Archive for January, 2008

Blogging Update

January 29, 2008

Back from a brief hiatus, your loyal blogger found this article about blogs from the New York Review of Books in the in-box. The writer, Sarah Boxer, has read thousands of blogs and doesn’t much like what she reads. And who can blame her? If I wrote blogs like the ones she reports on, I would be “Googling” the words “methods of painless suicide.” I may anyway. As of the end of 2007, one hundred million blogs existed. Only 15% of them are active but that leaves fifteen million competitors for your attention. (Although 37% of those are written in Japanese, a language with which we do not compete here at the Golden State.)

Her criticisms of blogs are correct though. I hope that you find none of those faults she enumerates here. The next entry in this series explores some of those issues. Read the first post is here. As you will see there, I agree with Ms. Boxer.


More News You Missed

January 22, 2008

Here, according to CSPAN, is the real reason Bill Richardson had to drop out of the presidential race.


The Art of Blogging, Part II

January 18, 2008

Some days the writing juices don’t flow. But distractions abound. . . .

“Writers of the past had absinthe, whiskey, or heroin. I have Google. I go there intending to stay five minutes and next thing I know, seven hours have passed, I’ve written 43 words, and all I have to show for it is that I know the titles of every episode of The Nanny and the Professor.”

– Michael Chabon

By the way, Mr. Chabon’s latest book, The Yiddish Policemen’s Union, is a good read, especially for Raymond Chandler fans.

The Art of Blogging? Part I

January 15, 2008

During the recent blizzard of words about commas and the 2nd Amendment — a blizzard which has abated but not ended — this blog passed a milestone; its 100th entry. That affords an opportunity for some preliminary thoughts on blogging. I proffer three today, all stimulated by William Safire’s column in the Sunday New York Times which you can read online here, but which I read in the “print” edition. I prefer to hold my newspapers in my hands.

Decrying the “natural sloppiness” of spoken English spilling into print, Mr. Safire wrote:

Oral usage is all over the Web, but that’s not what we think of as “print” because it is essentially transcribed speech, paying little attention to the rules that mark the precision, clarity and originality of carefully written and edited language.

I must pick a nit with Mr. Safire. I, for one, think of the Web as “print.” I fully understand that it is just a collection of electrons and that it is absurdly ephemeral. Not to mention a parody of “self-publishing.” (I know, Mr. Safire, “No sentence fragments.”) The vast majority of Web writing is trite. Most is awful as writing. But it is writing nonetheless. And the result is “print” on the computer screen which is read, not spoken. It is not an oral transmission. It is available to an audience far beyond the sound of my voice should anyone care to partake and it is a conversation only in the sense that anyone can participate by leaving comments or responding on their own blog. I am not sitting here talking to friends, I am alone, sitting at a keyboard writing. For better or worse, blogging is writing and the result is a form of print.

I probably have a bias since I keep a blog. There are substantive differences between traditional print publishing and blogging. For instance, print publishing is blessed with editors. Sadly, the writing on this blog is edited only by its author. No doubt the writing would improve if I had an editor. (For instance, an editor might have made that “…had I an editor.” How would I know? I don’t have one.) But the blog only has about two readers and no income, so how could I afford an editor? (If Mr. Safire was editing me, that “so” might have become a “thus.” Or a period. How would I know?)

Some bloggers try to write carefully; with precision, clarity, and originality. Just because we’re not “published” in the traditional sense does not mean that we’re just “transcribing speech” here.

On the other hand, in part because they are not edited — or only self-edited — blogs are more democratic. Unlike traditional writing and publishing, there are no gatekeepers. Anyone who wants to keep a blog can. (Freudian slip: I just typed “blob” instead of “blog.” At least I caught that mistake. The spell-checker would have missed it. Still, I would like to have an editor.) The blogs don’t care who writes them nor do they care if their authors can construct a decent sentence. They are oblivious to quality. Some are good; most aren’t. Like books, they don’t care who — if anyone — reads them. All readers are equal and most are unknown to the author. Finally, blogs do me no harm, I don’t have to read them unless I choose.

Transient in the extreme, no blog will ever have the permanence, either physical or psychological, of a book or even a magazine or newspaper. A click of a mouse and it disappears. A massive power failure or burst of electronic pulse and they are all gone in an instant. Unless, like me, the blogger doesn’t fully trust this new medium and backs up his words with hard copies. Which no one will ever read and with which my children will be saddled after I die. I can hear the discussion now: [transcribed speech follows]

“What shall we do with Dad’s blog entries?”
“I don’t know. You want them?”
“Nah, I got too much paper in my life already.”
“Yeah, me too. Could we donate them?”
“To who?
“You mean, ‘To whom?’”
“Well, who would want them?”
“I don’t know. Do YOU want to throw them away?”
“Well, not really. He worked hard to write them. They were important to him. You throw them away.”
“Me? Not a chance. There might be an afterlife and, if there is, he would get me for it. You do it.”
“No way.”
“OK. You keep them in your house. Maybe your children will want them.”
“No. You keep them. He always liked you best.”
“He did not. He liked you best. You have to keep them.”

Another 2nd Amendment Update

January 13, 2008

For someone who isn’t a 2nd Amendment expert, I am sure am writing about it a lot lately. I promise the next post will be about something else? What? I don’t know and I don’t care, just something else.

In the meantime, Adam Liptak has a short piece here in today’s New York Times. He divides the Amendment into a “purpose” clause and an “operative” one. If you read it on line, be sure to look at the graphic as well as the text of the piece.


More Updates as of January 15th.

Conservative law bloggers weigh in on the Government’s Amicus brief here, here and here. They are not amused.

Liberal law blogger’s take on the Government’s brief here.

2nd Amendment-Supreme Court Briefs

January 12, 2008

A quick update to the 2nd Amendment case we’ve been discussing. Friend-of-the-Court briefs were due yesterday for those groups supporting the District of Columbia’s gun law. Twenty were filed. It was also the due date for the U.S. Government’s brief. A quick run-through indicates two primary arguments being made: First, the right is related to militia service and second, even if there is an individual right to bear arms that right can be constrained by reasonable government regulations. If you can’t wait for my digest of the briefs you can read them here. The Government’s brief is here.

Interestingly, the Bush Administration’s brief, while it argues for an individual right, thinks the right is not unllimited and wants the case sent back to the lower court for more factual findings. The brief does not appear to directly address the constitutionality of the D.C. handgun ban but I need to read the brief again more carefully. The government’s brief argues that the D.C. Court of Appeals’ approach was too categorical.

An interesting aside: Prior to May, 2001 when then Attorney General Ashcroft wrote a letter to the National Rifle Association (NRA) telling the NRA that the federal government now supported an “individual right” interpretation, the government had always taken the view that the amendment related to militias and conferred no individual right. Since General Ashcroft’s letter; however, the federal government has argued that it is an individual right that is protected. One of the briefs filed yesterday was filed on behalf of several former Justice Department employees, including two former Attorneys General, decrying that change of position and documenting the history of the government’s pre-2001 position. It isn’t often the government argues with itself.

The briefs for those opposing the district’s gun law are due in early February and oral argument will likely be in March.

Commas and the Law, Part V – The 2nd Amendment

January 11, 2008

We left off with the video of the high speed chase in the case of Scott v. Harris in the United States Supreme Court decided last year. [1]If you haven’t watched it, here it is again.

Victor Harris, age 19 at the time, was going 73 mph in a 55 mph speed zone on a road in Georgia. A police cruiser clocked him at that speed and then went after him. Young Harris fled, which resulted in the high speed chase (up to 90mph) you see on the video. After about 9 minutes of the chase, the police decided to “take him out” by shoving the Harris car off the road, resulting in the wreck you see at the end of the video. Amazingly, the wreck did not kill Harris but it did render him a quadriplegic, paralyzed permanently from the neck down. Harris sued the police, alleging that they used unnecessary force to stop him. (The police knew who he was long before the chase ended and could have abandoned the chase, gone to Harris’ house and arrested him there) Two lower courts, while not deciding the case either way, thought that Harris was entitled to have a jury hear his claim. The Supreme Court, by a vote of 8 to 1 threw Mr. Harris out of court without giving him his jury trial, holding that the video proved that no “reasonable” person could conclude that the police used unjustified force in ending the chase. The lone dissenter, Justice Stevens, saw something different and no one can rebut his senses because none of us can see anything except with our own eyes.

But the Court tried. It put the video up on its web site, the first time it had ever done such a thing, inviting people to look at it and make up their own minds.

Accepting the Court’s invitation, three law professors showed that video to 1,350 representative Americans to see if they agreed with the result. You can read the paper here.

The majority did agree, but a significant minority thought that the police overreacted and used unreasonable force. The people who agreed with the Court held “hierarchical” worldviews. The minority, which did not agree, held “egalitarian” worldviews. People are disposed to resolve disputes in a way which supports their group identities and their personal values:

Individuals who subscribe to a worldview that is relatively “hierarchical,” we predicted, would likely be strongly inclined to agree with the Court’s assessment of the risks posed by the fleeing driver, whose defiance of authority would provoke their resentment and fear. In contrast, subjects who subscribe to a more egalitarian worldview, we predicted, would be angrier at the police, as symbols of overreaching authority figures, who were indifferent to the danger their own use of force posed to the well-being of bystanders, not to mention the driver. As a result, they would form the judgment that the decision to chase the driver and to use deadly force to halt his flight were not risk-reducing on net.

That’s exactly what we found.

It turns out that our perception of facts are “pervasively shaped” by our values. Moreover, we clearly perceive this value-based perception in others but are very bad at seeing it in ourselves. The Court in the Harris case failed “to recognize the cultural partiality of its own perceptions.”

The Court’s appeal to brute sense impressions to justify its decision reflects a simple incomprehension that people with particular cultural commitments would likely see something very different. Only decisionmakers unaware of the role that cultural commitments were playing in their own perceptions of the facts could actually make an oversight like that.

But that’s not all. Ascertain whether a justice is more “hierarchical” or “egalitarian” and you can predict how that justice will interpret those 2nd Amendment commas. Those commas in the 2nd Amendment mean exactly what each justice wants them to mean. So much for the idea that the law, like grammar, is objective and rational.

And it gets worse, our values are shaped in large part by our emotions. But that is a subject for another day.
[1] Lawyers find the case fascinating for all sorts of technical reasons but my purpose today is to use the case to demonstrate how judges decide cases and how the Supreme Court is likely to decide the 2nd Amendment case we’ve been discussing in these posts about the commas in the amendment. Here is just a small sample of the legal debate. Orin Kerr, What Are the Facts in Scott v. Harris, The Volokh Conspiracy, (“The right answer is that Justice Breyer should believe his own eyes.”) (February 28, 2007); Case Comment, Fourth amendment – Reasonableness of Forcible Seizure, 121 Harv. L. Rev. 214, 222 (2007) (arguing that the Court’s analytical approach pushed it to make a bad ruling on an incomplete record); Tommy Crocker, Do Texts Speak for Themselves, Prawfsblawg, (November 5, 2007) (criticizing Court’s lack of justification for its result and stating “I can imagine how much easier teaching would be if I could simply say to students, ‘I’m happy to allow Marbury to speak for itself.’ ”)”); and Dave Hoffman, The Death of Factfinding and the Birth of Truth, Concurring Opinions, (April 30, 2007) (“each Justice saw the risk of speeding through his or her own cultural prism.”).

Commas and the Law, Part IV – The 2nd Amendment

January 9, 2008

This business about the commas in the 2nd amendment is getting complicated. We’ve had several erudite comments and possible interpretations of the amendment. I encourage everyone to read them thoughtfully, which obviously is how each was written. For now, I am going to combine two statements from the comments written by “Scandal17″ who wrote,

You tell me what kind of clause you want it to be. . ., what kind of clause your judge wants it to be. It’s up for grabs in an absolute phrase, whether that phrase be in plain English, Latin, or Greek.

In other words, textual analysis is going to take each justice who performs it where ever that justice wanted to end up in the first place because no result is absolutely decreed by the text.

Another commentator agrees with the majority in the D.C. Court of Appeals decision. He says, “one readily sees that the Absolute clause does not modify the subject of the main clause.” That decision leads to the conclusion that the Amendment protects an individual right to keep and bear arms. We know already that Justice Thomas agrees and it is fair to assume that Justice Scalia and other Justices will as well. However, I suspect others won’t.

Which illustrates the point that judges — like the rest of us — make decisions through a complex interplay of emotion and reason. Mostly, the emotions lead and are followed by reason. Reason’s primary function is to justify the decision. The commas are tools for reason; applied after emotion.

Descartes would not agree with me. He posited that humans first must understand an idea before they can evaluate it. Spinoza thought otherwise. It was Spinoza’s thought that believing comes either prior to or at the same instant as understanding. The brain forms beliefs automatically. Rejecting a belief requires a conscious act.

I do not intend here to delve into the mind-body problem raised by Descartes. But a little background is necessary. Descartes started the whole mess with his cute little dictum, “I think; therefore, I am.” An innocent enough statement until you dig into it. Your shovel quickly reveals that it separates body from mind and spirit from both. That is a handy thing for people whose job it is to make decisions. They can pretend, at least, to be purely rational in their decision-making process. In other words, Descartes is a life-saver for judges. Without him they would stand naked before us, deciding cases based on emotion as well as reason, just like we decide what movie to see or what team to root for.

But Descartes may have been wrong.

My limited understanding of modern behavioral and neurological research is that it sides with Spinoza. While we are fully capable of analyzing and rejecting ideas and information, we tend first to believe whatever we read or hear. And what we read or hear is profoundly influenced by the culture in which we exist and our emotional needs.

What is true for all the rest of us is also true for judges. Here is Richard Posner — conservative judge of the 7th Circuit Court of Appeals, appointed by President Reagan — on the issue:

“[O]ften in law it is very difficult to verify (or falsify) empirical claims by objective data.” In such cases, “judges perforce fall back on their emotions or intuitions. They practice … ‘cultural cognition.’ ” The Role of the Judge in the Twenty-First Century, 86 B.U.L. Rev. 1049, 1064-65 (2006).

Which will eventually take us back to those commas. But first we’re going to watch a high speed auto chase. Here is the video which involved the legal question of whether the police were justified in using the force they did to stop the fleeing auto. (Be warned: The video ends in a bad car wreck.) Tomorrow we’ll discuss its relevance to those commas.

Commas and the Law, Part III – The 2nd Amendment

January 4, 2008

Since the last post on the commas of the 2nd Amendment I’ve had two comments from a scholar of Latin and Greek. You can read them at the end of the last post in the series or you can wait until the next post in which I will quote both as we finish our examination of the grammar of the amendment.

Today, however, the first brief in the D.C. gun control case will be filed in the Supreme Court. Here is a copy. I will summarize it for those of you without the time or inclination to read it. You’ll have to skip to page 27 (p- 46 of the PDF version) to find the first reference to a comma. I’ll begin my summary of the brief with that portion. Today’s filing is the brief on behalf of the District of Columbia. The District wants the Supreme Court to reverse the decision of the court of appeals which would have the effect of sustaining the constitutionality of the District’s handgun ordinance.

We’ll start with the commas. According to the District’s brief, the first version of the Amendment, drafted by Madison and submitted to the Virginia ratifying convention, read as follows:

The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person.

Forget the last clause, the conscientious objector provision; it did not make into the Constitution. Instead focus on the semi-colon after the first clause and the first clause itself. You’ll note that the final version transposed the first and second clause of the amendment and changed the semi-colon to the first of the three commas. Here is what the District has to say in its brief about that:

A select House committee meeting in executive session transposed the first two clauses, making the reference to a “well regulated Militia” more prominent, and substituted a comma for the semi-colon, underscoring the connection between the two clauses. Id. at 170. The new structure and punctuation reflected the fact that the need to protect the right followed from the need for the militias.

“Whoa,” say the grammarians — and the majority of the court of appeals — “they just blew by that comma. I thought commas separated independent clauses. Doesn’t substituting a comma for a semi-colon underscore the independence of the two clauses, not their connection?”

I imagine we’ll be hearing from the other side about that.

But the District’s discussion of the first clause and the commas occurs in the context of its basic argument which is that the amendment deals only with military matters. The District argues that the subject of the clause is “the militia” and the object is “the security of a free state.” In other words, the amendment protects the possession and use of guns only while serving in an organized militia. This is about the military, not civilians. According to the District:

The first clause—“[a] well regulated Militia, being necessary to the security of a free State”—speaks only of militias, with not a hint about private uses of fire-arms. A well-regulated militia is the antithesis of an unconnected group of individuals, each choosing unilaterally whether to own a firearm, what kind to own, and for what purposes.

The second clause—“the right of the people to keep and bear Arms, shall not be infringed”—equally ad-dresses the possession and use of weapons in connection with militia service. In 1791, “Arms” and “bear Arms” were military terms describing the use of weapons in the common defense, and the word “keep” was used in connection with militiamen’s possession of the arms necessary for militia service.

Taken together, the two clauses permit only a militia-related reading. To conclude that the Framers in-tended to protect private uses of weapons, the major-ity below read the entire first clause to be extraneous and the second to be in tension with the natural, military meaning of “bear Arms.” If that had been the Framers’ intent, they would have omitted the first clause and used non-military language in the second.

Not a word about the “ablative absolute” of Latin.

The District makes two other arguments in its brief, both of which would allow the Supreme Court to duck the fundamental constitutional issue of whether the 2nd Amendment protects an individual’s right to own guns. As I’ll point out in the next installment of this series, reasons exist for the Court to do just that.

First, the District argues that the 2nd Amendment does not apply within the boundaries of the District of Colombia. The purpose of the entire Bill of Rights was to constrain the federal government from impinging on the rights of states and individuals but the district is a federal-enclave. Because the District’s legislation has no effect outside the boundaries of the District, the ordnance does not implicate the 2nd Amendment. (Congress is vested with plenary power over the District in Article I, Section 8 of the Constitution.)

Finally the District argues that even if the amendment provides an individual right to own guns and even if the amendment applies in the District, the ordnance still passes constitutional muster because it is a reasonable regulation of that right.

According to a long line of Supreme Court decisions, our constitutional rights are always subject to reasonable limitation. Justice Holmes’s aphorism that the First Amendment’s right of free speech does not extend to shouting “Fire!” in a crowded theater is an example. The District argues that banning handguns, requiring registration and trigger-locks is just such a reasonable limitation.

The District’s brief is the first in what I am sure will be a series of fine briefs. Responsive briefs are due in early February and I will return to discuss them. While we wait, we’ll finish off the commas.


I see that the Washington Post editorialized about the addition of Walter Dellinger to the District’s lawyers today. You can read that here.

The Martini – Epilogue

January 3, 2008

We’ll be back tomorrow for Commas and the law but first here is a cartoon from the New Yorker  which belongs with our post about martinis.