Hm.

As far as I can tell, the Supreme Court Justices in oral arguments in this year's important Indian law case, Plains Commerce Bank v Long Family Land and Cattle Co., were pretty close to laughing Plains' attorney ("Mr. Banker," remarkably enough) out of court.

I'm happy to see that, because an adverse ruling in this case would be very, very bad for the ability of tribal governments to exercise even minimally coherent jurisdiction, something I've written about at some length.

At the same time, I kind of feel for the guy-- because, while he did not correctly describe the current state of the law, he did a pretty good job describing the first derivative of it. He plotted the dots of the various Supreme Court cases, drew the line connecting them, and extrapolated out to the next case. Several times he kind of stammers that he figures the Justices would want to keep going in the direction they've been going. In some areas of law, that's the right argumentative approach- you say "here are the principles underlying the caselaw, they successfully account for the trajectory and give it coherence, and we see that those principles get us this outcome in the case at hand, even though that's not actually what the current rules would say."

In Indian law, the correct answer to that is: "Principles? Coherence?" It's not always clear here that the Justices even remember what their own recent cases say, so they're left just looking at the place Banker wants to take them, not whether that place really does lie on the straight-line path connecting their previous cases. They seem to think it's a ridiculous place, which is true.

Anyway, it does now seem possible that the Court will find that the consent exception in Montana can be satisfied short of a non-Indian expressly choosing Indian law and tribal court jurisdiction. The Court has... not been in the habit of finding that the Montana exceptions could ever really be satisfied, which Banker appeared to be counting on. And it seems possible that the Court will reconcile the genuine tension in its caselaw about the relationship between adjudicatory jurisdiction and regulatory jurisdiction in favor of bringing them into line with each other.

These are both Good Things. Therefore I don't bet that they'll happen. In particular, I'm sure Kennedy is just playing with arguments in his exchanges with Banker-- his own past opinions mean that he's not really skeptical of Banker's view of non-members' rights. Oral argument can be like that sometimes; Justices explore ideas, and it's dangerous to treat that as if they were telegraphing their ultimate votes. But in the meantime, it's nice to see Scalia making Banker squirm, and to see at least some realization of how ridiculous the anti-tribal-jurisdiction arguments can become.

Over at the Legal Times blog, Tony Mauro notes a funny exchange between Roberts and Long's lawyer.

An important new paper

"Reassessing the Strategic Logic of Suicide Terrorism"

"In 'The Strategic Logic of Suicide Terrorism,' Robert Pape presents an analysis of
his suicide terrorism data. He uses the data to draw inferences about how territorial
occupation and religious extremism afect the decision of terrorist groups to use
suicide tactics. We show that the data are incapable of supporting Pape's conclusions
because he 'samples on the dependent variable.' (The data only contains cases in
which suicide terror is used.) We construct bounds (Manski, 1995) on the quantities
relevant to Pape's hypotheses and show exactly how little can be learned about the
relevant statistical associations from the data produced by Pape's research design."

Great moments in multiculturalism and free speech


Marc Lebuis has

filed a complaint to the Canadian Human Rights Commission (CHRC) for "hate propaganda" against Montreal salafi imam Hammaad Abu Sulaiman Al-Dameus Hayiti who officiates at the Association Musulmane de Montréal Est mosque. The complaint relates to his book L'Islam ou l'Intégrisme ? À la lumière du Qor'an et de la Sounnah downloadable from the Internet, and his extremist teachings that are also broadcast on the Internet.

The teachings of imam Al-Hayiti are suprematists, misogynistic and hateful. According to the imam, his fellow non-Muslims are "koufars" (unbelievers, infidels, impious), Québec women are perverse, and the population is "stupid and ignorant." The imam also calls for the destruction of the "idols" of the West: democracy, human rights, secularism, freedom and modernity. By disseminating his teachings on the Internet, the imam tries to win adherents to his extreme views.

The CHRC has launched an investigation against Maclean's and writer Mark Steyn for "hate propaganda" in relation to the publication by Maclean's of an article entitled "The Future belongs to Islam" (excerpts from Steyn's bestselling book "America Alone"). The investigation follows a complaint filed by the Canadian Islamic Congress and four Toronto Muslim law students. This initiative is an attempt at censorship and an attack on freedom of the press, for which the CHRC acts as an enabler.

If the CHRC refuse to investigate my complaint, the public will be free to conclude that an institution meant to promote human rights is practicing a form of one-way absurd censorship. As a result, legitimate criticism of Islam is discouraged, while those who advocate the destruction of democracy and freedoms are protected. If the CHRC agrees to open an investigation, the writings of the imam will be exposed and scrutinized and, hopefully, discredited by the media. In the future, the media and the public will feel free to denounce subversive and hateful preachers without having to resort to the CHRC.

He continues to try to have it both ways in this follow-up press release:

1. If the CHRC refuses to consider my complaint (while currently investigating Maclean’s and Mark Steyn), we will be free to conclude that the CHRC defines its mandate as one of censorship of what any Muslim subjectively deems offensive or blasphemous, while protecting the spread of the Salafi ideology which advocates the destruction of democracy and the abolition of our freedoms. The CHRC will come out as an institution betraying its mandate and as being itself a threat to freedom and democracy.

2. If the Commission agrees to open an investigation (and regardless of the outcome), I will have directed the spotlights on the discourse of the imam and the Salafi ideology. The media and the public will be able to freely assess the dangerousness of this ideology and discredit it.[...]

Whatever the outcome of my complaint, I will have proved something. My sole purpose is to stimulate a public debate and strengthen freedom of expression.

If the Commission agrees to open an investigation, then core rights of religious liberty and freedom of expression will be chilled, and if the Commission fines Hayiti the latter's rights will have been violated. This is not a legal weapon to invoke in order to make a point about the weapon itself.

But one gets the strong sense that Lebuis wouldn't at all mind seeing Hayiti punished for his speech and writings. One can argue (correctly) that the Steyn prosecution is illegitimate and violates freedom of speech; or one can grind an axe against disfavored Islamic speech. Can't credibly do both, and the latter urge undercuts the former principle.

Immigration conference schedule

Cosmopolitan Duties and Domestic Consequences : The Case of Immigration

Montreal Political Theory Workshop – April 18th, 2008
Faculty Club, McGill University

Contemporary immigration regimes are increasingly scrutinized from a perspective of global justice. Do these regimes contribute to global injustice? Should we change immigration regimes in order to redistribute access to individual opportunities more fairly? Should we open our borders to the global poor? What would the consequences be for host societies? These are some of the important and timely questions the speakers at this year’s MPTW conference will address.

10 am
Welcoming remarks: Christine Straehle, UQAM

10:15
Shelley Wilcox, San Francisco State University: "Immigrants Admissions in the Non-Ideal World"

10:45
Joseph Carens, University of Toronto: "Open Borders Revisited"

11:15
Discussion by Ryoa Chung, University of Montreal

11:30
Open Discussion

12:30
Lunch

2:00
Patti Lenard, Harvard University: "Do Theories of Historical Redress Apply to Immigrants?"

2:30
Christine Straehle, UQAM: "Immigration, Trust and the Welfare State"

3:00
Discussion by Dominique Leydet, UQAM

3:15
Open Discussion

RSVP emmanuelle.richez@mail.mcgill.ca

Poor John!

That's the chorus I sing several times when I happen to have the chance to give a lecture on Adams' thought. A brilliant thinker, constantly out of synch with his times; a true man of virtue who showed how much more to life there is than virtue; outshone as the champion of independence by Paine, whom he despised, and Jefferson, whom he promoted; horribly miscast as ambassador to France; an anachronistic Presidency; etc. Deeply admirable and all wrong all at the same time.

I haven't been able to watch much of the HBO series, but the early part of tonight's episode, with Adams excluded from Cabinet and the Senate alike, inescapably brough "Poor John!" to my lips a good five or six times.