Stone Court

You have to admit conservatives are good at staying "on message" -- in this case the message that Terri Schiavo was somehow treated less well than we would treat an animal. Here's the editors of the National Review New Republic:

And for that to happen, the use of words like "starvation" and "dehydration" would have to be discouraged. Those words might, after all, have reminded us that what was done to Schiavo would be criminal if done to an animal and provoke cries of "torture" and "cruel and unusual punishment" if done to a convicted capital murderer.

The American Life League:

Terri's human rights were trampled as she was forced to die in a manner deemed inhumane for even an animal.

Mel Gibson:

"It hasn't had a fair going-over yet, so to just go right to this crucifixion of this woman ... even a dog has more rights. You do this to an animal, they'll lock you up, but this is a human being we're doing this to."

And, of course, the blogosphere has gotten the message, led unsurprisingly by Malkin, with hundreds or thousands of others following .

This choice of analogies strikes me as extremely ironic. The fact is that we recognize the need -- and at times the moral imperative -- to let animals out of their misery when it becomes unbearable. Yet, with the partial exception of Oregon, our laws and doctors refuse to act to accelerate the deaths of those who may be suffering unbearable pain and who would freely choose to die if the law permitted it. (Indeed, it is the prohibition on hastening death that it is the reason Schiavo had to die through dehydration.)

I hope LarryE won't mind my quoting from his very personal post, which moved me greatly:

I recall the last days of my mother's life. Long sick with diabetes and end-stage renal disease (i.e., kidney failure), in and out of the hospital I don't remember how many times, she was lying in a hospital bed, reduced by a string of transient ischemic attacks (TIAs) to a twitching, comatose, body with an EEG all but flatlined. Two days earlier, unable to speak because of a trach tube, unable to write because her hands could not clearly receive the messages her brain was screaming at them, she mouthed to me what I think - but I don't know - were the words "pull the plug." I shook my head no. Eyes wide with distress, she clearly mouthed "why?" I said "I can't." Not with the doctor, a nurse, and my father in the room with me. And not without being sure of what she said. She turned away in frustration.

I intended to find her alone later, to ask her if she had in fact asked me to pull the plug on her. If she said yes, if she had nodded, I would have done it. The chance never arose: She lapsed into a coma that night. It is one of the great regrets of my life that I may have failed to comply with a wish that she knew that I, alone of all the people in her life, would be willing to fulfill.

When my father was dying, I dreaded ever being faced with such a moment, and fortunately I was not, but why would we possibly force people in LarryE's position to choose between denying a loved one's wishes and a lifetime in prison? As the right-to-lifers have asked, should not humans be treated with the care we would treat an animal?

Feministe (via Media Girl) report on Buzzflash's interesting interview with Stephen Ducat discussing the fear and hatred of the female underlying much of the right's (and, as Lauren points out, some of the left's) rhetoric. I thought this exchange concerning the rhetorical treatment of "male" and "female" roles in gay sex quite insightful:

BuzzFlash: Well, as Jon Stewart said recently in the context of the John Gannon/Jeff Guckert scandal in Washington, if you’re on top, you’re not gay. That may explain the inner circle acceptance of gays within the Republican Party, in spite of the gay-bashing national political line they give to their followers.

Ducat: The Republican homosexuals, especially if closeted, are not only treated as honorary heterosexuals; they become honorary homophobes, as the most recent scandal illustrated.

BuzzFlash: Well, you know, Matt Drudge is gay and yet engages in homophobia. Ken Mehlman, who is the head of the RNC, is reportedly gay and was a leader of the homophobic charge. There are numerous Congressman who have been outed and Senators who are known as gay, and yet who stick to the homophobic line. It’s a strange permutation of anxious masculinity, but maybe, as Jon Stewart said, if you’re on top, you’re not gay.

Ducat: He has intuited something that is actually pervasive across cultures and across historical time–that in male-dominant cultures, homosexuality is only taboo when it’s perceived as feminizing. This has its foundation in ancient Greece, where it didn’t really matter with whom you had sex. What mattered was what position you occupied in the relationship of domination. If you were a penetrator, you were an unambiguous guy. If you were penetrated, you were virtually a woman. That dynamic operates in American prisons, and you can see it in some Middle Eastern cultures. It’s really a question of domination.

Garth's and Ducat's insights strike me as on the mark. In fact, the notion that "[i]f you were penetrated, you were virtually a woman" has been used as a political weapon going back to ancient history.

The interview reminded me of Suetonius's discussion of how Julius Caesar's political enemies used not only claims that he was homosexual, but emphasized that he took the "female" role in sex and analogized it to be conquered in battle:

XLIX. There was no stain on his reputation for chastity except his intimacy with King Nicomedes, but that was a deep and lasting reproach, which laid him open to insults from every quarter. I say nothing of the notorious lines of Licinius Calvus:

Whate'er Bithynia had, and Caesar's paramour.

I pass over, too, the invectives of Dolabella and the elder Curio, in which Dolabella calls him 'the queen's rival, the inner partner of the royal couch,' and Curio, 'the brothel of Nicomedes and the stew of Bithynia.' I take no account of the edicts of Bibulus, in which he posted his colleague as 'the queen of Bithynia,' saying that 'of old he was enamored of a king, but now of a king's estate.' At this same time, so Marcus Brutus declares, one Octavius, a man whose disordered mind made him somewhat free with his tongue, after saluting Gnaeus Pompeius as Rex [or 'king'] in a crowded assembly, greeted Caesar as Regina ["queen"]. But Gaius Memmius makes the direct charge that he acted as cup-bearer to Nicomedes with the rest of his wantons at a large dinner-party, and that among the guests were some merchants from Rome, whose names Memmius gives. Cicero, indeed, is not content with having written in sundry letters that Caesar was led by the king's attendants to the royal apartments, that he lay on a golden couch arrayed in purple, and that the virginity of this son of Venus was lost in Bithynia; but when Caesar was once addressing the senate in defence of Nysa, daughter of Nicomedes, and was enumerating his obligations to the king, Cicero cried: "No more of that, pray, for it is well known what he gave you, and what you gave him in turn." Finally, in his Gallic triumph his soldiers, among the bantering songs which are usually sung by those who follow the chariot, shouted these lines, which became a by-word:

"All the Gauls did Caesar vanquish, Nicomedes vanquished him;
Lo! now Caesar rides in triumph, victor over all the Gauls,
Nicomedes does not triumph, who subdued the conqueror."

...

LII. He had love affairs with queens too.... Helvius Cinna, tribune of the plebeians, admitted to several that he had a bill drawn up in due form, which Caesar had ordered him to propose to the people in his absence, making it lawful for Caesar to marry what wives he wished, and as many as he wished, 'for the purpose of begetting children' [the words liberorum quaerendorum causa are a legal formula indicating that the purpose of marriage is to beget legal heirs]. But to remove all doubt that he had an evil reputation both for shameless vice and for adultery, I have only to add that the elder Curio in one of his speeches calls him "every woman's man and every man's woman." (Emphasis added.)

(Finally, as an aside, note how Suetonius makes repeated use in XLIX of what Volokh reminded us yesterday is called "paralipsis" or "apophasis" -- perhaps not altogether dissimilar from the modern right's method of using such charges....)

Is that the latest S&M fad (ouch!) or just the way little can openers get made? No, just the most noteworthy entry in Stone Court's referral log history.

Many of the others relate to miscellaneous personal information about baseball players:

famous jews mientkiewicz

Mientkiewicz WIFE PICTURE

nationality of doug Mientkiewicz

pocoroba jewish

sexual orientation marital problems "Mark Mcgwire"

Tino Martinez Naked

If we include broadcasters, add:

bigger asshole than olberman

Clearly, there's a niche market here waiting to be filled....

With polls showing Floridians, Americans, and even evangelicals queasy about federal meddling in the Schiavo case, there has been a boatload of discussion of what the Republicans' motivation is. Obvious theories include promoting Frist's chances for the '08 nomination, the same for Jeb (though I'm soemwhat skeptical of that one), distracting from DeLay's ethical problems, payback for right-wing extremists, making a point about the "sanctity of life" or "judicial activism" or whatever, and even genuine conviction.

Here's one more to worry about. The "Act for the relief of the parents of Theresa Marie Schiavo" specifically gives Schiavo's parents the right to bring federal claims on her behalf. In doing so, the Act essentially overrules Florida law that Schiavo's husband is the party who may act on her behalf while she is incompetent. It strikes me that this precedent -- that the possible existence of a federal constitutional right implies Congressional power to alter state law on representation of what the law refers to as "infants and incompetents" -- could also have implications for the post-Roe world that the right is salavating over (and possibly even now). In particular, one might argue that appointing Schiavo's parents to assert federal claims on her behalf is analogous to Congress appointing a minor's parents to make decisions for her concerning whether to have an abortion, or to appointing a fetus's father (or grandparent, etc.) to assert its federal claims for deprivation of life without due process.

As many others have written, there is little doubt that, if Roe is overturned, the right will be anxious to use its control over Congress to federalize abortion. The Schiavo precedent may be one more weapon in its arsenal. (While the Act claims that it is not "precedent for future legislation", that restriction is essentially meaningless. Cf. James M. Fischer, "Preliminarily" Enjoining Elections: A Tale of Two Ninth Circuit Panels, 41 San Diego L. Rev. 1647, 1649-50 (2004) ("The panel read Bush v. Gore rather broadly; indeed, the only part of the Court's equal protection analysis the panel did not cite was the part where the Court majority tried to limit the precedential weight Bush v. Gore should have. That was and is an impossible task, somewhat akin to George Orwell's request that no biography be written about him. Both efforts failed."; footnotes omitted; available on Westlaw($)).

Did you notice that the "Act for the relief of the parents of Theresa Marie Schiavo" is designated Public Law No. 109-3? That means that -- almost three months into the 109th Congress with increased Republican majorities and over two months into Bush's second term -- Congress has passed exactly three acts -- tsunami relief, class action "fairness", and Schiavo.

Priorities, priorities....

80°.

Big Unit -- 5-1/3 no-hit innings, one hit, then two knee-bending strikeouts.

Homeruns by A-Rod, Tino Martinez, and Jason Giambi.

A perfect ninth by Mariano Rivera.

Playing the Empire Strikes Back score before the game.

Yankees 12, Braves 2.

Taking the kids to spring training. Hope we'll see the Big Unit throw....

Or not:

McCain was asked on ABC's "This Week" about a memo suggesting GOP lawmakers could use the case to appeal to Christian conservative voters.

"I think that the motivation of my colleagues is that we want to give this young woman's family a chance to care for her for as long as she lives," McCain said. "I don't think it's any more complicated than that."

The federal government has proudly announced that Wal-Mart has agreed to pay $11,000,000 to avoid criminal charges for using illegal immigrants to clean floors at stores in 21 states:

"This case breaks new ground not only because this is a record dollar amount for a civil immigration settlement, but because this settlement requires Wal-Mart to create an internal program to ensure future compliance with immigration laws by Wal-Mart contractors and by Wal-Mart itself," said Michael J. Garcia, assistant secretary for U.S. Immigration and Customs Enforcement.

"We plan to use this settlement as a model for future cases and efforts in worksite enforcement," he said.

$11,000,000 is a lot of money, to be sure. So much money, in fact, that it equals Wal-Mart's net sales for ... 20 minutes. The equivalent, to one of Wal-Mart's minimum-wage employees, of about $1.75.

AP today:

Retired slugger Mark McGwire Thursday told a congressional panel investigating drugs in baseball that he would not "participate in naming names" of players who used steroids. McGwire did not say in his opening statement to the House Government Reform Committee whether he used steroids....

"What I will not do, however, is participate in naming names and implicating my friends and teammates," said McGwire, who ranks sixth in major league history with 583 homers.

We can debate whether the gradeschool admonition not to be a tattle tale is a good idea, but either way it doesn't cut it when you're subject to subpoena. Unless McGwire plans to take the Fifth (which seems unlikely, since he would in effect be admitting that his accomplishments were tainted by criminal wrongdoing), he has no choice but to answer the questions posed to him.

Will anyone step up to the plate and seek to charge McGwire with contempt of Congress?

UPDATE: Linnea in comments asks, "Will anyone step up to the plate and say this is a stupid use of Congress's time .... This is clearly a distraction and a media circus." I suppose I should have addressed that in the first place, since my post could be read as an endorsement of the hearings. While I have observed that the hearings might be worthwhile if they are a Waxman ploy to draw attention to Bush's personal hypocrisy in this matter, I am not otherwise a proponent of these hearings. But it doesn't matter. The rule of law here means that it is not Mr. McGwire's place to decide whether the hearings are in the public interest.

Related (and sort of related) posts: Swinging for the Fences; You Gotta Lotta Bawls, Part II; You Gotta Lotta Bawls....

Amanda Marcotte deliciously deconstructs an article condemning as un-Christian girls and women participating in sports. My favorite line:

A telltale sign of paganism is nudity.

Um, perhaps someone should tell the Pope....






(Thanks, Wayne State.)

Scalia is feeling cranky:

"If you think aficionados of a living Constitution want to bring you flexibility, think again," Scalia told an audience at the Woodrow Wilson Center, a Washington think tank. "You think the death penalty is a good idea? Persuade your fellow citizens to adopt it. You want a right to abortion? Persuade your fellow citizens and enact it. That's flexibility."

"Why in the world would you have it interpreted by nine lawyers?" he said.

Scalia's argument against finding rights other than those protected in the Constitution is fundamentally wrongheaded. As the founders well knew, there will always be the possibility of persuading the citizenry to protect rights broader than those protected by the Constitution. The point of having Constitutional rights is to create a minimum level of protection that the citizenry cannot reduce. Before the government may infringe upon a right, it must satisfy both the democratic process and the Constitutional minimum. In other words, the system is not symmetric -- it is set up to put a thumb on the scales in favor of protecting individual rights. That is why I can't think of a better system than having my rights interpreted by nine lawyers, because that judicial review is not a substitute for the democratic process, but rather an additional protection when the democratic process chooses to limit individual rights.

Scalia's view is also wrongheaded because the idea that the Constitution protects only those rights that are expressly mentioned is at odds with the fundamental purpose of the Bill of Rights, which was to protect individuals against government power -- not, as Scalia seems to believe, to set up short list of stingily defined exceptions to vast majoritarian power. Indeed, the Ninth Amendment essentially rejects the kind of view held by Scalia:

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Madison's comments in introducing the Bill of Rights at the time were, unfortunately, prescient:

"It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution." (Emphasis added.)

That is, of course, exactly what Scalia is arguing -- that rights such as the right to make medical decisions about one's own body have been assigned to the "General Government" and may be restricted my majoritarian action. If there are to be confirmation hearings for Scalia as Chief, I hope we will hear quite a bit about how insecure he thinks our rights really are.

UPDATE: Liberal Oasis adds that Scalia's jurisprudence has also been rather selective in when it defers to the democratic process and, in fact, has been quite aggressive in striking down legislation when it doesn't suit his side's agenda.

Today's anti-Syria demonstration in Beirut reportedly drew "[m]ore than 800,000 people", though "[s]ome Lebanese television stations reckoned [the] crowd at 1.5 million". That far exceeds the size of last week's pro-Syria demonstration, which the same report estimates at 400,000, while other reports have estimated "at least 500,000 people" even as "[m]any more were still coming".

Crowd estimates are notably unreliable, but note that if over 1.3 million people attended one of the two rallies, that would be over a third of Lebanon's entire population of 3.8 million. That's not just Beirut's population, but all of Lebanon, which includes population centers over 50 miles away, in a country whose rail system (per the CIA) is essential unusable.

The numbers are either grossly inflated, or there is an extraordinary level of public participation in the current political crisis in Lebanon. Or both.

As readers of this blog know, I care a great deal about (a) fighting discrimination; and (b) baseball. Nonetheless, if it hadn't been for this guy, I would never have heard of this guy:

While Jackie Robinson was in his first season in integrated baseball with the Montreal Royals (the Brooklyn Dodgers' farm club in the International League), the Cleveland Buckeyes signed the first white player ever to play in the Negro Leagues. The Buckeyes' signee was Eddie Klepp, a young, white pitcher.

Ironically, during his brief stay with the Buckeyes (he was released after the 1946 season) Klepp was victimized by the same Jim Crow laws in the South that had barred black players from playing on white teams. In some Southern cities like Birmingham the law prohibited black and white players from playing together on public athletic fields. The law was applied during the Buckeye's visit to play the Birmingham Black Barons, and Klepp was barred from the taking the field.

If you love baseball, buy the album.

Orin Kerr needs a reminder of the difference between a news story and an editorial.

UPDATE: In an Update, Kerr rewrites the above post to say something that is no longer objectionable. Through Kerr's update, I also discovered Sugar, Mr. Poon?, who also answers the persistent question, "How exactly can you be a Yankees fan and liberal at the same time?"

Via Half-Changed World, Ampersand advocates the position of Jack Straton (drawing on Martha Fineman) that we should replace the "best interests of the child" standard for custody with the "primary caretaker" standard, which looks at which parent was doing the work before the divorce.

Ultimately, Half-Changed World is probably right when she writes, "The bottom line is that I don't think we're ever going to come up with a nice clean rule that makes sense in all cases. Families are just too complicated and messy." However, I do think the implications of Amp's proposal are worth discussing. My views below are rather tentative, so I would be interested in the feedback of those who have thought more about these issues than I have.

At one level, I like Amp's point that the "primary caregiver" standard emphasizes "what happens before the divorce" (although what happened before the divorce is already considered). Uninvolved parents who suddenly want custody after divorce are probably the group most likely to be seeking custody for improper purposes.

At the same time, I am very leery of the idea of enshrining into law the notion that stay-at-home parents are somehow more "real" or important parents than those who work. Since it is almost entirely women who feel the social pressure to be stay-at-home parents, this rule (which is formally neutral) would add a legal sanction to that social pressure that, I suspect, would make it all the more difficult for some women to choose to work. (Comments of "How could you put little Buster in day care?!" could be replaced with "You know you might lose custody of little Buffy, don't you?!") [UPDATE: My critique here is, I think, similar to Half-Changed World's point that, "[i]f there was a well-established standard that the primary caretaker would always get custody, I think it might discourage women from negotiating for a more even share of parenting duties."]

I also wonder whether the primary caregiver rule would have the effect of shifting more of the ugly custody battles to more egalitarian marriages, where the primary caregiver will be difficult to identify. Since Amp suggests making doctors appointments as a criterion, how about this one: Just this week, I set up a dentist's appointment for our son, Mary and I drove him over together, and then, because I had to return a business call, Mary took him in and sat with him through the appointment, while I showed up at the end to be debriefed by the dentist. Who gets how many points? And who would even remember what happened a year later if it came up in court? Multiply that by all the things parents do for their kids, and you have one ugly litigation. (An interesting empirical question is whether couples that share childcare equally divorce as frequently as other couples. It seems possible that equal sharing could correlate with lower divorce rates either (a) through selection, because couples who have an ability to work together are more likely to share childcare equally; or (b) directly, through reducing inter-spousal anxiety, anger, etc.)

For what it's worth, when I was a student in Martha Fineman's Family Law class (a million years ago), I argued that the problem with the "best interests of the child" standard was that it was being argued in an adversarial context by parents' lawyers whose professional obligation was to advance the best interests of their client, not of the child. I argued for an administrative/inquisitorial model where the neutral tribunal, rather than the parents, controlled the proceeding and would be responsible for retaining experts and determining the best interests of the child. I'm sure there are many legal, political, and practical objections to such a system that I may have minimized in my naive and idealistic youth (though let me brag that Prof. Fineman gave me an A), but it does seem to me that there is a fundamental procedural problem that the child -- whose "best interests" the court is called upon to decide -- does not have a voice, and an advocate, in the process. Maybe fixing that problem would be a way to "mend, not end" the "best interests of the child" standard.

UPDATE: Beanie Baby is favorably disposed to the "primary caregiver" standard, though principally on the grounds that it might make it harder for abusive fathers to get custody. I agree that a history of spousal abuse should be a disqualifier for child custody, though a "primary caregiver" standard seems like a pretty roundabout way to get there.

[UPDATE: Appears that it was an accused rapist currently on trial before Judge Barnes. The O'Reilly transcript below is still pretty creepy.]

Violence against judges and their families poses one of the most serious threats to liberty that a democracy can face. Unfortunately, we have now had two such incidents in quick succession. Following the February 28 murder of Federal Judge Joan Humphrey Lefkow's husband and mother, apparently by associates of a white supremacist she had sentenced a disgruntled litigant, today we have the courthouse murder of Georgia state court judge Roland Barnes.

The AP report notes that Barnes recently sentenced former Atlanta Thrashers player Dany Heatley for vehicular homicide, perhaps implying a motive for the killing. [UPDATE: The AP is now also mentioning the Ashe case, discussed below.]

While this could be a random killing, my first reaction is that it smells not of a crazed hockey fan, but of a crazed anti-abortion terrorist -- Georgia has far more anti-abortion nuts than hockey nuts.

Via the wonders of Lexis ($), I discovered that in fact, on February 15, 2005, the O'Reilly Factor connected Judge Barnes and the anti-abortion agenda, although the principal vitriol was directed at the Atlanta prosecutor, not Barnes:

O'REILLY: In "The Factor" "Follow-Up" Segment tonight, we have been investigating the murder of 5-week-old Destiny Ashe beaten to death by her more Carisa Ashe more than six years ago.

Listen to this. The baby hemorrhaged to death after being shaken and punched by her mother in 1998.

The D.A. in the case, Paul Howard of Fulton County, Georgia -- that's Atlanta -- took two years to indict the mother. She was never officially arrested, never went to prison. Finally, Howard allowed her to cut a deal, no jail time, but she would have to undergo a tubal ligation and admit to manslaughter. Judge Rowland Barnes approved that deal. …

I don't understand it, though. If this woman that we're looking at right now, all right, kills an 18-year-old person, all right, American, 18 years old, kills them, hits them, they're dead, they hemorrhage, she can't get this deal.

JUDGE ANDREW NAPOLITANO, FOX NEWS CHIEF JUDICIAL ANALYST: Of course not because...

O'REILLY: So what's the difference between an 18-year-old and a baby?

NAPOLITANO: It's the question I would like to put to this prosecutor, this district attorney of Fulton County, Georgia. I suggest to you it is the anti-life mentality fostered by partial-birth abortion right up to the moment of birth now carried over on to the other side of the birth line. Oh, the baby was only 5 months old! Oh, she had seven children.

O'REILLY: Weeks.

NAPOLITANO: Five weeks old. Oh, she has seven children and she can't support them. That attitude is condemnable on the part of those charged with enforcing those laws.

O'REILLY: See, I don't think -- I don't -- this D.A. Howard -- and, by the way, we're going to give you his e-mail address if you want to get in touch with this guy because he's [the prosecutor] got to pay a price for this, this guy. I don't think it's abortion with this guy. I think this is a case of inconvenience. He didn't like the case. He didn't want to deal with the case. He knew there was nobody to stick up for this little baby Destiny. Where's Jesse Jackson?...

OK. He's [the prosecutor] a Democrat. He just got -- he just got reelected. He's got another four-year term.

So you're the judge and they bring this in to you because the judge had to OK this. Now the judge down there -- we checked him out. He looks like a pretty solid guy, but he does OK 99 percent of what the prosecutors and defense attorneys bring him.

NAPOLITANO: The judge is caught between a rock and a hard place. In my own view, I would not OK it, and I would say to the government prosecute her. But you know what? Judges can't force prosecutors to prosecute.

O'REILLY: They can't?

NAPOLITANO: They cannot. It's their decision.

O'REILLY: So this judge -- if he kicked it back, then they could not prosecute at all.

NAPOLITANO: Correct. He really is left with little to do. In my own view, she should get 20 years in jail, which is the maximum here. But if the government is not going to push for this, it's almost impossible for the court to force that ending. (Emphasis added.)

O'Reilly has also been pressing the same story about Barnes in print (without the overt reference to abortion, but also without the "exculpatory" comments).

Would an anti-abortion crazy who listened carefully and thoughtfully to O'Reilly's words have concluded that Judge Barnes was a logical target? No. But, of course, the kind of people who blow up abortion clinics don't always listen carefully and thoughtfully. I hope my suspicion is wrong, and that this murder is not retribution for the Ashe case or any decision Barnes made on the bench. I hope my suspicion is wrong, but I fear that it is right.

And you thought the DemoCat was the biggest Democrat around here?

(More animals at the Friday Ark.)

Stop the presses.

After a heated disagreement between David Kopel and me concerning procedures in the Ward Churchill case (see me here, here, and here, and him here and here), I find myself in agreement (at least generally) with Kopel's condemnation today of a reported high-priced buyout of Churchill's tenure rights.

While Kopel and I disagree about whether the current investigation is proper, it would seem to me a rather damning admission by CU that it lacks any appropriate procedure to remove Churchill if he is genuinely guilty of academic fraud and the like. On the other hand, if he's not guilty of misconduct, the University should have the courage to stand up for tenure and academic freedom and tell folks who don't like his politics to go take a leap. Either way, CU's proposed use of taypayer funds to avoid deciding the issues presented to it is cowardly and unprincipled.

The Presidential Prayer Team is one creepy organization.

Today's "PRESIDENTIAL PRAYER REQUESTS" (changes daily) include a call to "[p]ray for judges in our nation, both for those actively serving and for those yet to be affirmed ... [and] [p]ray also for those candidates who have been nominated by the President to receive quick confirmation that they may step up to service in our courts", as well as calls to pray for Condoleezza Rice, John Negroponte, Porter Goss, Alan Greenspan, and Paul Wolfowitz.

Some choice words from "honorary committee members":

I'm delighted to be a part of a nationwide movement through which we can pray in a united and focused way for our leaders. I'm encouraging everyone to join the team as we intercede for President Bush and his team! ~ Joni Eareckson Tada (emphasis added)

...I thank God for giving us a President such as George W. Bush, a man committed to seeking God's guidance in his life. ~ Rep. George W. Cassell

The birth of our nation was bathed in Christian prayer. Now, at this critical time in our nation's history, we are again reminded of our President's need for daily guidance and direction from Almighty God. ~ Len Munsil (emphasis added)

... I am sure that President Bush will be impacted by our prayers now.... ~ Dr. John C. Maxwell

...America's untapped supernatural resource is the humble prayer of God's people for the President, the Congress and the leaders of our Nation. The greatest expression of patriotism is prayer! ~ Dr. Lloyd Ogilvie

I have prayed with George W. Bush for several years.... I can assure you that he believes wholeheartedly there is nothing we can do for him that is more important than prayer.... ~ Dr. James Robison

Now more than ever, Americans need to be people who pray. The Presidential Prayer Team is a tangible way to put our faith into action. ~ Dr. John Trent

Praying for our President and our nation isn't just a nice thought - it's Biblical. Jesus instructed us to do just that. ~ Rep. J.C. Watts

So, what's the deal, are these just religious people who honestly believe in the power of prayer to "intercede" in public life?

Well, actually, it's the power of prayer plus $2.75 million, which is what these folks spent in the most recent reported year I could find (2003). And it does that as a registered 501(c)(3) not-for-profit corporation. That allows it to avoid taxes and campaign finance law restrictions, so long as it pretends to be non-partisan.

Suffice it to say, the pretense is pretty thin -- even excusing Tada's claim to "intercede for President Bush" as poetic license. In 2004, Presidential Prayer Team's main initiative was the nominally non-partisan Pray The Vote. The Team's last "PRESIDENTIAL PRAYER REQUESTS" before the election leads with a picture of Bush and Laura Bush with the caption: "President and Mrs. Bush walk the tarmac during a campaign stop earlier this week. Photo courtesy of the White House" -- i.e., a campaign picture. It includes another picture of Bush, next to "WORDS FROM THE PRESIDENT ON VOTING". It includes a call to pray for Dick Cheney and three members of the Cabinet. The first paragraph of the prayer says, "With many crucial issues at stake in this election, pray that God's wisdom will abide with each voter and that His will and ways will be honored." The third and fifth paragraphs ask us to pray for the President. Etc.

Is it possible that this shameless subterfuge could survive IRS or FEC scrutiny if those agencies were intent on policing the relevant laws? Possibly (though I would not consider it a slam dunk). But if so, those laws are badly broken.

Atrios links to a list of 14 "Democrats Who Will Never Be President" due to their shameful votes to let the bankruptcy bill come to the Senate floor.

Joe Biden deserves a special place on that list for his disrespectful, condescending, and generally piggish cross examination of Harvard Law Professor Elizabeth Warren:

WARREN: A woman who borrowed $2,200, the credit she paid back, $2,100 over the two years preceding bankruptcy, and at the end of that period of time she was told she still owed $2,600. With fees and interest, I submit, Senator, that there are many in the credit industry right now who are getting their bankruptcies prepaid. That is, they have squeezed enough out of these families in interest and fees and payments that never pay down the principal.

BIDEN: Maybe we should talk about usury rates then. Maybe that's what we should talk about, not bankruptcy.

WARREN: Senator, I'll be the first. Invite me.

BIDEN: No, I know you will, but let's call a spade a spade. Your problem with the credit card companies is usury rates from your position. It's not about the bankruptcy bill.

WARREN: But, Senator, if you're not going to fix that problem, you can't take away the last shred of protection for these families.

BIDEN: I got it. OK. You're very good, Professor.

Transcript via Lexis($), but it sounded even more sarcastic and offensive as delivered -- you can listen here.

AP reports that military recruiting is down among blacks due to skepticism about the Iraq war:

Young blacks have grown markedly less willing to join the Army, citing fear of being sent to fight a war in Iraq they don't believe in, according to unpublicized studies for the military that suggest the Army is entering a prolonged recruiting slump....

Blacks make up about 23 percent of today's active-duty Army, but the share of blacks in the recruit classes of recent years dropped. From 22.7 percent at the time of the Sept. 11, 2001 terrorist attacks, the share slid ... to 13.9 percent as of Feb. 9[, 2005].

You might think that was a bad thing for the military. How wrong you are:

[Douglas] Smith, the Army Recruiting Command spokesman, said Monday that the current, reduced level of black recruits is closer to the percentage of young blacks in the eligible population. "Our strategy of being representative of America is working," he said.

No word yet on how the Army is planning to spin the dropping recruitment levels for women (from 21.6% in 2001 to 17.1% this year). Another successful strategy, perhaps?

I promise I'll let this go soon. But first, Bernstein today:

WAITING FOR GODOT?: Actually, I'm waiting for the National Council of Churches and other left-wing church groups to display a fraction of the concern over Syria's occupation of Lebanon that they have displayed over Israel's presence in the West Bank and Gaza.

Having brought this particular "occupation" vs. "presence" linguistic issue to my attention, Bernstein can hardly claim ignorance. Rather, Bernstein (a law professor) seems determined to turn accepted usage and international law on its head. That is just sad. Israel's position can be defended, and Syria's criticized, without intellectual dishonesty.

Related Posts: You're Kidding, Right? Part III; You're Kidding, Right? Part II; You're Kidding, Right?

EyeOnThePost responded in comments to my post yesterday pointing out that the Washington Post's use of "occupation" to refer to Israel's relationship to the West Bank and Gaza and of "presense" to refer to Syria's relation to Lebanon is -- at least in the examples cited by EyeOnThePost -- consistent with accepted usage of the terms and not evidence of bias. Initially, I responded to that response in comments as well.

However, I later realized that EyeOnThePost had made essentially the same points in its blog yesterday:

Some may have argued that this was merely an unfortunate but inadvertent choice of words. They would have been wrong. Today we again find The Post referring to Syria's "presence" in Lebanon, while in the very same article inexplicably referring in two places to Israel's former "occupation" of southern Lebanon. Today's article states:

"Nasrallah appeared after what he called an 'emergency meeting' of more than 30 political parties aligned with the Syrian government, which is facing international pressure and a popular uprising here to end its 30-year presence in Lebanon." (Hezbollah To Protest U.S. Stance On Lebanon, 3-7-05, A01)

Yet the very same article uses the words "occupation" and "occupied" in referring to Israel. It states:

"With an extensive social services network and an armed wing celebrated here for helping end the Israeli occupation of south Lebanon in 2000, Hezbollah is perhaps the most formidable player in the power-sharing system among religious-based parties."

... and again:

"Under the 1989 peace accord that ended Lebanon's civil war, Hezbollah was allowed to keep its arsenal of small weapons and rockets because Israel at the time still occupied parts of southern Lebanon."

Same region. Same context. Both are references to the presence of one nation's soldiers in another nation over a prolonged period of time. Yet The Post describes them differently. This is a very clear example of how the Washington Post subtly uses pejorative terminology to describe the conduct of Israel and goes out of its way to employ neutral and nonjudgmental terminology to the conduct of Israel's opponents.

In fact, the Post's usage is consistent with the international law definition I cite in my prior post. In particular, the references to Israeli occupation are specific to the part of Lebanon that Israel was occupying, and do not refer to the whole of Lebanon, which Israel was not occupying. ("...helping end the Israeli occupation of south Lebanon..."; "Israel at the time still occupied parts of southern Lebanon").

In contrast, the two references to Syria's "presence" (one a direct quote from Assad) refer to the whole of Lebanon, not specifically to the part of Lebanon Syria is occupying. ("...a popular uprising here to end its 30-year presence in Lebanon..."; "We should not remain in Lebanon one day after there is a Lebanese consensus over our presence,").

If the Post consistently avoids using the word "occupation" to refer to the portion of Lebanon controlled by the Syria, that would seem to me evidence of bias or, at least, would call for a good explanation. The article EyeOnThePost cites, however, is consistent with recognized usage and, therefore, does not provide evidence of bias.

I would also note that the Post's alleged bias has not apparently not infected its editorial board. Here's part of today's lead editorial, titled The Autocrat's Answer:

THE RESISTANCE of Arab dictators to the swelling popular movement for democratic change in the Middle East remains formidable. Yesterday Syrian leader Bashar Assad launched his latest effort to stop Lebanon's "independence uprising," beginning a partial redeployment -- but not a withdrawal -- of Syria's occupying army, even as his strongest Lebanese ally, the Hezbollah party, prepared its own mass demonstrations in defense of the political status quo.... (Emphasis added.)

OK, that editorial was not available to EyeOnThePost when it posted yesterday, but how about this editorial from last week, titled A Tyrant Cornered:

...There is no sign that the crude and callow tyrant [Syria's Assad] gets the message. His response to the turmoil set off by his own criminal policies has been to adopt the standard formula of beleaguered Middle Eastern autocrats: appease the superpowers, blame Israel and appeal for "Arab unity."...

The Bush administration and the French government rightly sense an opportunity to brush off these maneuvers and side with the mobilized people of Lebanon. On Tuesday the two governments issued a statement again demanding "the immediate withdrawal of all Syrian military and intelligence forces from Lebanon" as well as "free and fair parliamentary elections this spring, bolstered by an international observer presence."...

The word "occupation" does not happen to come up, but the tone could not be more clear -- and it is hardly kind to Syria or critical of Israel.

Until further notice, consider me skeptical of EyeOnThePost's claim.

After Mary's last post, far be it from me to stand up for the Washington Post, but I have no choice given David Bernstein's latest venture into unintentional humor. This time, he points us to EyeOnThePost as providing "more accurate coverage of many recent events involving Israel" than the Post:

My favorite recent point: The Post consistently refers to Israel as "occupying" the West Bank and Gaza, though the only other sovereign countries to have recently held these lands, Jordan and Egypt, have disclaimed ownership. But Syria merely has a "presence" in the otherwise sovereign state of Lebanon.

Referring to Israel as an occupier must be a sign of serious bias, no? I hope Bernstein will be sure to alert that Hamas mole, Ariel Sharon:

Israeli Prime Minister Ariel Sharon appears to be urging Israelis to accept giving up land for peace and advocating an end to what he called "occupation."

"You cannot like the word, but what is happening is an occupation -- to hold 3.5 million Palestinians under occupation. I believe that is a terrible thing for Israel and for the Palestinians," he said Monday [5/26/03].

OK, well Sharon got enough heat for that that he took it back. But still, Bernstein had better tell those Hezbollah lovers at the CIA, which writes:

West Bank and Gaza Strip are Israeli-occupied with current status subject to the Israeli-Palestinian Interim Agreement - permanent status to be determined through further negotiation (Emphasis added.)

He might also want to send a note to the Islamic Jihadists representing the United States at the U.N. who recently successfully sponsored Security Council Resolution 1559, which resolves that the Security Council is:

Gravely concerned at the continued presence of armed militias in Lebanon, which prevent the Lebanese Government from exercising its full sovereignty over all Lebanese territory.... (Bold emphasis added.)

The CIA also reports that there are over 360,000 Israeli settlers in the West Bank and East Jerusalem, while Syria has 16,000 troops in Lebanon (based mainly east of Beirut and in the Bekaa Valley). (The CIA does not list the number of Israeli troops in the West Bank and Gaza, but I think it's fair to say that it is a substantial military presence.) Certainly, Syria has vast influence in Lebanon, but that is at least as much from its proximity and nefarious intentions as the imposition on Lebanon's territory, which of course is what occupation is about. (No one, for example, would have said that Cold War Finland was Soviet occupied. Likewise, "occupation" is not inherently objectionable -- witness the Allies' occupation of Germany after World War II.)

I am no fan of the Syrian government and, indeed, consider it one of the foremost impediments to peace in the Middle East. Nor am I hostile to Israel. However, it is hard to dispute that Israel's imposition on the West Bank and Gaza is different in character and scope from Syria's in Lebanon. I am not trained in international law, but as I understand it, "occupation" is a defined legal term:

"Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised." Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague, 18 October 1907. Annex Art. 42.

In other words, it refers to a situation when, loosely, "the government of the occupied territory is no longer capable of exercising its authority, and the attacker is in a position to impose its control over that area". The definition would seem to describe accurately Israel's relationship with the West Bank and Gaza. It would not seem to describe Syria's relationship with Lebanon as a whole (as compared to the territory where Syrian troops are present). In my view, unless the Post is avoiding the word "occupation" when referring specifically to the territory occupied by Syria -- and I suspect it is not, since most of the recent stories have been about political goings on in Beirut -- it is using the word correctly.

Related Posts: You're Kidding, Right? Part II; You're Kidding, Right?

UPDATE: Slightly edited.

Trish Wilson reports that Washington's House this week voted unanimously that a divorce can't be denied on the "sole basis" of pregnancy. The bill is in response to a case in which a judge refused to grant a woman a divorce against her husband, a convicted abuser, because she was pregnant (by someone else) (reported on at the time by me here and Wilson here).

Clearly, it is good that the legislature is rejecting the idea that judges can impose their own morality on the parties before them by denying a divorce when a woman is pregnant. However, the "sole basis" language is troublesome. As I wrote in comments on Wilson's post:

[B]y saying "a court shall not use a party's pregnancy as the sole basis for denying..." (emphasis added) the statute [may be] implying that a court may use pregnancy as a basis, so long as it was not the sole basis -- otherwise, why add the word "sole"? ... [I]f a husband could oppose a divorce on grounds of XYZ combined with pregnancy, I could see judges like ones in the Hughes case using XYZ as a pretext for bringing pregnancy back into the analysis.

According to this report, "Washington is a 'no-fault' state, which means that either spouse may ask the court to dissolve the marriage by stating that the marriage is 'irretrievably broken.' The other party can delay, but not stop, the dissolution by alleging that the marriage is not irretrievably broken." Thus, under the new bill, it seems possible that a party could at least delay a divorce by arguing that the marriage was not irretrievably broken and citing the wife's pregnancy as part of the basis for that claim. I really don't know whether that could make a practical difference in any given case, but I also don't see a good reason to allow pregnancy to be considered at all. (Another commenter suggested there might be financial reasons to delay divorce to protect pregnant women, but that seems unlikely since the legislative history indicates the bill was advocated as protecting victims of domestic violence and the divorce decree would "make[] provisions for the parenting of minor children, family support, and the division of property and liabilities".)

Unfortunately, the legislative history does not clear this up. The original bill did not contain the word "sole":

In considering a petition for dissolution, a court may not use the petitioner's pregnancy as a basis for denying the decree for dissolution, nor may the court continue the matter on that basis.

The substitute version adds "sole" and makes several other changes, including making clear that pregnancy may not be the sole basis when either party is the petitioner (the prior version seemed to apply only when the woman was the petitioner):

In considering a petition for dissolution of marriage, a court shall not use a party's pregnancy as the sole basis for denying or delaying the entry of a decree of dissolution of marriage. Granting a decree of dissolution of marriage when a party is pregnant does not affect further proceedings under the uniform parentage act, chapter 26.26 RCW.

This report summarizes the change without addressing the addition of "sole":

The substitute bill broadens the prohibition by replacing the word "petitioner" with the word "party." It also adds that a court may not delay entering a decree of dissolution based on the party's pregnancy. In addition, it clarifies that granting a decree of dissolution of marriage when a party is pregnant does not affect further proceedings under the Uniform Parentage Act (UPA).

What am I missing? (Legislative history compiled here.)

Related Post: Precedent Schmecedent

Wherein it is revealed that Hermione and Harry are animagi.... (UPDATE: More animals at the Friday Ark.)

Amanda Marcotte reports on Texas's pending "conscience" bill to permit pharmacists to refuse to dispense emergency contraceptives (EC).

These bills are spreading like the flu, and I fear at some point the right will get its act together and draft a bill that makes internal sense, but for the moment they all seem to have a certain keystone kops element to them. In the Texas bill, the drafting problem is the definition of "emergency contraception":

Sec. 103.001. DEFINITION. In this chapter, "emergency contraceptive" means a prescription drug containing an elevated dose of hormones that is used to prevent pregnancy.

Elevated as compared to what? Since contraceptives vary widely in dosage, couldn't that be read to apply to all birth control pills, or at least all pills other than the absolutely lowest one (even assuming you could definitively identify that one)?

Oh, no, no, no, I'm sure they would respond, we don't mean to apply this to ordinary contraceptives -- anyone can see that "emergency contraceptive" should only be interpreted to mean emergency contraceptive". Problem solved, yes? Not so fast. Many "ordinary contraceptives" can be used as EC (click "LIST"). Of course, they are not as effective and have worse side effects, so Texas's "conscientious" pharmacists could look forward to the peace of mind of knowing that the drugs they dispense are less likely to work and more likely to cause nausea and vomiting.

Related Posts: "Conscience is but a word that cowards use....", Georgia Edition; "Conscience is but a word that cowards use....", Mississippi Edition

Echidne has a terrific post about the assumptions underlying the contents of the Surgeon General's pregnancy advice:

There is something very puritanical about all this, and it is most clearly visible in the information about alcohol and pregnancy which states:

* No amount of alcohol consumption can be considered safe during pregnancy.

What does this mean, exactly? Consider that the Italians and the French have been drinking wine routinely for centuries, including during pregnancies. Do these countries suffer from extremely high levels of the Fetal Alcohol Syndrome? Or what about the older generations in the United States?

I am not advocating drinking alcohol during pregnancy, but I wonder why the usual risk analyses we perform before making various societal recommendations don't apply in this particular case, why instead an absolutist standard is selected. (Emphasis added.)

Well, I am advocating drinking alcohol during pregnancy -- at least if you enjoy it and do so in moderation. There is no scientific evidence that an occasional drink will harm a fetus, but the hysteria over fetal alcohol syndrome deprives pregnant women of an occasional outlet for relaxation and imposes unnecessary stress and guilt on them. The "zero tolerance" advice assumes that women are too stupid to make the distinction that a glass of wine with dinner is harmless but that a night of vodka shots may be risky.

The leading researcher in this area is Elizabeth Armstrong. Here are excerpts from her article (with Ernest Abel), Fetal Alcohol Syndrome: The Origins of a Moral Panic:

Since its discovery almost 30 years ago, the fetal alcohol syndrome (FAS) has been characterized in the USA, as a major threat to public health. In part because FAS resonated with broader social concerns in the 1970s and 1980s about alcohol's deleterious effect on American society and about a perceived increase in child abuse and neglect, it quickly achieved prominence as a social problem. In this paper, we demonstrate that, as concern about this social problem escalated beyond the level warranted by the existing evidence, FAS took on the status of a moral panic....

Stirred by such moral rectitude, preventing FAS became an American crusade. The policy response rested on the unproven premise that any amount of drinking in pregnancy posed a threat to the fetus. In 1981, the Surgeon General of the United States advised ‘women who are pregnant (or considering pregnancy) not to drink alcoholic beverages and to be aware of the alcoholic content of foods and drugs' (Food and Drug Administration, 1981). The Surgeon General's warning stands in stark contrast to the official advice offered in other countries. The British Royal College of Obstetricians and Gynaecologists for example, issued guidelines in 1996 stating that ‘no adverse effects on pregnancy outcome have been proven with a consumption of less than 120 grams of alcohol per week’ and recommending that ‘women should be careful about alcohol consumption in pregnancy and limit this to no more than one standard drink per day’ (Royal College of Obstetricians and Gynaecologists, 1996). Although these recommendations have been challenged by some (Guerri et al., 1999), they are typical of the European stance on prenatal drinking (EUROMAC, 1992)....

[T]he moral panic over FAS in the USA, unlike earlier periods of social preoccupation with alcohol, is driven as much by gender division as by class or socio-economic divisions. Although its sufferers appear to be concentrated among the poor, the public image of the condition as a universal one resonates with issues of social control and gender. As Armstrong (1998a) has noted in an earlier analysis, the diagnosis of FAS arose at a period of intense gender agitation in the USA, and thus reflects widespread social unease about the conflict between the traditional maternal role of women and their efforts to embrace more diverse roles in modern society.

Here's Armstrong's book on the subject, Conceiving Risk, Bearing Responsibility: Fetal Alcohol Syndrome & the Diagnosis of Moral Disorder.

So, if you're pregnant and would like a drink once in a while, please raise a glass to your baby. And if you see a pregnant woman having a drink, or if you're the Surgeon General, please keep your advice to yourself.

David Kopel responds to my earlier posts criticizing his criticism of 199 Colorado professors' criticism of the University of Colorado's investigation of Ward Churchill (got all that?). Kopel makes some fair points, but also seems to be shifting the grounds of the debate away from the original post for which I criticized him.

Kopel's principal response concerns the Second Circuit's decision in Jeffries:

Stone Court argues that Jeffries stands for the proposition that Ward Churchill cannot be fired.

This misses the main point of my post--which was to refute the CU 199's assertion that the investigation of Ward Churchill is improper and must be terminated immediately. To the contrary, Jeffries validates an investigation begun because of the potential disruption caused by Ward Churchill's speech.

My disagreement with Kopel, however, is less about his reading of Jeffries than about "the main point of [his] post". In particular, Kopel is right that Jeffries suggests that merely investigating Churchill, without more, is not a First Amendment violation. Kopel is also right that Jeffries leaves open the issue of whether terminating Churchill would violate the First Amendment.

However, the main point of Kopel's original post was not that the CU professors misread the scope of Churchill's First Amendment protection and that, in fact, there was a good faith argument that he could be fired without violating the First Amendment. The point of Kopel's post was that the professors were "Professors for Academic Fraud and Terrorism" who "disgraced themselves today by signing an advertisement in the Boulder Daily Camera in support of Professor Ward Churchill". (Significantly, Kopel has changed those charges, without notation, to "Professors not opposed to Academic Fraud and Terrorism" who "dishonored their school today by signing an advertisement in the Boulder Daily Camera in support of Professor Ward Churchill".) That main point, even in its watered-down form, is really not addressed in Kopel's response. In particular:

1. Kopel acknowledges that the Jeffries suggests that there is a plausible First Amendment argument that firing Churchill would be prohibited. Kopel does not explain why it would in any way be disgraceful for faculty to urge the broader of two reasonable readings of the First Amendment's protections for academic freedom.

2. Academic freedom may go beyond the First Amendment's minimum. Indeed, CU's policies appear to do just than. My post cited CU's own academic freedom guidelines, which state that "disciplinary action against a faculty member, including dismissal for cause of faculty, should not be influenced by such extrinsic consideration", referring to "extrinsic considerations as political, social, or religious views". Kopel does not respond to this point, nor (again) does he explain why it is disgraceful to argue for a broader scope of academic freedom.

Shorter David Brooks: Marriage would be more like the happy union in Tolstoy's "Family Happiness" if only folks would stop having such unromantic notions about separate bank accounts.

Perhaps Brooks forgets that Tolstoy wrote another work -- you may have heard of it -- that begins with Tolstoy's most famous quote:

Happy families are all alike; every unhappy family is unhappy in its own way.

Anna Karenina ends, of course, with Anna refusing a divorce to avoid losing her son and, ultimately, throwing herself under a train. Sometimes things don't work out, no matter how fondly Brooks wishes they would.

As Mary pointed out this morning, Brooks ignores the fact that a family is not a single entity, but is made up of individuals, whose interests will at times coincide and at times conflict. How couples manage their money can, and does, affect how their money is allocated among family members. Some approaches to money management can be more equitable than others. The economic motives and concerns that everyone brings to marriage will not go away just because couples open joint accounts and pretend they don't exist. But those economic interests can coexist with a happy marriage if the parties are honest and fair with themselves and with each other.

Prairie Sociology has more on how the paradigm Brooks advances may disadvantage women.

Yesterday, I criticized David Kopel for making inflamatory charges against 199 members of the University of Colorado faculty for signing an ad opposing the procedures used by CU in the Ward Churchill matter. My criticism was that Kopel's post dodged the procedural arguments that were at the heart of the ad and instead simply attacked Churchill on the merits.

Kopel has now updated his post to respond to the CU professors' procedural point (as well as to add the charges that some of the CU professors are "politcally correct hacks"), but Kopel's response still dodges the issues. First, he supports the investigation on the grounds that there has been a failure of CU's administrative process:

[T]here have been repeated complaints made to the administration about Churchill's misconduct in the classroom and his threats. Furhter, ... the National American Indian Movement filed a complaint with the University of Colorado about Churchill's ethnic fraud. As was the norm at CU, none of these complaints appear to have resulted in any administrative action. Given such repeated failures, it is within the Regents' discretion to order their own investigation.

Where to begin? Normally, one would think that if there were complaints against a professor, and they were adjudicated, that would be the end of it. Kopel posits, however, that administrative failure was "the norm". Presumably, he does not mean that the administrative procedure as a whole was broken. Surely, if that were the case, he would expect CU to fix the system (and possibly, subject to finality concerns, reconsider old cases generally), not to investigate one professor. Rather, it is clear, what Kopel means is that the system was broken for Churchill only. I guess that's possible, but why? The unstated premise of Kopel's claim is almost certainly that the system was broken for Churchill because his political views were beloved by the alleged prevailing left-wing university establishment. That is an extremely serious charge, and Kopel makes it with no evidence whatsoever other than his apparent disagreement with the outcome of those proceedings. (Moreover, the notion that the CU faculty was covering for Churchill because it agreed with him is belied by the notion that even the professors who object to the present procedure have stated that "many faculty are 'troubled' by Churchill's statements").

Second, Kopel argues that the investigation is supported by the Second Circuit's decision in Jeffries v. Harrelston (leaving aside that the Second Circuit doesn't control in Colorado):

[A]s the Second Circuit case of Jeffries v. Harrelston makes clear, there was nothing improper about the initiation of an investigation following the uproar regarding Churchill's hateful comments. In Jeffries, the head of the Black Studies Department at the City College of New York was stripped of his chairmanship following the uproar resulting from a crackpot racist speech he gave in Albany. The Second Circuit explained that the City College Regents could demote Jeffries "based upon a reasonable prediction that the Albany speech would disrupt university operations."

As Blogs for Industry succinctly responds, "Hmm...but demotion and firing are not the same, are they? Churchill has already accepted demotion from department head." Indeed, that's basically what Jeffries says:

We recognize that academic freedom is an important First Amendment concern. See, e.g., Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967) ("The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools."). Jeffries' academic freedom, however, has not been infringed here. As we held in the earlier Jeffries, and as Jeffries himself has argued, the position of department chair at CUNY is ministerial, and provides no greater public contact than an ordinary professorship. See Jeffries, 21 F.3d at 1247. Jeffries is still a tenured professor at CUNY, and the defendants have not sought to silence him, or otherwise limit his access to the "marketplace of ideas" in the classroom. See Keyishian, 385 U.S. at 603.

Here's part of CU's policy on academic freedom:

Faculty members can meet their responsibilities only when they have confidence that their work will be judged on its merits alone. For this reason the appointment, reappointment, promotion, and tenure of faculty members should be based primarily on the individual's ability in teaching, research/creative work, and service and should not be influenced by such extrinsic considerations as political, social, or religious views, or views concerning departmental or university operation or administration. A disciplinary action against a faculty member, including dismissal for cause of faculty, should not be influenced by such extrinsic consideration. (Emphasis added.)

Does Kopel really think the present investigation satisfies this provision? (Kopel might fairly question whether Churchill has fulfilled his obligation under the same guidelines to "be accurate at all times ... [and] exercise appropriate restraint and show respect for the opinions of others", though I would doubt that such violations by Churchill would justify on academic freedom grounds a politically-motivated investigation.)

Does Kopel really think this investigation is a good idea, and that disagreeing is evidence of support for fraud and terrorism? If so, I'd suggest that he consider his co-blogger Eugene Volokh's comments:

Now tenure does in practice protect professors' academic freedom. Under the First Amendment, a university can't fire a professor because he expresses anti-American, pro-life, anti-war, or pro-biological-gender-differences views. But if the university is free to fire professors for other reasons, then it can come up with some pretext (we aren't really firing this professor because he's a Republican; it's just that we think we can get someone more productive instead), and thus fairly easily get away with the First Amendment violation....

Finally, if tenure is abolished, and universities cut down academic freedom protections to the minimum that the First Amendment demands (or the Supreme Court reverses its First Amendment protection for government employee speech), do we really think that only extreme anti-Americans will be fired? Or would it be likelier that the overwhelmingly left-wing faculties and administrations will fire lots of professors on the right -- including people who express eminently legitimate views, just on topics that are unpopular with the left?