Eugene Volokh's Blog, page 2753
July 9, 2011
Gov. Johnson on the "Marriage Vow"
Former New Mexico Governor and Presidential aspirant Gary Johnson has a response to the now-infamous "Marriage Vow" signed by Michelle Bachmann (and Rick Santorum). Here's a taste:
The so-called 'Marriage Vow" pledge that FAMiLY LEADER is asking Republican candidates for President to sign attacks minority segments of our population and attempts to prevent and eliminate personal freedom. This type of rhetoric is what gives Republicans a bad name.
Government should not be involved in the bedrooms of consenting adults. I have always been a strong advocate of liberty and freedom from unnecessary government intervention into our lives. The freedoms that our forefathers fought for in this country are sacred and must be preserved. The Republican Party cannot be sidetracked into discussing these morally judgmental issues — such a discussion is simply wrongheaded. We need to maintain our position as the party of efficient government management and the watchdogs of the "public's pocket book".
It seems to me that this response is far better than trying to parse its language to uncover an unstated commitment to ban pornography.
UPDATE: The Marriage Vow authors have also apologized for including language suggesting African-American children may have been better off under slavery than they are today.
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Soccer Update:
So I know that faithful readers have been patiently waiting for my take on the current goings-on in the world of international soccer ... Though this is the off-season, of course, for most of the world's leagues (other than our own MLS), there's a fair bit of action out there, in particular (a) the Women's World Cup, in Germany, and (b) the main South/Central American tournament, the Copa America, in Argentina.
Re the first: I'm not, generally speaking, much of a fan of the women's game. Like women's basketball, though the games can be exciting, there's not enough skill and athleticism, usually, to hold my interest. But I have to say that the WWC games I've watched so far have been pretty damned good — the level of play is much higher than it's been in the past, and some of the games — Germany-France (4–2), Sweden — US (2–1), Australia-Equatorial Guinea (3–2), and France-Canada (4–0), were fine matches, full of attacking play, near misses, great goals, and all the rest. The Germans look formidable, and will probably win it all — though my money is on Brazil (which plays the US tomorrow at noon, a match that, given the shaky back lines and strong attacks of both teams, could well be a 5–4 thriller ...).
As to the Copa America, the big news there so far has all been pretty negative. The two giants of South American soccer — Brazil and Argentina — have looked uninspired (to put it mildly); Brazil was held to a boring 0–0 by Venezuela, pegged as one of the weaker teams in the tournament (Venezuela being one of the very few countries in the hemisphere where baseball, and not soccer, is the sport engaging the most passion); And the less said about Argentina's performance the better; salvaging a 1–1 draw against Bolivia with a late goal, and then a truly awful performance in a 0–0 draw with Colombia. Their offense is sputtering miserably (and the home fans, needless to say, are deeply unhappy); Colombia easily had the best chances in the last match and should have come away with the victory. It's proof (if proof were needed!) of the importance of mid-field playmakers; the Argentines have terrific strikers — at one point in the Colombia game they had four world-class strikers (Higuain, Messi, Tevez, and Aguero) playing at the same time, but still created virtually no offense to speak of. Messi — the consensus best player on the planet — looks lost; without the fabulous midfield play of Barcelona's fabulous two providers (Xavi and Iniesta), he doesn't seem to be able to get into the rhythm of the offense. It's been painful to watch, actually — I'm a big fan of the Argentines, and I do hope they can get their act together in time to make at least some noise in the tournament.
The dark horse in the Copa America, to my eyes, is Chile; though one should never count out teams like Argentina and Brazil, with the unbelievable talent and skill on both teams, the Chileans have played the best and most exciting soccer in the tournament so far, and it wouldn't surprise me if they went far, and possibly all the way.
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New Internet Top-Level Domains Coming:
After many, many years of debate and discussion, ICANN — the rather peculiar hybrid policy/technology private/public institution that manages the Internet's naming system — has finally approved a process to open up the Internet's list of "top-level domains" (TLDs) [Stories here and This feed is for personal, non-commercial use only.
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July 8, 2011
Leah Libresco's Turing Test for Religion
Atheist blogger Leah Libresco has now begun to implement her Turing Test for religion, which I previously wrote about here. At her blog, she has recruited fifteen test participants who will first answer four questions about atheism, trying to persuade readers that they are real atheists. They will then answer four questions about Christianity, seeking to persuade readers that they are genuine Christians. The eight questions are available here. Some of the participants are actual atheists and the rest are Christians.
Readers will have the opportunity to see each test participant's answers and then vote on which "atheists" they think are real and which ones fake. Later, they will also vote which answers to the questions about Christianity are given by real Christians and which ones are atheists pretending to be Christian. Leah plans to offer a prize to the atheist who persuades the most readers that he or she is a genuine Christian, as well as to the Christian who most successfully mimics an atheist.
The fifteen sets of answers to questions about atheism are now up at Leah's blog, and you can vote on which ones you think are written by genuine atheists here.
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Treasury Responds to Tribe
The U.S. Department of the Treasury General Counsel George Madison has sent the following letter to the NYT in response to Harvard law professor Laurence Tribe's op-ed on the debt limit.
Contrary to Professor Laurence Tribe's assertion (Op-Ed, July 8), Secretary Geithner has never argued that the 14th Amendment to the U.S. Constitution allows the President to disregard the statutory debt limit. As Professor Tribe notes, the Constitution explicitly places the borrowing authority with Congress, not the President.
The Secretary has cited the 14th Amendment's command that "[t]he validity of the public debt of the United States… shall not be questioned" in support of his strong conviction that Congress has an obligation to ensure we are able to honor the obligations of the United States. Like every previous Secretary of the Treasury who has confronted the question, Secretary Geithner has always viewed the debt limit as a binding legal constraint that can only be raised by Congress.
This would seem to indicate that GC Madison is unconvinced by those who argue the President could borrow additional funds unilaterally in order to avoid defaulting on existing debt.
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Review of the OT10's Fourth Amendment Cases
I have posted a quick review of the recently-completed Term's Fourth Amendment cases over at SCOTUSblog.
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Divided D.C. Circuit Splits with Second on Alien Tort Statute
This morning a divided panel of the U.S. Court of Appeals for the D.C. Circuit decided John Doe VIII v. Exxon Mobil Corp.. Of note, the court expressly disagreed with a recent decision of the U.S. Court of Appeals for the Second Circuit on the application of the Alien Tort Statute to corporate conduct. Judge Rogers' 100-plus-page decision for the panel, joined by Judge Tatel, begins:
Pursuant to a contract with the Indonesian government, Exxon Mobil Corporation, a United States corporation, and several of its wholly owned subsidiaries (hereinafter "Exxon") operated a large natural gas extraction and processing facility in the Aceh province of Indonesia in 2000–2001. Plaintiffs-appellants are fifteen Indonesian villagers from the Aceh territory. Eleven villagers filed a complaint in 2001 alleging that Exxon's security forces committed murder, torture, sexual assault, battery, and false imprisonment in violation of the Alien Tort Statute ("ATS") and the Torture Victim Protection Act ("TVPA"), and various common law torts. (The Doe I complaint.) Four other Aceh villagers alleged in 2007 that Exxon committed various common law torts. (The Doe VIII complaint.) All plaintiffs-appellants allege that Exxon took actions both in the United States and at its facility in the Aceh province that resulted in their injuries. The district court dismissed the statutory claims, see Doe I v. Exxon Mobil Corp., 393 F. Supp. 2d 20 (D.D.C. 2005), and discovery proceeded on the tort claims. Those claims, however, were subsequently dismissed for lack of prudential standing. See Doe VIII v. Exxon Mobil Corp., 658 F. Supp. 2d 131 (D.D.C. 2009). Plaintiffs appellants challenge the dismissals of their complaints and Exxon filed a cross-appeal, inter alia raising for the first time that as a corporation it was immune from liability under the ATS.
For the reasons that follow, we conclude that aiding and abetting liability is well established under the ATS. We further conclude under our precedent that this court should address Exxon's contention on appeal of corporate immunity and, contrary to its view and that of the Second Circuit, we join the Eleventh Circuit in holding that neither the text, history, nor purpose of the ATS supports corporate immunity for torts based on heinous conduct allegedly committed by its agents in violation of the law of nations. We affirm the dismissal of the TVPA claims in view of recent precedent of this court. We conclude, however, that Exxon's objections to justiciability are unpersuasive and that the district court erred in ruling that appellants lack prudential standing to bring their non-federal tort claims and in the choice of law determination. Finally, we conclude that Exxon's challenge to the diversity of parties in the Doe VIII complaint is to be resolved initially by the district court. Therefore, we affirm the dismissal of plaintiffs appellants' TVPA claims, reverse the dismissal of the ATS claims at issue in this appeal, along with plaintiffs-appellants' non-federal tort claims, and remand the cases to the district court. (emphasis added)
Judge Kavanaugh dissented. His comparatively short, 39-page dissent argues that the lawsuit should have been dismissed and that "permitting these ATS claims to proceed jumps the rails of proper judicial restraint."
UPDATE: BLT covers the decision here.
UPDATE: How Appealing rounds up more news coverage here.
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Did Bachmann Pledge to Ban Pornography?
A Think Progress item that's been making the blogspheric rounds proclaims that Michell Bachmann has signed a conservative religious group's "pro-marriage" pledge that, among other things, "calls for the banning of 'all forms' of pornography." That would be news (and a sure way to lose the libertarian vote). While culturally conservative politicians routinely oppose gay marriage and abortion, and often support increased prosecution of obscenity (as occurred under the Bush Administration), there are not many who would actually call for a complete ban on pornography.
With my curiosity piqued, I decided to check out this pledge — and a good thing too. While it represents a particularly rigid and extreme form of the religious conservative position on marriage and sexual issues — and contains much to find objectionable — it does not call for a ban on "all forms of pornography" — not even close.
In the relevant portion of the pledge, a signer commits to support:
Humane protection of women and the innocent fruit of conjugal intimacy — our next generation of American children — from human trafficking, sexual slavery, seduction into promiscuity, and all forms of pornography and prostitution, infanticide, abortion and other types of coercion or stolen innocence.
This is not the most clearly drafted statement in the world, but nowhere does it call for a ban on pornography. At most it calls for the "protection" of women and children from "all forms of pornography," which is not quite the same thing. There are many policies that could "protect" women and children from pornography short of a ban. Alternative readings — such as that a candidate vows to protect women and children from "seduction into . . . all forms of pornography" would be even less supportive of Think Progress' interpretation. A footnote — the pledge has lots of footnotes — identifies many things as "inherently coercive of vulnerable females," including "child pornography and prostitution," but leaves simple pornography off the list. That's an odd omission if the pledge actually commits its signatories to banning "all forms" of pornography. If the organizers of the pledge wish to ban pornography across the board — and for all I know, they do — they did not incorporate this position into their pledge. (See also here and here.)
As a supporter of gay marriage, among other things, I don't particularly care for the pledge and I am more likely to support a presidential candidate who refuses to sign it. But if candidates are to be criticized for signing this pledge, its contents should not be misrepresented.
UPDATE: Pledge author Bob Vander Plaats has confirmed that the pledge does not call for banning pornography, telling a reporter "We are not calling for a nationwide band on pornography." According to Vander Plaats, "The bullet point doesn't even come close to calling for that." Think Progress continues to insist otherwise.
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Tribe on the Debt Ceiling
Harvard law professor Laurence Tribe has an op-ed in today's NYT on the constitutional debate over the debt ceiling. He writes:
Several law professors and senators, and even Treasury Secretary Timothy F. Geithner, have suggested that section 4 of the 14th Amendment, known as the public debt clause, might provide a silver bullet. This provision states that "the validity of the public debt of the United States, authorized by law ... shall not be questioned." They argue that the public debt clause is sufficient to nullify the ceiling — or can be used to permit the president to borrow money without regard to the ceiling.
Both approaches provide the false hope of a legal answer that obviates the need for a real solution.
That sounds right to me. Indeed, I found relatively little in Tribe's op-ed with which to disagree. He notes that an interpretation under which any action which threatens default is unconstitutional would sweep too broadly, and notes the implications for executive power of any argument that would allow unilateral borrowing.
, the argument that the president may do whatever is necessary to avoid default has no logical stopping point. In theory, Congress could pay debts not only by borrowing more money, but also by exercising its powers to impose taxes, to coin money or to sell federal property. If the president could usurp the congressional power to borrow, what would stop him from taking over all these other powers, as well?
Tribe concludes quoting Justice John Marshall Harlan II, "the Constitution is not a panacea for every blot upon the public welfare," and suggests the solution to the current impasse is not to be found in the constitution, but in the political process.
UPDATE: The Treasury Department responds.
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July 6, 2011
Thank You PERC
Just got back this weekend from a fantastic week and a half at PERC hanging out with a bunch of my old Clemson professors. I'm writing a short piece that critiques some law and economics analysis of various aspects of the Takings doctrine, namely the "public use" requirement post–Kelo and Judge Posner's analysis of "just compensation" in Economic Analysis of Law. I plan to have the working paper posted in the next few weeks, but in the meantime I did a Q&A for PERC's blog describing the project.
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