Kopel's Corner July-August 2010 Archive

Some skepticism about “UnemployedJD”

David Kopel • August 24, 2010 8:06 pm

Today’s Wall Street Journal Law Blog has an article about the “UnemployedJD” blog of an unemployed law graduate. The website begins “My name is Ethan Haines.” The website features a picture of a trim white male who, according to the website, is on a hunger strike to protest his own unemployment and the unemployment of other law school graduates.

However, according to the WSJ, the website is operated by Ms. Zenovia Evans, who does not in any way resemble the profile of “Ethan Haines.” As reported by USA Today, Ms. Evans chose not to take the July bar exam, chose instead to study abroad in London, and is currently pursuing a MBA. USA Today reports that she is not unemployed, but is instead an “independent contractor (which means no benefits) for a personal injury law firm, earning about $600 a week to hone her legal skills.”

UnemployedJD does not disclose where Evans/Haines attended law school. But a web search found a Zenovia Evans who attended the Auburn Hills campus of Thomas M. Cooley Law School.

The particular demands of the Evans/Haines hunger strike are that ten particular law schools provide certain information about the employment of graduates to an organization called Law School Transparency, and that the schools audit their career counseling programs “for effectiveness, resourcefulness, and accuracy.” [LST has no relation to Evans/Haines or the hunger strike.]

According to Evans/Haines, the ten schools to which s/he sent the hunger strike demands were “randomly selected law schools ranked in the Top 100 of the 2010 U.S. News & World Report’s annual rankings. These schools were selected because they stand to gain the most from keeping the current rankings structure in place.”

The Cooley Law School has been a long-time critic of the US News ranking system, which Cooley analogizes to ranking college football teams based on the quality of their freshman recruits, rather than by the results achieved by the teams. Cooley favors an alternative rankings system, under which Cooley scores in the top-20.

According to USA Today, “She says she owes more than $150,000 in loans.” (On the blog, she says that she authorized USA Today to reveal her real name.) Cooley’s current annual tuition is $30,644, with discounts of 25–100% available for students with high LSATs (starting at 149, with an additional 10% discount for Michigan residents).

It does not seem prudent for a person with $150,000 in debt to postpone the bar exam, study in London, and then enroll in a different professional school program.

Haines/Evans does not allege that Cooley Law School misled her in any way, or that Cooley’s Career and Professional Development Office failed to function in a professional and appropriate manner.

Surprisingly, Evans is also the proprietor of the J.D. Lifeline website, which sells a book for pre-law students, and another book for 1Ls. According to J.D. Lifeline, “now is the perfect time to go to law school.”

Regarding the progress of the hunger strike, Evans/Haines writes: “As of today, August 24th, I am officially at the end of the second stage of starvation. I have rejected all food thereby limiting myself to water and fruit juice for the past 12 days. Stage three – where death is highly probable – is in the very near future, but I have yet to receive any communication from law school officials regarding my Notice of hunger strike.  As of today, I have lost 15 pounds! I am at a loss for words…”

Given the near-death situation, one wonders if Ms. Evans is still able to perform her duties effectively at the law firm where she works.

Constant improvement of post-graduation data, and constant improvement of law school career counseling offices are both worthy goals. Certainly there is room for debate about the merits of the US News ranking system versus alternative ranking systems. To me, however, Mr. Haines and Ms. Evans do not appear to be particularly persuasive spokespersons for those causes.


Tortious refusal to supply hamburger fumes

David Kopel • August 26, 2010 6:49 pm

Apparently a successful cause of action, according to today’s Wall Street Journal Law Blog:

Law Firm Hamburger War Heats Up

Powerhouse D.C. law firm Steptoe & Johnson has won an order to force a neighboring burger restaurant to stop omitting hamburger fumes into the firm’s air intake system.

See and Post Comments:

http://blogs.wsj.com/law/2010/08/26/law-firm-hamburger-war-heats-up?mod=djemlawblog_t

     38 Comments

Stop Criticizing President Obama for Playing Golf

David KopelAugust 23, 2010 3:38 pm

In this polarized period of American politics, many people on the Right have been taking cheap shots at President Obama because he plays golf so much.

These golf-related criticisms are at least factually accurate, in contrast to the lies that Michael Moore told about George Bush supposedly vacationing much of the time. However, the criticisms of President Obama are misguided.

Of American Presidents since World War II, the one President who is now almost universally regarded as highly successful and constructive, by persons of all political persuasions, is President Dwight D. Eisenhower. While serving eight years as President of the United States, Eisenhower may have played over eight hundred rounds of golf. In other words, about twice a week.

Like President Obama, President Eisenhower was criticized by partisan opponents for his avid interest in golf.

Obviously there are many differences between President Eisenhower and President Obama. To begin with, the former came into office with demonstrated success in a very difficult executive job, Supreme Allied Commander Europe, defeating Hitler and Mussolini. By contrast, Obama was apparently successful as President of the Harvard Law Review, but was a failure at his only latter significant executive position, Chairman of the Board of the Chicago Annenberg Challenge, which attempted unsuccessfully to improve education in selected Chicago schools.

However, President Eisenhower demonstrated beyond any doubt that there is no inherent contradiction between being a good President and being an avid golfer. Indeed, golf helps clear the mind, and hardly any sport is better at fostering humility in participants.  So unless President Obama’s critics are willing to state that President Eisenhower golfed too much, they should stop carping about President Obama’s golfing.

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Categories: Obama     207 Comments


Obama bans over 100,000 rifles

David Kopel • August 18, 2010 12:09 am

According to The Korea Times, the Obama administration has blocked efforts by the South Korean government to sell over a  hundred thousand surplus M1 Garand and Carbine rifles into the United States market. These self-loading were rifles introduced in 1926 and 1941. As rifles, they are especially well-suited to community defense in an emergency, as in the cases of community defense following Hurricane Katrina in 2005 and Hurricane Andrew in 1992. Along with AR-15 type rifles, the M1 rifles are the quintessential firearms of responsible citizenship, precisely the type of firearms which civic responsibility organizations such as the Appleseed Project teach people how to use.  

According to a South Korean official, “The U.S. insisted that imports of the aging rifles could cause problems such as firearm accidents. It was also worried the weapons could be smuggled to terrorists, gangs or other people with bad intentions.”

Regarding the second objection, any firearm lawfully imported into the United States would eventually be sold by a Federal Firearm Licensee who, pursuant to the background check system imposed by Congress (and endorsed by the NRA) would have to contact federal or state law enforcement to verify that the gun buyer is not prohibited from possessing firearms. Accordingly, the risk that the South Korean surplus guns might fall into the hands of gangsters or other bad people is exactly the same as with the sale of any other retail firearm in the United States. Notably, neither the M1 Garand nor the M1 carbine are concealable, and the M1 Garand is long, heavy, and bulky. Accordingly, the criminal utility of such guns is relatively low.

The second Obama administration objection is accidents. But in fact, increasing gun density in the United States has been associated with steeply declining rates of gun accidents. In 1948 there were .36 guns per person. (That is, about one gun for every three Americans.) By 2004, there was nearly one gun for every American. In 1948, there were 1.6 fatal gun accidents per 100,000 persons. By 2004, the rate had fallen by 86%, so that there were .22 fatal accidents per 100,000 persons. (For underlying data, see Appendix B of my amicus brief in Heller.)

Legally, it is indisputable that the guns are importable. Being over 50 years old, the rifles are automatically “Curios and Relics” according to federal law. 27 CFR section 478.11. Accordingly, they are by statutory definition importable. 18 USC section 925 (e)(1). Notwithstanding the law, the Obama administration has the ability to pressure the South Korean government to block the sale of the guns.

President Obama was elected on the promise that he supported individual Second Amendment rights. His administration’s thwarting of the import of these American-made rifles is not consistent with that promise.

UPDATE: I’ll be discussing this issue tonight at 11:20 p.m., Eastern Time, on NRA News. (Available live on the web, or via Sirius/XM channel 144, and also archived on the web for the following week.) The discussion will take into account the helpful contributions of some of the commenters, who have pointed out that the rifles were part of a lend-lease program, which means that the South Korean government is contractually barred from transferring the rifles without U.S. permission. As some other commenters point out, the win-win solution would be to resell the rifles via the Civilian Marksmanship Program, with the U.S. and South Korean governments agreeing to share the revenue. Categories: Guns     280 Comments


ACORN decision explained

David Kopel • August 13, 2010 5:16 pm

The Bill of Attainder clause was among the topics of my Advanced Constitutional Law class last semester, so while I am not an expert on the clause, I’ll try to provide some guidance.

First, there are few Supreme Court cases on the clause. Second, Bill of Attainder controversies in the United States never involve the classic bills of attainder that were well-known to the Founders–namely a parliamentary vote that someone be executed for treason or some other crime. Accordingly, for Bill of Attainder law in the United States, the ratio of settled law to gray zones is lower than for many other topics of constitutional law. In my view, the legal analysis from the District Court (ruling for ACORN) and from the Second Circuit (ruling against ACORN) are both plausibly based in precedent.  The Second Circuit examined matters of law de novo, so District Court’s legal analysis was entitled to no deference.

Here are the key points of the Second Circuit decision:

ACORN has standing to sue all the defendants. Even if ACORN has no interest in applying for Department of Defense grants, the fact that the DoD statute specifically forbids grants to ACORN causes a reputational injury to ACORN.

Whether something is a Bill of Attainder depends on a three-part test: (1) “specification of the affected persons,” (2) “punishment,” and (3) “lack of a judicial trial.”

The government conceded on items (1) and (3). Accordingly the question is whether the federal funding cut-off constitutes “punishment.” Here again there is a three-part test (verbatim from the Second Circuit):

(1) whether the challenged statute falls within the historical meaning of legislative punishment (historical test of punishment);

(2) whether the statute, “viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative purposes” (functional test of punishment); and

(3) whether the legislative record “evinces a [legislative] intent to punish” (motivational test of punishment).

According to the Second Circuit, withholding of federal grants, especially in regards to a corporation rather than an individual, is not a traditional form of punishment, so item (1) is not satisfied.

The government passed item (2) of the test, because there was an eminently plausible non-punitive purposes: namely to efficiently manage federal funds by not giving taxpayer dollars to an organization which by its own admissions had extensive problems with accurate accounting and proper financial management, and which has an admitted record of embezzlement and criminal convictions of employees. 

As for item (3), the Second Circuit agreed that there were some floor statements by Congresspersons indicating an intent to punish ACORN for alleged crimes; “however, here, the statements by a handful of legislators are insufficient to establish — by themselves — the clearest proof of punitive intent necessary for a bill of attainder.”

The three-part punishment test examines all three factors together. Accordingly, even if (3) were a close call, the government was so clearly the winner on (1) and (2), according the Second Circuit, that the government prevailed.

My editorial comment: Long before Andrew Breitbart broadcast the hooker tapes, the record of ACORN’s shady financial practices was so extensive, in my view, that Congress should have cut off all funding. In retrospect, some of the ACORN employees in the Breitbart tapes were unfairly maligned, because they contacted law enforcement shortly after the pretend pimp and prostitute departed. The Shirley Sherrod episode makes it very likely that any future videotape released by Breitbart will be viewed with cautious skepticism by much of the public, and there will not a be a rush to judgment.

While the Obama-Holder Department of Justice has been appropriately criticized for political favoritism in some cases (such as the New Black Panthers voter intimidation), in the ACORN case the DOJ played it straight, and followed its legal duty to vigorously defend the federal laws. The Obama-Holder DOJ deserves praise for its solid performance in the ACORN case.

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Categories: Constitutional Law     58 Comments


The Individual Health Care Mandate and Enumerated Powers — Event Audio

David Kopel • August 7, 2010 6:07 pm

The final event at the annual meeting of the Southeastern Association of Law Schools was a Federalist Society panel on the constitutionality of the centralized health control law. Participants were Randy Barnett (Georgetown, VC), Jack Balkin (Yale),  Gillian Metzger (Columbia), and me (Denver, VC). The moderator was  Bradley A. Smith (Capital). Available here. The recording is 93 minutes, although the event itself ran a little longer. While the focus was on the two state suits (Virginia, and the 20-state coalition), we also discussed some of the additional issues raised by the five other suits, such as due process rights to medical privacy and decision-making. Categories: Constitutional Law, Federalism, Health Care, Necessary and Proper, Taxing and Spending Clause, Tenth Amendment     28 Comments


Florida’s brief in health control lawsuit

David Kopel • August 6, 2010 5:31 pm

The brief of Florida and 19 other states, challenging the constitutional of the new health control law, was just filed today. It is a response to the DOJ’s motion to dismiss. Categories: Constitutional Law, Health Care     40 Comments


My Senate briefing on Kagan and the McDonald Case

David Kopel • August 5, 2010 3:20 pm

It was delivered in late June to the Second Amendment Task Force, a group of Republican Senate aides. (Unfortunately, the Senate’s protocols of partisanship prevent organizations like this from having aides from both parties.) My presentation is here (22 minutes). The presentation by Hans Von Spakovsky, Senior Research Fellow at The Heritage Foundation, is here. And Stephen Halbrook’s presentation is here. Categories: Constitutional Law, Guns, Kagan Nomination, McDonald v. City of Chicago     1


Latin Translation bleg

David Kopel • July 31, 2010 5:36 pm

Would someone like to do a Latin to English translation of Leonardo Bruni’s “De Militia”? It’s a 20 page essay from mid-15th century Florence, extolling the militia as the best defense of a free city-state. I can send you the original Latin text, which has been cleaned up so it’s in easily-read printed format, rather than the specialized medieval Latin script. This would be a useful addition to modern knowledge of the Renaissance’s militia philosophy. Currently, the only extended English translations of Italian Renaissance writings on the militia are texts by Machiavelli.

The translation will be published on my website, and an excerpt will appear in a forthcoming book. (I post an announcement about that book in a few weeks.) Of course you’ll receive formal credit for the translation, thus garnering fame and honor, if not fortune.

If you’re possibly interested, but don’t want do to all 20 pages, then it might be possible to pick the shorter passage for the book, and just translate that. However, you would still have to read the whole essay, so we could work together to pick the best excerpt.

Please contact me via the e-mail address supplied on the lower right-hand column of my website.      32 Comments


Post-Human Humanitarian Law: The Law Of War In The Age Of Robotic Weapons

David Kopel • July 31, 2010 3:42 pm

This interesting essay, by Vik Kanwar of Jindal Global Law School (India), reviews four new books that examine how the laws of warfare may or should change in response to the development of autonomous weapons a/k/a “warbots.” Categories: International Human Rights Law, Robotics     8 Comments


Human Events’ ridiculous “Obama the Muslim” article

David Kopel • July 29, 2010 2:58 pm Edit

Ronald Reagan once said that the conservative D.C. weekly Human Events was his favorite newspaper. And with good reason. Back in the 1970s and 1980s, there were few significant alternatives to the then-hegemonic MSM. Along with National Review, which was Reagan’s favorite magazine, Human Events was an essential source for stories that the MSM refused to cover, and for perspectives that the MSM shut out or marginalized. Unfortunately, a recent article in Human Events falls very far below the solid journalism standards which helped Human Events earn the respect of Reagan and so many others.

Obama The Muslim,” by  Major Gen. Jerry Curry is an article not worthy of a fifth-rate blog, let alone a serious newspaper. The latter two-thirds of the article consists of criticisms of Obama’s policies on Israel and on Arizona border security. I generally agree with those criticisms, but they provide not a shred of evidence that Obama is a Muslim. Former President Jimmy Carter is extremely hostile to Israel, and he is obviously not a Muslim. U.S. Rep. Luis Gutierrez (D-Ill.) is extremely hostile to border security, and he is not a Muslim. 

So let’s consider the evidence that Curry deploys in the first third of the article:

“President Obama says there is nothing more beautiful than the Muslim call to prayer in the evening.” “Obama’s father and step-father were Muslims and he spent his childhood living in a Muslim country where his school enrollment records say his religion is Islam.”

–All approximately but not precisely true. Four years of his childhood in Indonesia, plus a school record there. The actual prayer call quote is “one of the prettiest sounds on Earth at sunset,” not “nothing more beautiful.” This is a starting point for Curry’s case, but in itself, not even close to proof that Obama is currently a Muslim.

“He says that the United States was not founded as a Christian nation.”

–The same position was taken by the United States Senate in 1797 when ratifying the Treaty of Tripoli, and by President John Adams in signing the Treaty. Neither President Adams nor any of the 1797 U.S. Senators were Muslims.  Article 11 of the Treaty stated:

As the government of the United States of America is not in any sense founded on the Christian Religion,-as it has in itself no character of enmity against the laws, religion or tranquility of Musselmen,-and as the said States never have entered into any war or act of hostility against any Mehomitan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries.

“As President of the United States he genuflects to the Muslim King of Saudi Arabia but not the Christian Queen of England. He thumbs his nose at America’s friends and bows to its enemies.”

–I agree that Obama is deferential and obsequious to American enemies such a Hugo Chavez and the Iranian tyrants, and that he has been the most anti-British President of the United States in well over a century, and that he is seriously harming American relations with Poland, the Czech Republic, France, and other allies. But none of that is evidence that he’s a Muslim.

As for the Saudi king: Obama did not “genuflect.” To genuflect, in a literal sense, is to bring at least one knee to the ground, as a sign of respect. Obama did not do that. He gave the Saudi king a deep bow from the waist. I thought this was a disgusting gesture for an American President, but it’s not genuflection. (“Genuflect” can also be used in a looser sense, as behaving in a servile manner. In the article, however, Curry is plainly talking about literal physical actions.)

However, Obama bowed even lower to the Emperor and Empress of Japan. That’s not evidence that Obama is a closet Shinto.

As Curry accurately states, Obama gave only the mildest quasi-bow to Queen Elizabeth II. In light of what 1776 was all about, patriotic Americans should not criticize the American President for insufficient bowing to the British monarch. One can infer from Obama’s bowing patterns that he is anti-British, and one can see that in Japan and Saudi Arabia, he went out of his way to make gestures which made himself and our nation look weak and obsequious. The bowing is evidence that he’s a poor President, but not that he’s a closet Muslim.

According to Curry, “My mother believed in ‘common sense’ testing. She said if it looks like a duck, quacks like a duck, waddles like a duck and acts like a duck; it’s a duck....In short, Obama quacks like a Muslim, waddles like a Muslim and acts like a Muslim, so is he a Muslim? My mother would say, ‘Yes! He’s a Muslim through and through.’”

I’ll give Mrs. Curry more credit than that. The looks/talks/waddles test for duck identification involves three characteristics are shared by ducks and by no other animals. Mr. Curry, however, listed only characteristics which are common to some Muslims and many non-Muslims: thinks America is not a Christian nation, dislikes the British, acts obsequious around some non-British royals, is anti-Israel, is weak on border security, tries to ingratiate himself with tyrants. Curry might as well have written, “It has two eyes, lives near water, and eats fish.” Sure, it might be a duck, but it also might be a lots of other things. Such as a law school lecturer who agrees with most of the beliefs of the far-left Christian church he attended for twenty years.

Curry’s final item of alleged proof: “Growing up as a Muslim, Obama must have learned that according to the Qur’an it is acceptable to lie, deceive and live by a double standard provided in so doing one advances Islamic goals. Muslims only pretend to trust and be friends with non-Muslims; in the deepest of their Muslim hearts they have been taught that all non-Muslims are infidels.”

–Generally speaking, “must have” conjectures are not evidence of anything. For the sake of argument, let’s temporarily accept the claim that Islamic teaching sanctions lying in certain cases. Even so, there is no evidence that “Obama must have learned” this particular alleged teaching. His Muslim education did not continue past an early age. It might be plausible to presume that he was taught some elementary tenets of Islam (e.g., there is only one God; God spoke to mankind through a series of prophets, culminating in Muhammed; the Qur’an is scripture.) There is simply no evidence that the “lying to infidels is OK” theory of Islam is universally taught in Muslim education for young children, or, for that matter, to all persons who progress through a full course of Muslim religious instruction. That some Muslims teach the acceptability of lying, and that some Muslim scholars endorse this approach, does not prove that Obama “must have” been taught this particular theory.

It would usually be a sign of bad character for any elected official to proclaim his adherence to one religion while secretly adhering to a very different religion. However, Curry’s strongly-stated conclusion is not even remotely supported by the feeble and poorly-researched evidence which he cobbles together. The article should never have been published by Human Events. Of course even eminent publications such as The Atlantic can have a writer who wallows in malicious speculation based on extremely weak and poorly-considered evidence. 

Jerry Curry’s article is not proof that Human Events never produces good articles, nor is Andrew Sullivan’s Trig Trutherism proof that The Atlantic does not publish good articles. However, because reading time is finite, when I choose to read an edited periodical, I try to choose periodicals for which I have confidence that the editors have done a good job in selecting reliable, credible columnists. Accordingly, Human Events’ retention of Curry as a columnist, like The Atlantic’s  retention of Sullivan, often make me choose to prioritize reading other periodicals instead. Categories: Obama, Religion     235 Comments


Understanding Inception

David Kopel • July 27, 2010 4:38 pm Edit

Inception is a great movie. Perhaps one of the greatest of all time. You should see it without reading reviews, or learning anything about the film beforehand. For those of you who have seen it, some thoughts about various meanings are below the fold.

First some resources: Six Interpretations and Five Plot Holes, by Peter Hall. Cinema Blend has a helpful FAQ and glossary. TechEBlog provides a useful graphic of the dream levels. To keep things straight, let’s adopt their terminology of level 1 (“reality”; takes place in Paris, Mombassa, the airplane cabin), level 2 (dream of the kidnapping of Fischer), level 3 (hotel dream), level 4 (ice world dream), and level 5 (“limbo,” perhaps; Cobb & Mal’s beach city, and Saito’s oriental mansion).

As the above sources details, there are some plot holes which seems difficult to resolve. There are two meta-explanations: One, the movie-makers made mistakes. Two, the incongruities are clues to what’s really happening. Namely that everything in the movie is a dream.

The all-dream theory is well-developed in this essay by Devin Faraci of C.H.U.D., comparing Inception to Fellini’s 8 ½, a film about making a film. It’s not at all a cop-out, in the sense of Fifties-era Superman comics in which Superman marries Lois, but then the whole episode turns out to be Lois’s dream.  In support of the all-dream theory, Faraci points out that the chase scene in Mombassa (which is supposed to be at level 1, Reality), ends with Cobb being trapped between two walls that are closing in (classic anxiety dream), and then rescued by Saito, who just happens to pull up in a car at the right moment. Further thoughts on Inception as a movie about movie-making here, by Maria Bustillos. 

When you think about it, the whole Mombassa chase sequence (which reminded me of the chase sequence at the beginning of Disney’s Aladdin) is quite unrealistic, although it’s the kind of chase sequence we accept as “real” in movies. And there’s plenty of other stuff on Reality level 1 that, on second thought, doesn’t seem very plausible in real life. For example, Saito buys a transpacific airline in a few days. Really? Buying an international airline usually takes longer than that.

I differ from Faraci in his conclusion that the final scene proves that Cobb is still dreaming. The ending is deliberately ambiguous. We don’t know if the top will fall. While it’s true that Cobb’s children are playing in the same place, and in the same posture as when Cobb last saw them, and wearing the same clothes, they are wearing different shoes, and they are played by different actors. Further, Cobb wears a wedding ring when dreaming, but not when in level 1, and at the end of the movie, he has no wedding ring. However, none of these facts are decisive proof that level 1 itself is not a dream. They’re just proof that the movie ends on level 1.

Now if the whole film is a dream, one might say that Cobb has just decided to stay in dreamspace, hanging out with his children and father. The story arc is about Cobb progressing from being tortured by doubts about what is real, to being content with being happy and not worrying about reality. One might theorize that Mal was correct in discerning that level 1 is still a dream; she escaped, and the movie concludes with Cobb achieving peace about his decision to stay behind in dreamworld level 1.

Fair enough. But here’s an alternate understanding. Cobb, the guy whose dream we’re watching, is not in true Reality (level 0) a professional dreamer who can get into other people’s dreams. He’s just a regular guy having a very elaborate dream. And it happens to be a dream in which Cobb learns some important lessons about himself, and Reality. When Fischer wakes up on the plane, Fischer knows that there was not really a pinwheel in his father’s bedside safe. But finding the dream pinwheel has helped Fischer grow emotionally, and make progress in his own real life. There is an obvious parallel between Fischer’s cathartic confrontation with his personal demons on level 4 (ice world) and Cobb’s confrontations on level 5 (getting rid of Mal, and—with Saito—remembering to come back to Reality). A more subtle point is that Cobb is continuing this process of discovery, of personal reintegration, when he returns to level 1; there, the barriers that have kept him apart from his children disappear, and he reintegrates into his family. When he wakes up, eventually, into level 0, he will have all the insights he gained from dream levels 1–5.

Maybe real-life Cobb has been feeling bad because he wife walked out on him. Or maybe his real-life anxieties have nothing to do with a spouse. Someone named “Mal” can represent all kinds of pernicious influences or obstacles. Is Ariadne (who in Greek mythology gave Theseus the string which he used to escape the Minotaur’s maze, and who in Inception creates the maze for Fischer which will lead him out of his own mental prison) a projection of the part of Cobb’s personality that he needs to help him escape from Mal? Is she his real-life psychotherapist?

The real answer is that we don’t know the meta-story around the movie, but we do know that the movie invites us into the creative process of creating the meta-story, and there is not necessarily only one true answer.

One can reduce Inception to a didactic 1969-style moral like “There’s no reality. Just whatever makes you happy.” And it’s also true that no-one can fully answer the movie’s “Am I dreaming?” question, namely “How did I get here?” You may have scattered memories from when you were a baby, but those memories could just indicate a very long dream. However, blithe unconcern for reality vs. unreality is not entirely consistent with Cobb’s realization that Mal and he needed to escape from their fifty-year excursion in level 5.

More broadly, Inception plants many diverse ideas in the audience—multiple ideas for every person who sees it. Like the characters in the airplane sequence, when we watch the movie we experience a shared conscious dream. Like almost all performance artworks, Inception is a deception; it is an unreal artistic construct which we choose to believe for a while, in order to find a deeper understanding of reality.

Inception is not only about dreaming, but also an optimistic invitation to awaken to the creative possibilities of sharing imaginations—as some people do when participating in the creation of a film, and as we all can do with our diverse talents when we share our dreams with others, and they share ours. Categories: Self-indulgent Academic Rumination, Space Law    


The UN’s “Programme of Action” on Small Arms

David Kopel • July 20, 2010 4:04 pm Edit

Here’s a short new paper, written by the Heritage Foundation’s Theodore Bromund and me: As the U.N.’s Arms Trade Treaty Process Begins, U.N.’s “Programme of Action” on Small Arms Shows Its Dangers. Categories: Guns, International Law     12 Comments


“Of Constitutional Decapitation and Healthcare”

David Kopel • July 20, 2010 3:04 am Edit

This new article in Tax Notes, by Professor Steven J. Willis and recent graduate Nakku Chung, both of the University of Florida’s Fredric G. Levin College of Law, explains why the non-insurance penalty provision of the new federal health control law is unconstitutional, at least if it is a tax.

In brief, the argument is: The tax is not an excise tax, and it could not be a constitutional excise tax because it is not uniform. The tax is not an income tax, and it could not be a constitutional income tax, because it is not a tax on derived income. Accordingly, the tax must be a capitation or direct tax. Article I, section 9 provides: “No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” The tax is not apportioned, and therefore is contrary to Article I, section 9.

As the introduction indicates, I provided some comments to the authors on a pre-publication draft of the article. Categories: Health Care, Taxes     93 Comments


We win the Emmy!

David Kopel • July 20, 2010 2:13 am Edit

The 1959 “time machine” episode of Colorado Inside-Out won the 2010 award (for 2009 programs) for best Interview/Discussion Program/Special from the Heartland Chapter of the National Academy of Television Arts and Sciences.      3 Comments


What if I had been a law professor in 1935?

David Kopel • July 9, 2010 4:43 pm Edit

While this is certainly a question that no-one is asking, there is an answer. The latest episode of Colorado Inside-Out, from Colorado Public Television channel 12 in Denver, is our annual “time machine” program. This year’s show is set in 1935. I’m Westminster Law School bankruptcy professor Israel Ben Koplowitz. Patricia Calhoun (real-life publisher of the weekly Westword newspaper) plays Denver Post heiress Helen Bonfils. Kevin Flynn, of the late Rocky Mountain News, plays the great Rocky Mountain News reporter Robert Chase. Dani Newsum, like me, plays a fictional predecessor of her present self. We discuss the Dust Bowl, the New Deal, Colorado’s attempt to limit immigration from Oklahoma and Mexico, the Italian invasion of Ethiopia, and other topics.

Sound engineer Larry Patchett did a fantastic job. The show is recorded with authentic microphones from the thirties, and those of you will acute hearing will notice the difference. Categories: History     No Comments


DOMA case and the Tenth Amendment

David Kopel • July 9, 2010 12:49 am Edit

Jack Balkin has an interesting post on today’s two Defense of Marriage Act cases from the federal District of Massachusetts, Gill v. Office of Personnel Management, and Massachusetts v. HHS. The latter case found DOMA unconstitutional, as applied to Massachusetts, because DOMA violates the Tenth Amendment by infringing the state’s traditional core sovereign power of defining lawful marriages. The most important parts of the Tenth Amendment analysis are at pages 28–36 of the opinion. Balkin is concerned because the Judge Tauro’s “Tenth Amendment arguments prove entirely too much. As much as liberals might applaud the result, they should be aware that the logic of his arguments, taken seriously, would undermine the constitutionality of wide swaths of federal regulatory programs and seriously constrict federal regulatory power.” In particular:

The modern state depends heavily on the federal government’s taxing and spending powers for many of the benefits that citizens hold dear, including Medicare, Medicaid, Social Security, and the newly passed provisions of the Affordable Care Act. These programs have regulatory effects on state family policies just as much as DOMA does. If DOMA’s direct interference with state prerogatives is beyond federal power, then perhaps any or all of these programs are vulnerable– and unconstitutional– to the extent they interfere with state policies regarding family formation as well. Put differently, Judge Tauro has offered a road map to attack a wide range of federal welfare programs, including health care reform. No matter how much they might like the result in this particular case, this is not a road that liberals want to travel. 

Well, as my former boss, Colorado Attorney General Duane Woodard once put it, “There’s no liberal constitution or conservative constitution. It’s just the Constitution.” The Tenth Amendment is one of the roads that all conscientious American judges must travel, regardless of whether they personally like all of the places its leads. 

Balkin makes one error in his criticism of Judge Tauro’s Tenth Amendment analysis of congressional interference with traditional state government functions:

(In one of the wildest parts of the Massachusetts v. HHS opinion, Judge Tauro resurrects Chief Justice Rehnquist’s “traditional governmental functions” approach from National League of Cities v. Usery, which was specifically overturned in 1985 in Garcia v. San Antonio Metropolitan Transportation Company on the grounds that it was completely unworkable. The existence of Supreme Court authority, however, does not stop Judge Tauro; he simply notes that some First Circuit precedents predating Garcia are still on the books, and who knows, maybe the Supreme Court will change its mind!)

 That’s not precisely accurate. Judge Tauro structured his opinion around the 1997 First Circuit case U.S. v. Bongiorno, which post-dates (not pre-dates) Garcia. According to Bongiorno:

a Tenth Amendment attack on a federal statute cannot succeed without three ingredients: (1) the statute must regulate the States as States, (2) it must concern attributes of state sovereignty, and (3) it must be of such a nature that compliance with it would impair a state’s ability to structure integral operations in areas of  traditional governmental functions.

The Bongiorno test comes directly from the 1981 Supreme Court case Hodel v. Virginia Surface Mining & Reclam. Ass’n, which is still good law. Judge Tauro plausibly found that DOMA had each of the three Bongiorno ingredients. Balkin is right to point out that the new federal health control law could be found unconstitutional by any court which applies the Tenth Amendment as seriously as did Judge Tauro. Categories: Constitutional Law, Federalism, Gay Marriage, Health Care, Tenth Amendment    


Louis Brandeis comments on the right of self-defense

David Kopel • July 8, 2010 7:45 pm Edit

From Leonard Baker,  Brandeis and Frankfurter: A Dual Biography (1984), p. 341. On June 18, 1930, Justice Brandeis (who was the best-known Zionist in the United States) met with the U.K.‘s Ambassador to the United States, Sir Ronald Lindsay:

Brandeis told Sir Ronald “that it was wholly contrary to any conception of civil rights with which I was familiar, through study of the Anglo-Saxon institutions and the American experience, that when a government found itself unable to afford protection, citizens should not be permitted to protect themselves.” The English did not protect the Jews, nor allow the Jews to arm themselves against the Arab threat.

Or as Brandeis also said, “We shall have lost something vital and beyond price on the day when the state denies us the right to resort to force...” Alfred Lief, The Brandeis Guide to the Modern World (1941), p. 212. Categories: Guns  


Suit against the new Chicago anti-gun laws

David Kopel • July 6, 2010 7:52 pm

Available here. See paragraphs 19–28 for description of which parts of Chicago’s legal regime are being challenged. The National Rifle Association is helping with the funding of the case, but is not a party. Lead attorney is Charles Cooper, so it is certain that the presentation of the plaintiffs’ arguments will be outstanding. Categories: Guns, McDonald v. City of Chicago     83 Comments


The Battle Cry of Freedom

David Kopel • July 6, 2010 4:41 pm

A wonderful song at all times, and especially around Independence Day, especially this year.

“The Battle Cry of Freedom” was written during the Civil War, and sung by Union troops going into battle. This video pays tribute to Ulysses Grant, the General most responsible for winning the war for the Union. Elected President of the U.S. in 1868 and re-elected in 1872, U.S. Grant vigorously enforced federal civil rights laws to protect the freedmen. Not until Lyndon Johnson in 1963–69 would an American President work with such determination for civil rights. After leaving the White House, Grant served as the 8th President of the National Rifle Association.

The National Rifle Association’s brief in McDonald v. Chicago quoted President Grant:

Subsequently, President Grant issued a report on enforcement of the Civil Rights Act which noted that parts of the South were under the sway of the Klan, which sought “to deprive colored citizens of the right to bear arms,” and to reduce them “to a condition closely akin to that of slavery * * *.” Ex. Doc. No. 268, 42nd Cong., 2d Sess., 2 (1872).

The brief  likewise quoted a report from General Grant about the conditions in Mississippi which had helped convince Congress of the necessity of the Fourteenth Amendment, to make the Second Amendment applicable to all state and local governments:

“The statute prohibiting the colored people from bearing arms, without a special license, is unjust, oppressive, and unconstitutional.” Cong. Globe, 39th Cong., 2d Sess., 33 (1866).

McDonald v. Chicago brings the United States an important step closer to accomplishing a central purpose of the Fourteenth Amendment: making all of the Bill of Rights applicable to every state and local government in America. It was a national tragedy that the Supreme Court essentially nullified much of the Fourteenth Amendment for so long. It is a national blessing that America’s many civil rights organizations were able, over the long term, to revitalize the Fourteenth Amendment, and change the Supreme Court from a nullifier of the Amendment into an enforcer of the Amendment.

Subsequently, President Grant issued a report on enforcement of the Civil Rights Act which noted that parts of the South were under the sway of the Klan, which sought “to deprive colored citizens of the right to bear arms,” and to reduce them “to a condition closely akin to that of slavery * * *.” Ex. Doc. No. 268, 42nd Cong., 2d Sess., 2 (1872). Categories: Fourteenth Amendment, Guns, McDonald v. City of Chicago     24 Comments


“If they are endowed with inalienable rights, that is final.”

David Kopel • July 4, 2010 1:00 am

Some excerpts from President Calvin Coolidge’s magnificent speech on the 150th anniversary of the Declaration of Independence:

...Amid all the clash of conflicting interests, amid all the welter of partisan politics, every American can turn for solace and consolation to the Declaration of independence and the Constitution of the United States with the assurance and confidence that those two great charters of freedom and justice remain firm and unshaken. Whatever perils appear, whatever dangers threaten, the Nation remains secure in the knowledge that the ultimate application of the law of the land will provide an adequate defense and protection...

The American Revolution represented the informed and mature convictions of a great mass of independent, liberty-loving, God-fearing people who knew their rights, and possessed the courage to dare to maintain them....

It was the fact that our Declaration of Independence containing these immortal truths was the political action of a duly authorized and constituted representative public body in its sovereign capacity, supported by the force of general opinion and by the armies of Washington already in the field, which makes it the most important civil document in the world. It was not only the principles declared, but the fact that therewith a new nation was born which was to be founded upon those principles and which from that time forth in its development has actually maintained those principles, that makes this pronouncement an incomparable event in the history of government. It was an assertion that a people had arisen determined to make every necessary sacrifice for the support of these truths and by their practical application bring the War of Independence to a successful conclusion and adopt the Constitution of the United States with all that it has meant to civilization.

The idea that the people have a right to choose their own rulers was not new in political history. It was the foundation of every popular attempt to depose an undesirable king. This right was set out with a good deal of detail by the Dutch when as early as July 26, 1581, they declared their independence of Philip of Spain. In their long struggle with the Stuarts the British people asserted the same principles, which finally culminated in the Bill of Rights deposing the last of that house and placing William and Mary on the throne. In each of these cases sovereignty through divine right was displaced by sovereignty through the consent of the people. Running through the same documents, though expressed in different terms, is the clear inference of inalienable rights. But we should search these charters in vain for an assertion of the doctrine of equality. This principle had not before appeared as an official political declaration of any nation. It was profoundly revolutionary. It is one of the corner stones of American institutions.

....A very positive echo of what the Dutch had done in 1581, and what the English were preparing to do, appears in the assertion of the Rev. Thomas Hooker of Connecticut as early as 1638, when he said in a sermon before the General Court that–

“The foundation of authority is laid in the free consent of the people”

“The choice of public magistrates belongs unto the people by God’s own allowance.”

This doctrine found wide acceptance among the nonconformist clergy who later made up the Congregational Church....

In its main features the Declaration of Independence is a great spiritual document. It is a declaration not of material but of spiritual conceptions. Equality, liberty, popular sovereignty, the rights of man these are not elements which we can see and touch. They are ideals. They have their source and their roots in the religious convictions. They belong to the unseen world. Unless the faith of the American people in these religious convictions is to endure, the principles of our Declaration will perish. We can not continue to enjoy the result if we neglect and abandon the cause....

About the Declaration there is a finality that is exceedingly restful. It is often asserted that the world has made a great deal of progress since 1776, that we have had new thoughts and new experiences which have given us a great advance over the people of that day, and that we may therefore very well discard their conclusions for something more modern. But that reasoning can not be applied to this great charter. If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny their truth or their soundness, the only direction in which he can proceed historically is not forward, but backward toward the time when there was no equality, no rights of the individual, no rule of the people. Those who wish to proceed in that direction can not lay claim to progress. They are reactionary. Their ideas are not more modern, but more ancient, than those of the Revolutionary fathers.

 
Categories: Uncategorized    

My oral testimony on the Kagan nomination

David Kopel • July 1, 2010 11:40 pm

Here, starting at 41:09. The next witnesses, William Olson, also testified on Second Amendment issues. After that, the three Senators at the hearing (Schumer, Sessions, and Hatch) asked questions to some of the witnesses, including Olson and me.

Categories: Guns, Kagan Nomination     105 Comments

 

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