Freespace

Ghosts, psychics, and cannibalism law on The Independents

I was on The Indepenents tonight discussing some of the spooky Hallowe'en-themed law out there. I mentioned the case of Stambovsky v. Ackley, the 1991 decision from New York's Appellate Division which held a house sale invalid because the seller did not disclose that the house was "haunted." The house had a reputation in the neighborhood for being haunted, and the court, in an opinion full of wry humor, held that since the seller had long claimed the house was haunted, she was not allowed to claim now that it was not. She was, in the legal terminology, "estopped" from denying it was haunted. That meant, as the court concluded, "as a matter of law, the house is haunted." You can read the decision here.

I also mentioned cases involving the free speech rights of psychics. In Spiritual Psychic Science Church v. City of Azusa (1985), the California Supreme Court struck down an ordinance that prohibited fortune-telling, on the grounds that it violated the First Amendment. The court specifically held that it was not "commercial speech," and that although the government can prohibit fraud, it could not just impose a blanket ban against fortune telling. But in Nike v. Kasky (2002), the California Supreme Court expanded the definition of commmercial speech so broadly, that fortune telling is now arguably commercial speech, and might be subject to censorship. I don't think that would or should fly, and in fact the Eighth Circuit held in Argello v. City of Lincoln that fortune telling is fully protected free speech. But that's just why that Kasky decision is so awful.

Finally, I mentioned the famous case of Rex v. Dudley & Stephens, the 1884 British decision about cannibalism on the high seas. The court found the crewmen guilty of murder because they killed the cabin boy and ate him. They ought to have drawn straws to decide who would die--which is just what the crewmen of a different shipwreck, the whaleship Essex, did. The Essex disaster, by the way, inspired Moby Dick as well as Lon Fuller's classic The Case of the Speluncean Explorers, and a film about the Essex disaster, directed by Ron Howard, will be released in March.

Happy Hallowe'en, folks.

What should we think about death?

A friend recently asked what we God-damned atheists think or do at the thought of impending death. I answered, as master Epicurus teaches us, that death is nothing to us. But this video from the British Humanist Association answers the question more beautifully.

Happy 100th Birthday, Jonas Salk—but let’s not forget Albert Sabin

Today’s Google Doodle celebrates Jonas Salk, who developed the first vaccine for polio in 1954, and helped essentially eradicate the disease in the civilized world. Salk’s vaccine is not the one most commonly used today; that was developed by Salk’s great rival, Albert Sabin. The difference between the two is that while Sabin’s vaccine is a “weakened virus” vaccine, Salk’s was a “killed virus” vaccine—one in which the virus has been rendered completely inert. Vaccines work by prepping the human immune system to create antibodies; thus one takes a little bit of the disease, or something like it but less virulent, to make the body resist the full blown version. Edward Jenner gave his patients cowpox to make them immune to smallpox, for example. And most vaccines today are weakened virus vaccines—ones in which the virus is crippled, but still alive, when introduced into the patient.

In Salk’s eyes, the advantage to a killed virus vaccine is that it won’t transmit the disease itself, whereas a certain fraction of people given a weakened virus will come down with it. But there are a number of disadvantages. As Jane Smith explains in her masterful book, Patenting The Sun, killed virus vaccines are often less effective, and require booster shots. And in one tragic early incident, a batch of the Salk vaccine was prepared incorrectly, and the virus was not completely killed before being given to patients. Worse yet, the original Salk vaccine was not effective against one type of polio (although this was later fixed). And people given the Salk vaccine can still transmit the disease.

None of these complications are true of the Sabin vaccine, which is not only safe and effective, but targets the intestinal areas where polio first really develops. The Sabin vaccine requires no boosters—it’s permanently effective. Not to mention, the Sabin vaccine can be given orally, with a drop on a sugarcube, while the Salk vaccine required scary needles. Yet Salk remained all his life convinced that killed virus vaccines were preferable.

Salk was indisputably a hero. Polio epidemics regularly claimed tens of thousands of children in the United States; in 1952, there were some 58,000 cases. Today, a child in the developed world is more likely to be struck by lightning than by polio. But while Salk deserves great credit for his achievement, it’s a shame that it tends to overshadow the accomplishment of Albert Sabin, also a great scientist, whose discoveries are really the basis for polio eradication efforts today. The two men together deserve credit for saving countless lives.

Talking with the Vaca Valley Tea Party

A few days ago, I was asked to speak to the Vaca Valley Tea Party about my book, The Conscience of The Constitution. They recorded it, and you can watch the presentation here:

Sitting in on the A&G Show

I joined Armstrong & Getty this morning at 7 to talk about the Pacific Legal Foundation's victory in the San Francisco property rights case. But then I stuck around for the rest of the show. You can listen to the podcasts here:

7 o'clock hour

8 o'clock hour

9 o'clock hour

I'll be talking with Armstrong & Getty at 7am about PLF's victory in the Levin case

You can listen online here, and learn more about the case here.

Talking about the Constitution with John Stossel

In case you missed it, I talked with John Stossel on his Fox Business Network show on Thursday about "Does anyone care about the Constitution anymore?"

I don't know why it's weirdly formatted, and I can't figure out how to fix it. Sorry.

I'll be on Stossel tonight

Check out Stossel at 9 Eastern, 6 Pacific, on Fox Business Network; I help Stossel answer the question, "Does the Constitution still work?" Here's a preview.

Impeaching opposing counsel through blog posts

This has happened to me before, in some rather amusing ways. In one case, Pacific Legal Foundation moved for attorney fees after winning a case, and the other side’s lawyer filed a brief arguing that we shouldn’t get fees because PLF is primarily supported by donations (since it doesn’t charge clients). I don’t get the logic there, but to support that claim, the lawyer cited a comment I had made on a Volokh Conspiracy post, in which I’d said that only about 1 or 2 percent of PLF’s annual budget comes from attorney fees. Like I said, I don’t get the logic.

In another case, the government’s lawyer moved to dismiss our lawsuit challenging an occupational licensing law, and mentioned in her brief that we’d filed similar lawsuits in other states—a fact she can have learned only through our blog posts. I guess she thought that proved that the case was frivolous or something…anyway, that allowed me to explain in my reply brief that, yes, we had—and all those courts had denied motions to dismiss.

But by far the best was Surrey v. True Beginnings in 2008, in which a self-proclaimed “men’s rights activist” sued a dating site for “discrimination” on the grounds that it charged women less than men. I wrote an amicus brief arguing that nobody’s harmed by this—in fact, both men and women benefit from it—and that the lawyer bringing the case was well known for predatory lawsuit abuse. In fact, he’d recently been sanctioned by a federal court for his bounty-hunter litigation. Well, he didn’t like that, and filed a hilariously angry brief responding to mine, which included such gems as

PLF attorney Timothy Sandefur is a self-proclaimed business-first advocate. For example, Mr. Sandefur refers to his car as “The Lochner-mobile,” which bears the personalized license plate “198US45”—the citation for the much-maligned U.S. Supreme Court case Lochner v. New York, 198 U.S. 45 (1905). Lochner held the “right to free contract” was implicit in the due process clause of the Fourteenth Amendment. In the Lochner era, the Supreme Court invalidated scores of federal and state statutes that sought to regulate working conditions during the Progressive Era and Great Depression…

...and cited three Freespace posts, including pictures of my car.

Of course, while I am not a “self-proclaimed business-first advocate”—others may have proclaimed me as such—I do indeed have the license plate 198US45 and my car is indeed the Lochnermobile.

Updated: Upcoming talks in Arizona, California, Idaho, and Michigan

Hope to see some Freespace readers at some of these. If your club or campus would like to organize an event to talk about The Conscience of The Constitution or about economic liberty, private property rights, and current controversies in constitutional law, just drop me a line.

October 14: Pepperdine Law School Federalist Society

October 16: Avid Reader Bookstore, Davis, CA

October 25: Students for Liberty Regional Conference, Phoenix

October 30: Boise State Students for Liberty

November 21: Praxis economics club, Hillsdale College