Eugene Volokh's Blog, page 2620
February 7, 2012
Supreme Court Grants Cert in Prop 8 Case
Why bother with the headlines of today when you can offer the headlines of tomorrow? Judge Reinhardt's amicus brief in favor of striking down Prop 8 — aimed squarely at Justice Kennedy, naturally, and based largely on his opinion in Romer v. Evans — is available here.
UPDATE: Based on a quick skim, Reinhardt decided that the Supreme Court wasn't ready yet to embrace a full right to same-sex marriage, and that it was wiser to offer AMK a narrow rationale based on Romer rather than a broad rationale based on Lawrence or Loving. So Reinhardt's reasoning seems to be California-specific: He argues that Prop 8 took away rights provided by the California Supreme Court's Marriage Cases, and that those who voted for Prop 8 acted out of animus towards or disapproval of gays, making Prop 8 unconstitutional under a Romer rationale regardless of whether same-sex marriage is constitutional in the general case. I assume Reinhardt is figuring that this either will work or at the worst might buy some time: If the Supreme Court grants cert and reverses on the merits, on remand the case presumably goes back to the same panel. On remand, Reinhardt can then strike down Prop 8 again, but this time under a broader theory along the lines of Judge Walker's opinion below. That would take a few years, though, keeping the issue alive in the meantime — giving the social attitudes more time to develop, more states time to change their laws, and possibly more time for a change in personnel at the Court.
February 6, 2012
Why Most People Tend to Talk About Politics Only with those Who Agree with Them
Economist Robin Hanson has a blog post discussing a recent study showing that most people tend to limit conversations about politics to those who agree with their views. This is not just a matter of people tending to have friends and acquaintances who have similar views. Even when there are people in our social circle who have divergent political views, the study shows that we are far more likely to talk about politics with those we agree with. Much previous research reaches similar conclusions. Moreover, we see the same pattern in people's choices about the media they follow on political issues. Conservatives are likely to watch conservative TV channels, and read conservative newspapers, magazines, and blogs. Liberals have the opposite pattern. If you are a regular VC reader, you are far more likely to to be a libertarian or a conservative than not. If you regularly read a liberal political or legal blog, chances are that you're a liberal yourself.
When people do encounter opposing arguments, they tend to evaluate them in a highly biased way, in effect holding them to a much higher standard than they apply to arguments that support their own views. Moreover, as Diana Mutz shows, most of these tendencies are especially pronounced among people who are most interested in politics and have the most strongly held political views.
Perhaps the avoidance of political talks with people we disagree with is in part driven by a desire to avoid social awkwardness. But that can't explain the avoidance of opposing media. Moreover, conversations about politics with those we disagree with are awkward at least in part because people tend to be intolerant of opposing views.
All of this is highly irrational if the goal of reading and talking about politics is to seek out the truth. As John Stuart Mill famously put it, a truth-seeker should make a special effort to seek out opposing viewpoints, and try to evaluate them in an unbiased way:
He who knows only his own side of the case knows little of that. His reasons may be good, and no one may have been able to refute them. But if he is equally unable to refute the reasons on the opposite side, if he does not so much as know what they are, he has no ground for preferring either opinion… Nor is it enough that he should hear the opinions of adversaries from his own teachers, presented as they state them, and accompanied by what they offer as refutations. He must be able to hear them from persons who actually believe them… [H]e must know them in their most plausible and persuasive form.
The evidence is less puzzling if truth-seeking is not the main goal of most political conversations or most people's efforts to read about politics. Rather, many people enjoy having their preexisting views reinforced and like the experience of associating with their fellow "political fans" who support the same side as they do. Because the chance that your vote in an election will be decisive is infinitesmally small, there is little payoff for seeking out political truths just so you can be a better-informed voter. And most nonexperts have few other incentives to seek out the truth either. Being exposed to opposing arguments is often emotionally unpleasant, and giving them a fair hearing can be even more painful – especially if you are strongly committed to your own opinions. And the payoff for all that pain is usually very small, so why bother? Unfortunately, while such ignorance and close-mindedness is individual rationally, it can cause terrible collective outcomes.
That's not to suggest that people deliberately embrace political views they know to be false. But it's easy to be cognitively lazy about seeking out opposing arguments and controlling your biases against them when you do run across them. Obviously, most people are not completely indifferent to opposing evidence on political issues. Sometimes the evidence against you is so obvious and overwhelming that it's hard to ignore even if you want to do so. When Germany lost World War II, many Germans who had supported Hitler were forced to admit that he had led them to disaster. On most political issues, however, the evidence is much less stark and therefore it's much easier to insulate yourself from possible challenges to your beliefs. Such insulation is not always impossible to overcome. Otherwise, no one would ever change any of their strongly held political views, except in the aftermath of WWII-like disasters. But it is often extremely difficult.
Issues on which People are Most Resistant to Persuasion
This semester, I am once again teaching Constitutional Law II: The Fourteenth Amendment. I often tell my students in this class that there are three issues on which most people are particularly resistant to rational persuasion: abortion, the death penalty, and affirmative action. And it so happens that the course covers all three.
Actually, there is a general tendency of to discount opposing arguments on a wide range of political issues, not just these ones. It's a consequence of our general lack of incentive to think rationally about politics. But the problem is worse on some issues than others, and these three strike me as among the worst offenders.
Why are people more close-minded on some issues than others? One factor is intensity of commitment. Obviously, these are issues on which many people have strongly held views. But that doesn't differentiate them from a lot of other policy disputes. Think of the many people who have intensely held views on health care, taxation, gun rights, and so on. More important, I think, is that these are issues where most people believe that your stance derives directly from your fundamental values, rather than disagreements about empirics. Either you believe that abortion is like murder or you don't; either it's inherently wrong for the state to execute people or it's not; affirmative action is either overdue compensation for historic injustices or it's a form of invidious racial discrimination. By contrast, most people recognize that disputes over issues like taxes or health care are at least in part driven by differences over empirical questions rather than values. In reality, of course, empirical questions do matter to disputes over affirmative action and the death penalty. How effective are affirmative action programs? How much does the death penalty deter murder? How many innocent people are likely to be executed? But most people don't think about these issues in such terms. They assume that the real source of disagreement is values rather than facts.
Finally, these three issues are ones on which it's hard to find a coherent compromise position. You can tell a persuasive story about why tax rates should be higher than conservatives say, yet lower than what liberals want. But it's hard to explain why we should adopt a policy that's somehow in between a strong pro-life position and a strong prochoice view. The same goes for affirmative action and the death penalty.
I have not seen any systematic research comparing the degree of close-mindedness on these issues relative to others. So it's possible that attitudes on these three issues are not as hidebound as I think, or that things are worse on other issues than I imagine. For what it's worth, I myself have changed my views on two of these three over the years (less pro-choice than I used to be, and less hostile to affirmative action). But I think those changes happened at least in part because I don't care about these two issues as much as many other people do, and therefore was less emotionally invested in my views about them.
Stanford Law School Hosts Leading 9/11 Truther Tonight
That would be Richard Falk, whose talk on the Israeli-Palestinian conflict is hosted by "Students for Palestinian Equal Rights, Stanford International Human Rights & Conflict Resolution Clinic, the Advanced Degree Students Association, & the Stanford Association for Law in the Middle East."
One can't hold Stanford responsible for the activities of its student groups, but the International Human Rights & Conflict Resolution Clinic is an academic unit of the law school, run by faculty members.
How embarrassing for Stanford, and yet further evidence that in some circles any degree of idiocy can be forgiven so long as one is "Progressive on Palestine."
H/T Rabbi Simon via email.
Respondents' Merits Brief Filed in Individual Mandate Case
The private respondents' brief, with Michael Carvin of Jones Day as counsel of record, and our co-blogger Randy Barnett as co-counsel, is available here. The state respondents' brief, with Paul Clement counsel of record, is here.
When DOJ filed its brief, I noted that "The word 'Sutton' appears 14 times, and the word 'Kavanaugh' appears 5 times." I suppose the analogous stat for the respondents' briefs would be that the word 'unprecedented' appears 23 times. I was interested (and somewhat surprised) that the word "inactivity" appeared only 4 times between the two briefs; it was mentioned 3 times in the private respondents' brief, and only once in the state respondents' brief (and in the procedural history section rather than the argument section).
Hat tip: ACA Litigation Blog.
UPDATE: I have rewritten the post because the state's brief is also now available.
The Rise of White-Collar Defense Practices at Large Law Firms
Writing in the Arizona Law Review, Chuck Weisselberg and Su Li have a very interesting article, Big Law's Sixth Amendment: The Rise of Corporate White-Collar Practices in Large U.S. Law Firms. The abstract:
Over the last three decades, corporate white-collar criminal defense and investigations practices have become established within the nation's largest law firms. It did not used to be this way. White-collar work was not considered a legal specialty. And, historically, lawyers in the leading civil firms avoided criminal matters. But several developments occurred at once: firms grew dramatically, the norms within the firms changed, and new federal crimes and prosecution policies created enormous business opportunities for the large firms. Using a unique data set, this Article profiles the Big Law partners now in the white-collar practice area, most of whom are male former federal prosecutors. With additional data and a case study, the Article explores the movement of partners from government and from other firms, the profitability of corporate white-collar work, and the prosecution policies that facilitate and are in turn affected by the growth of this lucrative practice within Big Law. These developments have important implications for the prosecution function, the wider criminal defense bar, the law firms, and women in public and private white-collar practices.
Place Your Bets
The Ninth Circuit's opinion on the constitutionality of Prop 8 is expected tomorrow. Chris Geidner summarizes the issues the panel may address:
The long anticipated appeals court ruling is expected to address three issues: (1) whether former U.S. District Court Judge Vaughn Walker should have recused himself from hearing the case because he is gay and had a long-time partner with whom he was not married; (2) whether the proponents of Proposition 8 have the right to appeal Walker's decision striking down Proposition 8 as unconstitutional when none of the state defendants chose to do so; and (3) whether, if Walker did not need to recuse himself and the proponents do have the right to appeal, Walker was correct that Proposition 8 violates Californians' due process and equal protection rights guaranteed in the U.S. Constitution.
How Do I Drone Thee? Let Me Count the Ways
Excellent feature article in New Scientist on the many, many ways in which drones are being used today in different places and functions around the world. They include flying grids over Brazilian fields to see which ones need to be re-sown, in France to monitor tiny but important perturbations in high speed rail lines, and many more. Drones are going to take on more and more functions in ordinary civilian life, private and governmental ones. Both the FAA and European agencies are getting set to issue rules on drones that will regulate access and safety in airspace. But in the meantime, the article notes:
[L]ast week real estate agents in Los Angeles, California, were ordered to stop using helicopter drones to shoot aerial movies of properties they are selling. "Although the FAA allows hobbyists to fly model airplanes for recreational purposes, that authority does not extend to operators flying unmanned aircraft for business purposes," the Air Division of the Los Angeles police department reminded the California Association of Realtors.
I would be interested if readers knowledgeable in the regulatory law in these areas would let us know in the comments whether the LAPD is correct or not in this view. I'm not expert in these areas and have no reason to believe it is not a perfect valid order, but would be interested in what expert readers have to say about it. But the whole of the New Scientist article is well worth reading, to understand just how far drones are already entering civilian, and not only military, uses and how far they will go in the near future. (And I see now that Instapundit has linked the same article – that's because great minds think alike.)
And Then They Came for Sugar . . .
Legal Ethics Forum Symposium on the Legal Education and the Legal Profession
This week the premier legal ethics blog, Legal Ethics Forum, is hosting a symposium on "Legal Education's Response to the Economic Realities Facing the Profession." In this symposium, "scholars on the legal profession from the United States and around the world will post contributions about the implications of economic pressures on the way we teach our students." They have what looks like a fantastic line-up (including my colleague Cassandra Burke Robertson), so this will be a must read for those interested in how legal education and the legal profession are responding to broader economic changes.
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