Howard Bashman links to the first published opinion by Michael McConnell since being confirmed to the 10th Circuit.

I'm reminded of a story about opinion-writing that McConnell told in his class at Harvard, when he was a visiting professor there 4 years ago. What prompted the story was that we had read some judicial opinion in which the judge used a word like "clearly" or "obviously." McConnell recalled that when he got out of law school some 20 years earlier, he had gone to start his clerkship with J. Skelly Wright of the D.C. Circuit, a big-time liberal and Supreme Court feeder judge. When he got there, one of Wright's outgoing clerks was explaining the duties of the job to McConnell. McConnell asked how extensively Wright edited or rewrote drafts of opinions written by clerks. The response: "Ha! The only thing he will do is find the most dubious proposition in the entire opinion, and then put the word 'Clearly' in front of it."

Moral of the story: Be wary when a judge, or any other writer for that matter, uses "clearly" or "obviously." Sometimes those words are justified, and often they're just bluster.

In any event, I'm sure that McConnell will be quite a bit more involved in composing the opinions that appear under his name.

Someone got to this blog by searching for "who's the biggest and most influential intellect behind george bush."

I knew my role would come to light sooner or later. ;)

Jack Balkin makes yet another point that I thought worthy of comment. In responding to David Wagner's post on how the early Congress viewed governmental support for religion, he says this:

My understanding of the original understanding of the Establishment Clause was that it was a rule of federalism, allowing the states to have their own established churches, but denying an established church to the federal government. * * *

After the Civil War, the Establishment Clause could not coherently be understood as federalism principle, precisely because if one believed that it was incorporated into the Fourteenth Amendment, it would apply to the states as well.

Well, that seems to be letting the tail wag the dog, so to speak. If the Establishment Clause's original meaning cannot be coherently understood when applied to the states, then perhaps it shouldn't be applied to the states at all.

Quite a few notable scholars have argued that incorporating the Establishment Clause makes little sense, including Akhil Amar, Gerard Bradley, Steven Smith, Mary Ann Glendon, and others. (Some citations: Akhil Reed Amar, The Bill of Rights as a Constitution, 100 Yale L.J. 1131, 1157-58 (1991); Akhil Reed Amar, The Bill of Rights 32-42 (1998); Steven D. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom 49 - 50 (1995); Gerard V. Bradley, Church-State Relationships in America 95 (1987); Chris Bartolomucci, Note, Rethinking the Incorporation of the Establishment Clause: A Federalist View, 105 Harv. L. Rev. 1700 (1992); Daniel O. Conkle, Toward a General Theory of the Establishment Clause, 82 NW. U. L. REV. 1113, 1132-35 (1988); Mary Ann Glendon & Raul F. Yanes, Structural Free Exercise, 90 MICH. L. REV. 477, 481-82 (1991); William K. Lietzau, Rediscovering the Establishment Clause: Federalism and the Rollback of Incorporation, 39 DEPAUL L. REV. 1191, 1201-02 (1990); Michael A. Paulsen, Religion, Equality, and the Constitution: An Equal Protection Approach to Establishment Clause Adjudication, 61 NOTRE DAME L. REV. 311, 317 (1986); William C. Porth & Robert P. George, Trimming the Ivy: A Bicentennial Re-Examination of the Establishment Clause, 90 W. VA. L. REV. 109, 136-39 (1987).)

The logic seems fairly clear to me: Since the Establishment Clause was clearly written and understood to protect state establishments of religion from congressional interference, and since it makes no sense to use such a clause to prevent state establishments of religion, and since there is no evidence that anyone ever thought of the 14th Amendment as incorporating the Establishment Clause (until 1947, when the Supreme Court announced this result by unreasoned fiat), the Establishment Clause should not be applied to the states.

I should add that this post demonstrates how originalism can (if applied honestly) constrain judges from applying their personal preferences. I would personally be very much opposed to any actual state establishment of religion. But my examination of the evidence and the constitutional text convinces me that the Constitution ought to be interpreted in a way that is the opposite of my political preferences.

The Weekly Standard has a good article explaining something I've wondered about -- why helicopters seem to crash so often.

Ralph Peters has a good column on why Saddam's military strategy is doomed to defeat. As if you didn't know that already.

Jack Balkin has responded again to my post below on Scalia. I agree with most of his points, and would respond as follows:

1. Stuart assumes that my evidence of race conscious remedial relief by the Reconstruction Era Congress that framed the Fourteenth Amendment is the Freedman's Bureau statutes. I'm actually thinking of the various acts that my colleague Jed Rubenfeld discusses in his 1997 piece on Affirmative Action in Yale L.J. They applied not only to recently freed blacks who had been enslaved, but also to free blacks who had been free for many generations.

An interesting point. I was familiar with Rubenfeld's piece when it came out, but had forgotten that detail. Still, an originalist like Scalia might reply that these race-conscious measures were 1) enacted by the federal government 2) in a context of overwhelming state-sponsored discrimination, which means that they could be distinguished for purposes of resolving the Michigan cases.

2. Stuart doesn't adequately address the basic problem for Scalia: squaring his interpretive theory with the whole set of proof requirements the Court has added since Bakke to enforce strict scruinty.

Well, I'm not up to the task of reconciling Scalia's claimed interpretive method with every opinion he has joined. I agree that the modern Supreme Court, Scalia included, has often invented doctrinal structures that are spurious when compared with the actual constitutional text as originally understood. Whether these are per se illegitimate for an originalist, or whether they can be considered reasonable measures of "implementing the Constitution" (to quote Richard Fallon), is a question beyond the scope of this blog.

4. All of this is covered in my conlaw casebook, Brest, Levinson, Balkin and Amar, Processes of Constitutional Decisionmaking (4th ed. 2000) and you can look it up for more details.

I will happily do so if Mr. Balkin will provide a complementary copy addressed to 1717 Main St., Dallas, TX, 75201.
;)

Judging from his public writings on the subject, my first year con law students appear to know more about the original understanding of the Fourteenth Amendment than Antonin Scalia does. That, I think, is a disgrace for someone who claims to have the interpretive philosophy that he purports to have, and who has the power to shape the U.S. Constitution that he possesses.

I agree that the Court's jurisprudence has often ignored or slighted the history of the 14th Amendment's adoption, particularly in the exceedingly weak decision of Boerne v. Flores. My favorite footnote from a Michael McConnell article is footnote 151 of his Harvard Law Review comment on that decision. The Court (Kennedy writing) had claimed that when the 14th Amendment (as we now know it) was adopted as revised from a previously-offered version, the drafters meant by the revision to restrict the scope of Congress's power. Said the Court, "scholars of successive generations have agreed with this assessment." McConnell, however, deftly points out that each of the two historians cited for this point actually disagreed with the Court's conclusion. In a wry understatement, he observes that "[t]his sentence must have slipped past the cite-checkers." !

6. Finally, the point of my previous post was to chide Scalia for a more general failing: In his opinions, he tends to invoke original intention as a rhetorical ploy when it suits his agenda, and when it does not, he simply fails to say anything at all about history or original understandings. And all the while he insists that he has no authority to do anything but follow the original understandings of the text of the Constitution. That may or may not be a logical contradiction. I do think it is hypocritical.

Let me grant for the sake of this discussion that Scalia is hypocritical. But getting beyond this ad hominem argument, should we not count it a point in favor of Scalia's interpretive method that it can be used to impeach him, or to demonstrate that he has gotten an answer wrong? One of Scalia's main arguments for textualism/originalism is that it generates, more often than any other method, some sort of right answer that doesn't depend on the judge's preferences. Even if Scalia fails to apply originalism correctly in a few cases, doesn't that very fact that such a failure can be identified prove that he is actually right on the merits of originalism?

One of the fascinating things about the Internet is the utterly weird things you stumble across when you are looking for something else. For example, I was trying to find the link to a recent news story that examined Bush's Christianity. I found this site that purports to measure whether Faith Hill and George Bush have compatible biorhythms. Go figure.

UPDATE: On the same site, you can enter your name and birthdate, and voila, the site measures your own compatibility with Faith Hill. Here are my measurements, for example. (I got a 98% compatibility on physical, but only 17% on intellectual. That sounds about right, I guess.)

Mark Steyn's latest column is great as usual. I wonder, though, if the penultimate sentence couldn't have been phrased a bit more delicately.

You may have noticed that I rarely, if ever, comment on the impending war or the situation in the Middle East. It's not that I don't find these matters interesting; everything in the world is interesting to some extent. It's that I would need to do a great deal more studying before I would be able to comment without a feeling of utter presumptuousness. And even then, I would find it impossible to comment on the "future of the Middle East" or the "role of the United States in the world" or any of the similar subjects that occupy so much attention these days.

That may sound a bit silly. In the world of blogs, people offer half a dozen opinions a day on subjects about which they know nothing except what they just stumbled across on some other internet site. But that, to my mind, is the problem with so much commentary about the war. I've read quite a few blogs, and quite a few op-eds, and I would guess that 98% of the people commenting on the war literally have no idea what they are talking about in any meaningful sense; the other 2% are limited to offering an educated guess on a few narrow issues like "how fast will we win."

Just to be clear, I'm not talking about blogs that link to this or that story on troop movements and such. I have in mind the writers/bloggers who predict that Iraq will become a model democratic nation that will shine like a beacon throughout the Middle East (although there aren't very many writers/bloggers who venture more than a hesitant hope on this point). Or those writers/bloggers who predict that the Iraq war will only inflame anti-American tension throughout the world, provoke more terrorism, and in the end harm America's interests. If there's one thing that I'm sure of, it's that no one who comments on these issues has the faintest clue what will happen.

Does that sound too harsh? Perhaps. But consider these questions: Who, in 1929, could have plausibly and justifiably predicted the world-wide conflagration that would ensue shortly thereafter? Who, in 1945, could have predicted that within a comparably short period Germany and Japan would be America's allies? Hardly anyone, and certainly not the people who would have been blogging at the time, had the technology existed. Such broad questions about the state of world affairs are just too complicated, with too many variables, for anyone, no matter how well-informed or brilliant, to know what will happen.

I support the war because, from what little I know, Saddam is a very bad man who is or will be a threat to us. That's about it for me: He's evil, and we need to kill him. As for the long-term collateral consequences, whether in Iraq or the Middle East or Europe or wherever, I have no idea. Neither does anyone else.

UPDATE in 2007: Needless to say, I now wince a bit at the final paragraph above. In retrospect, it is no longer as clear as it then seemed that Saddam "will be a threat to us."

I've now got enough extracurricular reading to last me a while. My friend Tom West (politics professor at the University of Dallas) just emailed me a dissertation by David Upham (a PhD student there) on the original meaning of the Privileges and Immunities Clause of Article IV of the Constitution. Upham summarizes his position by saying that the clause was meant to protect substantive national rights, as opposed to the typical interpretation by which it only prevents a state from discriminating in favor of its own residents. At 599 pages in length, it appears to be extremely thorough, and I look forward to reading it. But as I say, it should take a while.

Here's a post by a man who went to Iraq following the first Gulf War with the group Doctors Without Borders. He says he "arrived in Iraq a pacifist Christian and left Iraq as a Bonhoeffer Christian," Bonhoeffer being the Christian pastor who was killed by the Nazis because of his involvement in an assassination plot against Hitler. Read it.

The Pleasure of Being Above the Rest
I agree with Stuart's excellent observation about the weakness of the survey question. The study I read on the question of whether wealth makes people happier, however, relied upon a cross-cultural survey of people's self-reported levels of happiness that didn't suffer from this weakness. Respondents were asked to select a face that best matched their general mood; the faces ranged from full-toothed smile to desperation. Among those with at least minimum necessities, the study found that there was almost no correlation between additional wealth and the survey responses. (The reason for the fuzzy "almost no correlation" construction is because the study reported that people with more money did disproportionately choose happier faces, but the discrepency was within the margin of error.)

Laylard's idea also accords with what is probably my all-time favorite observation of C.S. Lewis. From his classic essay, The Great Sin:

We say that people are proud of being rich, or clever, or good-looking, but they are not. They are proud of being richer, or cleverer, or better looking than others. If every one else became equally rich, or clever, or good-looking there would be nothing to be proud about. It is the comparison that makes you proud, the pleasure of being above the rest.

One of the most interesting questions of economics is whether wealth really makes people happier. There seems to be somewhat of a consensus that once a person or society has risen above some minimal standard of living, more wealth doesn't really add to happiness in any measurable sense. People just get used to any extra wealth, and then desire even more. This was the theme of a recent series of lectures by Lord Richard Layard of the London School of Economics (transcripts of all three lectures can be found here; all are worth a perusal.).

What puzzles me, though, is that for Layard, as for others whom I have read, one of the key pieces of evidence here is the "fact" that people care more about their wealth relative to the rest of society than they do about their absolute level of wealth. Layard cites a 1998 study that asked Harvard graduate students: "Which world would you prefer (prices are the same)? A) You get $50K per year and others get half that; or B) You get $100K per year and others get more than double that." A majority preferred option A, and this is taken as evidence that people aren't really that interested in their absolute wealth; what they really want is to beat everyone else (and conversely, to avoid being poorer than everyone else).

But is that what this study really shows? The key problem with the question is that it assumes something that can't possibly be true -- that "prices are the same" in both worlds. Perhaps people can't help relying instinctively on the fact that in the real world, prices are relative, not absolute. Which means that Option A above really is the rational choice (the person who has twice the average income will have more resources than the person with half the average income, no matter how many dollars are involved). It's difficult to know how to judge people's answers to a hypothetical question when you've asked them to assume a falsehood.

Consider the further questions in the study: Which would you prefer: C) 2 weeks vacation when everyone else gets half; or D) 4 weeks vacation when everyone else gets double that. When that question is asked, only 20% said C. Layard infers from this that people are less rivalrous as to their leisure than as to their income. But isn't it this divergence of results possibly due to the fact that weeks are less relative than dollars?

Here are two excellent articles by Larry Lessig on open spectrum: Spectrum for All, and Wireless Spectrum: Defining the "Commons" in Cyberspace.

I was excited to get the email bulletin that the Review of Network Economics has another issue online. And sure enough, it looks like there are several interesting articles. There one titled "Traffic Jam on the Music Highway: Is it a Reproduction or a Performance?," and then there are two articles (here and here) disputing over whether and to what extent firms have incentives to create inter-operable products so as to reduce endogenous switching costs (in English, for example, whether one video game manufacturer has any incentive to make its video games operable on other manufacturers' consoles, or whether it will attempt to lock customers in to its own products).

Finally, there's a book review of a new book: "Cost Proxy Models and Telecommunications Policy, by four of the leading scholars of network industries and natural monopolies (Farid Gasmi, D. Mark Kennet, William W. Sharkey, Jean-Jacques Laffont). I'm definitely going to have to get that one.

So does CO2 cause global warming? Or vice versa?

The Russian Perspective
No wonder the Security Council is talking in circles. The Russian Deputy Foreign Minister Yuri Fedotov explained their dismissal of Britain's six-point plan thus: "The British proposals on Iraq are not constructive and do not solve the main problem -- preventing the use of force against Baghdad."

Add these to your file of laws that don't do what their proponents claimed:

From the University of Virginia's website:

The Brady Bill, the most important piece of federal gun control legislation in recent decades, has had no statistically discernable effect on reducing gun deaths, according to a study by Philip J. Cook, a Duke University professor of public policy, economics and sociology.

From the Social Science Research Network:

The Costs of Wrongful-Discharge Laws

DAVID H. AUTOR
Massachusetts Institute of Technology (MIT) - Department of Economics; National Bureau of Economic Research (NBER)
JOHN J. DONOHUE III
Stanford Law School; National Bureau of Economic Research (NBER)
STEWART J. SCHWAB
Cornell Law School

We estimate the effects on employment and wages of wrongful-discharge protections in the United States. Over the last three decades, most U.S. state courts have adopted one or more common law wrongful-discharge doctrines that limit employers' discretion to terminate workers at-will. Using this cross-state variation with a difference-in-difference framework, we find robust evidence of a modest negative impact (-0.8 to -1.6 percentage points) of one wrongful-discharge doctrine, the implied-contract exception, on employment to population rates in state labor markets. The short-term impact is most pronounced for female, younger, and less-skilled workers, while the longer term costs appear to be borne by older and more-educated workers - those most likely to litigate under this doctrine.

[I.e., laws that require employers to have a "good reason" for firing people actually reduce employment rates.]

From Regulation magazine:

The Unintended Consequences of the Americans With Disabilities Act -- Contrary to legislative intent, ADA makes the disabled less employable.

I'm not sure what to think about the "smart growth" movement to create communities and towns that are unlike the typical suburban sprawl. My libertarian instinct warns me against these kinds of legal restrictions on property rights. On the other hand, my sense of realism tells me that virtually all towns/cities (except Houston) have some sort of zoning laws anyway, and therefore the debate is not over whether to have restrictions on property rights, but on what the content of those restrictions should be.

Plus, it has always seemed odd to me that some of the most expensive neighborhoods in the country -- think Manhattan, Cambridge, Georgetown, etc. -- are dense, walkable, and functionally integrated, quite the opposite of sprawl. Which makes me ask, If people are willing to pay high prices to live in such neighborhoods, why don't developers build more of them?

Another example: Look at Williamsburg, Virginia. It's a beautiful town that, for the most part, has been kept just as it was in the 1700s, which means it is relatively dense, with shops, churches, and wooden houses all mixed together. And with all the people who pay money just to come and look at it, there has to be some number of people who would like to live in a place like Williamsburg. So again, how come there aren't more developers who build a town that looks like it came out of the 1700s?

In answer to my own question, I'm guessing a combination of transaction costs, path dependence, zoning restrictions that actually prevent such neighborhoods, and the collective action problem. Am I missing something?

Thanks to Sitemeter and a guest with odd tastes, I now know that this site is the second one that turns up when you do a Google search for "Recipe for Buck Eyeballs."

Here's a little snippet of an IM conversation I had with my pregnant sister, whose husband is in the 101st Airborne and just left for Kuwait:

[Sister] says:
Can you imagine what it's like for kids who have to say goodbye to their parent (s) to go to war?

Stuart Buck says:
Must be absolutely awful

* * *

[Sister] says:
There's a mom at my church whose husband left last Sat. She has a 3.5 year old girl, a almost 2 yr old boy, and is due with anotther girl in June. Her kids are so proud of their dad.....they were telling me their daddy was "going to war in Iraq". It was so sad. . . . I wish you could have seen this little girl....big blue eyes, curly blonde hair framing her face, very serious expression. I almost cried watching her.

As always, it's entertaining to see Jane Galt eviscerate someone's unsophisticated and demogagic analysis of an economic issue.

InfoWorld has a pretty good article on the spectrum conference here.

The spectrum conference at Stanford was a raging success. Lots of economists, lawyers, engineers, and captains of industry coming together to talk about how to regulate the electromagnetic spectrum -- what could be more fun? (Lawrence Solum, by the way, was there and blogged about the conference here.)

Some vignettes:

• I was chatting with Alex Kozinski on Saturday morning, and he, blunt as one might expect, says to me, "Ahhh, you're the [law firm] associate. So, I don't know how to ask this, but what's so special about you?" [He was smiling as he said this.] "I go down the list of speakers, and I see Professor, and Doctor, and then Associate."
  
  Luckily, Tom Hazlett of the Manhattan Institute (he helped Larry Lessig organize the conference) was standing right there, and jumped in with, "Well, he clerked for one of your famous colleagues, Stephen Williams -- that should be enough right there."
  
  I then added that I had written a law review article on governing the spectrum as a commons, an article that Larry Lessig seemed to like quite a bit for whatever reason, and that this explained my participation on one of the panels. Kozinski seemed satisfied.
  
  It was all in good humor, but still an ever so slightly awkward moment. (Though, to be honest, it was probably a question that had crossed the minds of a few other people as well.)
  
  
• I met David Friedman, Milton Friedman's son and author of the wonderful economics book Hidden Order. He said that he is soliciting comments from all and sundry on his forthcoming book on the future of technological change. You can find a working draft here at his website.
  
  
• A humorous interchange during the Moot Court (with Alex Kozinski, Harold Demsetz, and recent Nobel laureate Vernon Smith as judges). The subject under discussion at the moment was Ronald Coase's 1959 article on the FCC. Demsetz asked Larry Lessig (advocate for the commons model): "Did [Coase] say that we should maximize the output [of the spectrum], or maximize the value of the output?"
  
  Lessig: "I'll quote from his paper, 'Maximize the output.'"
  
  Demsetz: "Knowing Coase intimately, I can say he really meant, 'the value of the output.'"
  
  Kozinski [to huge laughter from the room]: "We're a strict constructionist court. We don't look at legislative history."
  
  
• Another humorous comment from Demsetz: Having referred to Coase's Nobel prize for the Coase Theorem, he said, "I always thought I should have gotten the Nobel Prize. He certainly originated the idea, but I published it many more times than he did. [Pause for laughter.] I made this comment at a conference where Coase was present. He leaned over to me and said, 'The fact that I have the Nobel Prize should have any effect on the ultimate disposition. So don't worry about it -- it's just a matter of wealth distribution.'"

Anyway, it was a great time, I met lots of interesting and wonderful people, and I'm thankful that Larry Lessig let me participate.

UPDATE: For several links to bloggers who covered the conference, go here.

FURTHER UPDATE: The New York Times briefly covered the conference as well in this article.