajoritarianism is to ask, in a given case, how many states have had their public policy thwarted by a Supreme Court decision holding a policy unconstitutional? On the aggressive end of the spectrum we have Roe v. Wade, now regarded by many commentators on both sides of the issue as having been too aggressive and as unlikely to be repeated barring a radical change in the Court's composition. Roe effectively invalidated the abortion laws of all 50 states, none of which were sufficiently liberal for the Court. On the other end of the spectrum we have Griswold v. Connecticut, which invalidated only the novel Connecticut ban on the use of contraceptives — even by married couples. In between Roe and Griswold on the spectrum, we have sodomy laws, decided against the constitutional claim when 24 states had such laws (Bowers v. Hardwick in 1986) but in favor of the claim when only 13 states had such laws (of which only four applied solely to homosexual sex and none of which were actively enforced) (Lawrence v. Texas in 2003).
Where does the Prop 8 litigation stand on this spectrum between invalidating 50 state laws and invalidating only one? Using Walker's logic (including a fundamental right to marry) the Court would effectively invalidate the laws of, at present, 44 states that do not recognize same-sex marriage, thirty of which ban it in their state constitutions. That puts it pretty close to Roe territory, a land the Court has pretty much stopped inhabiting (see, e.g., Washington v. Glucksberg).
But using Reinhardt's logic (again, taking it only on its explicit terms, not in terms of the way it might ultimately be used) a Court would strike down only the law in California. That brings it, on the spectrum of judicial aggressiveness, closer to Griswold than to Roe. This is one way to understand Reinhardt's almost complete reliance on Romer v. Evans, which struck down the law of only one state. In fact, moving the litigation toward the Griswold end of the spectrum makes it somewhat less likely that the Court will even hear the case, though I share the expectation of my co-Conspirators that the Court is likely to review the issue. I don't want to suggest that in its constitutional decisionmaking the Court simply tallies the number of states it has to take on and then decides to act based on the breadth and depth of the likely backlash. That would be reductive and unfair, when in fact I believe the Justices are thoughtful and try to be principled. But it's hard to believe that considerations of backlash and a welcome humility in the face of a deep national consensus play no role in the Court's decisionmaking.
Reinhardt's way of deciding the case does mean that a win for same-sex marriage advocates (through a denial of cert or a Reinhardt-style Supreme Court opinion) is less complete, at least in the immediate future. More litigation, and more appeals, testing the logic would follow for years, even if the end result is pretty clear. But it also means that a loss in the Supreme Court could be much more narrow, potentially rejecting only what Jason Mazzone has quite persuasively argued is a strained reading of Romer. Other, more completely theorized, arguments for same-sex marriage based on sex discrimination (which Ilya prefers) or sexual orientation discrimination (which others find more persuasive) or the denial of a fundamental right (as Walker believed) would still be open. In this way, Reinhardt's opinion lowers the stakes for same-sex marriage advocates even as it hands them potentially the most important victory yet.
Sandefur Defends Substantive Due Process
This month's Cato Unbound is devoted to the propriety of judicial enforcement of substantive rights through the Due Process Clause. Tim Sandefur of the Pacific Legal Foundation gets things rolling with a rousing defense of SDP. Responses have been posted or are due from Professor Larry Rosenthal of Chapman Law School, attorney Ryan Williams (the author of an important recent article on the origins of substantive due process that I blogged about here), and B.U. Law School's Gary Lawson. It should be a very enlightening and engaging debate.
For what it's worth, I'd like to see Sandefur address the following issue as the debat goes on: if we were to agree arguendo that the Due Process Clause protects unenumerated substantive rights, how aggressive should the judiciary be in identifying and enforcing those rights? Are there, for example, instances in a which a judge could rightfully conclude that if he were a state legislature he would find a particular piece of legislation an undue interference with individual rights, and therefore vote against it as contrary to substantive due process, but as a judge he should defer to the contrary views of the legislature?
Cathy Young on Ron Paul, Libertarianism, and Foreign Policy
Young, a libertarian herself, explains why she is very uncomfortable with Ron Paul's views on foreign policy. I suspect the column reflects the views of many other libertarians who appreciate Ron Paul's long record of defending individual freedom, but wouldn't want him anywhere near the Oval Office because of his foreign policy positions, among other things.
What I think many libertarians of my acquaintance, including Young, would like is for the U.S. to adopt a less interventionist foreign policy more cognizant of the limits of government competence and the dangers of unintended consequences, without coming anywhere near adopting the sort of Chomskyite critique of U.S. foreign policy that sometimes emanates from Paul, and even more so some of his "left"-libertarian supporters. Unfortunately, save poor Gary Johnson, who couldn't even get into the debates, the GOP field this year has offered a choice between an even more bellicose and interventionist foreign policy, and Ron Paul. (George W. Bush's opposition to "nation-building" sounded pretty good to many libertarian ears in 2000, but the follow-through, shall we say, left something to be desired).
The Alien Tort Statute Returns to the Supreme Court: International Law versus Law of the Hegemon?
As I have occasionally noted here at VC, this term the Supreme Court will hear an Alien Tort Statute case, the Kiobel case, in which a primary question is whether the ATS embraces a theory of corporate liability. The Supreme Court presumably took the case because of a circuit split that has arisen over the corporate liability question, and perhaps because of a sense that the exceedingly vague guidance of its last visit to the ATS, the Sosa decision, left many crucial items open.
The case has attracted intense interest among outsiders, professors particularly – 19 amicus briefs filed on behalf of plaintiffs, and 16 on behalf of defendant corporations. (I signed one, despite my general reservations about scholars' amicus briefs (drawing upon Richard Fallon's article, which I have blogged about here at VC, including a response by Amanda Frost), mostly because I know this subject matter very well and believed that if called upon, I could have drafted the brief I signed myself.)
Former DOS Legal Advisor John Bellinger writes at Lawfare that the governments of Germany, the UK, and the Netherlands have filed amicus briefs in support of corporate defendant Shell Oil; the Obama administration filed a brief in support of plaintiffs. (His post at Lawfare provides links to most of the briefs or the ABA site with amicus brief links.)
Here is what I wish could be got in front of the justices. (I am not a litigator, so I don't pretend to know how one would frame this substantive point in a way so as to put it in a brief.) The basic question is whether the ATS is a statute about international law or whether it is instead a statute that enforces something we might call the "law of the hegemon." The District Courts have been told, and seem largely to believe, that what they do by way of a universal jurisdiction statute – allowing foreigners to sue foreigners in tort for conduct taking place entirely outside of the United States or having any connection to it save through the ATS itself – as civil law remedies against juridical persons is a faithful expression of international law. I – along with the foreign governments filing amicus briefs – would beg to differ. There is no regime of international civil liability, nor is there liability for juridical persons; many fine scholars disagree, of course, and you can find their views in the amicus briefs supporting the plaintiffs.
A better explanation of the ATS as it is currently instantiated is that it is the law of the hegemon, masquerading as international law. It is US law of tort and civil liability, and the US law of corporate liability, extended by US statute to encompass all actors worldwide and universally. The standards laid down in Sosa – even leaving aside the questions of corporate liability or universal civil jurisdiction – are thoroughly US-centric. They require that "international law" be interpreted through the lens of a 200+ year old American statute consisting of one sentence; look to historical interpretations of what Congress might have intended about international law of the day in order to tell the District Courts how to interpret today's international law; impose American law notions of prudential restraint by courts that are driven in considerable part by domestic law separation of powers concerns, not international law as such even though those concerns establish what "international law" is available for deployment; use American concepts of civil and corporate liability to fill in "gaps" in international law; and perhaps most strikingly, look to American courts as the precedential authority on how to interpret international law.
That, it seems to me, is what a hegemon does when simply carrying its law to the rest of the world. It is also what a legal system does when what matters to it is its "internal" legitimacy – its fidelity to its own hierarchy of authority and interpretation. I want American courts to remain internally faithful to their distinct hierarchy of Constitutional legitimacy; yet this is not how the "doctrine of sources," even in a loose sense, operates in international law. And while I'm not un-attracted by US hegemony, to be sure, and while I'm also not entirely convinced of the universality of international law, either – still, even a semi-skeptic like me does think it a mistake to confuse "hegemonic law" with "international law."
A mistake, that is, if for no other reason than that the hegemon seems somewhat in decline. ("Ne serait-ce point une Amerique lasse de son metier?" as Stendhal (might have) put it.) Does one really think that the federal judiciary, without further instruction from the Congress, ought to set the terms for how China's corporations behave in Africa, lacking further connection to the United States on any traditional basis of jurisdiction? I'm all for American hegemony, but in today's world, even I think it a bridge too far – and quite ungrounded in international law as such.
How one gets that concern in front of the Supreme Court, I have not the faintest idea. But I do think it is the overarching intellectual and political question at stake.
Teacher Who Said "I Hate [My Fifth-Grade Students'] Guts!" on Facebook Getting Her Job Back
From Matter of Rubino (N.Y. Sup. Ct. Feb. 1, 2012, posted online Feb. 7); the last three paragraphs, which discuss free-speech-related factors as to the magnitude of the penalty, are particularly interesting, though debatable:
In 1995, petitioner, a tenured teacher, began working for respondent New York City ]Department of Education (DOE). (Pet.). In February of 1997, she began working at Public School (P.S.) 203 in Brooklyn. (Petitioner's Appendix [Pet. Appx.]).
On June 22, 2010, a New York City public school student fatally drowned during a field trip to the beach. On June 23, 2010, after the school day was over and petitioner was at home, she posted the following on her Facebook page: "After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are the devils (sic) spawn!" One of her Facebook friends then posted, "oh you would let little Kwame float away!" to which petitioner responded, "Yes, I wld (sic) not throw a life jacket in for a million!!"
After viewing petitioner's postings, one of petitioner's Facebook friends, a P.S. 203 colleague, contacted the school's assistant principal and expressed concern about the propriety of the postings…. [The hearing officer found that petitioner had engaged in "misconduct, neglect of duty and conduct unbecoming her profession" based on the comments and on the teacher's allegedly "directing her friend, Joanne Engel, to provide false information to investigators by claiming to have written the comments on [petitioner's] Facebook.com webpage … so that [petitioner] would not get in trouble." –EV]…. In deeming termination the appropriate penalty for petitioner's misconduct, the hearing officer emphasized the public nature of online postings and noted that petitioner had breached DOE's trust by conspiring with her friend such that "it is impossible for her employment to be continued" and that teachers should instill in their students the importance of taking responsibility for their actions….
[The judge held that the finding of misconduct was not arbitrary and capricious -- the legal standard used for review of such decisions under New York law -- and found that he could not consider the First Amendment arguments as to that finding. But he then turned to the magnitude of the penalty:]
The standard for reviewing a penalty imposed after a hearing held pursuant to Education Law § 3020-a is whether the punishment imposed "is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." … Here, petitioner's 15-year employment history with the DOE was unblemished before she posted the offensive comments, and she posted them outside the school building and after school hours. Moreover, there is no indication in the record, nor any finding, that her postings affected her ability to teach.
There is also no evidence that her postings injured her students or that she intended any injury. Although the hearing officer emphasized the public nature of her postings and her creation of an "electronic footprint," she made no finding as to their effect on petitioner's past and future students. And, the specter of racism emerging from the postings did not originate with petitioner, and there is no indication in the record apart from the posting that she is intolerant or that the feeling she expressed, made after a hard day at work, affects the manner in which she teaches and treats her students.
While [for procedural reasons] I do not address the hearing officer's determination as to the alleged violation of petitioner's first amendment right to freedom of speech, in these circumstances, termination of petitioner's employment is inconsistent with the spirit of the first amendment. Facebook has rapidly evolved from a platform used solely by American college students to a world-wide social and professional network. It is commonly used to advertise businesses, organize parties, debate politics, and air one's grievances, among myriad other uses. Indeed, with Facebook, as with social media in general, one may express oneself as freely and rapidly as when conversing on the telephone with a friend. Thus, even though petitioner should have known that her postings could become public more easily than if she had uttered them during a telephone call or over dinner, given the illusion that Facebook postings reach only Facebook friends and the fleeting nature of social media, her expectation that only her friends, all of whom are adults, would see the postings is not only apparent, but reasonable. While her reference to a child's death is repulsive, there is no evidence that her postings are part of a pattern of conduct or anything other than an isolated incident of intemperance.
Moreover, there is no reason to believe that petitioner will again post inappropriate or offensive comments online, as she repeatedly apologized during the administrative hearing for the posts, and expressed tearful remorse at oral argument before me….
And, while students must learn to take responsibility for their actions, they should also know that sometimes there are second chances and that compassion is a quality rightly valued in our society. Ending petitioner's long-term employment on the basis of a single isolated lapse of judgment teaches otherwise. While I do not condone petitioner's conduct and acknowledge that teachers should act as role models for their students, termination in these circumstances does not correspond with the measure of compassion a teacher should show her students. Rather, it places far too great a strain on the right to express oneself freely among friends, notwithstanding the repulsiveness of that expression. (Cf Hurley v Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 US 557, 574 [1995] ["the point of all speech protection ... is to shield just those choices of content that in someone's eyes are misguided, or even hurtful."]; Texas v Johnson, 491 US 397, 414[1989] ["If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."]). …
Ginsburg and Scalia on Foreign Constitutions
Conservative columnist Jeff Jacoby has a good article today on the somewhat overwrought criticism of Justice Ruth Bader Ginsburg for saying, in Cairo, that the US Constitution is not a good model for other countries in 2012. As Jacoby points out, conservative Justice Antonin Scalia recently actually said that "[t]he bill of rights of the former 'evil empire,' the Union of Soviet Socialist Republics, was much better than ours," without raising any such hackles. Scalia avoided criticism in large part because he quickly added that a good constitutional text has little value if isn't enforced. But, as Jacoby notes, Ginsburg added much the same qualification in Cairo.
Generally speaking, Ginsburg is absolutely right to suggest that the US Constitution is not an ideal model for every foreign nation. There are lots of ways in which our institutions might be inappropriate for other nations in different circumstances. For example, the US presidency concentrates enormous power in the hands of one person. That might be very dangerous in a society that has only recently emerged from dictatorship. Countries such as Switzerland have done fairly well with a plural executive. A small country that wages few wars has less need of a powerful, unitary executive than a global superpower. Similarly, the US system of federalism might not be the best model for the many societies where the main purpose of federalism is to mitigate ethnic conflict by giving minority groups subnational governments that they control. And a few provisions of the US Constitution are simply outright mistakes by the Founding Fathers that no one would want to imitate.
That said, I am much less sympathetic to Ginsburg's specific reasons for preferring other models over the US Constitution. She would "look at the constitution of South Africa," because it "was a deliberate attempt to have a fundamental instrument of government that embraced basic human rights." Obviously the US Constitution embraces many "basic human rights" as well. The rights present in the South African Constitution that are absent from ours are mostly "positive" rights to welfare state services, such as government guarantees of housing and employment. In many countries that have constitutions with such positive rights, the rights in question are not legally enforceable, so they have little actual impact. Where they do have an effect, the result is usually to increase government control over the economy and society, an outcome that I deplore for reasons I summarized here. In theory, of course, these positive rights provisions could be used to strike down harmful government actions, such as restrictive zoning laws that price the poor out of urban housing markets, and labor regulations that increase unemployment among unskilled workers. In practice, however, positive rights guarantees are rarely applied in ways that constrain government power rather than expand it.
As for Scalia's statement, if he really believes that that Soviet Constitution's individual rights provisions are "much better" than ours, he may not have read the former very carefully. Chapter 7 of the 1977 Soviet Constitution did indeed guarantee numerous individual rights. But many of them are socialist "positive rights" that I doubt Scalia would approve of. In addition, Article 52 gives, atheists, but not theists the right to engage in "propaganda" on behalf of their views on religion. Religious believers were (at least on paper) guaranteed freedom of worship, but, unlike atheists, could be banned from proselytizing. I doubt that Scalia would approve of this double standard.
More importantly, Article 59 emphasizes that "Citizens' exercise of their rights and freedoms is inseparable from the performance of their duties and obligations," and those duties include "comply[ing] with standards of socialist conduct" (Article 59) and "safeguard[ing] the interests of the Soviet state, and …. enhanc[ing] its power and prestige" (Article 62). Thus, the individual rights in the Soviet Constitution could be overriden in any cases where they conflict with "standards of socialist conduct" or somehow threaten the interests of the Soviet state or its "power and prestige." All of this should also be read in light of Article 6, which guaranteed the Communist Party a monopoly of political power. That, presumably, is one of the "interests of the Soviet state" that can be used to limit individual rights. A careful reading of the Soviet Constitution – or even just the individual rights sections – leaves little doubt that it was written for a totalitarian communist state.
Obviously, Scalia was absolutely right to note that the Soviet government was perfectly capable of ignoring its own laws whenever it suited them to do so. At the same time, they did try to maintain a veneer of legality when possible and the Soviet Constitution was designed to help them do that. There is often a closer connection between the text of a constitution and the true nature of a nation's political system than Scalia implies.
The CIA Digs In
The Washington Post has an excellent front page story by Greg Miller today, "CIA digs in as Americans withdraw from Iraq, Afghanistan." The title largely sums up the story. As uniformed military forces depart each of those theatres, the CIA will remain behind. To do what?
The withdrawal of U.S. forces from Iraq in December has moved the CIA's emphasis there toward more traditional espionage — monitoring developments in the increasingly antagonistic government, seeking to suppress al-Qaeda's affiliate in the country and countering the influence of Iran. In Afghanistan, the CIA is expected to have a more aggressively operational role. U.S. officials said the agency's paramilitary capabilities are seen as tools for keeping the Taliban off balance, protecting the government in Kabul and preserving access to Afghan airstrips that enable armed CIA drones to hunt al-Qaeda remnants in Pakistan.
As President Obama seeks to end a decade of large-scale conflict, the emerging assignments for the CIA suggest it will play a significant part in the administration's search for ways to exert U.S. power in more streamlined and surgical ways. As a result, the CIA station in Kabul — which at one point had responsibility for as many as 1,000 agency employees in Afghanistan — is expected to expand its collaboration with Special Operations forces when the drawdown of conventional troops begins.
This seems to me the right strategy, particularly for addressing transnational terrorism, and in any case is almost certainly where the center of American public opinion stands with regards to both conflicts. But we should probably add two things. First, in Afghanistan – the strategically more important theatre – the CIA's role is likely to be much more than simply gathering intelligence and engaging in paramilitary strikes, either using drones or its agents and Special Forces teams. It is likely to be deeply involved in the coordination and funding of various local Afghanistan forces – in something that I suspect will look, in terms of the Agency's historical role, much more like reversion to the mean. Proxy forces integrated with gathering intelligence that enable drone and special ops strikes, but also utilized a forces able to help prevent consolidation of a regime that might provide safe haven for transnational terrorist groups, resurgent Al Qaeda or offshoots.
Second, it cannot be repeating sufficiently that the highly successful strategy of drone strikes and special ops owes its conversion from merely a tactic – and one that risked the "whack a mole" weakness of a tactic repeated serially – into a genuine strategy to the role of dense, often ground-level and human intelligence. Leaving the CIA behind is a way of preserving that vital intelligence network, in addition to its paramilitary capabilities. As someone once described it, the CIA in Afghanistan will be like the French Foreign Legion – last one to leave, if ever; the force that covers the rear of a strategic retreat under fire. Or, going back to Miller's article, as Navy Adm. William McRaven, remarked Tuesday, "I have no doubt that Special Operations will be the last to leave Afghanistan." I have no doubt, either.
(By the way, I am looking forward to reading Michael A. Innes' new book on proxy warfare when it appears in May, Making Sense of Proxy Wars: States, Surrogates and the Use of Force, with a forward by the eminent national security law scholar William C. Banks.)
If You Adopt Your Girlfriend, Is Having Sex with Her Now Incest?
A question I never thought to ask, but Prof. Terry Turnipseed asks and answers it, in a Slate article about a recent case in which a man did adopt his girlfriend — apparently to shelter money from creditors, given the terms of a trust for his children that he had earlier set up — and also in a full-on law review article from 2009.
The article's abstract reports that, "For some time now adults — both heterosexual and homosexual — have been adopting their lovers and spouses all over the country for various reasons: to better guarantee the adoptee's right to inherit directly from the adoptor; to keep collateral relatives from having standing to contest the adoptor's estate plan; or to add a loved one to a class of trust beneficiaries (allowing the adoptee to inherit "through" the adoptor)." And the article reports that about half the states "are subject to statutory or common laws that include the adopted parent/adult child relationship within the definition of incest."
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