Partial Birth Act Upheld

Malla Pollack mpollack at ajsl.us
Thu Apr 19 13:56:48 PDT 2007


I am hardly an expert on this literature. But my current belief is that very
smart persons argued that in theory the market would fix poverty.  It has
now been tried for over 20 years, and the literature I have found says the
problem has not been fixed.  I would appreciate citations to empirical
current literature reporting that a nation's general economic improvement,
without more directed effort, did help the poorest.  My article claiming the
contrary is  Peter Townsend, "The Right to Social Security and National
Development: Lessons  from OECD Experience for Low-Income Countries,"
Issues in Social Protection Discussion Paper No. 18, London School of
Economics & Political Science; London School of Economics, available at
http://ssrn.com/abstract=958252 (visited April 6, 2007).


Malla Pollack
Professor, American Justice School of Law
mpollack at ajsl.us
270-744-3300 x 28
articles http://works.bepress.com/malla_pollack/

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, April 19, 2007 3:49 PM
To: Con Law Prof list
Subject: RE: Partial Birth Act Upheld

	Well, the change in focus came from Prof. Prempeh, who was
accusing certain politicians of being "insincere"; my post was
responding to Prof. Prempeh.

	As to refusing to look at opposing evidence, some very smart
people who have looked at a wide range of evidence nonetheless conclude
that welfare-state programs do more harm than good.  Now maybe they're
still wrong, because they've misunderstood the evidence.  But should we
really assume that, when it comes to such economic questions, the matter
is so open-and-shut that only someone who "refus[es] to look at opposing
evidence" could come to a conclusion that differs from ours?

	Eugene

> -----Original Message-----
> From: Malla Pollack [mailto:mpollack at ajsl.us] 
> Sent: Thursday, April 19, 2007 1:45 PM
> To: Volokh, Eugene; 'Con Law Prof list'
> Subject: RE: Partial Birth Act Upheld
> 
> "But being wrong is not the same as being insincere." Yes, 
> but distinguish error from insistance on refusing to look at 
> opposing evidence. As for sincerity, while better than 
> hypocracy, it is highly overrated.  As someone once said, the 
> most sincere person she ever met was Adolf Hitler.
> 
> But, most importantly, this changes the focus.  I am much 
> less interested in your soul than I am in whether the poor 
> have enough to eat.  
> I think a Catholic saint recommended worrying about your own 
> soul and others' bodies, not vice versa. 
> 
> Malla Pollack
> Professor, American Justice School of Law mpollack at ajsl.us 
> 270-744-3300 x 28 articles http://works.bepress.com/malla_pollack/
> 
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
> Sent: Thursday, April 19, 2007 3:40 PM
> To: Con Law Prof list
> Subject: RE: Partial Birth Act Upheld
> 
> 	(1)  I'm not sure why it's unreasonable for those who 
> generally oppose positive constitutional rights to 
> distinguish prisoners from nonprisoners -- just as it's 
> hardly unreasonable even for Establishment Clause maximalists 
> to endorse some government-provided (or at least
> government-licensed) prison chaplains and prison-run 
> religious services, even when they'd oppose such 
> government-provided practices in other contexts.  When the 
> government locks someone up, it may well incur extra positive 
> obligations to protect him from certain threats that it 
> wouldn't have in other contexts.
> 
> 	(2)  It should be easy "to resist calling 
> self-professed 'pro life' politicians anti-poor or insincere 
> in their professed commitment to 'life' when they carry their 
> objection and hostility to 'positive rights' from the 
> courthouse to the legislature by pushing a legislative agenda 
> that is hostile to government 'safety nets' for the poor (and 
> especially children living in poverty)."
> 
> 	First, one can quite reasonably believe there is a 
> greater moral obligation to fight private violence against 
> others than to protect people from privation.  One might be 
> mistaken in this, but that hardly makes one's views insincere.
> 
> 	Second, many people do believe, as best I can tell 
> entirely sincerely, that various safety-net programs are 
> counterproductive.  I stress again:  They may be factually 
> wrong on this.  But being wrong is not the same as being insincere.
> 
> 	Eugene
> 
> > -----Original Message-----
> > From: Henry K Prempeh [mailto:prempehe at shu.edu]
> > Sent: Thursday, April 19, 2007 12:58 PM
> > To: Judith Baer
> > Cc: CONLAWPROF at lists.ucla.edu;
> > conlawprof-bounces at lists.ucla.edu; 'Malla Pollack'; Volokh, Eugene
> > Subject: RE: Partial Birth Act Upheld
> > 
> > The "conservative" objection to constitutionally guaranteed 
> "positive 
> > rights" is apparently not total !!!
> > 
> > Per Chief Justice Rehnquist's opinion for the Court in Deshaney,  
> > there is one sure way for the poor in America to become 
> > constitutionally entitled to a "positive right" (to minimum 
> > subsistence from the Government):  get convicted for a crime and 
> > become a prisoner.  See Deshaney  (". . .  when the State takes a 
> > person into its custody and holds him there against his will, the 
> > Constitution imposes upon it a corresponding duty to assume some 
> > responsibility for his safety and general well-being.  The 
> affirmative 
> > duty to protect arises not from the State's knowledge ofn the 
> > individual's predicament or its expressions of intent to 
> help him, but 
> > from the limitation which it has imposed on his freedom to 
> act in his 
> > own behalf") (Rehnquist, C.J.).
> > 
> > Of course it's not necessarily unreasonable or anti-poor 
> for anyone to 
> > insist (implicitly) that the problem of poverty must be a 
> problem for 
> > democracy (politics), not for constitutionalism (courts). But it is 
> > difficult to resist calling self-professed "pro life" politicians 
> > anti-poor or insincere in their professed commitment to "life" when 
> > they carry their objection and hostility to "positive 
> rights" from the 
> > courthouse to the legislature by pushing a legislative 
> agenda that is 
> > hostile to government "safety nets" for the poor (and especially 
> > children living in poverty).
> > Yes, there is the policy argument about perverse incentives. 
> > But what is more perverse than guaranteeing "constitutional" 
> > positive rights to the poor only when they become criminal convicts 
> > but not when they are
> > law-abiding citizens outside the prison walls!!   Little wonder many
> > unrehabilitated ex-convicts, finding "life" on the outside 
> materially 
> > intolerable, get themselves back to prison where "some" hot meal or 
> > "some"
> > shelter is guaranteed!!
> > 
> > H. Kwasi Prempeh
> > Associate Professor of Law
> > Seton Hall University School of Law
> > One Newark Center
> > Newark, New Jersey 07102-5210
> > (973) 642-8837
> > 
> > 
> >                                                               
> >              
> >              Judith Baer                                      
> >              
> >              <JBAER at politics.t                                
> >              
> >              amu.edu>                                         
> >           To 
> >              Sent by:                  "'Malla Pollack'"      
> >              
> >              conlawprof-bounce         <mpollack at ajsl.us>, 
> > "'Volokh,       
> >              s at lists.ucla.edu          Eugene'" 
> > <VOLOKH at law.ucla.edu>,     
> >                                        
> > CONLAWPROF at lists.ucla.edu           
> >                                                               
> >           cc 
> >              04/19/2007 12:01                                 
> >              
> >              PM                                               
> >      Subject 
> >                                        RE: Partial Birth Act 
> > Upheld        
> >                                                               
> >              
> >                                                               
> >              
> >                                                               
> >              
> >                                                               
> >              
> >                                                               
> >              
> >                                                               
> >              
> > 
> > 
> > 
> > 
> > However, look at the legislative agenda of anti abortion polticians 
> > and activists.  Their polemics do not include anything about making 
> > sure that the chlidren they push women to deliver will be 
> well taken 
> > care of -- instead the standard "conservative" line is to both cut 
> > abortion and cut saftey nets for the poor.
> > 
> > I refer everyone toJean Reith Schroedel, IS THE FETUS A PERSON? 
> > (Cornell,
> > 2000.) She finds that state anti-abortion legislation is not 
> > positively correlated with safety nets or oltherlaws that treat the 
> > fetus as a persdon, such as criminalpenalties for third-party fetal 
> > killing. However, restrictive abortion laws were negatively 
> correlated 
> > with laws protecting the rights of children.
> > 
> > Judy Baer
> > 
> > _______________________________________________
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> > 
> > 
> > 
> _______________________________________________
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> 
> 
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