Eugene Volokh's Blog, page 2716
September 11, 2011
Advice to Faculty Candidates: Be Wary of Advice from Your References
A wildly disproportionate percentage of law school faculty graduate from a very few top law schools, especially Harvard and Yale. Not surprisingly, graduates of these schools turn to their mentors and references for advice on how to navigate the teaching market.
Some of these professors give sound advice. But the very fact that these folks wound up at the very top schools means that their experiences were exceptional, and they may not have a great sense of the overall market. In addition, for obvious reasons professors at these schools are inclined to think that the market is much more of a meritocracy than it actually is (which isn't to say that merit doesn't play a huge role in hiring, just that many other factors also play a role; it's not that the top schools don't hire meritorious candidates, it's that meritorious candidates don't always get hired by the top schools, or, in some cases, get any jobs at all).
Here are a few examples of terrible advice that I've heard students get from their references at top ten law schools:
(1) Go on the job market directly out of your clerkship, with no practical legal experience (and no Ph.D.) because it will signal how serious you are about academia. (This may have worked in the old days, but ONLY if you had a Supreme Court clerkship, which the individual in question did not.)
(2) Don't bother going into the legal academy unless you can get a job at a top fifteen law school, otherwise you are better off working at a law firm; no one pays attention to what people at lower-ranked law schools have to say, so you will just get frustrated if you wind up at one of them. (Actually, being a law professor at any law school with a good academic environment is one of the best jobs in the world; people do move up; and people do pay attention to good scholarship emanating from outside the top 15).
(3) Prominently display your (otherwise irrelevant) ideological credentials (in this case, officership in a Federalist Society student chapter) on your teaching applications. (Why? Why? Why?)
(4) Sending out a law review article? Start with the top 20 law reviews, and see what happens. (That works if you're teaching at Harvard or Yale, not if you aren't even a professor yet.)
(5) Attended a lower-ranked school first year of law school, and then transferred? If anyone asks about it, be dismissive of your original school, to show that you always knew you were better than that. (Any committee you interview with will have at least one member who has friends at that school and will be insulted for them, plus word will get back to your original school where you will have now lost your friends.)
I could go on. But the basic point is, you should double-check any advice you get from your elite-law-school references with professors teaching at less lofty schools, especially ones who have served on appointments committees. Even if you only have a passing acquaintance with such individuals, they are usually quite willing to spend a few minutes to help out future academics.
September 10, 2011
Free Exercise Clause Still Doesn't Protect a Right to Engage in Polygamy
Mekbib Adgeh, who filed a Complaint / My Legal Right to Have More Than One Wife, has now been rebuffed by the Tenth Circuit, in Adgeh v. Oklahoma, which affirmed the District Court's rejection of the claim. It's an interesting question whether the Oklahoma Religious Freedom Restoration Act might provide the religious exemption that Adgeh seeks, and that the Free Exercise Clause doesn't provide; but that is a story for another day and another court (presumably an Oklahoma state court), should Adgeh choose to file suit in that court.
There is also the question whether, given Lawrence v. Texas, a state may outlaw plural religious marriages where the parties don't try to make any legal claims based on those religious ceremonies; for more on that, see the majority and the dissent in State v. Holm (Utah 2006). And there is the question of who, if anyone, would want to marry Mr. Adgeh, given the reasoning in his Complaint.
Seventh Circuit Panel Finds that Jordanian Government Does Little About Honor Killing
The decision is Sarhan v. Holder (Sept. 2, 2011). An excerpt:
This petition presents the question whether a woman who will fall victim to an "honor killing" at the hands of a family member is entitled to relief either under the Convention Against Torture (CAT) or under the procedure known as "withholding of removal." For the latter, she must prove that she is a member of a "particular social group" within the meaning of the Immigration and Nationality Act (INA), 8 U.S.C. § 1231(b)(3). We hold that she has successfully established that she is. In addition, for purposes of both the CAT and withholding, we find that the decision of the Board of Immigration Appeals (the Board) finding that she has not shown a clear probability that she will be killed on account of her membership in that social group if she is returned to Jordan is not supported by substantial evidence. The Board failed to consider significant evidence that she presented that supports a finding that the Jordanian government is currently unable or unwilling to protect her....
Nuha Sarhan is Sarhan and Disi's sister-in-law (she is married to Sarhan's brother). [Sarhan and his wife Disi are the petitioners in this case. –EV] There is a history of animosity between Nuha and her in-laws.... [Nuha] started a rumor that Disi had committed adultery. Nuha told this story to her mother, who took the news to Amman, Jordan, and there informed Disi's family — including Disi's brother, Besem Disi — that Disi had been unfaithful and had dishonored the family. Disi first heard about these false accusations in 2003, when Sarhan's parents visited the United States and told her that these rumors were swirling in Jordan. Neither Sarhan nor the rest of his family believe that anything Nuha has said is true, but Disi's brother Besem is convinced that Disi has committed adultery and has ruined the family's reputation. Sarhan's parents told Disi during their visit that Besem planned to kill her when she returned to Jordan in order to restore the family's honor....
Besem has long been obsessed with family honor, as defined by religious and social norms in Jordan, and he cannot be deterred from murdering his sister in response to the rumors Nuha started. Besem's persistence is perplexing given the evidence that Nuha has manufactured scandals similar to this one in the past. Before sullying Disi's name, Nuha once accused Sarhan's mother (her own mother-in-law) of infidelity; this slur caused Sarhan's father to attempt an honor killing against his wife. Thankfully, Sarhan and his brothers intervened to save their mother's life, and the family later discovered that Nuha had made the whole thing up. Nonetheless, Besem is resolute, because he apparently believes that the rumors alone have harmed his reputation in the community enough to warrant killing Disi — the truth no longer matters. In 2006, Besem visited Disi in Chicago and told her that he planned to murder her when she returned to Jordan. In the proceedings in the Immigration Court, Disi testified that Besem said, "[W]hen you come back to Jordan, I'm going to kill you. Here [in the United States], I can't do, because there is a penalty for this, but in Jordan, nobody can do for another killing." Sarhan and his father have corroborated the sincerity of Besem's threat....
This brings us to the role of the Jordanian government. "Persecution is something a government does, either directly or by abetting (and thus becoming responsible for) private discrimination by throwing in its lot with the deeds or by providing protection so ineffectual that it becomes a sensible inference that the government sponsors the misconduct." ... After reviewing the evidence of the Jordanian government's treatment of honor crimes, we conclude that the record permits no conclusion other than that the government is ineffective when it comes to providing protection to women whose behavior places them in the group who are threatened with honor killings....
According to the State Department's 2007 report, during that year there were "17 reported instances of honor crimes that resulted in the death of the victim, although activists reported that additional unreported cases likely occurred. A November [2007] UN Development Fund for Women study stated that 25 percent of honor crime victims in the country were killed merely because they were suspected of involvement in an illicit relationship." U.S. Dep't of State, Country Report on Human Rights Practices for Jordan (2007). At oral argument, the government called our attention to the fact that this amounts to 17 honor killings during a one-year period in a country with a population of 6 million. Apparently it meant to suggest that the low number of honor killings means it is not much of a problem. We do not see the logic; a common (though not inevitable) feature of persecution is that the victims come from minority populations. That there are few publicly recorded instances of killings within a particular social group does not mean that the U.S. government is free to remove someone who has experienced a direct and credible threat of such a killing. Nor does it address the twin problems of underreporting and measures short of killing (such as mutilation) that take place....
We find similarly unconvincing the unadorned fact that all 17 honor crimes committed during 2007 were prosecuted. Prosecution at times is an empty gesture. The sentences given out in Jordan for honor crimes show that prosecutions of honor crimes result in little more than a slap on the wrist. The State Department put it this way: "While the defendants are almost always universally found guilty, defendants often received token sentences, with the charges often reduced from premeditated murder to manslaughter. Many men convicted of an honor crime received minimal prison sentences, usually no more than six months." A six-month sentence for this kind of premeditated murder, when all other murders are punished much more severely, sends a strong social message of toleration for the practice....
For a Ninth Circuit case from earlier this year, reaching the same result, see this post.
"Saved by the Militia": My NRO Column After 9/11
On this tenth anniversary of 9/11, I am in New York, staying at a hotel in Time Square. On the train to the City, dogs swept the train in Philly, and another K-9 team boarded in Newark to ride to Penn Station. Penn Station has a detachment of national guard with automatic weapons. Security here in Time Square is intense. All cars approaching the square are given a police lookover at check points. Trucks are given especially close attention. My guess is that, if there were any bad guys heading towards these targets, they turned tail. They are fearless only when attacking unarmed and defenseless people. But the police and military who are guarding us here tonight, for which I am grateful, cannot be everywhere at all times.
With this in mind, I thought it would be appropriate to mark this day with one of my earliest op-eds on National Review Online — before I joined the Conspiracy — that I published on 9/18/2001:
Saved by the Militia: Arming an Army Against Terrorism.By Randy E. Barnett
September 18, 2001 11:30 a.m.A well-regulated militia being essential to the security of a free state. . . ." The next time someone tells you that the militia referred to in the Second Amendment has been "superceded" by the National Guard, ask them who it was that prevented United Airlines Flight 93 from reaching its target. The National Guard? The regular Army? The D.C. Police Department? None of these had a presence on Flight 93 because, in a free society, professional law-enforcement and military personnel cannot be everywhere. Terrorists and criminals are well aware of this — indeed, they count on it. Who is everywhere? The people the Founders referred to as the "general militia." Cell-phone calls from the plane have now revealed that it was members of the general militia, not organized law enforcement, who successfully prevented Flight 93 from reaching its intended target at the cost of their own lives.
The characterization of these heroes as members of the militia is not just the opinion of one law professor. It is clearly stated in Federal statutes. Perhaps you will not believe me unless I quote Section 311 of US Code Title 10, entitled, "Militia: composition and classes" in its entirety (with emphases added):
"(a) The militia of the United States consists of all able-bodied males at least 17 years of age and, except as provided in section 313 of title 32, under 45 years of age who are, or who have made a declaration of intention to become, citizens of the United States and of female citizens of the United States who are members of the National Guard.(b) The classes of the militia are —
(1) the organized militia, which consists of the National Guard and the Naval Militia; and
(2) the unorganized militia, which consists of the members of the militia who are not members of the National Guard or the Naval Militia."
This is not to score political points at a moment of great tragedy, though had the murderers on these four airplanes been armed with guns rather than knives, reminders of this fact would never end. Rather, that it was militia members who saved whatever was the terrorists' target — whether the White House or the Capitol — at the cost of their lives points in the direction of practical steps — in some cases the only practical steps — to reduce the damage cause by any future attacks.
An excellent beginning was provided by Dave Kopel and David Petteys in their NRO column "Making the Air Safe for Terror." Whether or not their specific recommendations are correct, they are too important to be ignored and they are not the only persons to reach similar conclusions about the need for effective self-defense. Refusing to discuss what measures really worked, what really failed, and what is likely to really work in future attacks — on airplanes and in other public spaces — for reasons of political correctness would be unconscionable. And we need to place this discussion in its larger constitutional context.
Asking all of us if we packed our own bags did not stop this attack. X-rays of all carry-on baggage did not stop this attack (though it may well have confined the attackers to using knives). And preventing us from using e-tickets or checking our bags at the street (for how long?) would neither have stopped this nor any future attack. All these new "security" proposals will merely inconvenience millions of citizens driving them away from air travel and seriously harming our economy and our freedom. As others have noted, it would be a victory for these murderers rather than an effective way to stop them in the future. A way around them will always be open to determined mass murderers. More importantly, none bear any relation to the attack that actually occurred on September 11th.
Ask yourself every time you hear a proposal for increased "security": Would have in any way have averted the disaster that actually happened? Will it avert a future suicide attack on the public by other new and different means? Any realistic response to what happened and is likely to happen in the future must acknowledge that, when the next moment of truth arrives in whatever form, calling 911 will not work. Training our youth to be helpless in the face of an attack, avoiding violence at all costs will not work. There will always be foreign and domestic wolves to prey on the sheep we raise. And the next attack is unlikely to take the same form as the ones we just experienced. We must adopt measures that promise some relief in circumstances we cannot now imagine.
Here is the cold hard fact of the matter that will be evaded and denied but which must never be forgotten in these discussions: Often — whether on an airplane, subway, cruise ship, or in a high school — only self defense by the "unorganized militia" will be available when domestic or foreign terrorists chose their next moment of murder. And here is the public-policy implication of this fact: It would be better if the militia were more prepared to act when it is needed.
If the general militia is now "unorganized" and neutered — if it is not well-regulated — whose fault is it? Article I of the Constitution gives Congress full power "to provide for organizing, arming, and disciplining the Militia." The Second Amendment was included in the Bill of Rights in large part because many feared that Congress would neglect the militia (as it has) and, because Congress could not be forced by any constitutional provision to preserve the militia, the only practical means of ensuring its continued existed was to protect the right of individual militia members to keep and bear their own private arms. Nevertheless, it remains the responsibility of Congress to see to it that the general militia is "well-regulated."
A well-regulated militia does not require a draft or any compulsory training. Nor, as Alexander Hamilton recognized, need training be universal. "To attempt such a thing which would abridge the mass of labor and industry to so considerable extent, would be unwise," he wrote in Federalist 29, "and the experiment, if made, could not succeed, because it would not long be endured." But Congress has the constitutional power to create training programs in effective self-defense including training in small arms — marksmanship, tactics, and gun safety — for any American citizen who volunteers. Any guess how many millions would take weapons training at government expense or even for a modest fee if generally offered?
Rather than provide for training and encouraging persons to be able to defend themselves — and to exercise their training responsibly — powerful lobbying groups have and will continue to advocate passivity and disarmament. The vociferous anti-self-defense, anti-gun crusaders of the past decades will not give up now. Instead they will shift our focus to restrictions on American liberties that will be ineffective against future attacks. Friday on Fox, Democratic Minority Leader Dick Gephart was asked whether additional means we have previously eschewed should be employed to capture and combat foreign terrorists. His reply was appalling. Now was the time, he replied, to consider adopting a national identity card and that we would have to consider how much information such "smart" cards would contain.
Rather than make war on the American people and their liberties, however, Congress should be looking for ways to empower them to protect themselves when warranted. The Founders knew — and put in the form of a written guarantee — the proposition that the individual right to keep and bear arms was the principal means of preserving a militia that was "essential," in a free state, to provide personal and collective self-defense against criminals of all stripes, both domestic and foreign.
A renewed commitment to a well-regulated militia would not be a panacea for crime and terrorism, but neither will any other course of action now being recommended or adopted. We have long been told that, in a modern world, the militia is obsolete. Put aside the fact that the importance of the militia to a "the security of a free state" is hardwired into the text of the Constitution. The events of this week have shown that the militia is far from obsolete in a world where war is waged by cells as well as states. It is long past time we heeded the words of the Founders and end the systematic effort to disarm Americans. Now is also the time to consider what it would take in practical terms to well-regulate the now-unorganized militia, so no criminal will feel completely secure when confronting one or more of its members.
Prohibiting Employment Discrimination Against the Unemployed
Charles Lane seizes on one under-discussed element of President Obama's proposed "American Jobs Act":
"Prohibiting employers from discriminating against unemployed workers when hiring."
That's right, the White House (and some members of Congress) want to make it illegal to refuse to hire someone based on their current employment status, and subject employers to litigation if they are alleged to have done so. The President says it "makes absolutely no sense" not to hire someone who has been out of work for an extended period of time. Lane disagrees, and thinks the new prohibition is a lousy idea.
I can think of a couple of reasons why it would make sense. Companies may want people familiar with the latest trends and conditions in their industry, so that they don't have to spend money training them up. Is it irrational for a hospital to prefer a nurse from their crosstown rival over a nurse who took five years off and is trying to get back into the field? Some firms may find that narrowing the field of potential hires in advance makes the hiring process more efficient.
This may or may not be a sensible calculation for any particular business. But I'm not prepared to second-guess them or assign malicious intent without a lot more specific information. In any case, if a firm that refuses to consider the unemployed is wrong about the costs and benefits of doing so, they'll lose business to competitors that recruit differently. The market will punish them swiftly and effectively. . . .
Subjecting companies to the risk of job-discrimination litigation is justifiable in the case of pervasive, historically rooted evils such as race or gender bias. But burdening the private sector for this dubious new purpose, in these difficult times, would be a big mistake.
Let's accept, for the sake of argument, that many employers discriminate against the unemployed in hiring decisions. That doesn't mean a legal response is required. However much discrimination against the unemployed exists in labor markets, there is no reason to believe it is as pervasive and intractable as was, say, racial discrimination. Among other things there are no formal or informal government sanctions against those who hire the unemployed, no risks of boycotts, and no bands of bigoted thugs threatening to punish those who do not toe the line. Further, making discrimination against the unemployed illegal and unleashing plaintiffs' lawyers on private firms hardly seems like an effective solution. To the contrary, it would give private firms yet another excuse to avoid hiring in the first place.
Doesn't Anyone in the White House Know History?
Some commentators have had fun pointing out the President's inaccurate claim about Abraham Lincoln founding the Republican Party in his address to the Joint Session of Congress. Specifically, the President said:
We all remember Abraham Lincoln as the leader who saved our Union. Founder of the Republican Party. But in the middle of a civil war, he was also a leader who looked to the future.
Abraham Lincoln may have been the first Republican President, but he was not even the first Republican candidate for President (that was John Fremont in 1856), let alone a "founder" of the party. The Republican Party was founded in 1854, and Lincoln had little to do with it. Indeed, in 1854 he ran for the U.S. Senate as a candidate of the Whig Party. By most accounts, he did not join the party until two years later.
Some have assumed that this must have been the result of the President's decision to offer some impromptu remarks and go "off-teleprompter." After all, a speech of this import would be thoroughly vetted within the White House to prevent such basic mistake. This could also explain why some transcripts of the speech (such as this one) omit the error. The only problem is that the official version on the White House website includes the erroneous claim. This must come as a great relief to those who think only Republican politicians are capable of flubbing their history, as the mistake can be blamed on some low-level staffer or speechwriter, rather than the President.
UPDATE: On the other hand, the Lincoln-as-GOP-founder claim was apparently missing from the prepared text distributed to journalists.
SECOND UPDATE: Time was quick to correct this error, when made by someone else.
September 9, 2011
Woman Billed for Body Cavity Search (a Search That Discovered No Contraband)
According to the Las Cruces Sun-News, "A Las Cruces woman has been charged $1,122 by a local hospital for a forcible body cavity search ordered by the Metro Narcotics Agency that did not turn up any illegal substances." (The search was conducted pursuant to a search warrant, based on what the police said was "'credible information from a reliable source' that the woman was concealing up to an ounce of heroin"; for more details, see here.)
Fortunately, a story a couple of days later relates that the county did indeed pay — which I think they'd have to do, since I see no legal basis for holding the woman responsible for a procedure that she didn't seek and didn't benefit from. The involvement of a lawyer, though, suggests that it took some work and expense to get the county to pay, work and expense that the woman shouldn't have been put through (even assuming the search itself was justified).
Walsh on Fourth Circuit Mandate Ruling
Over at WalshLaw, Richmond lawprof Kevin C. Walsh has lots of interesting blogging about the Fourth Circuit's mandate decision.
Decision Invalidating Michigan Civil Rights Initiative Goes En Banc
Via Ed Whelan comes news that the U.S. Court of Appeals for the Sixth Circuit has voted to rehear Coalition to Defend Affirmative Action v. Regents of the University of Michigan en banc — something I suggested would happen. In this case, a divided panel held that Michigan's Proposal 2, aka the "Michigan Civil Rights Initiative," was unconstitutional. The initiative, which voters approved, provides that the state, including state educational institutions, may not "discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting." As I explained in my prior post about this case:
Judge Cole, joined by Judge Daughtrey, held that the proposal is unconstitutional under the Equal Protection Clause. Specifically, the initiative is invalid under Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969) because it "unconstitutionally alters Michigan's political structure by impermissibly burdening racial minorities." Judge Gibbons dissented.
The outcome of this case will be interesting, particularly because the Sixth Circuit remains closely divided along ideological lines. Moreover, as Whelan reports, two members of the court, Judges McKeague and Kethledge — two Bush appointees from Michigan — have recused themselves from the case. I'll also venture a further prediction: If the original panel is upheld, this case will go to the Supreme Court, where Justice Kennedy will decide the Michigan Civil Rights Initiative's fate.
UPDATE: The Detroit Free Press reports here.
How Black Women would help themselves and the black community by more frequently marrying men of other races
This is the last post related to my recently published book, Is Marriage for White People?.
Black women are the least likely of any minority group population to marry across racial lines. Only about 1 in 20 black women is married to a man of a different race. Black women are segregated in their relationships in part because they are committed to forming relationships with black men. However laudable that commitment, it is counterproductive and undermines the black family that women seek to bolster.
Black women confront a paucity of suitable male partners and thus either remain unmarried in unprecedented numbers or marry a less educated and/or lower earning man, also to an unprecedented extent. Neither of these outcomes is optimal. Most black women, like women of all races, want to marry. And when professional women partner with working class men, problems are likely to result.
Black women would benefit themselves by more frequently marrying across the race line. These women would not only have more relationships, they'd have better relationships too. In marrying down rather than out, black women choose a partner of the same race but a different class. Many college-educated black women would do better to find a man of the same class, even if a different race. While compatibility may be a matter of both race and class, it is clearly that case that black women's marriage patterns reflect too much emphasis of race and not enough of class.
For black women to cross the race line would produce another, broader benefit as well. By exiting the segregated African American relationship market, black women would help to lessen the disproportionate relationship power that black men wield as a result of their scarcity, and which depresses the marriage rates of even middle class African American couples.
Ironically, one way for black women to prompt more black men to marry them would be for more black women to expand their options to include men of other races.
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