Eugene Volokh's Blog, page 2752
July 11, 2011
Language Alert: 'Refute' Does Not Mean 'Deny'
The article itself is interesting and worth reading for its substance — Defense Secretary Panetta on Al Qaeda, strategy, and Iraq. Though it does make a bit of a mountain out of a molehill — Panetta seems to have been looking to find ways to tell troops still facing dangers in Iraq that theirs is an important mission and related to 9/11 and defense of the United States, not make grand policy statements. A little application of the principle of rhetorical charity is in order, meaning here, don't get your knickers in a twist over-interpreting something.
That said, however, the Inner Pedant can't help but call the attention of the copy editors at the Washington Post to this sentence opening the article:
Defense Secretary Leon Panetta on Monday appeared to justify the U.S. invasion of Iraq as part of the war against al-Qaeda, an argument controversially made by the Bush administration but refuted by President Obama and many Democrats.
It is unlikely that the reporter, Craig Whitlock, actually meant "refuted by" — if he did, I suppose we'd have to have a discussion instead about editorializing in a news story. But he almost certainly meant "denied." This is not mere pedantry — if usage is evolving this way, there is a loss of important meaning. Refute has a specific meaning that implies far more as a logical or evidentiary proposition than deny, and it would be unfortunate if the two terms gradually became conflated.
Update: Thinking about it at the gym — 20% O2, granted — I thought if I had been writing or editing the article, I probably would have preferred "contested" to denied. I don't think "repudiated" quite fits, because it carries at least a suggestion, perhaps ambiguous but a suggestion, that Obama and many Democrats had once held this position and then repudiated it.
Debate on Libertarianism and Foreign Policy — Reposted
This Wednesday at 7 PM, I will be debating George Mason University economist and prominent blogger Bryan Caplan on libertarianism and foreign policy. The debate will take place at George Mason Law School, 3301 Fairfax Dr., Arlington, VA, in Room 221. It is near the Virginia Square Orange Line Metro stop.
Bryan summarized his case for "pacifism" (by which he means opposition to all warfare, but not all violence of any kind) in this post. I outlined my own far less dovish view here.
Bryan and I agree on the vast majority of other issues — not only in terms of bottom-line policy preferences, but in the way we get to those conclusions. Bryan's book The Myth of the Rational Voter even made my list of fifteen books that influenced me the most. So it's both interesting and thought-provoking that we disagree so much about this question, one that tends to divide libertarians among themselves, just as it also often divides liberals and conservatives. It should be a fun debate, and hopefully an enlightening one.
NOTE: I am reposting this announcement for those who might have missed it when I first posted it a couple weeks ago. I apologize for the duplication.
GOP and Israel
A piece today by the Washington Post's Glenn Kessler on GOP presidential candidate's rhetoric on Israel starts with a mistaken premise: that the candidates are taking a hard-line pro-Israel position in the hopes of winning Jewish votes. There are very few Jewish Republican primary voters in Republican–the only voters who matter right now, and Jewish donors are unlikely to be terribly impressed by a few throwaway lines in campaign speeches.
What Kessler misses is that support for issue has become a defining issue among American conservatives. One can see this in the polls–85% of Republicans support Israel over the Palestinians, compared to 48% of Democrats, 80–90% of Republicans have a favorable views of Israel compared to 40–50% of Democrats–and in subtle and not-so-subtle cues like Sarah Palin, whose support from Jews is miniscule and is almost certain to remain so, wearing a U.S.-Israel friendship pin. I've also noticed lately pro-Israel bumper stickers on vehicles that are almost certainly owned by non-Jewish conservatives (pickup trucks with NRA bumper stickers, minivans with Christian fish).
So GOP candidates are bashing Obama on Israel for the same reason they bash him on abortion, health care, spending, and so on–it appeals to their conservative constituents.
July 10, 2011
Tribe Responds to Treasury
On Balkinization, Harvard law professor Laurence Tribe responds to the Treasury Department's suggestion that the Treasury Secretary had never suggested the executive branch could unilaterally borrow money to avoid default.
Cert. grant in Millender v. LA: Qualified immunity for an unconstitutional general warrant to seize firearms?
The Supreme Court recently granted certiorari in Millender v. Los Angeles. Here are the background facts: Bowen shoots at his ex-girlfriend with a sawed-off shotgun. The police obtain a search warrant for the home of Bowen's 73-year-old former foster mother. The warrant application does not disclose that Bowen last lived with his foster mother 15 years ago. (The girlfriend suggested to the police that Bowen might be hiding there.) The warrant authorizes the seizure of all firearms on the premises, not merely the particular gun which had been used in the crime against the girlfriend.
The police executed a 5 a.m. dynamic entry, and in the course of their search, seize a firearm which is lawfully owned by the 73-year-old woman, Augusta Millender. She sues, and the 9th Circuit en banc rules that the warrant was objectively unconstitutional. The officer who procured the warrant (and Los Angeles, by respondeat superior) are not entitled to qualified immunity, because the warrant to seize all firearms was so clearly unconstitutional, based on settled law.
In the certiorari grant, the Questions Presented are:
This Court has held that police officers who procure and execute warrants later determined invalid are entitled to qualified immunity, and evidence obtained should not be suppressed, so long as the warrant is not "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." United States v. Leon, 468 U.S. 897, 920, 923 (1984); Malley v. Briggs, 475 U.S. 335,341,344–45 (1986). The Questions Presented are: 1. Under these standards, are officers entitled to qualified immunity where they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her, and a district attorney approved the application, no factually on point case law prohibited the search, and the alleged overbreadth in the warrant did not expand the scope of the search? 2. Should the Malley/Leon standards be reconsidered or clarified in light of lower courts' inability to apply them in accordance with their purpose of deterring police misconduct, resulting in imposition of liability on officers for good faith conduct and improper exclusion of evidence in criminal cases?
The phrasing of the Questions Presented further suggest that attorneys for Respondents have an uphill battle. The Supreme Court docket page is ; the full history of the case in the district court and the Ninth Circuit, with full text of many of the relevant documents, is available at the website of California attorney Chuck Michel. Michel is, in my opinion, one of the top two firearms law lawyers in California, the other being Don Kilmer.
In conjunction with Stephen Halbrook, Michel filed an amicus brief in Millender, on behalf of the National Rifle Association and the California Rifle and Pistol Association Foundation. The brief explains how the Fourth Amendment's prohibition on general warrants is closely entwined with the right to arms; for example, the 1662 gun ban of the wicked Stuart king Charles II was enforced by general warrants.
The Questions Presented seem to presume the unconstitutionality of the general warrant, with the only issue before the Court being qualified immunity. The Halbrook/Michel argument on qualified immunity points out that
Detective Messerschmidt knew that the only firearm involved in the crime was a black, pistol-gripped, short barreled shotgun. He nonetheless drafted a general warrant authorizing search and seizure of all firearms and firearm parts from the home of an elderly woman, her daughter, and her grandson, knowing that the suspect (Bowen) did not even live in that home. Messerschmidt cannot now rely on the defense that he persuaded others up the chain to approve his general warrant.
...
It bears repeating that the affidavit failed to disclose that the residence was that of an elderly lady and her relatives, not that of the suspect.
Although Los Angeles argues that the unconstitutionality of the warrant was not clearly established at the time the warrant was executed, Halbrook and Michel point to:
Groh v. Ramirez, 540 U.S. 551 (2004), aff'g Ramirez v. Butte-Silver Bow County, 298 F.3d 1022 (9 th Cir. 2002), involved a general warrant obtained to search for unregistered firearms, but the warrant contained no list of firearms to seize. Id. at 554. A list of firearms was included in the affidavit, but not attached to the warrant. Id. Only lawful firearms were found. Id. at 555. The homeowners later filed a civil rights action for damages. Id. The Supreme Court upheld the Ninth Circuit's conclusion in Groh that the search was unlawful and that the agent who secured the warrant and led the search could not rely on the defense of qualified immunity. Id. at 563–566.
Moreover,
In Groh, the law was clearly established in the very text of the Fourth Amendment. Case law condemning general warrants in England dates back to at least 1765 in Entick, and in the United States, to 1886 in Boyd. The general warrant here–to search for all firearms and related items, when only a black, pistol-gripped, short-barreled shotgun was at issue, and it had little or no connection to the house to be searched–clearly violated the Fourth Amendment, would be known to do so by any competent officer, and was not sanctified by being rubber stamped by higher ups.
Michel has announced that NRA and CRPAF will file an amicus brief in the Supreme Court, in part to explain to the Court the problem of law enforcement officers seizing large numbers of lawfully-possessed firearms in order to boost gun seizure statistics.
I hope that at some point Orin Kerr will be able to provide his insights on Millender.
This Court has held that police officers who procure and execute warrants laterdetermined invalid are entitled to qualified immunity, and evidence obtained should notbe suppressed, so long as the warrant is not "so lacking in indicia of probable cause asto render official belief in its existence entirely unreasonable." United States v. Leon,468 U.S. 897, 920, 923 (1984); Malley v. Briggs, 475 U.S. 335,341,344–45 (1986). TheQuestions Presented are: 1. Under these standards, are officers entitled to qualifiedimmunity where they obtained a facially valid warrant to search for firearms,firearm-related materials, and gang-related items in the residence of a gang memberand felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her,and a district attorney approved the application, no factually on point case lawprohibited the search, and the alleged overbreadth in the warrant did not expand thescope of the search? 2. Should the Malley/Leon standards be reconsidered or clarified inlight of lower courts' inability to apply them in accordance with their purpose ofdeterring police misconduct, resulting in imposition of liability on officers for good faithconduct and improper exclusion of evidence in criminal cases?
Steven Chu's Rorschach Test, and a Query About Stripping Fred Upton of His Seniority
Increasingly I think the light-bulb issue is one of those fault lines in attitudinal American politics, in which one can reasonably easily read off most people's attitudes on a pretty wide range of political issues on the basis of supporting or condemning the current legislation. I'm not claiming extraordinary accuracy here, so no need to get all lathered up in the comments. Still, I think this remark by Energy Secretary Steven Chu serves as a kind political Rorschach test; this, from an article on the light-bulb controversy in the Wall Street Journal.
"We are taking away a choice that continues to let people waste their own money," [Chu] said.
My own view, fwiw, is that of Ann Althouse and Virginia Postrel — repeal now. Your results, of course, may differ.
I'd also support some kind of sanction on Rep. Fred Upton. One of the problems of our geographically based legislature is that unless a representative's stance is unpopular within his or her district, there are limited options for those in the country at large to make their unhappiness felt, except through the discipline of the national party. So I'd propose — or at least want to ask about the consequences of — pressing the Republican leadership to agree to punish Upton by stripping him of all seniority if the repeal fails to happen. If this has bad unintended consequences, I'd be happy to learn about them; this is a trial balloon.
However, this would presumably send a message to Upton's constituents that the rest of us (Republicans) are Not Pleased and also send a message to Republican legislators that apologizing for something that might not be reversible afterwards is not good enough. That's particularly so when you propose to "apologize" by saying, as Upton did, that it "was never my goal for Washington to decide what type of light bulbs Americans should use" — as if there could possibly have been any other goal. So what bad unintended consequences might this proposal have, or should I forward it to Althouse, Postrel, and the Republican leadership?
Update: Le Co-conspiratoire Adler adds in the comments:
I certainly support repeal, but it appears even this is being done in a silly way. The legislation would not only repeal the federal mandate, but also preempt any state or local government standards. The problem is not simply the nature of the mandate, but also the idea that this sort of decision must be made in Washington, D.C.
Senator Warren?
Roll Call is stoking speculation that Harvard law professor Elizabeth Warren, currently serving as the de facto consumer financial protection czar within the Obama Administration, could be recruited to run against Massachusetts Senator Scott Brown in 2012. Law professors don't run for the U.S. Senate all that often — particularly not those with tenure — though there was at least one prof-turned-Senate-candidate in 2010.
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Remembering Hoover Right
Megan McArdle reminds us that, contrary to common perceptions, President Herbert Hoover increased federal spending significantly and raised taxes on high earners. Indeed, while running for President himself, Franklin Delano Roosevelt criticized Hoover's spendthrift ways.
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Justice Breyer on Recusal
At a recent Aspen Institute conference, Justice Breyer was asked whether Justice Thomas should recuse himself if and when the health care litigation reaches the Supreme Court. The Daily Beast reported on his response:
"This is a false issue," Breyer said in response to an audience member who posed a hypothetical case loosely fitting Thomas' situation. "As far as what your wife does or your husband does, I myself try to stick to a certain principle, and feel very strongly about it, that a wife or a husband is an independent person and they make up their own minds what their career is going to be." . . .
On Wednesday, Breyer suggested that this could be a very bad idea. Noting that federal judges in lower courts are bound by explicit guidelines that Supreme Court justices are not obliged to follow, Breyer said, "The Supreme Court is different in one respect. In every other court, if I decided in a close matter to recuse myself, that's the easy decision. That's one fewer case I have to decide, and besides, they'll bring in somebody else to decide it. If I recuse myself on the Supreme Court, there is no one else and that could switch the result."
Breyer went on, "My wife happens to be a clinical psychologist at Dana Farber [Medical Center in Boston], and when I get cases involving psychology, I sit in those cases, OK?"
The more relevant comparison would be Justice Ginsburg. Her late husband was one of the most prominent tax attorneys in Washington, D.C. His clients certainly had an interest in the outcome of big taxes cases before the Court, but no one suggested Justice Ginsburg was required to recuse from tax cases on this basis.
Hat tip: UPI.
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July 9, 2011
Decoys to Deter Attacks on Jews in Europe
My wife and I recently got into a conversation with a man sitting next to us in the lounge of the Barcelona Hilton. It turns out that he runs kosher tour groups from France to the rest of Europe, and was checking out the Hilton because it was across the street from the Barcelona Chabad House, a source for prayer quorums and kosher food.
It turns out that the man in question was Orthodox, but he was not wearing a kippah or other head covering. Instead, he wore sunglasses raised on his head as he sipped his Coke, an alternative he said was allowed by religious law (I have no idea whether that's correct).
He explained that he never wears a kippah in any European city, that it's dangerous for a Jew to do so. He had never been to the U.S., and he was amazed when we told him that Orthodox Jews in the U.S. walk around with kippahs all the time, and aren't in any particular danger.
Of course, we were appalled that the situation in Europe has gotten to be such that Jews are afraid to walk around with identifiable Jewish garb on. But this led me to wonder why authorities in European cities aren't sending out undercover cops disguised as Orthodox Jews to catch the perpetrators. A few dozen arrests and convictions of those who are attacking Jews would surely limit the practice quickly.
I don't know the answer to that question, but coincidentally a reader in a VC thread on another topic provided a link to a story showing that Amsterdam is about to using decoys in exactly the way I suggested, after the city was (finally) scandalized by video evidence of the guantlet religious Jews face. It's long past time that the police departments of Paris, London, Barcelona, and so on do the same.
UPDATE: My dad reminds me that when he attended synagogue in Barcelona, he left the synagogue wearing his kippah. Several men came chasing after him, yelling in Spanish. It turns out they were warning him to take off his kippah!
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