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Faculty Events
The Robert A. Levy Fellows Workshops are designed for presentation
of original scholarly research in its early stages that
reflects the importance of private property, the rule of
law, and the market process to the preservation of individual
liberty. Workshop speakers include the Law School's Levy
Fellows, full-time faculty, and guests.
Spring 2005 Schedule
December 2007
 Nathan A. Sales, a former official at the U.S. Department of Homeland Security and the U.S. Department of Justice, will join the faculty of George Mason University School of Law as an Assistant Professor in the spring 2008 semester. Professor Sales will teach National Security Law and Administrative Law.
From 2006-2007, Sales served as Deputy Assistant Secretary for Policy Development at DHS. His work focused on combating terrorist travel and improving information sharing. Sales led DHS's efforts to draft and implement legislation that strengthens the security features of, and expands, the Visa Waiver Program (which allows citizens of certain countries to travel to the United States without a visa). He headed the U.S. delegation in talks with seven countries to implement the new visa waiver security measures and served as the Secretary of Homeland Security's Special Envoy to South Korea.
Sales previously was Counsel, then Senior Counsel, in DOJ's Office of Legal Policy. In 2002, he received the Attorney General's Award for Exceptional Service – the Department's highest honor – for his role in drafting the USA PATRIOT Act. He received the Attorney General's Distinguished Service Award in 2003 for his work on judicial confirmations. Sales returned to OLP in summer 2005 to lead the Justice Department's "war room" for the confirmation of Chief Justice John Roberts.
During the 2005-2006 academic year, Sales was John M. Olin Fellow at the Georgetown University Law Center. From 2003 through 2005, he practiced at the Washington, D.C., law firm Wiley Rein & Fielding LLP. He clerked for the Honorable David B. Sentelle of the U.S. Court of Appeals for the D.C. Circuit.
Sales was graduated from Duke Law School magna cum laude, joining the Order of the Coif and serving as Research Editor of the Duke Law Journal. He received his A.B., summa cum laude, from Miami University, where he was elected to Phi Beta Kappa.
"Nathan Sales is one of the most promising young legal scholars in the country," said the law school's dean, Dan Polsby. "We are delighted that he has joined our community."
Professor Michael Krauss termed the struggle over tort reform "a 100 years' war," telling The National Law Journal that it is a battle that will extend for a prolonged period, fueled by political events such as presidential elections.
Krauss's remarks were carried in an article profiling the Center for Constitutional Litigation in Washington, DC, an organization that serves to fight tort reform by assisting in suits to overturn state and federal laws that are perceived to deprive citizens of legal redress.
A Small Firm Wages '100 Years' War' on Tort Reform, The National Law Journal, December 17, 2007. By Lynne Marek.
Read the article
Amy Oliver's December 13 news radio show on Colorado's KFKA 1310 AM featured Professor Ilya Somin with a discussion of the Colorado Supreme Court's recent decision in the important property rights case of Wheat Ridge Urban Renewal Authority v. Cornerstone Group.
In the case, the developer sued to compel the city to go through with the condemnation and transfer the affected property against its will after the city decided to cancel the project. The state's high court ruled for the city in deciding the case.
Somin holds that the decision undermines property rights more than it protects them because the Court's reasoning allows the government nearly unlimited condemnation ability.
Amy Oliver Show, KFKA 1310 AM News Radio, December 13, 2007.
Professor Craig Lerner advised that philanthropists should give to something they believe in or limit a gift to five or 10 years to avoid finding years later that their gifts are supporting something that would not have been their choice.
Lerner's comments came during a conference on higher education philanthropy sponsored by the Center for Excellence in Higher Education, a new nonprofit group that strives to represent the interest of donors ready to make major gifts. Among the topics examined by a panel of lawyers, philanthropy experts and college alumni at the conference was the redirecting of gifts intended for a specific purpose without adequate notice to the donors.
Donations to American higher education have been doubling every decade.
Giving Thought to Donor Intent, Inside Higher Ed (insidehighered.com), December 7, 2007. By Elia Powers.
Excerpt:
"Ron Malone, the lead plaintiff attorney in Robertson v. Princeton, a case involving Princeton’s Woodrow Wilson School of Public and International Affairs, said it’s important for donors to consider whether they will have the legal standing to enforce how a gift is used, and whether the recipient college has mechanisms in place to report on how money is being spent.
"More donors are demanding that kind of information and wanting to know what’s happening along the way with their gifts, said Anne Yastremski, an alumna of Randolph-Macon Woman’s College (now the coed Randolph College) and executive director of Preserve Educational Choice, the alumna/student/donor organization supporting litigation against the college over its decision to admit men and to sell off part of its art collection.
"But Malone said donors who have specific ideas in mind for their gifts often fail to clearly articulate them when talks with colleges take place and papers are being signed.
“'It’s during that period of euphoria over the gift-giving process when donors need protection,' Malone said. 'Once that check clears, attitudes can change. [Those who handle the money at colleges] aren’t bad people; they are just asking the wrong questions,' he added. 'They’re saying, "What’s the best way to spend the money," rather than, "What covenant do we have with our donors. What did we agree to do with their money?"
"Craig Lerner, a law professor at George Mason University, said donors shouldn’t be surprised years later if a gift made with only general terms isn’t supporting something they approve of down the line, particularly if they are giving to sources they don’t know well. Instead, he said philanthropists should consider finding someone or something they truly believe in, limit a gift to five or 10 years and have enough trust so that strings don’t need to be attached.
"Added Ruff Fant, who identified himself as a donor to Vanderbilt University: 'The tendency toward highly targeted gifts isn’t good for higher education."
Read the article
Contributing to a Washington Times article about end-of-life issues, Professor Lloyd Cohen pointed out that both a power of attorney and a living will present complex problems for those who are facing death and their families.
"In early years, people got ill or injured and died quickly or recovered. This other status where you're maintained in a compromised state didn't exist," Cohen commented, emphasizing the difficult issues faced by the decision maker in determining when and how it is appropriate to withhold forms of treatment.
Consider a living will: How long a person wants to be kept alive by technology, The Washington Times, December 4, 2007. By Christian Toto.
Excerpt:
"The Patients Self-Determination Act of 1991 set the living will practice in motion, says Lloyd Cohen, a law professor with George Mason University.
"'In early years, people got ill or injured and died quickly or recovered. this other status where you're maintained in a compromised state didn't exist,' Mr. Cohen says.
"Living wills are no laughing matter, but Mr. Cohen points to a 'Seinfeld' episode in which Kramer (Michael Richards) left his medical future in Elaine's (Julia Louis-Dreyfus) hands.
"Elaine had to decide under which scenario doctors should pull the plug on Kramer, a situation played for uncomfortable laughs.
"A show about nothing told the public plenty about how complex living wills can be.
''Giving someone a health care power of attorney, rather than a living will, can give one comfort, but it still remains fraught with complications, Mr. Cohen says.
"He recalls what happened when his uncle was near death years earlier. His aunt was left to make a decision on her husband's behalf. His doctors told her he would never wake from his unconscious state.
"She requested he stay on a ventilator and respirator, thinking she didn't want him to die an unnatural death.
"What she meant was, 'I don't want him to die as a result of my decision,' he says."
Liberal education, says Professor Peter Berkowitz, serves liberal and democratic ends by remaining true to its highest ideals, protecting the classroom from politicization.
Berkowitz' comments appeared in his book review of Anthony T. Kronman's "Education's End: Why Our Colleges and Universities Have Given Up on the Meaning of Life" (Yale University Press), which appears in the December 2007/January 2008 edition of Policy Review.
Berkowitz calls Kronman's book "a compelling reconstruction of the moral and intellectual sources of the culture of political correctness, coupled with an incisive analysis of the severe damage political correctness has visited upon the humanities."
What is a University For? Policy Review, December 2007/January 2008. By Peter Berkowitz.
Excerpt:
"For more than two centuries, from the founding of Harvard College in 1636 to the decades following the end of the Civil War, American colleges saw their mission as providing instruction in the ends of human life. Since colleges thought they knew what the best life was, and since instruction proceeded on dogmatic assumptions grounded in Christian faith, Kronman calls this period 'the age of piety.' The curriculum derived from the 'classicist tradition.' It was fixed from beginning to end and drew heavily on the Greek and Roman authors. By the early part of the nineteenth century, colleges had introduced into the curriculum astronomy, geology, chemistry, political economy, and Enlightenment philosophy, but the spirit in which professors conducted their courses remained steady. Faculty regarded themselves first and foremost as teachers and saw no sharp separation between classroom studies and moral education.
"In the years following the end of the Civil War, a new understanding of higher education took hold in the United States. Under the influence of the modern German university, long-established American colleges and newly created American universities alike increasingly embraced 'the research ideal.' Instead of putting the education of students at the center of the university’s mission, the research ideal gave pride of place to original scholarship and the production of knowledge. This shift shook the intellectual underpinnings of the classicist tradition. For the research ideal assumed that knowledge was progressive, valued creativity over devotion to tradition and, through the explosion in scholarship it set off, undermined the old belief that a single individual could master the main areas of human learning. These changes, combined with the growing sense in nineteenth-century America that the ends of a human life were plural not singular and that reasonable people could differ about the role of faith in a good human life, transformed higher education. Faculty increasingly wished to teach courses and design curricula that reflected their specialized research interests. And this desire fit conveniently with the increasingly common belief that students were in the best position to choose those among the proliferating variety of courses offered by the university that best suited their interests and ambitions.
"The advent of the research ideal put pressure on the study of the ends of human life but did not banish it altogether. For almost 100 years, such study found refuge in the humanities. There it was protected, but also revised, by another new ideal that emerged in the aftermath of the Civil War. Kronman calls it 'secular humanism,' and his book is devoted to rescuing it. This ideal overlaps considerably with Mill ’s high modern liberalism — and so will be familiar to readers of Isaiah Berlin’s writings on liberty — but in the end it owes most to Max Weber, particularly in the rigid strictures Kronman advances about the unreasonableness of faith and the disenchantment of the world."
Read the review
November 2007
The 2008 presidential campaigns of Senator Fred Thompson and former New York Mayor Rudy Giuliani have chosen Professor Todd Zywicki and Professor Ronald Rotunda, respectively, for positions on key campaign committees.
On November 16, the Fred Thompson campaign announced that it had chosen Zywicki for its Law Professors Committee within the Lawyers for Fred Coalition.
The same day, the Rudy Giuliani Presidential Committee announced the addition of Rotunda to its Justice Advisory Committee chaired by former Solicitor General Ted Olson.
Zywicki and Rotunda join Professors Michelle Boardman, Timothy Muris, and Peter Berkowitz as appointees to positions within the 2008 presidential campaigns, bringing the number of Mason Law professors serving as campaign advisors to five.
Thompson Campaign Announces Lawyers for Fred Coalition, US Federal News, November 16, 2007.
Rudy Giuliani Campaing Unveils Additional Justice Advisory Committee Members, US Federal News, November 16, 2007.
Speaking at the 2007 Pope Center Conference, Professor Todd Zywicki likened what he terms academia's "new dogma" to the Spanish Inquisition.
The October conference included both speakers and guests who actively participate in varied attempts to alter higher education's path.
Zywicki's speech centered on the types of barriers erected to preclude the election of independent alumni to trusteeships at colleges and universities, as well as attempts to minimize the power of those candidates once elected.
Zywicki himself has been at the center of a struggle over trusteeships that is currently playing itself out at Dartmouth College.
Storming the Academic Fortress, Leland Tribune News, November 14, 2007. By Jay Schalin.
Excerpt:
"Zywicki’s speech addressed the barriers erected to prevent independent alumni from becoming trustees at Dartmouth, and the subsequent attempts to dilute the power of the independent trustees once those barriers fell. The schools board of trustees has historically been divided between elected and appointed members. Currently there are eight of each. Procedures and entrenched interests have consistently produced trustees that rubber-stamp the 'dogma-driven' agenda of the left-leaning faculty, according to Zywicki. There is one alternative path: an independent 'petition' candidate can be elected, but the aspiring trustee first must get 500 alumni signatures to get placed on the ballot. Such candidates were extremely rare until recently, Zywicki said. In the past, producing all the signatures was an 'insuperable hurdle, because the college wouldn’t give you mailing lists.'
"Starting in 2004, with the Internet enabling rapid-fire communications among alumni, four reform-minded petition candidates were elected in short order, including Zywicki. The rest of the board, however, dug in their heels at this intrusion. They added eight appointed seats, thus 'breaching the principle of parity' that was the system’s original intent, according to Zywicki.
“'They couldn’t win at the ballot box, so they got rid of the ballot box,' he continued. Yet the established trustees’ efforts went for naught. The threat of a lawsuit by an alumni organization forced the board to postpone any changes to the board’s composition. Despite their minority status, Zywicki said, he and his cohorts have managed to start dismantling Dartmouth’s 'social engineering' agenda, including forcing repeal of the (politically correct) speech code."
Read the article
Hatred tends to cloud judgment and therefore is a passion a citizen should not be proud of and should avoiding bringing to public debate says Professor Peter Berkowitz.
Berkowitz argues in the WSJ.com Opinion Journal that hatred of President George W. Bush subverts sound thinking and violates the hallmarks of the truly liberal spirit, ultimately compelling those driven by hatred to reduce complex issues to matters of good and evil.
The Insanity of Bush Hatred, WSJ.com Opinion Journal, November 14, 2007. By Peter Berkowitz.
Excerpt:
"Hating the president is almost as old as the republic itself. The people, or various factions among them, have indulged in Clinton hatred, Reagan hatred, Nixon hatred, LBJ hatred, FDR hatred, Lincoln hatred, and John Adams hatred, to mention only the more extravagant hatreds that we Americans have conceived for our presidents.
"But Bush hatred is different. It's not that this time members of the intellectual class have been swept away by passion and become votaries of anger and loathing. Alas, intellectuals have always been prone to employ their learning and fine words to whip up resentment and demonize the competition. Bush hatred, however, is distinguished by the pride intellectuals have taken in their hatred, openly endorsing it as a virtue and enthusiastically proclaiming that their hatred is not only a rational response to the president and his administration but a mark of good moral hygiene."
Read the article
The Senate should defeat the Law of the Sea Treaty (LOST) maintains a Washington Times editorial, citing the opinions of Professor Jeremy Rabkin in its assertion that the most dangerous aspect of the treaty is the damage it would do to U.S. efforts to combat terrorism and to stop proliferation of weapons of mass destruction.
Under the treaty, the United States would be bound by the judgment of foreign arbitrators who might be opposed to efforts on behalf of U.S. national security, thus creating serious legal problems in maintaining appropriate U.S. defense.
Editorials: Defeat the Law of the Sea Treaty, The Washington Times, November 13, 2007.
Excerpt:
"But what is most disturbing about the treaty is the damage it would do to U.S. efforts to combat terrorism and to stop the proliferation of weapons of mass destruction. Jeremy Rabkin, a law professor at George Mason University and a foremost scholar on international law, points out that Article 88 of LOST declares that 'the high seas shall be reserved for peaceful purposes,' and makes no mention of exceptions in time of war. That omission was foolish 25 years ago and it's dangerously lethal in an era of state-supported Islamic jihad. The treatymakes no mention at all of 'terrorism,' for understandable reasons: The U.N., unlike the rest of us, has been unable even to agree on a definition of terrorism.
"LOST would create serious legal problems for U.S. defense planners. Could the U.S. military continue the Proliferation Security Initiative (PSI), a Bush administration program led by John Bolton, the former undersecretary of State for arms control and international security, which focuses on interdicting chemical, biological and nuclear weapons components on the high seas? Under Mr. Bolton, it broke the Pakistan-based A.Q. Khan nuclear proliferation network, collaborators in terror with Libya, Iran and North Korea. Could the United States under LOST intercept planes carrying terrorists, such as the men who murdered an American passenger aboard the Italian cruise ship Achille Lauro in 1985? The answers are not clear.
"The United States argues that PSI and the Achille Lauro interception are perfectly legal; terrorists and proliferators of weapons of mass destruction argue that both U.S. actions were illegal. Under LOST, this question would be submitted to international arbitration. Under Article 296, Paragraph 1 of the treaty, the United States would be required to accept the results as authoritative. Under the treaty, for example, in a dispute between, say, the United States and Iran, the two countries would choose an equal number of arbitrators, with the tiebreaking vote made by someone chosen by the U.N. Secretary-General. The Bush administration counters that there are 'safeguards' in the treaty that would allow the United States to exempt 'legitimate military activities' from the treaty's constraints. But these are empty 'safeguards.' The United States would be forced to choose between a robust response to terrorism and submitting its judgment to foreign judges who might not be particularly interested in the national security of the United States."
Read the article
Visiting Assistant Professor Victoria A. Espinel delivered the keynote address at the State Bar of California's Intellectual Property Law Section Conference. Entitled the 32nd Annual Intellectual Property Institute, the event took place in Monterrey, California, in early November.
In her address Espinel discussed international IP-related issues, foremost among them international trade negotiations and agreements regarding protection and enforcement of intellectual property and their impact on the practice of intellectual property law.
Espinel is the former Assistant United States Trade Representative for Intellectual Property and Innovation in the Office of the United States Trade Representative. She will teach courses in international trade and in international intellectual property and policy at the law school in spring 2008.
Assistant Professor of Law Allison Hayward was selected to participate in the culminating event of a collaboration between The Colonial Williamsburg Foundation and the "By the People" project team of MacNeil/Lehrer Productions to host a national conversation called "Dialogues in Democracy: Life, Liberty and the Pursuit of Happiness." The event participants were selected for the project as emerging leaders and thinkers of the 21st century.
The project examines how the democratic values of the founding generation connect with America in the 21st century and asks whether a nation that will grow to 400 million people in the next 35 years can achieve a shared commitment to citizen responsibilities and rights.
Dialogues involving the 45 selected individuals take place over a three-day period in early November in Colonial Williamsburg.
A "Dialogues in Democracy" television program, anchored by Jim Lehrer as part of his "By the People" series, will be broadcast on PBS in January 2008.
Read more about the event and Professor Hayward's comments in these related articles:
PBS filming in Colonial Williamsburg, Daily Press (Newport News, VA), November 10, 2007. By Bentley Boyd.
Experts: History guides us toward our future, Daily Press (Newport News, VA), November 11, 2007. By Bentley Boyd.
What was the intent of the founders when they drafted the Second Amendment?
That question has taken the form of a grammatical debate that may land in front of the U.S. Supreme Court, which should announce shortly whether it will rule on the constitutionality of the existing Washington, D.C., strict gun control ordinance. A ruling of the U.S. Court of Appeals for the D.C. Circuit inadvertantly ignited this controversy over commas.
The one-sentence Second Amendment contains three commas, the first and last of which are not in dispute. The second comma, however, has given rise to an argument over the meaning of the clause that precedes it relative to the remainder of the sentence.
To those who view the opening clause as absolute, the Second Amendment is really about the right of militias, rather than individuals, to bear arms. That interpretation would save the D.C. gun ban and limit the force of the Second Amendment.
Nelson Lund, Patrick Henry Professor of Constitutional Law and the Second Amendment, disagrees with that interpretation, saying the militia portion of the sentence "is grammatically independent of the rest of the sentence." In his view, "The Second Amendment has exactly the same meaning that it would have had if the preamble had been omitted." Those following Lund's reasoning would conclude that the Second Amendment protected an individual's right to bear arms.
It remains to be seen how proponents of Constitutional originalism on the Court will view the argument, should the Court elect to hear the case.
A question of commas. Period., Legal Times, November 5, 2007. By Tony Mauro.
Excerpt:
"When Supreme Court justices sit down Nov. 9 to ponder whether they should rule on the constitutionality of Washington, D.C.'s strict gun control ordinance, they should be forewarned that they are stepping into a quagmire.
"No, not the political quagmire over gun control. Another suddenly intense debate is enveloping the case--this one over what all those commas in the Second Amendment meant in late 18th century America.
"It may sound way beyond trivial, but it's not.
"You can blame the U.S. Court of Appeals for the D.C. Circuit for igniting this esoteric debate. It ruled on March 9 that because of the Second Amendment's second comma, the first half of the amendment--the militia half-- is basically a throat-clearing preface that does not qualify the individual right to bear arms that the second half protects. Jedge Laurence Silberman, who wrote the 2-1 decision, went on to conclude that the District's handgun ban violates that individual right.
"Grammarians and gun control backers quickly pounced, saying the D.C. Circuit got it flat wrong. Gun rights advocates have hustled to counter that view."
Read the article
Read Professor Lund's related paper, D.C.'s Handgun Ban and the Constitutional Right to Arms: One Hard Question?
Professor Sally Katzen-Dyk made a second trip to Capitol Hill in as many weeks to provide testimony for an oversight hearing of the House Judiciary Committee's Commercial and Administrative Law Subcommittee. The subject of the hearing, the Congressional Review Act, allows Congress to review government agency-issued business regulations and to overrule those regulations by passage of a joint resolution.
Those testifying with Professor Katzen-Dyk at the November 6 hearing were John Sullivan, parliamentarian of the House of Representatives, and Mort Rosenberg, specialist in American public law at the Congressional Research Service.
Read Professor Katzen-Dyk's testimony.
Television stations currently have nearly exclusive access to prized spectrum via so-called "white spaces" that exist in each TV market to properly space channels to avoid signal collision. In the Federal Trade Commission's plan for digital TV allocation, each TV market would have spectrum for 49 digital TV stations. Much of that space, which could be used for wireless communications, will remain unused.
"Nobody has 49 channels of over-the-air digital TV," Professor Thomas Hazlett commented to Multichannel News. "The average is eight [stations] per market," he said.
The politically powerful National Association of Broadcasters (NAB) is presently at odds with the White Spaces Coalition, an alliance of technology giants united behind a desire to utilize the airwaves allocated to broadcast TV but which remain unused by any TV station.
Vacant Channels Could Fuzz Up Free TV, Multichannel News, November 5, 2007. By Ted Hearn.
Excerpt:
"The effort to force TV stations to share their spectrum could be the front end of a much larger struggle to end free, over-the-air TV in the U.S. Spectrum-hungry innovators are trying to pound home to policymakers that 96 million U.S. homes have at least one TV set connected to cable or satellite TV services, and 245 million Americans go about their business with a wireless phone or PDA that returns Web searches at crawling speed, according to CTIA, the Wireless Association.
"Meanwhile, TV stations directly serve no more than 19 million homes. Under the FCC's digital-TV allocation scheme, each TV market would have spectrum for 49 digital TV stations. But much of the space still is likely to go unused.
"'Nobody has 49 channels of over-the-air digital TV. The average is eight [stations] per market,' said Thomas Hazlett, professor of law and economics at George Mason University, who has long advocated payment plans to move TV stations to pay-TV platforms.
"In Washington today, the political reality is that the NAB's power keeps growing even while consumer reliance on free TV declines -- a paradox that policymakers refuse to confront because it is so hard to take on the NAB when lawmakers want to be on good terms with their local TV and radio stations."
The possibility of a Federal Elections Commission inquiry into charges of coordination of activities in Ohio's 5th District Republican primary would underscore the complexities inherent in such charges, says Professor Allison Hayward.
Commenting in the Toledo Blade, Hayward, a former FEC lawyer, said that proving coordination of activities in the case may be a difficult thing.
"It's complicated because it's been subject to court challenges and in some ways unresolved," said Hayward.
Federal election law forbids a PAC from directly coordinating its message and materials with a candidate in cases involving contributions by the PAC of $5,000 or more to a campaign. In the Ohio case, a candidate is questioning his opponent's use of a college student to coordinate activities between the opponent's campaign and a Washington-based political action committee heavily invested in the primary.
Latta camp questions link of BGSU student to PAC, Toledo Blade, November 2, 2007. By Joshua Boak.
Read the article.
The House Committee on Homeland Security heard testimony this week from Professor Sally Katzen-Dyk, who participated in a panel before its Subcommittees on Emerging Threats, Cybersecurity, and Science and Technology and on Transportation Security and Infrastructure Protection.
The topic of the October 31 hearing was "Enhancing and Implementing the Cybersecurity Elements of the Sector Specific Plans."
A webcast of the hearing is available online. Please scroll to the page bottom and click on the link.
Read Professor Katzen-Dyk's testimony.
October 2007
Bringing an end to an ongoing controversy that resulted in a student filing a lawsuit in federal court, Colonial Forge High School in Stafford County, Virginia, has recognized an anti-abortion club, which met for the first time this week.
Stafford County school officials first had denied a student's request to form the club, arguing that the club did not relate to the county school's curriculum. The Alliance Defense Fund represented the teenager in filing the lawsuit, which was dropped after school officials reversed their earlier decision.
In response to suggestions that students might be inclined to propose other controversial clubs, Professor Ronald Rotunda commented in the Free Lance-Star (Fredericksburg, Virginia), saying, "Sometimes people worry abut a parade of horribles, and I never see this parade."
Colonial Forge will recognize new club, The Free Lance-Star, October 25, 2007. By Jeff Branscome.
Read the article
A century ago democracy existed in only 10 countries in the world, as opposed to today when 119 (two-thirds) of the world's countries have democratic governments, writes Professor Peter Berkowitz in his review of Michael Mandelbaum's book Democracy's Good Name: The Rise and Risks of the World's Most Popular Form of Government for The Weekly Standard.
Mandelbaum's book attempts to account for the success of democracy and to evaluate its extension in the future, says Berkowitz, while it argues that the spread of liberty abroad depends on the example set by the U.S. at home.
Democracy at Home; The promise and peril of universal suffrage, The Weekly Standard, October 22, 2007. By Peter Berkowitz.
Excerpt:
"Michael Mandelbaum's excellent and broadly accessible book seeks to account for democracy's success, and to assess the prospects for its extension. Mandelbaum, a professor of American foreign policy at the Johns Hopkins School of Advanced International Studies, is cautiously optimistic.
"To understand democracy's rise and its current golden reputation, he argues, it is necessary to appreciate, as even learned commentators seldom do, that 'what the world of the twenty-first century calls democracy is, in fact, a fusion of two political traditions that, for most of recorded history, were not only separate and distinct from each other but were seen by virtually all those who took an interest in politics as entirely incompatible.' This fusion of liberty and popular sovereignty, or rule by the people through free, fair, and regular elections, produced 'a hybrid political form' that has proved remarkably resilient.
"Neither of the two component parts alone provides all the goods that we have come to associate with democracy. Absent either, democracy as we have come to know it is unthinkable:
"Liberty belongs to individuals; self-government to the community as a whole. Liberty involves what governments do, or, more accurately, what they are forbidden to do--they are forbidden to abridge individual freedoms. Self-government, by contrast, has to do with the way those who govern are chosen--they are chosen by all the people. Self-government therefore answers the question of who governs, while liberty prescribes rules for how those who govern may do so. Liberty refers to the way the machinery of government operates, self-government to the identity of the operators."
Commenting on the Connecticut Department of Public Utility Control's ruling against AT&T in a skirmish over cable competition, Professor Thomas Hazlett questioned why the government would want to stand in the way of increased competition and lower prices for at least a portion of the consumer market.
Regulators ruled out consumer choice between AT&T's new U-verse service and cable TV for as many as 150,000 consumers in areas where U-verse was about to become available. U-verse delivers an alternative to cable by offering television programming over telephone lines, but regulators told AT&T it could not expand the service and had to apply for a franchise. AT&T has argued that the imposition of universal service requirements would require it to provide TV service to all customers in its franchise area, possibly the entire state. If forced to adhere to the universal service requirement, AT&T has said it will drop its more than 7,000 U-verse customers in Connecticut and provide the service elsewhere.
Hazlett told The Hartford Courant that challengers to cable will not come into markets if they are required to meet the universal service requirement.
"You can't get 100 percent," he said. "If you can't, get 10 percent or 20 percent."
Phone TV Conflict Blurry: Officials Try To Defend Choice By Denying it, The Hartford Courant, October 21, 2007. By Mark Peters.
Read the article
The Canadian Constitution Foundation, whose mission is to defend and promote constitutional freedoms in Canada's courts, recently hosted a conference entitled The Future of Freedom: Law and Liberty in Canadian Jurisprudence in which Mason Law professors Michael Krauss and Ilya Somin participated as panelists.
Keynote speakers for the conference were Marshall Rothstein, Supreme Court of Canada Justice, and Charles Fried, former Solicitor General of the U.S. and Harvard Law professor.
Also participating in the conference as a panelist was Mason Law graduate Moin Yahya (’03), who is currently an assistant professor at the University of Alberta in Edmonton.
Pictures, audio recordings, and papers submitted by the participants will be available on the CCF website shortly.
Dean Daniel Polsby does not expect to see a return of the Fairness Doctrine, despite talk of its possible reinstatement.
Calling the doctrine "so yesterday," Polsby told USINFO that the measure lacks critical political support and would likely face a challenge on constitutional grounds, should the FCC vote to restore it.
The Fairness Doctrine, which was in effect from 1949 to 1987, says that broadcast outlets must air opposing sides of controversial issues. Many of its critics today point to the wealth of opportunities Americans have for information resources beyond the traditional broadcast media.
Opinions Vary on Need for Fairness Doctrine in Broadcast Media, USINFO, October 12, 2007. By Eric Green.
Excerpt:
"Daniel Polsby, dean of the George Mason University School of Law in Virginia, told USINFO that the Fairness Doctrine will not return because the measure is 'so yesterday.'
"Polsby said the political support for the measure 'isn't there, and that its constitutionality' is such a 'weak reed that legislators who might otherwise be sympathetic' to the Fairness Doctrine 'will in many cases be turned off.'
"Polsby said the FCC could vote to have the rule restored. But he added that a court challenge to the doctrine inevitably would result in a ruling that it violates the U.S. Constitution."
Read the article
In an article examining the concept behind the think tank, Professor Ilya Somin's comments on intellectual and institutional diversity were cited along with those of University of Texas Professor Brian Leiter, author of the Leiter Law School Rankings.
Somin and Leiter both point out that schools on both ends of the political spectrum add to the debate by providing diversity across institutions, rather than simply within them, despite the homogeneity of their communities.
Thinking about Think Tanks, Outside the Beltway, October 11, 2007. By James Joyner.
Excerpt:
"A comment on Jonathan Adler's post about the issue links some related discussion by Brian Leiter and Ilya Somin on the value of intellectual diversity. While there's no disagreement on the fact that a wide range of viewpoints is essential, Somin correctly notes the 'conflict between diversity within institutions and diversity across them,' noting the value that schools like Brandeis and Brigham Young add to the debate despite their relative homogeneity. Leiter agrees, pointing to the success George Mason has had by assembling a law school faculty (and I'd add, an Economics department) comprised almost exclusively of conservatives and libertarians.
George Mason has been able to attract a highly productive and accomplished faculty, who no doubt stimulate each other to do more and better work. One of the more unfortunate consequence of Justice Powell's introduction of the 'diversity' mantra into American public discourse is that it obscures the extent to which in scholarly pursuits depth, subtlety, and the comprehensive exploration of the possibilities of an intellectual paradigm require the stimulation of colleagues who share some basic premises, substantive and methodological: it's some degree of homogeneity, not diversity, that often makes possible the deepest work. The beauty of American law schools is that George Mason is but one of the many options from which law students, and legal scholars, can choose, and that most good law schools are large enough to accommodate clusters of scholars who share 'viewpoints,' but who, taken together, produce a remarkable diversity of viewpoints on the real issues that engage lawyers, judges, and academics.
"Similarly, while institutions like Heritage and AEI operate within a fairly narrow range of internal discourse, there's hardly a shortage of competing ideas from other shops."
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Professor Allison Hayward recently appeared as a witness before the Federal Election Commission during its public hearings on October 17 and 18 concerning its proposed rules on electioneering communications.
Hayward participated in the first panel of the day at 10:15 a.m. on Wednesday, October 17.
Click to view a summary of the hearing agenda. Hayward's written comments are available here.
Many elderly and middle-aged people could perform national service in the form of office work and light menial labor, says Professor Ilya Somin. In a WSJ.com Opinion Journal op-ed, he argues that forced labor in the form of national service might be as, or more, suitable for people beyond the age of those normally targeted by proposals for civilian service, the 18- to 21-year-old group.
Somin points out that it is easier to impose the burden of national service on the young because they are less likely than the remainder of the population to participate actively in the political process, thereby benefiting less from the ability to advocate on their own behalf or through the efforts of lobbying groups.
Uncle Sam Wants You, Gramps, WSJ.com Opinion Journal, October 8, 2007. By Ilya Somin.
Excerpt:
"Indeed, the moral case for conscripting the elderly for civilian service is arguably stronger than that for drafting the young. Many elderly people are healthy enough to perform nonstrenuous forms of 'national service.' Unlike the young, the elderly usually won't have to postpone careers, marriage and educational opportunities to fulfill their forced-labor obligations. Moreover, the elderly, to a far greater extent than the young, are beneficiaries of massive government redistributive programs, such as Social Security and Medicare--programs that transfer enormous amounts of wealth from other age groups to themselves. Nonelderly poor people who receive welfare benefits are required to work (or at least be looking for work) under the 1996 welfare reform law; it stands to reason that the elderly (most of whom are far from poor) can be required to work for the vastly larger government benefits that they receive.
"Middle-aged people are also not obviously inferior candidates for civilian 'national service' than the young. I know I could do most kinds of service better today than when I was 18. To be clear, I am not arguing for imposing forced labor on the elderly or the middle-aged; but I do believe that doing so would be no worse than imposing that burden on the young."
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Commenting on the recent reprimand of U.S. District Judge Samuel B. Kent of the 5th Circuit, Professor Ilya Somin told the Houston Chronicle that Kent's "long history of ethical problems" was significant enough to warrant Congressional inquiry, echoing the concerns expressed by members of Congress, organization presidents, and other law professors, some of whom are calling for the House Judiciary Committee to investigate possible impeachment of Kent.
Somin, who clerked at the 5th Circuit, pointed out that federal judges have limited ability to discipline a colleague and can do so only through reprimands and reassignment of cases, both of which Kent has experienced over the past six years.
Kent's most recent reprimand over charges of sexual harassment has caused concern over his ability to preside over such cases in the future.
Could Kent lose his bench? Houston Chronicle via Chron.com, October 7, 2007. By Lise Olsen and Harvey Rice.
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A press release issued today by Governor Mitt Romney announces those selected as members of his Advisory Committee on the Constitution and the Courts and names Professor Michelle Boardman as one of those chosen.
Boardman joins a select group of legal professionals, scholars, and business leaders who will counsel Romney on judicial matters, the separation of powers, and issues of federalism.
With her selection by Romney, Boardman becomes the third Mason Law professor to be named an advisor to a candidate for election to the United States presidency in 2008. In June, presidential candidate Rudy Giuliani named Professor Peter Berkowitz part of his new foreign policy team, positioning Berkowitz as Senior Statecraft, Human Rights and Freedom Advisor. Giuliani's announcement was followed almost immediately by one naming Foundation Professor of Law Timothy Muris part of the economic policy team for Senator John McCain of Arizona.
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An October 1 "Points of View" commentary in Legal Times looks at Columbia University's September 24 sponsorship of a speech by Mahmoud Ahmadinejad, drawing on remarks of Professor David Bernstein concerning the propriety of such an event.
"Ahmadinejad is the head of state of an enemy state, whose armed forces are killing American soldiers with equipment they provide to Iraqi insurgents... American universities should [not give] a respectful forum to our enemies," Bernstein said.
Author Stuart Taylor Jr. comments further on what he refers to as a double standard that many academics and journalists apply to free speech controversies, closing his article by quoting Bernstein: "In the words of George Mason's Bernstein, 'The Chemerinsky episode, disturbing though it was, should not distract us from the primary challenge facing academic freedom in American universities: the rise of an academic far-left establishment that seeks to use universities as a base for political activism and is perfectly willing to violate accepted standards of academic freedom to achieve that goal.'"
Only Some Speech (POINTS OF VIEW: Iran's Leader Gets a University Podium. Why Don't U.S. Conservatives?), Legal Times, October 1, 2007. by Stuart Taylor Jr.
September 2007
Convincing a judge that a partisan political club relates to school curriculum while an anti-abortion club does not may be a difficult task, says Professor David Bernstein, commenting on a suit filed by a Stafford County, Virginia, high school student whose request to form such a club was turned down by school administrators.
Claiming that the club failed to meet the standard of a direct curricular link, as the family life curriculum prohibits teachers from discussing abortion, school administration took what Bernstein refers to as a "weaselly" way out of a controversial situation.
Student sues Stafford schools to start club, Richmond Times-Dispatch, September 29, 2007. (Associated Press)
Excerpt:
"Colonial Forge Principal Lisa L. Martin denied the request for the club, saying it doesn't relate to the curriculum.
"However, Cortman said the school has other clubs that don't appear to be directly linked with studies -- Young Republicans, Young Democrats and Students Against Destructive Decisions, for example.
"School-system policy encourages clubs that 'supplement the goals and objectives of the school division.' In a letter to the student, Martin said the club 'does not meet the standard of a direct curricular link.' The family-life curriculum prohibits teachers from discussing abortion, she wrote.
"'That strikes me as a weaselly way to avoid creating a controversial club,' said George Mason University law professor David E. Bernstein.
"Stafford schools spokeswoman Valerie Cottongim said school officials do not comment on pending litigation.
"Stafford County School Board Chairman Robert S. Belman also declined to comment because the entire board has not discussed the matter. He said he expects the board to take up the issue soon in a closed meeting.
"The student's family contacted the Alliance Defense Fund, which is representing the girl for free. The suit, filed Sept. 12 in federal court, asks the school division to pay the organization's legal fees.
"Bernstein said it will be difficult to convince a judge that a partisan political club relates to the curriculum while an anti-abortion club does not.
"'It strikes me offhand that if they teach civics, any club advocating civic action on any particular issue would be curricular-related,' he said.
"Cortman noted that the platforms of the school's Republican and Democrat clubs mention abortion.
"'Once they do have clubs organized around partisan politics it makes it almost impossible to perceive of a plausible reason to forbid people to organize around ideas,' Bernstein said."
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The popular television and motion picture series Star Trek helps perpetuate the illusion that we can combine government control of the economy with strong local autonomy and individual freedom, according to Professor Ilya Somin, writing in the National Review Online.
Somin's op-ed is one of 29 entertaining and thought-provoking musings appearing in the National Review Online as part of Star Trek 2007 Weekend.
Mamas, Don't Let Your Babies Grow Up to Be Federation Tax Collectors, National Review Online, September 28, 2007. By Ilya Somin.
Excerpt:
"Despite five Star Trek TV series and numerous movies, we still don’t know too much about federalism in the United Federation of Planets. How much power does the Federation’s central government have, and how much is left to the individual planets? Does the central government’s Star Fleet have a monopoly of military force, or do other planets have their own forces? Does the Federation subsidize planetary governments or are they fiscally self-sufficient? Unfortunately, the academic literature on Federation law isn’t much help either.
"The evidence in the TV series themselves is contradictory. On the one hand, the Federation seems to have a socialistic economy with a massive welfare state and no currency, which would require a high degree of centralization and planning incompatible with meaningful federalism. The Federation is not just 'socialist' in the sense that some conservatives denounce any big-government policy as 'socialistic.' It’s socialist in the classic sense of the word: government control of all or most major economic activity. In the absence of a currency and price system, central planning seems to be the only way to coordinate a complex economy to even a limited degree. Moreover, virtually all large-scale Federation enterprises in the Star Trek universe seem to be government-owned: from space stations to research facilities to mining operations. I wouldn’t go so far as to say that the Federation is communist; we don’t see much evidence of class struggle (though maybe that’s because all of the bourgeoisie have already been safely packed off to Gulag planets) or of a monolithic one-party state. But it at least has some form of kinder, gentler non-Marxian socialism.
"On the other hand, member planets apparently have considerable autonomy. For example, Vulcan seems to have very different laws from Earth. And Vulcan’s economy seems to have a large private sector. In Deep Space Nine, the planet of Bajor applies for Federation membership. Although Bajor is at least a partial theocracy with a government heavily influenced by religious leaders, anti-Federation Bajorans never argue that Federation membership would lead to the end of Bajor’s quasi-theocratic political system (as it surely would if the highly secular Federation denied political autonomy to member planets). In our world, it has generally proven impossible to combine socialism with decentralized federalism. Theoretically federal socialist states, such as the U.S.S.R. and Czechoslovakia, were in fact dominated by their central governments, with regional authorities holding little real power.
"How do we reconcile the contradiction? Maybe it is only Earth that is socialistic, while the other member worlds have free market systems or mixed economies. The human-dominated Star Fleet military is the only visible Federation military force, and is perhaps tasked with collecting tribute from the nonhuman planets for redistribution to Earth. But as long as they pay their taxes, which subsidize Earth’s welfare state and Star Fleet itself, they are largely left alone to govern their domestic affairs as they see fit. The Federation is essentially a big protection racket. Like the Mafia, it provides 'protection' in both senses of the word: external security, and also 'protection' against its own depredations.
"This theory explains a lot. It is now clear why Star Fleet is so completely dominated by humans. There are almost no nonhuman Star Fleet admirals, and e very few other nonhuman officers. Except for a few collaborators like Mr. Spock, the nonhumans can’t be trusted to force their own people to pay tribute. In one of the Star Trek movies, a Klingon spokesman denounces the Federation as a 'homo sapiens-only club.' Taken literally, this is too obviously false to be effective propaganda; the Federation surely does have nonhuman members. But the line makes sense if it actually refers to the fact that Federation and Star Fleet are tools for expropriating wealth from nonhuman planets and transferring it to Earth.
"It is easy to have fun with these kinds of speculations. The truth, however, is that the producers of Star Trek most likely didn’t even consider the possibility that there is a contradiction between the Federation’s socialism and its federalism. Just as they didn’t consider the contradiction between its socialism and its seemingly strong protection for personal freedom. The problem is not that Star Trek ideology is flawed in its treatment of these issues; it’s that Star Trek failed to take them seriously to begin with."
Professor Somin's op-ed can be read here.
For a complete archive of the Star Trek articles, click here.
With a late September hearing, the Senate began anew a push for ratification of the U.N. Convention on the Law of the Sea, a treaty whose ratification Professor Jeremy Rabkin fears may prove not to be in the best interest of the United States.
Rabkin voices concern for the intended international tribunals that will settle disputes about waterways and mineral rights under the treaty, fearing that the United States might suffer a loss of control over its own decisions.
"You do not gain prestige by giving in to the American view," Rabkin maintains. "You gain prestige by showing you do not give in to the American view."
'Law of the Sea' Treaty, Adrift for Years, Has Chance of Senate Ratification, Congressional Quarterly, September 26, 2007. By Adam Graham-Silverman.
Excerpt:
"'We would completely lose our sovereignty,' said James M. Inhofe, R-Okla., who has already been lobbying the Senate moderates he would need to sink the treaty once again.
"Other opponents, such as Center for Security Policy President Frank Gaffney and scholars at the American Enterprise Institute, have been holding conferences and giving briefings on Capitol Hill.
"Inhofe said the United States should not give up any power while at war, pointing to the U.N. Security Council, where nations such as Russia and China have stymied U.S. efforts to rein in state sponsors of terrorism.
"The treaty also would set up international tribunals to settle disputes about waterways and mineral rights. Without ratification, backers say, the United States has no seat at the table in such disputes. Unless the United States signs, they say, it will forfeit its voice to the 155 nations that have signed on so far.
"But Jeremy Rabkin, a law professor at George Mason University, said that U.S. officials should not count on decisions made under the treaty to support U.S. interests.
"'You do not gain prestige by giving in to the American view,' he said. 'You gain prestige by showing you do not give in to the American view.'"
Israel has no obligation to continue supplying electricity, water, and fuel to Gaza as it has done since its departure from Gaza two years ago says Professor Michael Krauss. In his American Thinker op-ed, Kraus maintains that the Israeli cabinet's actions to declare Gaza "hostile territory" due to the actions of Hamas also allow it to protect its own citizens from harm by refusing to supply its enemy.
Feeding the Hand that Bites You, American Thinker, September 25, 2007. By Michael I. Krauss and J. Peter Pham.
Excerpt:
"Despite the deliberative tone of the cabinet's decision -- it noted that 'sanctions will be enacted following a legal examination, while taking into account both the humanitarian aspects relevant to the Gaza Strip and the intention to avoid a humanitarian crisis' -- critics hastened to denounce the move. One United Nations official interviewed on Israeli Army Radio termed the decision a 'collective puishment' and 'a violation of international law,' while UN Secretary-General Ban Ki-moon declared that any interruption in the utilities would be 'contrary to Israel's obligations toward the civilian population under international humanitarian and human rights law.'
"The UN statements were, typically, hysterical in tone and dead wrong on the law. If Gaza is territory under the control of the enemy -- as it manifestly is under Hamas -- then the Israeli government is both within its rights and arguably obliged by its responsibilities to its citizens to treat the strip as 'hostile territory.' Siege and blockade of a hostile territory is a legitimate tactic of war, used in declared and undeclared (e.g., Cuban) conflicts and explicitly recognized by the 1949 Geneva Conventions. The Conventions' sole limitation is that there be 'free passage of all consignments of food-stuffs, clothing and tonics intended for children under fifteen, expectant mothers, and maternity cases' (Fourth Convention, art. 23) -- and even this exception was conditioned on there being 'no reasons for fearing... [t]hat a definite advantage may accrue to the military efforts or economy of the enemy' (for example, if resources destined for humanitarian aid will be commandeered by the enemy). Israel has carefully respected this requirement."
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Consumers demonstrate a strong preference for network coordination says Professor Thomas Hazlett, citing the success of Apple's iPhone and DoCoMo's iMode as examples of how consumers benefit when decision makers compete for customers and answer to shareholders.
Commenting in the Financial Times, Hazlett contends that by rejecting network neutrality, both companies have produced custom products and business models that have proven highly successful, prompting change in the marketplace that has benefited consumers.
How the "walled garden" promotes innovation, Financial Times, September 25, 2007. By Thomas Hazlett.
Excerpt:
"Hosting this Apple party is a curious way for carriers to lock out innovation. It is even more remarkable that critics could configure Apple's entrepreneurship as an attack on creativity. They claim that only a device that is optimised for any application and capable of accessing any network is efficient.
"They are wrong. What works best for consumers is a competitive process in which independent developers, content owners, hardware vendors and networks vie to discover preferred packages and pricing. When decision-makers compete for customers and answer to shareholders, a sophisticated balance obtains. The alternative proposition, business models voted on by regulators, is a recipe for stasis.
"Apple could have offered its device as an 'open' platform, but instead chose (as with iTunes, iPods and Apple computers) to control how it builds, and how buyers use, its product. It aims for competitive superiority. Quashing its model bops the innovator on the head.
"Unbundling phones from networks is suggested as a policy fix in the US. European phones, working with different Sim cards across carriers and borders, are the model. Innovation in the European Union is said to flourish. But the iPhone came first to the US, as did the BlackBerry and advanced broadband networks using CDMA data formats. That is not surprising given that US networks are afforded wide latitude in designing their systems. Licences in the EU mandate a GSM standard. What is recommended as 'open' in fact deprives customers of a most basic cellular choice: technology."
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The September 25 edition of the Washington Post carried excerpts of a speech newly published in the summer issue of The Green Bag, An Entertaining Journal of Law. Mason Law Professor Ross Davies is editor-in-chief of that publication, which carried the address by former deputy attorney general James B. Comey to the National Security Agency in May 2005.
Comey and other Justice Department lawyers had gone to battle with the White House after determining that portions of the NSA's warrantless surveillance program were illegal. President Bush agreed to make changes to the program after threats by Comey and others to resign.
Comey's speech addressed the difficulties of being a conscientious attorney within the intelligence community and the need for moral character on the attorney's part when faced with difficult choices.
A Speech About Saying No, From a Man Who Would Know, Washington Post, September 25, 2007.
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Writing in the Los Angeles Times, Professor David Bernstein warns that defending the values of scholarship and open debate against authoritarian political correctness is the key to preserving true academic freedom in our universities.
Citing controversy over the deanship at the new UC Irvine law school as an example of a rare victory for academic freedom and 1st Amendment values, Bernstein examines the ways in which university faculty have come to see their primary mission as promoting a political agenda, as opposed to advancing human knowledge.
What about Larry? Los Angeles Times, September 19, 2007. By David E. Bernstein.
Excerpt:
"Entire academic departments are often overtly ideological and politicized, even at schools not normally thought of as hotbeds of activism. Loyola Marymount's women's studies department, for example, proclaims as its mission 'to call attention to the androcentric nature of society, propose alternatives and strategies that honor women's human rights, and promote a vision of society where gender hierarchy, as well as other forms of social injustice, are eliminated.' In universities across the United States, conservative scholars are about as welcome, and as rare, in women's studies programs as Nazis in B'nai B'rith.
"Students also suffer from academic intolerance. Undergraduates frequently report to researchers that they feel intimidated into endorsing the political positions advanced by their professors. Many U.S. universities, though banned by the courts from enacting overt 'speech codes,' nevertheless enforce severe restrictions on freedom of expression under the guise of 'anti-harassment' policies. UC Santa Cruz, for example, bans any speech or writing that 'maligns another individual or group of individuals on the basis of age, creed, ethnicity, race, gender, gender identity, physical ability, political views, religion, sexual orientation, socioeconomic status or other differences.'
"Primarily because of such policies, the Foundation for Individual Rights in Education, a nonprofit that promotes civil liberties in higher education, has ranked 16 of the 19 California state colleges it measured 'red' -- the lowest rank -- for freedom of expression.
"Students who criticize the wisdom, utility or morality of the massive racial preferences prevalent in university admissions are especially likely to face hostility from the powers that be. University administrators at many campuses, including UC Irvine, have shut down satirical 'affirmative action bake sales,' at which customers are charged differing amounts based on their race or sex. Only the fear of lawsuits keeps such censorship somewhat in check.
"The Chemerinsky episode, disturbing though it was, should not distract us from the primary challenge facing academic freedom in American universities: the rise of an academic far-left establishment that seeks to use universities as a base for political activism, and is perfectly willing to violate accepted standards of academic freedom to achieve that goal. Anyone concerned with the future of American higher education has the duty to defend the values of scholarship and open debate against authoritarian political correctness. Unfortunately, by disinviting Summers, the UC regents failed miserably."
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Professor Nelson Lund was a featured panelist at The Cato Institute's Center for Constitutional Studies' symposium entitled "The Supreme Court: Past and Prologue." Held on September 17 and honoring Constitution Day, the Washington, DC, symposium was a day-long affair featuring a series of panel discussions and talks by prominent members of the bench and bar.
Professor Lund, who is Patrick Henry Professor of Constitutional Law and the Second Amendment, was featured on a panel discussing the topic Rights Revisited: Affirmative Action, Partial Birth Abortion, and Property Rights.
Dark horse presidential candidate David Diamond may have a slim-to-none chance of being elected president, but his sole platform - compensation for organ donation - makes a lot of sense, says Professor Lloyd Cohen, commenting in the Memphis Commercial Appeal.
Diamond, who is running with a campaign chest that currently tips the scales at $124 (which includes $100 from his mother), advocates an open, but regulated, market for organs. Cohen shares his view, having argued for compensation for organ donation for years. "If you pay people something, you'll get more of it," says Cohen, and that would benefit the more than 97,000 people currently waiting for transplants.
What'll you take for that kidney? Memphis Commercial Appeal, September 16, 2007. By Wendi C. Thomas.
Excerpt:
"Quirky man plus an unusual idea usually equals easily dismissed. I mean, paying for an organ just doesn't seem right. It should be a gift, we've been trained to believe, given selflessly by grieving families who recognize the good that can come from death.
"Diamond disagrees, even if he doesn't explain it as convincingly as does, say columnist Charles Krauthammer in an 1999 column about Pennsylvania's efforts to pay $300 in funeral expenses for someone whose organs were donated at death.
"Krauthammer wrote, 'What is wrong with rewarding people ... for a dead relative's organ?'
Diamond also has an ally in Lloyd Cohen, a law professor at George Mason University who has argued in favor of monetary compensation for organ donation for years.
"To rely on the altruistic notions of families with a dying relative is just silly, says Cohen. 'Why let it rest on charity? Even charitable people don't feel charitable all the time.'
"The simple brilliance of the idea, Cohen says, should be the focus: 'If you pay people something, you'll get more of it.'
"It's a novel idea, and that's exactly what the organ shortage issue needs - new approaches, even those that might seem controversial on first glance. Controversial ideas are often more palatable when proposed by more conventional people, but then, it's often the out-of-the-box people who have out-of-the-box ideas.
"Cohen agrees that Diamond's political chances are none, but he's complimentary all the same.
"'David Diamond, God bless him. If he brings more attention to this question, all the better.'
"And in the end - and the end will not include Diamond in office - if more of us simply inform our families of our wish to donate organs, then Diamond's campaign may not have been in vain.
"To learn more about David Diamond's donation idea, go to davidfdiamond.blogspot. com. To get information on being an organ donor and to print a card to sign, go to organdonor.gov."
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Taking a new tack on the issue of homeowner liability involving trees, the Virginia Supreme Court has ruled that homeowners can sue to force a neighbor to remove or prune a tree that poses a risk of harm or danger. Tree owners can now be held liable for damage caused by a tree.
Commenting in The Washington Post, property rights expert Professor Steven Eagle said, "This is the trend around the country, as we go from having arbitrary distinctions that made more sense in a rural economy. This is a better line of reasoning. The problem is, it probably will result in more litigation."
"Will there be people who will use this as a cudgel in a battle of spite against neighbors? Sure," he added.
Eagle's reasoning mirrors that of the justices, who ruled that while the old law made sense in a rural community, it was unsuited to present day issues of suburban sprawl and density.
Va. High Court Breaks New Ground on Tree Liability, The Washington Post, September 15, 2007. By Brigid Schulte.
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Professor Peter Berkowitz, reviewing Mark Lilla's study of politics and religion in the modern West, "The Stillborn God," in the Wall Street Journal, states that "The great undertaking of the liberal West is to make a place for religion -- in public as well as private life -- without sacrificing individual freedom and political order."
Berkowitz points out that the European tradition around which Lilla's arguments revolve leaves out "a crucual alternative, one embodied in the American experiment in liberal democracy. That alternative, championed by the Founders, provides religious reasons for separating church and state and political reasons for cherishing religion. This suggests that the challenge lies not in choosing between putting your trust in God or putting your trust in man but in choosing to give each its due."
Contested Authority; A Philosophical history of the shifting power of religion in politics, TheWall Street Journal, September 15, 2007. By Peter Berkowitz.
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