The Supreme Court rejects an assertion of a right under the Confrontation Clause — and the 2 dissenters are Ginsburg... and Scalia.

This was a case about the "excited utterances" exception to the hearsay rule of evidence. Richard Bryant, convicted of second degree murder, was identified in a statement made to the police. Justice Scalia writes:

The Framers could not have envisioned such a hollow constitutional guarantee. No framing-era confrontation case that I know of, neither here nor in England, took such an enfeebled view of the right to confrontation....

Judicial decisions, like the Constitution itself, are nothing more than "parchment barriers," 5 Writings of James Madison 269, 272 (G. Hunt ed. 1901). Both depend on a judicial culture that understands its constitutionally assigned role, has the courage to persist in that role when it means announcing unpopular decisions, and has the modesty to persist when it produces results that go against the judges' policy preferences. Today's opinion falls far short of living up to that obligation — short on the facts, and short on the law.

Firing a tenured law professor because he used the dean's name in hypotheticals?

It's hard to guess what the full story is here. (Via Taxprof.) The professor, Lawrence Connell, has, according to this report, authorized his lawyer, Thomas Neuberger, to talk to the press, and the school, Widener, has a confidentiality policy in personnel matters, so we're seeing Connell's version for the most part.

Lawprofs use hypotheticals all the time, and Connell put the name of the dean, Linda Ammons, in "at least 10" hypotheticals depicting her getting shot. Supposedly, "at least two students filed complaints with administrators, calling it violent, racist and sexist." Connell is white; Ammons is black. A letter from the vice dean refers to "an 'outgoing pattern' of misconduct,"* including "cursing and coarse behavior, 'racist and sexist statements' and 'violent, personal scenarios that demean and threaten your colleagues.'"

The linked article has this quote from Gregory F. Scholtz, associate secretary and director of the American Association of University Professors:

"Education is all about pushing the boundaries, and it's all about controversial ideas, but the question always is when does it cross the line... Given our modern culture and the violence that exists, you're really asking for trouble when you talk about killing people."

It looks like Scholtz is channeling some of the unscientific blather that surrounded the Tucson massacre: There's bad speech out there and then bad people do bad things and that's bad.

Look, if you're teaching criminal law, you use hypos that have people doing criminal things. Putting real names in the hypos might be funny or attention-getting or just stupid, but let's not get hysterical. Was the professor advocating that somebody shoot the dean? Obviously, not. Are the students so confused they don't get that? Impossible.

But I can understand how law school bureaucrats feel compelled to make a showing of caring deeply when students — even only 2 students — complain that a professor seems racist. I have seen that happen. It can be hard for the administration to negotiate its way through the maze of academic freedom and student opinion even when it is trying to do everything right and cares only about the appropriate values like intellectual excellence and a favorable "climate" for learning. But who knows what is really going on here? Are the students oversensitive, vindictive, or pursuing an ideological agenda? Is there some distorted notion that any criticism or making fun of the dean is a racial matter?

Neuberger said Kelly and Ammons offered to allow Connell to return to campus if he recanted statements students found offensive and underwent psychiatric evaluation.

That reminds me of the fallout over NPR's firing of Juan Williams — after he said something that made sensitive people feel he might be insufficiently tolerant. Maybe he should talk to his psychiatrist, NPR CEO Vivian Schiller said. It's a distancing move, undercutting serious inquiry into the statements that are being questioned. The statements are no longer anything to engage with, but evidence of the speaker's mental disorder. There are insiders and outsiders, and suddenly the speaker is the outsider, to be talked about, not talked with.

As for "recant[ing] statements students found offensive" — how do you recant a hypothetical? I know how I would recant a hypothetical: with great sarcasm. You know, these little stories I tell in class — vignettes, if you will — they are inventions — sheer flights of fancy. I like to call them hy-po-THET-ick-uhls... 

But Connell refused to recant, "believing it would amount to admitting racism, among other things." This is what happens. It's such a big deal to be accused of racism that it forces a hard-line denial. There's also a political angle here. Connell's lawyer is saying that Dean Ammons "wanted to get rid of a conservative professor." And now the story is out in the legal blogosphere. Instapundit says:

PROFESSOR MAY LOSE TENURE FOR “A pattern of inappropriate speech and behavior.” Wait, I thought that was what tenure was supposed to protect. Of course, it’s at Widener. But with tenure already under attack from education reformers, an object case that it doesn’t actually protect controversial speech would seem to be either valuable, or a dreadful mistake, depending on your perspective.

And now, we'll all talk about it. That link on "Widener" is important, as Glenn connects some dots and puts the school's larger reputation on the line. There aren't too many conservative law professors, but they've got very well-connected power on the internet. Deal fairly with them.

*ADDED: What's an "outgoing pattern"? I've heard of ongoing patterns. Was Connell perky and sociable and racist and sexist all at the same time?

"It's most likely an industrial-type diamond, not gem quality."

If you scorn the merchandise enough, can you get out of the felony range... if you're Lindsay Lohan?

ADDED: You know who I feel sorry for? Jewelers. Here is is, 2 days before Valentine's Day, and you know they're hoping guys will run in and pay $950 and up for something that looks like the sort of thing that might make a woman feel that he didn't fuck up. And just at that moment, the clueless males of this world are getting an insider's tip: The junk in those stores isn't worth anywhere near what you see on the price tags. Diamonds? You Valentine's Day chumps need to know there are mere industrial-type diamonds, and you have no idea what you're buying, do you?

Here, buy a diamond necklace — see how cheap they are?

Most sex is bad sex, right?

It's important to draw a line between rape and bad sex. And watch what you sext...



And maybe I should watch my own on-camera gestures...

David Kato, the Ugandan gay rights activist, beaten to death with a hammer.

The NYT reports:

Police officials were quick to chalk up the motive to robbery, but the small and increasingly besieged gay community in Uganda suspects otherwise.

“David’s death is a result of the hatred planted in Uganda by U.S Evangelicals in 2009,” said Val Kalende, the chairperson of one of Uganda’s gay rights groups, in a statement. “The Ugandan Government and the so-called U.S Evangelicals must take responsibility for David’s blood.”

Mrs. Kalende was referring to visits in March 2009 by a group of American evangelicals, who held rallies and workshops in Uganda discussing how to make gay people straight, how gay men sodomized teenage boys and how “the gay movement is an evil institution” intended to “defeat the marriage-based society.”

The Americans involved said they had no intention of stoking a violent reaction. But the anti-gay bill came shortly thereafter.

The NYT picks up part of my diavlog with Glenn Loury...

... the gun control part.

The Tucson people were good at stopping a shooting spree that might have gone on much longer.

Remember the Virginia Tech shooting, in which the shooter was allowed to reload several times and roam from room to room until he'd shot 32 persons to death and wounded many others?

The culture in Arizona is different:

In my district and in my state, we have a very strong gun culture. I own a gun, members of my family own guns.

Those are the words of Gabrielle Gifford, interviewed in May 2010.

"What is government if words have no meaning?" — the question Jared Loughner asked Gabrielle Giffords at a "Congress in Your Corner" event in 2007.

Mother Jones reports what he said to his friend Bryce Tierney: "Can you believe it, they wouldn't answer my question." Tierney says, "Ever since that, he thought she was fake, he had something against her." (By the way, 2007 is a year before Sarah Palin emerged on the national scene.)

Loughner would occasionally mention Giffords, according to Tierney: "It wasn't a day-in, day-out thing, but maybe once in a while, if Giffords did something that was ridiculous or passed some stupid law or did something stupid, he related that to people. But the thing I remember most is just that question. I don't remember him stalking her or anything." Tierney notes that Loughner did not display any specific political or ideological bent: "It wasn't like he was in a certain party or went to rallies... It's not like he'd go on political rants." But Loughner did, according to Tierney, believe that government is "fucking us over." He never heard Loughner vent about about the perils of "currency," as Loughner did on one YouTube video he created....

As Loughner and Tierney grew closer, Tierney got used to spending the first ten minutes or so of every day together arguing with Loughner's "nihilist" view of the world. "By the time he was 19 or 20, he was really fascinated with semantics and how the world is really nothing—illusion," Tierney says. Once, Tierney recalls, Loughner told him, "I'm pretty sure I've come to the conclusion that words mean nothing."...

Tierney believes that Loughner was very interested in pushing people's buttons—and that may have been why he listed Hitler's Mein Kampf as one of his favorite books on his YouTube page. (Loughner's mom is Jewish, according to Tierney.)...

Loughner believed that dreams could be a sort of alternative, Matrix-style reality, and "that when you realize you're dreaming, you can do anything, you can create anything," Tierney says....

There's a dream journal, which I'm sure we'll get to read.

... Loughner seemed ticked off by what he believed to be a pervasive authoritarianism. "The government is implying mind control and brainwash on the people by controlling grammar," he wrote in one YouTube video.....

Since hearing of the rampage, Tierney has been trying to figure out why Loughner did what he allegedly did. "More chaos, maybe," he says. "I think the reason he did it was mainly to just promote chaos. He wanted the media to freak out about this whole thing. He wanted exactly what's happening. He wants all of that." Tierney thinks that Loughner's mindset was like the Joker in the most recent Batman movie: "He fucks things up to fuck shit up, there's no rhyme or reason, he wants to watch the world burn. He probably wanted to take everyone out of their monotonous lives: 'Another Saturday, going to go get groceries'—to take people out of these norms that he thought society had trapped us in."

It sounds as though the movies were more a source of inspiration for his craziness than politics.

Jared Lee Lougher's "frightening, twisted shrine."

Reported by the Daily News:

Hidden within a camouflage tent behind Jared Lee Loughner's home sits an alarming altar with a skull sitting atop a pot filled with shriveled oranges.

A row of ceremonial candles and a bag of potting soil lay nearby, photos reveal....

It's a skull replica, according to the photo caption. I don't know how you can tell from a photo that a candle is "ceremonial" or if/why the potting soil is part of the still life. Would you have found this display frightening if you weren't told it was assembled by a murderer? I'll bet a million American kids have skulls and candles lined up on a shelf or table in their suburban bedrooms and their parents don't even mind.

What's more significant — also at the link — is the way Loughner behaved in his college class. The teacher and the other students believed he was dangerously abnormal. We're very tolerant in America, and we love individuality and freedom. We don't interfere with the usual misfits, loners, free spirits, jerks, and idiots that we encounter all the time. But we ought to be able to take action when we can figure out that someone is truly deranged. Loughner — like the Fort Hood shooter — should have been stopped.

I think the lesson from this recent shooting isn't that American need to tone down their rhetoric. (That's an old issue that politicos are inelegantly and often contemptibly grafting onto the tragedy.) It's that we need to see, understand, and do something about mentally ill persons.

"There's a climate of hate out there, all right, but it doesn't derive from the innocuous use of political clichés."

"And former Gov. Palin and the tea party movement are more the targets than the source.... [I]f you're using this event to criticize the 'rhetoric' of Mrs. Palin or others with whom you disagree, then you're either: (a) asserting a connection between the 'rhetoric' and the shooting, which based on evidence to date would be what we call a vicious lie; or (b) you're not, in which case you're just seizing on a tragedy to try to score unrelated political points, which is contemptible. Which is it?"

Glenn Reynolds in the Wall Street Journal.

ADDED: Remember when liberal NYT columnist Charles Blow said this about Sarah Palin: "She’s like the ominous blob in the horror films: the more you shoot at it, the bigger and stronger it becomes." AND: Why did I add that? Just as one example of what I think are many, many expressions of violence aimed at Sarah Palin. This attempt to connect Sarah Palin to the shooting is one of the most ridiculous and despicable political arguments I have ever seen.

"He was a political radical & met Giffords once before in '07, asked her a question & he told me she was 'stupid & unintelligent.'"

One of many tweets from catieparker, a woman who supposedly knew Jared Lee Loughner, the man who supposedly has been detained as a suspect in the shooting of Gabrielle Giffords. She says: "I haven't seen him since '07. Then, he was left wing."

Via Jeralyn at TalkLeft. Also at TalkLeft, screenshots from Loughner's YouTube page, which make him look deranged. His favorite books include "The Communist Manifesto" and "Mein Kampf" — for what it's worth.

Giffords has apparently survived, but a federal district judge, who was also shot, has died:

Appointed by President George H.W. Bush in 1991, Federal Judge John McCarthy Roll was shot and killed today when an assailant opened fire in a Safeway parking lot in Ariz., where Rep. Gabrielle Giffords, D-Ariz. was meeting with constituents.

Just two years ago, he was targeted with death threats -- and given a security detail -- after ruling that a group of illegal immigrants could go forward with a multi-million dollar civil rights lawsuit against a state rancher....

U.S. Congresswoman Gabrielle Giffords shot, along with at least 11 othters, at a political event...

... in Tuscon.

UPDATE: Dead?  That's NPR (linked by Drudge). The NYT, updated 4 minutes ago, says her condition is unknown.

ADDED: Gabrielle Giffords was the member of Congress who had the honor of reading the First Amendment when the Constitution was read on the House floor January 6th. Video. 

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Peaceably to assemble.

AND: Linking to my post, Instapundit says:

And judging from the comments to this post, people are already trying to score political points. Well, they kind of telegraphed this strategy, didn’t they? Remember Bloomberg making a fool of himself by blaming the Times Square bombing on the Tea Party? How about waiting until we actually know something, this time? That’s likely to be soon enough.

Yes. Please.

Wild in Wauwatosa, Wisconsin.

"Wauwatosa police confirmed on Monday that a gun was fired outside the Mayfair Mall on Sunday in connection with an incident in which large groups of unruly youths ran through the mall, forcing an early shutdown."

Obama opines on Michael Vick's being given a second chance.

Eagles owner Jeffrey Lurie described the phone call he received from the President:

"He said, 'So many people who serve time never get a fair second chance,' " said Lurie, who did not indicate when the call occurred. "He said, 'It's never a level playing field for prisoners when they get out of jail.' And he was happy that we did something on such a national stage that showed our faith in giving someone a second chance after such a major downfall.''

How inspiring is the return of Michael Vick? Will it hearten those who are attempting to return to society after serving time and make the rest of us more likely to welcome them back? Or will it make us more likely to think cynically that the rich and famous get special exceptions from the rules? Does Vick make the field look more level or less level?

IN THE COMMENTS: Meade (adopting the commenting style of Trooper York) wrote:

"Pot had helped, spreading genital herpes; maybe a little felony conspiracy in interstate commerce/aid of unlawful animal fighting venture when you could afford it."

- Dreams from My Blotter: A Short Memoir by Barrrk "OokieRonMexico" Obama (2010), pp. 93–94.

Rialby said...

"They talk about me like a dog" - BHO

I guess talking about him like a dog is better than what Michael Vick might do... pick him up by his tail, swing him around and smash his head against a cinder block wall.

Hmmm. You know, I've never gotten the impression Obama had much affection for Bo.

Michael Vick: "I would love to have another dog."

"My entire life I grew up with a pet in my house. The last few years were the first that I haven't had one. My daughter is used to it, my son is used to it. It's just different. I feel bad for them and the entire situation, what I did. It could be part of my rehabilitation process showing people I do care about animals sincerely and genuinely... Whatever animal I'd have would live a happy life.... I know that."

Would you let Vick get a dog?
	Yes, people can change and dogs can help them change.
	Yes, the important thing is the transformation of a human being, and a dog is a means to an end.
	Yes. He served his sentence, and he's earned a fresh start.
	No. He was released on condition that he not get a dog. That's it.
	No. He tortured and killed dogs. All dogs are forever entitled to be free of him.
	No. It's an important deterrent to others to see that Vick can never have a dog.
	Yes, but only because of the kids. Kids are more important than dogs.
pollcode.com free polls

"I received a phone call anonymously that my daughter was involved with a guy 40 years older than her."

"You said you couldn't stop him - so I did."

A statement to the police by the father of a 17-year-old girl who saw it as his "duty as a father" to wield a bread knife, strategically.

Judge Kozinski to federal prosecutors: "This is not the way criminal law is supposed to work."

"Civil law often covers conduct that falls in a gray area of arguable legality. But criminal law should clearly separate conduct that is criminal from conduct that is legal. This is not only because of the dire consequences of a conviction—including disenfranchisement, incarceration and even deportation—but also because criminal law represents the community’s sense of the type of behavior that merits the moral condemnation of society.... When prosecutors have to stretch the law or the evidence to secure a conviction, as they did here, it can hardly be said that such moral judgment is warranted."

With the arrest of Professor David Epstein for incest, let's revisit the praise for the 1997 father-daughter incest memoir "The Kiss."

I've already started the conversation here about David Epstein. (I show you that Justice Scalia has explained the law on the subject: A father has a constitutional right to have sexual intercourse with his adult, consenting daughter.) I know most of the commentary around the web amounts to little more than ugh. (Come on, people. Hasn't the Supreme Court taught you by now that your disgust is not a proper foundation for law?) Now, let's move this conversation forward. There was a time, it was during the Clinton administration, 1997, when a golden literary light shone on the subject of incest. There was a "beautifully written memoir" by Kathryn Harrison that everyone was talking about:

Her narrative is spare and stark, written in a present tense that perfectly conveys how her experience happened ''out of time as well as out of place.'' ''We meet at airports,'' she begins, plunging the reader straight into the hell of the incestuous affair. ''We meet in cities where we've never been before. We meet where no one will recognize us. . . . these nowheres and notimes are the only home we have.''

Then she goes back to the start of her experience, when she first meets her estranged father as an adult. ''My father looks at me, then, as no one has ever looked at me before.'' Having not seen her since 10 years earlier, when she was 10, he is enthralled by her resemblance to him. When she drives him to the airport, he kisses her goodbye and ''pushes his tongue deep into my mouth: wet, insistent, exploring, then withdrawn.''

She writes: ''In years to come, I'll think of the kiss as a kind of transforming sting, like that of a scorpion: a narcotic that spreads from my mouth to my brain. The kiss is the point at which I begin, slowly, inexorably, to fall asleep, to surrender volition, to become paralyzed. It's the drug my father administers in order that he might consume me. That I might desire to be consumed.''

"The Kiss" — makes a great Christmas gift for Dad.

A Columbia professor is arrested for incest — but isn't there a constitutional right to incest between consenting adults?

Here's the news about the professor, David Epstein, who is accused of having a sexual relationship with his 24-year-old daughter. Now, let's read Justice Scalia's dissenting opinion in Lawrence v. Texas (the case that found a substantive due process right to engage in sodomy). Justice Scalia quotes the majority opinion (and adds italics):

“[W]e think that our laws and traditions in the past half century are of most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.”

Scalia then writes (and I'm adding the boldface):

Apart from the fact that such an “emerging awareness” does not establish a “fundamental right,” the statement is factually false. States continue to prosecute all sorts of crimes by adults “in matters pertaining to sex”: prostitution, adult incest, adultery, obscenity, and child pornography. Sodomy laws, too, have been enforced “in the past half century,” in which there have been 134 reported cases involving prosecutions for consensual, adult, homosexual sodomy..... In relying, for evidence of an “emerging recognition,” upon the American Law Institute’s 1955 recommendation not to criminalize “‘consensual sexual relations conducted in private,’ ” the Court ignores the fact that this recommendation was “a point of resistance in most of the states that considered adopting the Model Penal Code.”....

The Texas statute undeniably seeks to further the belief of its citizens that certain forms of sexual behavior are “immoral and unacceptable”... the same interest furthered by criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity. Bowers held that this was a legitimate state interest. The Court today reaches the opposite conclusion. The Texas statute, it says, “furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual” ... The Court embraces instead Justice Stevens’ declaration in his Bowers dissent, that “the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.” This effectively decrees the end of all morals legislation. If, as the Court asserts, the promotion of majoritarian sexual morality is not even a legitimate state interest, none of the above-mentioned laws can survive rational-basis review.

Of course, the Court did assert that in Lawrence, so according to Justice Scalia, under the existing precedent, consensual adult incest cannot survive rational-basis review.

"Men tend to behave better when they're married..."

"... both because marriage likely helps improve their behavior, and nicer men are more likely to be married in the first place, a new study reports."

Via Instapundit.

The last couple of days, I've been preoccupied with the Prop 8 case, where the key question is: What is the government's interest in restricting marriage to opposite sex couples? The pro-Prop 8 side focused entirely — and oddly — on the fact that only opposite-sex couples make babies accidentally. If accidental babies are the problem, why express any negativity toward same-sex couples? They'll only get babies if they make a deliberate decision to have them.

But this study suggests another reason for the special treatment of opposite sex couples. Society extracts better behavior from men by encouraging them to pair up with women. Women are the tamers of men. Don't waste women on other women. The social order wants to maximize the use of women for the fixing of men. And if men pair with men, all hell will break loose. Double the chaos of men roaming solo. With synergy, even more than double.

I spent all day Monday watching the oral argument in the 9th Circuit, and much of yesterday, reading, talking, and writing about it. That would have been way more entertaining if the pro-Prop 8 lawyers had contended that there is a legitimate government interest in controlling men by yoking them to women.