Eugene Volokh's Blog, page 2704
September 26, 2011
Misguided Case for Regulatory Moratorium
In today's WSJ, Senator Susan Collins (R-ME) explained why she has introduced legislation that would impose a one-year moratorium on the promulgation of new major rules — those regulations anticipated to cost more than $100 million per year — while exempting emergency and deregulatory measures. Such legislation " is a common-sense solution that would help create jobs," Sen. Collins wrote, yet the examples of regulatory excess she cites don't much help her make her case.
Sen. Collins op-ed opens with a storied example of regulatory excess:
Last year, the Food and Drug Administration issued a warning to a company that sells packaged walnuts. Believe it or not, the federal government claimed the walnuts were being marketed as a drug. So Washington ordered the company to stop telling consumers about the health benefits of walnuts.
It is true that the FDA sent a warning letter to Diamond Food in 2010 accusing the company of marketing walnuts as a drug by highlighting the potential health benefits of omega-3 fatty acids. But adopting a regulatory moratorium would not do anything to help Diamond Food, nor prevent the FDA from taking similar actions in the future. As the FDA made clear, the warning letter was based upon Diamond Food's alleged violation of existing regulations already on the books. No new rules, major or otherwise, were necessary for the federal government to go after Diamond Food's marketing claims, and a regulatory moratorium would not keep the FDA at bay going forward.
The other alleged example of regulatory excess cited by Sen. Collins is the EPA's proposed rule governing emissions from industrial boilers.
Meanwhile, the Environmental Protection Agency proposed a new rule on fossil-fuel emissions from boilers that—by the EPA's own admission—would cost the private sector billions of dollars and thousands of jobs. The owner of a small business in Maine told me the proposed rule would require him to scrap a new, $300,000 wood waste boiler he recently installed. . . .
According to a recent study by the American Forest & Paper Association, if the rule went into effect as written it could, along with other pending regulations, cause 36 American pulp and paper mills to close. That would put more than 20,000 Americans out of work—18% of that industry's work force.
Once those mills close, the businesses that supply them also would be forced to lay off workers. Estimates are that nearly 90,000 Americans would lose their jobs, and wages would drop by $4 billion—just because of over-regulation.
Even if one assumes all of Sen. Collins claims about the boiler rule are true, I don't see how this supports her call for a regulatory moratorium. If the proposed boiler rule would impose disproportionate economic costs in relation to its environmental benefits, as Sen. Collins suggests, then it is a bad idea, and should not be adopted at all. Delaying the rule's adoption by a year would not make it a better deal. Conversely, if the proposed boiler rule is a good idea, it's not self-evident that delaying adoption of the rule — and the inevitable litigation that would follow — does much to improve the regulatory climate for investment. Insofar as regulatory uncertainty plays a role in discouraging economic investment, it would make more sense for Sen. Collins to support legislation that either kills the rule altogether. Indeed, legislation directly enacting the boiler rule into law would do more to reduce regulatory uncertainty than Sen. Collins' proposed moratorium.
According to Sen. Collins:
American businesses need pro-growth economic policies that will end the uncertainty and kick-start hiring and investment. American workers need policies that will get them off the sidelines and back on the job.
Fair enough, but this requires more than a temporary halt to new rules. Kicking the regulatory can down the road does not reduce uncertainty, nor does it improve the investment climate. If Sen. Collins thinks existing and proposed regulations are unduly restricting job creation and economic growth, she should set her planned moratorium aside and deal with the problem directly: Identifying those rules that are unnecessary or excessive and targeting them for elimination. Instead she has proposed a solution that is more symbol than substance.
Right to bear arms lawsuit in Illinois: Professors' amicus brief
Currently before the Illinois Supreme Court is People v. Aguilar, which raises the question of whether Illinois can, consistently with the Second Amendment, prohibit the carrying of firearms for lawful self-defense in public places. Illinois is the only state with such a blanket prohibition. Illinois state law bans open and concealed carry, and has no procedure for licensing either. The only people allowed to exercise the right to defensive carry are persons in some specially-favored categories, such as elected officials and security guards.
Oklahoma City Univ. law professor Michael O'Shea has written an amicus brief in the case, on behalf of co-authors of the forthcoming law school textbook Firearms Law and the Second Amendment (Aspen, 2012). O'shea's co-authors Nicholas Johnson (Fordham) and I both made some suggestions for the brief, but the vast majority of the work was done by O'Shea. As the brief demonstrates, McDonald and Heller make it clear that the Second Amendment protects a right to carry arms (except in "sensitive places"). The brief does not argue in favor of a particular system for licensed or unlicensed carry. Rather, our point is that a complete prohibition is facially unconstitutional; there is no need to get into the standard of review issues that would be involved in a regulation (as opposed to a complete prohibition) of the exercise of the right to bear arms.
Pennsylvania School District Cancels Kismet Performance
A FoxNews story from last week:
A Pennsylvania school district has decided not to stage a Tony Award-winning musical about a Muslim street poet after community members complained about the timing so soon after the 10th anniversary of the Sept. 11 attacks.
The Richland School District in Johnstown had planned to stage "Kismet" in February, but Superintendent Thomas Fleming said Tuesday that it was scrapped to avoid controversy....
Music director Scott Miller said the district, not far from where hijacked United Airlines Flight 93 crashed, last performed "Kismet" in 1983 — to sold-out audiences.
The play has no inappropriate content, Miller said, but he and other members of the performing arts committee decided to switch to "Oklahoma!" after hearing complaints.
"Kismet" is an Aladdin-style love story set in Baghdad more than 1,000 years ago. It won the Tony for best musical in 1954, and a Hollywood movie was made the next year....
There's no Free Speech Clause violation here — the school has the right to set its curriculum, including its theater curriculum. But it strikes me as a pretty poor decision nonetheless. What some Middle Eastern terrorists have done over the past decades shouldn't influence whether students perform plays set in a Middle Eastern culture 1000 years ago. And it's the job of our educational institutions to educate students about American principles of individual responsibility rather than cultural guilt or cultural taint.
September 25, 2011
Washington Post Takes Correct Position on Value of Drones
I think the Washington Post gets the right position on the utility and effectiveness of drones in targeted killing — including their limits. The editorial principally addresses two different things, both raised in John Brennan's summary statement of the administration's counterterrorism policy at Harvard Law School a week ago. The first is the question of whether there is a "legal geography of war," as I have put it; the administration's answer, as is mine and the Post's, is "no." The second is the question of whether drones, just as a strategic matter for the US, have knock-on bad effects that should put a damper on them.
A few days ago I criticized the eminent columnist David Ignatius and his view that the US is "addicted" to drones. His view is that the "blowback" effects of drone use can easily, and apparently already do, outweigh their utility to the United States, at least used to the extent the US does today and proposes to use them into the future — and that is so, he says, even though he concedes that they are indeed more precise and sparing of collateral damage. I criticized that quite sharply — mostly because he then stops short, without telling us what the alternative is, except to launch fewer or no attacks. After all, he doesn't seem to want to urge that we launch attacks with less precise weaponry. I guess I'd sum up Ignatius' view — I think this is fair, not snark — that he regards drones as tactically precise, strategically incontinent.
That could conceivably be true, as a matter of fact about US strategy; it can never be ruled out as a possibility. But for the reasons stated earlier, I wouldn't want to start from that position as a matter of strategy. It leaves one with a dangling question for Ignatius of whether, if one presses to know what to actually do, taken down to brass tacks it amounts to saying "don't attack," even with civilian-sparing weapons, because of generalized blowback. I agree thoroughly with the Obama administration that this is exactly the time to strike, when Al Qaeda is weakened but far from finished, in retreat but not in organizational collapse, seeking new safe havens but not well-entrenched as they were in Afghanistan. I applaud the Obama administration's ruthlessness and relentlessness.
Nonetheless, drones and targeted killing have their limits, and the Washington Post editorial is correct to note them. The virtue is that drones are not a counterinsurgency campaign on the ground. (Though one should never underestimate just how much ground level intelligence is required in order to make the apparently free-floating, death-in-the-jet-stream drone strategy successful. The necessity of that granular intelligence for drone success in targeted killing appears to me the strongest argument for the CIA's involvement in operations, but that's another discussion.) But drones and targeted killing, while taking the fight directly to the terrorists and their leadership, cannot stabilize the places where they seek haven. They can't fix Pakistan, Yemen, or Somalia. The WP's point is well-taken, but it is not an argument against the aggressive and ruthless use of drones and targeted killing (nor does the Post intend it to be). I would add, though the Post does not, that it is not obvious that there is anything that could stabilize, let alone fix, any of these places.
Ignatius, I believe, would argue, contra me and the Post's editors, that the aggressive use of drones makes it much more difficult, perhaps even impossible, to stabilize any of those places, and moreover that they are affirmatively destabilizing. Two responses. First, he might of course be right, though I doubt it. In any case, it is a counterfactual that we do not have the luxury of testing. We have to make choices today with the weapons and strategic tools available against the terrorists, and drones are the most useful in actually attacking transnational terrorists. We don't have the possibility of trying out different alternatives to see what works best and then backtracking in time to revamp things according to our experiments. As I remarked in my last post, blowback is always a consideration, but a second order strategic issue (Cf. George McClellan), and one that runs particularly to counterinsurgency, not pure counterterrorism; the Obama administration is right to try and get us out of counterinsurgency wars, and so blowback is frankly less of an issue than it might otherwise be.
Second, insofar as this is an argument to use drones less while recognizing their utility — that's fine, strategic choices involve tradeoffs. But in that case, doesn't this amount to counsel to attack less? Because the alternatives are likely to lead to greater civilian harm, and that is not a good idea. That includes the supposedly less bellicose alternatives — such as sending the local gendarmerie to attempt an arrest; is it really morally okay to insist on using the local forces, send out twenty police and easily have twenty police casualties, rather than using the force that makes sense in the circumstances, a drone strike with minimal collateral damage? Again, it is easy to say that drones are addictive — and then stop short of drawing the implication, which is either attack less or not at all, or else use less discriminating means. The alternatives are often much less discriminating even if they consist of "police" alternatives that sound conceptually less harmful — it's just law enforcement, not war! — but in actual fact are far more damaging, to themselves and others.
Church as Alternative to Jail
WKRG News reports:
Operation Restore Our Community or "ROC"...begins next week. The city judge will either let misdemenor offenders work off their sentences in jail and pay a fine or go to church every Sunday for a year.
If offenders elect church, they're allowed to pick the place of worship, but must check in weekly with the pastor and the police department. If the one-year church attendance program is completed successfully, the offender's case will be dismissed.
The trouble is that this is clearly unconstitutional, under the Establishment Clause caselaw. Both conservative and liberal Justices agree that coercion of religious practice violates the Establishment Clause. And while they disagree on what counts as coercion of religious practice (e.g., does being exposed to prayer, and socially pressured to stand and remain silent, at a high school graduation ceremony that isn't legally required, qualify as coercion?), this is not a close case: Just as it would coerce religious practice to say someone who hasn't been convicted of a crime, "go to church or we'll send you to jail," so it coerces religious practice to say someone who has been convicted of a crime, "go to church or you'll stay in jail." Police chief Mike Rowland is quoted as saying the program "doesn't violate separation of church and state issues because it allows the offender to choose church or jail ... and the church of their choice," but that's a parody of the concept of "choice" — again, one might as well say that a law that tells everyone, "go to church every week or you'll go to jail" is constitutional because it lets citizens "choose" whether to go to church or to jail.
Some constitutional rights, to be sure, are largely lost for the duration of one's criminal sentence — free speech rights, the right to bear arms (which is often limited even beyond one's sentence), the normal limits on searches and seizures, and such. But the Establishment Clause right to be free from coercion of religious practice remains.
Indeed, many courts have held that letting inmates get extra privileges or reduce their sentences by going to Alcoholics Anonymous violates the Establishment Clause (see, among many other cases, Griffin v. Coughlin (N.Y. 1996)), because Alcoholics Anonymous has a religious dimension. It's even clearer that letting people avoid jail by going to church violates the Establishment Clause. Indeed, the Mississippi Supreme Court has recently held that a judge's decision to order people to attend church as a condition of bail is not just unconstitutional, but merits a 30-day suspension from the bench.
The practice would also violates the Alabama Constitution, which expressly provides (art. I, § 3) that, among other things, "no one shall be compelled by law to attend any place of worship." Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.
Why Leveraged Short Funds are a Poor Long-Term Investment
I alluded to this in a post about shorting the Euro, and the comments by readers had misinformation, so I thought I'd clarify.
As I understand it, I typical leveraged short ETF fund is structured so that its return is based on the percentage daily increase or decrease in the price of the underlying securities.
So let's say you invest $100 in a "triple short" fund that focuses on the Panamanian stock market. Let's examine two scenarios.
The day you buy the fund, the market goes up 20%, which means your holdings decline 60%, which means your holdings are now worth forty dollars. The next day, the market declines 16.67%, losing the previous days gains, which means that your holdings rise 50% to sixty dollars. Uggh! The market has been neutral after a two-day period but you have lost forty dollars.
But let's say the reverse happens. On day one, the market goes down 20%, so you now have $160. But the next day, the market regains its losses, rising 25%. That means that your holdings fall 75%, and are now worth only forty dollars. Double Uggh!
In short, if you hold long-term and the market simply stays steady over time despite daily ups and downs, you lose your shirt (albeit not as quickly as in my example with dramatic daily moves). This also means that even if your short bet is correct, and the value of the underlying securities falls, you will at best not make nearly as much money as you might think, and you might even take a loss. Which is why professional traders know what they are doing only use these funds for day trading. [I, on the other hand, learned this the hard way.]
UPDATE: Here's an academic paper on the subject.
A Critical Review of Gilbert Achcar, The Arabs and the Holocaust
Writing a good book review of a bad book is always a challenge, and I always admire those who do so successfully. So here is a very well-done review by Matthias Kuntzel and Colin Reade of "The Arabs and the Holocaust." One quick excerpt:
Achcar even manages to find excuses for the dissemination [in the Arab world] of Hitler's textbook for the Holocaust, the so-called Protocols of the Elders of Zion. "There is a qualitative difference," he claims, "between a delusive, anti-Semitic approach that believes, or seeks to make others believe, that the leaders of the Jews of the 'Jewish race' are conspiring against the rest of the world, and an equally delusive but not racist [!!!-DB] approach that seeks consolation by mobilizing a conspiracy theory [that Jewish leaders are conspiring against the rest of the world!–DB] to explain Zionist successes." And that's not all: he even deplores the failure of other authors to "make the necessary distinction between the anti-Semitic and anti-Zionist reading of the Russian forgery."Given that the Protocols constantly talk not about Zionists, but about "Jewry," which, the Protocols claim, is seeking to take control of the world, Achcar's attempt to defend Islamist propagators of the Protocols from the charge of antisemitism is truly bizarre. One might just as well recommend an "anti-Zionist reading" of Adolf Hitler's Mein Kampf, another book with a wide circulation in the Middle East, and one which has an explicitly anti-Zionist orientation.
One could easily dismiss Achcar's book as typical fringe claptrap, but for the fact that Kuntzel and Reade report that it's being taken seriously in mainstream circles, in part because, as they acknowledge, there is some serious historical work mixed in with the vociferous efforts to justify, minimize, and sanitize anti-Semitism when the perpetrators are Achcar's ideological fellow-travelers.
September 24, 2011
And
Below in full, The Gospel According to Luke, Chapter 2, King James Version. As Christopher Hitchens once observed, Shakespeare and the KJV are the epicenters of the English language. And a famous Bible translator, whose name escapes me now (and who did a highly regarded translation of Genesis some years ago), observed about the language of the King James Bible, the use of the repeated "ands" expresses a form of rhetorical authority because each phrase is its own sentence. He contrasted it with the rhetorically much weaker translations in contemporary English; by using "which" constructions rather than "and," the contemporary translations weaken the declarative directness of the statements. Orwell once said something very much like that in one of his essays.
Look at the italicized section, the most famous part of the Nativity story. The successive "Ands" move the narrative forward; the repetition gives it forcefulness and power. The two "which" clauses are also made more prominent by being embedded in the series of declarative "ands." This is not to recommend writing prose today as a series of sentences beginning with "And." But it is to point out that sentences that begin with a conjunction like "And" are not infrequently written that way because, by avoiding the "which" alternative, they increase the power of the phrasing by emphasizing declarative directness, while still connecting to the previous sentence. (If you don't see the increased narrative punch from the repeated "Ands," try reading it aloud; the repeated "ands" serve a function that is well beyond simply a logical signal.) (Comments are open on this post.)
1 And it came to pass in those days, that there went out a decree from Caesar Augustus, that all the world should be taxed.
2 (And this taxing was first made when Cyrenius was governor of Syria.)
3 And all went to be taxed, every one into his own city.
4 And Joseph also went up from Galilee, out of the city of Nazareth, into Judaea, unto the city of David, which is called Bethlehem; (because he was of the house and lineage of David:)
5 To be taxed with Mary his espoused wife, being great with child.
6 And so it was, that, while they were there, the days were accomplished that she should be delivered.
7 And she brought forth her firstborn son, and wrapped him in swaddling clothes, and laid him in a manger; because there was no room for them in the inn.
8 And there were in the same country shepherds abiding in the field, keeping watch over their flock by night.
9 And, lo, the angel of the Lord came upon them, and the glory of the Lord shone round about them: and they were sore afraid.
10 And the angel said unto them, Fear not: for, behold, I bring you good tidings of great joy, which shall be to all people.
11 For unto you is born this day in the city of David a Saviour, which is Christ the Lord.
12 And this shall be a sign unto you; Ye shall find the babe wrapped in swaddling clothes, lying in a manger.
13 And suddenly there was with the angel a multitude of the heavenly host praising God, and saying,
14 Glory to God in the highest, and on earth peace, good will toward men.
15 And it came to pass, as the angels were gone away from them into heaven, the shepherds said one to another, Let us now go even unto Bethlehem, and see this thing which is come to pass, which the Lord hath made known unto us.
16 And they came with haste, and found Mary, and Joseph, and the babe lying in a manger.
17 And when they had seen it, they made known abroad the saying which was told them concerning this child.
18 And all they that heard it wondered at those things which were told them by the shepherds.
19 But Mary kept all these things, and pondered [them] in her heart.
20 And the shepherds returned, glorifying and praising God for all the things that they had heard and seen, as it was told unto them.
21 And when eight days were accomplished for the circumcising of the child, his name was called JESUS, which was so named of the angel before he was conceived in the womb.
22 And when the days of her purification according to the law of Moses were accomplished, they brought him to Jerusalem, to present him to the Lord;
23 (As it is written in the law of the Lord, Every male that openeth the womb shall be called holy to the Lord;)
24 And to offer a sacrifice according to that which is said in the law of the Lord, A pair of turtledoves, or two young pigeons.
25 And, behold, there was a man in Jerusalem, whose name [was] Simeon; and the same man was just and devout, waiting for the consolation of Israel: and the Holy Ghost was upon him.
26 And it was revealed unto him by the Holy Ghost, that he should not see death, before he had seen the Lord's Christ.
27 And he came by the Spirit into the temple: and when the parents brought in the child Jesus, to do for him after the custom of the law,
28 Then took he him up in his arms, and blessed God, and said,
29 Lord, now lettest thou thy servant depart in peace, according to thy word:
30 For mine eyes have seen thy salvation,
31 Which thou hast prepared before the face of all people;
32 A light to lighten the Gentiles, and the glory of thy people Israel.
33 And Joseph and his mother marvelled at those things which were spoken of him.
34 And Simeon blessed them, and said unto Mary his mother, Behold, this [child] is set for the fall and rising again of many in Israel; and for a sign which shall be spoken against;
35 (Yea, a sword shall pierce through thy own soul also,) that the thoughts of many hearts may be revealed.
36 And there was one Anna, a prophetess, the daughter of Phanuel, of the tribe of Aser: she was of a great age, and had lived with an husband seven years from her virginity;
37 And she [was] a widow of about fourscore and four years, which departed not from the temple, but served [God] with fastings and prayers night and day.
38 And she coming in that instant gave thanks likewise unto the Lord, and spake of him to all them that looked for redemption in Jerusalem.
39 And when they had performed all things according to the law of the Lord, they returned into Galilee, to their own city Nazareth.
40 And the child grew, and waxed strong in spirit, filled with wisdom: and the grace of God was upon him.
41 Now his parents went to Jerusalem every year at the feast of the passover.
42 And when he was twelve years old, they went up to Jerusalem after the custom of the feast.
43 And when they had fulfilled the days, as they returned, the child Jesus tarried behind in Jerusalem; and Joseph and his mother knew not [of it].
44 But they, supposing him to have been in the company, went a day's journey; and they sought him among [their] kinsfolk and acquaintance.
45 And when they found him not, they turned back again to Jerusalem, seeking him.
46 And it came to pass, that after three days they found him in the temple, sitting in the midst of the doctors, both hearing them, and asking them questions.
47 And all that heard him were astonished at his understanding and answers.
48 And when they saw him, they were amazed: and his mother said unto him, Son, why hast thou thus dealt with us? behold, thy father and I have sought thee sorrowing.
49 And he said unto them, How is it that ye sought me? wist ye not that I must be about my Father's business?
50 And they understood not the saying which he spake unto them.
51 And he went down with them, and came to Nazareth, and was subject unto them: but his mother kept all these sayings in her heart.
52 And Jesus increased in wisdom and stature, and in favour with God and man.
The "Rules of English"
In response to my post defending sentences that start with "and" and "but," commenter ptt writes, "Or they're called conjunctions for a reason. EV should create a new tag: Rules of English I Don't Like."
Actually, my claim in the post was that there is no rule of English against starting sentences with conjunctions. Educated writers at the highest levels routinely start sentences with conjunctions (I gave some examples in the post, but we can find many more). And even if one looks at Rules that are set by ostensible Authorities (I don't, but of course prescriptivists do), I'm unaware of any consensus of authority in favor of a rule prohibiting conjunctions at the start of sentences. The commenter certainly doesn't point to one.
The commenter does seem to appeal to logic, by apparently suggesting, in his first sentence, that conjunctions must connect together two parts of a sentence. But like many appeals to supposed logic when it comes to language, this appeal assumes the conclusion. The term "conjunction" does suggest that a word is connecting two things, but it doesn't tell us that those two things must be parts of the same sentence. Why can't a conjunction serve as a transition that logically connects two consecutive sentences?
So if you want to argue that some usage is wrong because you're a prescriptivist and it violates some authoritative prescription, that's fine: You won't persuade descriptivists (except insofar as the prescription accurately captures common usage), but you might persuade other prescriptivists. But you still need to actually point to credible authorities that issue such a prescription, rather than just asserting that some usage is a violation of the "Rules of English" as you personally believe those rules to be.
September 23, 2011
The Subjects of the Constitution — Final Thoughts
This week, I have argued that the great overlooked question in constitutional law is the who question: who is bound by each clause and so who may violate it? These posts have attempted to answer this question for many of the most important clauses. They have also attempted to sketch some of the implications of the answers. Many more answers, and many more implications, may be found in my Stanford Law Review articles, The Subjects of the Constitution and The Objects of the Constitution.
Both the answers and the implications are contestable (and many of the comments have contested them!). But the question, at least, has already started to take root (at least in the Third Circuit and the Seventh Circuit). And it turns out that once you start asking, it is difficult to stop.
So, to the law students reading this blog, I leave this one parting thought. When your professor tells you that "a statute violates the constitution" — either "facially" or "as-applied" — just ask him what exactly he means. If the Constitution has been violated, then someone must have violated it, at some particular moment in time. Ask your professor: who violated the Constitution and when? The discussion that follows may change the way that you think about constitutional law.
Many thanks to Eugene for the invitation, to Randy for the generous review, and to the Conspiracy for your gracious hospitality.
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