Dorf on Law

The Supreme Court's Establishment Clause cases are sometimes berated as exercises in unprincipled line-drawing based on the personal preferences of the justices, and of one recently retired justice in particular. There's something to this view. Some of the cases, however, leave the reader in a bewilderment too deep to be explained by mere lack of principle. In these cases, one really gets the feeling that the justices haven't grasped the nature of the thing in dispute--that they literally don't know what they're arguing about. An article in the new issue of the Journal of the American Academy of Religion provides a religious-studies framework that could be a little help in some of these cases, if the Court were open to it. The article, The Pledge of Allegiance and the Meanings and Limits of Civil Religion , by Grace Y. Kao and Jerome E. Copulsky, analyzes the Pledge as a ritual of the nation's "civil religion," in the sense in which Robert Bellah used

[Posted by Neil H. Buchanan] Last week, in a guest column on FindLaw , I discussed an argument that the Wall Street Journal's editorial page has been pushing recently. (The column to which I was directly referring was published under the byline of former Bush press secretary Ari Fleischer; but as a friend of mine says: "I always imagine (based on nothing at all) that they just have some guy locked in a little room churning this stuff out and they stick the names of different famous people on different versions of the argument on different days.") The argument boils down to this: We know that the U.S. tax system is excessively redistributive because the richest 10%, say, of all taxpayers pays some much larger percent of all taxes (by Fleischer's ghost writer's account, 71% in 2004 -- conveniently ignoring everything but federal personal income taxes). As with all such statistical distortions, the comparison has a wow factor, and it's not just wrong but bas

The legal case against Deborah Jeane Palfrey, who ran an accused prostitution ring under the name of "Pamela Martin and Associates," raises a nice question about the dual use of evidence. Ms. Palfrey says that her 130 escorts provided only legal services --- such as massages and erotic dances --- for her 15,000 customers. She plans to prove the point by calling her customers as witnesses to say that they did not pay for sex. ("Honest, your honor, I thought I was getting shiatsu.") Of course, because Ms. Palfrey's clients included prominent business and government figures --- among them former Bill Clinton svengali Dick Morris and recently resigned State Dept foreign aid adviser Randall Tobias, according to the NY Times --- one strongly suspects that she wants to call these witnesses less to exonerate herself but in the hope that the powerful clients, fearing exposure, will use their influence to get the charges dropped. (But I'm betting that firing the r

What does it take for a guy to stay bought in Washington, D.C. these days? I had assumed that when President Bush awarded former CIA Director George Tenet the Medal of Freedom, it was a not-too-subtle payoff for Tenet's willingness to be the fallguy on faulty pre-war intelligence. Evidently not. Because Tenet's book isn't officially available yet, it's hard to figure out exactly how his assessment that the evidence for Saddam's possession of WMD was a "slam dunk" was "taken out of context," but the news reports I've seen thus far make little sense. In yesterday's NY Times story, for example, Tenet says that the White House was going to invade Iraq no matter what. That may well be true, and is very damning of the Bush administration, but it's hard to fathom how it lets Tenet off the hook. The "slam dunk" line was part of what enabled the administration to sell the war to the public. So if we blame Bush, Cheney, Rumsfeld

MIT Admissions Dean Marilee Jones resigned yesterday after revelations that she lacked the academic degrees she claimed she had when she first applied for and obtained a junior position in the admissions office 28 years ago. (Read her statement here .) The news was apparently greeted with sadness by MIT staff and students, who regarded Ms. Jones as an outstanding Admissions Dean. That raises the question: So why did she have to go? We can immediately dismiss the explanation that the lack of formal credentials rendered Jones incompetent to do her job. Her success in the job belies any such conclusion. Had Jones been hired as an administrative assistant with the knowledge that she lacked even a bachelor's degree, and had she been internally promoted until she was given responsibility for running the admissions office, she would still have her job. Sure, if you were interviewing candidates for the position of Admissions Dean at a selective college, you would probably use formal

The current issue of The New York Review of Books includes a letter on rape in prisons by David Kaiser, a member of the board of an organization called Stop Prisoner Rape . Kaiser's short letter notes: (1) how widespread prison rape is (about ten percent of male prisoners are raped, mostly by other prisoners, while an even higher percentage of female prisoners are sexually abused, mostly by guards); (2) how prison rape can be dramatically reduced by effective oversight and reductions in overcrowding; and (3) the dramatic cost that prison rape exacts in terms of physical and psychic harm to victims, as well as the public health cost from the spread of HIV. I share Kaiser's view that prison rape is a national scandal but would add that a large part of the problem is our culture. Despite having the highest incarceration rate of any constitutional democracy, prisons and prisoners are generally invisible in American public life. When prison rape is discussed, it is generally tho

Just a short musing here. The President has shown, through his as-yet untested use of signing statements, that he really doesn't care much about what the statutes say, so I wonder why he doesn't just sign the spending bill and announce that he's going to ignore it as some kind of unconstitutional infringement on Article II powers. If I were a more exciting version of Harry Reid than Harry Reid, I think that's what I'd dare the President to do. After all, Harry could say, no one's going to impeach the President for his repeated decisions, over the past seven years, to ignore Congress's laws through the use of signing statements, because the President has impeachment insurance. (Impeachment insurance comes in a package called "Dick Cheney").

I mean the title of my post today quite literally. The U.S. has charged Canadian Gitmo detainee Omar Khadr with murder in connection with his having thrown a grenade that killed Army Sergeant Christopher Speer during fighting in Afghanistan. Khadr was allegedly part of al Qaeda. Throwing a grenade at soldiers looks more like warfare and less like terrorism than most of the things that al Qaeda members have done, even if it constitutes a violation of the law of war because al Qaeda forces don't abide by the laws of war. (For example, they don't wear distinctive uniforms, thus permitting them to blend in with, and thereby endanger, the civilian population.) But that still leaves the question of what advantage the U.S. gets from trying the likes of Khadr, rather than just continuing to detain him as an enemy combatant. One possibility is that the government fears an eventual Supreme Court ruling that enemy combatants cannot be held forever. If so, there would need to be some

I am currently reading a book with the above title, and I highly recommend it to readers of this blog. It is about the importance of civility in the workplace and the deleterious effect that bullying has on the bottom line (as well as the wellbeing of people at work). As a member of a very contentious profession (an accurate description whether I classify myself as an attorney or as an academic), I can attest to the significance of the lessons in this book. When a culture of bullying develops, it is contagious and ultimately leads to greater turnover (because people hate working with and for assholes, no matter how brilliant) and to less productivity at work (because few employees are willing to go the extra mile for someone who is abusive and unappreciative). Originating with an article published in the Harvard Business Review, the author -- Robert Sutton -- carefully and engagingly outlines the degree to which businesses assume, without evidence, that bullies who are skilled at t

The news that John Edwards received two $400 haircuts (for a total of $800) can't bode well for his Presidential campaign, for two reasons. First, it reinforces the image of Edwards as just a pretty face. (See also a very odd video here .) Second, it smacks of hypocrisy. No one in the second America about which Edwards speaks so passionately is shelling out $400 for a haircut. In defense of Edwards, apparently about half the fee was due to the fact that the stylist came to Edwards to save him time, and Edwards says he didn't know how much it would cost. Plus, he has the good sense to joke about it. But still . . . . The $400 haircut has the power to stick because of the need for our politicians to come across as authentic. If Dick Cheney had hair, and if he had it cut for $400, no one would notice, because Cheney makes no secret of his view that wealthy people should enjoy their riches (or that government should do all it can to help them get richer). But we expect bet

Sunday is typically a slow day for blog readership, so I'll just take this opportunity to remind my French readers to go to the polls. Both of you. Vive la France.

By eery coincidence, this week I read Malcolm Gladwell's The Tipping Point (which I neglected to read when he first wrote it). The book describes the phenomenon of social epidemics, including suicide and murder-suicide epidemics. Gladwell cites compelling evidence that high-profile media coverage of suicides leads to a spike in the suicide rate and that high-profile media coverage of murder-suicides causes murder-suicides to spike. (Most creepily, even automobile fatalities spike following this pattern, suggesting that some people commit suicide and murder-suicide by auto.) In light of this evidence, it's a near-certainty that people will be killed by acts in imitation of the Virginia Tech shooter---and indeed, it appears that there has already been a wave of scares. (It's not always easy to tell which "successful" murder-suicides are attributable to copycatting, which is why the large-n study looks at the change in rate.) As Gladwell explains, prominent murd

Justice John Paul Stevens turns 87 today. He is a remarkably sharp human being for any age, but still, that number gives one pause. In keeping with yesterday's theme of quoting other abortion opinions, I thought I'd excerpt here the closing paragraph of Justice Blackmun's concurrence in Planned Parenthood v. Casey. He stated: "I am 83 years old. I cannot remain on this Court forever, and when I do step down, the confirmation process for my successor well may focus on the issue before us today." Some people criticized Justice Blackmun at the time for expressly politicizing the issue, but the criticism seems to miss the mark because everybody already knew the issue was politicized, and both the plurality (actually the majority on this point) and the dissent talked about the interaction between politics and the Court's jurisprudence. It will be interesting to see whether and how Wednesday's decision plays politically. I have always understood "p

I am generally no fan of Judge Posner's work, to put it mildly. There are times, though, when he puts aside his usual bag of tricks and simply gets it right. Mike's posting earlier today quotes extensively from Posner's dissent from the en banc decision in Hope Clinic v. Ryan , 195 F.3d 857 (7th Cir. 1999). In addition to the paragraphs that Mike excerpts, I commend the following for your consideration: "Imagine a married woman, pregnant, told by her physician that her life depends on her obtaining an abortion. He tells her it would be better from the standpoint of minimizing the risk to her of medical complications from the abortion for her to have a D & X. But, he adds, unfortunately the law prohibits the procedure. It does so not because the procedure kills the fetus, not because it risks worse complications for the woman than alternative procedures would do, not because it is a crueler or more painful or more disgusting method of terminating a pregnancy, but

As I noted yesterday ( here ), the Supreme Court's opinion in Gonzales v. Carhart draws some distinctions between the federal partial-birth abortion statute it upheld and the Nebraska statute it struck down seven years ago in Stenberg v. Carhart , but both the federal Act and the Nebraska Act share a crucial feature: neither contains a health exception. As Justice Ginsburg persuasively argues in dissent in yesterday's case, there's no plausible distinction between the Nebraska law and the federal law on that score; yet the majority purports not to overrule the 2000 decision. Well, one might ask, so what? What's so bad about the absence of a health exception? Justice Ginsburg gives a good answer, which I suppose will be widely read. Here I thought I'd let Judge Posner answer the question. Here's what he had to say in dissent in a 1999 case involving challenges to Illinois and Wisconsin partial-birth abortion bans: Immediately the question arises why the Wi

Today the Supreme Court upheld, by a 5-4 vote, the federal partial birth abortion ban. (Opinion here .) Here are a few highlights: 1) Justice Kennedy, who dissented from the Court's 2000 ruling invalidating the Nebraska partial birth abortion ban, writes the majority opinion, purporting to distinguish, rather than overrule, the Nebraska case, Stenberg v. Carhart . 2) The Court does not defer to the findings of Congress, which it acknowledges are factually inaccurate, about the medical necessity of the procedure. (Personal plug: Kennedy's opinion accepts the argument on this point of an amicus brief by a few law profs, including yours truly.) 3) The distinction on which Kennedy principally relies -- the greater specificity of the federal statute -- works for overbreadth and vagueness, but it's not clear that it should make a difference on the core issue: whether a government (state or federal) can ban what many doctors think is the safest way to perform a medical procedur

President Bush meets today with the majority and minority leaders of the House and Senate to discuss war funding. With Bush threatening to veto any measure that includes troop withdrawal deadlines, and the current House and Senate bills containing such deadlines (albeit somewhat different sorts), negotiation theory says that the outcome should be some sort of a compromise. Neither side can afford to simply walk away, because Bush does need the funding to continue the war (although he can probably get by for a few months by shifting budget items a bit). We would expect that the exact nature of the compromise should depend on the relative bargaining strength of the parties, but that's hard to gauge for at least two related reasons. First, although Democrats have public opinion on their side in wanting to set a timetable for troop withdrawal, Bush can portray the Democratic position as failing to support the troops in the field (even if that's not the Democratic intent). It

As predicted, my suggestion that the Virginia Tech shooter's identity be kept confidential has been ignored. There will now follow a media circus examining every aspect of this one troubled man's life and his decision to take it along with those of many innocent others. In a futile gesture, I'll refer to him here simply as "the shooter."

Richard Posner has a review in this week's New Republic of The Judge in a Democracy , by former Israeli Supreme Court Chief Justice Aharon Barak. It is a typical example of the Posnerian art of the takedown. Although Barak "supposes himself to be in some sort of sync with liberal American judges," Posner writes, "he actually inhabits a completely different -- and, to an American, a weirdly different -- juristic universe. I have my differences with Robert Bork, but when he remarked, in a review of The Judge in a Democracy, that Barak 'establishes a world record for judicial hubris,' he came very near the truth." And more: "What Barak created out of whole cloth was a degree of judicial power undreamed of even by our most aggressive Supreme Court justices. He puts Marshall, who did less with more, in the shade." And more: "Barak bases his conception of judicial authority on abstract principles that in his hands are plays on words." His

Unsurprisingly, within minutes of the news of the Virginia Tech shootings, proponents and opponents of gun control saw in this tragedy a confirmation of their respective world views. For example, the Violence Policy Center issued a statement deeming such shootings " the inevitable result of the ease with which the firepower necessary to slaughter dozens of innocents can be obtained." As of 7 am Eastern Time today, the National Rifle Association had only issued a statement expressing condolences pending full discovery of all the facts, but that didn't stop individual NRA members on blogs and comment boards from drawing the exact opposite inference from the VPC: If just one of the law-abiding students had been legally permitted to carry a concealed handgun, he or she could have taken out the gunman at an early stage in his rampage. I don't kid myself that this debate will be settled with empirical evidence (which is how, I think, se

Were it not for Don Imus's outburst about the Rutgers women's basketball team and the ensuing brouhaha, NJ Governor Corzine almost certainly would not have been injured on the highway, because he would not have been on his way to a meeting with Imus and the team. Thus, when the red pickup swerved, the governor's vehicle would not have been run off the road (if indeed the red pickup would have swerved at all. Perhaps, per the butterfly effect, the driver of the pickup would have behaved differently in the alternative universe I'm positing). Does this make Imus responsible for Corzine's injuries? Of course not. As every 1st year law student knows, Imus was not the "proximate cause" of the auto accident. His remark was merely one of innumerable events that led to the governor's SUV being where it was when it was hit. This conclusion does not turn in any way on the fact that Imus was engaged in legal (if offensive) behavior. Even if we suppose that Im

I'd like some help in refreshing my memory. Isn't it true that sometime in the not-too-distant past, the presidential practice was to nominate both district judges and US Attorneys following consultation and recommendation with home state senators, even if both senators were members of a political party different from the president? In New York for example, Moynihan and D'Amato had a 3:1 deal, which was that the senator who was not from the president's party would get the call on 1/4 of the vacancies. And if my memory is correct, when did that practice end? Tidbit #1: (Advise and consent is a joke.) I asked the intro question because I noticed an additional slap at the Senate revealed in the April 13 G8 document production. In the Kyle Sampson list of possible replacements for the G8, all of the names were current employees of main Justice or the White House, intended to be moved out to the districts. That, combined with the Patriot Act provision that allowed interims t

I'm posting from my blackberry today and tomorrow, so I'll keep it short. For today, here's a topic: "If the World Bank fires Paul Wolfowitz, the nepotism and hypocrisy (because he has made anti-corruption measures a priority) will be mostly a pretext. Wolfowitz was unloved from the beginning because of his role in the Iraq war.". Discuss amongst yourselves.

On Monday I suggested ( here ) that contrary to the Nixonian wisdom about scandals, the action in the Gonzales Eight Massacre really does concern the underlying conduct rather than the cover-up. With the emergence of more details about the use by Karl Rove and others of their Republican National Committee email accounts, I'm beginning to think that the truth lies somewhere in between. More precisely, it appears that the cover-up and the conduct are inextricably connected. The Presidential Records Act requires the White House to save "[d]ocumentary materials produced or received by the President, his staff, or units or individuals in the Executive Office of the President the function of which is to advise and assist the President . . . ." Although the law was adopted before the widespread use of email, it clearly covers email. Thus, the use of RNC rather than White House email accounts for official government business --- such as advice and assistance regarding which

As the Times’ Kathleen Hughes points out today, some 60 million Americans are governed by laws that prohibit them from hanging a clothesline and line drying their laundry. What does this have to do with global warming? As she explains : There were more than 88 million dryers in the country in 2005, the latest count, according to the Association of Home Appliance Manufacturers. If all Americans line-dried for just half a year, it would save 3.3% of the country’s total residential output of carbon dioxide, experts say. But what is the law preventing such activism? Thousands of homeowners’ associations have covenants doing so. Yes, that most American of traditions, the clothesline, is often outlawed by that most suburban of traditions—the private agreement governing the aesthetics of the subdivision. (There is a real irony here I will resist commenting upon.) Individuals are not without options . But it got me thinking (especially given how my friends are always telling me I’m nuts

Yesterday the Washington Post and other media outlets reported that the Bush administration has been turned down by three retired generals asked to take the position of "war czar." News accounts focused mostly on the reasons why the position has proved so hard to fill. Most stories quoted retired Marine Gen. Jack Sheehan's explanation for declining the job: "The very fundamental issue is, they don't know where the hell they're going." Moreover, with VP Cheney and other hawks still exerting substantial influence within the administration, analysts explained that the occupant of the Czar job would not have sufficient power to accomplish its goal. What exactly is that goal? According to the Post: "The idea for creating the new position follows concern over longstanding disputes between civilian and military officials in Iraq. The war czar would have the authority to issue directions to the Pentagon, State Department and other agencies." Call

Last October, in Planned Parenthood v. Rounds , a 2-1 panel of the Eighth Circuit upheld a preliminary injunction against enforcement of South Dakota's informed consent abortion law. In January of this year, the court agreed to rehear the case en banc. The oral argument is today. A number of provisions of the law are at issue, but the key ones require that at least 2 hours before the performance of an abortion, a doctor must inform the patient: . . . (b) That the abortion will terminate the life of a whole, separate, unique, living human being; (c) That [the patient] has an existing relationship with that unborn human being and that the relationship enjoys protection under the United States Constitution and under the laws of South Dakota; (d) That by having an abortion, her existing relationship and her existing constitutional rights with regards to that relationship will be terminated . . . . The law is challenged as an infringement of the doctor's right to freedom of spee

Yesterday brought news that a hunger strike by Gitmo prisoners had gained new participants, this time protesting isolation in the newly completed Unit 6. At the same time, the news stories quoted camp officials as saying that the surge in hunger strikers waned after reporters left and the new strikers were faced with the prospect of forced feedings through nasal tubes. Here I'll briefly explore the question of what the use of a hunger strike says about the strikers' assessment of their audience. In modern times, hunger strikes have been used most famously by American and British suffragists, by Gandhi, and by IRA prisoners. Hunger strikes were not a prominent tactic of the American civil rights movement, although Dr. Martin Luther King, Jr. was influenced by the broader strategy of non-violent protest used by Gandhi and others. That American and British authorities have so often been the target of hunger strikes and so-called passive resistance may say something about p

In a piece published last year called "'Or of the [Blog]'" -- a title that draws on Potter Stewart's classic speech, "Or of the Press" -- I argued that we should think about blogs as a kind of autonomous institution under the Press Clause, and "draw the contours of blogs' institutional autonomy in a way that is appropriate to blogs as an institution ," drawing on the institutional "purpose, value, and nature of blogs." In particular, I argued that "the norms developing in and around the blogosphere -- both bloggers' norms and readers' norms -- suggest the development of [a collective] institutional framework that may collectively do much of the verification, correction, and trust-establishing work that established news media institutions do individually." I argued that such an approach might encourage courts to "give blogs substantial autonomy to act, while monitoring the development of norms of behavior

Newt Gingrich is the latest prominent Republican to assail AG Gonzales for his handling of the Gonzales Eight Massacre. In his appearance on Fox News, former Speaker Gingrich said “This is the most mishandled, artificial, self-created mess that I can remember in the years, in the years I’ve been active in public life.” (That's according to the NY Times report. I don't actually watch Fox News --- unless I happen to be in a hotel room that has just been vacated by VP Cheney. Explanation here .) It's hard to tell exactly which aspects of the "mess" Gingrich was upset about, but the use of the words "mishandled" and "artificial" suggest that he, like a number of others who have abandoned the sinking Gonzales ship, either doesn't really get it or is deliberately obfuscating. Of course it was wrong for Gonzales to claim that the US Attorney dismissals were performance-related and to dissemble about his involvement in the affair. But this is

Last week, the Commerce Department announced a new rule regulating communications with the press by its own scientists on any subject of “official interest.” There are few subjects of more “official interest” these days than climate change. One of the things that hindered the Administration’s reign of denial for the last six years was the frequency and vigor of agency staffs’ off-the-record corrections for the record every time some spokesflack belched another lie or misdirection. The new rule, set to take effect in May, is awash with rhetoric acknowledging the good of “broad and open dissemination of research results [and] open exchange of scientific ideas.” In substance, though, it forbids agency staff from communicating pretty much anything—even if prepared and delivered on one’s own time—where that communication hasn’t first been vetted up the chain-of-command. Most important, according to PEER (Public Employees for Environmental Responsibility), is that any “fundamental resea

I'll just use today's entry to call attention to Thomas Healy's post from yesterday on the Medellin cert petition. Thomas notes the oddity of the President invoking his foreign affairs power in support of his domestic authority to tell the Texas courts what to do. It's also worth noting this line from last week's decision in Mass v. EPA : "while the President has broad authority in foreign affairs, that authority does not extend to the refusal to execute domestic laws." That doesn't quite contradict the power asserted by the administration in the Medellin case, but it does suggest a general limit to presidential authority domestically, a limit supported by the decision in the Steel Seizure Case. Speaking of the clash between federalism druthers and Presidential power druthers for conservatives, I highlight that issue in my FindLaw column on Massacusetts v. EPA , which will appear on the Writ frontpage tomorrow. Happy Easter to those celebrating, l

What happens when the Bush administration is forced to choose between federalism, Texas and the death penalty on one hand and the supremacy of the executive branch on the other? The answer can be found in the Solicitor General’s brief in support of certiorari in Medellin v. Texas . Medellin is a case involving a Mexican national who was convicted of raping and murdering two teenage girls and sentenced to death by a Texas court. In his habeas petition, Medellin argued that his conviction should be overturned because he had not been informed of his right to contact the Mexican consul upon arrest, as guaranteed by the Vienna Convention on Consular Relations, to which the United States is a party. A federal court rejected his petition, but the International Court of Justice ruled, in a case involving Medellin and 50 other Mexicans, that the United States had violated the Convention. The ICJ also ruled that the United States was obligated to provide judicial review of the convictions t

With little room to maneuver, a spokesman for President Bush, in response to a question, criticized Republican Congressman Darrell Issa for meeting with Bashar Assad a day after Nancy Pelosi did. This probably neutralizes the story as a partisan political issue, and may effectively end it as a news item, but readers interested in more on the Logan Act and congressional freelancing should check out the first comment on this post, which I've taken (with permission) from Georgetown Law Professor Marty Lederman's message to a constitutional law listserve.

Since my post earlier in the week about Speaker Pelosi's apparent conduct of foreign policy parallel to the President's, a number of commentators (including some who emailed me) have suggested that Pelosi not only acted improperly but illegally. Specifically, they suggest that she may have violated the Logan Act. It provides in relevant part: Any citizen of the United States, wherever he may be, who, without authority of the United States, directly or indirectly commences or carries on any correspondence or intercourse with any foreign government or any officer or agent thereof, with intent to influence the measures or conduct of any foreign government or of any officer or agent thereof, in relation to any disputes or controversies with the United States, or to defeat the measures of the United States, shall be fined under this title or imprisoned not more than three years, or both. Here I'll just note four issues: 1) There is zero chance that Pelosi will actually be pro

Back in January, in a post about Cyberlaw I mentioned that my civil procedure exam last semester featured an extended hypothetical question based on a thinly disguised spoof of the interactive virtual world SecondLife . Shortly thereafter, a student pointed me to one of the strangest sites I've seen on the web, a series of screen shots of Judge Richard Posner giving a talk in SecondLife . But the strangest use of SecondLife by a legal professional has to be the following video from last year of Harvard Law Prof Charles Nesson, his avatar, and his daughter's avatar, showing just how cool ( stoned? ) they are. I can't tell from the video whether Nesson's journey to SecondLife was successful, but ventures like his and Posner's do suggest to me that we have reached the point where the technology outpaces our ability to use it productively. About 10 years ago, as an experiment in my constitutional law class, I included Powerpoint presentations in each of my lecture

As reported in yesterday's NY Times, early Tuesday morning, three Yale students were arrested for burning a flag hanging from a private home (not theirs). As of late Wednesday night, one of the students had been bailed out while the other two remained in jail pending the posting of bail. According to a story in the Yale student newspaper , a false rumor had been circulating around the Yale campus that the house belonged to Sen. Joe Lieberman. The story nicely illustrates the inaccurate way in which we often speak about constitutional rights. We sometimes say that Texas v. Johnson establishes a constitutional right to burn a flag as a form of political protest. But that's clearly not true. The case merely establishes a right not to be penalized on account of the message one communicates if one burns a flag as a form of political protest. Thus, it stands as no obstacle to the charges that have been brought against the Yale students: arson, reckless endangerment, criminal m

On the heels of increasing discussion of whether its erstwhile (given his recent defeat in the first "money primary") presidential frontrunner is sufficiently conservative to win the Republican nomination [ one , two ], the erstwhile party of family values is apparently about to unveil its latest proposal for comprehensive immigration reform . While details remain unclear, reports indicate that the proposal -- which has White House support and whose Senate sponsors include at least two erstwhile opponents of comprehensive immigration reform, Senators John Cornyn of Texas and Jon Kyl of Arizona -- would limit family reunification in at least two respects. First, while the proposal would provide undocumented immigrants with an opportunity for legalization, it apparently would bar them from bringing family members with them [ link ]. Second, while the bill would increase the number of employment-based visas to accommodate future flows of immigrant workers, these increases appare