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The lecture notes are here. The live chat is here.

The First Amendment provides:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Section 5 of the 14th Amendment provides:

5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

Here are some photographs of the St. Peter the Apostle Church in Boerne, Texas, the subject of City of Boerne v. Flores. I suppose this church makes an exception to the “Though Shalt Not Kill” Commandment for the Religious Freedoms Restoration Act, which met its constitutional demise within the hallowed walls of this house of worship.

These photographs are courtesy of Hanah Volokh.

 

Here is a map of the Village of Belle Terre in Long (not Staten) Island. Today, roughly 800 people live in Belle Terre. It is close by to the State University of New York (SUNY) Stony Brook (named because there is a brook with stones on campus). I’ve been there.

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And here is a photograph of a sign welcoming you (as long as you don’t have a roommate  to the Village of Belle Terre (courtesy of Ron Talmo):

Forget how Judges–who just call balls and strikes–view criticism of their decisions. An interesting new study, profiled in this NPR piece, shows that baseball umpires are “really reluctant to make calls that invite criticism.”

If you’re an umpire and you’re unsure about what the correct call is and you’re given a choice between one call that’s particularly consequential and one call that’s relatively inconsequential, they will more or less preserve the status quo. Well, if you want to avoid the – say, the public criticism that is associated with making a pivotal call an error, then you may err on the side of preserving the status quo.

What does it mean to preserve the status quo?

Well, so basically umpires are reluctant to make calls that can flip the outcome of the game, change the status quo and have them be responsible for whether the game tips one way or the other. So if calling a strike can tip the game one way, they’re more likely to call a ball. If calling a ball can reverse the momentum in the game, they’re more likely to call a strike.

So if the bases are loaded and there are three balls, an ump is more likely to call a strike than call a ball, and walk in a run.

And this fear of criticism is even greater in high-profile games.

Green and Daniels also find, interestingly, that the higher the profile of the game – the larger the TV audience – the greater the bias because the umpires are thinking – maybe consciously, maybe unconsciously – millions of people are watching me, I hope to God I don’t blow it.

When MLB selects umpires, they focus not on the most accurate umps, but on the most consistent umps.

Well, it turns out that Major League Baseball seems to have its own biases. When Green and Daniels analyzed which umpires get selected to officiate big games, it turns out the league tends to pick umpires who are not the most accurate, but umpires who tend to be the most consistent in their calls. …

It can be hard to figure out, but I think what’s happening here is that Major League Baseball is using consistency presumably as a proxy for accuracy because if the umpire makes the same call over and over again, it could be because Major League Baseball thinks the umpire is being accurate. At the very minimum, of course, being consistent is at least being fair. So if you make the same calls the same way for all teams, presumably you’re being fair.

The article cites as an instance where an ump opened himself up for criticism–the Umpire who called a runner safe–when hew as clearly out–denying Armanda Galarraga of a perfect game in 2010. I blogged about game, and whether the last out means more, here, here, here, here, and here.

During her excellent interview of Justices Thomas, Alito, and Sotomayor, Professor Kate Stith inquired about what she called “the most academic court of all time.”

There are four former professors on the Court–Scalia, Ginsburg, Breyer, and Kagan. By that measure, this is the most academic court of all time. But none of the former professors are Yalies. Are there too many former professors? Are Too many former appeals court juges? Not enough of something else.

Justice Alito deftly dodged the question.

As far as academics go, we are at a dangerous tipping point. They are almost in the majority. Who knows what they will do to us when they are in control. Being a court of appeals judge is perfect preparation for being a Supreme Court Justice.

Justice Thomas payed homage to at least one of the SCOTUS academics:

As far as the makeup of the Court, I don’t feel I am in a better position to say who is qualified. Our colleagues who are academics, who would we replace? I like them all. You don’t have to agree with Justice Ginsburg to know she does fantastic work. When you disagree with her, you know she will force you do to better.

 

The federal government is (at last) releasing a unified policy to handle ebola infections.  These policies were driven by the goal to not “harm the effort to recruit badly needed medical workers to West Africa.”

The new policy by the Centers for Disease Control and Prevention, worked out by President Obama, top C.D.C. officials and others during a two-hour meeting at the White House on Sunday, requires people who have been in contact with Ebola patients to submit to an in-person checkup and a phone call from a local public health authority.

But unlike in New York and New Jersey, people would not be automatically confined to their homes, a requirement that public health experts had sharply criticized as too onerous.

Although both Governors of New York and New Jersey do not agree with these policies–citing their need to protect their own citizens–they complied.

On Monday evening Mr. Christie accused the C.D.C. of “being behind on this” and said that demands from the public to protect citizens prompted the tougher action in his state.

“What people of this country want is for us to protect, first and foremost, the public safety and public health of our citizens,” Mr. Christie said. But he agreed to release a nurse who had been quarantined in a tent at a hospital so she could travel to Maine, where she lives.

Mr. Cuomo was already criticizing the new guidelines ahead of their formal announcement. “I work with the federal government, but I disagree with the C.D.C.,” the governor told reporters on Monday afternoon. “My No. 1 job is to protect the people of the state of New York, and do what I think is prudent to protect the people of the state of New York.”

Recently other states, including Florida, Illinois, and Georgia have announced policies tougher than the federal standard.

The long-awaited federal guidelines were an effort to bring uniformity to a messy patchwork of responses by states, including Florida, Illinois and, most recently, Georgia, which have all announced tougher policies. But the Centers for Disease Control do not have the power to police internal public health matters, so it is up to the states to carry out the policy, and it is far from clear that they will fall in line.

 

The CDC seems to accept that states can impose more stringent policies.

Dr. Thomas R. Frieden, the director of the C.D.C., said his agency was talking with states, but he did not say which ones.

“We found that health departments generally do follow C.D.C. guidelines,” he said. “If they wish them to be more stringent, that is within their authority.”

Bloomberg also reports that the White House acknowledged states can’t be forced to comply:

The Obama administration said it can’t compel state and local officials to follow federal guidelines in dealing with Ebola, leading to a patchwork of responses on the return of health-care workers from Africa.

White House press secretary Josh Earnest refused today to say whether New York and New Jersey officials notified federal authorities before mandating 21-day quarantines on doctors and nurses who return after treating patients in the outbreak region. He also declined to say whether President Barack Obama’s new Ebola coordinator, Ron Klain, was involved in discussions with state officials.

“States are given significant authority for governing their constituents,” Earnest said. Even with new guidelines set to be issued by the Centers for Disease Control and Prevention later today, governors and mayors can still “exercise the authority they have.”

 

While it is absolutely true that the federal government cannot commandeer state employees to implement federal policies–as Justice Stevens pointed out in his Printz dissent–they can institute a unified federal policy that trumps state law. Even if it is only a policy–that was what guided the Obama Administration’s opposition to SB 1070–there is preemption.

On Tuesday, October 28, I will be giving two talks on my paper, “The 1st Amendment, 2nd Amendment, and 3D Printed Guns.” The first will be at noon at the University of Arkansas at Little Rock in the Student Lounge. Professor John DiPippa will provide commentary. The second will be at 5:30 p.m. at the University of Memphis Law School in the Wade Auditorium. If you are in the area, please stop by!