Eugene Volokh's Blog, page 2658
December 6, 2011
Newt Gingrich, Right-Wing Progressive?
While Democrats are sure to fall all over themselves portraying Newt Gingrich as a laissez-faire extremist, there is little if anything in the actual public record to support that portrayal. Indeed, I saw Gingrich give a talk at the height of his power, circa mid-1995, via the Smithsonian Associates program. The only reason I remember it is because I was so surprised, and appalled, at the theme: that to solve modern problems we should emulate the early 20th century Progressives, who combined opposition to socialism with support for a "can do" government that could bust trusts, build infrastructure, and otherwise create public goods. If he had any concerns about the foibles and fallacies of the Progressives, I don't believe he mentioned them. It's been sixteen years, so further details are vague, but I distinctly recall that my companion and I, both libertarians, went in admiring Newt, and left both disgusted and with a distinct impression, given the grandiosity of his vision that "this [i.e., his Speakership] isn't going to end well."
And please note that while Progressivism is today associated with the "left," historical Progressivism encompassed many important figures who would not have been considered such (and wouldn't have considered themselves such) at the time, most prominently Theodore Roosevelt. What they had in common with their left-leaning compatriots was opposition to laissez-faire, faith in government's ability to solve and manage social problems, and, with regard to the politicians among them, confidence in their own ability to lead and direct the masses for the latter's own good.
Go Huntsman?
December 5, 2011
Federalism Seminar Bleg
This is a query primarily intended for my fellow federalism scholars, though I welcome suggestions from others with relevant expertise:
I am currently in the process of revising my seminar on federalism for the Spring 2012 semester. To that end, I am considering adding a week on "Federalism and Economic Crisis." Can you recommend any good, reasonably accessible articles that assess the impact of the economic crisis on federalism, especially with respect to the fiscal crisis that has hit states such as California? Articles on the impact of the crisis on federal systems in Europe might also be useful.
I am also looking for suggestions for topics that I could include that aren't currently in the syllabus. Right now, I have classes devoted to the following subjects:
Federalism and the Founders
The Tiebout Model and Interstate Competition
Federalism and Economic Development
Fiscal Federalism
Federalism and Minority Rights
Federalism and the Environment
Federalism and Redistribution
Federalism and Judicial Review
Comparative Federalism
Federalism and Ethnic Conflict
Federalism and Secession
New Frontiers in Federalism (which considers various radical ideas, such as non-geographically determined federalism, and world government).
I am considering dropping a couple of these (redistribution and secession are possible candidates) and replacing them with new topics. Federalism and Economic Crisis is one possible addition. I have also considered, but probably won't actually do, the perennial topic of federalism and corporate law. Suggestions for other possibilities are welcome. Perhaps there is a federalism topic I'm missing that everybody wants to know more about, but are afraid to ask!
"It Is Highly Questionable Whether Attending Law School Is a Legally Cognizable Injury"
From Duncan v. Klein (Ga. App. Nov. 29, 2011) (some paragraph breaks added), though note that the court's main rationale is lack of proximate cause, rather than the statement I quoted in the post title:
These appeals arise from a legal malpractice case in which Jeffrey W. Duncan claims that lawyer Daniel M. Klein gave him erroneous advice about whether he could sue his employer for violations of federal employment discrimination laws. Klein allegedly told Duncan that such a lawsuit would not succeed, and believing as a result that he had no recourse against his employer, Duncan later resigned his employment. Duncan then enrolled in law school, where he learned that Klein might have given him bad advice, and he filed a lawsuit against his former employer, which he later settled. Notwithstanding that he eventually sued his former employer, and notwithstanding that he evidently got something out of that lawsuit, Duncan recovered less from his former employer, he says, than he would have recovered if Klein had advised him correctly and he had sued his employer more quickly.
Moreover, Duncan contends that his decision to resign his employment was based on the advice he received from Klein, and as a result of his resignation, he had to enroll in law school, which caused him to incur substantial costs and to suffer an extended separation from his family....
Negligence is the proximate cause of an injury only when the injury is "the natural and probable consequence of the negligence, such a consequence as under the surrounding circumstances of the case might and ought to have been foreseen by the wrongdoer as likely to flow from his act." "The injury must be the direct result of the misconduct charged; but it will not be considered too remote if, according to the usual experience of mankind, the result ought to have been apprehended." The limitations of proximate cause reflect "a policy decision that, for various reasons including the intervening act of a third person, the defendant's conduct is too remote from the injury to attach liability...." ...
[A]fter Duncan allegedly received bad advice from Klein, he made a decision to resign from NGK and go to law school. After he was admitted to the New England School of Law, Duncan refinanced his house, borrowing $100,000 on his house to pay bills and take care of his family while he attended law school, and he borrowed an additional $160,000 to pay the costs of law school. Regarding his alleged emotional damages, Duncan explains that he had to leave his family in Georgia to attend law school in Massachusetts, and he notes the difficulties that the separation caused his marriage and the pain of separation from his daughter.
It could be argued that, but for the alleged malpractice, Duncan would not have resigned his job with NGK, decided to enroll in law school, incurred debts to support his family and pay for law school, or suffered a separation from his family while he pursued his studies in New England. Nevertheless, it is highly questionable whether attending law school is a legally cognizable injury, notwithstanding that the rigors of law school are well known and undoubtedly unpleasant to some extent.
But in any event, we can discern nothing in the record to suggest that Klein and the firm should have foreseen that, as a result of giving bad advice to Duncan about the merits of his claims against NGK, Duncan would elect to enroll in a law school in a faraway place, leave his family behind, and refinance his home to cover the costs of law school and the expenses of his family in the meantime. The alleged malpractice might well be a cause of Duncan leaving his job with NGK, but it is not the proximate cause of his free choice to remake his life and enter into the practice of law. The "intervening decisions by [Duncan] render [the alleged] negligence [of Klein and the firm] too remote to satisfy the proximate cause requirement for a legal malpractice claim."
The Trespass Tort Versus the CFAA: A Response to the Oracle Amicus Brief in Nosal
In a recently-filed amicus brief submitted by Oracle America Inc. before the en banc Ninth Circuit in United States v. Nosal, the important Computer Fraud and Abuse Act case I have blogged a lot about, Oracle makes the following argument about interpreting "access" and "authorization" in the context of the CFAA. The CFAA's prohibition on exceeding authorized access and access without authorization is modeled on trespass principles, the brief reasons, so the scope of the CFAA should be interpreted by reference to the trespass principles articulated in the Restatement (Second) of Torts. According to the Oracle brief, this means that (a) computer owners can condition access to their computers using express restrictions like Terms of Service, but (b) express restrictions are only enforceable in some circumstances. The brief summarizes when express restrictions can be enforced under the tort of trespass as follows:
[Whether a written access restriction can be enforced by trespass law is a] fact-dependent conclusion drawn from the totality of the circumstances, and "it may be manifested by action or inaction and need not be communicated to the actor." [Restatement (Second) Torts § 892(1) (1979).] see id. § 892 cmt. c. Accordingly, courts sometimes find that a written or posted access restriction has been overridden or lifted.
This common-law principle takes several forms. One is the doctrine of apparent or implied consent; another is estoppel or waiver. Courts are suspicious of posted access restrictions that by their terms apply to everyone but that in fact have been selectively enforced "against some members of the public as opposed to others"; when the signals conflict, courts may find a posted restriction ineffective. Winn, The Guilty Eye, 62 Bus. Law. at 1424. Similarly, a property owner who knowingly acquiesces in a person's course of access may waive the right to call it a trespass. See id.; see also 75 Am. Jur. 2d, Trespass § 67 (estoppel defense). When an owner has "actual knowledge" of repeated trespasses, the owner's "habitual acquiescence … may constitute a license for persons to enter the land, if the tolerance is so pronounced as to be tantamount to permission." 75 Am. Jur. 2d, Trespass § 73. Community custom is especially relevant in determining apparent consent. See Restatement (Second) Torts § 892 cmt. d; cf. McKee v. Gratz, 260 U.S. 127, 136 (1922) ("A license may be implied from the habits of the country."). Above all, commonsense and reasonableness are the guides, as they are with all totality-of-the-circumstances inquiries.
Like other established doctrines of the common law of trespass, the reasonable approach to judging posted access restrictions applies to the CFAA. And it easily answers Nosal's policy concerns. If, as Nosal posits, it is well known that millions of employees and Internet users actually violate posted restrictions on computer and information access every day, chances are good that those restrictions are not bona fide.
I considered this argument when I was writing my Cybercrime's Scope article in 2003, but I concluded that it's not persuasive. The problem is that the principles of interpreting common law torts are pretty different from the principles of interpreting criminal law statutes. The CFAA is a criminal statute: Although Congress later added some civil remedies to it, the statute is primarily a criminal statute and its basic prohibitions need to be interpreted accordingly. So while it's true that the CFAA harnesses the basic concept of a trespass, I don't see a good reason to adopt the details of the trespass tort when interpreting the CFAA.
The void for vagueness doctrine demonstrates the problem. The scope of common law tort liability is not subject to vagueness challenges. As a result, the scope of common law tort liability can be quite unclear. That's fine in the tort context: It's not a big deal if a person who may be trespassing isn't entirely sure if the posted notice is enforceable. But the void for vagueness doctrine requires at least some degree of clarity in the criminal context. Hinging criminal liability on whether the term of service violated is one that is violated as a "habit[] of the country" and for which there is "habitual acquiescence " is just too unclear. No one really knows how that would be applied.
The difference between trespass onto physical land and access into a computer is a significant part of the problem. In the case of a physical trespass, we can get a sense of social norms by observing what notices are enforced. We know where we are on physical land, and can only be in one place at a time. We visually observe enforcement, and we visually observe if notices are ignored. But it's hard to obtain knowledge as to how seriously a particular computer provider takes each provision in the Terms of Service. Users can't generally know what Terms are are meant to be taken seriously and which aren't. Plus, a computer user might be accessing several different computers at the same time. Users don't have obvious ways of determining which of the dozens or even hundreds of written restrictions that might apply to them at any given time are really intended to be taken seriously. How does a computer user know which terms are violated as a "habit of the country"?
In my view, the more natural way to interpret the criminal prohibition on unauthorized access is by following how the criminal law has traditionally interpreted crimes that have an element of "without consent." Here's what I wrote in my 2003 article:
Although many criminal law offenses do not permit a consent defense, a few traditional crimes require absence of consent or permission as an element of the offense. For example, trespass and burglary prohibit presence on physical property without the permission of the owner; rape and sexual assault prohibit sexual penetration without the consent of the victim. In many cases, consent or the lack of consent is clear. In some cases, however, consent raises difficult legal questions. The scope of consent is particularly difficult when a perpetrator tricks the victim into granting authorization and consent, and the court must determine whether the trickery vitiates the consent. The law recognizes the victim's consent in some contexts, but not in others.
The general approach is to focus on whether the victim actually consented to the act that occurred, regardless of whether the victim consented in reliance on representations concerning collateral matters. Courts and commentators often label this the difference between consent derived from fraud in the inducement and consent derived from fraud in the factum. When a victim agrees to allow the defendant to engage in specific conduct in reliance on a misrepresentation, the consent is based on fraud in the inducement, and the consent remains valid despite the misrepresentation. The element "without consent" or "without authorization" normally will not be met. In contrast, when a victim allows the defendant to engage in one kind of conduct but the defendant engages in a different type of conduct, the consent is based on fraud in the factum and the law will not recognize it. The element "without consent" is satisfied.
Consider a few examples drawn from prior cases. A man who borrows a car from its owner after promising that he will borrow it for only a few minutes instead takes the car for several hours. The defendant is not guilty of use of an automobile without the consent of the owner. Because the owner actually agreed to let the defendant drive the car, the misrepresentation is merely fraud in the inducement. Several common and quite disturbing examples of the distinction appear in cases interpreting the law of rape, which prohibits sexual intercourse without consent. For example, a man who falsely claims to be a doctor and convinces a woman that she must have sex with him to cure her of a serious disease is not guilty of rape, because the woman's consent to have intercourse derives from fraud in the inducement. In contrast, a gynecologist who tricks a female patient into having sexual intercourse with him by convincing her that she merely is submitting to a nonsexual medical exam is guilty of rape because the fraud constitutes fraud in the factum. Although the circumstances of property crimes and sexual assault crimes are of course dramatically different, the same basic rule has been held to apply in both contexts: The key question is whether the victim has consented to the specific act. Misrepresentation as to a collateral matter does not suffice to satisfy the legal requirement of lack of consent.
Why is this standard relevant to unauthorized access statutes? My contention is that the distinction between circumventing code-based restrictions and breaching contract-based restrictions [such as violating terms of uervice] relates to the traditional distinction between fraud in the inducement and in the factum. The comparison may seem a bit jarring at first, as it substitutes a computer for a human victim and the nature of the harm is vastly different. But similarities exist at a conceptual level: Computer misuse laws prohibit access to a computer without authorization, whereas trespass laws prohibit physical appearance in a home without permission and (if one can pardon the comparison) rape and sexual assault laws prohibit sexual intercourse without consent. Speaking anthropomorphically for a moment, the computer is "tricked" into authorizing the defendant to access the computer, in a way conceptually similar to how a homeowner might be tricked into allowing a person into their home or a victim might be tricked into consenting to a request to engage in sexual activity. From this perspective, the fact that a user accessed the computer means that the computer must have authorized the access. The question is, was the authorization induced by a type of fraud that voids the authorization as a matter of law? What kind of fraud negates the authorization the computer granted the user?
Access based on breach of contract [such as violating written restrictions on computer use] resembles fraud in the inducement: The computer "agrees" to allow the user access, subject to some promise or condition. For example, if a user registers for an e-mail account and later breaches the terms of service, she in effect convinces the computer to grant her access based on the false representation that she will comply with the terms. The access breaches the terms of service, but the fraud against the computer is only fraud in the inducement. Following traditional principles of criminal law, the access should not be deemed "without authorization." No criminal violation has occurred.
In contrast, access that circumvents code-based restrictions resembles fraud in the factum. The computer has not agreed to let the user access the computer. Instead, the computer is tricked into letting the user access the computer through a misrepresentation as to whether the user is accessing the computer at all. The computer may "believe" that the user is someone else, as in the case of a defendant utilizing another person's username and password. The computer may be tricked into unwittingly giving access to the user, as in the case of a hacking exploit such as a buffer overflow attack. Both cases resemble fraud in the factum because the computer does not recognize that it is consenting to access by that particular user. The fraud in the factum voids the authorization, and the access is legally "without authorization."
Judge Kozinski's opinion in Theofel v. Farey-Jones , 359 F.3d 1066 (9th Cir. 2004), got some of this idea in theory, but misapplied it by relying entirely on the civil trespass tort as the basis for authorization. The result was that Kozinski construed serving an overly broad subpoena for information stored on a computer as akin to hacking into the computer for information, which strikes me as a rather bizarre result. Perhaps Nosal will provide the Ninth Circuit with the appropriate opportunity to distance the court from this implication of Theofel. For more details on this, see Kerr, Computer Crime Law 57–60 (2d Ed. 2009) (discussing the analogies to trespass analogy and consent in the context of Theofel).
Careful With Those Redactions
Thomson Reuters News & Insight, on a redaction failure: A judge sought to redact certain internal company secret information from the filed opinion, but the redactions were done in a way that left the material easily readable "by copying text from the PDF and pasting it into another document." (I have confirmed that this was indeed so.) Thanks to How Appealing for the pointer.
Affirmative Action for Men in College Admissions
My wife Alison and University of San Diego law professor Gail Heriot have just published an article in Engage on the apparently growing practice of sex discrimination on behalf of men in college admissions. Heriot serves as a Commissioner at the US Commission on Civil Rights, where Alison is her special assistant/counsel. Here's an excerpt from the article:
While some news reports indicate that discrimination against women on the basis of sex in college admissions is increasingly common, there has been relatively little public discussion about it—especially compared to the much more heated public debate concerning race-based affirmative action. Not surprisingly, therefore, there have been few attempts to study the extent of the problem systematically....
Multiple news reports indicate that some colleges and universities, both public and private, have what they regard as "too many" women applicants and are therefore discriminating in favor of men—largely because more women than men apply to college and their academic credentials are in some ways better. Several colleges have more or less openly admitted to discriminating against women – including the University of Richmond (a private institution) and the College of William and Mary (a public institution). Others—including Southwestern University (Texas), Knox College (Illinois), Brandeis University (Massachusetts), Boston University (also Massachusetts), and Pomona College (California)—shy away from admitting directly that they are discriminating, but admit that maintaining an optimal gender balance by non-discriminatory means is difficult....
Sex discrimination in admissions at public universities is illegal under Title IX of the Education Amendments of 1972. But under federal law, it is perfectly legal for private institutions to engage in sex discrimination in admissions—though once both sexes are admitted, neither may be discriminated against....
Perhaps the most attention-getting piece on this topic was a 2006 New York Times op-ed by Jennifer Delahunty Britz, an admissions officer at Kenyon College, in which she admitted that her office often gave preferential treatment to men. Some admissions insiders wrote in response to Delahunty Britz's piece that these preferences were quite common—what was shocking was only Delahunty Britz's candor in airing this information publicly. Inside Higher Ed noted that "[w]hile few admissions officers wanted to talk publicly about the column, the private reaction was a mix of 'of course male applicants get some help' along with 'did she have to share that information with the world?'" Several years later, after the wave of chatter over Delahunty Britz's piece had died down, Columbia University law professor Ted Shaw referred to such discrimination as an "open secret."
[footnotes omitted].
The article also discusses the interconnections between admissions preferences for men and Title IX rules for college sports teams (the latter may have the unintended effect of incentivizing the former by making it harder for colleges to entice male students through increasing the number of men's sports teams). Alison previously wrote about Title IX and sports here.
This issue is actually one of the rare points of political disagreement in the Somin household. I am less hostile than Alison to gender-balancing admissions policies that seek to keep the sex ratio (very roughly) even for the purpose of improving the social environment on campus. The problem of gender imbalance may be more serious at some institutions than others, and I don't think it can justify very large gender preferences anywhere. As Gail and Alison point out, it's a bad idea for colleges to admit "mismatched" male students whose academic skills are vastly inferior to those of the other students at the same institution. But, in some situations, I think there is a case for modest admissions preferences for the less numerous gender on campus. Some women students themselves may be dissatisfied with life on a campus that is, say, 70% female, and the same goes for male students at an overwhelmingly male institution. Obviously, other students probably couldn't care less about the sex ratio at their university. But I don't advocate that all universities with a gender imbalance should resort to admissions preferences to deal with it. I merely want the option to be legally available, at least at private institutions. Be that as it may, I do agree with Alison that such policies at public institutions are legally dubious under Title IX.
The original meaning of the 14th Amendment regarding interracial marriage
Over at Balkinization, Andrew Koppelman (Northwestern) has an interesting and thoughtful post on the state of originalism. Synthesizing analysis by Jamal Greene and Jack Balkin, Koppelman writes, "Originalism is fundamentally about a narrative of rhetorical self-identification with the achievements of a founding historical moment. That is the real basis of its power. An originalist argument will be powerful to the extent that can persuade its audience that it can keep faith with that identification."
Thus, "Originalist argument is an artifact designed to recall the Constitution's origin and connect what we are doing now with that origin. Once this functional definition of originalism is understood, it follows that the range of possible original arguments is quite broad. It is not, however, infinite." So, argues Koppelman, the fact that originalists differ among themselves in many important details about what "originalism" really is, is not a fatal flaw. Simiilarly, there are many different things called "aspirin" (e.g., Excedrin, generic products, St. Joseph's children's aspirin, etc.), but they all contain acetylsalicylic acid, and they all have a generally similar function. Which particular one you use at a given time will depend on the particular purposes for which it is needed.
I do want to quibble, though, with one particular legal history claim that Koppelman makes: "Thus originalists struggle with the problem whether the general purpose of the Fourteenth Amendment, to mandate the legal equality of blacks, should trump the framers' specific intention to permit school segregation and miscegenation laws." Michael McConnell and Randy Barnett have written on the school segregation issue, but I'd like to add something on miscegenation. I don't think that the historical record unambiguously supports the claim of a specific intent in the 14th Amendment to allow the continuation of laws against interracial marriage.
We do know for certain that one very specific intention of the 14th Amendment framers was to provide a solid constitutional foundation for the Civil Rights Act of 1866. According to the Act: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, . . . as is enjoyed by white citizens. . ."
Early exposition by courts is one source of original public meaning. (Although this source is not always guaranteed to be reliable. See, e.g., the Slaughter-House majority's dicta). In 1872, the Alabama Supreme Court ruled that the state's 1866 constitutional ban on miscegenation violated the "cardinal principle" of the Civil Rights Act and of the Equal Protection clause. Burns v. State, 48 Ala. 195 (1872). According to the unanimous Burns court, the idea that contracts could be limited to members of the same race was absurd: "Marriage is a civil contract, and in that character alone is dealt with by the municipal law. The same right to make a contract as is enjoyed by white citizens, means the right to make any contract which a white citizen may make. The law intended to destroy the distinctions of race and color in respect to the rights secured by it. It did not aim to create merely an equality of the races in reference to each other. If so, laws prohibiting the races from suing each other, giving evidence for or against, or dealing with one another, would be permissible. The very excess to which such a construction would lead is conclusive against it."
That same year, the Texas Supreme Court unanimously ruled that the "the law prohibiting such a [common law] marriage [between a white and a black] had been abrogated by the 14th Amendment to the Constitution of the United States." Bonds v. Foster, 36 Tex. 68 (1872) (inheritance case). As detailed in Peggy Pascoe's book, What Comes Naturally: Miscegenation Law and the Making of Race in America (2010), in the years after the Civil War, eleven states repealed their bans on interracial marriage.
It was the Indiana Supreme Court that figured out the way to evade the clear statutory language about the equal right of contract. According to the court, marriage is "more than a mere civil contract"; it is an institution fundamental to society. The Indiana court insisted at length that the 14th Amendment had not limited the traditional police power of the states. If Congress could ban states from imposing a racial mandate on the right to enter a marriage contract, then Congress would (supposedly) have the power to legislate on all aspects of marriage. State v. Gibson, 36 Ind. 389 (1871).
I don't find the Indiana court's 1871 reasoning persuasive, and, apparently, neither did the Alabama and Texas Supreme Courts in 1872. But courts cannot stand forever against the sustained will of the electorate. After four losses, the proponents of anti-miscegenation won on their fifth try in the Alabama Supreme Court. When the courts in the various states finally acquiesced to anti-miscegenation laws, Gibson was the essential citation, because it came from a state where slavery had never legally existed. The Texas intermediate Court of Appeals provided the legal reformulation that marriage was "status" and not "contract," and was therefore not covered by the Civil Rights Act: "Marriage is not a contract protected by the Constitution of the United States, or within the meaning of the Civil Rights Bill. Marriage is more than a contract within the meaning of the act. It is a civil status, left solely by the Federal Constitution and the laws to the discretion of the states, under their general power to regulate their domestic affairs." Frasher v. State, 3 Tex.App. 263, (Tex. Ct. App. 1877). (The regressive Frasher decision is one more data point in support of the observation in Henry Sumner Maine's great 1861 book Ancient Law: "we may say that the movement of the progressive societies has hitherto been a movement from Status to Contract." Maine's book elaborates in great detail why marriage law fits this paradigm.)
By the time that Plessy v. Ferguson was decided in 1896, the Supreme Court majority, which was willfully oblivious to contemporary social reality (e.g., if blacks consider a segregation mandate to be a "a badge of inferiority," that is "solely because the colored race chooses to put that construction upon it") , was also lazily ignorant of legal history: "Laws forbidding the intermarriage of the two races may be said in a technical sense to interfere with the freedom of contact, and yet have been universally recognized as within the police power of the state." The sole citation for this allegedly "universal" recognition was State v. Gibson. The Court was right that as of 1895, miscegenation laws were constitutionally safe, but the Court seemed quite unaware that during the first years when the 14th Amendment and the Civil Rights Act were the law of the land, the issue was in dispute.
Although the late Professor Pascoe's book is suffused with critical race/gender theory, readers who find such theories useless will still find Pascoe's book enormously useful. It is an excellent legal history of anti-miscegenation laws and cases, and not just during Reconstruction. You will learn about the national panic to spread such laws during the early 20th century because the black boxer Jack Johnson (who defeated a string of opponents who were billed as "the Great White Hope") notoriously consorted with white women; how courts struggled with interpreting miscegenation laws in the West (which were mainly aimed at Asians, and which raised questions such as whether a ban on white marriage to "the Mongolian or Malay races" applied to Filipinos); the NAACP's political opposition to new miscegenation laws coupled with its great reluctance to mount legal challenges to existing ones; and the extremely risky litigation (not endorsed by NAACP) which led to the landmark 1948 California Supreme Court Perez v. Lippold decision (won mainly on void for vagueness, the fundamental unenumerated right to marry, and First Amendment free exercise of religion, rather than a categorical attack on all racial discrimination).
Justice Carter's concurrence in Perez is a good illustration of the main thesis of Koppelman's post, and of the point made by the second Justice Harlan (and also by Jack Balkin) that our "tradition is a living thing," in which our national understanding of the original meaning can be deepened by new experiences. Rebutting respondent's collection of social scientists who contended that race-mixing was destructive to the health of the white race, Justice Carter quoted some essentially similar claims from Hitler's Mein Kampf'. Justice Carter continued: "To bring into issue the correctness of the writings of a madman, a rabble-rouser, a mass-murderer, would be to clothe his utterances with an undeserved aura of respectability and authoritativeness. Let us not forget that this was the man who plunged the world into a war in which, for the third time, Americans fought, bled, and died for the truth of the proposition that all men are created equal." And so, "In my opinion, the statutes here involved violate the very premise on which this country and its Constitution were built, the very ideas embodied in the Declaration of Independence, the very issue over which the Revolutionary War, the Civil War, and the Second World War were fought, and the spirit in which the Constitution must be interpreted in order that the interpretations will appear as 'Reason in any part of the World besides.'"
"Bad Answers, Good Answers, and Terrific Answers"
With law school fall exams around the corner, I thought I would provide a link to my 2007 post on how to answer law school exam issue-spotters. The post begins:
Students are often puzzled about what professors are looking for on exams, so I thought it might be helpful to offer some thoughts on what makes an answer bad, good, or terrific. Obviously different professors look for different things, but my guess is that what works for me is relatively close to what works for other professors. Abstract guidance on how to answer exam questions is easily found and usually pretty useless, so instead I'm going to conjure up an imaginary law school class with an imaginary exam. I'll then grade an imaginary set of five different answers and explain what makes the different answers better or worse.
Scatterplot of University President Salaries against University Professors
Insta points us to this scatterplot at the Chronicle of Higher Education. It plots (within the limits of reported numbers, and in any case limited to private universities) university president salaries against average professor salaries within that institution.
The thing I found most surprising was not so much the university president salary as the average professor salary, and not just in places like New York or at the Ivy League. Average and skewed by outliers, I'm sure, but just randomly eyeballing numbers, I was surprised at how well compensated professors are. Again, just randomly clicking dots, these seemed like numbers I would associate with salaries at the professional schools, not institutions overall. I've left comments open.
(Cranky Professor's comments here, and Anon Jim in comments is right to distinguish salary from compensation. I remain surprised. Also, a commenter suggests that the university is best understood as having tenured faculty and senior administrators as shareholders — correct or not? What is the right public choice model to account for the university and its governance?)
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