WM

jfnbl at earthlink.com jfnbl at earthlink.com
Thu Apr 12 17:43:23 PDT 2007


The evidentiary issue here is foundation. If you're going to admit 
hearsay (the AA agent's attribution of the listing to participation 
in peace marches),  you at least need a foundation (i.e., the basis 
of his knowledge). The reason for the hearsay rule is that you can't 
examine foundation. The exceptions are generally instances in which 
the foundation is obvious. Murphy's "testimony" as to the AA agent's 
statement is probative only as to the agent's belief. It's beyond 
dubious as to the truth of the matter asserted.

John Noble

At 2:28 PM -0500 12/4/07, Frank Cross wrote:
>Well, I think that's kid of odd, but I don't really see how it casts 
>doubt on his judgment.
>He had a dubious view of the Administration and was apparently using 
>himself as part of an experiment.
>But I don't see that this one fact, out of thousands in his life, 
>and he is known by members of this list, is a reason to demean his 
>judgment.
>
>
>At 01:44 PM 4/12/2007, Volokh, Eugene wrote:
>>         Hmm -- the concern is not simply that he is too quick to believe
>>the worst about the Administration.  Rather, it's that (among other
>>things) his experiments with using certain phrases in cell phone
>>conversations with fellow academics as a means of alerting the NSA that
>>he should be taken off the watch list cast some doubt on Prof. Graber's
>>positive evaluation of his judgment.
>>
>>         Eugene
>>
>>>  -----Original Message-----
>>>  From: conlawprof-bounces at lists.ucla.edu
>>>  [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Frank Cross
>>>  Sent: Thursday, April 12, 2007 10:46 AM
>>>  To: Volokh, Eugene; conlawprof at lists.ucla.edu
>>>  Subject: RE: WM
>>>
>>>
>>>  Well, I find it easy to believe that Professor Murphy was too
>>>  quick to "believe the worst" about the Administration because
>>>  of his ideological priors.  But that tendency of motivated
>>>  reasoning doesn't really distinguish him from other posters
>>>  on this list, I don't think, or from people in general.  I
>>>  don't think it much undermines his credibility on the issue
>>>  of what he was told, as opposed to explaining his lack of
>>>  skepticism about what he was told.
>>>
>>>
>>>  At 12:18 PM 4/12/2007, Volokh, Eugene wrote:
>>>  >         The question is raised by the argument that
>>>  "Professor Murphy,
>>>  >of course, is best placed to make that evaluation [about
>>>  whether the AA
>>>  >clerk's statement seemed like a joke, seemed authoritative and
>>>  >knowledgeable, and the like].  Then you have to make some decisions
>>>  >about his [Prof. Murphy's] capacity to make an evaluation.
>>>  Perhaps he
>>>  >is guilty of thinking too highly of himself.  But my sense of the
>>>  >universe is that this is a person who is reasonably sober."
>>>  >
>>>  >         Here is what makes some, including me, unsure of Prof.
>>>  >Murphy's sobriety (naturally, only in the figurative sense).
>>>   This is
>>>  >from an interview with Prof. Murphy in Wired,
>>>  >http://blog.wired.com/27bstroke6/2007/04/professor_bashi.html:
>>>  >
>>>  >         "I flew back without having trouble getting a boarding pass.
>>>  >But when I was in Princeton, I had breakfast with former
>>>  student -- a
>>>  >Republican congressman, and called a number of friends in my
>>>  academic
>>>  >life, and the NSA monitors a lot of phone calls, especially
>>>  cell phone
>>>  >calls, so I tried to use the words that might trip their
>>>  computers like
>>>  >starting calls by saying, 'I'm on the terrorist watch list'
>>>  and 'I've
>>>  >been criticizing George Bush' and if indeed these things are
>>>  monitored,
>>>  >maybe they heard this, I don't know."
>>>  >
>>>  >         Maybe I'm wrong, but responding to being put on a
>>>  threat list
>>>  >by saying in one's phone calls "I'm on the terrorist watch list" and
>>>  >"I've been criticizing George Bush" -- on the hope that
>>>  maybe the NSA
>>>  >will monitor the phone calls and will respond to such statements
>>>  >(remember, not statements to government officials, but just
>>>  statements
>>>  >to one's academic friends) by removing one from a watch list
>>>  -- strikes
>>  > >me as behavior that would cast some doubt on the person's judgment.
>>>  >Naturally, all of us are completely entitled to engage in
>>>  such behavior.
>>>  >But if I engaged in it, I would think that it would undermine some
>>>  >people's estimate of my sobriety, and who should thus be
>>>  trusted about
>>>  >subtle cues he picked up in conversation.
>>>  >
>>>  >         It also seems to me that relying on an AA agent's testimony
>>>  >about how TSA puts people on their watch lists is itself somewhat
>>>  >questionable:  If the TSA did engage in patently unconstitutional
>>>  >retaliation based on someone's exercise of his rights to
>>>  exercise the
>>>  >Administration, I would think that they wouldn't tell the AA agent.
>>>  >Combining this willingness with the "trip the NSA's
>>>  computers" tactic,
>>>  >and add to this another part of the interview, which strikes
>>>  me as at
>>>  >least modestly implausible ("One friend who called me said,
>>>  'I got put
>>>  >on, too.' He used to be [a] fairly high-powered mover and
>>>  shaker. 'How
>>>  >did you get off?,' I asked. 'I'm partner in large law firm
>>>  and I told
>>>  >my secretary to get me off,' he said. 'And I've been able to fly
>>>  >since.'"), and it seems to me sensible to be somewhat
>>>  skeptical of his judgment.
>>>  >
>>>  >         Eugene
>>>  >
>>>  > > -----Original Message-----
>>>  > > From: Frank Cross [mailto:crossf at mail.utexas.edu]
>>>  > > Sent: Thursday, April 12, 2007 10:07 AM
>>>  > > To: Volokh, Eugene; conlawprof at lists.ucla.edu
>>>  > > Subject: RE: WM
>>>  > >
>>>  > >
>>>  > > I missed the part about the reasons why Professor Murphy is not a
>>>  > > credible witness about what he was told by the clerk.
>>>  > >
>>>  > > At 11:34 AM 4/12/2007, Volokh, Eugene wrote:
>>>  > > >         I recognize that the questioning of Prof. Murphy's
>>>  > > credibility
>>>  > > >on this would be understandably annoying to his friends; and as
>>>  > > >I've noted before, it seems to me that any such questioning is
>>>  > > best done in
>>>  > > >as polite and low-key way as possible.
>>>  > > >
>>>  > > >         Yet it's hard for me to see how the posts about
>>>  > > this have had
>>>  > > >"very little to do with constitutional law as such."  Prof.
>>>  > > Murphy, as
>>>  > > >I understand it, is essentially alleging a constitutional
>>>  > > violation by
>>>  > > >the Administration.  ("[T]he problem does pertain to basic
>>>  > > >constitutional issues with which all of us, of whatever
>>>  political
>>>  > > >persuasion, are concerned in our teaching and scholarship.")
>>>  > >  To figure
>>>  > > >out whether there is such a constitutional violation, we
>>>  > > have to look
>>>  > > >at the evidence.
>>>  > > >
>>>  > > >         There are two pieces of evidence:  (1)  Prof.
>>>  Murphy has
>>>  > > >spoken out against the Administration, was delayed for some
>>>  > > TSA-related
>>>  > > >reasons for 10-20 minutes while getting on an airplane,
>>>  and had his
>>>  > > >luggage lost (which is to say delayed by several hours) on
>>>  > > the return
>>>  > > >flight, on which he was not delayed while boarding.  (2)  A
>>>  > > clerk for
>>>  > > >American Airlines asked "Have you been in any peace marches?
>>>  > >  We ban a
>>>  > > >lot of people from flying because of that."
>>>  > > >
>>>  > > >         Now as to #1, Prof. Murphy's credibility would not
>>>  > > be at all
>>>  > > >relevant.  But if the only evidence Prof. Murphy adduced was
>>>  > > #1, then
>>>  > > >that would be pretty weak evidence of "basic constitutional"
>>>  > > problems.
>>>  > > >The linchpin of the alleged constitutional problems was #2.
>>>  > > >
>>>  > > >         The trouble is that #2 is itself fairly weak
>>>  > > evidence, because
>>>  > > >even if such an unconstitutional policy existed, it's hard
>>>  > > to see how
>>>  > > >an AA clerk would be told about it, or even would pick
>>>  up reliable
>>>  > > >rumor about it.  It therefore becomes relevant, as I
>>>  > > suggested, whether
>>>  > > >the clerk may have been talking through his hat, or joking,
>>>  > > or some such.
>>>  > > >
>>>  > > >         Prof. Graber -- one of the people who helped
>>>  spread Prof.
>>>  > > >Murphy's account -- then pointed to Prof. Murphy's credibility,
>>>  > > >presumably because he shares my view that Prof. Murphy's
>>>  > > credibility is
>>>  > > >relevant to determining whether there is in fact a "basic
>>  > > > >constitutional issue[]" implicated here.  He therefore
>>>  > > wrote, "To some
>>>  > > >extent, this is an instance of 'you had to be there.'  So a
>>>  > > good deal
>>>  > > >of the concern is that, at least in my opinion, this is a
>>>  > > person with
>>>  > > >very good judgment who is not likely to fly off the handle.  I
>>>  > > >think the story plays out somewhat differently with a different
>>>  > > person."  In
>>>  > > >a later post, he wrote, "Professor Murphy, of course, is
>>>  > > best placed to
>>>  > > >make that evaluation [about whether the AA clerk's
>>>  statement seemed
>>>  > > >like a joke, seemed authoritative and knowledgeable, and
>>>  the like].
>>>  > > >Then you have to make some decisions about his [Prof. Murphy's]
>>>  > > >capacity to make an evaluation.  Perhaps he is guilty of
>>>  > > thinking too highly of himself.
>>>  > > >But my sense of the universe is that this is a person who is
>>>  > > reasonably
>>>  > > >sober."
>>>  > > >
>>>  > > >         Now maybe Prof. Graber was mistaken in assuming
>>>  that Prof.
>>>  > > >Murphy's credibility is relevant to whether there is a
>>>  > > constitutional
>>>  > > >problem here.  But I'm inclined to think that he was right:
>>>  > > Given that
>>>  > > >so much turns on Prof. Murphy's account of what he heard
>>>  from the
>>>  > > >AA clerk, his -- a percipient witness's -- credibility and
>>>  > > temperament are
>>>  > > >indeed quite relevant.  And if that's so, it seems to me
>>>  > > that evidence
>>>  > > >that Prof. Murphy might not be an especially credible witness on
>>>  > > >the subject is likewise relevant, and relevant again to the
>>>  > > >*constitutional* question.  Nor is such evidence ad
>>>  hominem, a term
>>>  > > >that as I understand it is a pejorative for an attempt to
>>>  > > >*fallaciously* focus on an arguer's identity when one should
>>>  > > just evaluate the self-contained argument.
>>>  > > >Reasonably focusing on a witness's identity, temperament, and
>>>  > > >credibility in trying to evaluate the witness's testimony is not
>>>  > > >generally seen as ad hominem, it seems to me.
>>>  > > >
>>>  > > >         This having been said, I will say again that such
>>>  > > comments on
>>>  > > >people's credibility ought to be done as politely as possible.
>>>  > > >
>>>  > > >         But if someone is going to allege unconstitutional
>>>  > > behavior,
>>>  > > >based on his personal observations of some incident, I don't
>>>  > > see how we
>>>  > > >can rule out of bounds inquiry into whether his observations
>>>  > > are to be
>>>  > > >trusted.
>>>  > > >
>>>  > > >         Eugene
>>>  > > >
>>>  > > >
>>>  > > >________________________________
>>>  > > >
>>>  > > >         From: conlawprof-bounces at lists.ucla.edu
>>>  > > >[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Donald P.
>>>  > > >Kommers
>>>  > > >         Sent: Thursday, April 12, 2007 5:56 AM
>>>  > > >         To: conlawprof at lists.ucla.edu
>>>  > > >         Subject: WM
>>>  > > >
>>>  > > >
>>>  > > >         Walter M and I have known each other since the
>>>  > > middle of the
>>>  > > >last century and I was one of the persons who encourage
>>>  him to make
>>>  > > >public his airport experience.  But he might have chosen a
>>>  > > forum other
>>>  > > >than this list because most of the comments have very little
>>>  > > to do with
>>>  > > >constitutional law as such.  Personal expressions of
>>>  outrage or ad
>>>  > > >hominem remarks should be reserved for off-list communications.
>>>  > > >
>>>  > > >         dpk
>>>  > > >
>>>  > > >
>>>  > > >         Donald P. Kommers
>>>  > > >         Joseph and Elizabeth Robbie Professor of Political
>>>  > > >         Science and Professor of Law,
>>>  > > >         Notre Dame Law School
>>>  > > >         Notre Dame, Indiana 46556-0780
>>>  > > >         Tel: (574) 631-6304
>>>  > > >         Fax: (574 631-4197
>>>  > > >         Home fax: (574) 243-0264
>>>  > > >         Home  phone: (574-271-9315
>>>  > > >         kommers.1 at nd.edu
>>>  > > >
>>>  http://www.nd.edu/~ndlaw/faculty/facultypages/kommers.html
>>>  > > >
>>>  > > >_______________________________________________
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>>  > > > >
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>>_______________________________________________
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>>
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>>that are posted; people can read the Web archives; and list members 
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>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see 
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed 
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