Is the 9th Circuit More Liberal Than Other Circuits?

That's the title of my APSA paper for this year. You can find a copy on SSRN.

And here's the abstract:

Is the U.S. Court of Appeals for the Ninth Circuit more liberal than other circuits? This paper looks at three possible definitions of judicial liberalism and tests whether the Ninth Circuit is more liberal, using data from the U.S. Courts of Appeals database and Giles et al. Common Space scores. First, the paper compares overall the proportions of liberal decisions in different circuits and finds that the Ninth Circuit is more liberal than most circuits, but with a fairly low probability. Second, the paper looks at the probabilities that a randomly chosen panel in the Ninth Circuit has a more liberal median than a randomly chosen panel in another circuit. Again, while the Ninth Circuit is likely to be more liberal than most other circuits, the probabilities are fairly low. Third, the paper presents estimation results from a hierarchical Bayesian model that compares the influence of judicial ideology on judicial outcomes in different circuits; it finds that this influence is lowest in the Ninth Circuit. As a result, the paper is not able to explain why the Ninth Circuit is singled out as a particularly ideological circuit.

I presented the paper as a poster this time, which I generally like - more direct conversation with attendees, no time pressure for the presentation. I also prefer going to poster presentations than panels. One doesn't have to sit through bad presentation - if a poster is badly done, you can move on - and there are more opportunities for direct conversations with presenters. My poster was located in Siberia - a board in the furthest corner of the hall, surrounded by empty boards reserved for posters that never showed up. Never mind - four people stopped by, and that's about the average size of the audience in the panels that I found interesting. Anyway, if you want to read the poster summary of the paper, check it out (careful: DIN A0 format!).

More on free reference managers

Months ago I wrote about Zotero and CiteUlike. The "market" is getting a bit more crowded, and over the last year or so, I've come to work with JabRef. I like it. It works under Windows, Linux, and Mac OS, it seems to be stable (no problems over here, at least), and runs on Java. The references are saved in BibTeX format, which means export is no problem and the databases are simply textfiles - small and portable. I use mainly LaTeX for my writing projects, so a BibTeX manager is all I need. However, there is a Word Macro Package that allows integration of BibTeX into MS Word (see BibTex4Word on Mike Brookes's website; see also this discussion). I suppose it's something for people who are willing to make things work (er, play with their computers). I haven't tried Zotero in a while, so I don't know if it's easier to use.

Gitmo trials and indefinite detention

One of the puzzling things about Salim Hamdan's military commission trial for conspiracy and supporting Al Qaeda was that even though he received a light sentence - and was acquitted of several of the charges - he can still be detained indefinitely. In principle, this means that even though he has to serve only five more months of his sentence, he can be incarcerated until the end of his life. How come? Michael Dorf (in this FindLaw column) gives a quick and clear explanation that clarifies the main legal distinction and raises the right questions. Highly recommended!

In a nutshell, Hamdan's trial before the military commission was for crimes the government claimed he had committed - supporting Al Qaeda etc. He was convicted of some of the crimes and received a sentence of 5-1/2 years. His overall detention at Guantanamo, however, has been justified with his status as unlawful enemy combatant, which was determined by a review board, not the military commission that tried him for crimes. Technically, then, there are two different reasons to detain him for different time periods, although these reasons are linked, since Hamdan's role as bin Laden's driver led to his capture as an enemy combatant.

Of course, the fact that this distinction has been drawn by the administration and its lawyers (and the fact that it is used to justify detention without judicial review) does not mean that it should be drawn. Dorf, for one, argues that the administration cannot indefinitely detain people like Hamdan whose sentence is not for life (or who have not been convicted in military court). Part of the debate is whether the Global War on Terror is a conventional war, and whether the "war" in GWOT is a metaphor (as in War on Poverty) or an actual international war (as in WWII). Dorf: "the analogy to conventional war is a poor fit for terrorism suspects. Those determinations justify [Hamdan's] initial detention, but in an era of a perpetual war on terror, due process should require something more for continued detention." If you want to read the other side, see Justice Roberts's dissent in Boumediene v. Bush.

Rejecting the view that the GWOT is a conventional war, Dorf suggests civil commitment as a model for detainees who are dangerous, with periodic review of their continuing danger. More can be found on Dorf's blog, which I find worth checking periodically.

Talking about the Bundesverfassungsgericht

The German Constitutional Court just overturned several German state laws banning smoking in bars. The problem wasn't that they violated a fundamental right to nicotine: According to the Court, the laws violated the professional freedom of people running small bars, as owners of large bars were permitted to designate separate smoker rooms - an option not available to small-bar owners, who argued that they would be driven out of business. The Court stated, however, that state laws prohibiting smoking in all bars would be constitutional. For now, one-room bars can declare themselves to be smoker bars, as long as they exclude patrons under 18 and don't serve food (the drinking age in Germany is 16, so this will exclude at least some drinkers - but then those limitations are never very strictly enforced). Two tidbits to the story that I find amusing: The small bar owners found some sympathy in the public debate because they include owners of so called corner bars - small bars on city corners that are a firm part of German mythology: The foundation of urban community life, the regular meeting place of friends and strangers, etc. Second, the bar owner who brought the suit runs the Pfauen (Peacock) bar in Tübingen - a place I frequented in my young and carefree days.