Friday, October 09, 2015
Picking our free speech stories and heroes
Interesting discussion by James Wimberley (RBC) about Giordano Bruno, a Dominican friar burned for heresy in 1600. Bruno espoused all manner of contrarian ideas--often without proof--including that the stars floated in infinite space surrounded by their own planets and life. Bruno has been somewhat lost to history, overtaken by Galileo, who was convicted by the Inquisition 30 years later, as the great story to illustrate the importance of epistemological humility and of defending ideas that run contrary to those of the governing authorities. (The first episode of the Cosmos reboot, with Neil DeGrasse Tyson, told Bruno's story).
Wimberley argues that "Galileo is far too easy a test case for freedom of speech" and that the real challenge is a case like Bruno. Galileo was "demonstrably right" on a matter of scientific fact, meaning the censors were demonstrably wrong. Bruno was a "brilliant crank" who happened to be right about one thing, albeit without actual proof (Wimberley compares him to the people we regularly meet on the internet). Thus, the argument for defending Bruno's speech is different than for defending Galileo's--we defend Bruno "not on the grounds that he was right by chance on one thing, but simply that he was entitled to express opinions that were his own and not those of approved authorities." Moreover, Galileo suffered a forced and formal abjuration (Eppur si muove?) and a "fairly open" house arrest (among his many guests over the years was John Milton, who discussed the meeting in Areopagitica). That is nothing compared to being executed for the ideas one espoused.
Thursday, October 08, 2015
It's going to get pricey
Michigan has agreed to pay $1.9 million in attorneys fees to the plaintiffs who successfully challenged the state's same-sex marriage ban. That is in the same ballpark as Wisconsin paying $ 1.055 million in fees (that case only went to the court of appeals, not to SCOTUS).
Kim Davis must know that her stunt is going to get very expensive very quickly.
Rethinking Kitty Genovese
The New Yorker reviews a new documentary that screened this week at the New York Film Festival--a reexamination of the murder of Kitty Genovese, produced by and starring Bill Genovese, one of Kitty's younger brothers. The film attempts to reinvestigate the murder and the response to it. Similarly, a 2014 New Yorker story explored how the media created the "bystander apathy" narrative and how it almost immediately took hold, to the point that it actually affected the State's decisions in prosecuting the case.
That narrative remains sticky. In my 1L Crim Law class, we read an early New York Times story about the murder (The Times and editor A.M. Rosenthal was the great engine of the apathy narrative) for a discussion of the law/morality divide and when liability should attach to inaction. At a Torah study a few weeks ago, a participant referred to this story, and its common narrative, to illustrate some principle about how the Torah commands us to treat people.
Never mind that the best understanding of the story (as discussed in both of the New Yorker pieces and in the film) is that several neighbors did try to help. This includes at least two who called the police (police records show one call and that the response to that call was that the police were aware of the attack, suggesting at least one earlier call).
A few new themes emerge from the film and from the review.
Wednesday, October 07, 2015
EPA Required to Muscle Out Invasive Zebra Mussels - Can it Be Done?
This Monday as I was preparing to teach my Tuesday Biodiversity seminar, in which we were to discuss invasive species, the Second Circuit issued an important Clean Water Act opinion. For years the EPA had been avoiding the significant challenge of dealing with invasive species routinely dumped into our nation's waters by cargo ships. When the ships load and unload their cargo, it is necessary to balance the weight of the ship by filling or emptying massive tanks of water within the vessel. This water (called ballast water) is typically drawn into the tanks in one location and expelled in another, carrying along numerous stowaway species ready to invade new territory. This practice has introduced many microscopic pathogens, but the poster child is undoubtedly the zebra mussel, which has taken over the great lakes ecosystem. In addition to causing ecological harm, the zebra mussels have cost hundreds of millions of dollars to the companies whose industrial water pipes have been clogged by the Asian mussels.
The Clean Water Act makes it unlawful to discharge a pollutant into the nation's waters without a permit. The EPA has no discretion to exempt categories of discharges from this permitting requirement, as the DC Circuit held way back in NRDC v. Costle, 568 F.2d 1369 (D.C. Cir. 1977). More recently, in 2008, the Ninth Circuit struck down the EPA's attempt to exempt ballast water from the CWA requirements, in Northwest Environmental Advocates v. EPA, 537 F.3d 1006 (9th Cir. 2008), a case I had just happened to assign for this week's class. So, I was pleased in more ways than one to see the Second Circuit issue its opinion in NRDC v. EPA just 24 hours before our class met to discuss this very issue. Having failed in its attempt to exempt ballast water entirely from permitting requirements, EPA had generated a lenient Vessel General Permit, which the court this week struck down as a violation of the CWA. The permit failed to be strict enough both as to technological requirements for treating ballast water and as to limits on the invasive species discharged.
While exciting for environmentalists, this ruling will be quite challenging for the shipping industry. Many of the most cutting edge technologies for killing everything in ballast water tanks is easier to design into new ships than to add via retrofitting older ones. Of course, we have a very serious invasive species problem, so to address it, step one is obviously to stop introducing them. There is no question that this red light is incredibly valuable to the environment. What is less clear, though, is whether we can ever actually accomplish the underlying goal of such regulation, which would be to restore the ecosystem and stop the economic harm. In forcing the EPA to regulate ballast water, the Northwest Environmental Advocates Court noted that "[o]nce established, invasive species become almost impossible to remove," in part because they can become so successful absent their natural predators.
So this decision raises the important question of what's next. Assuming we can cut down on the continued delivery of invasive species into our waterways, will we maximize the value of that effort and sacrifice by also working to eradicate the massive population already present? Can we do this?
What We Are Really Worried About When We Worry About Climate Change
I'm not a big fan of "climate change." By that, I don't mean I think the science behind climate change is bad (it's not). And I don't mean that climate change is not important (it is). But as a water law and policy scholar, I feel like there is an expectation that my work reference, or tie back into, climate change. And I think that is backwards. Climate change is a bad framework within which to talk about sustainability challenges in general. When we worry about climate change, what we're generally worrying about is water. And "climate change" just fails to capture that worry in a way that motivates the public and policymakers. I think we would get more traction with the public and policymakers if we framed the problem around water rather than climate.
Podcast on Entry-Level Hiring Market
What Does Versatility on a Faculty Mean?
In the dictionary, the word versatility is sometimes defined as "capable of or adapted for turning easily from one to another of various tasks, fields of endeavor, etc." On a law faculty, we all know that some of our colleagues happen to be very versatile. And that some happen to be more versatile than others. For example, we have all heard a particular colleague described as "a great utility infielder." That phrase -- utility infielder -- is used to refer, I think, to a person who is able -- and, more importantly, willing -- to teach a wide range of different courses, courses that indeed may not relate well to one another. Or sometimes, the phrase means that someone is willing to pick up a course without much prior notice, and run with it.
Here is my question: What do we mean when we refer to a colleague a being versatile? This could mean, of course, that this person is willing to teach a wide range of courses, or perhaps has willingly taught a wide range in the past. For example, there are senior scholars out there who have spent their careers circling through a wide range of first-year courses as a service to their schools, not to mention many upper level courses too. Howard Katz at Duquesne has taught five out of the six standard first-year courses -- torts, contracts, criminal law, constitutional law, and property. This is in addition to other subjects that are of interest to him, like land use. Jeff Rachlinski at Cornell has taught administrative law, business organizations, contracts, behavioral law and economics, civil procedure, environmental law, international environmental law, law and psychology, sustainability, natural resources, psychology and the law, torts, and a few other subjects. That's an amazingly wide range. I have been asked to teach torts, contracts, and civil procedure - though I don't normally write in any of these fields. But does that mean I am versatile or spreading myself too thin? And what about senior scholars like Katz, Rachlinski, and others who have moved around the curriculum like this?
I submit that versatility in a colleague can also extend beyond teaching. There are some scholars who are versatile in their research and publication interests, and perhaps in the service obligations that they pursue as well. In law professor hiring, we seem to prefer specialists, but shouldn't the dean office value versatility just as much - or perhaps even more? I'm curious to know what others think. In the comments, I invite readers to tell us more about (a) how we should define versatility on a faculty, (b) what it is, exactly, that law schools should value about a person's versatility, and (c) the ways that versatility in colleagues, however defined, should be rewarded.
Examples would be helpful, of course.
Should the Umpqua shooter's mother be liable?
Chris Harper-Mercer was 26 years old when he killed 9 people last week. He was a troubled young man living at home, who should not have had access to guns. And yet he had access to 14 of them. http://www.nytimes.com/2015/10/06/us/mother-of-oregon-gunman-wrote-of-keeping-firearms.html?_r=0
Chris lived with his mother, Laurel Harper. Laurel bragged about keeping fully loaded magazines for her AR-15 and AK-47 semiautomatic rifles in easy access in her house. Laurel also knew that Chris had emotional problems. Should Laurel, and other parents of mass shooters, be held liable for the actions of their adult children?
Professor Shaundra Lewis, (Thurgood Marshall School of Law), asks this question in her timely piece, The Cost of Raising a Killer--Parental Liability for the Parents of Adult Mass Murderers, 61 Villanova L. Rev. 1 (forthcoming 2015). http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2669869 As she explains in her abstract:
[T]he shooter’s parents almost always knew their offspring were seriously mentally ill beforehand . . . Despite knowing her son was severely mentally unstable, Nancy [Lanza] left her son home unsupervised with unfettered access to her arsenal of weapons while she went on vacation. This provided her son with the perfect opportunity to make a practice run to Sandy Hook Elementary School, where he later used her firearms to shoot and kill kindergartners and first-graders.
Using Nancy Lanza’s case and other notorious mass shooting cases as examples, this article [explores] if, and under what circumstances, a parent can be held civilly liable for their adult child’s mass shooting pursuant to general common law negligence jurisprudence [particularly] parental negligence law. [It first] address[es] whether there can be parental liability for parents of adult mass shooters based upon a special relationship under current law. [Then it analyzes] negligence [doctrines] in general and its complexities, as well as explores whether a duty to protect or warn can be established in mass shooting cases. [Next it] examines whether the parents in the real-life examples referenced above breached a duty to protect or warn [and] whether those parents’ breaches caused the shooting victims’ injuries or deaths. [The Article] concludes that in some circumstances parents can, and should, be held liable for their misfeasance or nonfeasance that leads to their child’s mass killing. It further posits that the . . . possibility of parents being subjected to financial liability for their child’s mass shooting will not only incentivize parents to take more aggressive measures to keep firearms out of their mentally unstable child’s hands but to obtain the mental health assistance their child so desperately needs—measures that in the end will make everyone (including their child) safer. [The Article concludes with] advice to parents for dealing with significantly mentally ill, adult offspring residing in their home.
Although I agree that financial liability would incentive parents to limit access to guns, I wonder whether it might also encourage parents to cut ties with their adult children precisely when they need the most support. Nonetheless, Lewis’s article shines a light on the sadly recurring question of whether parents should be responsible for the preventable actions of their adult children.
I’m Andy Kim, Assistant Professor at Concordia University School of Law. My own research focuses on criminal law and empirical analysis of the law. I’ll be guest blogging for the month. Hope you enjoy!
Eugene Volokh doesn’t understand suicide (PAS, Part II)
In his blog yesterday, Volokh wrote:
“[I]f you really want to commit suicide (and there’s good reason to think that people who use a gun to try to commit suicide — as opposed to, say, pills — really do want to commit suicide) but can’t get a gun, it’s not hard to find alternate reliable means of killing yourself.”
First, few people “really want to commit suicide”---in the sense of having a strong, fixed desire to die. Most suicide attempters deliberate for mere minutes or hours. And the vast majority of survivors go on to die of something other than suicide. Presumably, Volokh would agree that people who jump from the Golden Gate Bridge also, in his terms, “really want to commit suicide” (given the lethality of this method), but one study of attempt survivors found that after a 26-year follow-up period 90% died of natural causes or were still alive. Suicide is generally impulsive. If someone has access to a gun, the impulse is almost always fatal. Even a short delay finding an “alternative reliable means” can make all the difference.
Volokh supports his quoted assertion with a 2004 report. Fair enough, but if he had updated his research, he might have discovered my co-authored article examining the impact of waiting periods and other purchase delays on suicide. Using state-level panel data for over two decades and controlling for a host of other variables, we find that purchase delays are associated with a significant reduction gun suicide with no evidence of substitution to non-gun suicide. And this is not just an isolated study. It has been well-established for many years that restricting access to lethal means is an effective way to reduce suicide (2006 JAMA review).
Tuesday, October 06, 2015
JOTWELL: Walker on Cyr on judicial appointments in Canada
The new Courts Law essay comes from Janet Walker (Osgoode Hall), reviewing Hugo Cyr, The Bungling of Justice Nadon's Appointment to the Supreme Court of Canada.
Covering a colleague's class, or The Substitute
This morning, for the first time since I began teaching fifteen years ago, I covered a colleague's class. This presented some interesting issues, both substantively and stylistically, as to how much the class should sound like me and how much it should sound like my colleague?
Substantively, it presented the challenge of getting up to speed on the content. While I teach the same subject, I do not teach the same cases and my overall approach to the material is very different. I teach certain concepts differently or with different emphasis and in a different way. So I know I did not (and could not) run the class with the same confidence in the questions I ask, the points I make, and (certainly) my responses to their questions. There also was the question of base knowledge to be expected from the students. I cover material in a different order than my colleague. So I know what the class already knows (or should know) by the time I reach this topic in my own class; I was less sure of what these guys knew.
Stylistically, one big question was whether to use my colleague's PowerPoint slides, since that is both what she wants to do and what the students expect. I chose not to; I would not know how to interact with them, so they would have been more of a distraction than a help. The students were great about it--probably about 1/4-1/3 volunteered at least once. But it was like being a substitute teacher--everyone not knowing quite what to do with me, what to expect from the class, or what they were going to learn. I tried to make the class "mine," to the extent that is possible with a group of students who signed up for a different style of class.
Fortunately, no one threw spit balls.
Supreme Court Fellows Program – Call for Applications
The Supreme Court Fellows Commission is accepting applications through November 6, 2015, for one-year fellowships to begin in August or September 2016. The Commission will select four talented individuals to engage in the work of the Supreme Court of the United States, the Administrative Office of the United States Courts, the Federal Judicial Center, or the United States Sentencing Commission. Fellows gain practical exposure to judicial administration, policy development, and education. In each of the four placements, the fellow will be expected to produce a publishable paper and will have unique access to federal judges and to officers and staff of the federal judiciary in connection with the research project.
The Commission is especially seeking applicants who are completing or have recently completed a judicial clerkship, and are interested in pursuing an academic career or a career in public service.
Fellows will receive compensation equivalent to the GS-12/1 grade and step of the government pay scale (currently $76,378) and will be eligible for health insurance and other benefits offered to employees of the federal judiciary. Appointments are full-time and based in Washington, D.C. A small group of finalists will be invited to interview with the Commission at the Supreme Court in February 2016, and finalists will be contacted on selection decisions within one to two weeks after interviews.
Monday, October 05, 2015
Hail Marriage and Farewell
I have uploaded my recent essay on Obergefell to SSRN here. A quick abstract:
This essay on the Obergefell decision highlights the opportunity it presents to get states to retreat from the moralistic conception of marriage that the Supreme Court reinforced when it extended marriage rights to same-sex couples. The paper identifies and discusses what some states were considering in the lead-up to Obergefell -- and exposes how marriage-skeptics and those engaged in "massive resistance" to same-sex marriage rights can work together for a future of marriage, cleansed of its religious, gendered, and bourgeois history and manifestation.
Precommitment Against Suicide (PAS, Part One)
People who fear suicide ought to be empowered to protect themselves. That is the core idea in my recently published article in the Boston College Law Review, Self-Defense Against Gun Suicide (pdf, no log-in required).
More specifically, my proposal is to allow individuals to confidentially put their own names into the federal background check system to prevent gun purchase during a suicidal crisis. There would be an option to change one’s mind and have one’s name removed after a delay period.
There are good reasons to think this proposal would save many lives:
● There were 21,175 firearm suicide deaths in the United States in 2013.
● Buying a gun is associated with an increased risk of suicide. One study found that the suicide rate among recent gun purchasers was 57 times the overall rate, which translates into hundreds of suicides each year.
● Most suicide attempts are impulsive. One study of survivors of firearm suicide attempts found that a majority had suicidal thoughts for less than a day.
● Some who had signed up for the proposal would probably attempt suicide without a firearm, but the other common means of attempting suicide are much less lethal.
● Surviving an attempt usually makes all the difference. The vast majority of suicide attempt survivors go on to die of something other than suicide.
For citations and further support, see www.StopGunSuicide.com.
In subsequent posts, I plan to dive deeper into this proposal. If you’re already persuaded, please sign my petition at change.org.
Sunday, October 04, 2015
Today is the 10th anniversary of my first post on Prawfs. I started the day after the Harriet Miers nomination -- the nomination that launched the blawgosphere. I was only a guest blogger, but then this happened, and Dan invited me to stay on permanently. It has been a wonderful experience. I cannot imagine where I would be right now in my career without Dan and Prawfs. Blogging here enabled me to be a part of the national conversation with other scholars (and future FTC commissioners) on the controversies of the day. It got me to meet (and cyber-meet) a lot of really interesting law profs through book clubs, the Research Canons Project, open-source casebook conversations, everyday blogging, and the Prawfs (& cosponsors) Happy Hours that Dan masterminded. I never made a PrawfsFest!, which I really regret, but as part of the Prawfs community I met a lot more folks than I ever would have met otherwise in the academy.
The last few years have been tough for law students, law schools, and law profs. And the last year has been particularly hard as we continue to mourn Dan's absence. The Prawfs community has stayed strong in Dan's memory, and I know the site will continue to offer a place for "raw profs" young and old to meet, greet, tell us a little about themselves and their work, and make connections with the national community.
It is with sadness, then, that I tell you that I am leaving PrawfsBlawg. I will be joining the Conglomerate to do more blogging on corporate and employment law issues. I haven't done much blogging in the past year, and I haven't done much subject-area blogging in much longer than that. And I've probably done too much blogging about law schools and the issues they face. If you're interested in some of my bigger picture perspectives, you can check out "Funding Legal Scholarship" and "Law Students and Legal Scholarship," both of which started as blog posts here. (And I continue to think that AALS should be a bigger player here, even in the face of Dean Rodriguez's naysaying.)
So this is a goodbye -- at least in my capacity as "perma-prawf." I look forward to Prawfs sticking around for at least a few more decades, serving as a place for folks in the law school universe to share ideas, concerns, and sentiments. And I look forward to participating in that community. Thanks to everyone here for their hard work and generosity of spirit. And one more "thanks" to you, Dan -- you are the root for all that has followed.
Saturday, October 03, 2015
"Landmark Cases" on C-SPAN
C-SPAN has produced (in conjunction with the National Constitution Center) a new weekly series called Landmark Cases. (H/T: Faculty Lounge). The series premieres tomorrow evening with Marbury and concludes on December 21 with Roe. In between, the series hits on Dred Scot, Slaughterhouse, Lochner, Schenck, Korematsu, Youngstown Steel, Brown, Mapp, Baker v. Carr, and Miranda.
Apparently there have been no landmark cases since 1973. And the choice of Schenck over Abrams (where someone at least stood-up for the First Amendment claimant) or New York Times (where the First Amendment claimant prevailed) is an interesting one.
Friday, October 02, 2015
The UCC Shooting
Yesterday's mass shooting hit me close to home. Literally: I grew up in Oregon. My thoughts are with the families and friends of the victims.
People sometimes assume mental illness is involved in every mass shooting. It is too soon to say with respect to the UCC shooting, but the association is generally overstated (here). I have argued that restrictions on gun ownership and purchase should target dangerous symptoms, not diagnoses or treatment status (here).
While mass shootings may dominate headlines, gun suicide kills many more people in this country, roughly 58 per day. I plan to post several items this month about an idea I have to reduce gun suicide by empowering individuals to restrict their own access to guns. No government mandates. My hope is that this voluntary approach can side-step the gun-control-gun-rights deadlock.
Thursday, October 01, 2015
Two Truths and a Lie
Thanks to everyone at Prawfsblawg for the opportunity to be a guest blogger. You will get your fill of water law in the coming weeks (seriously – brace yourselves). But my introduction to Prawfsblawg came when I was just beginning to think about leaving practice to become a law professor. I searched the internet for advice, and much of the most helpful advice came from Prawfsblawg. As it is hiring season, I thought I would begin my stint as a guest blogger by trying to give back what little I can to the forum that provided me with guidance when I was going on the market.
At several parties or events that I have been to, people play the game "Two Truths and a Lie" as an ice-breaker. Each person says three things about themselves - two truths and one lie. Everyone then guesses which is the lie. For example: My grandmother was a bull rider in rodeos. Mel Brooks yelled at me on the set of "Space Balls." I once was an extra on “Saved by the Bell,” but I was fired because I couldn’t stop looking at the camera. (I'll let you to guess which is the lie). More after the break.
I thought I would do a variation on "Two Truths and a Lie" about law school hiring. I want to discuss two things that candidates may hear a lot that are actually true, and one thing that I think is false. As I was preparing to go on the market, I would get a lot of advice, and some of it would be presented as conventional wisdom. Now, in my third year on the tenure-track and my second year on an appointments committee, I feel like I have a better sense of what parts of the conventional wisdom are actually true (despite my skepticism at the time), and which I have found to be false (or at least not true enough to be part of the conventional wisdom). Let me know if you agree or disagree in the comments, or if you can think of other pieces of conventional wisdom about the market that are either surprisingly true or probably false. And just to head off some criticism - I am not saying what I think should be true or false. I'm just saying what I think is true or false. More after the break.
How to Remember a Scholar Who Dies?
Thanks to the Prawfs gang for having me back. It's a pleasure to be here again.
I'd like to blog a little this month about the quirks of the legal academy. For my first post, I want to tip my hat to the wonderful Al Brophy, who is one of the most thoughtful members of our profession. Though Al is a denizen of a different blog, he has for years done something that deserves our attention. When a scholar passes away, Al not only mentions it on his blog, but he also engages with that scholar’s work. If a recently departed scholar wrote a book, for example, Al will discuss it and often post a picture of the book's cover. And he always ensures that this discussion is engaging and thoughtful. I find these posts to be deeply moving. Though I may never have met the former scholar, I often find myself, after reading one of these posts, going to Amazon and buying one of his books. Al’s “memorial” notices (I’ll link to several here, here, here, here, here, here, and here) remind us of what's important in life, and perhaps in death, too. I say that because I can think of no better way to celebrate a person’s life than by reading his words.
How should the legal academy remember a scholar who dies? We seem to have these ways:
(1) The Book Dedication: Many of us will dedicate a book to a colleague who passes. It’s a great honor when this is done. It is, perhaps, a reason to write books.
(2) The Symposium: In academia, we use a Festschrift to honor a respected person during his or her lifetime. A comparable event held posthumously is a Gedenkschrift. Commonly, we will hold a symposium honoring a life’s contributions.
(3) The Scholarship: Law schools often name the scholarships that they give to their students in honor of their former long-serving faculty members.
(4) The Endowed Chair. Many law schools have chairs named after longtime faculty members to honor and remember their years of service after they pass.
(5) Name a Prize … or a Classroom ... or a Building: Naming a prize after someone is also common, as might be naming a classroom or something similar of the sort.
These are the ways I can think of, and you are welcome to add to my list. We owe thanks to Al Brophy for doing something over the years that I have always found to be thoughtful, caring, and decently humane. And thanks to his colleagues over at The Faculty Lounge, and on other blogs, for doing the same.
Case Western Reserve Law Review is still accepting submissions!
Before I sign off after my extended guest-blogging stint (thank you, Howard Wasserman et al.!), I wanted to let you all know that my school's law review, the Case Western Reserve Law Review, is still accepting submissions for publication in this volume (i.e., late spring). If you have a finished article you'd like to submit, please email it directly to the Editor-in-Chief, Jonathan Fagan (jonathan.fagan[at]case.edu), and mention this notice from Prawfs.
Thanks for all your comments, and hopefully I'll be back again soon!
U.S. v. Klein returns to SCOTUS
I spent the better part of two years a few years ago writing about United States v. Klein, including a number of posts here. The Court this morning granted cert. in Bank Markazi v. Peterson on whether Klein's separation-of-powers principle is violated by a statutory provision blocking certain Iranian-controlled assets for use in satisfying U.S. terrorism-related judgments against Iran.
Section 8772 of Title 22 provides that certain Iranian-controlled assets are subject to execution or attachment to satisfy money judgments against Iran "for personal injury or death caused by an act of torture, extrajudicial killing, aircraft sabotage, or hostage-taking, or the provision of material support or resources." The assets described are specifically identified as the ones targeted in Peterson (which is mentioned by name) and which already had been restrained by the court in that case prior to enactment of the law. The statute requires that the court hold a hearing and determine whether Iran owns the assets, in whole or in part.
I'm just writing to thank you for an enjoyable month of blogging. I very much appreciated all of the thoughtful comments and lively back and forth. I look forward to doing it again in the future!
Happy October. A farewell and thanks to our September guests, who may have a few final words.
And welcome to our October guests: Returning to Prawfs are Eugene Mazos (Wake Forest), Deborah Ahrens (Seattle), Andrew Siegel (Seattle), and Fredrick Vars (Alabama). And joining us for the first time are Rhett Larson (Arizona State), Andrew Kim (Concordia), and Kalyani Robbins (my colleague at FIU).
Wednesday, September 30, 2015
The Anti-Privacy Activities of Anti-Choice Activists
Undeterred by Planned Parenthood President Cecile Richards's recent smackdown of a disingenuous Representative Jason Chafetz (R-Utah), anti-abortion activists are using many tools in an expanding arsenal to attack a woman's right to choose. One of those weapons is invading women's privacy.
Many are familiar with the anti-choice movement's traditional tactics: lobbying state governments for tighter restrictions on women's health options, attacking doctors who help women terminate their pregnancies, and protesting in front of women's health clinics. The Supreme Court has made the protest option very easy: Last year, the Court struck down a Massachusetts law that created a buffer zone around abortion clinics to prevent protesters from harassing women seeking health options.
Tuesday, September 29, 2015
Libertarians and Abortion Restrictions: Where's the Outrage?
A group of small businesses are under relentless attack in this country. In virtually every state of the union, hostile legislatures pass increasingly demanding regulations, many so onerous that they threaten to drive them out of business. Of course, like many such restrictions on commercial entities, they are justified in the name of health and safety. But there is no evidence that these reams of regulations actually do advance any purported state interest in health or safety, nor have legislatures even attempted to find any such evidence. What’s more, these businesses are engaging in a constitutionally protected activity.
That’s right—I’m talking about abortion restrictions. In particular, so-called TRAP laws (Targeted Regulations of Abortion Providers) that include requirements that abortion clinics meet certain health and safety standards that are either arbitrary or unnecessary for the sorts of procedures that they perform. One recent, and widespread, manifestation of TRAP laws are those that make abortion clinic licenses depend on the ability of their physicians to secure admitting privileges at local hospitals (discussed in these earlier posts: I and II). Courts have repeatedly found that these laws supply no safety benefits and that there is virtually no evidence to support states' claims that they protect women's health.
This seems like precisely the sort of legislation that libertarian groups should be calling out.