OC Federalist Society Student Chapters

What's a little waiting if it means universal care?

2008-01-26T10:02:00.001-08:00

Mark Stein hits it on the head:

Canadian dependence on the United States is particularly true in health care, the most eminent Canadian idea looming in the American context. That is, public health care in Canada depends on private health care in the U.S. A small news story from last month illustrates this:
A Canadian woman has given birth to extremely rare identical quadruplets. The four girls were born at a U.S. hospital because there was no space available at Canadian neonatal intensive care units. Autumn, Brook, Calissa, and Dahlia are in good condition at Benefice Hospital in Great Falls, Montana. Health officials said they checked every other neonatal intensive care unit in Canada, but none had space. The Jepps, a nurse and a respiratory technician were flown 500 kilometers to the Montana hospital, the closest in the U.S., where the quadruplets were born on Sunday.
There you have Canadian health care in a nutshell. After all, you can’t expect a G-7 economy of only 30 million people to be able to offer the same level of neonatal intensive care coverage as a town of 50,000 in remote, rural Montana. And let’s face it, there’s nothing an expectant mom likes more on the day of delivery than 300 miles in a bumpy twin prop over the Rockies. Everyone knows that socialized health care means you wait and wait and wait—six months for an MRI, a year for a hip replacement, and so on. But here is the absolute logical reductio of a government monopoly in health care: the ten month waiting list for the maternity ward.

Stossel on child "sex-offenders"

2007-10-22T22:12:00.001-07:00

My hero John Stossel has an interesting article on kids getting arrested and prosecuted for "sexual harassment."

One more question about Ahmadinejad...

2007-10-17T20:34:00.000-07:00

I've been considering whether any good could possibly come out of bringing up the Ahmadinejad story, especially now that we're all quite sick of hearing about it. But maybe that's a reason to bring up this particular argument now.

Throughout the coverage of the event -- in which Columbia invited the Iranian president to speak -- it seemed to me that we all go so hot-headed that we were incapable of even playing the usual "devil's advocate" position, you know, the one in which we at least pretend to consider what possible benefit there could be in inviting a radical, loony islamist to one of our great scholastic institutions.

If we are cooled down at least enough to do that now, I would like to posit one. Namely, it seems to me that one of the principal reasons of all the animosity against Americans is precisely that folks in that part of the world don't have any channel through which to communicate their ideas and their frustration with Americans. Even if they are loony.

Indeed, the official position of the Israeli media is to seek to maintain its monopoly on the Middle East perspectives that are offered to Americans by calling for further suppression of “the Palestinian perspective.” Israeli Consulate, http://israelemb.org/sanfran/News&Media/background/faq/peace.htm. Thus it should come as no surprise that the American media routinely report “on the personal and psychological impact of suicide bombings on Israelis,” but that Americans “seldom see stories about the impact on Palestinians of the occupation and all its aspects—the civilian deaths, the roadblocks, the land confiscation, the curfews, the depredations by settlers, the shootings by soldiers, the destruction of olive groves, etc., etc.” Kathleen Christison, New York Time’s Anti-Palestinian Bias, Arab News, Aug. 21, 2002, available at http://www.aljazeerah.info.

This is just one illustration of why we should be at least critical of suppressing any kind of speech. Regardless of the rightness of the views expressed, the value is simply in the expression. In other words, I would posit that if radical islamists had a ready channel by which to express their views, what would happen is not more terrorism. Instead, more people would understand why their position is ludicrous. As a result, once those radicals are able to vet out their ideas, put them in the marketplace of ideas, they would be forced to realize that their ideas are not being received not because no one has heard them, but because they really do objectively suck. Once they realize that people ARE hearing their message, and STILL not buying it, it would begin to sink in that they really are imbeciles.

Speech is as much for the speaker as it is for the listener. Anyone who's married, or been in any relationship for that matter, knows that basic truth. But these poor clods are sitting in the middle of the desert with no one with half a brain to talk to, no one to really listen, to really try to understand, and thus to provide a process by which they might work their way out of their muddle-headed, infantile thinking.

Now, I don't propose that allowing Ahmadinejad to speak was the right call, even assuming all of the above is true. I do appreciate the caution that we must take in hosting these radicals. And I am certainly wary of sounding anything remotely like Hillary. (In fact, why don't we take the same tack we did with Ahmadinejad when Hillary is invited to speak?) My only question is why none of this factored into the debate. At all.

One Costco, hold the eminent domain, please

2007-10-02T22:07:00.000-07:00

The city of Lakewood will host a new Costco, slated to open next year. As you may know, Costco has been a notorious abuser of eminent domain, pressuring cities to employ their sovereign power for their benefit. I thought it was interesting that this article thought to make it a point to mention that this particular store was takings-free. I'm not sure whether it's Costco or cities who are changing their stripes in light of the public's more watchful eye, but I'm glad just the same.

My child is a super student at Bureaucrat Elementary

2007-10-02T18:50:00.000-07:00

I've blogged quite a few times now about my disdain for public schools, especially when it comes to the First Amendment. The more we define the Constitution as protecting certain rights and forbidding certain government action, the less it looks like what we'd expect from a school charter.

So here is another article that made me think, sheesh, how is a kid supposed to get through a day of school without committing some infraction or another, and how is an administrator to ensure order without having to employ a whole gaggle of First Amendment lawyers?
And then it hit me. Of course! The government isn't interested in education. Why would it go through all the lawsuits, all the misery, for what's ultimately turned out to be one of the world's most disappointing school systems. No, the government is training an unholy army of bureaucrats, a host of fresh recruits adept at navigating the morass of unwieldy government infrastructure and First Amendment protections where they don't belong!

This is one thing I dislike about conservatives. Take the Bong Hits for Jesus case. Conservative Justices like Roberts and Alito don't like drugs, so they find a place in the school-exceptions to the First Amendment to allow administrators to squelch student speech, even when it's off campus. I don't want drugs in schools, either. But the answer is not to allow the government to keep drugs out of school (which is not an enumerated governmental power) at the expense of free speech (which is a fundamental individual right). That's just enabling government to keep running schools. The Court shouldn't balk just because the government really really wants to do something. It needs to uphold the First Amendment no matter where the government decides to stick its nose. That's the only way that it can be reminded where it belongs in our constitutional framework.

Department 2800

2007-09-24T09:12:00.000-07:00

I don’t want to simply add to the chorus of voices expressing concerns over Ahmadinejad’s visit to Columbia today. It just strikes me as ironic that the same faculty that will invite a madman, will build human chains to keep our military recruiters off campus. These people really are sick. On the topic of Iran, this little nugget was in the Early Bird News the Army distributes through it’s AKO portal. Pretty interesting stuff…

"Periscope
NewsweekOctober 1, 2007

Rise Of A Secret Unit

In his report to Congress earlier this month, Gen. David Petraeus claimed that Iran has a deadly new ally in its proxy war against U.S. forces in Iraq: a secret unit of the militant Lebanese Hizbullah movement called Department 2800. It was created, Petraeus said, "to support the training, arming, funding and, in some cases, direction" of Shia militia cells and turn them into a "Hizbullah-like" movement opposing U.S. forces and the Iraqi government. According to Petraeus, Department 2800's partner is the Quds Force, a secretive branch of the Revolutionary Guard Corps, Iran's principal internal-security apparatus. Petraeus also told Congress that U.S. forces had managed to capture the "deputy commander" of Department 2800. A U.S. counterterrorism official, who requested anonymity when discussing sensitive material, told NEWSWEEK that the operative was detained in March while he was canvassing insurgent cells in Iraq, helping them set up weapons deliveries, offering strategies for attacks and even arranging for some insurgents to attend training inside Iran. The Hizbullah rep, whose name was not disclosed, was also allegedly involved in planning a January attack in Karbala during which insurgents dressed as U.S. soldiers entered a secure compound and kidnapped, then later killed, five Americans."
— Mark Hosenball

No such thing as "de facto citizenship"

2007-09-22T20:51:00.000-07:00

The Federalist Blog has this interesting article on the original meaning of the Fourteenth Amendment's naturalization clause. Kind of a rehashing of other articles on the internet, but a good primer on the basic rationale against birthright citizenship.

The recounting of the ratification debate and the articulation of the very meaning of the naturalization clause, specifically the "subject to the jurisdiction of" clause, made me remember James Ho's article (writing the "con" side to John Eastman), in which he said that "no one disputed the amendment's meaning." If that is right, then apparently he is simply on the wrong side of the argument.

POW/MIA Remembrance Day

2007-09-21T08:37:00.000-07:00

I wanted to remind everyone to take a moment to reflect on the servicemembers who gave of their own life and liberty to preserve ours. At Whittier Law School yesterday, we displayed a memorial commemorating those who were taken held as Prisoners of War, and those who never came home. The sacrifices of a few preserve the freedom of many.

Federalist Paper No. 10

2007-09-20T08:45:00.000-07:00

Imagine you have a problem. Let’s say that it will cost $100 to purchase a solution to this problem in the marketplace. Let’s say you can donate $10 to your local politician to have a law passed that will solve your problem. Which solution do you choose?

That's right; you buy off the politician every time. It’s the only rational thing to do. Of course things are never quite that easy, and politicians are never quite that cheap. With the high cost of purchasing legislation, what is a concerned citizen to do? You form up with other like minded citizens and pool your resources together.

Congratulations, you just formed a faction. Perhaps you'll call yourself MoveOn.org or the National Rifle Association. The modern trend is for names totally devoid of actual meaning, like "Concerned Citizens for a Better Tomorrow." My personal favorite is mildly fictitious Billionaires for Bush.

When James Madison wrote the Federalist #10, his primary concern was how factions can push their own agenda at the expense of the public good. We can't really abolish liberty, and we can't really get everyone to want the same thing. The problems is that these factions are "disposed to vex and oppress each other [rather] than to co-operate for their common good." Madison noticed that "the most common and durable source of factions has been the various and unequal distribution of property." It shouldn't surprise anyone that landlords have a different set of interests than renters.

"It is in vain to say that enlightened statesmen will be able to adjust these clashing interests, and render them all subservient to the public good." Since the cause of factions cannot be eliminated, we must look at mitigating its effects.

A minority faction will be kept in check by the majority. The problem is that when the majority enters into a faction, it has the power to sacrifice the public good and the rights of other citizens in order to satisfy its wants. We need to prevent the majority form crushing the rights of the little guy.

One solution can be found in our republican (small "r") form of government. Because politicians must receive a large number of votes, it is harder for a small faction to unduly influence the politician. But if the electorate is too large, you loose the ability to represent truly local interests. Madison saw beauty in our constitutional government, where “great and aggregate interests [are] referred to the national [government], that local and particular to State legislatures.”

This should sound familiar: National government decides national issues like defense or interstate commerce. Local government decides local issues, like education and zoning.

Madison also took note that slim majorities tend to oppress the opposing faction. The larger the majority, the more encompassing it’s interests. Likewise, a slim majority mean you only need to buy off (or “support”) a small number of legislatures. The large majority provides a more difficult target for a small special interest group to influence decisions. This brings the government price for a solution much closer, if not greater, than the market price.

A charismatic individual, a particularly powerful local religion, or a politician with questionable ethics will be kept in check by countervailing interests from other places. This is the advantage of the federalist system. Local interests dominate local politics, but do not dominate national politics.

This should sound familiar: National government decides national issues like defense or interstate commerce. Local government decides local issues, like education and zoning.

Justice Stevens measures an opinion's relevance by its social significance

2007-09-19T22:34:00.000-07:00

In a recent interview with Justice Stevens, the senior Justice has this to say about a recent decision (in which he was in dissent) that upheld a federal ban on partial birth abortions:

On the issue of abortion, however, Stevens has failed to persuade Kennedy to vote consistently with the liberals. I asked Stevens about the decision last term in which Kennedy, writing for the five more conservative justices, upheld the federal ban on partial-birth abortion. Stevens said that the federal ban was deeply flawed and that Kennedy’s rhetoric about the need to protect women from the emotional trauma of abortions was frustrating. But he noted that the real-world effect of the defeat was minimal because of the widespread availability of alternative abortion procedures. “The statute is a silly statute,” he said. “It’s a silly statute.” He added, “It’s just a distressing exhibition by Congress, but what we decided isn’t all that important.”

I couldn't help but be alarmed by that last bit. If the Court gets something wrong, it's very important. The social effects are ancillary to proper interpretation of the Constitution. Ironically, this quote comes just after he gets finished talking about how he is shocked that people consider him to be liberal.

Expansive agency power is...the President's fault??

2007-09-18T22:23:00.000-07:00

Professor Tamanaha has a post over at Balkinization in which he takes a critical view of the President's excercise of power via that mysterious "fourth branch" of our government: the agencies. He reminds us that "all legislative power" is vested in Congress, leaving exactly no power for the President to make law. He seems to imply that the presidency, and Bush in particular, has somehow usurped lawmaking power for itself. And this has undermined our system of democracy, especially since many presidents tend to abuse their power by filling agencies with their cronies at the eleventh hour.

I couldn't help but feel that I was being hoodwinked. Congress, of course, is responsible for establishing agencies, not the President. And, under the Constitution, the President has a helluva lot of discretion in staffing the agencies as he sees fit. Tamanaha complains that the President is able to essentially skirt the democratic process in the way he staffs the agencies with those who would dutifully fulfill his policies, with basically no democratic oversight.

But this is not a failing of the President. The Constitution establishes three branches, each carefully interconnected and interdependent, and each with unique checks on the others. The Framers did not depend on politicians' moral fiber or sense of homage to lofty principles of democracy. This was the very point of the famous Federalist 51: "If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary."

The point? Our Constitutional strictures on what Congress, the President, and the Court can each do, are not there to be a 200-year-old wet blanket to the neat new federal programs we'd like to roll out. They're there precisely because men (not angels) need well-defined boundaries to their power, otherwise men (not angels), would feel no compunction about abusing their power.

If you don't like what a politician does, vote him out. If you don't like what a politician can do, then your beef is with the Constitution. Don't like that the President is the Commander-in-Chief of the military? Neither Bush nor any other president gave himself that power--it derives from the Constitution. Don't like that the states don't have any power over immigration? The Congress doesn't decide that--the Constitution grants Congress plenary power over immigration.

Of course, in the case of agencies, which don't actually have any real Constitutional justification, you can thank big-government-progressivism and the giant Stay-Puft-marshmallow-man of a government we've now got because of it. The notion that principles of democracy can be found in that sticky mess really is, to borrow a line from Tamanaha, "convincing only to theorists who prefer abstraction over reality."

Originalist Progressives?

2007-09-18T17:28:00.000-07:00

Over at The New Republic, a couple of Yale law profs post an article on how Progressives can use the principles of Originalism to achieve their ends. They have this to say to sum up their argument:

Quite simply, then, progressives can argue that they are committed to achieving the Constitution's purposes. Protecting equal citizenship in work, education, and the family is necessary to establish the democracy the Constitution seeks to secure. Subordinating arbitrary executive power to the rule of law is necessary to safeguard the freedom the Constitution exists to preserve. Enabling the federal government to meet the needs of its citizens is necessary to sustain the powerful nation the Constitution seeks to create.

If I was a little unclear on exactly how their approach was not just the same old Progressivist creedo that I've always heard, this paragraph confirms that it is simply that. Spinning the Constitution to mean whatever we'd like to think it should mean, or it should have said, is the same Progressivist plot as ever. And it necessarily raises the question, why would anyone create a constitution in the first place? We can look to the common law and ratification debates and the Federalist Papers just as well without the Constitution. The Progressivist view belittles the Constitution to something on the order of a formal memo rather than a framing document.

Health-care for all? Why not!

2007-09-16T21:18:00.000-07:00

Over at Balkinization, Paul Finkelman writes a piece calling for more socialized healthcare. He likens the line-up of states that will have health care to those that don't like the pre-Civil War free and slave states. Very dramatic stuff. Although somehow basic human freedom doesn't compare well with crappy (but free!) healthcare. At least Canadians can opt out of the several-year-long waits by coming here.

Birthright citizenship pro/con

2007-09-16T17:34:00.000-07:00

Here are a couple of good pro/con articles on the birthright citizenship debate. The pro is written by James C. Ho, the con by John Eastman. Ironically, both are former clerks to Justice Clarence Thomas.

Self-destructive human tendencies

2007-09-15T15:31:00.000-07:00

I came across this highly entertaining video on YouTube. It's video footage of various bus lanes in France. The lanes have a barrier to ensure that only busses are able to pass. When a bus pulls up to the barrier, there is some kind of weight sensor, and the barrier retracts into the ground. There is footage of three drivers who try to follow the bus to pass the barriers, but predictably, they all get impaled. One of them is probably going 15-20 mph when she smashes into the barrier. It turns out that she had a baby in the back seat.

The whole thing reminded me about spring guns. Every law student remembers the infamous case where an owner sets up a shotgun with the trigger connected to the door, which fires upon the unwitting trespasser. Although apparently no one has suffered serious injury from these barriers, I wonder, is it a good policy? Clearly in the U.S. we have refrained from condoning such "Darwin awards" -- practices in which folks may tend to get hurt, but only from the consequences of their own dumb actions. But maybe it wouldn't be such a bad idea to stop shielding the more dim-witted of us from the natural consequences of our actions. We are more than willing to monetize punishment, but one gets the sense that some people react better to monetary damages, and some people react better to a bonk on the head.

At any rate, I guarantee none of the folks in this video will try to cheat the bus lane again.

More evidence that you can use facts to prove anything

2007-09-15T09:08:00.000-07:00

Volokh Conspiracy reports that many scientific studies may be sloppy and result-oriented. This may be trouble for pragmatists who seek to shape policy through the courts by use of such studies.

As Homer Simpson has said, you can use facts to prove anything that's even remotely true. Forty percent of all people know that.

More debunking of the environmentalist religion

2007-09-14T09:40:00.000-07:00

So it turns out that the whole "organic" craze is just that. "Organic" foods are not healthier, not safer, and do not preserve the topsoil or increase sustainability. Now let's see how long it takes for folks to internalize that truth. After all, it feels pretty good to think that we can do something that's good for us as well as for our planet. Contrary evidence can be such a buzzkill.

First Amendment Lite -- Goes Down Easy for Schools!

2007-09-13T23:59:00.000-07:00

On the anniversary of 9-11 this week, a North Carolina high school banned students from wearing t-shirts depicting the American flag (or any other flag). Also this week, in our own backyard, Palos Verdes school officials apologized for their overzealousness in squelching student speech when they took to hacking the little rifle-bearing limbs from the army men that students had affixed to their graduation caps in a salute to our overseas troops.

It makes me very nervous that students are given a completely different, and drastically reduced, measure of First Amendment protection. The U.S. Constitution was not written as a school charter, and that pesky freedom of speech would make it hard to establish an effective pedagogy. Government-provided education isn't guaranteed by the Constitution, of course, but dammit it should be, right? The children are our future, surely our Founders can't argue with that. Thus we should employ an appropriate level of generality to the First Amendment such that public school administrators can trample on what would otherwise be protected speech.

Of course the fallacy in that argument is that there is no fundamental right to public education. But there is such a right to free speech. So what happened such that a fundamental right got trampled under what is basically a non-right? Actually, don't answer that. It's too depressing.

The water rationing guilt trip

2007-09-13T23:31:00.000-07:00

Long Beach is urging its residents to cut back on water during this dry season. What troubles me about these calls to ration resources is that it relies on moral persuasion rather than self-interest. For example, no one would every say "cut back on buying iPhones since there aren't enough to satisfy the demand." Instead, the price would simply go up so that those who want it most will have access. Those who don't want it as much will wait until demand subsides.

But when it comes to electricity and water, instead we rely on these moral imperatives. "If you don't cut back, then there won't be enough for everyone." What winds up happening is that those folks who are unfortunate enough to have scruples, a high ethical standard, will heed the warnings and cut back. And those folks who don't give a rip about anyone else as long as they get theirs will go on using just as they always have. At bottom, this kind of rationing is a tax levied only on good citizens, a punishment for caring about your community.

I don't know much about how these utilities are regulated, but I'm guessing that some manner of regulation prevents the utility companies and water districts from simply upping the rates of usage to assuage the demand instead of having to resort to begging.

Chemerinsky II

2007-09-13T13:34:00.000-07:00

Hugh Hewitt has been weighing in on the Chemerinsky issue, check out some of his recent comments here... As always, prescient insight.

Chemerinsky

2007-09-12T15:15:00.000-07:00

Chemerinsky says UC Irvine rescinds offer to become law school dean
quote of the day:
"'If there's room for Ken Starr and John Eastman to be the dean of a law school, there's room for Erwin Chemerinsky,' Levenson said, referring to the conservative constitutional scholars who are the deans at the Pepperdine and Chapman law schools, respectively."

I don't know what is more surprising... that the LA Times didn't explicitly refer to the vast right wing conspiracy at work in this rescission, or the fact that they credited Dean Starr and Dean Eastman with the proper classification of "constitutional scholars."

Federalism and Drug Policy

2007-09-12T12:34:00.000-07:00

Radley Balko poses an interesting dilemma today, in his article posted on the Politico entitled, Federalism should extend to marijuana raids. In the closing paragraph he posits, "You can be a federalist, or you can be an ardent drug warrior. But you can't be both." He spends most of the piece discussing the the contradictory positions of both Giuliani and Thompson as advocates of a localized approach to a myriad of complicated "issues of the day," while also noting that the two have argued that the federal government needs even greater power to confront the issue of drugs. Is Balko right, that being a federalist and supporting the "War on Drugs" is a proposition that is mutually exclusive?

With the exception of many libertarian and a few conservative thinkers, i.e. W.F. Buckley, the advocacy of decriminalization of medical marijuana has largely been a task undertaken by the left. It is also one that the right has eyed with suspicion out of a fear that a slippery slope effect would promulgate numerous other drug decriminalizations . This, coupled with the inherent goal of seeing drug use reduced, has placed a majority of conservatives on a trajectory that may in fact betray our federalist instincts.

In this instance, I am inclined to stand with Justice Thomas and recognize that regardless of our opposition to medicinal marijuana, constitutionally, it is an issue that should be dealt with in the laboratories of policy.

A near miss on the coerced conservation front

2007-09-11T20:11:00.000-07:00

The trend these days is to say if you won't conserve willingly, then we'll have the government make you do it. That's almost what happened in Petaluma recently. The city council rejected a proposal to make all new home buyers pay for expensive inspections and retrofittings to make households use less water.

What's the worst case scenario? People will have limited water, and will have to spend more money on store bought water, and maybe be a little smelly. At least then they will know -- without the government having to tell them so -- that water conservation is a useful thing.

San Fran ID Card for Illegals

2007-09-10T22:05:00.000-07:00

San Francisco wants to give illegals ID cards. City supervisor Tom Ammiano said "the impetus for the city cards came from the immigrant community, which asked for his help. Illegal immigrants who are victims or witnesses of crime often do not report the incident because they have no identification and fear deportation. Identification also is needed for many services, such as city health care."

Why not? Scofflaws are so cute.

La Raza Grant

2007-09-10T21:52:00.000-07:00

Senator Chris Dodd is sponsoring a bill to give millions of dollars to La Raza, which will use it towards giving loans to low income Hispanic families. No really, that's what it says:

. . . particularly through organizations located in neighborhoods with substantial populations of income-disadvantaged households of Hispanic origin.

Wacky.

The rest of the article here.

Should a Presidential candidate's religious views be taken into account?

2007-08-22T11:22:00.000-07:00

Mark Kleiman over at The Reality-Based Community posted this last month, criticizing Richard John Neuhaus, a Catholic, for encouraging voting against Mitt Romney because of his Mormonism. Kleiman apparently feels that this is mere hypocrisy and prejudice, that the same tack could be taken against a Catholic candidate, and that apparently only sheer tenacity can justify a belief in any religion.

Should a candidate's religious beliefs be taken into account? It's a fair question, and in a way it goes all the way down to the glory and the agony of our democratic process. On the one hand, most people probably regard a candidate's faith a matter of, well, faith, something that does not need to be convincing or corroborated by any objective standard. On the other hand, few would hestitate to condemn a cult, or to slap a branch davidian upside the head, or a scientologist for that matter, if a lawsuit was not so sure to follow. Mankind is (allegedly) a rational species, and we should resort to "faith" only when we lack the present ability or knowledge to explain what our intuition tells us. Faith is a gap-filler where we seek to act without a rational explanation. But when faith and reason contradict, we should at least be skeptical, for if there is a God, his nature is surely one of reason, and wants us to discern truth from craziness.

As for Mormonism, most of what I know is derived from South Park. There are Mormons who are idiots. But there are Christians and Jews and Muslims and everything else who are idiots. I know Mormons who are much smarter than me. And I know of Christians who engage in anal sex to keep their virginity intact. It's a mad mad world out there. We need to ask the questions to see who we're dealing with. And saying that something is a matter of "faith" is not a get out of jail free card.

So I say, go ahead, factor in Romney's religious beliefs in making your vote. But ask the questions first. What is his defense for his faith? Does he test his beliefs? If not, chances are he won't test his other beliefs either, and that's a dangerous thing, because that means he's an idiot. But don't just vote for the Mormon guy, or the Catholic guy, or the Protestant guy. Because that means that you're the idiot.

More reasons why public shools should be abolished

2007-08-18T20:51:00.000-07:00

This article lists some recent examples of why our national Constitution is simply not a proper template for a school system constitution. Free speech means quite a different thing when it comes to schools, and because there is precious little evidence of what our Constitution means by "freedom of speech," we are at the mercy of the Court to determine what our kids can say, and what our school administrator's can and cannot prohibit. That is just too much political heavy-lifting to leave to the third branch.

More Ohio Redevelopment Plans Backfire

2007-08-18T20:33:00.001-07:00

Ohio courts again say no to Kelo-type takings, striking down another redevelopment project to take property to give to a private developer. This time, the judge gave $335,000 in attorneys and witness fees to the owners of a Hardee's and an Arby's, the last holdouts in a redevelopment plan.

Read the story here.

What do Sixty-Five Million Dollar Pants Look Like?

2007-05-07T22:44:00.000-07:00

When I first heard about this story, about how a D.C. administrative law judge was suing a dry cleaning business $65M for lost pants under a consumer protection law, it made me wonder whether it wouldn't just be better to settle these things under a more equitable common law than strict liability statutes. The law gives $1,500 per day per violation. I'm sure the law does a lot of good, but I can't imagine it doing enough good to justify these poor dry cleaners from having to sustain $65M in damages for something so silly. Just let judges sort it out through tort law.

Armed Miss America 1944 stops intruder

2007-04-21T13:48:00.001-07:00

Fri Apr 20, 8:16 PM ET

Miss America 1944 has a talent that likely has never appeared on a beauty pageant stage: She fired a handgun to shoot out a vehicle's tires and stop an intruder.

Venus Ramey, 82, confronted a man on her farm in south-central Kentucky last week after she saw her dog run into a storage building where thieves had previously made off with old farm equipment.

Ramey said the man told her he would leave. "I said, 'Oh, no you won't,' and I shot their tires so they couldn't leave," Ramey said.

She had to balance on her walker as she pulled out a snub-nosed .38-caliber handgun.

"I didn't even think twice. I just went and did it," she said. "If they'd even dared come close to me, they'd be 6 feet under by now."

Ramey then flagged down a passing motorist, who called 911.

Curtis Parrish of Ohio was charged with misdemeanor trespassing, Deputy Dan Gilliam said. The man's hometown wasn't immediately available. Three other people were questioned but were not arrested.

After winning the pageant with her singing, dancing and comedic talents, Ramey sold war bonds and her picture was adorned on a B-17 that made missions over Germany in World War II, according to the Miss America Web site.

Ramey lived in Cincinnati for several years and was instrumental in helping rejuvenate Over-the-Rhine historic buildings. She returned to Kentucky in 1990 to live on her farm.

"I'm trying to live a quiet, peaceful life and stay out of trouble, and all it is, is one thing after another," she said.

A Moment of Silence in Remembrance, and Preparation

2007-04-17T11:17:00.000-07:00

I scheduled John Lott months ago to come speak at Chapman. The scheduled appearance was for yesterday at noon, the topic "The Bias Against Guns." Then the shooting happened at Virginia Tech, and everything momentarily froze. Lott was scheduled to speak at several schools, and I think a few considered cancelling, thinking it inappropriate to have a gun event after what had occurred. I kept our scheduled event, even after Lott was 15 minutes late because he was on the phone with CBS.
I think the event actually comforted a lot of us. Lott opened with a moment of silence, and it gaves all a moment of unity. People had RSVP'd because they loved guns, because they hated guns, but there was a good moment there where all of us just sort of stopped, and just got it for a second--regardless of our opinions, we're all people, and we can't forget that, because the shooter this morning had.
Lott made some really good points. He of course made the classic one, that gun control laws only keep guns out of those that follow the law anyway. He then made the practical one, that police are critical but they can't always be there, and generally brandishing a gun is all you need to get a criminal to run away. But the one that struck me the most was about the media. He said to watch closely in the upcoming weeks how many soapboxes are occupied, and not just by people condemning guns, to watch how everyone uses this to pin this on someone, and what stories the media picks up. He freely admitted he'd be advocating for his side of the argument, but it was obvious to all of us there would be no room for him to advocate for gun rights--he was going to be playing defense for a long, long time.
Lott told us a few stories that the media never brings up. Like how in Columbine, the only other person on campus with a gun was a guard that had been assigned to the school because he was the worst shot on the force. That one guard shooting blindly around a corner held back the two shooters long enough for several students to escape from the library--the footage that's always shown on the news. Or how in a 1000-ft gun free zone around a school, the vice principal was ex-military and kept a gun in his car and refused to take it out, so he parked 1/4 a mile away. When there was a school shooting on his campus, he ran over 1/2 a mile to get to his car and back, used his gun to threaten the shooter and force him to the ground, and held him there until police arrived (something like 20 minutes later). Or still another school shooting, where one ex-sheriff and another student with a concealed weapons permit had guns in their cars, ran and got them, and stopped the shooter just yards from his car, which he was going to for more ammo. They kept their guns trained on him until another student was able to rush him and tackle him to the ground. The media reported the tackling student was a hero. Only a handful of local papers even noted the two with guns.
Right now I'm sitting here at school in what I'm sure is a gun-free zone. I don't feel any safer. We need to keep guns out of crazy people's hands, I get that. But I also get that police are only going to be able to arrive after the fact, and there will always be someone who slips through the cracks and gets ahold of something deadly. So how is the solution to take away everyone else's defense? I know it's just a hypothetical what if, but really, what if one of those teachers had a gun to shoot back? And what does it contribute to these shooter's minds, knowing they're going into a situation where they are in total control, where they have complete power, and where they can horribly slaughter people for as long as they like without a single person being able to shoot back? They walk in and KNOW they're the only firearm for 1000 feet.
What happened yesterday disgusts me, saddens me, and terrifies me. It's hard to believe there are people out there that are so soulless. And it terrifies me that in California, there is very little I can do about it.
Incoming presidents, here is an important event that you should join together and organize: firearm training, a day at the range, how to get your permit, and what it takes to get a concealed weapons license in this and surrounding states. Passive compliance doesn't work with psychopaths. I want to be able to shoot back.

Does Overruling Require a Magic Incantation?

2007-04-17T01:06:00.000-07:00

The Chapman Law Review is currently editing articles for our Miranda symposium issue. A professor asked us if we bought into the idea that Escobedo was not overruled. That was the case that the government relied on (and lost) in arguing the Miranda case. Miranda went the other way, but didn't ever actually say that Escobedo was overruled. Instead, it was held very narrowly to its facts.

I say bull.

It seems to me that court opinions are a very funny thing, because their legal force is purely about persuasion. Contrast this with statutes, which you have to accept as law no matter how poorly they're written, no matter how slim a majority they were passed with, no matter the change in the legal and political and social landscape, etc. We have theories on "deep" and "shallow" holdings (the depth of analysis that accompanies a holding) and "wide" and "narrow" holdings (the sheer number of factual instances the holding applies to). In close issues, courts will issue fractured opinions, and we have things like the Marks doctrine to help us determine whether and how much authority a plurality opinion has, whether and how much force Justice Kennedy's concurring opinions have as of late, whether his opinions are the governing ones as he sits in the middle of the other justices.

Personally, I find it all a lot of nonsense, saying certain opinions are "good law" or "bad law" and whatnot, when it comes to these close cases and schizophrenic courts. For example, in studying the religion clauses, particularly the establishment clause, I personally don't think that we have any governing court holdings--no "good law"--at all. Especially now that a couple seats on the court have changed--and especially since one of them was O'Connor's. When the Court can't set forth a definitive rule, then it's really not a rule in my eyes, it only gives a judgment as to the current case, and gives some sort of prediction (or not!) about how those justices might rule in the next case. Sure, that's true of any holding, to a degree. But when you get a lot of solidarity at the time of the ruling, it carries exponentially more weight. When a court is badly fractured, all the opinion(s) do is give lawyers an idea of some of the considerations that the court might look to--beyond that, it's a crapshoot.

Anyway, I digress. I think it is quite right that it is silly that a case should not be considered overruled unless those "magic words" are uttered. So, given what I've said above, you can probably guess that I would say that, if we're being intellectually honest, yes, Escobedo is overruled. But, it seems that in reality, people do like those magic words, and people like to maintain the fiction that cases and opinions can still have persuasive effect. It seems to me that law is philosophy for non-philosophers (aka, attorneys), and for some reason attorneys like having all these partially torn-down houses laying around so that they can scavenge bits and pieces from time to time as it suits them.

I learned recently that when the California Supreme Court grants review of a case, the appellate ruling is automatically vacated of all precedential value. Even if it is ultimately upheld. At first I thought that a bit drastic, but now I think it is quite a good idea. No sense in having shadow opinions of a case laying around.

In short, I think that in these close cases, all the Court is really doing is offering advisory opinions. The only reason they're not calling them that is because the Court isn't allowed to give advisory opinions. So we're stuck with the intellectual dishonesty of calling it "law" even though they're anything but.

As to Escobedo not being overruled, I say, in the words of John Stossel, "give me a break."

Victim Strikes Back Against ADA-Abuser

2007-04-16T22:57:00.000-07:00

I've heard about these stories a lot over the last few years. Unscrupulous lawyers finding handicappers for hire to go into small business and find some little infraction or another--such as a bathroom mirror that is too high--and sue the pants off them.

Now one of these owners is striking back, filing a lawsuit for abuse of process, fraud, and malicious prosecution, against David Gunther of Morse Mehrban. Gunther says that claim is "without merit." How's that for irony?

Justice Blackmun's Rating of Oral Advocacy

2007-04-10T22:47:00.000-07:00

Justice Blackmun routinely rated the skills of oral advocates who spoke before the Supreme Court. Here is an article describing his calculus and some of the advocates to which it was applied--including presently sitting Justices Roberts, Alito, and Ginsburg (they received mediocre scores!)

Book Report Establishment Clause Problem

2007-04-10T21:00:00.000-07:00

An 8th grader did a book report on the book of Acts, but was stopped in the middle of reading it for fear that it would violate the Establishment Clause.

I don't see what all the fuss is about. Just make a list of government-approved books, and burn all the rest. What could possibly be the downside of that?

More on book burning.

Man Jailed for Protecting His Property

2007-04-10T20:46:00.000-07:00

The debate rages on over a Sacramento man who shot and wounded a man trying to break into his car. Some say that human life should not be put in jeopardy in order to protect property. Another solution might just be to keep your hands off other people's crap. Doesn't seem too hard to understand...

A third view: if you have the opportunity to stop someome from stealing your stuff by use of deadly force, but refrain under pain of law, and the authorities are unsuccessful in recovering your stuff, the state should pay for your stuff. That seems fair to me: the state gets to protect life, and you get paid the value of your losses. Win win.

There's gold in them thar consciences

2007-04-09T18:35:00.000-07:00

From the OC Register
In a sad case of a family's 13 year old son having an epileptic seizure, paralyzing him, the jury decided that it would make them feel a little less sad if they bled the school district to the tune of $7.6M. All this despite the fact that the school had urged the family to let them bus him to another school where they had a full time nurse to prevent such a tragedy.

Just think how much money they would have gotten if the school was actually at fault!

Prop 13 Limit on Property Taxes Under Review in the Legislature

2007-04-06T16:33:00.000-07:00

The OC Register has this editorial on assembly bill ACA8, brought by new Democrat Assemblyman Jared Huffman of San Rafael. Prop 13 was passed in 1978 to limit property tax increases. When taxes are based on the property value and that value increases, so do your taxes. Prop 13 "freezes" your tax rate at the purchase price of your property, and can only rise by 2% a year. (Incidentally, this creates an incentive for cities to take your property via eminent domain, so that it can resell it, capitalizing on the increased taxes, assessed against the current value instead of the old value. See my paper, Who Will Redevelop Redevelopment? Power and Pragmatism in California Redevelopment Law, at SSRN, soon to be published in the Albany Environmental Outlook Journal.)

The new bill, if passed, would allow this 2% tax increase cap to be changed by a 55% vote rather than the 2/3 vote under Prop 13.

The OC Register is known for is libertarian stance. Thus this bill is bad simply by virtue that it would give more tax dollars to the government. It is the view of absolute skepticism about governmental power. Consider this quote from the article:

Unlimited taxing power is destructive. It follows therefore that the more
limited the taxing power, the less damage it can do.

This argument is clearly flawed. Just because too much of something is bad doesn't mean that eliminating it is the answer. Drinking a gallon of milk at one sitting is bad. But that doesn't mean I ought to cut out milk from my diet altogether.

Don't get me wrong. I am no fan of taxes or big government. But I would caution against committing the fallacy of condemning any tax bill simply by virtue of the fact that too much tax is a bad thing. Every tax should be judged on its own merits. The OC Register doesn't bother going that far here.

Modern Problems Forecasted by an Adolescent 100 Years Ago

2007-04-04T15:53:00.000-07:00

Back in 1901, a clever 14 year old forecasted our modern skyscrapers and traffic congestion problems. He suggested that we'd have stacked air ships to prevent gridlock. Little did he know that the real way to commuting bliss was to take large military tactical vehicle Hum-Vee form factors and adapt them to urban use and otherwise populate our limited highway real estate with the largest possible vehicles for our solo commutes. He was just 14, how could he have known?

Religion & the Law Symposium Roundup

2007-04-04T00:36:00.000-07:00

Here are some of the highlights from the Religion & the Law symposium at Chapman Law School last week:

Prof. Charles Whitebread gave a summary of current religion clause jurisprudence. Most notably, anyone who wants to defend any religion in a school or government organization will have to answer Justice O'Connor's challenge: Why would we abandon a system that has worked so well for one that has worked so poorly for others? Of course, O'Connor is a very bad historian, as John Eastman pointed out later that evening, and so the answer to that question first requires a refresher in our constitutional development.

Robert F. Cochran discussed the trend of Catholics on the Supreme Court. He suggested that natural law theory offers an intrisically valuable base for jurisprudence, as the exercise of reason itself reveals natural law. It gives us a theory of higher values to aspire to and with which to hold our laws in conformity.

John Eastman criticized Justice O'Connor's schizophrenic view on the religion clauses. Everson (the case that incorporated the establishment clause some 50 years ago) was simply wrong--both as to the scope of the establishment clause and to its meaning (it never meant to bar religion per se, but only sectarianism). He answers O'Connor's charge by saying that yes, our system did work well, before we started mucking it all up! (He said it much more eloquently than that, of course.) Our founders saw religion as critical to an ordered civilization, which needs moral constituents. Without moral virtue, we will never be able to govern ourselves.

Unfortunately I had to leave before the final speaker, Ninth Circuit Judge Jay Bybee. Hopefully I can get the notes from one of the other attendees.

Muslim Loses School Veil Appeal

2007-04-03T23:40:00.000-07:00

Religion News Blog has this update on the Church of England school case in which a female Muslim school teacher was fired for insisting on wearing a veil. Watch the video. It's highly entertaining watching (or listening, I guess--you can't see her face now can you...) her squirm to the question of whether she interviewed with the veil on: "Do I have to answer all the questions?" she asks.

Global Warming Spawned Deadly Jellyfish?

2007-04-03T23:15:00.000-07:00

According to this UK news site:

A deadly species of jellyfish, translucent and the size of a thumbnail, is spreading along Australia’s coastline as a result of global warming, scientists warned today.

Wow, really? Terrifying. Apparently global warming does have some immediate ramifications.
I decided to read on. At the very bottom of the article, here is the explanation:

Increased sea temperatures caused by global warming would extend the species’ range south, Dr Seymour said.

Hm. So if global warming causes the sea temperatures to rise, then it would extend the species' range. But I thought the article said that the jellyfish were there because of global warming in the first place? So was that just an alarmist hook to enhance readership? Journalists wouldn't do that, would they?

Theism in the Judiciary?

2007-04-02T23:03:00.000-07:00

According to Judge Janice Rogers Brown, a judge for the U.S. Court of Appeals for the District of Columbia Circuit, “Christianity at its best is the foundation of reason and liberty.”

I believe this is truer than perhaps even Judge Brown realizes. Although I have never heard anyone describe this problem this way, it seems to me that the judiciary is by its very nature in an odd epistemic position. The courts interpret the law, that much is clear. That means that, when it is behaving as it should, it doesn't impose its own value judgments, it doesn't take any truths for granted except what the legislature tells it.

But what about the laws of logic and rationality? What about the principles of induction and causation, which David Hume long ago showed have no basis in pure empirical thought? Clearly it is acceptable for the courts to take these truths for granted. But on what basis? The constitution doesn't set forth these truths. The legislatures have not done so. So is assuming the universality of these rules an example of "judicial activism"?

In my view, this is the best argument for having a judiciary that is governed by natural law. It explains why our founders identified with a higher law, and that the truths of these higher laws were "self-evident," and that they owed to a supreme being. If our nation denied the transcendent truths of the universality of those things that define our humanity, we are left with a truly arbitrary existence.

A legislature can operate by whatever rules it likes. It is the will of the majority that governs. But to avoid the tyranny that this arbitrary mob would eventually lead us, a judiciary is needed. And this judiciary must find its basic governance--the laws of logic and rationality and order--in a transcendental source. In America, that source is "the laws of nature and . . . nature's God."

Bong Hits 4 Jesus, the First Amendment, and the Public School Problem

2007-04-02T18:26:00.000-07:00

I thought it was about time to say something about this case. Apparently, it doesn't stand for "Bring On the National Games, Head Into Town for Jesus." Shocking. The basic facts are: an Alaskan student made a banner and displayed it--not on school property, mind you (if I'm not mistaken, he ditched school to attend the non-school-related event) at a town event watching the Olympic runners on their way to Salt Lake City. The banner read: Bong Hits 4 Jesus. Principal Deborah Morse tore down the banner and suspended the student--Joseph Frederick--for 10 days.

Now, the general idea is that free speech is afforded less protection at schools, due to increased importance of maintaining a well-ordered and efficient environment for shaping young minds. And to tell you the truth, I'm all for it. Problem is, if public schools start making that argument too well, it's going to raise the question: given the importance of efficiency and order, what on God's green earth is the government doing in the education business in the first place?

In other words, why don't we let the argument from the importance of education go the whole distance in solving the First Amendment problem in public schools: Do away with public schools.

(Speaking of First Amendment issues at public schools, here's one to watch out for: Students sue to wear anti-gay T-shirts at school on National Day of Silence on April 18.)

Tammy Bruce's Talk at Chapman

2007-04-02T18:01:00.000-07:00

Tammy Bruce's visit to Chapman last week was one of the highlights of the semester thus far. Even at Chapman's relatively conservative, hard-to-offend campus, we had a couple of walk-outs towards the beginning of her talk. Ms. Bruce focused on the importance of speaking your mind and refusing to be silenced by the new "thought police" (a.k.a., the liberals), who want you to believe that everything you believe is not only wrong, but immoral and seditious.

Topics included those taboo two-syllable words that have the letters "gg" in the middle. One of those words, the one that starts with an "N" (sorry, Tammy, I'm still too frightened to even write it out loud), has an interesting bit of history behind it. Apparently it's not necessarily tied to black folks, but to any dark skinned folks. It is used by the Spanish to refer to the Mexican Indians, and also by other races as a derogatory reference to an underclass. But we don't know that, because we're not allowed to say the word for fear of offending people!

Ms. Bruce abhors Jesse-Jackson-esque "false victim" mentality, and warns not to let the left dictate our morals or influence our impressions of folks when muckraking terms like "racist" are thrown at people, who have no chance of defending themselves--after all, it's impossible to prove a negative!

She uncovered the left's basic mind-controlling agenda:
Step 1: Make it taboo to say it.
Step 2: Once we stop saying it, we stop thinking it.
Step 3: The issue is now left to those in control who may proceed to control the definitions and dictate morality.

Learn more about Tammy Bruce here.

Political Correctness' Next Victim: History

2007-04-02T17:44:00.000-07:00

Some UK teachers have stopped teaching controversial subjects like the Holocaust and the Crusades. That's one way to beat Godwin's Law (as an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one).

Political Correctness Awards

2007-04-01T23:43:00.001-07:00

The Absurd Report lists some of this year's political correctness highlights. Here's my favorite:

4. The University of Michigan – One day after Michigan voters approved an initiative banning affirmative action in university admissions, President Mary Coleman delivered a speech, promising to devote the “full focus” of the University of Michigan to “defending diversity” and fighting the initiative in court. Between Election Day and December 23, 2006, the day when the ban on affirmative action took effect, the administration pushed through as many minority applicants as possible. Who cares what the people of Michigan think? President Coleman and her ivory tower cohorts know better!

Secularism Killing Europe?

2007-04-01T23:23:00.000-07:00

Pope Benedict XVI implied that secularism is ruining Europe, and that it should return to its Christian heritage.

I attended an Ayn Rand Institute lecture some months back on religion in America. That group is decidedly atheistic. But interestingly it wholeheartedly rejects European secularism. Europe's problem is that instead of replacing religion with some other commitment, they replace it with nothing, or with hedonism. That's left them open to Islam, or in the alternative to some pitiful, valueless existence. ARI folks seem to agree that even Americans' religiosity is better than the empty-headed European approach.

Hillary and the "Sign of Coercion"

2007-03-26T23:31:00.000-07:00

Notice the crossed fingers--the "sign of coercion."

New Senate Bill Creates anti-SUV Incentive Program

2007-03-23T17:27:00.000-07:00

From The John & Ken Show:

Did you know that you already pay about $1,500 dollars of taxes when you buy a new vehicle?
Well, for some government regulators, that’s just not enough. Now, they want to more than DOUBLE taxes on some vehicles. Right now, Assembly Bill 493 in the California legislature would do just that.
Some Government officials in Sacramento have come up with a scheme to force families who choose new minivans or SUVs to pay a $2,500 penalty to the state. The government would then take the $2,500 and “rebate” YOUR money to someone else buying a car that the bureaucrats favor. . .

more here.

Here's my two cents on both sides of this issue:
On the one hand, I don't appreciate having to park in 3/4 of a parking spot because mom's street tank is oozing out the sides or hers. I see no reason why people need the most massive vehicle available. I don't claim to know the science on pollution and greenhouses and global fireballs, but I must say that I believe it's repugnant to have and pollute more than you need just because you can. Generally I say "government, hands-off." But when only a fanciful interest is at stake, and there are real congestion and pollution concerns at stake, I'm not too upset about the state taking action.

On the other hand, until Orange County creates a real alternative to automobiles, then maybe we should back off on making moral judgments about what we choose to drive. If I drive a Lincoln Navigator instead of taking the subway, then shoot me. If I drive a Navigator instead of a miserable minivan, then cut me some slack.

Another anti-gay t-shirt school case

2007-03-23T00:01:00.000-07:00

SCOTUS might have another bite at deciding the same issue brought in the Poway case in this Chicago school case. A girl wants to wear a shirt on April 19, the "Day of Silence," saying "Be Happy, Not Gay."

New California Property Rights Reform

2007-03-22T21:49:00.000-07:00

A new 2008 ballot seeks to pick up where Prop 90 left off. Still going further than just preventing Kelo-takings. It will be interesting to see what happens.

Protecting Opulent Religion

2007-03-22T19:14:00.000-07:00

I'd love to see the offering plates at the church that bought a new $4M home for its pastor. Musta been tripping over all the sacks of money at the old place. Meanwhile, the town is losing out $40K annually in property taxes.

EVENT: Religion & the Law Symposium

2007-03-22T18:36:00.000-07:00

Next Thursday, March 29, the J. Reuben Clark Law Society of Orange County presents the Third Annual Orange County Religion & the Law Symposium. Sponsored by Chapman University School of Law. View flyer here.

WHEN: Thursday, March 29. Registration at 6:00; Program from 6:30 to 8:45pm.
WHERE: Chapman University School of Law
SPEAKERS:
Judge J. Clifford Wallace: "Separation of Church and State -- How High the Wall?"
Prof. Charles H. Whitebread: "Recent Decisions of the U.S. Supreme Court"
Prof. John C. Eastman: "Boy Scouts is a Church, but Catholic Charities is Not: What's Wrong with This Picture?"
Prof. Robert F. Cochran, Jr.: "Why a Catholic U.S. Supreme Court? Why Now?"
COST: $20 in advance; $25 at the door.
STUDENTS: $5 in advance; $10 at the door.

TO REGISTER: click here.

Two hours of MCLE credit available.

The educator's perspective on religious dress in schools

2007-03-22T18:21:00.000-07:00

This article should be enough to turn even the most stalwart religious liberties advocate. Here's an excerpt:

The niqab left them utter strangers to me and their classmates, who simply forgot about them. The veil that those young women wore utterly isolated them. They sat in the classroom with us, but they weren't part of the group. They were effectively invisible.

RECAP: Kurt Lash at Chapman

2007-03-21T22:41:00.000-07:00

Professor Kurt Lash's discussion today on the Ninth and Tenth Amendments was highly informative. Prof. Lash is one of the nation's top scholars on constitutional interpretation, and he shared with Chapman students and professors the true nature of the oft misunderstood amendments. Most intriguing is the fact that the Ninth and Tenth are ignored as a matter of historical accident. Early cases cited them as the Eleventh and Twelfth Amendments, but as some of the articles dropped off and they were reordered, they became what we know today as the Ninth and Tenth Amendments. This led Justice Goldberg in Griswold v. Connecticut to remark that “this Court has had little occasion to interpret the Ninth Amendment." Well, that's just not true, according to Lash. Because of this error, the Court thought it was working with a blank slate, which has led to the Ninth Amendment being largely--if not completely--ignored.

More Nanny State Developments

2007-03-21T15:21:00.000-07:00

This article in today's OC Register covers some of the more ridiculous regulations being passed and proposed across the nation.

Socks and Civil Liberties

2007-03-20T21:52:00.000-07:00

Ok, that's it, ACLU, you have lost your court privileges. No more justice for you.

Law suit to protect a girl's right to buck the dress code. She should be able to express herself as long as it is not out of bounds, according to her standards, apparently.

Well if you've already got the tax dollars, what're you gonna do, give it BACK??

2007-03-17T22:51:00.000-07:00

Have a good laugh, then a good cry, at this article. A railroad from Nowheretown to Nothingville. What for, you ask? Best not to ask such questions, my son, for therein lies the path to madness.

Fat is to Strong as Social Liberalism is to Compassionate

2007-03-17T21:55:00.000-07:00

Friends of an obese 26 year old had the mistaken impression that the man's 275 pound frame actually possessed a great deal of strength. Kind of like how people who advocate for a lot of social programs might be mistaken as being compassionate.

9th Circuit Says Pro-Family Advocacy is Hate Speech

2007-03-17T21:49:00.000-07:00

From WorldNetDaily.com:

A ruling from the 9th U.S. Circuit Court of Appeals has concluded that municipal employers have the right to censor the words "natural family," "marriage" and "family values" because that is hate speech and could scare workers.

As one who has been seriously considering the view of those like Robert Bork, that the First Amendment should only protect political speech and leave the rest to the democratic laboratories of the states, this is making me seriously reconsider. I mean, nothing this stupid could be constitutional, could it?

Obama's Jewish Problem

2007-03-14T18:43:00.000-07:00

This isn't real, is it? I mean, I shouldn't be surprised...

Apparently people are upset because Obama expressed sympathy for Palestinians. Politico blogger Ben Smith says "I find your statement in yesterday's Des Moines Register that "nobody is suffering more than the Palestinian people,” deeply troubling."

Uh...Why?

Well, just in case I ever decide to run for any public office, for the record, I think that all Palestinians are the devil incarnate, they deserve no sympathy, and we should all stop talking about the middle east as if there are two legitimate peoples there.

How did that sound?

LA County Housing Authority Loses Subsidies Due to "Poor Management"

2007-03-14T18:18:00.000-07:00

US Department of Housing and Urban Development cut LA's funding since it didn't distribute its vouchers in 2006. This means that lots of lower income development won't happen.

County Housing Authority executive director Carlos Jackson blamed the problems on a poor management structure that created a bottleneck, with employees unable to process requests for subsidies efficiently.

"Carlos said what?!" retorted Poor Management Structure. "He's always blaming stuff on me. He thinks that just because I'm an abstract concept he can get away with it. If he's not careful I'm going to get fired. Then who's he going to blame his problems on?"

Fixing Gay Babies

2007-03-14T17:14:00.000-07:00

Folks are hopping mad over a comments of the president of a leading Baptist seminary that suggested that, if we had the means to do so, we should diagnose and provide prenatal treatment to prevent babies from being homosexual. It's an interesting question, and there are some interesting insights offered in the article. But you have to wade through all the vitriol of the folks who can't seem to simmer down whenever the issue of homosexuality arises. I mean, sure, there are interesting religious issues to talk about. But come on, hasn't anyone seen Gattaca? There is a much bigger, scarier issue here, if we can stop talking about our bits and pieces for a cotton pickin' minute.

EVENT: Nikolas T. Nikas, "What Every Law Student Should Know About Human Cloning and Embryonic Stem Cell Research"

2007-03-13T00:41:00.000-07:00

Trinity

Law School

Federalist Society

presents

Nikolas T. Nikas, Esq.

Thursday, March 15

5 – 6 pm

Room 200

“What Every Law Student Should Know About Human Cloning and Embryonic Stem Cell Research”

Nikolas T. Nikas, Esq. is President and General Counsel of the Bioethics Defense Fund. He has directed national legal strategy on the issues of human cloning/embryonic stem cell research, abortion and end-of-life issues since 1992. His areas of expertise include legislation, litigation and public education.

In 2000, he organized and participated in the oral argument preparation for Nebraska AG Don Stenberg in the U.S. Supreme Court partial-birth abortion case, Carhart v. Stenberg, in which Mr. Nikas also filed an amicus curiae brief.

All students welcome!

Free food!

Cutting edge facts & analysis!

Email Eileen Stevenson eileenstevenson@gmail.com if you have any questions.

Environmentalism a Religion?

2007-03-11T00:26:00.000-08:00

Czech President Vaclav Klaus says it is. Normally these sorts of vitriolic remarks are hard to take seriously, but I sort of have to agree here. At bottom, the issue boils down to a problem of belief. The claims over immaculate conception and global warming are very different because of the sorts of proof that you would expect to justify each--one is an appeal to faith and historicity of the bible, etc, and the other is an appeal to empirical data. But no matter what the argument, when the evidence fails to persuade, the advocates are better off going back to the drawing board than reducing themselves to an embarrassment by pleading with their audiences to believe in their arguments.

This reminded me of the transcendental argument for the existence of God. I've never heard a proper rebuttal of it. (The one proffered by Michael Martin is pretty weak.) But it is a tricky bit of philosophy for most people without a graduate degree in philosophy to understand, and therefore it is not widely invoked.

But let's just get right down to real life: look at the folks we elect to office. Does anyone think that these people are really the sharpest tools in the shed? Certainly they are not. We elect them because they said something at one time that made us like them. Or conversely, anyone with the audacity not to strike "niggardly" from the English language surely has no place in governance. If I feel like I should be offended, then it must be time to change our reality.

Sadly, social order is all about appearances, and little about substance.

So what's the bottom line with environmentalism? It's not about the facts, it's about how we feel about the facts. Which is of course why Al Gore is trying to invoke a normative shift in the way we think about consumption, i.e., that we should stop consuming or pay for offsets. He's really trying to change the appearance of consumption. Of course, he's a poor symbol for the movement, given his apparent hypocrisy due to his rampant consumption. But if he's successful in changing how we feel about environmentalism, then that will change our reality of environmentalism.

Land Use Oddity: Street for Sale

2007-03-08T23:51:00.000-08:00

Property Profs Blog has an interesting story about an entire street of rural residential owners assembling their own parcels for sale to strip mall developers. Maybe this is the future of private landowner defense to redevelopment: getting the entire neighborhoods to band together to decide their common fate.

Reinhardt's Poway Decision Curtly Struck Down

2007-03-06T18:42:00.000-08:00

The Supreme Court apparently thought very little of the 9th circuit decision in Harper v. Poway, which gave school districts the authority to tell students what messages they can wear on their t-shirts. (Note Kozinski's stern dissent.) The Court vacated the judgment and then remanded it back to the 9th circuit with instructions to dismiss it as moot.

Given that it is indeed moot already, that the Court made the deliberate act of vacating it says something about how much they thought of Reinhardt's opinion.

Story here.

UCI's New Law School

2007-03-06T12:47:00.000-08:00

You'll all be relieved to know that UCI's new law school will not have any agenda or policy slant. Now, where's that emoticon for sarcasm?

[T]he proposed UC Irvine Law School is intended to challenge students to think more deeply and critically about a number of complex social issues regarding: (a) equal opportunity; (b) racial and national identity; (c) minority rights; (d) civil and individual rights; and (e) social justice

More here and here.

This is Either Really Stupid or Really Smart

2007-02-23T19:18:00.000-08:00

The Religion Clause blog has this interesting story about a high school student that complained that a creative writing assignment about how evil can exist if God is omnipotent. Now, the whole point of theists' arguments in the Intelligent Design cases is that we should have free reign to teach ideas as long as those ideas are not overt attempts to proselytize, teach about a faith, or--and this is really what it comes down to--make people feel slighted for any reason whatever. So this struck me as taking that whole movement a big step back. On the other hand, maybe this is a cunning tactic meant to illustrate that, hey, two can play at that silly dirty game.

Another Atheist Takes a Crack at Disproving God

2007-02-22T08:11:00.000-08:00

A new book by Victor Stenger purports to disprove God's existence. Here is an excerpt from a promo:

He convincingly shows that not only is there no evidence for the existence of God, but scientific observations actually point to his nonexistence. Life on Earth looks just as it should look if it were not designed, and indeed, the universe looks and operates just as it should if it appeared spontaneously from nothing.

I find a couple things curious about these kinds of arguments--particularly the ones for the nonexistence of God. First, as long as you're using inductive reasoning (and perhaps this is true even for deductive reasoning), you are not going to get a critical mass of people to make any kinds of inferential leaps with you to get to such a conclusion. I've linked to a report about how Americans would sooner vote for a gay president than an atheistic one. (Please do not read any value assessments for or against gays or atheists out of that--I'm merely the messenger.) People are just not ready to accept these kinds of arguments. (By the way, you should check out The Dawkins Delusion for a laugh.)

More importantly, critics of theism consistently and conspicuously avoid the transcendental argument for the existence of God, which posits that science could never purport to disprove God, because the very operation of science presupposes a universal order, a presupposition that certainly cannot be justified from within science or empiricism, as Hume wrote, and ultimately requires a sort of faith that such an order exists. And once you get to that humbling conclusion, I don't see how one could pooh-pooh anyone for deciding to lodge that faith in a God.

(Sorry if that sounds too "religious" for anyone's tastes. I did refrain, you'll notice, from making any unjustified moral propositions, so hopefully I should avoid rebuke.)

How Some "Nanny State" Laws Backfire

2007-02-21T22:24:00.000-08:00

John Stossel has a special on this on Friday. Here are some of the ones I found particularly interesting:

Bike helmet laws: Countries that require bicyclists to wear helmets find that fewer people ride, possibly making us fatter. And it's not clear that the mandatory helmets result in fewer injuries; one study found cars pass closer to bicyclists wearing helmets. And now that I wear a helmet, I take more risks — I ride in NYC traffic. (Some research suggests that the best safety protection for bicyclists is to wear a wig, to look like a woman. I'll try it.)

Sanitizing the house: Sterile houses may be giving more children asthma. It's possible that I helped give my own daughter asthma.

Child safety caps: Medicine bottles are now so tough to open that some people leave the cap off. More poisonings result.

A "fetus," or a "complete, separate, unique and irreplaceable human being"?

2007-02-21T18:42:00.000-08:00

A woman is arguing that doctors must inform women inquiring about abortions that the fetus or embryo they are carrying is "a complete, separate, unique and irreplaceable human being" and that the "abortion did not prevent a human being from coming into existence but actually killed an existing human being."

The trial court said: "A doctor cannot be found negligent for failing to present as medical fact the point of view of one faction in this grave ongoing national debate," she wrote. But last year, a New Jersey appeals court reversed, arguing that Acuna could go to a jury to argue over what medical information a doctor has to disclose when advising a patient about ending a pregnancy.

Taken from slate.com

More "Economics" for Politicians -- Floating a Sinking Golf Course

2007-02-20T16:41:00.000-08:00

Thomas Sowell's most recent article describes the absurd treatment of San Francisco's oversupply of golf courses:

If you put San Francisco's golf courses on the open market, in a city with a serious housing shortage and sky high housing prices, chances are good that the land occupied by golf courses would quickly be bid away by those who would build some much-needed housing.
Of course, this would make the city's municipal golf course workers unhappy. And unhappy municipal workers can be a big problem for a politician, especially if these are union workers.
How have San Francisco's golf courses been kept going when they cost more to maintain than they are receiving in fees from the golfers who use them? Recent renovations alone cost more than $23 million.
According to the San Francisco Chronicle, "the city closed the gap with $16.6 million from state bond funds meant for recreation and park projects in underserved and economically disadvantaged areas." In other words, the poor have once again been used as human shields, this time to protect golfers.

Sowell identifies, astutely as always, the rift between politics and economics--or even common sense. But I can't help but think that Sowell is a little hard on politicians. Let's assume that Sowell was installed as mayor of San Francisco. Could he do better than the current leadership? However politics got unmoored from principles of economics and common sense in the first place, it cannot be turned around overnight. Putting politics back right is like separating conjoined twins. First, we need psychological counseling. Then, we need a series of complicated and delicate surgeries. In other words, just like you can't rip two conjoined twins apart, you can't just force cities out of their old habits. We need a practical approach.

The great tragedy in this is that we have idealists on the one side telling us the way things should be, and old-school politicians who are used to their bad unprincipled habits on the other. There seem to be precious few in the middle who could help bridge the gap and lead our broken system to recovery.

There's No Overstating the Power of Happiness

2007-02-20T09:03:00.000-08:00

Dennis Prager says that we have a moral obligation to be happy. I agree, although I agree in the same way as if Prager had said that breathing is a moral imperative. Happiness is the essential catalyst of all human action. We don't do anything unless we are convinced--at least in that split second that we commit to the choice--that it will make us happier. Of course, we don't always get it right. Far from it. We fail to consider many essential variables that affect our ultimate happiness. And we assign incorrect values on many of the variables that we do consider. And we are all made happy by different things. But make no mistake, happiness is our driving force.

"Are you my female parental anthropoid?"

2007-02-19T23:50:00.000-08:00

Scots are warned that the words "mom" and "dad" might hurt some people's feelings. You can't make this stuff up. Well, no, that's not true. You do make this stuff up. But you never do it for real. Truth is stranger than fiction, but you pray that it's never dumber than fiction.

Somehow I Thought the Anti-Christ Would Be, I Dunno, Less Obvious

2007-02-19T22:26:00.000-08:00

Is this guy for real?

A Not Very Politically Correct Definition of Political Correctness

2007-02-19T00:03:00.000-08:00

The language is a little "inappropriate," but I enjoyed this so much I just had to pass it along. This recently won a competition for defining "political correctness."

"Political Correctness is a doctrine fostered by a delusional, illogical liberal minority, and rabidly promoted by an unscrupulous mainstream media, which holds forth the proposition that it is entirely possible to pick up a turd by the clean end."

Is Evolution Even a Theory?

2007-02-18T10:31:00.000-08:00

Not to sound like a nut, but this site got me thinking: If a "theory" can be considered a scientific fact when it is supported by substantial evidence, then sure, micro-evolution is a theory, but what to make of macro-evolution? Last I checked, everytime scientists get excited about finding some intermediary skeletal remains, it winds up being Miss Piggy or something else. Am I wrong, or is macro-evolution simply not supported by facts, but almost entirely by hypothesis?

No, seriously, I'd like to know.

ACLU Smells Racism in Tustin

2007-02-18T10:14:00.000-08:00

From abc7.com:

The ACLU said in a letter to Tustin Unified School District officials Thursday that it plans to sue if the disparity isn't corrected.
About 43 percent of the district's students are Latino, but they made up only 8.6 percent of its Gifted and Talented Education program's enrollment in 2005-06. Blacks make up 2.4 percent of the student body and 1.4 percent of those in the gifted program.
Whites make up nearly 36 percent of the district's students and nearly 60 percent of those in the gifted program. Asians, who are 13.3 percent of the district enrollment, make up 26.6 percent of the gifted enrollment.
District spokesman Mark Eliot said administrators were reviewing the letter.
"The letter is the ACLU's opinion, and we're confident our district does not discriminate against any student," he said. "We offer a comprehensive learning environment for all of our students."

Seems I've heard something about there being a huge influx in Mexican immigration in Orange County. And a lot of people complain that not enough cultural assimilation is happening, e.g., speaking English in the home, parental encouragement of American education standards (ok well, our standards are pretty crappy when compared to most European countries, but compared to Mexico I think we can still hold our heads up).

There are about a half dozen other theories I can come up with that are more likely to account for these statistics before having to revert to cries of racism. But then I guess they wouldn't be as much fun.

Like Restributionism? So Do Racists, a Statistical Analysis Shows

2007-02-18T02:26:00.000-08:00

James Lindgren's paper, available here, indicates that those who favor redistribution of wealth, contrary to popular belief, are actually more likely to harbor discriminatory tendencies. Conversely, anti-redistributionists tend to be happier and more altruistic.

Obama on Education

2007-02-17T19:26:00.000-08:00

Obama on 60 Minutes

When we're having education debates here in Washington, my positions are informed by having tried to figure out how to fundamentally change the way that we finance public education at the state level. It's informed by work that I've done as a community organizer in inner city classrooms. And so I end up recognizing that we need more money to fix our schools, but we also need a transformation in attitudes.
And in Washington, that's typically framed as a "either/or" proposition. You know, the conservative position is we don't need more money; we just need to blow up the bureaucracy. You know, on the left, sometimes the sense is we just need more money, and we and our problems will be solved. When you have actually been in these schools and worked with these parents and talked to the teachers and sat down in a meeting with principals who are trying to figure out how to hold this thing together, then you realize that it's not an "either/or" proposition.

It's both/and. You know, parents need to do a better job of parenting. Teachers need to do a better job teaching. Some of the anti-intellectualism that exists in the African-American community and Latino communities and low-income communities has to change. And the federal government's got to put more money, because the fact is that they don't have enough resources.

Obama did not complete the discussion on list of logically possible general options: the neither/nor option. Abolish public education let the market deal with it. I'm not offering to advocate it, but given that we're talking about attitudes here, why not be honest and realize that we're hopelessly entrenched in a big-government attitude when it comes to education. And I for one think it's a rotten attitude.

Thoughts on Our Religious Roots

2007-02-17T12:07:00.000-08:00

This post by Glen Whitman from Agorophilia reminded me of something I thought of when listening to Victor Davis Hanson when he visited the Federalist Society a few months ago.

The Claremont Institute honored Victor Davis Hanson last November at the Statesmanship Award dinner. This was the second time that month that I had the opportunity to listen to Hanson, an expert in classics and history and political philosophy, fluent in Latin and Greek, and an author of something like half a dozen books and hundreds of articles. Interestingly, he is a Democrat (although he calls himself a “classical Democrat”). It is fascinating how some of our differences can seem so important, and actually be so insignificant. Or at least, we can begin to narrowly define where we disagree. That is assuming, of course, that we share certain common values.

Here are some reflections on his talks:

The United States was and is at least loosely based on Christian religious ideals. And there is a great tendency to look at the Islamic world and say that their religion may provide a similarly viable basis for an American-style government. But is this true? There are those who believe that religious morals are not basis for government in the first place, that religious values are arbitrary, antithetical to reason. Whether these objectivists are correct, it cannot be denied that American has been wildly successful. So perhaps we can at a minimum argue that Christianity provides a viable basis for a democratic government.

But can we say that any monotheistic religion can provide such a basis? Or is Christianity sui generis, a class alone? Perhaps Christianity can work, but this doesn’t mean that any other religion can work. This could be supported by looking at the history of Christianity, that it is a religion of few real laws or codes—it relies on a personal relationship, not of man-made dogma. (Notice that of all Christianity, Catholicism is the most lambasted, for the very reason that it enacts the sort of man-made edicts that are so arbitrary and offensive to freedom and liberty. It is thus perhaps no accident that the Catholic church was wrapped up in the religious tyranny that sparked many to flee Europe for America.)

In essence, there are three types of paradigms our of which a government can spring up and be based upon. One is religion, and this is what America was based on. That is, most of the values and ideas we espouse are based upon religious values. The second is objective values, a la Ayn Rand’s objectivism. But this has never been tried. The last is nothing—nihilism, and that is what Europe is experimenting with. And it’s not working.

We have subscribed to a guilt mentality. We blame the humane among us rather than the savagery of our enemies. Liberals require that we be perfect rather than merely good. We look at the ills of the world as if they can be healed by material treatments; we fail to treat them for what they are: problems with the soul. Our problems are nihilistic rather than material. We put stock in reason alone, rejecting God and revelation.

Islamic radicals loathe western liberalism, but at least they are honest about it. Which is why it is gaining a foothold in Europe. We must rediscover our strengths and origins, not to protect materialism, but to protect our founding principles.

EVENT: Bill Gangi at Western State

2007-02-16T00:15:00.000-08:00

Professor Bill Gangi from St. John's University in New York will be at WSU on Wednesday, Feb. 21 at 5:15pm. He will be speaking on "Why Caring Too Much About Important Things is Ruining the Constitution." Prof. Gangi is a brilliant constitutional scholar, and a great person besides. He gave a very provocative talk at Chapman last semester that is still ringing in my head.

EVENT: Campaign Finance Symposium

2007-02-16T00:03:00.000-08:00

Nexus Law Journal
Presents a Symposium on Campaign Finance

Dead Man Walking?
Buckley v. Valeo and Campaign Finance Reform after Randall v. Sorrell

Sponsored by
Snell & Wilmer, LLP ▪ Madison Harbor, ALC ▪ Chapman Federalist Society

Tuesday, February 20, 2007

Afternoon
Brown Bag Lunch 12:00 – 1:00 p.m., Room 237

Free to all students, faculty, staff & administration. Please RSVP via e-mail to nexuslawjournal@gmail.com no later than Friday, February 16, 2006. Lunch will be served to those who RSVP.

Lunch Speakers
Ronald Hrebenar ▪ Kirk L. Jowers ▪ Charles S. Bullock, III ▪ Timothy Sandefur

Evening
Cocktail Hour 5:00 – 6:00 p.m., Law School Lobby
Open to all students, faculty, staff & administration.

Dinner & Symposium: 6:00 – 9:30 p.m., Room 237

Cost is $10 per person for dinner. Please make checks payable to “Chapman University.”
Free of charge without dinner.

Evening Speakers

Keynote Address by Bradley A. Smith

One of the nation’s leading authorities on Election Law and Campaign Finance, Professor Smith served as Commissioner, Vice Chairman, and Chairman of the Federal Election Commission (FEC). Named FEC Chairman in January 2004, Professor Smith oversaw implementation of the McCain-Feingold campaign finance bill, and successfully fought to increase due process protections for defendants in FEC enforcement actions. Professor Smith is currently a Professor of Law at Capital University Law School in Columbus, Ohio.

Timothy A. Canova ▪ Ronald Keith Gaddie ▪ Patrick Garry ▪ Allison R. Hayward
Audrey Perry ▪ John Samples ▪ Timothy Sandefur ▪ David Schultz

More information about this event and about our distinguished speakers is available at www.nexusjournal.org/speakers.php

If you have any questions, please contact
MacKenzie Batzer, Nexus Law Journal Editor-in-Chief, at nexuslawjournal@gmail.com

Don't blame me, I'm a determinist

2007-02-15T23:20:00.000-08:00

I posted this a while ago on the old Chapman Federalist blog, but I like it so much that I thought I'd repost.

The following is a transcript of a question posed to and answered by preeminent scientist Richard Dawkins about determinism. It is a delicious conundrum, and one that, in my experience, is quite impolite to bring up in friendly conversation. Quite like religion and politics. In fact this was brought up in the context of a discussion on religion, so the door of impropriety had already been flung wide open.

Richard Dawkins at Politics and Prose .. The God Delusion
Question and Answer

Questioner: Dr. Dawkins thank you for your comments. The thing I have appreciated most about your comments is your consistency in the things I've seen you written. One of the areas that I wanted to ask you about and the places where I think there is an inconsistency and I hoped you would clarify it is that in what I've read you seem to take a position of a strong determinist who says that what we see around us is the product of physical laws playing themselves out but on the other hand it would seem that you would do things like taking credit for writing this book and things like that. But it would seem, and this isn't to be funny, that the consistent position would be that necessarily the authoring of this book from the initial condition of the big bang it was set that this would be the product of what we see today. I would take it that that would be the consistent position but I wanted to know what you thought about that.

Dawkins: The philosophical question of determinism is a very difficult question. It's not one I discuss in this book, indeed in any other book that I've ever talked about. Now an extreme determinist, as the questioner says, might say that everything we do, everything we think, everything that we write, has been determined from the beginning of time in which case the very idea of taking credit for anything doesn't seem to make any sense. Now I don't actually know what I actually think about that, I haven't taken up a position about that, it's not part of my remit to talk about the philosophical issue of determinism. What I do know is that what it feels like to me, and I think to all of us, we don't feel determined. We feel like blaming people for what they do or giving people the credit for what they do. We feel like admiring people for what they do. None of us ever actually as a matter of fact says, "Oh well he couldn't help doing it, he was determined by his molecules." Maybe we should.. I sometimes.. Um.. You probably remember many of you would have seen Fawlty Towers. The episode where Basil where his car won't start and he gives it fair warning, counts up to three, and then gets out of the car and picks up a tree branch and thrashes it within an edge of his life. Maybe that's what we all ought to... Maybe the way we laugh at Basil Fawlty, we ought to laugh in the same way at people who blame humans. I mean when we punish people for doing the most horrible murders, maybe the attitude we should take is "Oh they were just determined by their molecules." It's stupid to punish them. What we should do is say "This unit has a faulty motherboard which needs to be replaced." I can't bring myself to do that. I actually do respond in an emotional way and I blame people, I give people credit, or I might be more charitable and say this individual who has committed murders or child abuse of whatever it is was really abused in his own childhood. And so again I might take a ..

Questioner: But do you personally see that as an inconsistency in your views?

Dawkins: I sort of do. Yes. But it is an inconsistency that we sort of have to live with otherwise life would be intolerable. But it has nothing to do with my views on religion it is an entirely separate issue.

Questioner: Thank you.

EVENT: John Yoo & Katherine Darmer Debate

2007-02-15T23:12:00.000-08:00

The debate will be held at Chapman and moderated by a Western State Professor. This will be a sharp and very challenging debate. OC Lawyers Division President Karen Lugo has read Prof. Darmer's book and has taken her Civil Liberties clinic, and attests that she is a great opponent for Prof. John Yoo. This will be a very exciting event!

Orange County Federalist Society Law Students

present

Debate: National Security v. Civil Liberties

Participants: Boalt Hall Law Professor John Yoo, Chapman Law Professor Katherine Baird Darmer and moderator Prof. John Brennan of Western State University

Monday, February 26 at 2:00

Chapman University School of Law

Room 237B

rsvp: Cat Parsons at cateparsons@gmail.com

Professor Yoo clerked for Justice Clarence Thomas of the U.S. Supreme Court. He served as general counsel of the U.S. Senate Judiciary Committee from 1995-96. From 2001 to 2003, he served as a deputy assistant attorney general in the Office of Legal Counsel at the U.S. Department of Justice, where he worked on issues involving foreign affairs, national security and the separation of powers.

Professor Darmer served as an Assistant United States Attorney in the Southern District of New York. She received her A.B. from Princeton University, with high honors, and her J.D. from Columbia University , where she was a Harlan Fiske Stone Scholar for two years and served as Articles Editor of the Columbia Journal of Environmental Law. She clerked for the Hon. Kimba M. Wood in the Southern District of New York and the Hon. William H. Timbers on the Second Circuit Court of Appeals. She is editor of National Security v. Civil Liberties

This Just In: The Global Warming Debate is Still Unsettled

2007-02-15T11:17:00.000-08:00

In case you were wondering, we still don't know the answers to, well just about any global warming questions. But it sort of makes you wonder: would we change any of our behaviors if we knew we were "killing" the planet? And what degree of certainty would we require? If scientists told us "well, we can't possibly say with 100% certainty, but we are 90% sure that global warning is caused by our emissions," would we say "bah! Get back to me when you're at 95% and we'll talk."

And even if science gave us an unequivocal 100%? Hey, we've always got Hume and the problem of induction.

I guess my point is, maybe we should stop obsessing over the degree of certainty, and start asking ourselves whether and what changes we'd be willing to make, and whether they would actually result in a reduction of utility--of the level of happiness in our lives. In other words, the famous pseudo-pragmatic Pascal's wager, applied to our ecological behaviors.

(I realize this post sounds pretty "green"--it's not really intended to be. I'm just being critical about how we tend to frame the debate.)

Judicial "Power"

2007-02-15T10:50:00.001-08:00

What is power? What are we saying when we say the court has no power to do something? What a farce that is! What we mean to say, really, is that there is no theoretical justification, that doctrinally, or according to a philosophy of law, there is not right to do something. But this is not based in realism, in an objective view of political power. All power is mere force. In the state of nature, the biggest man had the most power. This was not "right" of course, but it was the reality. Then we create government. But this was no more than an agreement among the majority to pool their power together. Thus it is really no different than in the state of nature. When we make legal arguments, we are trying to manipulate the system created by the majority that is setup to exercise its power in favor of he who makes the better argument. Sometimes that argument makes the correct assessment of the abstract principles that the majority set forth. Somtimes it is defective. But no matter--as long as the defect is subtle enough, the majority won't notice, the system won't notice. The only danger, of course, is yet another real danger that the majority will figure it out later.

Thus we need to be careful when we say things like "the judiciary has no power to do that." If it gets the executive branch to enforce its judgments, then that is all the power we are talking about. There is no sense in talking about power in the abstract. The only power that affects us is that power that the state actually exercises. And courts can influence that nearly as well with bad rationales as with good ones.