Newsweek on the future of Roe v. Wade

Newsweek has an article titled Reality Check for 'Roe', which comments on the South Dakota anti-abortion bill and state laws restricting late-term abortions. Earlier I posted some suggestions as to why the South Dakota legislature may have passed the law in the first place. The authors of the Newsweek piece (Martha Brant and Evan Thomas) also believe that the SD bill is unlikely to pass Supreme Court review and go for the "pandering to the base" explanation . It seems that the National Right to Life Committee and Americans United for Life are critical of the bill, exactly because it is unlikely to pass court review.

[Edited on Feb. 27.]

Mental and spiritual freedom

That's what the folks at the Houseplant Picture Studio take the "straight and narrow road to" after reading my blog. I'm glad about that. The encounter of a political scientist usually leads to madness and despair. The houseplanters moved me, in turn, to listen to Captain Beefheart, finally, and I am excited. Finally I understand what (er, whom) Tom Waits has been imitating after he went avantgarde.

South Dakota's anti-abortion challenge

The South Dakota legislature today passed its anti-abortion law, and it is likely that SD Governor Rounds will sign the bill. The apparent purpose of the law is to give the Supreme Court an opportunity to overturn Roe v. Wade. Since Sandra Day-O'Connor, who generally supported abortion rights, has been replaced by Samual Alito, abortion opponents believe that the Court may be ready to overturn Roe.

That's the story you'll read in the newspapers. What does not fit into this picture, however, is the fact that the South Dakota legislature wrote the law in a way that minimized its chances of passing Supreme Court review. The law outlaws abortion even in cases of rape or incest, or if the health of the pregnant woman is at risk. In addition, it defines the beginning of life at the point when a human egg is fertilized. This may prohibit stem-cell research and some birth-control methods, and may restrict medical research. There is a fair chance that a majority on the Court will reject a law with such broad implications. I am not even sure whether Justice Scalia would uphold the law. After all, he once characterized himself as a "faint-hearted originalist." Forcing raped kids to give birth may not be something for the faint-hearted.

Why does the SD legislature pass a law that is likely to be overturned? One possibility is that the law is mainly an act of symbolic policy. It makes a strong statement that appeals to more extreme voters and activists, but it is not meant to have much of an impact. The problem with this argument is that it assumes that voters and activists are gullible and belief the legislature's posturing, which I find unlikely. NPR reports that abortion opponents in fact debate whether a sweeping law such as the one in South Dakota is the right strategy to overturn Roe. Activists are aware of the fact that the law may not be upheld, they do not seem to be stupid or ignorant. But maybe they are irrational -- more interested in ideological purity than effective but morally compromising strategies.

Another possibility is that activists and politicians do not want the law to be upheld. It is well known that it is easier to mobilize support against something than for something. If abortion was illegal, conservatives would lose an important evil that helps them rally support. Liberals, on the other hand, would gain an evil that they could use to gather support. Maybe conservative activists and politicians prefer the status quo, after all.

I usually dislike such conspiracy-type arguments, as they violate an important property of good social science theories: parsimony -- explanatory simplicity. If you can explain the same facts with a simple argument and a complex argument, the simple argument is to be preferred. Since it is more complex to assume that people lie because of hidden strategic motives, the first argument (that the law is symbolic) is to be preferred. On the other hand, the hidden-motive argument does not require the assumption that activists and politicians are stupid or irrational...

A third possibility is suggested by Vikram Amar, who is quoted by Bloomberg News as suggesting that the South Dakota legislature may be expecting future changes on the Supreme Court that will lead to a favorable outcome. Amar points to the fact that cases usually take several years to reach the Supreme Court. It is likely that in the next couple of years at least one vacancy will have to be filled on the Court, opening the possibility for more conservatives on the Court. But, from the perspective of anti-abortion activists, those should not be faint-hearted.

Pretty cool Honda ad

After a week of exams, here is something neat for procrastination. Honda has released a car ad in Britain that features a choir singing a piece composed of car noises. You can watch it here. Found at Duncan's TV Ad Land.

OOPS UPDATE: I got the wrong URL for the add. Here is the correct address.

Professors and student emails

The New York Times today had a mildly amusing article on student emails to professors. The article has a few interesting points but has a strong no-news feel. There are professors who report that they get inappropriate and amusing student emails. From people in their late teens and early twenties? I am shocked. But the point of the article -- that the instant access to instructors via email has changed academic instruction -- is well taken. And it is a good thing.

One point that the article overlooks is that email communication is not only a means for instruction, but it should also be the subject of college education. The fact that we -- instructors -- get inappropriate emails (sloppy writing, no spell checking, no signature, no courtesy, etc.) indicates that students have not yet learned how to communicate professionally. Now, that's something people need to know if they want to succeed, and college should be one of the places to learn it. So, it makes a lot of sense to establish an email style code that sets minimum standards for emails that will be answered by the professors. I haven't yet implemented such a code, but I will next term.

You can find more comments on the NYT article at PrawfsBlawg and at LawCulture. (Who, by the way, started this habit of putting capitals in the middle of blog titles? Ew.)

New report on discrimination in voting since 1982

Published by the National Commission on the Voting Rights Act. You can find the report here.

Supreme Court upholds RFRA?

Today the Supreme Court *unanimously* ruled in favor of a Brazilian sect, which asked for an exemption from federal drug laws. As part of their religious ceremonies, members of the group, O Centro Espírita Beneficiente União Do Vegetal (UDV), consume tea made from plants containing a drug prohibited in the US. The feds had warned the group that they would be subject to criminal prosecution if they imported the tea from Brazil. The Supreme Court now decided that the First Amendment's Free Exercise Clause requires the government to make an exception to the narcotics laws to protect the group's religious practices.

I have not yet read the opinion (which you can find here), but it seems that the Court has upheld the 1993 Religious Freedom Restoration Act (RFRA), after all. The RFRA requires federal courts to use a legal standard that is very protective of religious freedom and basically gives it the same legal standing as the freedom of speech. In 1997 (City of Boerne v. Flores), the Supremes decided that it was not Congress's business to tell the courts which legal standards to use and, it seemed, overturned the RFRA (if you are taking my conlaw class this term, you know what I'm talking about). Now it seems as if the law is not overturned, after all. Interesting. What has changed?

Empirical Legal Studies Blog

Jason Czarnezki (Marquette University), William Ford (University of Chicago), Michael Heise, and Theodore Eisenberg (both Cornell) have created a new blog focussing on empirical studies of law and judicial processes. In political science, empirical studies of the law have been around for quite a while, but more recently legal scholars, including the blog's founders, have begun to use empirical methods, too. The blog should be of interest for scholars from both sides of the law/political science divide and already has a promising line-up of guest contributors, including some of the most important legal and political science scholars in the field. The URL is http://www.elsblog.org/.

Wiretapping and strict constructionism

On FindLaw, Vikram Amar and Alan Brownstein discuss whether the administration's defense of its secret wiretapping program would pass strict constructionist judicial review.

The cartoon crisis is getting sillier -- and more serious

First to the silly part: For days, there have been news reports that Iranian bakers have renamed Danish pastries; they're now "Roses of the Prophet." Never mind that the Danish don't call Danishes Danishes -- they're "Viennese bread." I guess the next thing Iranians will do is to rename French fries into "Jihad fries." And I will change the old "Buy Danish" campaign into the "Eat Danishes" campaign. You'll see.

On the serious side, the protests continue to escalate and their targets become more and more diffuse -- generally Christians in Nigeria, the US in Indonesia, homosexuals in Russia... I don't have much to add to the debate swirling around the internet and other media, except for one thing: Even though the cartoons were probably just a tool used by Islamic fascists to incite unrest, I hope that there will be a profound and well-reasoned debate about the ethical limits of free speech. Not the legal right to offend -- the government should stay out of that matter -- but the question when it is appropriate to offend somebody, and when it is appropriate for somebody to claim offense. Such a debate will not defuse the current conflict, but it may support the position of moderate Muslims, who are possibly more under attack than Western societies.

More on agenda-setting

Two of the most important researchers of agenda-setting and its impact on policy outcomes, Frank Baumgartner and Brian Jones, have been collecting huge amounts of data on the US policy agenda, and on actual policy changes, since World War II. Their data, and more resources about their project, are available
at the following website. They also provide information on their project, links to papers, lesson plans using the data, and more. Check it out!

The quail shooting agenda

It's interesting to see how some stories -- NSA wiretapping, anybody? -- almost disappeared from view this week, with Cheney's quail hunting misadventure. Looks like a classic example of how unpredictable events can influence the media agenda and make some decisions fairly easy. For example, on Thursday, the Senate intelligence committee decided to cancel hearings into warrantless wiretapping authorized by President Bush. At the same time, the administration declared that it was open to talk about legislation regulating the wiretapping program. While nobody watched, a compromise emerged.

Cheney's shot: A tort?

OK, people seem to find the Cheney hunting story "enjoyable" and take the opportunity for a lawyer joke. Poor Harry Whittington.

Anyway, here is a teaching moment: Can Whittington, after all an experienced lawyer, sue Cheney for tort? And for which one? Ed Lee speculates about the possible cause of action: battery or negligence?

And since I mention frivolous jokes about hunting accidents, I might as well remind everybody of Tom Lehrer's nice old ditty on the topic. Something to learn by heart.

Update

Ed Lee took his post out of consideration for Whittington, who has suffered a heart attack. I don't see how the heart attack makes the discussion more or less insensitive, but with the Mohammed-cartoon controversy on everybody's mind, people seem to be confused about what can and cannot be considered insulting. Oh well.

Unreadable?

In the new New Yorker, David Denby claims that one of my favorite books, Lawrence Stern's Tristram Shandy is "unreadable." As Walter Shandy would say: Pish!

Dead and alive -- the good news

A couple of days ago, it seemed that Houseplant Picture Studio was closing its virtual doors. Now they are open again, which is really good news. Their Photos of an Unknown Family who Probably Owned a Liquor Store have been one of the last year's wonderful www phenomena -- mysterious, funny, and sad.

Cartoons and burning embassies

Joe Miller has a neat little discussion on the cartoon debate at his blog around the corner. As Joe, I don't have much to add to the raging debate that you can follow at Andrew Sullivan's, signandsight, Volokh Conspiracy, etc. (and don't forget Juan Cole, who makes some interesting comparisons with Northern Ireland). (Nevertheless, I left a longish comment, egg on my face. How do you recognize a professor?)

Anyway, two more things:

First, Chris Bertram has written a *very* useful argument in and for the debate, over there at Crooked Timber.

Second, and seriously now, what strikes me as most important in the whole affair is the sense that this is really an important juncture, definitely for Europe and probably for the rest of the world. Maybe more important than September 11, March 11, or July 7: In those events, foreign terrorists entered the US, Spain, and Britain and committed mass murder. The reaction against such acts is nothing qualitatively new: Destroy the terrorist organizations, keep foreign terrorists out of the country, and prevent those who get in from committing further acts. Difficult but doable.

In the cartoon affair, we are not dealing with terrorism (yet?), but -- possibly worse -- with widespread mass agitation and violent activism against some of our most fundamental values. The activities take place mainly outside Europe and the US, but they are very effective in putting Europeans under pressure. A Danish newspaper publishes some cartoons that offend several Danish Muslim activists, who take the cartoons to a number of Middle Eastern countries to mobilize a mass movement to change Danish laws, they receive support from some Middle Eastern governments, and a world crisis is born. That's globalization, folks, and nobody seems to know how to deal with it! In the past, if immigrants caused trouble in Europe or the US, the common perception was that they could be simply deported. Now the concept of immigrant and foreigner does not even make sense in the conflict, as it does not matter where the demonstrations take place. Sure, in principle Britain could deport many of those guys who demonstrated in London last week, but it would not change the situation. We better get used to such global societal conflicts and find a way to deal with them *and* protect our values.

How should I understand this?

Today at Barnes & Nobles: found Kübler Ross's On Death and Dying -- in the Self-Improvement section.

Humor deficit reduction

From USA Today via Andrew Sullivan:

"Congress approved a $750 million, five-year plan aimed at building healthier marriages Wednesday as part of its deficit reduction bill."

I guess that's the Marriage Deficit Reduction Clause of the Deficit "Reduction" Bill.

Implicit biases and Katrina

I am not surprised that the study on racial bias and partisanship that the WashPost reported on (see here) resonates among partisans (see the comments to my previous post). After all, political elites are pretty polarized these days and grateful for any partisan ammunition.

As an empirical political scientist, however, I should point out that even if Republicans in fact have stronger racial biases than Democrats, this does not explain why the federal government response to Hurricane Katrina was a disaster. Racism may or may not have played a role -- we don't have the evidence to decide one way or the other.

Let's go through the arguments:

First, the type of bias measured by Project Implicit is a cognitive bias, which is different from prejudice, which in turn is different from discrimination. Now, the differential treatment of Katrina victims (those with cars got away and stayed in motels, those without cars ended up in football arenas) constituted discrimination -- those people who were treated badly were predominantly poor and members of racial and ethnic minorities. However, we do not know whether the discrimination was caused by prejudice (i.e., public officials did not make better plans because they did not want to bother about blacks) or inability (i.e., public officials did not make better plans because they couldn't, due to incompetence or missing resources), or other factors such as housing patterns, poverty patterns, and the like. The same outcome could have been caused by different causes.

Second, the post-Katrina criticism of the federal government has centered on President Bush (see "George Bush don't like black people"). However, we do not know whether he in fact participated in the Project Implicit study, and if he did participate, we would not know whether he personally in fact showed more racial bias than most Democrats or not :-) . The study drew conclusions about differences between groups of partisans; it does not allow us to draw conclusions about specific individuals.

Third, in order to draw empirical conclusions about the possible causes of an event, we have to compare the event with other, comparable, events. Assume for argument's sake that the administration in fact was racially biased. Then, to show that the bias translates into discrimination, it would not be enough to show that the Katrina response was discriminatory. We would have to show either that the response of the same administration to other comparable disasters (not involving minorities) was not discriminatory, or that the response of other public officials (with fewer racial biases) to the same disaster was not discriminatory. The first strategy fails. There was not a comparable disaster to which the Bush administration had to react. Hurricane Rita, a month after Katrina, did not create an emergency that was comparable to Katrina. The second strategy is available, as a number of public officials at different levels of government, with different party affiliations, were responsible to protect New Orleans residents. Comparing their reaction, we find that all of them -- federal officials, state officials, Republicans, Democrats, blacks, whites -- failed to perform adequately. Again, no evidence that the administrations low performance was due to racial bias.