The Curmudgeonly Clerk
Monday, May 12, 2003
A Good Joke Cannot Be Criticized:Some time ago, Professor Volokh repeated a common anti-French joke that is making the rounds once again due to France’s recent obstreperousness:
American to Frenchman: “Do you speak German?”
Although it is not apparent that Volokh intended his recitation of this joke to be taken seriously, Professor Balkin was none too amused. In particular, Balkin argued that it was French intervention in the Revolutionary War that secured the Colonies’ victory over the Crown.
It is important to place the Revolutionary War in its global context. Although the American colonies declared their independence in 1776, Great Britain was soon embroiled in war not only with the colonists, but also with the French, Spanish, and Dutch that stretched from India to the New World. Seeking to overturn the balance of power established by the Seven Years War, France initiated hostilities in 1778. Prior to that, France had clandestinely aided the colonies; after the colonial victory at Saratoga in 1777, France had openly aided the colonists.
Spain entered the fray in 1779 on the side of the French. Together the two nations effectively enjoyed naval parity with the British. In 1780, Britain foolishly declared war on Holland after the latter failed to honor the Anglo-Dutch Treaty of 1678. This tilted the initiative to the anti-British forces for most of the remainder of the war.
This broader war undercut Britain’s efforts in the Western Hemisphere, producing several Spanish victories over the British in Florida and French victories in the Carribbean in 1781. But of the most importance to the American colonists, in September of 1781 French naval forces prevailed at the Battle of the Virginia Capes, which prevented resupply of Cornwallis’s forces at Yorktown. This, in turn, led to Cornwallis’s surrender at Yorktown to a combined French/colonial force in October after weeks of siege and blockade. Yorktown and the anti-British coalition’s continued naval dominance in the Western hemisphere sealed Britain’s fate in North America.
For a thorough account of the naval war and its effects, see generally Jonathon Dull, The French Navy and American Independence (Princeton Univ. Press 1975).
Of course, none of this detracts from Professor Balkin’s overall argument. Indeed, it strengthens it. Reading Dull’s account leaves no room for doubt: without the assistance of France and its allies, the colonies would not have prevailed.
In a commentary on Charles Dickens’s Pickwick Papers, G.K. Chesterton wrote that, “A good joke is the one ultimate and sacred thing which cannot be criticized.” If I understand Chesterton correctly, I conclude from the foregoing recitation of facts that the anti-French jibe in question is not a good joke.
A Duty to Allow Facilitation of Illegal Immigration?Randy Tunac draws attention to an article in the Arizona Republic that discusses a lawsuit brought against the federal government by the relatives of several would-be illegal immigrants who died while crossing the desert between Mexico and Arizona. Overlawyered drew attention to this case back in May of 2002.
The suit sounds in negligence, the theory being that the migrants’ deaths could have been prevented if the government had allowed a humanitarian group to set up way-stations along the route traveled by illegal immigrants. As the story relates:
The lawsuit contends that the immigrants' deaths could have been prevented if a humanitarian group had been allowed to install water stations in the desert. A month before the 14 crossers died, the group Humane Borders requested permission to put water stations in the "exact area" where the men died in the Cabeza Prieta National Wildlife Refuge east of Yuma, according to the lawsuit. That request was denied.
However, the story quotes others to the effect that this lawsuit has virtually no chance of success. The “others” seem to have the better argument. Without having done any legal research in the matter, it seems beyond peradventure that would-be lawbreakers cannot premise a negligence action on the government’s failure to facilitate, or failure to allow others to facilitate, illegal conduct. Assuming the facts are exactly as the plaintiffs aver, if Human Borders had set up its way-stations, would it not be guilty of either conspiracy (8 U.S.C. § 371) to bring in or harbor aliens (8 U.S.C. § 1324), or illegal entry (8 U.S.C. § 1325(a)) itself via the aiding and abetting statute (18 U.S.C. § 2(a))? If so, the plaintiffs’ claim rests on the proposition that the government should have granted a non-governmental entity permission to assist others in violating the government’s immigration laws. Surely, the government has no duty to allow such conduct. To accurately state the plaintiffs’ case is to decide it; their cause of action is itself a reductio ad absurdum.
Friday, May 09, 2003
Bill Frist: First Speaker of the Senate?Professor Solum has a very thoughtful post on the so-called nuclear option that the GOP is contemplating in response to Democratic obstruction of President Bush’s appellate judicial nominees. Solum’s conclusion as to the likely outcome if this option is exercised is the most interesting part:
What Would Happen Next?
Solum’s final paragraph, which is not excerpted here, indicates that he views the potential transformation of the Senate as a bad thing. Others disagree. Mickey Kaus has no love for the filibuster:
This may just be a bluff by the GOPs, but Rule 22 isn't exactly a crowning embodiment of our democracy. It's an anti-democratic, extra-constitutional tradition, started by accident in 1806. The Constitution already makes it difficult enough for a governing party to get anything done—you need two houses of Congress (elected at different times to different terms) plus the White House. Rule 22 is a gratuitous monkey wrench thrown into an already balky governing machine. It was Rule 22 that delayed civil rights legislation for years, remember. . . . Mainly Rule 22 is prized in Washington because, when a minority of senators, or sometimes a lone senator, can block a bill, even minority party senators become big players who have to be wined, dined, flattered, and bribed with campaign donations. Everybody wins, including ex-staffers of minority-party senators who make good money as lobbyists greasing up their old bosses. . . . Which is why attacking Rule 22 would be a big deal in D.C.. A non-insubtantial [sic] chunk of the local G.D.P. depends on it!
Myself, I am torn. I went to law school in Texas. As a consequence, I studied a fair amount of Texas law along the way. I have read many opinions authored by Priscilla Owen, one of the nominees that Democrats are filibustering. There is no doubt that she ranks among the most well-qualified and intellectually capable of Bush’s nominees. To say that there is nothing to the charges of extremism leveled against her is an understatement. She is conservative to be sure, but how that distinguishes her from someone like Michael McConnell who was confirmed without too much fuss is beyond me. She deserves more than a mere up or down vote; she ought to be confirmed. Scrapping the filibuster would make that possible.
But is any one nominee, or even many nominees, worth the price that Professor Solum suggests we might have to pay? Kaus apparently sees this as a bargain. I’m not so sure.
The filibuster is decidedly a counter-majoritarian device, but then so are the federal courts in some respects. Kaus notes that the undemocratic filibuster was used to stymie civil rights legislation. But the federal courts that vindicated civil rights clearly thwarted the will of the majority too. Consider, for example, the massive resistance of the South in the wake of Brown v. Board of Education. All this is to say that there is a place for undemocratic and counter-majoritarian devices in a democracy and its institutions.
Perhaps, I am just an obstructionist at heart, but I have always admired the ability of a few determined senators to bring matters to a screeching halt. The greatest deliberative body in the world would be considerably less deliberative if it became more like the House of Representatives. The Senate’s rules and traditions operate as a break and foster moderation, compromise, and accommodation. These same rules and traditions can be abused, of course. And that’s what’s happening in the case of Owen—abuse. Nonetheless, I am loathe to see the Senate dramatically transformed into a mirror image of the House. I’m none too fond of the filibuster today, but I might like it better tomorrow.
I imagine that many Republican senators are of like mind. And thus the GOP will almost assuredly not exercise the nuclear option for the very same reason that the nuclear option was not employed during the Cold War: mutually assured destruction. Senators likely value their individual and institutional prerogatives over the President’s nominees.
So whither Owen’s nomination? Except as a campaign issue, it is dead.
Simians & Shakespeare:An Associated Press story indicates that monkeys' literary potential may have been overstated:
I’ve had days like that.
Thursday, May 08, 2003
It Must Be A Slow News Day . . .Every once in a while I inexplicably decide to visit Slate. Almost without fail I regret this decision. This Chatterbox item by Timothy Noah and Avi Zenilman is a textbook example of the politically motivated non-story. The premise of the article is that, beyond its marquee names (e.g., Colin Powell, Donald Rumsfeld), President Bush’s cabinet consists of faceless, nameless, non-entities. Who, for example, are the Secretaries of Housing and Urban Development or Labor?, they ask. Noah and Zenilman contend that this near-anonymity is attributable to the fact that, beyond cutting taxes and making war, this is a do-nothing administration. But let’s allow Noah and Zenilman to speak for themselves:
As presidencies near their end, it's not uncommon for dynamic Cabinet secretaries to be replaced by bland seat-warmers . . . . But Dubya's presidency isn't nearing its end. Nearly half his current term remains, and there's a fair chance he'll be granted a second one. Moreover, with the sole exception of Treasury Secretary John Snow, every member of the current Bush Cabinet has been present since the start of Bush's presidency. This is the Original Broadway Cast, not some touring company. Why do so few people know who these people are?
This domestic do-nothingism charge will no doubt be a Democratic talking point in the 2004 campaign. Perhaps, one can make such a case, but Noah and Zenilman haven’t.
As a matter of fact, I cannot name even one thing that Secretary of Agriculture Veneman has done. Of course, President Clinton’s original appointment to that position was far more memorable: Mike Espy lasted approximately two years before he resigned under a cloud of scandal. Dan Glickman replaced him in 1995 and stayed on to the end of the Clinton presidency. Can anyone name even one thing that he did during his tenure without hitting the books? This isn’t to disparage Glickman’s efforts. He probably worked very hard at a demanding but thankless and relatively low-profile job. Is there reason to think that Veneman is doing less?
As previously noted, Noah and Zenilman also raise the near-anonymity of Bush’s HUD and Labor Secretaries. Clinton’s initial HUD appointment was certainly not as low-key as the current one: Henry Cisneros was investigated by an independent counsel, pled guilty to a misdemeanor, and was eventually pardoned by, you guessed it, the very man who had appointed him, Bill Clinton. By contrast, Robert Reich, Clinton’s labor Secretary during his first term, was beyond reproach. Both during and after his stint as Labor Secretary, Reich maintained a high profile and was quite outspoken, most notably in his criticism of Clinton. Reich’s replacement, Alexis Herman was also well known: an independent counsel cleared her of all wrongdoing after a lengthy investigation.
Other non-marquee Clinton cabinet members were similarly notable. Clinton’s original Energy Secretary, Hazel O’Leary, resigned due to accusations of gross mismanagement and malfeasance. Her successors have high name recognition largely because of seemingly endless stories concerning events at Los Alamos. The independent counsel investigation of Commerce Secretary Ron Brown abruptly came to an end only because of Brown’s untimely accidental death.
Obviously, there is something to be said for a quiet cabinet.
Noah and Zenilman could have actually done some, gasp!, research and figured out what Veneman is up to over at the Department of Agriculture. After all, as they acknowledge, “Chatterbox . . . is paid to know these things.” The Department is allocated a substantial budget. Presumably, it is doing many things; if one wanted to identify a single one of these, one would not have far to look. But why go to all that bother when you can just pass off your own apathy and ignorance as another’s lack of accomplishment.
May 22, 2003 UPDATE:
Well, now I can name one thing that Secretary Veneman has done.
Having Dispensed With Affairs of State, Palo Alto City Council Returns to Its Usual Business:Back in February of this year, the Palo Alto, California City Council detoured from its usual business and passed a resolution condemning the President’s then-impending military action in Iraq. Councilman Jim Burch explained the rationale for this unusual measure:
"Unilateral action must be based on an imminent threat," Burch said, and an international consensus does not support a unilateral United States attack against Iraq. "War should be the last resort" only after exhausting diplomatic efforts, he added.
What weighty issue will the statesmen of The People’s Democratic Republic of Palo Alto tackle next?
Wednesday, May 07, 2003
A Pattern Emerges in Trial Lawyer-Related Contributions?Sam Dealy of The Hill reports today that Senator John Edwards’s (D.-N.C.) presidential bid continues to be dogged by curious campaign contributions, namely individual donations of the maximum amount allowed by law from seemingingly unlikely contributors. This story has been developing for weeks now. But Dealy breaks new ground, identifying what he terms “a pattern:”
Dealy provides some very suggestive individual examples. He also raises the possibility that the Department of Justice may have begun looking into this matter. Edwards’s spokeswoman says that the campaign has not been contacted by the DOJ, but she also has said that the campaign is unconcerned with this pattern of contributions.
UPDATE: Conservative Group Chartered At the University of Miami:You will recall that a conservative student group was having difficulty getting chartered as an official organization at the University of Miami. In an e-mail, Sarah Canale, the Co-President of Advocates of Conservative Thought reports that the organization received its charter yesterday.
I previously noted my skepticism regarding the U. of Miami's president's committment to free speech, but it seems that Professor Volokh was right: President Shalala did come through. It appears that Shalala's May 2, 2003 request that the student government reconsider its decision to not charter ACT really made a difference.
Congratulations to ACT.
The Silveira Dissent: Judge Kozinski’s Faulty Reasoning:There is currently a circuit split as to whether the Second Amendment guarantees a collective right to bear arms or an individual one. Compare United States v. Emerson, 270 F.3d 203 (5th Cir. 2001) (individual right), with Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002) (collective right). The Fifth Circuit declined to rehear the panel decision en banc and the Supreme Court declined to grant certiorari. United States v. Emerson, 281 F.3d 1281 (5th Cir. 2001); Emerson v. United States, 536 U.S. 907 (2002). Today the Ninth Circuit also declined to rehear its panel decision; there were dissenters from this decision, however.
Most notable, perhaps, is Judge Kozinski’s dissent. It has already attracted lavish praise, e.g., “brilliant and eloquent,” “powerfully poetic and devastatingly convincing.”The dissent’s admirers are correct insofar as Kozinski, as usual, is an effective wordsmith. Consider the following passage:
The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed—where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.
Nonetheless, though I think that the Ninth Circuit’s dissenters and the Fifth Circuit do have the better position (i.e., the Second Amendment confers an individual right), Kozinski’s dissent fails to impress beyond its eloquence. I find it neither brilliant nor convincing (as a legal argument) for several reasons.
First, consider the following passage:
It is wrong to use some constitutional provisions as spring-boards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.The difficulty with this argument is that it assumes the truth of the individual rights position when that is precisely what is in dispute and must be proved. Obviously, the notion that the Second Amendment must be treated like Amendments that guarantee individual rights (e.g., the First, Fourth, and Fifth Amendments) is only persuasive if the Second also guarantees an individual right.
Second, consider this passage:
The majority falls prey to the delusion—popular in some circles—that ordinary people are too careless and stupid to own guns, and we would be far better off leaving all weapons in the hands of professionals on the government payroll. But the simple truth—born of experience—is that tyranny thrives best where government need not fear the wrath of an armed people. Our own sorry history bears this out: Disarmament was the tool of choice for subjugating both slaves and free blacks in the South. In Florida, patrols searched blacks’ homes for weapons, confiscated those found and punished their owners without judicial process. In the North, by contrast, blacks exercised their right to bear arms to defend against racial mob violence. As Chief Justice Taney well appreciated, the institution of slavery required a class of people who lacked the means to resist. A revolt by Nat Turner and a few dozen other armed blacks could be put down without much difficulty; one by four million armed blacks would have meant big trouble.
As a matter of policy-wonkery, Judge Kozinski’s observations ring true. But Kozinski is not a policy wonk. He is a federal judge explicating the Constitution. Of what relevance are the events described above, all of which significantly post-date the writing and ratification of the Bill of Rights, to the meaning of the Second Amendment? Earlier in his dissent, Judge Kozinski accuses the Silveira panel’s majority of implementing its policy preferences as constitutional law, but what is the purport of the preceding passage in Kozinski’s dissent if not to suggest that wise policy dictates that the Second Amendment be construed as conferring an individual right?
Third, Judge Kozinski seems preoccupied with the mental health and internal motivations of judges who do not share his views. As quoted above, Judge Kozinski regards the refusal to rehear Silveira en banc to be the result of “delusion.” But at least the judges who have fallen prey to said delusion are merely misguided (by Kozinski’s lights). Intentionally or not, others are apparently intellectually dishonest. Consider the following passage from Kozinki’s dissent:
But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
The most charitable parsing of this language renders it a statement of the psychology of the Silveira panel opinion majority. That is, Judges Reinhardt’s and Fisher’s ostensible discontent with the Second Amendment has compromised the objectivity of their legal reasoning and scholarship; therefore, subconsciously, they have organized the evidence to conform to their preexisting bias. Alternatively, Judge Kozinski's language might be understood as accusing Reinhardt and Fisher of willfully, consciously shaping the evidence to match their policy preferences. This latter sense would appear to be precisely what Judge Kozinski has in mind when he states that:
The able judges of the panel majority are usually very sympathetic to individual rights, but they have succumbed to the temptation to pick and choose.
This is either careless language or a grave indictment of two of his colleagues. In either case, such talk is likely counterproductive, as it threatens to undermine the collegiality of the bench and concomitantly may render future jurisprudential disputes unnecessarily contentious and bellicose. Aren’t accusations that are, in effect, cries of “judicial activism” better left to the editorial pages and political factions? Accusations regarding the motives of one’s opponents are mere ad hominems. In the end, Judge Kozinski must address Judge Reinhardt’s opinion on the merits, whatever the latter’s motives.
Fourth, consider the following argument contained in the dissent:
The sheer ponderousness of the panel’s opinion—the mountain of verbiage it must deploy to explain away these fourteen short words of constitutional text—refutes its thesis far more convincingly than anything I might say.
This particular complaint is somewhat ironic, coming on the heels of a series of opinions from the District Court for the District of Columbia that span over 1,500 pages, which purportedly construe the equally concise language the First Amendment in the context of campaign finance reform. Nonetheless, the Silveira opinion is awfully long. However, I am certain that Judge Reinhardt considers the length of the opinion to consist of interpretation, not obfuscation. Moreover, the Emerson opinion is not exactly petite. Neither is Judge Kleinfeld’s dissent from the denial of rehearing en banc, which Judge Kozinski joins. Judge Kozinski overlooks the length of these opinions, effectively arguing that the very fact that Judge Reinhardt felt obliged to be thorough and scholarly is evidence of his argument’s fallacy. Judge Kozinski apparently regards the individual rights view as being so self-evident that any attempt to demonstrate its fallacy is just proof of its validity. That is, to disagree with Kozinski is merely to prove him right. That’ll teach you to argue!
The panel opinions in Emerson and Silveira both featured special concurrences. Judges Parker and Magill regarded the courts’ consideration of the Second Amendment as dicta, albeit for different reasons. Judge Kozinski’s dissent strikes me as being amenable to criticism of the same general kind. Most of what Kozinski writes is entirely unnecessary to a judicial opinion on the subject matter before the court. Kozinski’s real argument in favor of rehearing en banc is that Silveira fails to adhere to Supreme Court precedent, namely United States v. Miller, 307 U.S. 174 (1939). This point is debatable. The Emerson panel's majority did not consider Miller to be dispositive. But rather than engage in the heavy lifting necessary to sustain his contention regarding Miller, Judge Kozinski devotes a mere paragraph to this issue and squanders the remainder of his dissent engaging in a forensics exercise worthy of a political candidate. Apart from this lone paragraph, he abjures any responsibility to explain to his fellow judges why Silveira ought to be reconsidered en banc while disparaging their reasoning skills. Instead, Judge Kozinski abdicates the judicial role and leaves the legal argumentation to Justice Kleinfeld.
Will Baude of Crescat Sententia thinks that my criticism of Judge Kozinski's dissent misses its mark. Although I disagree with portions of his criticism (e.g., the ends justifies the means closing: "In a world of activist Supreme Court Justices, no type of argument is out of bounds."), other parts are more appealing (e.g., "As to the relevance of the policy argument, if Kozinski believes that his colleagues are letting their policy preferences get away from them, I don't see what's wrong with trying to convince them that their policy preferences might be shortsighted as well."). Why not meander over there assess his take first hand?
Monday, May 05, 2003
Coach Lombardi Must Be Rolling Over in His Grave:Howard Bashman draws attention to the opinion issued today by the United States Court of Appeals for the Eighth Circuit in Sonkowsky v. Bd. of Educ. for Indep. Sch. Dist. No. 721 et al.. In a brief per curiam opinion, the court of appeals concludes that the plaintiff's Section 1983 claim must fail because "Sonkowsky has failed to establish the deprivation of a constitutional right." More specifically, the appellate court affirmed the District Court for the District of Minnesota's determination that a fourth-grader's keenness for the Green Bay Packers does not qualify for heightened scrutiny and that, consequently, the school district's "reasonable curriculum-based decisions . . . will not support a § 1983 claim." The court of appeals recitation of the facts is as follows:
Obviously, this case is rather humorous. If anything, the court's deadpan recitation of facts renders the case even funnier. However, it is a little less funny that this matter went all the way to the court of appeals. Being an avid Packer fan and a Wisconsin emigre myself, I can sympathize with Rocky's plight as a Green Bay fan in another team's domicile. But the brevity of the court of appeal's opinion makes it clear that there was no real legal merit to the plaintiff's case. (It is somewhat curious that the court chose to memorialize its opinion by having it published in the Federal Reporter series.) Although it is comforting to see that it was disposed of at the summary judgment stage, this case should have never made it to the courthouse. The fact that it was actually filed reflects, perhaps, two very unpleasant trends in American law: (1) the tendency of ordinary Americans to view any colorable wrong as constitutional in dimension, (2) the apparent financial disincentive that the plaintiff's bar has to tell marginal plaintiffs that they have no case.
Friday, May 02, 2003
Trial Lawyers: Giving Till It Hurts . . . the Profession's Reputation:Walter Olson links to this story in the Washington Post that previously escaped my notice. It's no surprise that Senator John Edwards' (D.-N.C.) primary campaign is getting massive support from the plaintiff's bar. The contributions from Texas's trial lawyers alone are quite significant. It also does not surprise me that some lawyers would be inclined to disregard campaign finance laws that their favored candidates insist are vital to the health of the Republic. What is surprising is how clumsy their efforts to subvert the law have apparently been.
The contributions at issue came to light when someone noticed that persons who listed their occupations as "paralegal" and "legal assistant" had contributed the maximum donation of $2,000 to Edwards' coffers. An editorial in the Wall Street Journal informs readers that another of these contributors was a receptionist. Inquiries from the press then revealed that at least of a couple of these law firm employees were under the impression that the firm would be reimbursing them. Reimbursement is illegal for obvious reasons: if it wasn't there would be no point in setting individual contribution limits, because they could just be avoided via proxies.Others denied that there were any improprieties. The Post story relates:
Most of the clerks and paralegals contacted yesterday by The Post said they had given their own money to Edwards and were not reimbursed. Monica Garza, a paralegal at the law firm of Owen & Associates in Corpus Christi, Tex., said she contributed $2,000 from her savings after seeing Edwards at an event this year.
Now I was a legal assistant at a large Dallas firm for a brief period prior to attending law school. Even with a punishing amount of overtime, my gross income the last year that I worked there was $40,447.49. (Yes, I was actually anal enough to check my tax records.) Until this year--my first year out of law school--that was the most money that I ever made. Yet my greatest political donation to date is the $25 that I gave to George W. Bush when he was running for governor. My mother has been a receptionist for years, including stints with law firms. She is firmly in the lower middle class and has never contributed a dime to any political campaign, party, or cause, notwithstanding her strong political beliefs. Perhaps, we are skinflints. Perhaps, Edwards is that inspirational. Or, perhaps, something is rotten in Corpus.
Thursday, May 01, 2003
Shalala's Record on Free Speech:Professor Reynolds links this story, which informs readers of yet another incident in which a university's student body government is refusing to charter a conservative student organization on the basis of its political leanings. This, of course, has significant implications for the students' ability to use university facilities, host campus events, etc., because such rights are generally accorded solely to approved organizations. The article notes that President Clinton's former HHS Secretary, Donna Shalala, now the University of Miami's president, has thus far ignored the would-be organization's plea for intervention.
It's not shocking to me that any university that would select Shalala for its presidency has a free speech problem. Prior to becoming HHS Secretary, Shalala served as the Chancellor of the University of Wisconsin at Madison. During her tenure there, Shalala presided over the enactment of a university speech code that was later declared unconstitutional by a federal district court. See UWM Post, Inc. v. Bd. of Regents of University of Wisconsin System, 774 F. Supp. 1163 (E.D. Wis. 1991). Shalala was no mere passive observer in the enactment of the UW's speech code either, as stories here, here, and here amply demonstrate.
The University of Miami's mission statement declares that it views it as an obligation "[t]hat all people be welcome as seekers--students, teachers, scholars and all who serve the University--regardless of sex, race, nationality, handicap, or creed. (emphasis added). If you would like to help the University achieve that mission, feel free to let President Shalala know what you think of her university's free speech problem by contacting her; she can be reached here.
Professor Volokh links to this May 2, 2003 statement issued by President Shalala. In her statement, Shalala responds to media criticism of the University of Miami’s student government’s refusal to charter a conservative student group on the basis of that group’s political beliefs. Most significantly, Shalala (1) calls for the chartering process to be reformed so that it is strictly apolitical, and (2) requests the student government to immediately reconsider the aforesaid organization’s application. I encourage readers to take a gander at the statement for themselves.
As noted above, Shalala’s record on academic freedom and free speech counsels caution. A press release is not a panacea for the ills at the University of Miami and may reflect nothing more than media savvy. Nonetheless, this would appear to be a step in the right direction on her part. Perhaps, in the aftermath of her UW Madison tenure, Shalala’s views have changed. Time will tell. Stay tuned, as they say.
Friday, April 18, 2003
Allow Myself to Introduce . . . Myself:I'm a (relatively) recent graduate of the University of Texas School of Law and a law clerk for a federal district judge in the Southern District of Texas. Of course, my postings do not reflect the views of anyone but myself. Despite my background and profession, this weblog is not intended to be exclusively a blawg (i.e., a web log devoted primarily or exclusively to legal matters). Though legal matters will certainly receive much attention, I hope to also comment on politics, culture, and other matters of interest. And hopefully I'll manage all this with a sense of humor and without making too big an ass of myself. Posts may be few and far between at the outset, as I am just beginning to figure out how to use Blogger and HTML. Kudos and complaints may be directed to the e-mail address on the sidebar.