Eugene Volokh's Blog, page 2698
October 5, 2011
"Wanted — Dead or Alive"
A journalist was in touch with me recently, asking about the legal and specifically Constitutional status of "wanted-dead or alive" in 19th century frontier days. I don't know anything about this, particularly as a historical Constitutional question, and propose to open it for knowledgeable responses from readers.
First, to what extent was this actually a historical practice, or is it really just a creation of Hollywood westerns– any scholarship on this, or actual examples?Second, from the standpoint of the law in force in that period, on what basis was this kind of "dead or alive" language used?Third, what was the relevant Constitutional doctrine of that day and did it have a role to play? Why or why not?I am looking to pass knowledgeable responses along to the journalist, so please only substantive and knowledgeable answers; I will delete others, as I want to be able to forward the comment thread to the journalist in question. I'd certainly ask Co-Conspirators to respond as well. Thanks.
Quinnipiac Poll and Herman Cain
Not reporting results, but that for the first time ever I was actually called last night by the Qunnipiac Poll. What was interesting for me is that they asked me my views on three candidates interchangeably–Romney, Perry, and Cain. Cain is starting to remind me of Huckabee the last time around–you could tell that many people were enthusiastic about him if he could gain enough of a critical mass that people might actually think of him as something like a viable candidate. Even though I didn't like Huckabee's policies at all, I could appreciate the appeal of his personal warmth and likability for many people. I don't know that much about Cain's policy proposals at this point but my sense is that people are drawn to him personally as well, except that his appeal is in his authenticity and sense of core convictions which is such a contrast from most politicians out there. I think this personal appeal (although different from Huckabee's) makes him a better bet to stick around for awhile than was the case with Bachmann who seemed to become less appealing to people the more they saw her. It is still a definite uphill battle for Herman Cain to win the Republican nomination (and I'm definitely not saying that I am for or against him right now) but I could see him in a constant place or show position throughout the early primary season.
Also, considering that the core of Cain's support is driven by tea party types more than establishment Republicans, can this put to rest once and for all the canard that the tea party is racist because they oppose President Obama's policies?
October 4, 2011
George Priest Blogging at Forbes.com
I just learned that law and economics legend George Priest has started blogging at Forbes.com.
Dean Dan Polsby on Free Speech at GMU Law
Dean Dan Polsby of GMU Law School sent an excellent message to the GMU Law community last week in response to the invitation by student groups of a controversial speaker. FIRE has the story, including the statement, here.
It is a great statement and makes me proud to be part of GMU Law School.
"Conclusions That Defy Common Sense"
I've often seen people — usually on my side of the political aisle — praise "common sense," and condemn those who make fancy arguments that defy common sense. Here's an example, from a Reason column:
So why do intelligent people consistently make such a hash of things? Because they are smart enough to talk themselves into anything. Ordinary mortals don't engage in fancy mental gymnastics to reach conclusions that defy common sense. But intellectuals are particularly prone to this.
I've always been skeptical of such praise of common sense, for two related reasons.
First, common sense often leads us to the wrong results. That's especially evident in places where the rightness of the right result can be proven, such as mathematics, physics, astronomy, and so on. It often takes some pretty "fancy mental gymnastics" rather than "common sense" to solve problems in those fields.
And it's also true in more practical fields, such as economics. I suspect that to many people it's common sense that if you want the store shelves to always be filled, you need to have someone centrally planning production or distribution; the "invisible hand" can easily be dismissed as "fancy mental gymnastics" by those whose common sense inclines them against that explanation. Likewise, it was probably common sense to many that alcohol kills lots of people, directly and indirectly, and therefore banning it might be good — and it's still common sense to many that guns kill lots of people, directly and indirectly, and therefore banning them might be good.
Second, even if your reaction to these matters is, "no, my common sense tells me that the free market is great, and this common sense is correct," perhaps your common sense is in large measure molded by the "fancy mental gymnastics" of others — Adam Smith, Milton Friedman, and the like. And while your and my common sense may be well-tutored on these particular points, it's likely that there are many other points, in the policy world and out of it, on which our common sense misleads us.
Of course, this isn't to say that common sense always leads us astray even in the policy world. Moreover, common sense may often be more helpful in day-to-day personal and business decisions — where we have been tutored by repeated exposure, and by having a strong personal incentive to get those decisions right — than it is with policy or scientific judgments in which we have little experience. And I'll be the first to admit that intellectuals often get things wrong. But I'm not sure that extolling common sense, and condemning conclusions that defy common sense, is a good rule of thumb for dealing with complicated questions of science, economics, social policy, or foreign policy.
The Defense Brief in United States v. Jones and the Four Models of Fourth Amendment Protection
In an earlier post, I looked at the Petitioner's arguments made in the merits brief filed in United States v. Jones, the Fourth Amendment GPS surveillance case. In this post, I wanted to break down the Respondent's merits brief in the same way.
I. The Four Models of Fourth Amendment Protection
First, a recap. In a recent article, I argued that the "reasonable expectation of privacy" test is best understood as four different inquiries. See Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503 (2007). That is, there are four different kinds of arguments that the Supreme Court made about when the government violates a reasonable expectation of privacy and therefore is a Fourth Amendment "search." Here are the four models I identified:
(1) the probabilistic model, by which an expectation of privacy is reasonable or not based on how common or expected the government's conduct appears to be.
(2) the private facts model, by which an expectation of privacy is reasonable or not based on the nature of the information disclosed regardless of how it is obtained,
(3) the positive law model, by which an expectation of privacy is reasonable or not based on whether the government's conduct violated some source of law outside the Fourth Amendment, and
(4) the policy model, by which an expectation of privacy is reasonable or not based whether it is desirable to have that outcome as a matter of policy.
Briefs and opinions tend to mix and match the models, making arguments using the model or models that support the argued-for result in that particular context.
II. The Defendant's Merits Brief in United States v. Jones
Recall that the investigations in Jones attached a GPS tracking device to the suspect's vehicle and tracked the vehicle's location on public streets over time. The first question raised by the case is whether the use of the GPS device violated the suspect's "reasonable expectation of privacy." Much like the government's brief, the defense's brief provides a helpful case study of how arguments based on the four models tend to work.
Here's how the arguments break down. The defendant's brief starts by relying on the positive law model. The government action was a search because it infringed upon the defendant's property rights, and because the same conduct by a private party would be a tort and (in some states) a crime. Indeed, a few states have barred warrantless GPS surveillance by statute. The fact that the government's conduct violates the principles in those bodies of law outside the Fourth Amendment indicates that the conduct violated a reasonable expectation of privacy. See pages 16–22.
The brief then turns to the policy model. Warrantless GPS surveillance violates a reasonable expectation of privacy becayuse it is very invasive and easy to do, and letting the government conduct such surveillance without judicial oversight gives the government too much power. See pages 24–28. Next the brief turns to the private facts model, and argues that the level of detail in the information that can be obtained from a GPS device makes its use a search. See pages 28–30.
After responding to the Government's brief, Jones's brief then returns to the policy model to distinguish the earlier beeper cases on the ground that GPS surveillance raises much more of a dragnet concern than beepers. See pages 39–42. The brief then goes back to the private facts model to argue that the net sum of private facts gathered by GPS is very invasive. See pages 43–45.
(cross posted at SCOTUSblog)
Muslims, Quakers, and Nothing New Under the Sun
Amin Farah Al, on trial in federal court for "allegedly funneling money to a terrorist group in Somali" (AP), has been found in contempt of court for refusing to stand for the judge and jury. The judge sentenced her to fifty days in jail: "The Court hereby finds that on this day, October 3, 2011, Defendant Ali failed to rise on ten occasions. Defendant Ali shall be sentenced to five days for each incidence of contempt, to be served consecutively, and after the trial in this matter is completed." USA Today reports that, "[i]f Ali decides to rise for the court, her attorney can ask that the contempt charges be purged," which means that her sentence would presumably be lifted.
The judge also revoked her pretrial release, so that she has to stay in jail during the trial: "On August 5, 2010, Defendant Ali was released pending trial, subject to certain conditions, including that the Defendant Ali not violate any federal, state or local law. As Defendant Ali has violated 18 U.S.C. § 401 by failing to rise when Court is called to Order, the Court hereby revokes release."
Ali had argued that she had a First Amendment right not to stand, because she is "doing this for religious reasons": "I am not going to stand up for anyone except Allah." But the judge disagreed:
There is a long‐standing tradition in the court system which requires all participants to stand when the Court is called to Order or called in Recess (referred to herein as the "rising requirement"). The function of the rising requirement is to mark the beginning and the end of the court sessions, to show respect for the court system, to assist judges in maintaining order, and to remind all that attention should be paid to the court proceedings. [The court later quoted a court of appeals case, In re Chase, 468 F.2d 128 (7th Cir. 1972), which gives a bit more detail on the rationale for this requirement. –EV]
The Defendant has refused to comply with the rising requirement [which the court had specifically provided for in an earlier court order –EV], stating that her religious beliefs prohibit such compliance. While freedom of religion is a protected right under the First Amendment, the Defendant has not demonstrated to the Court that her First Amendment rights take precedence over the rising requirement, especially in light of the fact that she is exercising such right inconsistently. Evidently, the Defendant's professed religious beliefs did not prevent her from standing when she was introduced to the prospective jurors. [Sentence moved: When the Defendant was identified for the prospective jurors ... she immediately stood when her name was called.] Accordingly, the Court finds that Defendant Ali's failure to rise when Court is called constitutes criminal contempt....
Failure to rise when the judge or jury entered the courtroom has been found to constitute criminal contempt, even where the defendant had claimed that his refusal to stand was based on his religious beliefs. In re Chase, 468 F.2d 128 (7th Cir. 1972). See also Evans v. Ciccone, 377 F.2d 4, 6 (8th Cir. 1967) (finding that freedom of religion cannot be made superior to reasonable rules of conduct, in or out of prison).
I suspect the judge's actions likely violate the federal Religious Freedom Restoration Act (RFRA), because the standing requirement is probably not necessary to serve a compelling government interest (which is the test the Act prescribes). Requirements that people stand as a gesture of respect, like requirements that they salute the flag, also generally violate the Free Speech Clause (see West Va. Bd. of Ed. v. Barnette (1943)). But the rule may be different for in-court behavior, where restrictions on speech and symbolic expression are generally much more acceptable than outside court, and where compulsions of speech and symbolic expression might likewise be constitutional, which is why I think Ali's strongest claim would likely be under RFRA.
Beyond this, though, I thought it was worth noting the connection between this incident and a famous incident from Anglo-American legal history — the 1670 trial of William Penn, who of course would go on to found Pennsylvania. Penn was a Quaker, and because of his beliefs refused to uncover his head in court. Much like Ali, the Quakers of the era saw such uncovering of the head as a "token[] of reverence due to the Almighty alone." The court found Penn to be in contempt, and fined him 40 marks. (Penn had actually entered the courtroom with his head uncovered, and an official put the hat back on Penn's head; but the court's objection seemed to be to Penn's refusal to remove the hat at that point.) The jury in the underlying case — the prosecution of Penn for unlicensed preaching — later refused to hand in a verdict that the court saw suitable, which led to the landmark jury rights decision in Bushel's Case.
This incident doesn't, of course, dispose of what the rule is or even ought to be in the U.S. today. But it does provide a bit of perspective on how modern-seeming objections by religious groups that are mostly new to the country — such as Muslims — often echo religious objections that have been considered by Anglo-American law for centuries.
Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
Descriptivism, Prescriptivism, and Assertionism
Our readers likely know that I have many disagreements with prescriptivists when it comes to English usage. But while I have philosophical disagreements with prescriptivists in general, my main practical disagreements are with people who might best be labeled "assertionists" — people who don't just say that prescriptionists set forth by some supposed authorities define what is "right" in English, but who simply assert a prescription even in the face of what those supposed authorities say. Usage X is wrong, they say. Why? Because it violates this rule. What's your authority for the proposition that this is a rule? Well, it violates the rule.
The recent exchange about starting sentences with "and," "but," or "or" offers an excellent example. I pointed out that this is common usage — including among prominent authors, in leading newspapers such as the New York Times, and in leading legal sources such as the opinions of the U.S. Supreme Court. I also noted that the supposed usage authorities that I checked do not in fact condemn it.
Yet some people still argued that such a usage is wrong, at least in "formal" writing (though you'd think that Supreme Court opinions would be classified as pretty formal). When I inquired why this might be so, I got three basic replies:
1. "I learned basic grammar long ago. A conjunction joins two related thoughts in a sentence." But this is mere assertion. One can equally say that conjunctions (or at least the kind we're discussing) "link units of equal status"; indeed, this is precisely what the Oxford English Grammar (1996) says. This could mean two words in a sentence, two clauses in a sentence, two sentences in a paragraph, or two paragraphs in a work; and indeed the Oxford English Grammar gives an example of a sentence that starts with "But," without any objection.
Now one could try to dismiss such an authority (and I've heard many assertionists do that in other contexts) by saying that the authority is merely descriptivist, and that therefore we shouldn't trust its claims. I don't buy that argument, because I'm a descriptivist; but let's accept it for a moment. Even if one dismisses the Oxford English Grammar as an authority for the proposition that conjunctions "link units of equal status" as opposed to just "two related thoughts in a sentence," one still needs an authority for the contrary proposition. What is that authority?
2. One commenter did try to point to such an authority, writing,
I have a Ph.D. in linguistics and I taught grammar at a university for 20 years — for what it is worth. It is indeed a rule in formal English that you cannot begin a sentence with a conjunction. See grammar texts by Azar.
Formal English = written English in a formal context = English that is meant to be read in a formal context, e.g. academic research.
In conversation, however, you can start a sentence with a conjunction. Blogging is often intended to be conversational, so we see conjunctions at the beginning of sentences a lot. I do it in my own blog.
To be formal, use 'also' for 'and'; use 'however', for 'so'. Make sure you use commas.
Please note: Language changes. This is one of those areas of English that we see changing before our eyes. My children will know how to use 'however' and 'thus', and know how to punctuate them, but I don't expect that their public schooled peers will.
So I got a text by Azar (Betty Schrampfer Azar). As best I can tell, Azar generally writes schoolbooks, so I got Fundamentals of English Grammar, a "developmental skills text for lower-intermediate and intermediate students of English as a second or foreign language." And, sure enough, Azar does say that "Except in very formal writing, a conjunction can also come at the beginning of a sentence," though without (as best I can tell) explaining what writing qualifies as "very formal."
But Azar doesn't explain the basis for her assertion, so it's basically her word against the Oxford English Grammar's, Webster's Dictionary of English Usage, the Harper Dictionary of Contemporary Usage, the Supreme Court, and others (at least unless "very formal writing" is such a vanishingly small category that none of the sources thought of noting the exception, and that Supreme Court opinions do not fit within it). Again, then, we have argument by assertion, with no explanation for why we should follow Azar rather than the others.
3. Finally, one of the commenters also argued, "My impression is that, in casual English, sentences beginning with conjunctions are usually incomplete sentences. However, they may contain complete thoughts with the missing words implied." Now I think that functional arguments are often sound arguments for why we should avoid some usage (though not that the usage is "wrong"). But again this seems to me argument by assertion. The commenter thinks that sentences beginning with conjunctions (such as "but") are usually incomplete sentences, but I don't know of any evidence for that proposition. (Why would such sentences be incomplete more often than sentences that start with, say, "However" or "Moreover"?) Nor does the commenter offer argument in support of the more relevant proposition that we should avoid complete sentences beginning with "but" just because many such sentences are incomplete.
I've discussed this before, here, here, and here. But I thought it was worth noting, and worth breaking assertionism out as a separate category, and to call on people who make prescriptivist arguments to at least identify the supporting evidence or argument for their prescriptions — and to explain why this evidence or argument trumps the evidence or argument on the other side — rather than just relying on bare assertion.
Healthier and Wealthier
Thank you to those who commented on my first post yesterday! Before I begin my formal post for today, I wanted to make sure I responded to questions about how average life span went from around 18 years in the cro-magnon era to around 80 years today.
Tragically, the majority of children used to die before the age of 10 years. This was mainly due to infectious diseases, poor nutrition, and sanitation problems. Discoveries such as antibiotics, vaccines, vitamins and indoor plumbing led to humanity's rapid gains in life expectancy.
What this means is that, for most of history, gains in human life expectancy were made at the beginning, not the end of life. It is true that older people have always been part of society, but they were less numerous and more weathered than today's seniors.
As life expectancy rose, so did the number of older people, and that was when chronic diseases such as heart disease, cancer, and Alzheimer's made their way into our common vocabulary. But that is not the end of the story. Rather, it is the beginning of a new chapter where humanity takes on ill health and death at later ages. Indeed, those efforts have already had an impact on the growth of life expectancy.
Historian Jim Oeppen and demographer James Vaupel point out that "in the second half of the 20th century, improvements in survival after age 65 propelled the rise in length of people's lives." There is more on this in chapter 2 of my book, so instead of taking more word space here, I would refer you there to read more.
Now, once the human project to extend health spans at later ages gets more momentum and we are living past 100, perhaps to 150, how might that change the economy?
Economist Julian Simon was famous for arguing that "the ultimate resource is people – especially skilled, spirited, and hopeful young people endowed with liberty – who will exert their wills and imaginations for their own benefit, and so inevitably they will benefit the rest of us as well."
One immediately notices that he specifically mentions young people. One of the reasons for this is that young people are generally healthy, and have the energy to pick up big projects and run with them. They are also often doing things for the first time, which potentially gives them a different perspective from those who have been in the field for a while.
So how will longer health spans change our stock of human capital? First, and perhaps most importantly, 'healthy' directly implies better and more productive human capital. This is perhaps an obvious conclusion, but it wasn't until relatively recently that researchers began investigating whether health actually creates wealth.
For many years, it's been clear that there is a positive correlation between health and wealth, but it was most commonly thought that wealth creates health. While it is certainly true that the rich can afford to take better care of themselves, it is now known that health also begets wealth. Put another way, poor health causes a decline in productivity for the simple reason that it's very difficult to work effectively when you're in ill health, thereby increasing the chances of falling into poverty.
In their paper titled the "Health and Wealth of Nations," Harvard economist David Bloom and Queen's University economist David Canning explain that, based on the available research, if there are "two countries that are identical in all respects, except that one has a 5 year advantage in life expectancy," then the "real income per capita in the healthier country will grow 0.3–0.5% per year faster than in its less healthy counterpart."
While these percentages might look small, they are actually quite significant, especially when one considers that between the years of 1965 to 1990, countries experienced an average per capita income growth of 2% per year. When countries only have an average growth of 2%, an advantage of 0.5% is quite the boost.
Now, those numbers are based only on a 5 year longevity advantage. What if a country had a 10, 20, or 30 year advantage? The growth may not continue on a linear basis, but if the general rule holds – a jump in life expectancy causes an increase in economic growth per capita – then having a longer-lived population would facilitate enormous differences in economic prosperity.
This helps to explain why there is a movement among some academics and activists to urge Congress to spend more on anti-aging research in order to create what they call a "longevity dividend."
For instance, public health professor S. Jay Olshansky argues that slowing aging by only three to seven years would, "simultaneously postpone all fatal and nonfatal disabling diseases, produce gains in health and longevity equivalent to cures for major fatal diseases, and create scientific, medical, and economic windfalls for future generations that would be roughly equivalent in impact to the discovery of antibiotics in the 20th century." His enthusiasm is justified, given that economists have demonstrated that improvements in health were a major contributor to well-being over the 20th century.
In 2006, University of Chicago economists Kevin Murphy and Robert Topel painstakingly calculated that, for Americans, "gains in life expectancy over the century were worth over $1.2 million per person to the current population." They also found that "from 1970 to 2000, gains in life expectancy added about $3.2 trillion per year to national wealth."
These enormous numbers represent a spectacular accomplishment in terms of benefits. Indeed, it could be said that longevity gains are really the best thing humans have ever accomplished.
There is more to be said about human capital and longevity (consider that innovation is a late-peak field) so if you want to read more, I suggest looking at chapter 6 of 100 Plus.
Tomorrow, I will post about how greater longevity might affect family relations.
Anti-Zionism and Anti-Semitism
Prompted by the controversy over Mearsheimer and Atzmon, Bob from Brockley has a good post on anti-Semitism, including this discussion of non-anti-Semitic anti-Zionism, with my added emphases:
Anti-Zionism that also takes a consistent opposition to all nationalisms (including Palestinian nationalism) is not antisemitic; Jewish religious anti-Zionism such as that of the Satmer Hasidim is not antisemitic; Jewish anti-Zionism which rejects the Zionist solution to the questions of Jewish survival and continuity (such as the position of the Jewish Socialist Group or others in the tradition of the Bund, folkism and other diasporist traditions) is not antisemitic [Editor: though one wonders about the relevance of these traditions in 2011, when there is an existing Jewish state with almost eight million citizens]; anti-Zionism from the perspective of Israeli citizens (Jewish or Arab) who want to see Israel as a democratic state for all its citizens (rather than a Jewish state) is not antisemitic; finally anti-Zionism which sees Zionism as a form of imperialism and takes a consistent opposition to all imperialisms without singling out Zionism as unique is wrong-headed, but not in itself antisemitic. All of these forms of anti-Zionism can be used as fig-leaves for antisemitism or be used to feed antisemitism, but they are not themselves antisemitic. [Editor: And I would add one more. Islamist anti-Zionism that is based on the idea that "Palestine" is Islamic territory that for theological reasons may not be governed by non-Muslims is not, by itself, anti-Semitic.]
Unfortunately, it's increasingly the case that even those who approach anti-Zionism from one or more of these perspectives are at best tolerant of the anti-Semitism indulged in by some of their allies, and at worst engage in rhetoric that smacks of classical anti-Jewish themes, even if the individuals in question are not themselves anti-Semitic.
As I've noted before, there are two basic reasons for this phenomenon. The first is that given longstanding Western cultural prejudices against Jews, marrying anti-Zionism with anti-Semitism can be extremely effective from a rhetorical perspective. And, second, if you are inclined to believe that Israel and its policies are an especially grave danger to world peace and security you will tend to err on the side of being tolerant of anti-Semitism to the extent that you think it is furthering the anti-Israel cause [update: because you see Israel as a greater threat/danger/cause for concern than anti-Semitism]. Neither of these explanations are excuses, of course.
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