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Justice Kagan on Justice Scalia

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Yesterday I had the honor of attending the re-naming ceremony for the law school at George Mason University in Arlington, Virginia (about 20 minutes from my home)  --  now known as Antonin Scalia Law School.  Among the speakers was Justice Elena Kagan.  I thought she did a brilliant and heartfelt job of summarizing the enormous impact Justice Scalia had on law and judging in the United States.

I told my students at Georgetown Law at the beginning of our class this semester that, fifty years ago, the question I thought most judges would have asked themselves was, "What is the just outcome in this case?"  The question far more frequently has become one that respects democratic self-government:  "What outcome in this case is most faithful to law?"

The change is due principally to the work of Justice Scalia, probably the most intelligent man I have ever known, His acumen is widely recognized; his courage in taking on the existing order isn't so much, but should be.

Justice Kagan's remarks are here.

Confirmation Bias

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It's only human.  If we hear a piece of information that fits with the way we think things are, we are more likely to accept it without scrutiny.  If we hear something that is contrary to our world-view, we are more likely to subject it to scrutiny.

James Taranto at the WSJ and Jonah Bennett at the Daily Caller report on how easy it was to "troll" journalists with a fake story merely by providing a supposed connection between Donald Trump and white supremacists.  Bennett quotes one of the hoaxers:

"Basically, I interspersed various nuggets of truth and exaggerated a lot of things, and sometimes outright lied -- in the interest of making a journalist believe that online Trump supporters are largely a group of meme-jihadis who use a cartoon frog to push Nazi propaganda. Because this was funny to me," Swift told TheDCNF.

"The idea that every major Trump supporter online is secretly a neo-Nazi, for one. I mean, it's just not true. But it's the kind of thing that a journalist will readily believe."

This is why it is so important to have a diversity of viewpoints in both journalism and academia and why it is so dangerous and harmful that both of these professions have a badly skewed distribution.   Claims need to scrutinized whichever side of the aisle they serve, and we would have more thorough and complete scrutiny if we had a better balance of viewpoints.

You Can't Make This Up, Part Eight Zillion

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A prominent legal blog has this entry:  "Why Capital Punishment Is No Punishment at All."  I'll quote the entry verbatim:

Capital punishment has generated an incredible amount of public debate.  Is the practice constitutional?  Does it deter crime?  Is it humane?  Supporters and opponents of capital punishment disagree on all of these issues and many more. There is perhaps only one thing that unites these two camps: the belief that the death penalty is society's most severe punishment.

In this Article, I argue that this belief is mistaken. Capital punishment is not at the top of the punishment hierarchy.  In fact, it is no punishment at all.  My argument builds from a basic conception of punishment endorsed by the Supreme Court: for something to qualify as a punishment, it must be bad, in some way, for the person who is punished.  By drawing upon the philosophical literature regarding death, I show that this is not the case.  Contrary to our intuitions, the death penalty is not bad, in any way, for a condemned criminal.

This conclusion should not be understood to suggest that death is never bad. In most circumstances, death is bad.  There are, however, situations in which it is not, and capital punishment, as employed in the United States penal system, is one such situation.  By showing that capital punishment is not bad for the condemned criminal, I provide a strong constitutional objection to the practice.

Gads, why hasn't the ACLU thought of this?  Capital punishment is unconstitutional because being put to death is "no punishment at all"!!!

Many astute writers about criminal justice pride themselves on analysis of data.  This is fine (as long as the data aren't intentionally skewed to omit inconvenient facts). Numbers can tell us a lot  --  for example, that shootings of police officers are markedly up this year, that murder is spiking in dozens of cities, and that heroin trafficking and related overdose deaths have reached epidemic levels.

The other side of the coin is that "data," even when considered honestly, can be used to create a miles-deep fog of what academics tell us is a "nuanced" and "careful" analysis.  Such analysis, we are lectured, is in contrast to the screeching of wahoos, cowboys and assorted brickheads who, in their Trailer Park way, have become alarmed about crime and think that punishment and incapacitation are warranted.

Every now and again, it's useful to clear away the academic fog to recall what it's being used to obscure.  This is one such story, taken not from the annals of death penalty arguments, buy merely from the inner section of yesterday's Washington Post.  The whole mind-bending article about a random savage murder is a revelation, but this is the paragraph that caught my eye (emphasis added):

[P]olice called to the scene discovered William Bennett's body, but [defendants] Roberts and Bowman had moved Cynthia Bennett, then 55, behind a fence and she lay unconscious for 45 minutes before she was spotted. Howard David Reines, a trauma surgeon at Inova Fairfax Hospital, testified in 2011 that Cynthia Bennett suffered cuts and broken bones in her face and around her eyes, one ear was partially torn off, she had a severe injury to her pelvic area and she lost more than five quarts of blood through the wound in her lower body before doctors could halt the bleeding. "In 30 years, I don't think I've ever quite seen anything like it," he said.

This is the kind of stuff crime victims live with.  Good luck finding a word about it on SSRN.

The Mother of All Corrections

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Not directly on topic, but too good to pass up.

Several years ago, the American Journal of Political Science published what became an oft-cited study showing a correlation between conservative political ideology and authoritarian/psychotic tendencies.  It now turns out that the authors had their codings for liberals and conservatives "exactly reversed," to quote their language.  In other words, it's the liberals who are (per the study) more likely to be authoritarian nuts.

For those of us accused of being conservative, authoritarian headcases, this was the laugh of the day.

The full story is here.

The New Fascism Smears Antonin Scalia

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I wrote earlier today about BLM's fascist takedown of a Dartmouth student bulletin board honoring the sacrifices of police officers.  Diversity of opinion, once seen as a staple of liberal higher education, seems no longer to be in vogue, as least if the dissenters look kindly on police heroism (as even Barack Obama does, to his considerable credit).  

Thus, as Kent noted, there is a controversy, to put it mildly, about re-naming George Mason Law School for Justice Scalia.  The Koch Foundation, with which I disagree about sentencing reform, made the astoundingly generous offer of $10,000,000 to endow scholarships at the re-named School.  One of them would go to students who have "overcome barriers to academic success, demonstrated outstanding leadership qualities, or have helped others overcome discrimination in any facet of life."

That the Koch Foundation made this offer to honor a brilliant but conservative Justice is too much for some faculty to bear.  John Hinderaker describes the leader of the resistance as a "cultural studies professor" who

...engages in "community organizing around housing access, social movements for trans justice and prison abolition, and queer anarchist anti-war activism." Naturally, he is also the faculty adviser to GMU Students Against Israeli Apartheid."

As my father told me, thank God for your enemies.

Read John's enlightening essay here.
Jonathan Adler has this post at the Volokh Conspiracy, "On the ridiculous controversy over changing the name of the George Mason University School of Law," i.e., to rename it in honor of the late Justice Antonin Scalia.

Adler lays out well why the controversy is ridiculous, and I recommend his discussion.  I was particularly struck by this statement:

Faculty from unaffiliated departments, such as art history, "cultural studies," and others (notably excluding economics, mathematics, and the physical sciences), began a campaign in the Faculty Senate to pass a resolution urging the university administration and the State Council of Higher Education for Virginia to delay acceptance of the gifts.
Why this striking difference by department?  It tends to confirm what I have long suspected.  There is a negative correlation between the extent to which a field of study is tied to objective reality and subject to experimental verification or falsification (i.e., real science, whether physical or social) and the degree of loony leftism in the faculty.  Lefty loons are attracted to subjects where they can't be objectively proved wrong.  It's easier to spread B.S. in such subjects.  (And no, I don't mean Bachelor of Science).

Black Lives Matter, the New Fascism

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The cleansing of conservative ideas from academia reached new lows this last week at Dartmouth, where campus Republicans, having sought and secured permission, used a college bulletin board to put up their display, "Blue Lives Matter."  It was designed to honor, during National Police Week (May 15-21) the sacrifices of police officers.

This was too much for Black Lives Matter hooligans, who tore it down.  In its place, about three dozen sheets of paper were pasted up, all carrying the message: "YOU CANNOT CO-OPT THE MOVEMENT AGAINST STATE VIOLENCE TO MEMORIALIZE THE PERPETRATORS." At the bottom, each sheet also had the hashtag "#blacklivesmatter."

The Dartmouth Review has the story, complete with timeline.

To my knowledge, Dartmouth administrators have taken no action against the BLM bullies, and have instead warned the College Republicans not to attempt to reconstruct their display on the bulletin board  --  the one they spent weeks reserving.

I won't go into the fact that the police have done vastly more to save black lives than all the Dartmouth strongarms put together.  I will simply note that, if we want a glimpse at how fascism gets started, BLM is doing us a favor.

A Tale of Two Philadelphia Universities

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As recounted here, CIA Director John Brennan was shouted down last Friday as he attempted to speak at a University of Pennsylvania forum about national security. This is becoming a typical tactic of liberal fascism, taken straight from the Sixties mold.  You will not be surprised to learn that the SDS and BLM were at the heart of it.

Meanwhile, yesterday, a different school in the Philadelphia area, Villanova Law School, hosted a Federalist Society debate between Prof. Steve Chanenson and yours truly.  The topic was sentencing reform.

Even though that's a hot topic, often said to have racial overtones, there were no interruptions. Instead, there was a large, attentive and polite audience full of questions.  Prof. Chanenson gave a wonderfully thoughtful and informative presentation.  Undoubtedly Pennsylvania's leading expert on sentencing, he explained the contours of the difference between those favoring more discretion and those (like me) favoring the present, more rule-oriented system.

Penn, my father's alma mater, is a top-notch school.  I can only hope its Law School Dean, Theodore Ruger, will mete out serious discipline to those who want to end free speech on campus and impose lockstep obedience to the Left's one-size-fits-all anti-American agenda.  In the meantime, I'm grateful to Prof. Chanenson and the Villanova Federalist Society for moving forward in the best traditions of academic freedom and the marketplace of ideas.
In some corners of the Bizarro World of left-wing academia, freedom of speech and freedom of the press are limited to expression of Politically Correct ideas.  What do you call it when a Politically Incorrect student journalist tries to cover a protest, and a professor of communications, no less, calls for "some muscle" to forcibly remove him?  The City of Columbia prosecutor calls it assault in the third degree.

Erik Wemple, media blogger for the WaPo, reports:

Melissa Click, an assistant professor of communication at the University of Missouri, has been charged with third-degree assault by the city of Columbia prosecutor's office, an assistant at that office confirmed today to the Erik Wemple Blog. The arrest comes months after Click was captured on video asking for "some muscle" to counter a student journalist at a November protest at the university. She also pushed the student journalist's camera.

Spinning the Murder Surge

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Heather MacDonald has this op-ed in the WSJ exposing the Brennan Center's attempts to paper over the rise in murders and the "Ferguson effect."  An 11% rise in homicides in a single year is a horrifying spike, but MacDonald notes how the Brennan Center soft-pedals it, and several media outlets join in a subjective classification of the rise as "slight" etc. without giving their readers the benefit of the actual number.

The puzzle is why these progressives are so intent on denying that such depolicing is occurring and that it is affecting public safety.

   The answer lies in the enduring commitment of antipolice progressives to the "root causes" theory of crime. The Brennan Center study closes by hypothesizing that lower incomes, higher poverty rates, falling populations and high unemployment are driving the rising murder rates in Baltimore, Detroit, Milwaukee, New Orleans and St. Louis. But those aspects of urban life haven't dramatically worsened over the past year and a half. What has changed is the climate for law enforcement.
The fact that spin from an ideologically driven organization like the Brennan Center has gotten as much credence as it has in the press is a symptom of a major problem in American society.  There is a gross imbalance in the number and funding of nonprofit organizations interested in crime issues.  The Manhattan Institute (where MacDonald works) and CJLF are outnumbered and outspent by the Brennan Center, the Marshall Project, the Urban Institute, the Pew organizations, the Death Penalty Information Center, and on and on.  [Hint:  If an organization is named for one of the two most pro-criminal Supreme Court Justices in American history, it is not a neutral source of information.]  The capacity of these organizations to pump out reports that seem to support the leftist agenda but do not hold up to examination exceeds the capacity of organizations of contrary viewpoints to make and publicize the examinations.

In addition, both the press and academia are populated by people whose spectrum of viewpoints is shifted at least one sigma left of the American median, if not two.  Assertions that fit with the general set of assumptions of the left simply do not get as much scrutiny as those that run contrary to those assumptions.

This combination of factors produces a dangerous situation where spin goes insufficiently challenged.  If such spin leads to wrong policies in matters of life and death, the potential consequences are grave indeed.

Is Prison Criminogenic?

I've been debating for years the question whether prison is criminogenic, i.e., whether imprisonment increases crime.  Doug Berman, among others, has consistently said that prison is indeed criminogenic; I take the opposite view.  I think the evidence is overwhelming that imprisonment decreases crime.

One of the things I like about Doug is that he'll do something most other defense-inclined bloggers won't  -- post evidence contrary to his view.  He has done so again today in this entry (emphasis added):

Whether punishment promotes or deters future criminal activity by the convicted offender is a key public policy concern. Longer prison sentences further isolate offenders from the legitimate labor force and may promote the formation of criminal networks in prison.  On the other hand, greater initial punishment may have a deterrence effect on the individual being punished, sometimes called "specific deterrence," through learning or the rehabilitative effect of prison.

We test the effect of prison sentence length on recidivism by exploiting a unique quasi-experimental design from adult sentences within a courthouse in Seattle, Washington.  Offenders who plead guilty are randomly assigned to a sentencing judge, which leads to random differences in prison sentence length depending on the sentencing judge's proclivities. We find that one-month extra prison sentence reduces the rate of recidivism by about one percentage point, with possibly larger effects for those with limited criminal histories. However, the reduction in recidivism comes almost entirely in the first year of release, which we interpret as consistent with prison's rehabilitative role.

That's one item, but the argument that prison reduces crime is far more robust than that.

Race Huckstering Goes Over the Edge

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You might think this story is from the Onion, but, regrettably, it's not:

The Black Student Union at Lebanon Valley College has made a number of demands of the college, and one is prompting considerable backlash. The students want the college to rename Lynch Memorial Hall, PennLive reported. The building is named for Clyde A. Lynch (right), an alumnus who was president of the college from 1932 to 1950, and who died in office. He is credited with helping to keep the college functioning and growing during the Depression, no easy task for a small college without a large endowment. Students who are pushing for the name change say that the name "Lynch" has racist associations because of lynching. 

Memo to the Attorney General:  Please change your name to Loretta Smith.

Studies, Experts, and Other Baloney

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Kent posted an admonition to take with a grain of salt (or maybe ten grains) any solemn pronouncement you hear or read in which "experts" release a "study" that shows X.

As usual, Kent nails it.  Academia, including legal academia, is chock full of largely self-annointed (and media-annointed) "experts" with one thing in common: a Leftist and pro-criminal bias.  This is not uniformly true (for example, see Prof. John Pfaff's work noted by Steve Erickson here, or Campbell Law Prof. Zach Bolitho), but a pro-criminal bias is endemic in both law schools and think tanks.

What this brought to mind was a bunch of "experts" often cited in the liberal press, such as the Washington Post (just today) and the New York Times.  That would be the Brennan Center operating out of New York City.

The Brennan Center is to incarceration what the DPIC is to the death penalty:  An organization that fronts itself as a source of information while making less prominent its actual purpose  --  to crusade for the interests of criminals.  This is very much why it is sought out for its "expert" views (while CJLF occupies Linda Greenhouse's doghouse and, according to her, should be shunned).

It was the Brennan Center that discovered, contrary to the findings of every credible researcher who has looked at the question (not to mention common sense), that the country's markedly increased willingness over the last generation to incarcerate people who commit crime has had next to nothing to do with the marked decrease in crime.  I covered the Brennan Center's preposterous "study" here.  

WaPo fact checker Michelle Ye Hee Lee had this article Thursday on President Obama's various statements after mass shootings, which are not fully consistent with each other or with the facts.  The article also has a cautionary nugget about what "experts say" and what "studies show."

Mr. Obama gets the maximum Four Pinocchios (reserved for "whoppers") for his December 1 statement in Paris, "I say this every time we've got one of these mass shootings: This just doesn't happen in other countries."  Wow.

The President's other, more nuanced statements about the relative frequency of such incidents get the milder Two Pinocchio rating ("significant omissions and/or exaggerations").  To check the facts, Ms. Lee consults experts Adam Lankford and John Lott and gets very different answers.

Astute readers might notice how Lankford and Lott both compared the United States to grouped European countries, but their conclusions are vastly different. Lott says the rate is about the same, while Lankford says the rate is five times higher in the United States. How is this possible? The researchers are looking at different sets of years and different sets of countries. (Lott looked at Europe as a whole; Lankford at the European Union.) Lott uses a broader measure of mass shootings than Lankford does. Lankford looks at the number of shooters; Lott uses fatalities and shooting incidents. This is an example of how the data and definition can be adjusted to show different findings about mass shootings, even using a per capita rate.
Lots and lots of choices have to be made in setting up a study, many seemingly benign in themselves.  If a person wants to reach a particular result, it is easy as pie to run the numbers 16 different ways, pick the way that best supports your agenda, and throw the others in the trash.

This is why the viewpoint one-sidedness of American academia and the well-funded nonprofits is so very dangerous.  The truth comes out much more clearly when there are people on both sides doing these kinds of studies, but academic conservatives are an endangered species, and those who do "come out" are targeted by neo-McCarthyists determined to achieve ideological purity.

Be very, very skeptical about what "studies show" and "experts say."  

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