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Abstract:
In June 2005, at the end of its October 2004 Term, the U.S. Supreme Court's nine members had served together for almost eleven years, longer than any other group of nine Justices in the nation's history. Although the average tenure of a Supreme Court Justice from 1789 through 1970 was 14.9 years, for those Justices who have retired since 1970, the average tenure has jumped to 26.1 years. Because of the long tenure of recent members of the Court, there were no vacancies on the high Court from 1994 to the middle of 2005. We believe the American constitutional rule granting life tenure to Supreme Court Justices is fundamentally flawed, resulting now in Justices remaining on the Court for longer periods and to a later age than ever before in American history.

This trend has led to significantly less frequent vacancies on the Court, which reduces the efficacy of the democratic check that the appointment process provides on the Court's membership. The increase in the longevity of Justices' tenure means that life tenure now guarantees a much longer tenure on the Court than was the case in 1789 or over most of our constitutional history. Moreover, the combination of less frequent vacancies and longer tenures of office means that when vacancies do arise, there is so much at stake that confirmation battles have become much more intense. Finally, as was detailed in a recent article by Professor David Garrow, the advanced age of some Supreme Court Justices has at times led to a problem of "mental decrepitude" on the Court, whereby some Justices have become physically or mentally unable to fulfill their duties during the final stages of their careers.

In this Article, we call for a change to the life tenure rule for Supreme Court Justices. To resolve the problems of life tenure, we propose that lawmakers pass a constitutional amendment pursuant to Article V of the Constitution instituting a system of staggered, eighteen-year term limits for Supreme Court Justices. The Court's membership would be constitutionally fixed at nine Justices, whose terms would be staggered such that a vacancy would occur on the Court every two years at the end of the term in every odd-numbered calendar year. Every one-term President would thus get to appoint two Justices and every two-term President would get to appoint four. Our proposal would not apply to any of the nine sitting Justices or to any nominee of the President in office when the constitutional amendment is ratified. Moving to a system of eighteen-year terms for Supreme Court Justices would restore the norms in this country that prevailed on the Court between 1789 and 1970, when vacancies occurred about once every two years, and Justices served an average of 14.9 years on the Court. We recommend that the country recommit itself to the tenure practices that held for Supreme Court Justices for most of our history.

Abstract:
Before there was a scandal, there was a book - Michael A. Bellesiles's Arming America: The Origins of a National Gun Culture. Arming America is a well-written and compelling story of how early Americans were largely unfamiliar with guns until the approach of the Civil War. It tells a wide-ranging, detailed, but relatively unnuanced story of gunlessness in early America. Bellesiles writes: "The vast majority of those living in British North American colonies had no use for firearms, which were costly, difficult to locate and maintain, and expensive to use." His primary evidence was low counts of guns in probate records, gun censuses, militia muster records, and homicide accounts.

According to Bellesiles, in early America there were very few guns. Privately owned guns were mostly in poor working condition. By law, guns were not kept in the home but rather stored in central armories, and guns were too expensive for widespread private ownership. He even claims that men generally were unfamiliar with guns and that they did not want guns - preferring axes and knives instead, in part because guns were so inaccurate that they were of little use. He argues that axes made very good weapons in hunting, and in battle, people considered "the ax the equal of a gun." Bellesiles claims that states enacted laws that restricted gun ownership to white Protestants who owned property. White-on-white homicide was rare in colonial America, according to Bellesiles, and guns were rarely the weapon used in homicides. Guns were not culturally important, either: Travel narratives do not show that guns were part of everyday life, even on the frontier. At least in probate records, women did not own guns. He further claims that the background of the Second Amendment shows that the Anti-Federalists had no problem with restricting militia membership to those above the lower social classes. Last, with a few exceptions, the militia were extremely ineffective.

Unfortunately, except for the last claim of militia ineffectiveness, all 15 of these major contentions of Arming America turn out to be false.

Two meta-arguments by Bellesiles might have direct public policy applications (though, as a work of history, Arming America does not directly advocate any gun policies). One is that guns and violence go together. In early America, he claims, we had very low gun ownership and low homicide rates; after the Civil War, we had lots of guns and high homicide rates. The second is that if guns were not widely owned, then it is unlikely that gun owning was understood as an individual right in the Second Amendment.

In this review article, I examine the following questions:

How Common Was Gun Ownership?
Was Homicide Rare?
Were Privately Owned Guns Mostly in Poor Working Condition?
How Expensive Were Guns?
How Effective Were Guns, Bladed Weapons, and the Militia?
Were Guns Kept in the Home?
Were Guns Common in Travel Accounts?
How Central Are the Errors to the Thesis of Arming America?

Since the book's publication, scholars who have checked the book's claims against its sources have uncovered an almost unprecedented number of discrepancies, errors, and omissions. Indeed, the review ends with an appendix documenting over 200 specific errors in Arming America. When these are taken into account, a markedly different picture of colonial America emerges: Household gun ownership in early America was more widespread than today - in a much poorer world.

Arming America claims that we did not have a gun culture before the Civil War, but that we have had one since then. There is an obvious conceptual problem with this thesis: What would it mean to have - or not have - a gun culture? It is hard to judge the truth of this claim without deciding on what a gun culture is. Bellesiles gives us some hints of what he means, but he never clearly states his criteria. This is an unfortunate way to frame the inquiry. Cultural analysis is not an all-or-nothing proposition. America had one form of gun culture in the late eighteenth century, it had another form of gun culture in the late nineteenth century, and it has another form today.

Although Bellesiles never defines what he means by having a gun culture, he puts great store in owning guns, familiarity with guns, and the prevalence of guns in popular culture - such as in magazines, television, and movies. If having a gun culture requires gun-lover magazines and violent film and television crime stories (or the contemporary equivalent), then we have a gun culture today, but did not two centuries ago. If, instead, having a gun culture means growing up in households with guns, learning how to shoot them, widespread participation in military training where guns are used, and using guns as a tool (such as for vermin control), then we definitely had more of a gun culture in the eighteenth century than we do today.

Arming America is an impressive book, especially to those not versed in the materials that Bellesiles wrote about. It is extremely well-written for a book that covers so many apparent specifics of gun ownership and use. Superb historians praised it on its release. Yet even from the beginning, there were those who found disturbing differences between Arming America and its sources. As time has passed and other scholars have entered the debate, these errors - which once looked like such serious defects that they could not be true - have been confirmed.

The book and the scandal it generated are hard to understand. How could Bellesiles count guns in about a hundred Providence wills that never existed, count guns in San Francisco County inventories that were apparently destroyed in 1906, report national means that are mathematically impossible, change the condition of most guns in a way that fits his thesis, misreport the counts of guns in censuses or militia reports, have over a 60% error rate in finding guns in Vermont estates, and have a 100% error rate in finding homicide cases in the Plymouth records he cites? We may never know the truth of why or how Arming America made such basic errors, but make them it did.

As scholars, we must content ourselves with correcting errors and searching for the realities of gun ownership, use, and social meaning.

[Note: Although this review was first posted on SSRN in March 2005, it was previously downloaded from Instapundit.com in 2002-2003 over 130,000 times and probably downloaded from the History News Network several hundred thousand times more.]

Guns,History,Bellesiles,Arming America,violence,homicide

Abstract:
In the field of social psychology, it is commonly believed that people support capitalism and oppose greater income redistribution because they are racist or want to dominate other people or groups. Indeed, a study of college students in the United States and secondary students in Sweden found that attitudes supporting capitalism were positively associated with racism and an orientation toward social dominance (Sidanius & Pratto, 1993). In this article I expand and test this thesis using 16 nationally representative General Social Surveys conducted by the National Opinion Research Center between 1980 and 2004. The sample sizes used for analyses vary from 535 to 15,743.

I begin by showing that respondents who express traditionally racist views (on segregation, interracial marriage, and inborn racial abilities) tend to support greater income redistribution. Traditional racists also tend to oppose free-market capitalism and its consequences, wanting the government to guarantee jobs for everyone and to fix prices, wages, and profits. Next, I report a similar pattern for those who express intolerance for unpopular groups on the 15 Stouffer tolerance questions (regarding racists, homosexuals, communists, extreme militarists, and atheists). Those who express less tolerance for unpopular groups tend to favor income redistribution and oppose capitalism.

Then I present the results of six full latent variable structural equation models. The latent variables traditional racism (Model 1: r=.27) and intolerance (Model 2: r=.31) predict the latent variable income redistribution. Similarly, the latent variables traditional racism (Model 3: r=.33) and intolerance (Model 4: r=.36) predict anti-capitalism. Controlling for education, income (log), gender, and age in Models 5 and 6, the effects of the racism and intolerance predictors on redistribution and intolerance are somewhat reduced in size, but remain significant. Thus the preference against income redistribution, for example, is not just the result of income or education; rather, the data are consistent with racism and intolerance continuing to play a significant role in explaining the support for income redistribution and anti-capitalism.

I then preliminarily explore alternative hypotheses, showing that in the 1996 General Social Survey, compared to anti-redistributionists, strong redistributionists have about two to three times higher odds of reporting that in the prior seven days they were angry, mad at someone, outraged, sad, lonely, and had trouble shaking the blues. Similarly, anti-redistributionists had about two to four times higher odds of reporting being happy or at ease. Not only do redistributionists report more anger, but they report that their anger lasts longer. When asked about the last time they were angry, strong redistributionists were more than twice as likely as strong opponents of leveling to admit that they responded to their anger by plotting revenge. Last, both redistributionists and anti-capitalists expressed lower overall happiness, less happy marriages, and lower satisfaction with their financial situations and with their jobs or housework.

Further, in the 2002 and 2004 General Social Surveys anti-redistributionists were generally more likely to report altruistic behavior. In particular, those who opposed more government redistribution of income were much more likely to donate money to charities, religious organizations, and political candidates. Those who wanted the government to promote more income leveling were less likely to be generous themselves in their charitable donations and some other altruistic behaviors.

Dominance, SDO, Racism, Intolerance, Capitalism, Altruism, Charity, Emotions

Abstract:
Probate inventories, though perhaps the best prevailing source for determining ownership patterns in early America, are incomplete and fallible. In this Article, the authors suggest that inferences about who owned guns can be improved by using multivariate techniques and control variables of other common objects. To determine gun ownership from probate inventories, the authors examine three databases in detail-Alice Hanson Jones's national sample of 919 inventories (1774), 149 inventories from Providence, Rhode Island (1679-1726), and Gunston Hall Plantation's sample of 325 inventories from Maryland and Virginia (1740-1810). Also discussed are a sample of 59 probate inventories from Essex County, Massachusetts (1636-1650), Gloria L. Main's study of 604 Maryland estates (1657-1719), Anna Hawley's study of 221 Surry County, Virginia estates (1690-1715), a sample of 289 male inventories from Vermont (1773-1790), and Judith A. McGaw's study of 250 estates in New Jersey and Pennsylvania (1714-1789). Guns are found in 50-73% of the male estates in each of the eight databases and in 6-38% of the female estates in each of the first four databases.

Gun ownership is particularly high compared to other common items. For example, in 813 itemized male inventories from the 1774 Jones national database, guns are listed in 54% of estates, compared to only 30% of estates listing any cash, 14% listing swords or edged weapons, 25% listing Bibles, 62% listing any book, and 79% listing any clothes. Using hierarchical loglinear modeling, the authors show that guns are more common in early American inventories where the decedent was male, Southern, rural, slave-owning, or above the lowest social class - or where the inventories were more detailed.

The picture of gun ownership that emerges from these analyses substantially contradicts the assertions of Michael Bellesiles in Arming America: The Origins of a National Gun Culture (Arming America). Contrary to Arming America's claims about probate inventories in seventeenth and eighteenth-century America, there were high numbers of guns, guns were much more common than swords or other edged weapons, women in 1774 owned guns at rates (18%) higher than Bellesiles claimed men did in 1765-1790 (14.7%), and 87-91% of gun-owning estates listed at least one gun that was not old or broken.

The authors replicated portions of Bellesiles's published study in which he both counted guns in probate inventories and cited sources containing inventories. They conclude that Bellesiles appears to have substantially misrecorded the seventeenth and eighteenth century probate data he presents. For the Providence probate data (1679-1726), Bellesiles has misclassified over 60% of the inventories he examined. He repeatedly counted women as men, counted about a hundred wills that never existed, and claimed that the inventories evaluated more than half of the guns as old or broken when fewer than 10% were so listed. Nationally, for the 1765-1790 period, the average percentage of estates listing guns that Bellesiles reports (14.7%) is not mathematically possible, given the regional averages he reports and known minimum sample sizes. Last, an archive of probate inventories from San Francisco in which Bellesiles claims to have counted guns apparently does not exist. By all accounts, the entire archive before 1860 was destroyed in the San Francisco earthquake and subsequent fire of 1906. Neither part of his study of seventeenth and eighteenth-century probate data is replicable, nor is his study of probate data from the 1840s and 1850s.

Guns, Probate, Inventories, Bellesiles, Arming America, loglinear, hierarchical loglinear modeling

Abstract:
The model minority stereotype depicts Asian Americans as a group that has succeeded in America and overcome discrimination through its hard work, intelligence, and emphasis on education and achievement - a modern-day confirmation of the American Dream. A large body of work by Asian critical scholars condemns this image and charges that it conceals more sinister beliefs about Asian Americans and other racial minorities in America. Is this critique correct? Does the model minority stereotype really mask hostility toward Asian Americans or breed contempt for other minorities?

This article presents the results of an empirical study into the model minority stereotype. Using 1990, 1994, and 2000 General Social Survey data (including some of the very data used by critical scholars to establish the existence of this stereotype), we confirm claims that some non-Hispanic white Americans think that Asian Americans as a group are more intelligent, harder working, and richer than other minorities and that some think Asian Americans are more intelligent and harder working than whites. But we also discovered that these ideas are not usually linked with negative views of Asian Americans (or of other minorities, for that matter). Indeed, we found weak support for the contrary position - that those who rate Asian Americans higher than other minorities, or particularly higher than whites, are more likely to hold other positive views about Asian Americans, immigration, African Americans, and government programs supporting these groups.

Our study nonetheless confirms the scholarly suspicions in one crucial respect: non-Hispanic whites who have positive views of Asian Americans are less likely to think that Asian Americans are discriminated against in both jobs and housing, thus tending to support the claims of some Asian critical scholars that positive stereotypes about Asian Americans tend to be associated with a failure to recognize continuing discrimination. In these data, however, this complacency by whites about prejudice against Asians does not translate into hostility toward government programs to alleviate the problems of Asian or African Americans.

Abstract:
There is an idea current in the land today that presidential power has grown to the point where it is a threat to democracy. The New York Times editorial page writers and leading Democrats regularly accuse President George W. Bush of acting like a king or seeking kingly powers. In the academic community, Professor Bruce Ackerman has written powerfully about what he sees as the danger that presidential power poses to democracy itself. In this Symposium Issue, Professors Bill Marshall and Jenny Martinez argue that the presidency has become too powerful. Marshall goes so far as to argue for reducing presidential power by separately electing the Attorney General. In this Commentary, we suggest that when political power is examined more broadly, Presidents and their parties generally have less power in the United States than commentators recognize. We believe the President today is less of a king than a lightning rod. Indeed, the constitutional and practical weakness of the presidency is, if not a threat to American democracy, at least a worrisome limitation on it.

Abstract:
In this study, Professor Lindgren examined data on the 108 confirmed nominees to the U.S. Circuit Courts of Appeal from the administrations of George H.W. Bush and William J. Clinton. He shows - for the first time - evidence of differential treatment of nominees by the American Bar Association's rating committee. Yet this is not a simple story of apparent ABA bias toward Clinton nominees. Among confirmed nominees with the most important credential - prior judicial experience - Bush nominees fare roughly as well and sometimes even better than Clinton nominees.

The problem arises for those without judicial experience. Here the apparent preference for Clinton appointees is strikingly large. Without controlling for any credentials, Clinton confirmed nominees have 9.1 times as high odds of getting a unanimous well qualified rating as do Bush confirmed nominees. Controlling for credentials, Clinton nominees have 9.7-15.9 times as high odds of getting a unanimous well qualified ABA rating as similarly credentialed Bush appointees. For those without prior judicial experience, just being nominated by Clinton instead of Bush is a stronger positive variable than any other credential or than all other credentials put together.
The differences in how the ABA treats Bush and Clinton nominees reaches even to the committee's internal decision making. The ABA committee split its vote 33% of the time while evaluating Bush appointees, but only 17% of the time when evaluating Clinton appointees. This difference was concentrated among those who lacked prior judicial experience, where 50% of Bush appointees had split ratings, compared to only 10% of Clinton appointees with split ratings.

Abstract:
During the past thirty years, considerable attention and resources have been focused on various aspects of the ethics of research involving human participants. However, the presumptive basis on which the entire enterprise of research ethics is based - The Belmont Report - has received little serious scrutiny during this time. Conceptually, The Belmont Report occupies a unique position: because it is outside traditional disciplines that deal with issues of morality and moral reasoning - e.g., moral philosophy, social and political philosophy, legal ethics, and anthropology - it appears to be unassailable to judgments from those disciplines. Yet, despite this separation from these more traditional disciplines, the Report relies on their principles, without necessarily being sufficiently informed by them. Indeed, The Belmont Report's influence is nearly hegemonic in that within IRBs and the broader research ethics community all discussions must start (and sometimes end) with it in order to be considered morally legitimate. The Belmont Report is treated as immutable to appeals to the philosophical requirements of the principles upon which it claims to be based. Moreover, within its implementation, it straddles a line between normative and practical ethics, leaving both unsatisfied.

The statutory requirements of the federal regulations governing human subjects research (45CFR46) draw from and underscore Belmont's principles. Belmont is the only statement of ethical principles recognized as a legitimate foundation for ethical review processes in the contract required by the US government for institutions receiving government funds for research. Consequently, almost all U.S. universities and other research institutes hold their research practices to Belmont's definitions of the ethical. IRB review process and professional codes of conduct tacitly or explicitly incorporate the principles of The Belmont Report. IRB reviews are to document that risks to participants are minimized within a study's design (beneficence), that benefits and burdens of research participation are equitably distributed (justice), and that the informed consent of participants is prospectively acquired and documented (respect for persons). We think that the time has come to examine this influential report and how it might be supplanted by a more cogent, logical, and ethical guide for research. In this Part I of our project, we both discuss some of the valuable ideas in The Belmont Report and examine problems with The Belmont Report's analyses of ethical principles.

These suggest that Belmont's core principles must remain foundational for the enterprise of ethical research. However, their specification and application has at times verged from the spirit and philosophical foundations of these principles. We argue that the principled model for ethical decision-making specified and implied in The Belmont Report distorts the philosophical requirements of the ethical principles of beneficence, respect for persons, and justice in both their conceptual specification and practical application. Specifically, we argue that: the conception of beneficence relies on a simplistic conception of benefits and risks that cannot accommodate the various goods and harms that are legitimately given weight in risk/benefit calculations made by research participants; the conception of respect for persons relies on a superficial view of choice; and the conception of justice involves a conceptual mistake that conflates the harms of exploitation with those of disrespect for persons.

ethics, research ethics, coercion, consent, respect for persons, justice, exploitation

Abstract:
Affirmative action, or concern about diversity, looms large at most law schools. In considering how affirmative action is working and how it might be improved, it is surely important not just to have reasonably diverse student bodies, but to train minority lawyers who will be employable - and employed - for their professional careers. This short essay, in the style of a research note, explores the employment of African-American attorneys ages 31-65, as reported in U.S. Census data from 1960 through 2000.

The conclusions from the data are mixed. In 1960, 2.0% of male lawyers and judges ages 36-45 were African Americans. After several decades of affirmative action, in 2000 the proportion in the same age group has grown only modestly to 2.8% of male lawyers. Since the 1980 Census (when most African-American lawyers ages 31-65 would have graduated from law school before the era of affirmative action in law school admissions), the changes for African-American men have been even less impressive in employment by private firms and companies: from 1.8% of males in 1980 to 2.1% in 2000.

African-American women have fared better, but most of these gains have roughly tracked gains for other females. Besides judgeships - in which African-Americans are much better represented than in the past, but for which the numbers are necessarily small - and the general gains for women of all colors, the other big growth area for African-American lawyers has been in self-employment.

The data are far from a ringing endorsement of affirmative action, especially for African-American men. What law schools have been doing since the 1970s has been only a moderate success in some areas, such as for African-American women. In other areas, such as for male African-Americans employed by private firms or companies, very little has been accomplished. The data do not themselves address the question of whether African-American students would benefit from having a larger "critical mass" of classmates of similar ethnicity or instead would benefit from a general national reduction in the scope of affirmative action for African-Americans and thus a corresponding reduction in the size of gap in entering qualifications compared with other classmates. Law schools should perhaps think more critically about their contributions to these seemingly intractable problems or their potential solutions.

Law Schools, Diversity, Affirmative Action, Careers