If you could do it again:

(Via Dan Drezner) So Kirk Boyd, with the help of the Univrsity of California is working on his draft of a universal bill of rights that he is presenting at the U.N. soon. As an amateur First Amendment scholar, I thought I'd take a look at his attempt to tackle the Free Speech problem. Anybody who's ever tried to interpret the constitution-- privately or professionally-- knows that the text of the First Amendment isn't very helpful in establishing its own limits. Very very few people in the world (though I have deep sympathy with them) think that "no law abridging . . . the freedom of speech" means precisely that. Fraud, some people suggest, ought to be forbidden. Or conspiracy to commit murder. Or child pornography. Or shouting at the top of one's lungs in a courthouse or classroom. I'm willing to entertain arguments that some or all of these things should be constitutionally protected speech (and that the world that resulted wouldn't be absurd) but I'm on the extreme fringe for that, and even I am not convinced. And even I-- a relative absolutist (if that makes any sense) on these matters-- don't think that the first amendment ought to protect one's right to project 160 dB singing into one's neighbor's windows. If nothing else, the founding fathers could not have meant to erase any line between expression and sonic assault.

So the idea of this "new bill of rights" always intrigues me, especially when put on by relative liberals. I would expect-- I would hope-- that given a chance to draft a "new" First Amendment that people would attempt to establish where the boundaries ought to be, since the court has been far from clear in interpreting them. So here is his free speech clause (the other two sections apply to written work):

Article 2 (Free Speech)

(1) Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to see, receive and impart information and ideas through any media and regardless of borders. No one may be coerced into expressing his or her views and convictions or into renouncing them. The only exception is that the urging of violence against individuals or groups based upon race, religion or sex is impermissible.

Sex redux:

Eugene Volokh posts responses to his vibrator post. I win!

Shocked, simply shocked!

Justice Kennedy (as reported by Dahlia Lithwick) and Juan Non-Volokh and others (I'm sure) are outraged at the latest rounds of filibustering in Congress.

But it's important to correctly apportion the blame; the failure of the Senate and president to reach a compromise is probably as much a fault of the president as of the Senate. The trouble with our current system is not that the Senate currently wields too much power in the nomination process; it is that neither the Senate NOR the president currently bears the political costs of court vacancies. In a paper I hastily wrote for one of my classes last quarter, I assumed (too cavalierly) that the Senate would ultimately bear the cost for too many judicial vacancies. I'm not really convinced that's the case.

If we reform the judicial nomination system, that is the thing to focus on-- not the 60% requirement that the Senate imposes, but the fact that as it currently stands, the senate has no particular incentive to reach a compromise on a Judge. The president has at least some incentive, since he won't be around to nominate them in 2-6 years, but even that isn't much. Thus we are given out current system-- the president proposes judicial conservatives, and the senate refuses them. Neither side of the aisle is well-served by this game of chicken.

What of Kennedy's (and others') decrying of the "partisanship" now being injected into the nomination process? It's not clear that's exactly what's going on. Is it partisan for a minority party to want to ensure that not all judicial nominees enforce the judicial philosophy linked most closely to the other side of the aisle? I like Miguel Estrada; I think he'd make a great judge, frankly, though I admit I don't know much about how he'd rule. But I don't think the Senate is wrong to filibuster him. If a large portion of the population is concerned that a judge's philosophy is, frankly, "out there" . . . is it partisan to oppose him? After all, it's hard to believe that Bush has nominated Owen or Estrada purely on the basis of their qualifications for office rather than their political views. And surely political views should not solely be the province of the legislature . . .

This is the true problem. The Senate currently sees its place as checking (remember we are a system of checks and balances) the partisan influence of the President with its own partisan influence. This isn't a particularly bad thing, though it is if neither side can work out an agreement. There's no reason that the Senate and President couldn't agree, for example, to give seats to both Miguel Estrada and some long-forgotten Clinton appointees (I've forgotten about them, see?).

So the problem isn't particularly one of partisanship. Both the Senate and the President are partisan, and neither one of them is going to stop unless the other one does, even if Justice Kennedy who I admire (worship) slaps their wrists.

There's an interesting game theoretic model behind all of this, often called the "Cain and Abel" game; both sides would probably benefit from putting down their partisan weapons and embracing across the aisle to nominate a balanced mix of competent jurists and varied political views. But neither side will relent unless the other one has to as well. There are two options: either a distinguished authority (like Kennedy) can try to encourage both sides to unlaterally change course, or another authority (like the voting public?) can try to unilaterally punish both parties for failing to agree. In the Cain-and-Abel game, God fulfills this latter role; in a democracy, it's up to us.

UPDATE: An un-named clerk has warned a number of us amateur bloggers to be careful what we say, since we run the risk of ruining our odds for clerkships by saying indiscreet things. Of course, as the number of hits from "uscourts.gov" begins to climb, I'm sweating a bit. Please bear in mind that any thoughts above are purely conjectures, and not intended as serious philosophical commitments, or as reflections upon the writer's proclivities. Though the writer is not particularly shocked by the government's partisanship, he is darn non-partisan.

Dahlia does it again:

Here is a Dahlia Lithwick article you simply have to read. An excerpt:

This leaves us with only one remaining candidate this afternoon for judicial confirmation to the U.S. Court of Appeals for the D.C. Circuit. The chair now recognizes an extremely able jurist, Connie the Coin. Connie is, as the committee can no doubt discern, a dime. Being an inanimate alloy disk, the nominee will be unlikely to develop views of any sort over time that could bias judicial decision making.

Sex:

Read on at your own risk.

I didn't want to be the first, but now that Amy Lamboley has responded to Eugene Volokh's call for thoughts on why vibrators for women are more acceptable than vibrators for men, here's my thought. While part of the effect may be what Amy suggests-- that a vibrator for a man suggests a deeper commitment to masturbation than it does for a woman-- I don't think that's all of it. I think that some of it is a broader acceptance of masturbation for women.

(For hetersexuals) since most men are willing to have sex with most women (or so it is said), but not vice versa, masturbation for a woman might usually be seen as a sign not that she is too pathetic to grab a man, but that he is too incompetent to please her. On the other hand, masturbation for a man is usually seen as a sign not that his partner can't do her job but that he can't find a partner. I'm not sure how consciously this is our thought process, but I think that a version of this is what goes on in our minds.

For a lot more interesting thoughts on gender biased perceptions, check out this site, maintained by David Feldman, author of "Why do Clocks Run Clockwise?" and "When do Fish Sleep?"

Smoking Cigarettes can Kill Your Bouncer:

This New York Times article reports on "'the first casualty' of New York City's new (smoking ban)." At first blush it might seem ridiculous to blame the bouncer William Blake's death on the law (as his brother does)-- he was killed in a bar fight that started when he asked two men to put out their cigarettes.

But is that really so ridiculous? I don't know the details of the law, but if the NYC ban puts some penalty on establishments that fail to comply with the ban, then it forces those establishments to, in effect, enforce the law. Of course, this can be terribly problematic with a controlled-substances law as unpopular as the smoking ban. The analogy isn't perfect, but think of the serious problems that would be entailed if the city of Chicago passed a law requiring all homeowners to get rid of drug-dealing on the streets of their neighborhood.

Of course, the law might be written differently; if it only punishes the smokers themselves, then the bouncer was under no real obligation (other than preventing the disturbance of a police raid) to get involved. This doesn't make his murder excusable, but it would mean that it wasn't exactly the smoking law's fault.