Ciceronian Review

No Tip, Go to Jail

Pennsylvania may have some odd laws.  Police there arrested and charged a couple for not tipping.  I did not know tipping was part of the legal obligation in dining out -- I was under the impression that if one paid the bill, one was done.  Of course, now the prosecutor has stepped in and asked that the charges be dropped (a request the police chief seems to view with favor).  Still, something else was going on -- one hopes.  Was the cop dating the waitress?  What is the explanation for the charges, how did that even get to charges?  I wonder if the couple was jailed?  "When the bill came and Pope and Wagner refused to pay the gratuity, they were handcuffed and taken to the Bethlehem police station." 

In the Sunday Times, God and evolution get reconciled yet again.  The science writer gives us a few words about his recent book arguing that there is an evolutionary foundation for religious belief.  Contra the title, which says there is a gene for belief in God.  The latter is simply ridiculous.  There is no way at all to get to a genetic foundation, i.e., reproductive advantage, for belief in God.  It is a common conflation - religion and Judeo-Christian monotheism.  Unfortunate as well.  Not only is the conflation intellectually indefensible, it is redolent of a culture myopia so severe as to disqualify anything further from the author.  Even adding in Islam leaves one with a silly view of history.  But Sunday's author is about religious belief, not monotheism.  He offers up a short story about how religious belief might convey some advantage.  It is an interesting thought, but seems not to go very far.  The evidence identified in the article has to do with other things -- an interest in getting high, advantages of high social cohesion.  But there is nothing there, nothing in the article to connect social cohesion with religious belief, or how the propensity to religious belief gets into the genes.  Where is the evidence that the religious survive better or in greater numbers than the non-religious?  That is not something that comes out of archeology.  Where are the examples of the non-religious societies succumbing to the religious?  Anyway, what is the religious here other than causal attributions and limitless magical thinking?  Is it magic that marks religious beliefs? 

In any event, the argument is very bad news for the current religious in this country, at least the folk in the Christian, Judaic, and Islamic traditions.  They all need a free will believing, not a genetic predisposition.  Not so convincing that there is free belief and faith if it is really all  in the genes.

Listen to the Lion

Over the weekend the Indomitable Lions of Cameroon qualified for the World Cup competition.  The Indomitable Lions missed the last two Cups.  I settled on the team while watching their run in 1990.  (World Cup is the only football I watch - a poor fan, I admit.)  How could one not root for a team named Indomitable Lions?  Much better than Azurri -- though I root for them as well. 

I have a rooting scheme for Cup play: my ultimate favorite (Italy), my regional favorite (US), and then the third choice -- Indomitable Lions.  

Swiss under-17 beat Nigeria for the world championship a couple of days ago.  That was a remarkable achievement.

Vietnamistan

Karzai has mastered the trick of locking up American support.  Like the fellows we held up in Central America and General Thieu, it is not the corruption or incompetence that matters, it is whether the fellow appears opposite the enemy.  We had that corrupt general in VietNam.  The Afghan election was determined by fraud, as is pretty obvious.  But our government seems on a road to allow it all to slide because they are not sure what would follow if something approaching a fair run were to be held. 

Guns and Belief

I read a little paper by Leiter on whether religious freedom is based on tolerance or respect.  In the course of things, more as an aside I think, he talks briefly about beliefs being based on reasons and evidence, not caused by threats.  (There is a serious emendation shortly after that focuses on advertising and related propaganda).  It is a common enough statement, but I do not think it is right.  I think threats are a good way to bring about changes in beliefs -- whether guns of otherwise, most people seem to go with the views of the guys with guns when they have guns.  One of the things we can discern from the essays coming the now oldish Red Guard participants is the degree to which an atmosphere of violence alters beliefs.  I do not mean feigned belief to stay out of trouble, but just ordinary belief.  I would like to think that my beliefs all run down to reason and evidence, but that is not true.  Not just that none of us ever could, but that there is much that is just the result of habit, common talk, etc.  We all want to be heroes when that challenge comes, but not so many are obviously, and that means, in part, that people change what they believe because it is safer to do so.  That is not what Leiter was interested in -- he was interested in whether we should take a stance of respect for religion or a stance of tolerance.  Hard to quarrel with the conclusion that is tolerance, at least if reason and evidence count.

Corporate Say So

Earlier in the week, E. Volokh wrote a piece arguing that corporation should have something like the full panoply of Constitutional rights.  In particular, corporations should have full First Amendment rights, due process rights etc.  The substantive argument is that corporations are really just groups of individuals and in the absence of the Constitutional rights, the individuals would be unable (or it would be much more difficult for them) to accomplish their ends.  Corporations are just a group of people who designate another smaller group to act on behalf of the larger.  The piece is well-done, rhetorically.  But it is grounded in conflation and a kind of confusion.  (It is also curious in that it amounts to a justification for divestment programs and boycotts of businesses on political or other ideological grounds.  Not inconsistent, because Volokh is not really a political conservative -- but his argument is adopted political conservatives for whom divestiture and boycott are troubling, if not anathema.)

While corporations are associations, there is no good reason to think that associations should be understood as corporations.  Nor is there reason to think it particularly difficult to distinguish among associations or among corporations.  We have lots of different kinds of corporations, and many more kinds of associations.  Denial of First Amendment rights to commercial corporations does not have any particular implication for other sorts of associations, whether or not one thinks the association rights reduce to member rights.  There are many models of informal associations which effectively project the opinions of adherents, without invocation corporate form.  Boycotts, for example.  As we have single purpose corporations, and corporations with limited lives and limited purposes, and a host of foundations and kinds of non-profits, it is difficult to see why they should all be conflated to a single model, represented by business corporations. 

At the same time, it is inaccurate to describe the political activities of commercial corporations as representative of the views of ownership, or to suggest the political activities reflect anything like a plausible delegation of decisionmaking on the topic.  Set aside the many arguments to the end that ownership should focus on return, or that managerial decisions ought not be available to review or direction by ownership, although I think they would eventually have to be addressed by V.  Look instead for now at the argument that management of commercial corporations can be said to reflect ownership preferences on political issues or to have received some sort of delegation from ownership.  Where would prospective owners gain information about the political views of the directors and senior management?  When is that put up for the shareholders?  How is it reflected in stock pricing?  What the reasoning that suggests that when commercial corporations speak on political issues they do anything other than amplify the preferences of individuals who constitute management?  I would be interested in seeing the studies.

Which returns to the claim that admiting that GM's First Amendment rights are not very important tells us nothing much about the ACLU or RNC or NRA, or NYT.  Otherwise, V. should be arguing that there cannot be legitimate constraints on any association activity -- i.e., there is no basis for distinguishing among associations such as non-profits, etc.  That may be, but I have not seen an argument to that point. 

A final point -- we already deny commercial corporations lots of speech.  Regulation of fraud, for example, limitations on representations of causal effects, requirements of truth telling in connection with issuance of securities.  That is all a bit different from rights of persons -- V. can expound all he likes about the value of laetrile, but SmithKline cannot.  I am not sure how that sort of line can be drawn if we do not accept that commercial corporations have quite limited rights of this kind.

 

Texas Court of Criminal Appeals

As I go, I commend this opinion for your consideration (via Legal Ethics Forum).  It appears that, at least in Texas, there is no problem with the judge and prosecutor having sex while trying a capital case.  And note that almost all of those on the court sat with the judge involved.

The Texas Court of Criminal Appeals is appalling. 

All Gone Long Gone Real Gone Gone

On vacation for a bit.

Grave Robbing Is Not So Bad After All

The first of the defendants in the southern Utah group caught illegally collecting artifacts and rummaging through graves received sentences today.  The US Attorney said that "the public needs to understand that looting artifacts, many considered sacred by Native Americans, from public and tribal lands is simply not going to be tolerated. It is clear that there is a continued need for education on the serious nature of these crimes."   Judge Waddoups may have agreed; it is a little hard to say.  The defendants were guilty of 10 felonies.  The judge is quoted as saying: "I want to express my thanks," Waddoups said to the Redds and their family. "I know this has been a terrible experience for all of you."

The sentence was a small fine for each of the defendants and probation.  That sends a message. 

Dworkin Again

The second piece in Dworkin's essay that annoyed me (annoyance is the right term - there is no theoretical point underlying I think) was in this paragraph:

So the decision marks yet another step in the conservative justices' campaign to ban the most effective means of reducing racial tension in our country. They want to eliminate all vestiges of race-sensitive measures designed to help end racial stratification. They outlawed sensible school assignment plans in Louisville and Seattle that used racial tests.^[10] They hope to overrule Justice Sandra Day O'Connor's Grutter^[11] and now they have all but neutered the disparate impact provisions of the Civil Rights Act. Yes, it would have been unfortunate for the white firefighters who had studied so hard to make them take a new and different test. Sotomayor's panel expressed sympathy for them. But it is also bad—for community harmony and effective municipal service—when a city with a 60 percent minority population fields a police or fire department with few or no minority officers.

Well it is nice that the panel expressed sympathy for them.  In Plessy the justices were nice too.  I don't much care.  I rather doubt it meant much to the firefighters that the panel felt a bit sad about telling them they were out of luck (because of their or someone else's race).  If it did, then I suppose the African American firefighters now are now comforted.  I wouldn't. 

I think the panel ruled correctly, given the law before them.  I found Sotomayor's explanations of her panel decision and en banc decision completely satisfactory.  The Supreme Court decision changed things.

I have difficulty seeing why the racial composition of a fire department is of great import to a community.  I find that story, a bit opaque.  Firemen do not regulate the populace, they do not have extensive interactions with the community.  Dworkin's argument here, a pretty consistent position for him, is ironic in the sense that he seems to have no sense at all of economic strata or the effects of economic position on one's life and experience.  It is just race and sex that count for him, not class.  That is a mistake.