Conrad of The Gweilo Diaries notes the reopening of an investigation into the 1955 Emmitt Till murder; Till’s murder by white supremicists is generally regarded as a catalyst for the civil rights movement in Mississippi.

Today, the Clarion-Ledger website carried a long article on the reopening of the case.

Congratulations to Will Baude on his decision to turn to the Dark Side slightly improve the labor market for graduating Ph.D.s in 2009 or so accept an offer to attend Yale Law School this coming fall.

And—no matter what Brian Leiter tells you—they ALL suck are really good scholarly communities.

Gary Farber and John Cole (also here) rightly characterize as “appalling” reports that Army soldiers tortured and abused Iraqi prisoners, possibly with the connivance of higher-ups. A special fisking is in order for the lawyer for one of the accused soldiers, as quoted by the New York Times:

“This case involves a monumental failure of leadership, where lower-level enlisted people are being scapegoated,” Mr. Myers said. “The real story is not in these six young enlisted people. The real story is the manner in which the intelligence community forced them into this position.”

No, the real story is that Mr. Myers’ client (allegedly) obeyed an illegal order, violated the Geneva Conventions, and deserves to spend every single minute he gets in Leavenworth—right along side the officers whose orders he obeyed. “I was only following orders” is a chickenshit excuse, especially for an E-6.

Update: More from Xrlq and Steven Taylor, who labels the soldiers “sadistic morons” and catches another soldier pleading “we didn’t know any better,” as well as news that British troops are also accused of abusing Iraqi prisoners.

There’s a must-read article (no matter what your political leanings are) over at Reason Online, about the federal government’s “ever-expanding criminal code.”

Those of you in Memphis might like to note that the first two cases mentioned by the authors, USA v. Mahoney and USA v. Logan, were tried in Jackson and Memphis, respectively.

Professor Bainbridge thinks some branches of government are more co-equal than others:

Reading the accounts of the Supreme Court’s oral argument yesterday on the Guantanamo prisoner appeal, I am struck yet again by the unweening arrogance of the US judiciary. Set aside the substantive merits of the case, of which I believe Justice Jackson’s aphorism “the Constitution is not a suicide pact” more than adequately disposes (see also my friend and colleague Eugene Volokh’s more substantive critique). Instead, consider how offended some members of the Court seemed to be by the notion that any aspect of American life might lie outside their reach. Breyer, for example, complained: “It seems rather contrary to an idea of a Constitution with three branches that the executive would be free to do whatever they want, whatever they want without a check.”

Apparently only the Supreme Court is “free to do whatever they want… without a check.” If five of the nine unelected old men and women on that court agree, they can strike down any law or executive action. And our elected representatives have essentially no power to constrain them other than the impractical route of amending the Constitution.

In actuality, our elected representatives have a great deal of power to constrain the judiciary: they may, for example, limit its jurisdiction, expand its membership (“court packing”), reduce funding, split circuits, and take myriad other actions designed to frustrate the court. Lower court judges can, and often do, defy the clear precedent set forth by the Supreme Court. Congress and the president routinely ignore the intent of Supreme Court decisions like INS v. Chadha. The Supreme Court has no police power to compel compliance with its decisions; President Eisenhower sent the National Guard to Little Rock, not Earl Warren, while President Jackson gave the (figurative, if not literal) finger to the Court when it told him to stop deporting the Cherokees.

Heck, good money says that if the Supremes had done what almost all agree now is the right thing in Korematsu, and said Japanese-Americans were being deprived of their rights by being interred, it wouldn’t have made the least bit of difference. And, should the Court actually agree with the Gitmo detainees’ case, and if the hypothetical Reinhardt decision comes that some detainees should be released, I’m not expecting the administration to be in any hurry whatsoever to comply—more likely, they’ll just ship them off to the Mossad or something.

To assert that “our elected representatives have essentially no power to constrain” the courts is borderline absurd. Congress and the president have plenty of power—they just choose not to exercise it, given that both parties want to have a Supreme Court that is willing and able to do the dirty work of standing up to the voters when they demand “uncommonly silly” laws (that nonetheless get overwhelming legislative support) like flag desecration acts, public morals legislation, and the like.

Update: Brett Marston agrees with me, at least in part, citing additional constraints on the Court (most notably, that it is restricted to ruling on cases on its docket).

More wackiness from the Bay State gay marriage kerfuffle: now the plan is, remove the judges.

Link via Kate Malcolm.

Robert Prather agrees with Jeralynn of TalkLeft that the proposed Victims’ Rights Amendment to the U.S. Constitution is a bad idea, and I tend to agree with that assessment.

In general, the amendment seems to be an example of a solution that is in search of a problem. At the federal level, there is nothing in this proposed amendment that couldn’t be guaranteed by statute in federal criminal proceedings. At the state level, there is little evidence that states have failed to consider (and either accept or reject) the need for similar provisions in their jurisdictions, or have deliberately excluded the interests of crime victims from political debate, which is the general threshold I’d say you need to cross to justify a federal intervention into areas of traditional state sovereignty like criminal justice.

In any event, you can read the full text of the proposed amendment at THOMAS and decide for yourself.

Is there anyone who thinks this plan is a good use of time and resources?* I realize that the fungibility of resources (a fancy way of saying the ability to “walk and chew gum at the same time”) is often overrated, that DOJ‘s “porn surfers” wouldn’t be much help in the War on Terror, and there is a bit of a dark side to the “legit” pornography industry that takes advantage of young (but legally adult) women from abusive backgounds, but a crackdown on dirty movies seems like a pretty stupid idea nonetheless. I personally would have no beef with a crackdown on “kiddie porn” and the like, but as Glenn Reynolds points out the Ashcroft plan goes far beyond this eminently reasonable target to go after such examples of “I Can’t Believe It’s Not Porn” as Skinemax and Spectravision.

But, if we must do this, I think David Adesnik’s solution of having the ex-Taliban Gitmo detainees do the, er, heavy lifting seems appropriate. And I suspect the reaction of Josh Barro of the Harvard Republicans reflects that of most young conservatives: a healthy dollop of “what the hell are they thinking?”

every schoolchild in America, every one who doesn't make a spectacle of him or herself by conscientiously objecting, is expected every schoolday to

pledge allegiance to the flag of the United States of America And to the Republic for which it stands One nation under God, indivisivible, with liberty and justice for all

which is, really, an awful lot like an oath of loyalty and citizenship.

Alex Tabarrok, however, goes a bit over the top in opposing the pledge for similar reasons. You've heard of Godwin's Law, haven't you, Prof. Tabarrok?

Tyler Cowen points out new research that indicates no-fault divorce laws have led to lower levels of domestic violence and suicide among women.

Jacob Levy has a very good post on the Pledge of Allegiance and its contemporary meaning. I tend to agree with Levy that “[i]f the words are not serious—and they’re not, anymore—if they’re just mindless blather, then they demean something that shouldn’t be demeaned.” When something is said by rote rather than with conviction—as the Pledge is, daily, in public schools—I think it is inherently devalued.

Not that this has much to do with the constitutionality of including “under God” in the pledge, mind you, as Jacob acknowledges. And I’m not sure what exactly to make of Jacob’s suggestion of “a one-time citizenship oath sworn at age 18” as an alternative to the Pledge. But I do think that people who take God seriously ought to wonder whether His name ought to be included as a footnote of something that our society treats as nothing more than a ritual incantation.

Amanda Butler has a first-hand report on the oral argument of Elk Grove Unified School District v. Newdow (a.k.a. the Pledge of Allegiance case). Like Amanda, I think Newdow has the better argument here; however, I doubt that will be enough to sway 5 justices to strip “under God” from the pledge.

Happily, Mississippi—like Texas—remains safe from the scourge on society known as the sex toy, thanks to our beloved state Supreme Court.

Amusing passage from the story:

Presiding Justice Bill Waller Jr., writing Thursday for the court, said state law provides that physicians and psychologists may prescribe sexual devices for their patients, and the patients may buy them from the physicians and psychologists.

I dare anyone in Mississippi to go to their doctor and ask to be prescribed a vibrator. Hell, if I had insurance that would cover such a frivolous use of the health care system, I’d go do it myself just for the sheer entertainment value.

The whole ruling is here, and almost certainly is fisk-worthy.

Update: Conrad reacts strongly:

Having met Bill Waller, all I can say is that, if dildos are illegal, Waller ought to have himself impounded immediately.

Kate Malcolm (to whom I owe a NCAA tourney bracket) wonders if I have any perspective on the ongoing legal machinations surrounding Justice Oliver Diaz of the Mississippi Supreme Court. What’s perhaps most interesting is the necessary footnoting that NYT reporter Adam Liptak omits from the article. For example:

In court on March 5, Abbe Lowell, a lawyer for Mr. Minor, said the government’s theory made routine conduct by lawyers and judges in Mississippi into a federal felony.

Fun fact: Lowell served as Democratic counsel to the House Judiciary Committee during the impeachment proceedings against Bill Clinton.

[Paul] Minor, a former president of the Mississippi Trial Lawyers Association, contends that the United States attorney here, Dunn Lampton, a Republican, singled him out for prosecution for political reasons, because he is a big contributor to Democratic candidates and a vocal opponent of efforts to limit injury awards.

Minor’s father—whose libel case was at issue in the prosecution—is a political columnist for Mississippi newspapers; his politics are just slightly to the right of those of Paul Krugman.

His papers focus on what he says is similar conduct by Richard Scruggs, another prominent plaintiffs’ lawyer in the state, though one with ties to the Republican Party. Mr. Scruggs and Senator Trent Lott, Republican of Mississippi, are married to sisters.

Richard “Dickie” Scruggs was the main beneficiary of the state’s separate settlement agreement that his college roommate, former Democratic attorney general Mike Moore, negotiated with Big Tobacco. Scruggs raked in hundreds of millions of dollars of contigency fees, while Moore got to oversee a parallel shadow government under the aegis of the settlement trust fund that, to this day, remains unaccountable to the state legislature (and which spends millions of dollars per year on an anti-tobacco campaign for Mississippi youth that has been shown to be almost completely ineffective, rather than contributing to the better-known and more reputable “Truth” campaign funded by the MSA with Big Tobacco that most of the states arrived at later).

Mr. Minor is also accused of guaranteeing loans and making payments to two former lower-court judges, John H. Whitfield and Walter W. Teel.

Lawyers in Mississippi routinely appear before judges to whose campaigns they have made financial contributions.

Don’t you just love institutionalized corruption? Still, that’s an interesting juxtaposition—essentially equating personal gifts and loans (i.e. possible bribes) with campaign contributions.

I’ll leave the detailed legal analysis to Scipio. As Liptak notes, the case is somewhat tied into the ongoing mess over tort reform and “jackpot justice” (absurd non-economic damage awards) in the state, which has been a battleground between Mississippi Democrats and Republicans—and arguably is the only substantive issue in the state that white politicos disagree on, given the roughly tripartite division of the legislature into black (Democrat), white Democrat, and (white) Republican voting blocs.

Eugene Volokh writes, regarding the prosecution of two Unitarian minister in New Paltz, NY for marrying same-sex couples:

Some readers suggest that the clergy may be being prosecuted for signing their names to some government document attesting to the marriage. This might indeed be more punishable as an offense, partly because it’s more likely to be seen as a false statement of fact—a clerk might indeed not realize on a quick glance that this is a same-sex marriage, and be confused into thinking that the marriage was valid. But that’s not what I understood “solemnizing” to mean under New York law; as I understand it, solemnizing means performing the marriage, not signing a document.

This prompted me to dig up my New York marriage certificate from August, 1995. There’s a signature on it by the town clerk who issued it, but no place on the certificate for the signature of the person who performed the ceremony. (The town clerk happened to be the person who performed the ceremony, but if someone else had, there’s no place on the certificate for that person to sign.) For that matter, there’s no place on the certificate for the couple to sign, and I seem to recall signing something at some point. The wording on the certificate alludes to a “duly registered license … on file in this office.” Perhaps the person who performs the ceremony has to sign the duly registered license.

Apparently unsatisfied with wasting taxpayer dollars by insulting our intelligence with TV advertising, the Federal Drug Warriors are now planning to annoy the hell out of internet users in their quest for a drug-free America:

[ Drug Enforcement Administrator Karen]Tandy said the DEA plans online educational initiatives including Internet versions of Public Service Announcements and pop-up ads that will appear on the computer screens of individuals searching the Internet for drugs.

All the more reason to use Mozilla Firefox. You can block pop-ups and stick it to the Man!

I’m feeling terribly conflicted this morning. The Baseball Crank has a lengthy post on the same-sex marriage issue, in which he makes—and highlights—the following prediction:

Gay marriage will become the law of the land without any state legislature ever having voted it into law, without a majority of either house of Congress ever having voted in favor of gay marriage, without any statewide popular referendum ever having voted in favor of gay marriage, and without any state or federal constitutional provision ever having explicitly authorized it.

I think the first part of the Crank’s premise is incorrect—Massachusetts’ legislature will probably vote it into law later this year, albeit under court duress—but otherwise, there’s not a word there I’d disagree with. And efforts to analogize this “struggle for equality” with those of racial minorities don’t track—those groups were deliberately and systematically excluded from political participation through ordinary legislative channels, against the plain text of the 14th and 15th amendments to the Constitution and numerous federal statutes, and thus their recourse to the judiciary was justified. Tyranny and oppression is being confronted with policemen on horseback, unjustly imprisoned, blasted with fire hoses, and lynching; being deprived of legal recognition of the fact you’ve set up housekeeping with someone of the same gender doesn’t quite fit into that category.

Is the only justification needed for anyone to get a victory in the courts something along the lines of “we couldn’t get the legislature to vote for it“? I find this a profoundly disturbing question. And I say that as one of the tiny minority of people in my state who would support legal recognition of same-sex marriages. What am I supposed to tell my students? “Well, the Supreme Court doesn’t trust your representatives to do what’s right, so they’ve decided to decide on everyone else’s behalf what your laws should be.” I don’t remember seeing that in Federalist 10.

On the other hand, I think Kate Malcolm is probably right that the judgment of history may well see those who oppose same-sex marriage today in much the same light as we (well, most of we at any rate) today see the segregationists of the 1950s and 1960s. So in the end I end up just feeling conflicted about the whole thing.

I think Brock below is being a bit obtuse in claiming the President’s position on a federal marriage amendment is an endorsement of “enshrining anti-gay bigotry into the United States Constitution”—particularly since that self-same alleged anti-gay bigotry is essentially the law of the land as of February 25, 2004. And I also think it’s absurd to criticize the president for not living up to one’s own fantasies about him, as Andrew Sullivan has done.

Funnily enough, my thoughts on the matter, from a policy perspective, generally coincide with those of Steven Taylor—although I personally do not share Taylor’s “moral objections” to homosexuality. As a supporter of same-sex marriage, I firmly believe the process that has been used to this point by its more overzealous proponents—particularly the extralegal behavior of officers of the City and County of San Francisco—is likely to energize enough additional support for FMA for it to pass, particularly if, as I expect will happen, Congress calls for ratification by special state conventions.* But my emotional reaction to the president’s support for FMA is closer to Tim Sandefur’s—which was perhaps even stronger than Brock’s.

Elsewhere: Dan Drezner is hosting a discussion of the politics of the proposal.

Greg Goelzhauser at Crescat Sententia considers the use and abuse of behavioral economics by legal scholars, jumping off from this interview with Berkeley economist Matthew Rabin. Greg writes:

That humans fall prey to a variety of heuristics is nothing new or extraordinary. What is important for law and economics is if some of these heuristics lead the relevant actors to systematically err in their decisionmaking. Unfortunately, many of those writing in the behavioral law and economics field care little about whether the actors they are concerned with actually rely on the heuristics attributed to them or, if they do so happen to rely, whether reliance actually leads to systematic error. The reason? These are often difficult empirical questions.

I’m not sure that this is an accurate characterization of what a heuristic is; it’s not simply a matter of “falling prey” to them, as many are reasonable shortcuts. You assume that the store with the cheapest price on a product is advertising it, rather than calling every store in town. Instead of digging through the platforms to find the most stridently anti-war presidential candidate, you assume the candidate making the most noise about the war is that candidate.

Now, as Tversky and Kahneman have pointed out, some heuristics do lead to systematic, non-random error. And some of those errors are big enough that the cost associated with the error is larger than the deadweight loss of not using the heuristic (calling every store in the world or spending hours reading the minutae of Lyndon LaRouche’s campaign platform).

Greg’s larger point—that social scientists and legal scholars often assume away the “difficult empirical questions” associated with determining whether systematic error exists—is well-taken, but I think characterizing heuristics as something we “fall prey” to assumes away the more important question of whether the systematic error involved in using heuristics outweighs the costs we avoid by using them.

I haven’t waded into the big war between Randy Barnett, Prof. Bainbridge, Brett Marston, and others over the proper role of the courts; that isn’t to say I’m not interested, just that I haven’t had a chance to sit down and really articulate what I think. Then again, anyone who knows of my affinity for Federalist 10 would probably be able to guess that I’m firmly on the Barnett/Marston side of the debate. For another perspective, see Steven Taylor’s latest post.

Many conservative and libertarian bloggers have positioned themselves

Nothing in this Constitution shall be construed to require that a state recognize or give legal effect to marriages other than those between one man and one woman.

Nothing in this Constitution shall be construed to require that a state recognize or give legal effect to marriages performed outside that state.

According to this website, first cousins can legally marry in Massachusetts and seventeen other states (if I’m counting correctly). If the state of Kansas, for example, which does not permit first cousins to marry, is not required to recognize a same-sex marriage performed in Massachusetts, why should it have to recognize a cousin-marriage performed in Massachusetts?

And according to this website, people as young as age 14 can marry in several states, including Massachusetts. But in Nebraska, you have to be at least 17. If Nebraska is not required to recognize the marriage of two men from Massachusetts, why should it have to recognize the marriage of two 14-year-olds from Massachusetts?

If the proponents of federalism regarding marriage will endorse an amendment like this, I’ll not question their sincerity. (And if they’ll add a clause to the amendment stating the the Federal government will recognize any marriage performed in any state, overturning the odious "Defense of Marriage Act," I’ll even join them in endorsing it.) Until then, I’ll remain of the opinion that these proposals to amend the Constitution in response to the Goodridge decision have the stink of bigotry about them.

Andrew Sullivan thinks that the proposed Federal Marriage Amendment would ban even legislatively enacted civil union statutes, such as Vermont’s.

Keith Burgess-Jackson accuses Sullivan of hysteria:

Andrew Sullivan has lost his bloody mind. In today’s blog (see here), he gives a hysterical misreading of the proposed Federal Marriage Amendment, then chastises The New York Times for not misreading it the same way.

How Sullivan could misread this simply worded amendment boggles my mind. His lack of legal training may explain some of it (does he not have legally trained friends?), but I think there’s more going on. His otherwise sound intellect fails him repeatedly when it comes to homosexual marriage (or homosexuality generally). Please, Andrew, get a grip. You’re embarrassing yourself.

Prof. Burgess-Jackson may want to take note that Eugene Volokh thinks the FMA admits just such a reading:

And if courts do treat the ambiguous phrase “incidents of marriage” as referring to the benefits, burdens, and practices that have traditionally accompanied marriage, then legislative civil union statutes may well become unconstitutional or at least unenforceable: As I said before, government officials would be prohibited from construing the statute according to its literal text, as providing some of the traditional benefits of marriage to unmarried couples. And if someone goes to court to challenge the official’s refusal to provide such benefits, then the court court would likewise be forbidden from construing the statute according to its literal text.

So is Prof. Volokh being "hysterical" as well? Has he too "lost his bloody mind"? Is his "otherwise sound intellect failing him"? Or maybe it’s Prof. Volokh’s "lack of legal training"?

UPDATE: Prof. Burgess-Jackson's Mea Culpa.