IsThatLegal?

"Though he be a gentleman, remember, Eric Muller is also a lawyer."
-- Sparkey of "Sgt. Stryker's Daily Briefing"
"Relentlessly sensible and often important."
-- Michael Froomkin of "discourse.net"

A federal district judge has granted a downward departure to probation for some men who pled guilty to distributing marijuana. They had distributed the pot to seriously ill people for medicinal purposes.

I don't know the actual basis for the departure, but have no doubt (a) that the Justice Department will appeal, and (b) that the departure will ultimately be reversed, either by a panel of the 9th Circuit or by the court en banc.

It would have been interesting if instead of dealing with the issue in the case as a matter of sentencing, he had simply dismissed the prosecution entirely on the basis that criminal prosecution of these particular drug distributors in this context was shocking to the conscience and a violation of their substantive due process rights. This is a theory that I develop at some length in an imminently forthcoming article in the Boston University Law Review called "Constitutional Conscience." You can read an earlier version of the article here.

The, uh, preoccupation with sex continues over at the Volokh Conspiracy, with David Bernstein expressing skepticism that an adult who pursues sexual contact with teenagers should be thought of as a "child molester."

Quoth the psych department at UC Davis:

Whereas pedophilia and hebephilia refer to psychological propensities, child molestation and child sexual abuse are used to describe actual sexual contact between an adult and someone who has not reached the legal age of consent. In this context, someone who has not reached the age of consent is referred to as a child, even though he or she may be a teenager.

David asks further whether "it is really the case that the psychological profile of a man who desires sex with a sexually mature seventeen year old is the same as the profile of a man who desires sex with a pre-pubescent nine year old." That wasn't the issue in the case, though. The witness wasn't going to testify about profiles. He was going to testify about a supposedly typical pattern of conduct in molesters of children (including, apparently, teenagers): "Dr. Pinizzotto would testify that a child molester typically begins by befriending the child in order to gain the child’s trust. The molester then engages in borderline behavior to test whether the child is receptive or suspicious."

So this had nothing to do with profiles, or whether a person who molests teenagers has the same psychological makeup as a person who molests young children.

It seems to me, incidentally, that what Dr. Pinizzotto wanted to testify to was an accurate (and intuitive) description of one way in which a person might attempt to gain the trust of a person of any age for sexual contact. In that sense, it's hard to see how the opinion would have been especially helpful to the jury.

Tomorrow is the 40th anniversary of the JFK assassination.

Yesterday a bunch of scientist members of the National Academy of Sciences leaked to the media--on condition of anonymity--some findings in a not-yet-released report suggesting that a methods of matching fired bullets to weapons called "chaining" has been flawed.

Just in case anybody might miss the insidious link, the AP story notes that "the FBI has been the prime practitioner of lead bullet comparisons in the United States, and has used it for decades, dating to around the time of President Kennedy's assassination 40 years ago."

Have we really reached a point where even scientists are whoring for the spotlight, trying to "position" the release of a scientific study to pick up extra buzz from the anniversary of a President's killing?

Perhaps the leakers are pissed-off scientists who hoped that the report would be ready for actual release today, so that they could score an appearance on "Nightline" and NPR's "Science Friday."

This leak is an embarrassment for the National Academy of Sciences.

On my way to work this morning I heard the BBC Newshour repeatedly say that today Turkey is "again" the target of terrorist attacks. But I don't think the target of last week's attacks was really Turkey, was it? The target was Jews, praying in synagogues. That was no more an attack targeting Turkey than the July 1994 attack on a Jewish Community Center in Buenos Aires was an attack targeting Argentina.

Who knew? Brian Leiter's voluminous rankings and cataloguings of academics, academic programs, and lateral faculty moves schools have the endorsement of Nietszche!

David Bernstein says that he's suspicious of a not just a big centralized federal government, but that he's suspicious of any centralized federal government.

Really, David? Any centralized federal government at all?

I know the Conspiracy has a strongly libertarian cast. But Jeez Louise. Who'll be the Next Guest Conspirator? Irwin Schiff?

There is a disturbing story in the local paper this morning.

Our recent town council election was won by four candidates who took a critical stance toward UNC and its various development efforts. One of them, Cam Hill (full disclosure: I don't know him, and didn't vote for him), was quoted during the campaign as saying that people in university administration should not serve on the council because of potential conflicts of interest. Referring to candidate Dianne Bachman (full disclosure: I don't know her, and didn't vote for her), who works as an architect for UNC, Hill said, "Given the fact that (UNC) wants things from the Town Council, if she's on the council, and (University officials) don't get what they want, it may come down on her."

Hill was elected; Bachman wasn't.

Today we learn that during the campaign, while Cam Hill was out bragging on his distance from the university and alleging conflicts of interest, he was also negotiating with the university to swap his land and home for another piece of property in town, so that the university can build a parking lot. The piece of property he traded was valued in 2000 at $140,634. In the neighborhood to which he's trading up (courtesy of the university), the neighboring properties are valued between $300,000 and $450,000. He sealed the deal about 6 weeks before the election. The deal wasn't disclosed until two weeks after the election.

Talk about a conflict of interest!

I can't fathom how Cam Hill could have thought that he had no duty to disclose these negotiations and this deal while he was out talking trash about conflicts of interest. I also wonder whether Hill and the university reached an understanding -- explicit or implicit -- that the deal would be structured in a way that put off disclosure until after the election.

Dianne Bachman took a lot of flak during the campaign for an ad that some described as an "attack ad" against Hill for his comments about university employees' conflicts of interest. Seems to me that Hill had -- and ought still to have -- a lot more coming to him.

Sorry for the blogging inactivity in recent days; I've been hard at work on a very large project. I'm still here, though, and will be posting again soon.

In the meantime, if you're looking for entertainment, go catch "School of Rock" before it leaves the big screen. I saw it with my kids on Sunday afternoon. Hilarious.

I would quibble with the Rock Flow Chart that Jack Black puts on the blackboard. (Go to the film's site and click on "enter website".) Southern Rock should clearly be an offshoot from the Blues, not from Psychadelic Rock.

And I'm personally offended that Squeeze didn't make the chart.

I tried to argue yesterday that the libertarian quest for freedom of the individual from external constraints doesn't transpose in any direct way (as Eugene Volokh contends it does) to a quest for freedom from internal constraints. My thoughts yesterday were a bit jumbled, but I think I can say it more simply now: in the external setting, there's a "you" and a "them," "you" are distinct from "them," "you" have a set of preferences that are (potentially) distinct from "theirs," and "you" don't want "them" to constrain your freedom by telling you what to do. That's a simplified statement of a libertarian ideal.

Now try to transpose that model to a person and his inner life, and the model just breaks down. Fast. There's no "you" that's distinct from "them," no preferences of "yours" that are distinct from "theirs"--indeed, what we recognize as "you" is largely constituted by "them." (At least this is so unless one imagines one's self to be a sort of disembodied "rational free chooser" that sits atop and apart from all aspects of human experience that are not rational thought. Maybe that is Eugene's conception of what a human being is?)

Take the example of conscience. Conscience is an inner constraint on behavior, but it's simultaneously a component of identity and character. That we may think a person better off if he's free from the dictates of his neighbors doesn't mean we think him better off if he's free from the dictates of his conscience. Indeed, if suddenly he did unmoor himself from his conscience, in some basic way we wouldn't think it was really him anymore. ("He's just not himself anymore; I don't recognize him.")

So the image of a person as a rational free chooser, poised at the centerpoint of two worlds of constraint, one external and one internal, just isn't real. That image may describe the relationship we stand in with society. But it doesn't describe the relationship each of us stands in with our inner life.

Eugene has made the discussion easier, though, by adding to his argument some interesting hypotheticals about an imaginary pill that could free you of an urge to take drugs or maintain a vegan diet. Such a pill would be welcome, Eugene notes, because it would allow the rational chooser in you to have its way without interference from what he calls "physical urges." Equally welcome, he argues, would therefore be a "mechanism" (like this imaginary pill) that would free the rational chooser in you from the operation of your "hormones" and your "physical desires."

Nevermind that these sorts of pills—even as to drugs and diets—never seem to work in a sustained way for most human beings (because they’re not rational choosers). This is a characterization of human sexuality that I just don't recognize. To depict humans as essentially “rational choosers” of sexual activity is right only in a simple way: I choose to have sex only with my wife (I’m sorry, Amanda Pays, you’re just going to have to accept that); I can choose to say “no” to her if I’m not feeling like it. But human sexuality isn’t just the indulgence of a drive for pleasure (in the way that taking drugs or eating non-vegan foods arguably—and only arguably—is). It’s far more, and far more complex, than that. It is an expression of basic aspects of selfhood that have little to do with the maximization of pleasurable stimuli—needs for and styles of intimacy; expression of needs for equality, dominance, and/or submission; wishes and fantasies about self and other; fulfillment or exploration of romantic ideals; and on and on and on. (I feel like I need to include a self-denigrating quip in here about how this might all come as news to my own sexual partner, but won’t.) All of that is in the mix when a human being, over the course of his or her life, engages in sexual activity.

Eugene, it seems to me, is taking a very different position about sex: he’s saying that it’s a biochemical drive for a particular kind of sensory satisfaction. Freedom from that drive, he says, would be a liberating thing. But perhaps now we can see why people whose self-actualization (and not merely their sensory urges) have historically been stunted by a belief that this is all just about “urges” that need to be controlled or redirected might worry about an inquiry of the sort that Eugene is supporting.

Eugene Volokh argues that people should welcome, rather than try to block, research into whether people can alter whether they're attracted to men or women. If this is possible, he argues, it would be a good thing--a liberating thing--because it would maximize people's ability to choose what they want to be.

I haven’t read the reaction elsewhere in the blogosphere to what Eugene has written. I’d imagine that the reaction from many quarters might be harsh.

But notice something interesting: Eugene’s argument, seen one way, is really just the argument of psychoanalysis. Freud was very much interested in maximizing human freedom—freedom from the necessity of neurotic suffering. Freud and various of his followers believed and believe that through the therapeutic relationship, deep psychic processes can be brought into awareness. Once in awareness, they can perhaps be “healed,” but in any event they can certainly be known. Knowing them, recognizing them when they present themselves, the person can then choose how he wishes to respond to them rather than engaging in some form of compelled neurotic response. Therein lies, if not happiness, then at least freedom.

But there is also an important way in which Eugene’s argument runs in a very different direction. His real pitch is for what I would call “intrapsychic libertarianism.” By that I mean that Eugene clearly comes to the subject of a human being’s relationship with the inner world in the same way as he comes to the subject of a human being’s relationship with the outer world: both worlds—external rules and inner processes—are constraints on freedom from which a person ought, to the greatest extent possible, be free. It’s as if Eugene sees the human being as standing between (and, importantly, potentially apart from) two systems of regulation—the government “out there,” made up of legislators and laws and agencies and rules, and the government inside us, made up of drives and cognitions and emotions.

But isn’t the analogy of internal psychic regulation to external governmental regulation false? It is possible to imagine a human being in a state of nature, entirely free of external human pressures and needs. And it’s possible to imagine that a person in that state would be more capable of choice, self-actualization, and happiness in that state. (I say it’s possible, but I don’t personally believe it.) But it is simply impossible to imagine a human being entirely separated from an inner life. (Well, it is possible to imagine it, I guess, but maybe that’s what psychosis is, and that sure isn’t pretty.) Indeed, it is incoherent to speak of a human being “freed” of internal human pressures and needs. The end result of psychoanalysis is a degree of integration of conscious and unconscious life, not freedom from unconscious life.

What does the breakdown in analogy mean for Eugene’s argument, which is about homosexuality? I think it means that Eugene is wrong to identify freedom from inner constraint as an unambiguously positive thing. Freedom from outer constraint might be, but an objective of freedom from inner constraint will probably just lead to misery because of its impossibility. Understanding of inner constraint seems a far better objective, for that will allow individuals to come to terms with their own unique makeup and to decide what to make of their own sexual desire.

Eugene might say, “But wait! That’s just what I’m arguing for: understanding of inner constraint (through research into whether sexual preference is malleable).” But of course that’s not at all the same kind of understanding I’m talking about: that is a scientific inquiry into human neurobiology, and I’m talking about a personal inquiry into the unique truth of one’s own self.

You may remember my post about the Wyoming lawyer who tried to get a client to pay him with sex.

Well, the Wyoming Supreme Court has now imposed interim disciplinary sanctions on the lawyer, pending a full bar investigation.

The sanctions are, to my eyes, bizarre. The lawyer is allowed to speak to female clients only if a third person is present to monitor the conversation.

Yup, that's right. Ordinarily the presence of a third party destroys the privilege, but in this case the state's highest court is mandating just that.

Now, to be sure, the court's order provides that "monitoring of these client conversations will be done in a manner to preserve their confidentiality." And maybe a Wyoming court would be obliged to treat the presence of a third party in this case as preserving rather than destroying the privilege. But would courts in other jurisdictions be obliged to do so? Does the attorney have a First Amendment right to speak to clients without a third party present? If the lawyer takes criminal cases, would the presence of the third party compromise the client's constitutional right to the effective assistance of counsel? Does it violate the equal protection rights of his women clients that their conversations must be monitored while the lawyer's conversations with male clients are not?

Very weird. Very troubling. I suppose the Court thinks that they're doing the lawyer a favor by not just suspending him outright while the investigation is pending. Maybe the lawyer thinks that too. But I don't like this precedent one bit. An interim suspension would serve the profession, clients, and the attorney-client privilege far better than this odd order.

Long-time IsThatLegal? readers may recall that many months ago, I talked through a little thought experiment in which I tried to discern what "the basic mistake" of the Japanese American incarceration was. (I was thinking about this because of the often-heard criticism that the Bush Administration has repeatedly made "the basic mistake" of that earlier episode.)

That thought experiment turned into a paper called "Inference or Impact? Racial Profiling and the Internment's True Legacy," and if you're interested, you can download it here.

Here's an abstract:

In the debate about racial and ethnic profiling in the wake of the September 11 terrorist attacks, critics of the administration's policies have frequently argued that the government has made the same fundamental error as the Roosevelt administration made when it forced 110,000 Japanese Americans into camps during World War II. This is a powerful rhetorical strategy, but is it an accurate one? What was the "fundamental error" of the Japanese American internment?
In this article, Professor Muller argues that the fundamental error of the internment was not the inference of suspicion that the government drew from the fact of Japanese ancestry, but the enormity of the deprivations that the government imposed on the basis of that inference. Seen this way, the internment recedes as a rhetorical device, which allows for a more careful and subtle debate about whether the socio-legal landscape has changed enough in the past 60 years to prevent a civil liberties tragedy like the internment from recurring. Professor Muller concludes that that landscape has not changed enough to ensure that national-origin-conscious enforcement strategies will not leap from minor to massive intrusions.

About a month ago, UNC Law's Federalist Society hosted pundit (and, in my view, wacko) Ann Coulter, and it caused quite a stir.

Today, the Federalist Society and the law school's right-to-life student organization are bringing in actor/comedian Ben Stein, presumably to share his views about abortion.

I couldn't attend the Coulter event, but will attend the Stein event, and will blog it later.

UPDATE: Stein's talk was very well-attended. He spoke for about a half hour, and then took 15 minutes' worth of questions. His talk had three main parts: (1) a bunch of lawyer jokes, (2) an assertion of his thesis, which is that all that appellate judges do is implement their own values and preferences, and (3) an application of this thesis to abortion. Stein compared abortion in America today to slavery in America in the late 1850's, and predicted that the day would come when we will realize that fetuses are people whose lives cannot be taken without due process of law. On the whole, it was, I thought, a pretty mild event.

Rumors of a presidential bid by Arnold Schwarzenegger continue to circulate--subject, of course, to a constitutional amendment permitting it.

Arnold has broken his silence on the question, telling reporters that his first priority as President would be to get the USA PATRIOT Act published in the original German.

Brian Leiter offers a couple of explanations for the cake-walk that Antonin Scalia had in the Senate when he became an Associate Justice in 1986. They may be correct, but Leiter misses the most obvious explanation: The Senate was simultaneously dealing with the elevation of William Rehnquist to the Chief Justiceship, and Democrats were using all of their sword-sharpening devices for that confirmation battle. With the energy focused entirely on the Rehnquist battle, Scalia just sneaked by. The votes took place on the same day, September 17, 1986. I imagine that some Democrats who might have opposed Scalia chose to vote for him in order to make their vote against Rehnquist seem more reasonable.

As the blogosphere hyperventilates over an absurd essay on manliness, I look forward to the discussion on this pathetic story in today's NY Times: a soldier overwhelmed by panic upon seeing a blown-up Iraqi corpse is being court-martialed for cowardice.

This is something calling out for commentary at Sgt. Stryker, wouldn't you say?

Allen at The Right Christians tosses the Lochner ball back to me, but it's a thoroughly botched pass. Here's what he says:

Eric Muller, who says he is neither a conservative nor a libertarian, takes Nathan Newman and me to the woodshed. In my case, it's for asserting that all this nice legal theorizing and nostalgia for Lochner aims for the undoing of what's left of the New Deal and Great Society, including wage/hour laws, OSHA, the Wagner Act (allowing collective bargaining) and the Civil Rights Act. He denies it, but here's my question:

Under what legal theory or theories would you uphold the legislation mentioned above?
If you deny the federal government's power to regulate all or some of these matters, how would you devise an effective system of state regulation that would accomplish the same purposes?

I'll answer the questions (or at least one of them) in a second, but first, notice the continued insistence that the only reason a person might think or talk about these matters is to reach an "aim" on a question of social policy. Maybe that's the only reason politicians and TV Talking Heads talk about these matters. But have we really reached a point where those of us who are neither politicians nor TV Talking Heads can't think and speak without having a donkey or an elephant pinned to our chests?

Second, notice the assertion that a person willing to entertain the notion that the Court's approach to economic liberties in the Lochner era must be feeling "nostalgia" for Lochner itself. Come on.

Third, Allen dismisses analysis of the merits of a different approach to economic liberties cases as "nice legal theorizing." That's a lovely way of dismissing it, but I thought what we were trying to do here was talk about it. Perhaps (and I think this will become clearer below) what Allen is really saying is that he's not interested in thinking carefully about the merits and demerits of the Court's approach in Lochner if the result of that would be a modification of current law. OK, fair enough. But then Allen shouldn't engage with people who are trying to discuss the merits and demerits of Lochner. He should just post a quick note that says, "a bunch of people in the blogosphere are discussing the merits and demerits of Lochner. I don't care about any of that discussion. I just want policymakers to keep the law as it is."

Fourth, Allen worries about those who aim to take away "what's left of the New Deal and Great Society." Huh? What's left of the New Deal and the Great Society? Allen and I must be in different legal universes. The constitutional structure that allowed the New Deal and the Great Society is still essentially entirely in place. Certainly there has been no change in the law of due process (which, after all, is what we're talking about) that has undermined any aspect of those programs and regimes.

[UPDATE: Nathan Newman says this point is "disingenuous," but he doesn't say why, and in any event, I assure him that I mean it. He also says that "the argument here is over opposing judges like Janice Brown who want to take the next steps to fully dismantle the post-New Deal judicial restraint by judges in regard to economic regulation." Well, maybe that's the argument he's having, but it's not the one I'm participating in. I'd be curious to know whether Nathan actually thinks that the "full dismantling" of the post-New Deal judicial deference would ever happen, even if some of the Janice Browns of the world take the bench. After US v. Lopez in the mid-90s, people screamed that the post-New Deal deference in Commerce Clause cases was being dismantled. And of course no such thing was happening, or has happened. Something much more modest and tempered was (and is) happening in that area. I think the Court gets the Commerce Clause wrong in Lopez and its progeny, but I don't think the sky fell as a result of those decisions.]

Finally--and this is the one that has me most skeptical of Allen's contribution to the Lochner debate--Allen builds a question around the possibility that I "deny the federal government's power to regulate all or some of these matters." In no way does this discussion about Lochner's merits and demerits touch on the question of whether the federal government has the power to pass laws like the Wagner Act, wage laws, and laws against race discrimination by private entities. Lochner was a case about individual rights, not government power. The government, in my view, unquestionably has the power to pass these sorts of laws, under its power to regulate commerce among the several states. What we're talking about is whether certain provisions of such laws might infringe on the due process rights of individuals to order their private economic affairs without unjustified government intrusion.

Now, finally, to Allen's question: How could a person endorse some aspect of the Court's approach to economic liberty cases in Lochner without tearing down the modern administrative welfare state? This question, it seems to me, commits the fallacy of false alternatives: It's based on the idea that there are two worlds, the one we live in and the world of the Lochner era, and one can only choose between the two. That's silly. Right now, as a technical (and purely technical) matter, laws (state or federal) that alter people's economic relations with one another need to be "rationally related to a legitimate state interest" in order to survive due process scrutiny. I say that's "purely technical" because courts since just after FDR's court-packing plan have fled the field entirely. This "rational basis" scrutiny is really no scrutiny at all, and that's at least in part because courts do not ask that the government defend the law in court on the basis of the real state interests that led the legislature to act, and also at least in part because the courts don't ask that the law bear a rational relationship to those interests. Any old theory that a clever government lawyer can come up with will do the trick.

And so, for example, when the legislature of the State of Oklahoma got captured by the well-financed medical establishment and passed a piece of legislation saying that opticians couldn't grind replacement lenses without a prescription from a licensed ophthalmologist, the Supreme Court just threw up its hands and went along with the absurd after-the-fact theorizing that the state's lawyers came up with to defend the law.

I could imagine a world in which courts would actually apply the rational-basis test, rather than just rubber-stamp any and every piece of legislation that comes their way. I would imagine that this would not come close to disassembling the modern welfare state, but might instead stand in the way of the most extreme instances of rent-seeking by well-financed groups that time and again control the legislative process at the expense of groups that lack lobbying clout.

To be sure, this would open up this area of judging to charges of subjectivity. One virtue of a regime of rubber-stamped approval is that judges can't be accused of improperly exercising discretion. But we trust judges to develop and apply discretionary rules all over the legal landscape. Might it not be possible here too?

The Right Christians place my (in fact, seemingly everyone's) contributions to the Bernstein/Brown/Lochner debate in the context of

>"an effort among conservative and libertarian academicians to revive the concepts of 'liberty of contract' and limited federal power under the commerce clause with the purpose, it must be assumed, of undoing existing legislation in the labor and civil rights areas or at least to make it harder to expand protections in those areas in the future. They are taking us back to the future of the 1930's and before when the Right used the courts as their last defense against economic reforms enacted by state legislatures and Congress."

As to me, the Right Christians aren't right.

I am not conservative.

I do not think of myself as a libertarian.

And, most importantly, I'm not pursuing any particular political purpose in suggesting that economic freedom is not self-evidently undeserving of some sort of judicial protection. The Christians say "it must be assumed" that this would be someone's purpose in reconsidering the demise of Lochner. Why? Why assume that anybody who wishes to examine a question of constitutional meaning is doing so just to get to some particular preferred policy objective?

We see enough of this sort of motive-imputing and its resulting cartoonization of legal debate in the judicial confirmation process, and on O'Reilly. We don't need it here in the blogosphere.

Nathan Newman needs to tone it down a little.

He says this of David Bernstein's post at Volokh on Lochner:

Bernstein also makes the outrageous argument that the Lochner Court was some kind of friend of African-Americans. Let's remember that Lochner was decided in 1905, less than a decade after the 1896 Plessy v. Ferguson decision establishing the "separate but equal" doctrine of segregation. And in 1898, the Court in Williams v. Mississippi upheld the so-called "Mississippi Plan" to systematically disenfranchise black voters.

That Bernstein would cite the "Jim Crow" Court era as a friend of African Americans just shows how little credibility should be given his defense of the Court's economic doctrines.

But David Bernstein never said that the Lochner Court was "some kind of friend of African Americans." What he said was that the hostility to state regulation of the Lochner era Court "indirectly protected African Americans from hostile legislation." Note the word "indirectly." And I think Bernstein's right (and clever) to link the Court's skepticism toward state economic regulation with an emerging atmosphere of skepticism toward racist state legislation. (See, for example, this paper by Bernstein.)

Is it just me, or does this speech by Janice R. Brown seem a little, well, unhinged? (Thanks to Michael Froomkin for the pointer.)

It is distressing to see David Bernstein getting pilloried in the blogosphere for suggesting that there may be something worthwhile to the approach to economic liberty cases typified by Lochner v. New York.

Nevermind that David has written and thought more extensively, and more creatively, about Lochner than any modern scholar. (Go here, put in "David Bernstein," run the search, and scroll down to any of his several papers on Lochner.)

What is distressing is that the discussion about Lochner seems to be heading the way that all issues head when they get put into the dumb-down machine known as the confirmation process.

Before you get apoplectic about how outrageous it is to suggest that Lochner had even a wisp of validity to it, just do this little experiment. Here are the rules: You are given a copy of the Constitution. You are instructed that the Constitution protects one fundamental freedom that is not specifically mentioned. Only one. And you're told that it is either (a) the right of a person to grow a vegetable on his farm and sell it to his neighbor, or (b) the right of a terminally ill person to receive pain medication in an amount that, while necessary to manage the pain, will also kill her. Remember, the only hints you've got on the question are hints you can find in the Constitution itself. Which would you choose?

Admit it: you'd choose (a). And that's because the people who drafted the Constitution made no secret of their desire to protect their property rights; they studded the document with references to those rights. The textual hints that lead to choice (b)--to the extent that they're there in the text at all--are certainly more remote.

This is not to say that a decision declaring that (b) is a fundamental freedom with which government cannot interfere would be a wrong decision. (Neither is it to say that the Constitution is best interpreted entirely by reference to its text.) It's just to say that there's nothing self-evidently hare-brained about the idea that people's economic relations with one another (and their property) might deserve some form of judicial protection.

I'd be curious to know what you think Bill Murray's character whispers to Scarlett Johansson's character at the end of the wonderful film "Lost in Translation." Leave a comment.

Michael Froomkin is onto something big. Check him out.

The question is a fascinating one. I'll need to think about this one more: I think Michael is right, but I'm not yet completely sure that this system isn't preferable to the likely alternative. Work from the premise, for a moment, that there are people in the United States who are affiliated with foreign terrorist entities that are planning large-scale domestic terrorist attacks. Work from the further premise that as to some subset of that first group, it would compromise national security to let the foreign entity know in any way that the person has been caught. (That is, let's say that the government is trying to "flip" someone it has captured and send him back out into the world as a cooperator.) The government might do two things in such cases. It might (unlawfully but perhaps indetectably) try to hold that person indefinitely and secretly, or it might do what it's now doing: charge the person, give him lawyers, let his case be heard by life-tenured federal judges, but try to keep the whole case entirely secret.

I think the second option is a lot better than the first one. It may be that the second option is illegal. I'm thinking about that. But I would regret it if there were not some way to flip al Qaeda people captured within the United States consistently with the Constitution.

I took the test to find out where I am on the Political Compass.

My result surprised me. Using this chart (from Political Compass) as a guide, I was at a point just to the right of Nelson Mandela and a bit more authoritarian than the Dalai Lama. A touch below where the letter "s" is in the name "Nelson."


I do take comfort from the fact that Saddam Hussein and Yassir Arafat are both to my left.

On the other hand, it does worry me a little that I sometimes catch flak for my right-wing views here at UNC!

. . . for the plug, Sub Judice!