So I assume the usual suspects at APSA will now be calling for a boycott of all future meetings in California.

The sad thing is that I agree with the boycott ringleaders on policy but it’s hard to take their specious arguments against the 2012 New Orleans meeting as being motivated by anything other than uninformed or outdated stereotypes of how New Orleanians would behave, as if there are absolutely no gay and lesbian couples in New Orleans today who have successfully dealt with the lack of a legal right to have their relationship with their life partners legitimized by the state. If, as a social scientist, you want other social scientists who aren’t fully committed to your personal crusades to take your public policy arguments seriously, you need to present at least some sort of data in support of your arguments.

I’ve always thought cooperative federalism was something of a misnomer, that whole “national drinking age” thing being just the tip of the coercive dimension of that state “cooperation”; now, via Jacob Levy, comes word of an SSRN article on uncooperative federalism.

The Court of Appeals for the D.C. Circuit has upheld a lower court ruling that the Department of the Treasury is required to make U.S. paper currency accessible to the blind; although the most recent changes to the higher-denomination bills have made various denominations of currency more distinguishable by people with limited vision, all the bills remain the same size and have no tactile features that distinguish the bank note denominations.

I’ll agree with the basic proposition that making major changes to the bills yet again would probably be a bit of a pain, but surely the Bureau of Engraving and Printing could punch some little holes or make some raised dots on the existing bill designs without compromising their usability in existing vending machines.

My OTB co-blogger James Joyner considers the question of what constitutes “judicial activism” as part of the broader debate over California’s same-sex marriage decision yesterday. The admittedly imperfect definition I use—and, kids, this is the one that’s the right answer on my American government exams—is “a tendency for judges to oppose the will of other courts or branches of government.” Mind you, that activism has a long and proud history and not one confined to liberal justices either.

In the case of California, given that just a few years ago the people of that state, acting as its lawmaking body through its public initiative process pursuant to its constitution, decided to legally define marriage as involving one man and one woman, I think you can fairly characterize the California court’s ruling as “activist.” That doesn’t mean it’s the wrong ruling under the constitution and laws of that state, but it’s not deference to either the will of the people or the executive branch either.

The debate over the proposal before the APSA to move the 2012 annual meeting out of New Orleans due to the state’s voters’ approval of an anti-same-sex marriage initiative has hit the rumor blogs.

I didn’t bother to keep a copy of the message I sent to APSA from the website regarding the proposal—silly me expected it would be copied to me once it was sent—but I generally made the argument that both proposals on the table (either an outright policy of avoiding states that had passed anti-same-sex-marriage constitutional amendments or some sort of bizarre “case-by-case consideration” provision that reeks of committee-generated compromise) were fundamentally stupid and missed the point if the stated goals of the proponents—namely assuring the legal protection of individuals who are part of legally-recognized same-sex-married couples who attend the meeting—were the actual goals of the exercise. I also associated myself in my comments with the statement made by my colleagues at Tulane in their entirety, although I was not a signatory of their letter and my signature was not solicited.

My admittedly non-expert understanding of the legal situation—as someone who is neither gay nor in any sort of marriage-like partnership—is that legal recognition of same-sex marriage or an approximately equivalent status is confined to (within the realm of North America) Massachusetts, Vermont, and Canada. Of these places, there are perhaps a half-dozen or so cities capable of hosting APSA, and only one of them is in the United States (Boston, the site of the 2008 meeting). The symbolic opprobrium of anti-same-sex marriage constitutional amendments is, in practice, insignificant; California, Illinois, and New York authorities are no more likely to recognize a Massachusetts same-sex marriage than Louisiana’s authorities. So, in reality same-sex-married couples from the states and provinces that recognize such things are no more “at risk” of legal troubles in New Orleans than they would be in San Francisco, Chicago, or New York City.

If members of the APSA want to protest the symbolism of these amendments or just don’t want to be seen in retrograde states that don’t comport with their vision of a just and liberal society, they should be honest and forthright about that position rather than hiding behind outlandish hypotheticals that really don’t distinguish between the “enlightened” and “backward” states—and given the success of Oregon’s anti-same-sex-marriage ballot measure, that distinction is far narrower than most of us would care to admit.

Update: You can also have at the discussion here if you so choose.

Rick Hasen notes that Linda Greenhouse’s replacement as the New York Times’ Supreme Court reporter will be Adam Liptak. Somehow referring to Supreme Court justices as going Times-native as suffering from “The Liptak Effect” doesn’t roll off the tongue quite as easily.

Tyler Cowen notes a recently-changed German law (previously shared over on the right and also noted by James Joyner) that made it illegal for anyone with a doctorate from a non-E.U. university to call themselves a doctor.

As someone who’s discussed academic titles excessively in the past, I found this turn of events somewhat interesting, but I found this part of the original WaPo piece more noteworthy:

Under a little-known Nazi-era law, only people who earn PhDs or medical degrees in Germany are allowed to use “Dr.” as a courtesy title.

The law was modified in 2001 to extend the privilege to degree-holders from any country in the European Union. But docs from the United States and anywhere else outside Europe are still forbidden to use the honorific. Violators can face a year behind bars. ...

The German doctor rule has been in effect since the 1930s, but it has been only sporadically enforced in recent years.

That changed last fall, when an anonymous tipster filed a complaint with federal prosecutors against seven Americans at the prestigious Max Planck Society, which operates 80 scientific research institutes across Germany. Federal authorities forwarded the complaint to prosecutors and police in at least three states, who decided to take action.

Shouldn’t all of the laws passed under Nazi rule have been repealed anyway, either during the postwar occupation or the subsequent transfer of sovereignty to the Federal Republic in the west? One wonders what other oddities emanating from Hitler’s Reichstag are lurking in modern German law.

The 5th Circuit Court of Appeals has struck down Texas’ anti-sex-toy law, presumably also invalidating the previously-mocked similar law on the books in my former home state, Mississippi.

Ole Miss booster and multi-millionaire class-action lawyer Dickie Scruggs and a number of his associates were indicted yesterday on federal charges stemming from allegations Scruggs attempted to bribe a Lafayette County judge into steering additional attorney’s fees his way in an insurance lawsuit. Scruggs in recent years has set himself up as an unofficial and unelected fourth branch of Mississippi government, using the court system to both influence public policy and enrich his firm with contingency work for the state attorney general’s office, as the C-L story indicates:

Scruggs, the brother-in-law of U.S. Sen. Trent Lott, is best known for his handling of mass litigation on behalf of the state of Mississippi, first involving asbestos and later involving tobacco.

His success in winning Mississippi’s landmark tobacco settlement led to his portrayal in the film The Insider, starring Russell Crowe and Al Pacino.

Then-Attorney General Mike Moore, who portrayed himself in the movie, hired Scruggs to handle the litigation on the state’s behalf – a move later criticized by some because Scruggs and other lawyers received millions in legal fees.

More recently, Scruggs has handled litigation against State Farm Insurance Co. over its handling of Katrina claims.

C-L columnist Sid Salter further explains how this scandal might affect the future careers of both Lott and Moore, Lott’s presumed heir apparent:

Exactly how does one divorce Dickie Scruggs’ historical status as Mike Moore’s largest campaign contributor and Moore’s award of the state’s lucrative tobacco litigation to Scruggs from a discussion of Mike Moore’s political future? It’s the same as ignoring the fact that Scruggs is Trent Lott’s brother-in-law.

Scruggs decided to make himself a major player in Mississippi politics by making huge campaign contributions, loans to candidates, starting and funding PACs to take down candidates he didn’t like and to keep trial lawyer-friendly candidates in power in the state House.

Nothing wrong with that. The business and medical community do the same thing and take their lumps for it. But it is what it is.

The next sob story will be that Dickie’s indictment is about Bush administration persecution of trial lawyers and a rehash of Paul Minor’s problems.

The Missouri Supreme Court yesterday ruled that the city of Clayton can’t seize and hand over several parcels of land in downtown Clayton to private developers who are too cheap to pay market value for land to expand Centene Corporation’s headquarters. According to the article, Centene may look elsewhere instead, but unless they’re willing to go somewhere that’s genuinely blighted—say, about 70% of the city of St. Louis—they’re probably bluffing.

Jason Kuznicki earns quote of the day honors for this statement; but, you should go read the whole thing:

[T]he state enforcement of private moral conduct almost inevitably produces an even greater moral evil than the conduct we aim to repress. Far from leading to a more moral society, the use of force to police the private conduct of adults achieves just the opposite; in the name of opposing libertinism, the prohibitionists run squarely into something far worse.

Radley Balko takes note of my hometown’s inability to convince a Missouri Court of Appeals panel that an area of downtown Clayton is ‘blighted’. Quoth Balko:

The idea that expensive office buildings there could be “blighted” is laughable.

Indeed; the corner of Hanley and Forsyth is pretty close to the least blighted area in the St. Louis MSA by any plausible definition of the term.

TigerHawk talks eminent sense about the legal drinking age:

On the drinking age, I think the right answer is now and always will be obvious. Individuals should be able to purchase alcohol on their own account starting at age 19, which would liberalize the current law considerably and still allow for the policing of unsupervised drinking among high school students. In addition, teenagers older than, say, 15 should be able to drink in the company of their parents, either in private or in restaurants. Responsible drinking has to be taught. One can’t help but believe that the current generation binges because it has had no opportunity to learn that responsibility from the people in the best position to teach it to them.

The only thing I might add is that I’d prefer some sort of policy that got colleges and universities out of policing student prohibition. Lowering the drinking age to 19 would continue the temptation for “student life” officials to (largely ineffectually) regulate all alcohol consumption by students, regardless of age. I’m not sure what the exact solution to that conundrum is, but I am certain that I’d rather have freshmen drinking openly than “out of sight” in the basement of some frat house or off-campus apartment.

Julian Sanchez succinctly explains the rational basis test as applied by the courts:

Now, understand: For a law to be “rationally related” to a legitimate state purpose, it’s not necessary that it actually achieve that purpose, let alone achieve it without bringing about various ancillary harms in the process. It’s enough that a sane legislator might reasonably believe it to contribute to the relevant goal.

In other words, whenever the Supreme Court strikes a law down while claiming to apply the “rational basis test,” they weren’t actually applying the rational basis test. Case in point: Romer v. Evans, in which the court laid the foundations for Lawrence v. Texas by essentially applying heightened scrutiny to discrimination against gays and lesbians—even though they claimed they were simply applying the rational basis test.

The New York Times reports on the bizarre case of Democratic party operative Ike Brown of Noxubee County, Mississippi, who faces a federal lawsuit under the Voting Rights Act for suppressing the voting rights of whites. Probably the most fascinating passages in the article, which read like something out of a 1960s era lawsuit with the races reversed:

Mr. Brown is accused in the lawsuit and in supporting documents of paying and organizing notaries, some of whom illegally marked absentee ballots or influenced how the ballots were voted; of publishing a list of voters, all white, accompanied by a warning that they would be challenged at the polls; of importing black voters into the county; and of altering racial percentages in districts by manipulating the registration rolls. ...

The Justice Department’s voting rights expert is less reserved [than local white residents]. “Virtually every election provides a multitude of examples of these illegal activities organized by Ike Brown and other defendants, and those who act in concert with them,” the expert, Theodore S. Arrington, chairman of the political science department at the University of North Carolina at Charlotte, wrote in a report filed with the court. ...

There are so few whites in the county, Mr. Brown suggests, that the tactics he is accused of are unnecessary to keep blacks in office.

“They can’t win anyway unless we choose to vote for them,” he said with a smile. “If I was doing something wrong — that’s like closing the barn door when the horse is already gone.”

Of course, the key point of practices like the white primary in most of the South wasn’t to prevent blacks from outvoting whites per se—even in the early 20th century before extensive outmigration of African-Americans, whites typically outnumbered blacks in most counties outside the “black belt” plantation counties—but instead to ensure that blacks and lower-to-middle class whites would not form cross-racial voting coalitions in support of white or black candidates that would displace the local elites from office.

Assuming white block voting for white candidates, even in a county that’s 75% black like Noxubee white candidates could win elections with 30–40% black support depending on the turnout ratio… so, if techniques like pressuring blacks through appeals to racial solidarity to also block vote against white candidates breaks down, the illegal tactics Brown is accused of orchestrating would be very helpful in maintaining and/or expanding control of elected offices.

þ Rick Hasen.

The apologia by Kenyon College’s dean of admissions for her college’s policy of discriminating against female applicants in favor of promoting campus gender balance has raised hackles from traditional opponents of affirmative action and proponents alike. Closer to my regular reading lists, Laura of 11D also reacts.

My sense is that Ms. Britz’s argument, like most supporting affirmative action of any kind as an end in and of itself (or those justifying it in any terms other than as a narrowly-focused effort to redress past discrimination at institutions that engaged in such discrimination in the past), falls on its face, but that Kenyon—as a private institution—ought to be able to pursue whatever admissions policies it thinks are appropriate, no matter how misguided the college may be. Of course, whether or not taxpayers ought to subsidize those policies directly or indirectly, which they do at Kenyon and most other institutions of higher education in this country, is another question entirely…

Radley Balko, commenting on his field trip to Prentiss County, Mississippi:

There are lots of reasons to be upset by the Cory Maye case that have nothing to do with race. And I’ve tried to avoid injecting race into my own analysis of the case. But it’s impossible to visit the area and come away with any feeling other than that race pervades nearly every facet of life down there.

The failure rate on the bar exam appears to be rising, although the absolute number of individuals passing the bar seems to be nearly constant nationwide over time.

Multiple-choice question: which of the following explanations for this pattern is most plausible?

1. Although more students are graduating from law school today than a decade ago, they are nonetheless dumber, at least as measured by the bar exam.
2. Affirmative action is churning out large numbers of law school graduates who subsequently cannot pass the bar.
3. The body of knowledge necessary to practice law in America has substantially increased in the past decade, thus requiring greater knowledge by new attorneys; thus the bar exam has become harder.
4. The bar exam is designed to limit the supply of lawyers, not to test whether potential lawyers have sufficient knowledge to practice law.

Free hint: the bar exam is set by existing members of the profession who have a state-granted monopoly on the practice of law.

þ: Glenn Reynolds and Amber Taylor’s comments.

Orin Kerr links an Independent on Sunday article that claims the administration is planning to shut down the prison camp at Gitmo. Color me skeptical, to say the least.

Via email from FCS, a story on a professor at Suffolk University who apparently can’t work Fn-F4 (the internal/external display switch) on his laptop properly:

A Suffolk University professor is under investigation by university officials following accusations of alleged pornographic misconduct.

According to Emily Macdonald, a student in the class, [the professor] allegedly watched porn on his computer, which was unknowingly connected to a monitor that was behind him.

The class ended half an hour following the display, and the students never tried to intervene.

All sorts of intriguing questions arise here: was he multitasking at the time, both lecturing and watching Hung Jury 17 simultaneously? How does one “unknowingly” hook up one’s own computer to a monitor? Perhaps most importantly, from a pedagogical standpoint, did the porn in the background hurt or help students’ comprehension of the other material presented in class that day?

Update: The boss has additional thoughts on this matter.

Update (19 July 2007): At the request of the individual involved in this unfortunate incident and after some reflection, I have removed his name from this post; his identity was really not all that important to the point of this post.

Since I am off on an interview today, posting may be restricted to this linkfest:

• Hei Lun Chan of Begging to Differ dissects the NFL labor dispute to the bare essentials; if only he were as hot as Rachel Nichols, I might never need to watch ESPN again.
• Clint Ecker of Ars Technica reviews the Intel Mac mini for those who have not experienced for themselves the bliss that is Core Duo.
• The Solomon Amendment case was another 8–0 slam dunk for those right-wing extremists on the Supreme Court, and probably the right decision on precedent (in my mind, it would be hard to strike down the Solomon Amendment but uphold much of the Civil Rights Act of 1964); overall, I tend to agree with Will Baude’s assessment that policymakers (explicitly excluding, being the attitudinalist I am, the Court) on all sides of the issue are wrong. Baude also ponders the possibility that private universities might choose to divest themselves of their law schools to avoid any adverse effect should they chose to continue to bar military recruiters.

That’s all I’ve got for now.

Stephen Jessee and Alexander Tahk, two Ph.D. candidates at Stanford, have put together a website that attempts to estimate the ideological positions of Samuel Alito and John Roberts from their votes on the Supreme Court this term.

Perhaps the most interesting result thus far is that Roberts’ estimated ideal point (position in the unidimensional ideological space) is virtually indistinguishable from that of his predecessor as Chief Justice, William Rehnquist, although that is of course subject to change as more cases come along. (The Alito estimates seem to solely reflect the uninformative prior that Jessee and Tahk have placed on him thus far.)

Shorter Tom Smith: I don’t know whether or not the president’s domestic spying program is actually, you know, legal or constitutional, but since members of Congress sometimes put electoral considerations ahead of the law, the concerns of the elected representatives of the people of the United States are to be completely dismissed, because a few executive branch political appointees (and I) think that the program initiated by their boss is somehow consistent with the Constitution under some sort of complete hand-waving, “anything goes” Article II doctrine that makes the court’s interpretation of the Commerce Clause in Wickard v. Filburn seem like a restraint on congressional authority.

Shorter Jeff Goldstein and Wall Street Journal editorial board: Separation of powers is for idiots.

One more thing: the first person to reply with “the Constitution is not a suicide pact” needs to come up with an argument, not a slogan.

Update: A perhaps-related post from Venkat at Begging to Differ.

Will Baude asks why President Bush asked for Congress to pass the line-item veto in last night State of the Union address. He advances six semi-plausible explanations for why Bush would have done so.

Let me propose a seventh (and far simpler) explanation: Bush wants Congress to pass a constitutional amendment that provides for the line-item veto. Yes, it is relatively unlikely to happen, but then again I don’t see the Supreme Court flip-flopping on Clinton v. New York (or letting Congress get away with weaseling around it) as any more likely.

Thomas Smith inquires:

Why would FISA provide for warrantless surveillance during wartime for 15 days only after a declaration of war? This is a very strange provision, if you think about it. There is no reason to expect that the first 15 days of a war would be when warrantless surveillance would be most useful. Or is the idea that in the event of a sneak attack, you might need to begin eavesdropping immediately, but 15 days would give you long enough to line up your applications to the FISA court? If so, that is certainly an outstanding example of Congressional stupidity. It almost seems that the 15 day provision is there to show that the President’s Article II power to surveil during wartime has not been entirely eliminated; that is, the 15 day provision has a kind of place holder feeling to it, more certainly than making any kind of practical sense.

It seems to me that the obvious explanation for the 15-day rule is the same as the explanation for the time-limit in the War Powers Act: it gives Congress enough time to decide whether or not to extend the authority beyond the statutory minimum (just as the WPA gives Congress the time to decide whether or not to continue to delegate its power to conduct military operations to the president). Since Congress apparently did not decide to suspend the FISA warrant requirement beyond the 15-day limit (i.e. on or before September 26, 2001), it is reasonable to conclude that Congress wanted the FISA warrant requirements to be followed beyond that date.

As an aside, I’m amused by conservatives running around treating Article II’s penumbras and emanations like a giant Neccessary and Proper Clause. In re Neagle ain’t exactly a presidential blank check, unlike McCulloch, for good reason. By all means, we should have a debate over presidential surveillance powers, but Smith et al. seem to be suggesting the blank check approach—what my fellow political scientist Steven Taylor, no liberal, has been hammering on for weeks as being completely unacceptable and incompatible with our system of checks and balances. If Democrats have been guilty of simplistic arguments—and they have—so too have defenders of the administration’s approach like Smith, whose basic argument boils down to either “trust us” or vague handwaving in the direction of broad discretionary executive powers that are thoroughly inconsistent with judicial conservatives’ approaches to other parts of the constitution.

Update: There’s more FISA stuff from Orin Kerr.