Small Town Community

(By Andrew MacKie-Mason)

Paul Horwitz has a rather touching piece about the value of community in responding to disasters in the wake of the tornado. Granted, Tuscaloosa isn't rural – its 93,215 residents make it the fifth-largest city in Alabama – but it fits in what I think of as small cities or large towns. It definitely falls a bit below my hometown in terms of population.

It's an unfortunate truth that, high "rankings" or not, one sometimes has to work harder to show faculty recruits and others why they might want to live in a college town, let alone one in the Deep South. Having clerked in the state, I had no such questions when my wife, our two young children, and I decided to move to Tuscaloosa. In the midst of what is unquestionably a crisis, I am even more confirmed in my view that what sets apart places like this is a powerful sense of community. I am friends with my law school colleagues, of course, and (especially here) with my students too. But our community stretches beyond that, taking in the larger university community, the neighbors who took us in to wait out the tornado, the children who have befriended my children and become part of our extended family, the friends and strangers who have stayed in our home these past two nights, and the many friends who brought food and company when our son was born prematurely here some two years ago.

Mawkishly but fittingly, I am often reminded, living here, of the closing lines in To Kill a Mockingbird, in which Scout muses on the ways in which friends and neighbors in a genuine community help without question and create debts that can never be repaid -- without ever so much as thinking about those debts, because that is just what one does for one's own. If asked, I wouldn't hesitate, even and perhaps especially now, to tell people that Tuscaloosa is my town and that I love it.

I'm reminded of a similar post from earlier this month. This sense of community is something that America owes to our parochial roots. Small towns are what Tocqueville calls the primary schools of democracy, and there's truth to that: it's only by interacting directly with our neighbors that we can instill in ourselves an instinctual recognition for the value of cooperation and the trust necessary to overcome momentary self-interest in the name of long-term collective advantage.

Of course, this type of community isn't absent from larger cities. This winter, when the massive blizzard hit Chicago,

City officials estimated as many as 900 cars were caught in the jam; an AP photographer at the scene counted at least 1,500.

Orozco said more than 130 firefighters, some on snowmobiles, and 100 police officers were sent to the road. As they sat and waited, the stranded motorists gratefully gobbled down granola bars and drank coffee and Gatorade, brought to them by Good Samaritans who climbed fences and railings to deliver them.

But moments like this in the city are rare. It's too easy to become anonymous, to think that anything you do won't matter. The city reminds us of our utter insignificance in the face of the vast universe. The town reminds us of what we are capable of when we work together.

A Religious Monarchy

(By Andrew MacKie-Mason)

In light of the royal wedding (am I out of touch if I didn't hear about it until three days ago?), Michael Moreland at Mirror of Justice wrote a post bemoaning England's refusal to repeal an old law that prevents the heir to the throne from marrying a Roman Catholic.

He says in part:

But the Church of England's reported veto of proposed reforms to the 1701 Act of Settlement (which prohibits an heir to the throne from marrying a Catholic) is a sad reminder that there are still vestiges of institutionalized anti-Catholicism in the United Kingdom--even if one is willing to accept that part of the reason is a merely constitutional-legal complication of the monarch being head of an established church.

And quotes approvingly Austin Ivereigh, who says:

A Catholic king could hardly appoint bishops to the established Church. But look at what is assumed in the statement: that the King or Queen remains the Supreme Governor of the Church of England. Established church, Protestant state: take away one thread, and the whole unravels. And that is why we cannot have a conversation, in modern Britain, about a church which is separate from the state, and a monarchy whose members are able to exercise freedom of religion.

Does this matter? On principle, yes: state-sponsored sectarianism is ugly, and as Catholics it's hard not to feel a little disenfranchised when, on days such as tomorrow, we realise the profound anti-Catholic bias on which our state is erected.

Does this objection really hold water? Surely Moreland and Ivereigh wouldn't object to the office of Bishop of Rome being restricted to an unmarried Roman Catholic, even though the holder of that office is, in addition to being the head of the Roman Catholic Church, is also the Sovereign of the State of Vatican City and the leader of the Holy See. The later organization maintains diplomatic relations with almost 200 countries, and has permanent observer status with the United Nations.

So what makes religious establishment acceptable in the Vatican and Holy See, but unacceptable in England? It can't be the fact of political authority; in fact, the Pope has more political authority within his dominion (as an absolute monarch) than the basically ceremonial monarchy in England.

What it seems to come down to is that there are a significant number of people in the political jurisdiction of England who do not accept its religious foundations. But is that objection convincing when the establishment of the Church of England happened so long ago, and any Catholic in England chose to live in a country with an official religion other than theirs?

Pension Boards Sue Snyder and Dillon

(By Andrew MacKie-Mason)

Two Detroit pension boards, the General Retirement System (GRS) of the City of Detroit and the Police and Fire Retirement System (PFRS) of the City of Detroit, have sued Michigan Governor Rick Snyder and Treasurer Andrew Dillon to enjoin enforcement of certain aspects of the Local Government and School District Fiscal Accountability Act, 2011 PA 4. There are also a few individual plaintiffs: Susan Glaser (Chairperson of the Board of Trustees of the GRS), Alvin Brooks (member of the Board of Trustees of the GRS), James E. Moore (Chairperson of the Board of Trustees of the PFRS), and Laura Isom (a former member of the Board of Trustees of the PFRS).

The complaint, available on Google Docs through a link on my EFM Center, asks the US District Court for the Eastern District of Michigan to issue declaratory relief enjoining enforcement of a certain provision of the law (specifically, Section 19(1)(m)) as it applies to the takeover of pension boards by emergency financial managers.

First, standing: no emergency financial manager has been appointed for the City of Detroit, and thus these pension boards have not yet been affected by the law. However, they have probably met the standard for prospective declaratory relief because there have been statements suggesting that an emergency financial manager will be appointed if the pension boards don't meet certain demands (paragraphs 89–93 of the complaint). The threat of illegal action to coerce behavior is sufficient to satisfy Article III standing.

Second: state constitution claims. The complaint asserts jurisdiction in federal court by bringing various federal constitution claims, and then claims supplemental jurisdiction over parallel state constitutional claims. I need to do some more research before I can say definitively, but I think there's a good chance those state constitutional claims are barred under Eleventh Amendment immunity. (However, I think Count III – asserting that the act constitutes an improper amendment of the charter without the approval of the local electors – is a strong basis for a state court claim, as I explain in my upcoming article on the law.)

Third: federal claims. The complaint asserts violations of the Contracts Clause, the Takings Clause, the Due Process Clause, and the Equal Protection Clause.

I think the first and third are strong claims. The Due Process claim actually has some precedential support (also in my upcoming article), and the Contracts Clause argument – asserting that a takeover of the pension board by an emergency financial manager would violate the contractually guaranteed interests of current employees and retirees – is solid. Takings is an argument that I hadn't considered before, but I think it's a strong one in the context of pension boards.

The Equal Protection clause argument is an interesting one. The pension boards are claiming that the factors which allow for the takeover of a board are not rationally related to financial stress in those pension boards, and thus the classification of which boards may and may not be taken over is not legitimate discrimination.

It's a novel argument, but it's one that will probably be very difficult to prove. Interestingly, though, the same arguments might form the basis for a strong claim that the act is an improper local act, rather than a general act, under the Michigan Constitution. Such a claim would, I believe, have to be raised in the state courts, however.

All in all, it seems like a relatively strong case. Of course, it only challenges a single provision of the law, so local governments and school districts will have to do a lot more to fight these unconstitutional takeovers. But it's a good start.

"A Judeo-Christian Nation"?

(By Andrew MacKie-Mason)

Andrew Koppelman at Balkinization wrote a post where he discusses the evolution – or stagnation – of the idea that America is "Judeo-Christian." As he tells it, drawing on history presented by Kevin Schultz in the book Tri-Faith America, Judeo-Christian rhetoric was once the rallying cry of religious toleration movements. For a country that began as primarily a home of various Protestant sects, the alliance between Protestants, Catholics and Jews was a significant victory for religious toleration in the early 20th century.

But, as Koppelman says:

What was inclusive in the 1940s is not necessarily inclusive today, any more than my then-perfectly fitting raincoat from elementary school would fit me today. We now have millions of atheists, agnostics, New Agers, Buddhists, Hindus, and assorted others. (Muslims have arrived in large numbers as well, but they aren't excluded by Scalia's proposal in the way these others are.) Theism is no better as a basis for social unity than the generalized Protestantism that prevailed at the time of the founding.

It's sad that what was once a doctrine of toleration has been co-opted by those who seek to turn America into a quasi-theocracy.

Michigan's Idea of Responsible Management

(By Andrew MacKie-Mason)

There are a lot of doubts as to the constitutionality of Michigan's emergency financial manager bill. I'm sure I'll explore those in more depth in the weeks to come. However, in the meantime let me focus on something else: how the emergency financial managers are compensated.

Under the laws going back to 1988 (PDFs of all the statutes are available from the EFM Center), the compensation for the emergency financial managers has been determined by the state and paid for by the local government.

This aren't nickle-and-dime salaries, either. According to their contracts, two of the current emergency managers make $132,000 per year ($11,000 per month), while the other makes $150,000 ($12,500 per month).

In other words, the state is saying: "You're in the midst of a financial emergency due to cuts in state funding and limitations on local tax increases? Well then! Have another highly-paid official foisted on you by the state!"

Of course, those are just the salaries. They don't include any expenses that the financial manager incurs, which must also be paid for by the state, nor do they include the salaries of anyone the emergency financial manager chooses to hire so that they have to do less work.

What a marvelously brilliant system. I can't think of a single thing that could go wrong.

Roundup

(By Andrew MacKie-Mason)

Since my busy schedule has prevented me from posting as much as I like to, here's a roundup of things from April that I would have written about, given the time:

• Ilya Somin reports on Dogs Against Romney a group dedicated to opposing Romney due to his cruel treatment of the family dog: he strapped it to the roof of the car for 12-hour drive, and the dog ended up spending some of the ride covered in his own excrement.

• In a "well, duh" moment, Jonathan Adler tells us that TSA admits to giving people extra screening for "arrogant" people who "express contempt" for TSA's screening procedures. Did anyone not know that all cops – really, all authority figures – exercise the "you don't like me" test?

• George Mason University's School of Law already has A+'s, worth 4.33 on a 4.0 scale. You know what? That's fine. Really you should just admit that it's a 4.33 scale, but if a B+ is better than a B, an A+ should be better than an A. But apparently GMU was awarding so many A+'s that they were no longer indicative of particularly bright students. What did GMU Law do? They invented the A+*.

• A law professor found three (out of one hundred) questions on the citizenship test that the government lists the incorrect answer to. Slate also weighed in with its own criticisms.

• According to the Seventh Circuit, citizens don't have standing to challenge a law declaring a National Day of Prayer, because they aren't harmed by it.

• David Post calls a classics professor arrogant because she said a quote wasn't appropriate for a memorial based on the context of its original use by Virgil.

• Sophia Chua-Rubenfield, daughter of "Tiger Mom"/Modern Rousseau Amy Chua, has a very entertaining and well-written blog.

• Steve Vladeck takes up the interesting and important question of "What is a 'Tenth Amendment' Claim?"

• Ilya Somin talks about Jason Brennan's new book, The Ethics of Voting. Which is on my wishlist... :)
  

NOLA TSA Officer Guilty of Sexual Battery?

(By Andrew MacKie-Mason)

(UPDATE/NOTE: Some people have raised concerns that the title is not clear. To be absolutely sure there's no misunderstandings, there has been no conviction, or even criminal charges filed. The assertion is that, under the statute, she is guilty, but that has not been proven in a court of law.)

Watch the following video:



To many people, this is quite disturbing. The sight of a uniformed officer groping a little girl who says "I don't want this" doesn't exactly scream "America." But has the officer done anything wrong?

As it turns out, yes. This video was apparently shot at an airport in New Orleans, so Louisiana law applies. The relevant statute is RS 14:43.1, and it reads (in relevant part):

A. Sexual battery is the intentional engaging in any of the following acts with another person where the offender acts without the consent of the victim, or where the act is consensual but the other person, who is not the spouse of the offender, has not yet attained fifteen years of age and is at least three years younger than the offender:

(1) The touching of the anus or genitals of the victim by the offender using any instrumentality or any part of the body of the offender

...

C. ... (2) Whoever commits the crime of sexual battery on a victim under the age of thirteen years when the offender is seventeen years of age or older, shall be punished by imprisonment at hard labor for not less than twenty-five years nor more than life imprisonment. At least twenty-five years of the sentence imposed shall be served without benefit of parole, probation, or suspension of sentence.

But, you may say, that TSA officer didn't actually touch the little girl's anus or genitals. She simply patted the "sensitive areas" through clothing.

Turns out that it doesn't matter, according to State v. Simpkins, 12 So.3d 1021 (La.App. 2 Cir. 2009):

Touching through clothing is sufficient to complete the touching element of the crime. State in Interest of D.M., 1997-0628 (La.App. 1st Cir.11/7/97), 704 So.2d 786; State v. Bouton, 615 So.2d 23 (La.App. 3d Cir.1993).

The defendant made RS sit on his lap. He then put his hand on “the part between my legs.” This is sufficient to convict the defendant of sexual battery.

The Louisiana statute involves an exception for regular medical treatment, but not for any other official action (to my knowledge – correct me if you know differently). Therefore, the TSA officer captured in the video above committed sexual battery against the little girl, and should be so charged by local prosecutors.

(UPDATE: Mark Bennett accurately labels the parents of this child as cowards.)

Discriminatory Abortion

(By Andrew MacKie-Mason)

Arizona recently passed an interesting law. It would ban performing (but not receiving an abortion) without first signing an affidavit certifying that the medical professional has no knowledge that the purpose of the abortion is race- or sex-selective.

I'm not quite sure how I feel about this. In the framework of the Thirteenth Amendment argument for abortion rights, can the state impose a duty on women to make their decisions about freedom and servitude without an eye towards race or sex? Or can a woman legitimately decide that she's willing to have certain things happen to her body in order to have a white boy, but not in order to have a black girl? If the effects on the woman's body are identical, can she legitimately consider race and sex?

On the other hand — and perhaps knowledgeable medical professionals can fill me in here — are the effects of a male pregnancy the same as those of a female pregnancy? If not — if one causes different hormones to be produced, say, in a way that will substantially change the pregnancy experience — would choosing to abort a male child because of the hormones be sex-selective? Or would it be hormone-selective?

Finally, does it make any difference that the law only criminalizes providing an abortion, rather than seeking or obtaining one? I'm inclined to say no: the effect of the law is still to prohibit abortions, and it really doesn't matter which side of the transaction you affect to make that happen. I'm open to other arguments, though.

The Tiger Mom (And Rousseau?)

(By Andrew MacKie-Mason)

Early this year, Amy Chua (a law professor at Yale) published "Battle Hymn of the Tiger Mother: This is a story about a mother, two daughters, and two dogs. This was supposed to be a story of how Chinese parents are better at raising kids than Western ones. But instead, it’s about a bitter clash of cultures, a fleeting taste of glory, and how I was humbled by a thirteen-year-old." (Yes, that entire thing is the subtitle.) I'm obviously not reporting this as new: the book was widely commented on, and I suspect most people have heard about it.

However, the book has had a surprising persistence in commentary — or at least a resurgence, perhaps prompted by her daughter's acceptance to Yale. For instance, this piece by P.J. O'Rourke goes after her in a very interesting and amusing way. Given all that, I thought I'd take a moment to recall a post I read a while back. Rob Howes opens:

In the middle of the 18th century, a cranky Swiss intellectual published a manual for child-rearing that became the talk of Europe. As the childless bachelor Immanuel Kant figured out, Rousseau’s Emile was not really a parenting guide at all-it was a complex and subtle work of political and social theory. Rousseau wanted to reach a more popular audience and have a wider influence than earlier political thinkers; to present the teaching of the Social Contract in the form of a self-help book for nannies and moms was a stroke of genius.

If you bought Amy Chua’s Battle Hymn of the Tiger Mother to help solve your own parenting challenges with her Chinese mothering recipe, consider Rousseau’s apparent response to a reader who used Emile to raise his own kids: “so much the worse for you, and so much the worse for them.”

He goes on to make an interesting case (one supported by the subtitle of the book) that Battle Hymn is a social and political book, not a parenting book: rather than telling her readers how to raise their children, Chua is trying to tell them about multiculturalism in the United States and beyond.

Though I've read some Rousseau, I haven't read Emile. I also haven't read Chua's Battle Hymn, so I can't evaluate Howes' argument, either on its own merit or based on Chua's intent. But before you buy into the anti-Chua hype, at least give this some thought. At the very least, it's an interesting backdrop to give the book, and its reception, new context.

Does "Catholic" Mean "In Communion With The Bishop of Rome"?

(By Andrew MacKie-Mason)

Of late, I've been noticing many traditionalist Catholics making "that person isn't a real Catholic" claims. The argument usually boils down to: this church or individual doesn't agree with the teachings of the bishop of Rome, and therefore isn't Catholic.

I've seen it in arguments about Catholics for Choice (with anti-abortion Catholics claiming that the name is an oxymoron) and most lately in this post on Get Religion.

What these people always seem to think is that the Roman Catholic Church has some sort of trademark on the label "Catholic". What they forget is that English works in a very different way. Catholic means whatever Americans think it means. And Americans – even "Catholic" Americans – don't think that being Catholic means subscribing wholeheartedly to the teachings of Rome.

Take this Gallup poll, which I've probably referenced before: 40% of American Catholics think that abortion is morally acceptable; 67% think that extramarital sex is permissible (as opposed to only 57% of non-Catholics!); 54% approve of "homosexual relations."

What's clear is that "Catholic" doesn't mean "Roman Catholic." At least, not in the sense that the traditionalists want to make it. Of course, they're perfectly willing to claim those non-believers as Catholics when their policy arguments require an appeal to the large number of American Catholics...

Small Town America

(By Andrew MacKie-Mason)

Last Wednesday, Chad Oldfather posted a rather touching piece about life in small-town rural America on Prawfs Blawg. Rural life is not something I generally think about, nor is it something I've been personally exposed to. No doubt, I myself have been guilty of the prejudice that Oldfather talks about: "Too often, in the circles I now tend to find myself in, I am part of conversations in which I hear a casual disdain for rural people. I find the prejudice inherent in these comments every bit as misguided as the prejudices the speakers seem to imagine all rural people harbor."

It's good to be reminded every once in a while, that we are all people, we are all Americans, and that we have common goals, aspirations, and principles. And it's rare that I see such a reminder written in such a humble but convincing way. I'll give you a taste, but please go to Prawfs Blawg and read the whole thing. It's worth it, trust me.

The people of this community – my people – are by many measures deeply conservative. A lot of what I took from growing up is that you work hard and you don’t complain and you say the Pledge of Allegiance and mean it and you go to church and mean it. But I also learned that education is important. (To refer to it as public education would, in this context, be redundant.) And that while you don’t ever want to be seen looking for a handout, if you see that somebody’s car is stuck in the snow you stop and help push them out. It’s a politics that seems natural to me, and yet one that is tough to map onto the current national political climate. Even so, these conservative, rural heartlanders gave Obama-Biden 73 percent of their votes, while their counterparts in the surrounding township gave 59 percent.

Kiester topped out, census-wise, in 1960, at 737. Cindy relates that the town’s increase – up from 541 in 1950 – occasioned an editorial in the Minneapolis Morning Tribune, which disclaimed knowledge of the secret to small-town growth, but noted that “it helps if people care enough about their town to improve it.”

I write this from a distance, with all the advantages and disadvantages that confers. I am 350 miles and 25 years removed, and my direct experiences as a resident featured me as an insecure, self-absorbed, and generally disagreeable teenager. But even accounting for the distorting effects of my perspective, it is clear that the people of Kiester have cared about their community. They kept their houses up. They paid enough in taxes to have nicely paved streets with curbs and gutters and sidewalks, and to build what in retrospect was undoubtedly more water tower than they needed when the old one started leaking. They funded a school system that punched well above its weight in terms of fancy degrees earned by its graduates, even though getting fancy degrees was not the point, and even though that good school led to opportunities for their kids that were almost always somewhere else.

I'm serious. Go read it.

Federal Investigation in Wisconsin Election?

(By Andrew MacKie-Mason)

The Honorable Tammy Baldwin (Democratic US Representative from Wisconsin) has sent a letter to the Justice Department requesting that they investigate the Wisconsin Supreme Court election where allegedly "human error" by a county clerk resulted in pulling a narrow victory from challenger and awarding a significant victory to the incumbent. There's been no word yet on whether the DOJ's Public Integrity Section will open an investigation: they're still apparently reviewing the request.

The Prosser campaign opposes the request. Meanwhile, the Kloppenburg campaign has filed open records requests with the county clerk in question, and is considering requesting a recount of the contested county.

The Ministerial Exception

(By Andrew MacKie-Mason)

There's been a bit of a debate ranging across blawg-land lately about the ministerial exception. In short, this Court of Appeals-created exception exempts churches from anti-discrimination laws in their employment relations with so-called "ministerial employees." I think it's bad law, but I'll explain that in a subsequent post. For now, here's a collection of posts by people much smarter than me about the exception. I've tried to organize them in chronological order because some of them are responses to others, but feel free to jump around. Peruse at your pleasure (it's good reading, I promise.)

3/30: Danielle Criton, Concurring Opinions: "Corbin on the Ministerial Exception, Part I"
3/31: Marci Hamilton, Patheos: "The Ministerial Exception Makes It To The Supreme Court"
4/3: Rick Garnett, PrawfsBlawg: "Marci Hamilton on the 'ministerial exception'"
4/4: Chris Lund, PrawfsBlawg: "Some Thoughts in Defense of the Ministerial Exception"
4/4: Howard Wasserman, PrawfsBlawg: "Characterizing the ministerial exception, again"
4/4: Rick Garnett, Mirror of Justice: "O'Neill on the 'ministerial exception'"
4/6: Danielle Criton, Concurring Opinions: "Ministerial Exception, Part II"
4/7: Chris Lund, PrawfsBlawg: "The Ministerial Exception, Doctrinally Speaking"

Update on Florida SB 1246

(By Andrew MacKie-Mason)

UPDATE 5/4/11: I've been getting a lot of hits to this post in the last few days, so another quick update on the status of the bill. Today it was engrossed by the Senate and set for a third reading. It's in pretty much the same state as the last time I described it (below), except that it now excludes more state officials from the provisions. The new text is here.

A while back I wrote a post about how Florida Senator Norman wanted to criminalize taking a photograph of a farm, or stepping foot on a farm without written permission.

Writing about the original bill, I said:

As Eugene Volokh points out, that would criminalize:

• Taking a photo of your neighbor's backyard, if your neighbor is a farmer;
• Taking a photo of a farm from a public road;
• Attending a party at a farm if you do not receive a written invitation; and
• Stopping at a farm to sell Girl Scout cookies or ask directions.

A few more examples:

• Taking a picture of your friend while there's a farm in the background;
• Going up to a farmhouse to ask the farmer for permission to take photos of his farm; and
• Accidentally entering a farm from land you were lawfully on, even when the property line is not marked.

I'm extremely happy to announce that Senator Norman's idiocy has been dealt with by the committee. Senator Hays introduced a requirement that would require both of the conditions be met before the higher criminal penalties kick in (that is, one must be on a farm, taking pictures or video, without written consent).

The new bill text can be found here.

It's still a stupid law. There's no legitimate reason to punish this type of trespass on farms more than other types of trespass-with-image taking, other than to pander to the farming special interests. But at least the bill no longer criminalizes perfectly innocent behavior.

Nevermind - Everyone Hates Democracy

(By Andrew MacKie-Mason)

On Wednesday, I wrote a post entitled "Why Do Many Conservatives Hate Democracy?". In it, I talked about the conservative tendency to question the integrity of the electoral system whenever Republican candidates lose in close races, which undermines an essential element of trust in democracy.

In that post, I said:

I'm not sure this is as one-sided a phenomenon as I'm claiming it is. I freely admit that this is based on my own experience, and may be subject to certain biases. So please, if you can think of any widespread, quick, baseless claims by liberals of election fraud, let me know in the comments.

Now, here I am to answer my own query: no, this hatred of democracy is not one-sided. For proof, one need only look to Daily Kos in the aftermath of the discovery of enough votes to put Prosser in the lead (and out of the free-recount margin).

4/8/11, 1:37 AM CDT: "Wisconsin: FRAUD!" by "Concern Troll"
4/7/11, 10:41 PM CDT: "Kathy Nickolaus in Waukesha forgot to save? Really?" by "ColdFusion04"
4/7/11, 9:45 PM CDT: "We are supposed to believe the teabagger vote share increased by 50% in the 'Missing Wisconsin City'" by "The BigotBasher"

There are more if you care to look.

As I've said before, pointing out discrepancies and calling for investigations based on specific facts is alright — even good. Accusing one side or the other of election fraud before there's been a full investigation is not.

Surprisingly, Law Professor Opposes Online Law School

(By Andrew MacKie-Mason)

EDIT: It should be noted that I completely fail, and seem to have fallen victim to an April Fool's prank, and not realized for, like, forever. Wow. (Although, I don't think the idea of online legal education is ridiculous enough to make a good April Fool's prank, but still...)

Eric E. Johnson is an Associate Professor of Law at the University of North Dakota and author of Blog Law Blog, which I actually quite enjoy. In fact, you can find BLB on the blogroll at right.

However, I feel compelled to call Professor Johnson out for a bit of a ridiculous post on Prawfs Blawg.

In it, he bemoans a new rule propagated by the American Bar Association (Rule 304(g)) which would allow for online institutions to become accredited law schools. Professor Johnson, says:

I understand the strong economic arguments for trade liberalization, and I couldn't blame law students for considering alternative educational opportunities that could radically lower their tuition bills

However, he still objects to this proposal. Which, of course, may threaten his job – or at least his salary – if online law schools lower the demand for more traditional legal education.

What objections could someone who seems to support trade liberalization have to this freeing of the legal education market? "I feel like this happened without the kind of considered, deep thinking that the topic deserved." That's it. That's all.

Professor Johnson ends on the weirdest point of all: "It also makes me think that if the AALS were in charge of law school accreditation, this never would have happened."

For those not familiar with the lingo, the AALS is the American Association of Law Schools. So, if the American Association of Law Schools were in charge of accreditation for new law schools, would we see a loosening of regulations surrounding them? Probably not ...

Of course, if we let the Bakery Owner's Association control zoning for new bakeries, we'd probably have pretty strict zoning laws. And if we let Congress set high qualification requirements for non-incumbents, we would probably see pretty high standards for that too.

Self-regulation of an industry by itself is never a good idea. The ABA is already way too invested in things to be a good regulator, but the idea of letting the AALS control things is even more ridiculous.

Wisconsin Supreme Court Election Turns Around

(By Andrew MacKie-Mason)

Apparently, a county clerk in a Republican part of Wisconsin omitted over 14,000 votes from the unofficial results released on Wednesday night. Prosser's margin in the newly discovered votes was enough to give him the race and push it out of the margin where a recount is free to the candidates. I'm not aware if Kloppenburg will still be seeking a recount. Although I haven't seen a new final vote count, I believe the margin is still in such a place that the recount will be at a minimal cost-per-county, rather than full cost to the candidate, should she request one. I do know that the Kloppenburg campaign has filed various open-records requests relating to the newly discovered votes.

As of yet, there's been no word from the conservatives who were so certain that any newly discovered votes would be part of a progressive conspiracy. As for me, I'm glad that all votes are being properly counted and that there will the the appropriate level of oversight and review to validate the counts certified by local election officials.

Conservatives Don't Want Recount...Until Kloppenburg Wins

(By Andrew MacKie-Mason)

UPDATE 4/8/11, 2:46 AM CDT: New votes found for Prosser have pushed him back over the top, in a significant way. A free recount seems out of the question, and it's unclear whether any recount will be pursued. I don't think that changes any of the substantive analysis in this post.

The blog "Sweetness and Light," a conservative echo chamber, has a post titled "GOP Won WI Court Election, So Recount." Well, it used to be called that, until the author realized he'd called the election too soon. As it turns out, the final vote count actually favored Kloppenburg, the progressive-favored challenger to, as S&L labels him, GOP-incumbent Justice Prosser.

The post, written when Justice Prosser was winning by fewer than 600 votes (out of about 1.5 million total, mind you), is basically a rant against the media and Democrats: how dare they demand a recount with such a clear victory? This must be an attempt to rig the election!

After all, Wisconsin is proud member of the political third world, where the votes need to be counted and re-counted until they finally arrive at the desired outcome.

So, now that Kloppenburg has a majority of the votes, they'll stand by their desire for no recount, right? Of course not. Because, as the commenters were quick to point out, when a Democrat wins by a slim margin, it's proof positive of voter fraud.

Here are a few examples of people who, as I've explained, hate democracy and act as though they want it to collapse:

"wardmama4": Without ACORN – I guess it’s getting harder to ‘win’ elections.

Rusty Shackleford: Kloppenburg is now showing a 400+ vote lead now that they know how many they need.

"David": There has been a consistent pattern of recounts upon recounts that all tend result in the same outcome. The democrat, who was behind, *somehow* pulls ahead after the recount and as soon as the democrat is ahead the vote is certified.

"Rip Cord": This smells amazingly like Harry Reid’s “re-election”. Reid was behind in every poll in Nevada with a week to go and he cried to the Unions to come in and “help”. Suddenly Shepard Smith of Fox News announces that absentee ballots are coming in at 60-40 Reid! I smell a rat!

"proreason": As far as the election goes, I don’t know much about it, except that cheating in elections is the essence of “progressivism”. So it’s a sure bet that there was more than the usual 3-5% in this one.

"Sin City": This election stunt seems to be a pretty worn out strategy, especially in states where there is an imbedded progressive infrastructure. Progressive loses the election, media sounds the alarm, recount-recount-recount until you get the desired result. Rinse, repeat until the will of the majority is sufficiently subverted.

One thing to note is that of all these people attempting to undermine trust in the democratic system, without the slightest hint of evidence (one person, "proreason," specifically refused to back up her claims with facts), only one is even potentially using a real name. Groundless accusations are easy to make when you yourself are hiding behind a coward's shield of anonymity.

Anyways, when an election is within such a tight margin, of course there should be a recount. That's true no matter who wins, and it's not a subversion of the democratic process to ask for one. Things get missed, errors are made, and a second count never hurt anything. But to deny the need for a recount when things go your way, and then to make loud protests of voter fraud the moment they don't, is some of the most despicable and transparently principle-less partisan bullshit I've seen in a while.

Why Do Many Conservatives Hate Democracy?

(By Andrew MacKie-Mason)

Before I delve into it, please understand that while I am generalizing, I do not claim to be making a universal statement, or even a statement that applies to a majority of conservatives. There are many, many people to whom this will not apply.

Watching the election returns in the Wisconsin Supreme Court race last night (click here for my obsessive updates of the vote count or see my Twitter feed) and participating in some discussions in the aftermath has led me to a conclusion I've made before: there is a hatred of (or distrust, or general desire to undermine) democracy among many on the political right.

The best evidence of this is the speed to which many such aligned people will jump to allegations of voter fraud. Rather than waiting for confirmation (or really, information at all), many conservatives will cry "fraud!" as soon as they lose (or, in some cases, as soon as it looks like they may lose). The justification they often offer for those accusations, in place of real facts, is 'Democrats always cheat.' Or, to use actual words from this election:

As far as the election goes, I don’t know much about it, except that cheating in elections is the essence of “progressivism”. So it’s a sure bet that there was more than the usual 3-5% in this one.

Why is this hatred of democracy? To be sure, vigilance against voter fraud is a necessary part of preserving a democracy. However, as is so often true, the devil's in the details.

While people who make voter-fraud allegations may be serving an ostensibly good ideal – election purity and accuracy – their manner of going about it is actually harmful. Careful election monitoring and good recount procedures are helpful ways of preserving democracy, but sitting at home and instantly accusing the other side of fraud (the moment you lose, without evidence) is how you undermine trust in the electoral system, with no appreciable benefit in actual election integrity.

And, to be honest, the electoral system has to be based on trust. There's absolutely no other way for it to work. Each voter can't count every single ballot in even a local election, let alone state or national races. We should be careful about trust, and we should closely monitor the system to ensure that it deserves our trust, but still – at the end of the day – we have to trust.

I'm not sure this is as one-sided a phenomenon as I'm claiming it is. I freely admit that this is based on my own experience, and may be subject to certain biases. So please, if you can think of any widespread, quick, baseless claims by liberals of election fraud, let me know in the comments. Also, if you know of any substantive, corroborated reports of fraud in yesterday's election, put that in the comments as well.

The Democratic Spirit

(By Andrew MacKie-Mason)

In Democracy in America, Alexis de Tocqueville writes:

Local institutions are to liberty was primary schools are to science; they put it within the people's reach; they teach people to appreciate its peaceful enjoyment and accustom them to make use of it. Without local institutions a nation may give itself a free government, but it has not got the spirit of liberty. Passing passions, momentary interest, or chance circumstances may give it the external shape of independence, but the despotic tendencies which have been driven into the interior of the body social will sooner or later break out on the surface. (63)

And:

In America not only to municipal institutions exist, but there is also a municipal spirit which sustains and gives them life.

The New England township combines two advantages which, wherever they are found, keenly excite men's interest; they are independence and power. It acts, it is true, within a sphere beyond which it cannot pass, but within that domain its movements are free. This independence alone would give a real importance not warranted by size or population.

It is important to appreciate that, in general, men's affections are drawn only in directions where power exists. Patriotism does not long prevail in a conquered country. The New Englander is attached to his township not so much because he was born there as because he sees the township as a free, strong corporation of which he is part and which is worth the trouble of trying to direct. (68)

Have we lost the spirit of liberty, or the democratic spirit, in modern America? In a time when significant regulation of health care is done at the federal level and governors claim the authority to appoint a despot for failing local governments, is the township, or the village, or the city, or even the county or state still independent and powerful? And if they're not, does it matter? Was Tocqueville right that this lack of independence and power among local communities would lead to the death of the democratic spirit?

I'll need to write more about this, particularly Tocqueville's praising of local officials to enforce state or federal laws, but there's too much to say in this post. I've put forward my basic principles of federalism. For what it's worth, I'll add this: recognizing the great deal that local authority does to engender interest and engagement with government, we should examine all state or federal action with an eye towards encouraging and guiding local governments rather than imposing mandates.

Page references are too: de Tocqueville, Alexis. Democracy in America. Trans. George Lawrence. Ed. J.P. Mayer. Harper, New York: 2006.

Wisconsin Recount Rules

(By Andrew MacKie-Mason)

A few people have come to this blog during the Wisconsin nail-biter looking for information about Wisconsin recount laws. Here's a quick summary, pulled from Citizens for Elections Integrity in Minnesota.

According to them, any candidate can ask for a recount at any time, although there are fees involved. Free recounts occur with the margin is less than .5% of the votes, and cheap recounts occur when the margin is less than 2% of the vote. Since we're looking at about a .1% margin on the last check, it's likely there will be a recount (if the loser wants one).

UPDATE 4/8/11, 2:44 AM CDT: New votes found for Prosser seem to have put him above the .5% margin that allows for a free recount. He's still under the 2% margin that allows for a cheaper per-precinct cost for a recount, but I'm as of yet unaware whether such a recount will be pursued.

Chicago Run-Off Election Results (And Some Wisconsin)

(By Andrew MacKie-Mason)

UPDATE 4/8/11, 2:47 AM CDT: New votes found for Prosser have pushed him back into the lead.

(Update 12:14 AM CDT) Information on recounts in Wisconsin.

NOTE: Scroll to the bottom of the post for the latest update on the Wisconsin Supreme Court results.

Further NOTE: To all the new readers coming here for Wisconsin election results, I hope you come back tomorrow and read some of the substantive commentary and posts on this blog. It would be good to have you!

Here they are, by ward. In the 20th, incumbent Willie B. Cochran kept his seat with 53.59% of the vote. My endorsement of his challenger is here.

Meanwhile, in Wisconsin an important state Supreme Court rase is in a dead heat. With 81% of the wards reporting, challenger JoAnne Kloppenburg is leading with 51% of the vote: that is, 612,116 – 594,300. If the turnout is evenly distributed between the wards that have reported and those that have not, incumbent David Prosser will need to win 53.24% of the remaning vote to come out on top.

I haven't followed this race at all, so I can't express an opinion either way on who's more fit for the job. But if you're familiar with the candidates, please leave a comment below.

(Update 11:41 PM CDT) According to the Milwaukee Wisconsin Journal Sentinel, Prosser is now leading 703,414 – 701,624 with 95% of wards reporting.

(Update 11:47 PM CDT) Up to 97% reporting, with the new wards leaning heavily Prosser. It's up to 703,675 – 701,760.

(Update 11:54 PM CDT) Still at 97% reporting, but Kloppenburg just saw a significant comeback. Prosser's still in the lead, but it's much narrower: 704,507 – 703,324. That's a gap of only 1,183 votes. If you live in Wisconsin and you didn't vote today...why the hell not?

(Update 11:58 PM CDT) Big jump for Prosser. Count is now 720,760 – 716,089. Still 97% reporting. Spread is at 4,671.

(Update 12:00 AM CDT) No, I'm not obsessively refreshing. Why would you ask that? Prosser now only leading 722,836 – 720,421. Spread of 2,415.

(Update 12:05 AM CDT) We're to 724,355 – 722,518, Prosser still leading. Spread of 1,837. These numbers are jumping all over the place.

(Update 12:14 AM CDT) Now at 724,859 – 723,175 for Prosser. Spread is 1,684. Will this trend continue?

(Update 12:38 AM CDT) Finally, some new votes. Prosser picks some up this go around. 726,750 – 724,651. Spread of 2,099. Remember, unless we get up to a spread of over 7,000, there's the opportunity (which will almost certainly be pursued) of a free recount.

(Update 12:42 AM CDT) A quick, but small, update: Prosser still ahead, 727,208 – 725,205. Spread of 2,003.

(Update 12:51 AM CDT) Margin back below 2,000. 1,906 to be precise. Prosser still leading, 727,440 – 725,534.

(Update 1:02 AM CDT) Prosser up 728,203 – 726,325. Margin is 1,878.

(Update 1:09 AM CDT) This is getting exciting again. Prosser still up, but only 733,074 – 732,489. Margin is a mere 585 votes. God, I'd hate to be a Wisconsin voter who decided going to the polls wasn't worth it today. That would suck.

(Update 9:44 AM CDT) Sometime while I was sleeping, Kloppenburg took the lead again. With 99% reporting, we're at 738,368 – 738,228 in her favor. That margin's only at 140 votes now.

Chicago Run-Off Elections

(By Andrew MacKie-Mason)

Tomorrow/Today (April 5, 2011) is the run-off election day in Chicago. If you live in a ward that's having an aldermanic run-off, make sure to get out and vote. It's likely to be a quick process, and participation in local governments is one of the best ways to build community spirit.

For those voters who, like me, live in the 20th Ward (approximate map at right, city tool to determine your ward and precinct here), the run-off is between Willie B. Cochran and Che "Rhymefest" Smith. A sample ballot can be found here.

I plan to vote for Mr. Smith tomorrow, and I encourage you to do likewise. If you read his responses to a Chicago Tribune questionnaire put out during the general election, it becomes clear that Mr. Smith is highly dedicated to 20th Ward and understands what needs to be done to make it a safer, more positive community.

Mr. Cochran's answers to the questionnaire are here. I'm sure he will also do an excellent job if he continues in his current position as Alderman for the 20th Ward.

Remember to get out and vote!

Scott Walker: Listen To Me!

(By Andrew MacKie-Mason)

In a move demonstrating the utmost childishness, Scott Walker posted a rejected New York Times op-ed he wrote, with the title: "The One Opinion Piece the New York Times Didn't Want You To Read."

Let me translate that for you: "I'm really important. How dare the New York Times not publish my writing?"

Mr. Governor, if you want an honest answer...I've gotta say it's because the piece just isn't that good. Please don't be upset, sir. Not meeting the New York Times' standards isn't some sort of personal failing. I couldn't be published there, and neither could many people. It requires a level of skill and gravitas that most people just don't have.

But seriously now. Is Scott Walker really so egotistical that he thinks his piece was the one submission that the Times didn't publish? That this is all some massive conspiracy to squelch his opinion? Give me a break.

Guest Post: The Political Philosophy of the Labor Union Issue

(By Andrew MacKie-Mason)

The following is Source 4 Politics' first guest post. Until now I haven't haven't had a stated policy about such posts, but let this suffice: the words below are those of the original author, and have not been edited in any way. I screen for quality of writing and basic civility, but not to ensure that guest authors agree with me on issues. With that, I give you "The Political Philosophy of the Labor Union Issue" by Bobbie Walker.

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Politics is more often than not a dirty game, and no matter if you lean left or right, you’re bound to get some of the filth from this gutter on yourself when you choose to become a politician. I’m not implying that there are no righteous folks to be found in the bunch that rules our nation, just that it’s pretty hard to hold on to all your sense of ethics and morals when you’re surrounded by sleaze and treachery all the time. Some politicians may not actually break the law, but they’re often forced to turn a blind eye to wrongdoings and misdemeanors if the pressure on them is hard enough.

Political philosophy encompasses the enforcement of law and legal codes by a political authority such as the government, and we have to ask ourselves how effective a government that is corrupt can enforce the letter of the law. And even if they’re relatively clean, there’s always a conflict of interest in deciding the best course of action, simply because all politicians are mostly concerned with the outcome of the next election and how they can make it into the office of their choice.

Take the recent labor union disputes raging across Wisconsin – the Republicans in power in the state has gone ahead with the bill that effectively rules out the possibility of collective bargaining, the bargaining ploy used by unions to get their demands met. While the unions see this as a blatant violation of their basic rights, the policymakers see it as a measure to safeguard the economic stability of the state – with a huge deficit already hanging over their heads, the government hopes to effect a budget cut that will make it compulsory for state employees to pay their share for healthcare insurance, something that employees of private organizations already do.

However, the unions view it as a violation of their rights, and so we have various strikes that cripple essential services and hold the nation to ransom – imagine what would happen if all the law enforcers refused to go to work, if the firefighters refused to attend the call of duty, and if teachers refused to do their job! Does political philosophy come into play here? How do policymakers decide what’s right and what’s wrong by way of enforcing the law or taking away perks provided to its citizens?

Perhaps the Republicans have to be lauded for the way they dealt with the blackmailing trade unions – they had their eyes on the budget and not on the elections that are around the corner. The Democrats on the other hand, fled the scene hoping to create a situation in which the bill could not be passed – and if this was a trick to get the unions to side with them during election time, perhaps it has done the trick.

However, what the people sometimes fail to realize is that promises from politicians have nothing to do with the political philosophy of the country; rather, it depends on the personal philosophy of the politicians concerned.

This guest post is contributed by Bobbie Walker, she writes on the topic of BSN Degrees Online. She welcomes your comments at her email id: bobbiew862[@]gmail[.]com.

The Liberal Conspiracy, Part 2

(By Andrew MacKie-Mason)

First it was the ACLU of Virginia. Now the ACLU of Ohio is criticizing a school for not letting an anti-Islam speaker give his presentation. When will these organizations remember that their sole purpose and reason for existence is to support liberal causes and attack anyone with Judeo-Christian values?

Geez. How hard is it to get a decent liberal conspiracy going?

Eugene Volokh would like to tell you more about it.

Representing Children

(By Andrew MacKie-Mason)

A few days ago I asked whether parents should be given votes for their children, and how we should think about the political status of children within democracies. Little did I know that the Journal of Political Philosophy recently pre-released an article on that very topic. I'm still working my way through it, and will almost certainly have more to say about it when I'm done (especially regarding my argument that charging juvenile offenders as adults without political representation is a violation of their due process and equal protection rights). But in the meantime, I thought I'd post the link to the article for others to review, if they wish.

Did the NYTimes Get Punked?

(By Andrew MacKie-Mason)

Two of the law-blogs I read had stories up today about the New York Times falling victim to yet another April Fool's Day prank. Intrigued, I read on. What could trick the New York Times this year? The posts are pretty vague, though. Let's start to follow the train:

1. Not Guilty No Way mentions that the Times fell victim to a prank worse than last year's, and directs us to My Law License for the details.
2. My Law License again evokes last year's prank, and then tells us to read about it at Defending People.
3. Defending People again brings up last year's prank, and adds the detail that this year's has to do with a vulnerability in the iPad app. He then directs us to the Center for Class Action Fairness.
4. CCAF builds up on this iPad story, introduces the wrinkle of the NYTimes' new paywall, and then passes us off to Popehat.
5. Popehat gives us some new details: namely that the story includes the phrases "two turds and a golfball" and "over 9,000" and "does not forgive, does not forget." And Popehat is the first to explain that he's not linking to the NYTimes because of their new paywall. Instead, he directs us to Lemon Gloria.
6. Lemon Gloria writes a lot, but basically says nothing more than "the NYTimes got tricked again." Then, off we go to The Legal Satyricon.
7. The Legal Satyricon condemns the NYTimes for a consistent pattern of incorrectness, then redirects us to the New York Personal Injury Law Blog.
8. NYPILB, responsible for last year's April Fool's punking of the New York Times, entices us with the offer of a link to the actual story on Scott Greenfield's Simple Justice blog.
9. In typical fashion, Simple Justice has a long post contributing little, and then he redirects us to Patterico's Pontifications, who he credits with the idea.
10. Suprise! Patterico's Pontifications sends us to Ted Frank, again blaming the New York Times' pay wall.

Who is Ted Frank, you ask? Actually, Ted Frank writes the Center for Class Action Fairness blog. Yes, that's right. Step 10 sends us right back to step 4.

That's when I really got the joke, since it's of course impossible to make a blog-link circle without it being deliberate. Some quick googling confirmed that there was actually no NYTimes story, and also revealed a few more participating blogs:

Suture for a Living redirects to Lemon Gloria (#6).

Crime and Federalism sends you to Popehat (#5).

Windy Pundit would like us to hear it from NYPILB (#8).

I'm sure there's more. I'm also curious about whether all of these bloggers are willing participants, or whether some of them were themselves punked.

At the very least, it's a rare sight to see this many people cooperating in an April Fool's prank. Bravo, all!