October 26, 2005
The New York Times has a story about extra parole restrictions on sex offenders during Halloween. A number of areas have contacted convicted sex offenders-- so far as I can tell, only sex offenders who are on parole-- and told them that they can't answer their door to trick-or-treaters, accompany their children to trick-or-treat elsewhere, and so on.
While the naive student of constitutional doctrine might think that these sorts of restrictions on one's ability to speak, to open the door to willing visitors to one's house, to travel, to travel with one's children, and so on were Constitutionally problematic, I shall take it as a given that nobody trying to make a federal case out of this will get anyplace in the end. (I am more agnostic about the future of a state case.)
But since Professor Heather Gerken is slowly converting me from the study of rights to the study of structure, I will confess that I am more interested by the question of statutory authority. I am basically ignorant of the law on the ground in this area, so do I understand the following correctly?
1: The restrictions described in the article are not imposed by any legislative body (a city counsel, state legislature, or the like), but rather by edict of some executive body.
2: Parole officers are generally considered to have the authority to engage in liberty-curtailing rule-making like this.
3: This sort of delegation is not considered problematic as a state- or federal- constitutional matter by any court of interest.
Is this roughly right? I can see arguments for this sort of structure-- the chiefest being 1, that the growth of the modern administrative states has made both state- and federal- non-delegation doctrines (if they ever existed) politically infeasible to enforce and 2, that since prison is almost always an option to parole, the defendant essentially waives all of his constitutional objections. The second argument seems problematic since we don't normally allow people to waive structural constitutional principles, but there may be something to the first.
Comments on delegation and the administrative structure of the parole system are invited.
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It is perhaps worth remembering that the "conservatives" of each prior era in America in the last century were, without an exception I can recall, on the morally reprehensible side of every major social and economic issue.
I am curious-- genuinely curious-- about what Leiter makes of conservative opposition (by Czeslaw Milosz, Friedrich Hayek, and others) to Soviet totalitarianism. I can see the following possibilities:
1: Leiter does not think that Soviet totalitarianism was a "major social and economic issue".
2: Leiter does not think that "conservatives" in post-McCarthy America were on the side opposed to Soviet totalitarianism.
3: Leiter thinks that opposition to Soviet totalitarianism is "morally reprehensible".
4: Leiter thinks that Milosz and Hayek and the others were not "conservatives".
5: Leiter simply had not thought of this, but it does constitute an exception.
My own take, of course, is that Hayek and Milosz were massively, devastatingly right on this issue of major social and economic importance, just as Martin Luther King and American liberals were massively devastatingly right on others.
UPDATE: Many readers write in. One suggests that Leiter implicitly means to refer only to "domestic policy" rather than "foreign policy". This strikes me as unlikely, but in any case is included by my Number 1. Another reader suggests that Leiter means not only to refer to conservatives in "America" but only to those who are actual Americans, which may not include Hayek. This still leaves a large number of post-McCarthy anti-communist conservatives-- Ronald Reagan, et. al. It seems to me that there are many valid criticisms of conservatism in America since 1910, but it is hard not to concede that critics of Soviet totalitarianism were right.
UPDATE TWO: Will Wilkinson has more.
UPDATE THREE: A reader writes in:
I think Leiter might agree to a modified form of 2. While it is obvious that American conservatives were opposed to the Soviet Union, it isn't obvious that they were opposed to the Soviet Union because of its totalitarianism. There were lots of reasons for a conservative to oppose the Soviet Union. For example, the success of its economic system would threaten capitalism. Also, its status as a world power may have been a concern of conservatives simply because it threatened America's hegemony. The point is that totalitarianism seems insufficient to generate opposition from conservatives since they tolerated (and in some cases supported) other totalitarian regimes. And, if they were opposed to the Soviet Union for economic or hegemonic reasons, I think Leiter wouldn't hesitate to say that conservative opposition to the Soviet Union was morally reprehensible.
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Once upon a time, I used to post brief movie reviews on this blog with some frequency. (Always putting me in mind of Richard Posner's comment that his one regret about law school was that he had seen too many movies.) This, the observant reader will note, has largely stopped. The reason is that my Netflix subscription has been almost wholly turned over, since the summer, to watching the television shows of Joss Whedon. First Firefly, then Buffy the Vampire Slayer and Angel. (Although since my discovery that seasons 1 and 2 of Angel are available in our law library, the proportion has changed slightly.) A friend ridicules these shows as "bad" but also has not seen any of them, so her judgment is suspect. They are in fact very very good, even if the consensus is that Buffy will become much worse over time.
At any rate, from about 5th grade until now I watched almost no television, so I always felt disconnected from popular culture (like Nate Oman). It turns out that the DVDs help, but not as much as you would think since they lack the original commercials, teasers, and the experience of watching the commercials and trailers for the show the week beforehand so that all of the good surprises are spoiled. I also confess that I don't understand how one could watch a show like Buffy by coming in in the middle-- the thing, so far, is such a massive story arc that starting up in season 3 would seem to miss most of the point.
Is this because shows really do cater to their DVD audiences now, because people really are loyalists from day 1, or am I simply missing something? Or maybe this explains why Law and Order, CSI, and their spinoffs top the charts every week while the Gilmore Girls and West Wing languish.
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Some recent silliness has led people to attempt to figure out the cash value of various blogs-- including this one (circa $114,000). Larry Ribstein has a smart reply pointing out that what exactly this figure means is a little confused, since, after all, if Crescat were run by somebody other than us, it would hardly be anything but an unpronouncable latin name and a load of Movable Type malfunctions.
Ribstein also suggests-- and here I dissent-- that an individual blog is probably not unique:
he sellerís talents probably arenít unique. The new owner could mimic the previous writing style, take over many of the contacts, etc.
Ribstein suggests that the major limit on this is that the new owner wouldn't keep the old owner's reputation for accuracy. This misses, I think, what is valuable about a great many blogs-- it is not just that they are collections of accurate reporting and links, it is that they are the home of interesting and smart ideas. In other words, it's not the style, it's the substance.
At any rate, the $114,000 figure is intriguing. Leaving aside the problem of splitting the lucre with my co-bloggers, I am actually not sure that I would give up blogging for that sum-- which is less than the pre-tax pay of a first-year associate in a large city law firm.
I suppose I could give up Crescat and simply set up shop elsewhere, but this is home, and the one-fives are far off. And, of course, it's not as if there's an actual buyer out there with a six-figure check, so virtue untested is ignorance.
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Dan Solove has a post recounting the amusinc course offerings from his days here at Yale. I confess that I cannot sort out which professors match which courses, in part because it is just too easy to envision so many people here who would teach them. Then again, I have courses on my transcript called "Fugitive Resources" (which is really "Water Law") and "Dissenting by Deciding" (which is really "Related readings on paper by same name by visiting Professor Heather Gerken") so I should probably not make fun.
A Friend of Crescat has developed a basic rule of thumb that any course listed in the law school's course catalog that contains more than three substantive words is bound to be B.S. So, for example, "Introduction to Intellectual Property" (three real words) might be fine but "Public Life in the Modern World" or "Six Books on Law and Religion" are not.
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