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Saturday, June 15, 2002


MANY UPDATES: My posting spree of Monday and Tuesday has generated several responses. Because updates that far back probably won't get read otherwise, let me just point you to the relevant posts:

An old post on eminent domain in New London got some feedback back in May while I was in Europe, but I've only just now gotten around to posting the update. I still owe a reader an update on the history of arithmetic.

Meanwhile, my post on whether and why we should read old philosophers has generated quite a bit of response, which I haven't responded to, mainly because these were tentative thoughts that I don't have a settled view on. But read Quare's intelligent post on what can make certain fields of philosophy, and not others, obsolete.


ENVIRONMENTAL ETHICS: I've spent a few days at the Institute for Humane Studies in Arlington, Va., being a Summer Graduate Research Fellow (I'm going to spend the summer working on my economic history paper on medieval agricultural contracts). Now, I'm spending a week down at Charlottesville, at the lovely U. Va. campus, among the fireflies, participating in the IHS's graduate Social Change Workshop. I just heard an exceptionally powerful speech by David Schmidtz, philosophy and economics professor at the University of Arizona, called "Saving the Elephants." Here's a sneak peek at his new book (co-edited with his wife, Elizabeth Willott), Natural Enemies: An Anatomy of Environmental Conflict. A brief excerpt:

We misunderstand [the problem of conflicting environmental priorities] if we see it simply as another case of conflicting values. The difference is that people’s immediate goals can be incompatible even when their values are relevantly similar. International conservation groups raise money by pledging to fight for preservationist "no use at all" policies. Sometimes, though, farmers do not join in pursuing cosmopolitan environmentalist goals because they cannot afford to.

This kind of conflict could occur even among people who all feel precisely the same way about where elephants should rank in our hierarchy of values. To give a crude illustration, suppose we all agree that our children outrank elephants but elephants outrank chess sets carved out of ivory. Even so, we could come into conflict when North Americans denounce hunting elephants to acquire ivory for carving chess sets, while Africans defend the practice because ivory revenues are feeding their children. Although both sides have the same values, they do not face the same cost. For one person, no elephant hunting means no ivory chess sets; for another person, no elephant hunting means no children. Subsistence farmers for whom getting enough food is a day by day proposition can have priorities that differ from ours not because their values are different but precisely because their values are the same. Thus, there is a kind of conflict that originates not so much from a difference of values as from a difference in which values people can afford to pursue under their differing circumstances.

Moreover, there is an additional problem, a feature of real-world conflict that some preservationists fail to appreciate. In parts of Africa, the dilemma for subsistence farmers is this: if they cannot commodify elephants (by selling ivory, hunting licenses, or photo safaris), then they will have to push elephants out of the way to make room for livestock or crops. In the abstract, exploiting elephants seems obviously wrong, but it stops being obvious after spending time in rural Africa, and seeing that when rural people cannot exploit elephants in some fashion, their only alternative is to convert elephant habitat into farmland.

. . .

In cases of conflicting priorities, we need to think about people first, if we care about people, or even if we do not. If we care about wildlife, we need to accept that wildlife will survive to the extent that people who have to live with it are better off taking care of it. It is roughly that simple. Requiring subsistence farmers to cooperate in putting the interests of wildlife before (or even on a par with) their own is not a winning strategy for helping the wildlife. We need their cooperation, and the terms of cooperation will have to address not only our interest in preserving wildlife but also their interest in being able to live with it.

Wildlife will survive only if people can afford to share the land. If they cannot share, then they will not share, and the wildlife will die.

One of the good environmental programs that Schmidtz talked about was the CAMPFIRE program in Zimbabwe, which protects wildlife by allowing local communities to profit from it. (Do not confuse with this.) See a positive assessment from the U.N., of all people, and from Cato. I'd appreciate a link to a negative assessment, but I just can't find one! But see my recent post on Zimbabwe (and articles cited there) and ask yourselves how long something based on property rights is going to survive there.

UPDATE: Thanks to my friend Gary Leff of More Room Throughout Coach (the website of free miles and free markets) for pointing me to the Schmidtz article on the web.

Friday, June 14, 2002


ODD CRITICISM: I noticed today that I've been getting quite a few hits via the following link on the Eschaton blog:
I'm no smart young law professor, but I'm shocked at the degree to which the ability to find some legal justification for constitutional rights by executive whim is enough for some people.
(I assume that the author meant "denial of constitutional rights.") This points to my "Why Military Custody?" post on the trouble with applying the standard civilian interrogation rules to enemy combatants.

     Now I surely don't want to look a gift link in the mouth, and I'm delighted that the author found my post worth criticizing. But I'm puzzled as to the substance of the criticism. What exactly is shocking about my argument? Is the argument against extra government power to fight extraordinary threats so obvious -- and so obviously correct -- that it doesn't need explanation? (Also, is it so obvious that the government's action really is, as a legal matter, a denial of constitutional rights? It seems to me that this turns out to be a very complicated, and to my knowledge still unresolved, legal question.)


GEIGER COUNTERS, DIRTY BOMBS, AND THE FOURTH AMENDMENT: I should have a piece on these subjects in Slate on Monday, if all goes well. No blogging over the weekend, at least from me.


POTENTIAL SLEEPER SUPREME COURT CASE? Say the government interrogates someone in violation of Miranda, or the Sixth Amendment rule against interrogating someone who has been arraigned and asked for a lawyer at the arraignment, or the Fifth Amendment right not to be subject to coercive interrogation. (Let's set aside for now the case of plain physical torture, which might be somewhat different.)

     It's clear that a confession gotten this way is inadmissible at the subject's trial; the same is true even of evidence that is gathered indirectly as a result of the suspect's confession. But does the actual getting of the confession itself violate the Constitution? Are these rights only rights not to be convicted based on evidence gathered in certain ways, or rights to be free of these evidence-gathering methods in the first place? Are they rights that focus only on the fairness (beyond merely the truth-finding aspect) of the trial process, or are they rights that focus on the propriety of police questioning as such?

     This, it turns out, is very important. It's one thing to say "If you question the guy this way, you might not be able to use the results to convict him" -- it's another to say "You can't question the guy this way at all, and if you do you're acting unconstitutionally." (Perhaps either legal rule is just wrong where terrorism is concerned, but they are different.)

     My blog post below assumed that the Constitution indeed prohibited even the gathering of the evidence in certain ways, not just its use -- and there certainly is language in the Supreme Court cases and in lower court cases that takes this view. But fellow law professor Richard McAdams pointed out that this isn't necessarily so, and some language in the Supreme Court cases and in lower court cases supports that view, too. So maybe the government would have been free to interrogate Padilla even after he claimed his Miranda rights, so long as it was willing not to use that evidence at Padilla's trial.

     Here's where the Supreme Court may step in. With little fanfare, two weeks ago (June 3), the Supreme Court agreed to rehear Chavez v. Martinez, where one of the questions presented is "Does violation of [the Fifth] Amendment, potentially resulting in an award of civil damages, occur at the time of the purported coercive interview or only when and if the state introduces the constitutionally violative statement in a criminal proceeding?" Another law professor, Eric Freedman, mentioning this case to me, for which I thank him very much. I had completely missed it, because at the time it seemed like such a technical point.

     But now I realize that this could be a tremendously important question. Let's set aside the damages issue as such for now, since the broader question, in the Padilla case and others, isn't basically about the damages -- it's about what the government may constitutionally do, in a culture where legality and constitutionality are seen as tremendously important.

     Rather, the question is: May the government lawfully use certainly potentially coercive methods (but again ones that stop short of physical torture, which is a separate, though important, question) in the civilian justice process, so long as it's willing not to use the results in the questioned person's trial? Or is even the questioning itself unconstitutional?

     If the answer is the latter, then it looks like Miranda and the other rules could be very substantial barriers to using the civil justice system to deal with terrorism -- and military detention thus becomes a comparatively more powerful tool. If the answer is the former, then the marginal drawbacks of the civil justice system, and the marginal advantage of the military system, decrease.

     Of course, even if the government is only barred from using the evidence in the subject's own trial, this may still be quite troubling. It's one thing to say "Well, it's true that this [burglar or robber, or even rapist or murderer] will have to go free even though he's clearly guilty, but that's what we need to do to give the police an incentive to behave properly"; it maybe another to say with respect to an enemy saboteur who may have special skills, willpower, and connections that might allow him to fight against us again. But at least this consequence is less troubling than a conclusion that the government was simply barred from interrogating the enemy in various ways in the first place.


WORLD CUP: There's very amusing Time essay this week on the World Cup. Here's the opening paragraph:
There are just two things about the World Cup that prevent Americans from caring: it involves soccer and the rest of the world. We could get over the soccer part eventually -- after all, it's kind of like the soccer we make our suburban children play, only without the goal scoring. But the global part just isn't going to happen. When I hear that Tunisia is playing Belgium for the crucial Group H runner-up spot, all I want is a map. The only way Americans are going to learn another country's name is if it attacks us.


WHY MILITARY CUSTODY? As I've mentioned before, I'm troubled by the prospect of military detention and military trial (though the latter, under the current Executive Order, applies only to noncitizens). At the same time, I'm sure that military detention and military trial are sometimes proper. For instance, it's always been understood, and in my view quite correctly, that if the military catches someone who's a soldier in an enemy force, it can detain them as POWs.

     The tough question is where to draw the line. Part of the inquiry into this might be historical, though history is somewhat ambiguous here. Another part might be conceptual line-drawing, though I haven't yet heard a persuasive case on that score.

     Another part, then, has to be pragmatic -- what are the specific risks of letting the military as opposed to civilian justice do certain things, and what are the specific benefits? This must be a comparative question, focused on the ways in which military handling is better or worse than civilian. Both are flawed in many respects, but the question is which is less flawed.

     MIRANDA AND INTERROGATION. So let me focus on one pragmatic question: interrogation. Our civilian justice system has taken the view that the police should be carefully circumscribed in their ability to question suspects.

     They cannot question a suspect, while the suspect is in custody, without reading the suspect his Miranda rights. Beyond that, once the suspect says that he doesn't want to talk any more, or says that he wants to talk to a lawyer, questioning must stop until the suspect brings up the matter again. (This is one of the Miranda rights that the government must respect.)

     The Court has also held that once a defendant is arraigned before a judge and asserts his right to counsel there, the government may not start questioning the defendant even if the defendant then waives his right to counsel. (This isn't technically a Miranda matter, but I'll group it with the Miranda rights for now.) I'm not sure that these are good rules, but there are certainly good arguments in their favor, at least in normal law enforcement.

     But as I understand it, military interrogations are not so limited -- nor would we want them to be. You can't torture POWs, but you can question, cajole, wheedle, threaten, perhaps setting aside threats of unlawful violence, and the like. (I include under POWs unlawful combatants, such as spies and saboteurs: They aren't entitled to all the benefits of POW status, but they are surely at least as subject to interrogation as POWs are.)

     To my knowledge, such methods may often work, even without torture. I also suspect that they at least sometimes work better than the carefully circumscribed civilian interrogations. I know that police departments can often get a lot of information out of people even given the Miranda constraints; but I doubt that they can get as much as they could without those constraints (again, even if physical abuse is prohibited). (I should mention, as before, that all this thinking is quite tentative on my part, partly because this is a tough question, and partly because I'm not as expert on the military side as I am on the civilian justice side.)

     So here, then, is one question: If our civilian justice system continues to strongly circumscribe interrogation of prisoners, wouldn't that cut in favor of having Padilla and others like him be detained and interrogated as POWs by the military? Don't we want the government to be able to do what it can -- again, setting aside torture, which is generally forbidden both in the military and the civilian context -- to get as much information as it can out of him?

     Maybe the costs of military detention are so great that they outweigh this benefit. They would be particularly great if such detention could be used against anyone who's suspected of having any knowledge of terrorist activity, as opposed to people who the government has strong reason to believe are actually enemy soldiers. But at least here, I think, we have a potential concrete benefit of using the military detention and interrogation system rather than the civilian one.

     QUARLES AND THE PUBLIC SAFETY EXCEPTION: Now it might be that the civilian justice system isn't as rigid as I describe it. In New York v. Quarles (1984), the Court held that there was a "public safety" exception to Miranda: A police officer arrested a suspect; the officer had been told that the suspect had a gun; when arrested, the suspect had an empty holster; and before reading the suspect his Miranda rights, the officer asked where the gun was.

     The Court concluded that this question didn't violate Miranda, because (and here's the broadest possible language from the Court) "the need for answers to questions in a situation posing a threat to the public safety outweighs the need for" the Miranda rule. ("So long as the gun was concealed somewhere in the supermarket . . . it obviously posed more than one danger to the public safety: an accomplice might make use of it, a customer or employee might later come upon it.")

     Sounds pretty broad, and possibly applicable to supposed would-be dirty bombers, or for that matter any suspected terrorists, given the clear "threat to the public safety" from terrorism. But on the other hand, much of the rest of the opinion turns on the split-second nature of the police officer's questioning, which requires "spontaneity rather than adherence to a police manual," and involves "immediate necessity" and "exigency" (which in criminal procedure generally means the risk of truly immediate harm). And indeed, to my knowledge Quarles has not generally been read very broadly.

     In any event, maybe the criminal justice system could just relax, whether under a Quarles rationale or otherwise, the Miranda constraints on questioning prisoners where weapons of mass destruction are supposedly involved. That would eliminate this part of the advantage that military detention might have over traditional civilian pretrial detention. But for now, it looks like Miranda might well be a serious barrier to effectively questioning alleged enemy saboteurs.

     UPDATE: It turns out that the matter is made even more complex by a recently granted, but relatively unnoticed Supreme Court case.


TORTURE: On a discussion list that I'm on, talk has turned to the perennial subject of whether torture can ever be constitutionally justified, even when we're talking about torturing a suspect to find a hidden nuclear bomb, or smallpox vial, or dirty bomb.

     I should say that there are many powerful criticisms of torture that can be made; but too often I hear arguments that simply run more or less as follows: "If we start using torture, we lose any possible claim to the moral high ground." "Once we start using torture, are we any better than al Qaeda?" "When fighting monsters, we must never become monsters ourselves."

     It seems to me that this sort of argument is ultimately deeply unpersuasive, because it relies too much on moral abstractions that sound appealing but simply do not confront the powerful realist counterarguments. Moral high grounds, for instance, are well and good, and all else being equal of course we'd like to have them. But lots of very sensible and decent people argue that sometimes we need to sacrifice the moral high ground in order to, well, save the lives of thousands of people (or more) -- and also that a moral high ground that strips us of the power to save these lives isn't so moral after all. Simple appeals to "keeping the moral high ground" just don't effectively respond to this important argument.

     Likewise, the argument that "Once we start using torture, are we any better than al Qaeda?" strikes me as fundamentally misplaced. You bet we'd be better than al Qaeda; while means are important, ends are important, too. Using torture to save the lives of innocents, even if it's morally flawed, is surely better than killing thousands of innocents in order to install a supposedly purer Islam in the Middle East.

     Again, maybe torture is just categorically wrong, and maybe this means is impermissible regardless of the ends -- I'm not sure about that, but one can credibly argue that. But whatever the right or wrong of the matter may be, it can't be decided simply by claiming that ends are irrelevant and that means are all that matter.

     As I said, there are powerful arguments against torture, for instance the risk that allowing torture in the most extaordinary cases will lead to allowing it in the merely extraordinary cases and then in fairly ordinary cases. I remember one conversation where someone said that of course torture is justified when it's needed to save thousands of lives -- and then went went on to praise the example of the Jordanian security apparatus supposedly effectively using torture in order to thwart a plot on the King of Jordan's life.

     A perfect example of the slippery slope, it seems to me, and all in the course of one conversation. Once torture is legitimized in principle to save thousands, it becomes much easier to urge it to save one important person, and then of course we must be able to use it to save one ordinary person, and then how about using it to break child pornography rings or catch rapists.

     Is this slippery slope risk, coupled with our natural moral abhorrence to torture in any situation, enough to justify refraining from torture in all cases, even where thousands of lives really are at stake? This is a hard question that reasonable people can and should debate. But it seems to me that abstract arguments about moral high grounds or stooping to the enemy's level do more to weaken the argument against torture than to strengthen it.

Thursday, June 13, 2002


MORE ON BLOG ITEMS BEING PICKED UP IN THE TRADITIONAL MEDIA: People at KTSA (550 AM) in San Antonio read some of the material on this blog about the dirty bomber case, and invited me to talk about this on their "Into the Night with Jack Riccardi" tonight, from 7:15 to 7:30 PM Central Time.

     As I mentioned before, I've been finding that quite a few of the blog posts here have turned into traditional media items -- further evidence of how powerful Internet media can be (despite their nominally quite low readerships), and of how their power often flows from their symbiosis with the old media.


BIG DAY: Today is the 27th anniversary of our family's departure from the late, unlamented Soviet Union. Friday the 13th it was, but it was very lucky for us. A holiday far more important than a birthday or New Year's -- our own personal July 4th.


"FROM OVAL OFFICE, DEMOCRATIC ADS -- Vulnerable Lawmakers Seeing Reelection Use Bush's Image":
Democratic lawmakers facing difficult reelection campaigns this fall are employing the services of an unlikely pitchman: President Bush.

The Democratic Party has used ads featuring the Republican president's name and voice to support the candidacy of liberal Sen. Tom Harkin (D-Iowa). In Montana, Democratic Sen. Max Baucus has paid for a series of television and radio ads invoking Bush and using his voice. And in North Dakota, Democratic Rep. Earl Pomeroy is running a TV commercial featuring a photo of him standing with Bush in the Oval Office.

The president's huge popularity, particularly in the South and Rocky Mountain states, has led a number of vulnerable Democrats to run ads promoting their close ties to the president -- even though Bush, in all cases, is backing their GOP opponents. . . .


THE GLORIES OF THE ACADEMIC LIFE -- well, once upon a time: A colleague tells me that Robert Darnton, in The Great Cat Massacre and Other Episodes in French Cultural History, says this about a contemporary description of a procession in 18th Century France:
Professors had a great deal. . . . [T]he Professeurs Royaux of the University of Montpellier wore crimson satin with ermine hoods. In the law faculty they were known as Chevaliers es-Lois, a title that gave them nontransmissible nobility and the right to be buried in an open coffin wearing their robes and boots with gold spurs.

To be sure, they received only 1,800 livres a year . . ., an income that our author though incompatible with the 'nobility' of their 'estate.' But 'dignity' or 'quality' . . . did not derive from wealth. Professors were knights of the law because of the noble character of their knowledge, and it was more important to go to the grave with golden spurs than to leave a fortune behind.


MARIN AND MARRIAGE: Lindh was driven to Islam by Marin County; but Padilla, the N.Y. Times (June 11) says "converted to Islam when he married a Middle Eastern woman." Both Marin life and marriage, it is now obvious, are deeply subversive institutions . . . .


DECLARATION OF WAR: I've argued below that both U.S. and international law recognizes that we can be in a war, with all that that entails, without a declaration of war. I've also suggested that even if a declaration of war were somehow required for certain actions -- which I don't believe is the case -- it's hard to see why the Congressional authorization of the use of military force shouldn't qualify, at least unless the magic words "We declare war" are required.

     Reader Michael McNeil points out that Senator Biden, who drafted the use of force resolution, agrees on this:
M: (Inaudible) Talbot(?). Senator, thank you for this broad gauged approach to the problems we face. My question is this, do you foresee the need or the expectation of a Congressional declaration of war, which the Constitution calls for, and if so, against whom? (Scattered Laughter)

JB: The answer is yes, and we did it. I happen to be a professor of Constitutional law. I'm the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House. I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction ... Louis Fisher(?) and others can tell you, there is no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever. And we defined in that Use of Force Act that we passed, what ... against whom we were moving, and what authority was granted to the President.

Wednesday, June 12, 2002


MICHELLE BOARDMAN'S PAGE: Just put up a little Web page for co-blogger Michelle Boardman, complete with brief bio, e-mail address, and a photo. There's a permanent link on the left-hand side of this page.


LAWSUITS AGAINST GUN MANUFACTURERS: Howard Bashman's "How Appealing" mentions the Ohio Supreme Court's allowance of Cincinnati's lawsuit against gun manufacturers -- a break from the overwhelming trend of recent cases, which have generally rejected these sorts of lawsuits, both by cities and by private crime victims, against gun manufacturers. I haven't read the case yet, but hope to mention some things about it later. (Thanks also to Kevin Holtsberry for first alerting me to this.)

     But in the meantime, one observation: The Ohio Constitution has a right to bear arms provision that the Ohio courts have recognized secures an individual right -- "The people have the right to bear arms for their defense and security." The courts have correctly held (for instance, in the famous New York Times v. Sullivan) that free speech and free press constitutional provisions limit courts' power to allow potentially ruinous tort lawsuits against publishers for what they say. Some such lawsuits are still permitted, but courts recognize that these suits, even when aimed at misconduct (such as false statements), can have a chilling effect on the proper exercise of constitutional rights; and that courts must therefore limit these lawsuits to diminish this chilling effect.

     As David Kopel and Richard Gardiner have pointed out, the same must apply to other constitutional rights, such as the right to bear arms. Kopel & Gardiner made this point about the Second Amendment, but surely it's equally true for state constitutions, such as Ohio's, that clearly secure an individual right.

     So I wonder: Did the Ohio Supreme Court take seriously its obligation to protect the people's right to bear arms while defining the boundaries of state tort law? (After all, constraining manufacturers may often mean constraining their customers.) Or did it treat the right to bear arms as a second-class right, denying it the protection against chilling effects that is provided for free speech and free press rights? Ater I actually read the opinions, I hope to have an answer . . . .


CAESAR BLOGGING: Check out Bloggus Caesari, an odd but very interesting project (I confess that I'm a sucker for anything Ancient Rome, though I generally go for historical novels than, er, any actual history). Thanks to Iain Murray for the link.


POW'S AND TREASON: Some people have supported the military detention of alleged enemy agents like Padilla on the grounds that they're like POWs. After all, they reason, if an enemy soldier captured on the field of battle can be held until the end of the war as a POW, then it follows that an enemy agent sent as a saboteur into the U.S. may likewise be detained -- except that, because he's an unlawful combatant who engages in sabotage or espionage secretly (out of uniform), he needn't be given the various privileges offered normal POWs. More broadly, anyone who is making war on the U.S. can be detained until the end of the war, whether he's a citizen or not, whether he's captured overseas or here, and whether he's making war openly and actively or surreptitiously as a long-term saboteur.

     I think this is a powerful analogy. On the other hand, if it's accepted, then it will give the government truly tremendous power to detain in military custody -- and possibly try by military tribunal, especially if the Presidential regulations are changed to authorize the trial of citizens, as was the case in the Ex parte Quirin (1942) case that validated such tribunals -- anyone who they say is an "enemy soldier" working for the terrorists. Specifically, to quote (with permission) a post by Prof. Richard McAdams (U. Illinois) from a law professors' discussion list,
[W]hat does this do to the law of treason? It would seem to me that most of the time there is a treason, it is possible to say that, in some loose pragmatic sense, the U.S. is in a "war" and the citizen we suspect of treason is therefore an "enemy combatant." [In fact, the Treason Clause of the Constitution says that treason may only mean "levying War against [the United States], or in adhering to their enemies, giving them aid and comfort" -- E.V.] If that means we can hold any such citizen indefinitely without any criminal process, what point is there to the constitutional requirements of proving treason? I suppose it makes it harder to execute those who are possibly guilty of treason. But are we prepared to say the government is free to incarcerate its citizens indefinitely without legal process based on mere suspicion of treason?
I think this is a powerful argument, and a reminder that under the Constitution, even pressing military necessity -- perhaps even the fear of weapons of mass destruction -- is not a universal solvent of all protections.

     So what do we do about the POW analogy, and about Ex parte Quirin? How do we fit that with Prof. McAdams' argument, and the fact that in American history, treason -- even in the sense of helping enemy saboteurs -- was tried by civil courts (see the discussion of Haupt v. United States and Cramer v. United States in paragraph 7 of this post? I can't say I have a good answer, which is why I keep stressing that my views on all this are tentative.

     But I do think that all this shows the limitations of focusing on one analogy -- or one direction in which a slope is slippery -- and thinking that this settles the matter. There are, unfortunately, analogies and slippery slopes going both ways.


DECLARATION OF WAR AND A NATIONAL DEBATE: I''ve argued below that the government's war powers -- including the ability to detain prisoners, and perhaps to try them using military tribunals -- do not require a declaration of war. Bboth U.S. law and international law generally focuses on the existence of a war, not on whether it has been declared.

     But, some argue, wouldn't requiring a declaration of war still be a helpful step, since it would stimulate Congressional and public debate, and require people to really confront the fact that war gives the government lots of powers, perhaps indefinitely (since this war may well last indefinitely)? Maybe the law therefore should require an official declaration of war.

     I don't think this argument really works. First, even if such a requirement really were imposed, what do we have today? Congress has authorized the use of military force. There has been a military attack by a foreign enemy on Americans in America. There is therefore actual war, coupled with Congressional recognition of hostilities -- only the words "declaration of war" weren't used. I don't quite see why the presence or absence of these magic works should make that much of a difference.

     But more importantly, even a requirement of an official declaration of war, in exactly those words, wouldn't really have stimulated much debate on war powers after 9/11. Such debates almost never happen -- in Congress, in the media, and among the public, as opposed to just among law professors -- in the abstract. And if they do happen in the abstract, they aren't terribly productive.

     If on 9/12 Congress had debated whether to declare war, people would have had little idea of just what war measures the government would have to undertake, and in what circumstances they'd be applied. If given the question "Declare war and give the government flexibility, or don't declare it and deny the government this flexibility?," Congress would have, I'd wager, quickly declared war, with little debate about the then purely hypothetical details, no matter how important these details would ultimately prove to be.

     The debate that we are having now, when the particular measures are being proposed and particular cases are coming up, is actually much better. It's far from perfect, but obviously many people -- editorial boards at major newspapers, pundits, Congressmen on both sides of the aisle -- are willing to engage in it, as we saw when the military tribunals were first proposed, and as we now see when particular cases of military detention are arising. We might prefer that there be more such debate, or a different outcome of this debate. But we wouldn't have gotten anything equally good, I think, if the debate had to happen in the abstract when the country had to decide whether to go to war, and didn't have any specific proposals and controversies on the table.

     We should certainly think hard about what the proper type and level of protection against government excesses should be -- and we should think hard about how this protection should be balanced against the need to make sure that the government has the power to protect us. But I don't think that we'd get much protection out of creating rules under which government power turns on whether war is declared.


ATTILA: Talking to a friend today, I was reminded of a line about why Americans have had a different -- perhaps more naive -- view of the world's dangers than Europeans and others: "Who ever heard of Attila the Eskimo"? Yup, two oceans have served us well for a long time; but not any more. Somehow, I'm not sure that even the Cold War and the threat of nuclear destruction were enough to fundamentally change our understanding, but I think that 9/11 might have.

     We're now in the age of Attila the Eskimo, or rather Attila the Jet-Setting Hun (and his stupid nephew, Attila the Shoe-Bomber). We can beat him, but only if we really, deeply accept his existence, and the need to fight him for our lives.


JUAN NOT-HOME: That's all for now on organics, DDT, or anything else for that matter. I'm off on vacation for the next ten days, so I won't be posting or checking e-mail. Don't worry. I'm sure Michelle and the Volokhs will have plenty of interesting things to say (post) in my absence.


IS DDT BAD AFTER ALL? One reader sent in a link to a recent New Scientist article reporting DDT has "finally" been linked to human health problems. The article reports on a study from the Lancet linking blood levels of a DDT metabolite with premature and low-birthweight babies. The most telling quote from the story is the following:
"One of the reasons this finding is important is there are not any generally accepted adverse health effects of exposure to DDT or its metabolite, DDE, in humans," . . .
I would also note that it says something that decades of effort to link DDT to various human health problems have found so little. I'll admit I'm skeptical of the study. Nonetheless, it is quite possible that this study is correct.


DDT REVISITED: Was I too hard on DDT? Some readers think so. Several have written in noting holes in the research linking DDT to the declines in bird populations. The general case for this position is well articulated by the Junkman.

I readily admit that much of the evidence linking DDT to eggshell thinning in raptor populations is circumstantial. In their campaign against DDT, environmental activists did not demonstrate DDT's culpability beyond a reasonable doubt. But I don't think that this is the proper standard. When evaluating the harms of a chemical substance, I believe that one should apply the standard applied in a civil tort action, and ask whether the preponderanceof the evidence supports the claim. Looking at all of the evidence together, I believe it does. Moreover, when seeking to explain longer term trends in various bird populations, I find the claim that DDT impaired the reproduction of several bird species more persuasive than alternative hypotheses.


HOW I LEARNED TO STOP WORRYING AND LOVE THE BOMB: So "love" might be the wrong term, and a "dirty bomb" is still less desirable than a dirty martini, but is there something we could do to prepare for radiation exposure from a bomb or an attack on a nuclear power plant?

     The American Council On Science and Heath says yes.

     The article begins:
"LIFE JACKETS ISSUED TO ALL AMERICANS FOR SOME REASON" was the headline of a recent article on the humor website "Everything is fine. You have nothing to worry about," the spoof continued, quoting Homeland Security Director Tom Ridge: "Still, just to be l00 percent on the safe side, I would urge all Americans to keep these life vests on at all times."

Those headlines are parody, but the ones telling us that the Nuclear Regulatory Commission, as a public health measure, is now distributing free potassium iodide pills to states with nuclear reactors is for real. Officials in Vermont, New Hampshire, and Westchester County, New York, among others, have already begun distribution of these pills to radiation-skittish citizens who would seek to protect themselves in the case of a terrorist attack (particularly a suicide attack by a small plane) on a nuclear power plant. Is the distribution of "anti-nuke" medication scientifically based and rational? Or is it in the same category as equipping all Americans, as the Onion did, with life vests, "just in case"?
I now regret never testing the supposed availability at Brown of cyanide pills, kept for each student in the event of nuclear attack. Alas, the group Students for Suicide Tablets had disbanded before my time.


E-MAILING MICHELLE AND JUAN: Their addresses are now posted on the left-hand side of the page; when I put together short Web pages for them, I'll replace them with a Web page link, as I have now for Sasha and me. When e-mailing a response to a message, please look closely at who is listed as the message author.


PROSECUTION FOR POSTING A STORY ON THE WEB: According to The Times Union (Albany),
A Shenendehowa senior faces up to a year in jail for allegedly depicting fellow students and at least one teacher engaged in sexual activities in a pornographic story posted on an Internet site, investigators and prosecutors said Wednesday.

     Vincent Fuschino . . . was charged last month with second-degree aggravated harassment, a misdemeanor, after an underage female at Shenendehowa High School filed a complaint with the State Police. She allegedly identified herself as a character in the 40-page story.

     "It was a story written on the Internet. It was explicit with sexual innuendo," Senior Investigator Curt Lohrey the State Police at Clifton Park said. "There was sufficient evidence for us to identify a complainant and to charge aggravated harassment." . . .

     Lohrey said that Fuschino was charged because the characters in the story could easily be identified as specific students based on physical descriptions, their enrollment in certain classes or participation in school activities.

     "There was enough information in it. That's why charges are involved," Lohrey said.

     If the characters weren't so recognizable, Lohrey said, "we wouldn't have much of a case."

     District Attorney James A. Murphy III said that a Court of Appeals case backs the decision to prosecute the Fuschino case due to the public descriptions violating the privacy rights of the complainant.

     "It's fairly heavy and explicit in certain descriptions," Murphy said regarding the story.

     The Web site on which the story was posted has disclaimers about the sexual nature of the material found there. Many stories deal with mind control in which characters are forced to perform sexual acts. The stories sometimes give graphic detail. . . .
     Look, what this guy did sounds really scummy, and I think the school should have every right to suspend or expel him, since under Tinker v. Des Moines Indep. School Dist. (1969) the school's disciplinary authority over its students is greater than the government's power, acting as sovereign, to control what all of us do.

     But to be sent to jail, even for a rude and embarrassing item like this one? There's no evidence that the item fell within any exception to First Amendment exception, such as the ones for libel, threats, or obscenity (see Miller v. California (1973)). And there's no "aggravated harassment" exception to the First Amendment.

     Nor should there be. "Harassment" is a mushy, ill-defined term. I've long criticized the "hostile environment harassment" theory, which I think poses serious First Amendment problems -- and this sort of "harassment" theory, though different from the hostile environment one, seems just as vague and broad. According to New York law, Penal Code sec. 240.30, "Aggravated harassment in the second degree" is defined (in relevant part) as:
A person is guilty of aggravated harassment in the second degree when, with intent to harass, annoy, threaten or alarm another person, he or she:

1. Either

(a) communicates with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm; or

(b) causes a communication to be initiated by mechanical or electronic means or otherwise with a person, anonymously or otherwise, by telephone, or by telegraph, mail or any other form of written communication, in a manner likely to cause annoyance or alarm . . . .
The theory, I suppose, is that posting this material on a Web site "causes a communication to be initiated" with annoyed or alarmed people (remember, this was a Web site posting, not a direct one-to-one e-mail), simply because the subjects of the message are likely to eventually see the material on that site -- and therefore whenever we post on the Web something that a jury will find was "intended to harass, annoy, . . . or alarm" someone, and was likely to do so, we could be prosecuted for it. Think of how much speech can be criminalized under such a broad rubric.

     I actually predicted in 1996 (Freedom of Speech in Cyberspace from the Listener's Perspective, 1996 University of Chicago Legal Forum 377, part II.C) that this sort of "harassment" law might have this effect. I am not happy to be proven right.

     Incidentally, the imprisonment of Paul Trummel for putting up a Web site containing criticism of retirement home administrators and staffers with whom he'd been feuding, together with their addresses, phone numbers, and one photograph, is also being justified on "harassment" grounds. Can it really be that "annoying" speech about people can be criminalized that easily?

Tuesday, June 11, 2002


WHAT ABOUT DDT? My posts on organic agriculture (see below) have prompted some questions about DDT. Some readers point to DDT as evidence that we are better off avoiding all pesticides, lest we repeat our DDT experience. I disagree.

DDT was widely used in the decades after World War II because it was a highly cost-effective pesticide. Indeed, DDT was so effective that its inventor won the Nobel prize. However great DDT was for controlling pests, there is little doubt that it was overused; the substance was sprayed indiscriminately, often by government agencies and often over the opposition of local landowners that did not wish to have their lands sprayed. This has led some scholars to suggest that the problem wasn't DDT, as such, but the government’s failure to respect property rights that led to DDT's overuse and the consequent environmental problems.

Human health effects from DDT exposure have never been documented. There is substantial evidence, however, that DDT threatened several bird species, including the peregrine falcon. Brown pelican, and bald eagle. On this basis DDT was banned, even though it is possible that more discrete and targeted use of DDT might not have caused the same problems. This was not the end of the DDT story, however.

While DDT has been banned in the U.S. for nearly thirty years, DDT is still used in some countries to fight malaria. In countries such as South Africa, DDT is applied inside homes to ward off malaria-bearing mosquitoes. Some environmental activist groups sought a global ban on the substance, but backed off when confronted with the evidence that a global ban would cost thousands, if not millions, of lives in the developing world. There are no cost-effective alternatives at this point, nor is there evidence that DDT use for spraying homes is causing the same environmental impacts that excessive spraying caused in the United States.

What lessons should we draw from DDT? I think there are several. First, DDT, like most chemical substances, is reasonably safe when used responsibly, and harmful when used indiscriminately. Second, doing without DDT is relatively easy in wealthy countries like the United States, as we can afford alternatives. Doing without DDT in many poorer countries, however, means that people die. Third, the story of DDT illustrates the trade-offs that are inherent in most environmental policy questions. Pesticide use (or overuse) can cause environmental harms, such as the decline of bird species due to DDT. The prohibition of pesticide use can mean the loss of habitat or, in the case of DDT, a resurgence of malaria. It is not clear to me why good environmentalists must be more concerned about the former than the latter.


ORGANICS (AGAIN): I've received several more e-mails about my critique
of organic foods
. Setting aside any aesthetic claims (e.g., organics taste better, look better, etc.) let me address some of the points of contention.

Pesticides and Cancer: There was a time when many scientists thought that human consumption of pesticides and other synthetic chemicals increased our risk of cancer. No longer. In its definitive study of the subject, the National Academy of Sciences rejected the idea that consumption of pesticides and other synthetic compounds was a significant cause of cancer. Indeed, the NAS noted that humans are exposed to far more natural carcinogens than synthetic carcinogens in our diets and that neither poses an appreciable cancer risk. (Readers can order the study here; or read a layperson-friendly discussion of natural carcinogens in common foods here.)

Environmental Effects: One reader noted that even if pesticides don't cause health problems for consumers, pesticide use still leads to the accumulation of toxic substances in the environment and can harm other species. I do not deny that pesticides can have negative environmental impacts. My claim, however, is that conventional, chemical-using agriculture is, on balance, is no more environmentally harmful than organic agriculture. Indeed, I will go father and say that for some environmental concerns, such as the preservation of endangered species and biodiversity, conventional agriculture is clearly preferable.

How can I say this? Biological diversity is threatened by many things, but by far the leading threat to biodiversity is the loss of habitat, such as that caused when tropical forests are cleared to make room for cows or plows. The clearing of lands for agriculture, particularly in developing countries, is the leading driver of habitat loss, and a switch to organic farming will only exacerbate the trend. Why? Population growth and nutritional deficiencies can only be met with greater food production. This can occur in one of two ways: clear more land for agriculture or increase production from the lands we have. Organic agriculture is simply not capable of increasing per acre yields, so reliance on organic farming means we continue to lose habitat, particularly in those parts of the world where we need it most. As I noted in my earlier post, the most recent study cited by organic food advocates found organic agriculture, on average, produces 20 percent less per-acre. Therefore, even if we assume that continued use of pesticides will harm biological diversity, this threat pales in comparison to the threat of continued habitat loss driven by stable or declining agricultural yields. In other words, if you care about endangered species, just about the worst thing to do is promote the global adoption of organic agriculture.


TAKINGS AND LAND USE, PART 2: Steven Landsburg says in Slate: "The Supreme Court concludes that most government agencies should be out of business." (Eugene already recommended this column here.) This is Landsburg's deconstruction of the Tahoe-Sierra Preservation Council v. Tahoe Regional Planning Agency (2002) opinion: Justice Stevens denied compensation to landowners harmed by a local building regulations, because, he said, "treating [all land-use regulations] as per se takings would transform government regulation into a luxury few governments could afford." But, Landsburg says:

[I]f a regulation is too expensive when governments (i.e., taxpayers) bear the costs, then that same regulation is too expensive, period. If a development moratorium costs landowners $10,000, then the cost of that moratorium is $10,000, whether or not the landowners are compensated. Without compensation, the landowners are out $10,000; with compensation, the taxpayers are out $10,000; either way, the $10,000 cost is the same.

And is $10,000 a prohibitive expense? That's like asking whether $10,000 is too much to pay for a car; the answer depends on how much you want the car, or in this case on how much you value the benefits of land-use regulation (which we haven't yet accounted for, and which might come to either more or less than $10,000). But shifting that $10,000 burden from taxpayers to landowners can't change the size of the burden, so it can't change the expense from reasonable to unreasonable.

The perverse logic of the Tahoe decision, then, says Landsburg, is that "[w]e should exempt governments from compensating landowners because that's the only way we can continue having more government than we ought to."

But note the hidden assumption. This all works out if the government is like one big Individual, and when He has to pay compensation to all affected parties, His incentives are those of Society, so he makes rational choices. Society then figures out whether to buy a car; He sees the benefits and measures those against the costs. If you don't require Him to pay, He no longer represents Society and instead tries to get too many benefits since He doesn't have to pay the costs; then we get various inefficient outcomes.

But even when government has to pay compensation to everyone, that doesn't make it a rational actor, since government is a complicated organization affected by many different people. Let's consider a couple of examples . . . .

Consider a simple model of majority voting where everyone acts self-interestedly. Does society regulate land use, with a cost of $10,000? Suppose the benefits of the land use are spread out equally over all people (better view of the lake for everyone). First, the baseline case of no compensation. Everyone in society (except a couple of innocent landowners) gets some benefit, but only a few people bear the cost. (And assume these landowners can't pay off the voters or come to some other sort of legislative compromise.) Then that's straightforward predation -- screw over the landowners to get a benefit for everyone. The result: way too much government regulation.

Now let's assume a compensation rule. Most voters have low marginal income tax rates, so if they vote to regulate, they don't suffer very much because they're making the rich pay most of the cost. The poor vote in favor, while the rich, who have high marginal rates, vote against; the poor outnumber the rich, so the regulation passes. Thus, even with compensation, we get too much government regulation (though at least it's an improvement over the no-compensation case, which has way too much government regulation).

But now let's change the assumptions -- suppose it's not a simple self-interested majority vote, but instead the rich have disproportionate influence on the policymaking process, so they prevent even efficient government regulation from coming to a vote, and only allow through the super-beneficial government regulation where, even with their high marginal tax rates, they still come out ahead. Then we might get too little government regulation with compensation -- that's "too little" purely from an efficiency point of view; you could get a regulation worth $20,000 to all people together, but Society still isn't willing to shell out $10,000 to pay for it.

(You can get this same result in other ways too, even without special control over the agenda by the rich. Suppose, for instance, the benefits go to the poorest 40% while the costs go according to marginal tax rates -- then at most 40% vote in favor, while 60% vote against because they get no benefit. No matter how huge the benefits are, the regulation loses, unless you can get some legislative compromise or logrolling. This connects with the debate over whether government employees should get immunity from suit for injuries they cause while discharging their official duties -- would we still pay for police protection of poor, crime-ridden areas if we had to pay, through taxes, for all the injuries caused by the police?)

So now the comparison between compensation and no compensation is unclear. It's not just right vs. way too much under a perfectly motivated government, but it could be too much vs. way too much under majority rule with variable tax rates, or too little vs. way too much under majority rule where the rich have some control of the agenda.

Now assume that landowners themselves have some political power, so there are some safeguards against overregulation of land use. Then, it's not even clear that a no-compensation rule leads to way too much regulation -- maybe just slightly too much? Anyway, the point is just that with all these extra assumptions, it's not clear whether a compensation rule or a no-compensation rule is more efficient.

Suppose, in the extreme case, the rich non-landowners have such huge political power that you can hardly pass any regulation. Then you get way too little regulation under a compensation rule, and maybe letting government impose costs on some innocent landowners is closer to getting it just right. Of course, the government doesn't see it as a step toward efficiency; they're just glad they can prey on innocent landowners. But this would be an example where government officials are pushed, as though by an Invisible Hand, to pursue the common good even though that isn't part of their goal . . . .

Mind you, I favor compensation, in a pretty strong way. But I do so not primarily because of efficiency concerns, which depend on all sorts of assumptions you make about democratic decisionmaking. First, I take a stricter view of which regulations are morally acceptable -- even something that's unquestionably efficient may not pass the test for me. And second, I favor compensation just because it's the fair thing to do for the landowners, quite apart from its effect on government behavior.

UPDATE: Reader Stan Brown faults me for assuming that voters are all self-interested and not moral. Please don't blame me for that -- I'm only using those assumptions to point out in a simple way that certain results may occur; that doesn't mean they necessarily will. If you want to make a prediction based on people's moral votes, everything becomes way more complicated, since you also have to specify which direction people's morality pushes them in -- are they moral libertarians or moral environmentalists?

Meanwhile, reader David Throop argues that the transaction costs of government compensation may be quite high -- if his city of Friendswood, Texas, had to compensate every landowner for a flood-control regulation, the costs would get out of control because of all the lawyers, judges, and jurors who would have to resolve the value of the taking for each plot of land. My response: this identifies high costs of one prevailing method of compensation, but doesn't rule out the state's awarding some average compensation to all landowners according to some much simpler administrative program. I don't know how this would fare exactly, but my suspicion would be that most cases would lose in court, since the government had an acceptable compensation system, as long as landowners could still argue in individual cases (which would be few if the administrative program is well designed) that their damage was much greater than they had been compensated for.


GOTTA LOVE THIS GUY: Even if you disagree with his take on this issue, you've got to love how Justice Scalia phrases things, for instance, in this essay on capital punishment written for First Things:

If I subscribed to the proposition that I am authorized (indeed, I suppose compelled) to intuit and impose our "maturing" society's "evolving standards of decency," this essay would be a preview of my next vote in a death penalty case. As it is, however, the Constitution that I interpret and apply is not living but dead -- or, as I prefer to put it, enduring.

One thing to disagree with -- Scalia particularly condemns the notion that the government and individuals are to be judged by the same moral standards. That, he says, is a fallacy that democracy has pushed us into, which leads to all sorts of pernicious consequences, like civil disobedience!; in fact, he says, it's perfect all right to say that government can morally kill when individuals can't. Aside from that, the article is a fascinating discussion of why Catholics should disagree with the encyclical Evangelium Vitae (which isn't binding on Catholics) and not consider the death penalty immoral.

UPDATE: Some readers, including Ken Summers, read the above as implying that I'm either against the death penalty (because neither the government nor people should kill murderers) or in favor of legalized vigilanteism (because both the government and people should be able to kill murderers). Actually, no -- I only believe that the government and individuals are to be judged by the same moral standards. If government or people kill a murderer, I don't think any moral harm has been done. However, it may still be a good idea to ban vigilanteism (because people on their own will make more mistakes and occasionally kill innocent people or take out excessive revenge) but still allow a government-imposed death penalty. Of course, it could be that the probability of error or abuse is too great even to allow a government-imposed death penalty; that's a topic for an entirely different post. I'm only arguing that the moral standards to be applied should be the same, but because the government and people act in different contexts, that doesn't mean the ultimate policy has to be the same.


IAIN MURRAY ON DIRTY BOMBS: Iain Murray, who knows much more about science than I do, has a very interesting article on dirty bombs in today.


WAR . . .: Another e-mail today reminds me that there is still a lot of sentiment that we can't really be at war, legally speaking, because there's been no declaration of war. As I mentioned last Wednesday, though, it seems to me that is a fallacy.

     International law, domestic law, and common linguistic usage have all long recognized that a nation can be at war without a declaration of war. The law and usage both focus on what is in fact happening, and not just on whether certain magic words have been used. The U.S. was at war during the Civil War, during the Korean War, and during the Vietnam War, though to my knowledge there were no declarations of war then. There is simply no legal or linguistic rule that says the contrary.

     I've heard lots of good arguments as to why it would have been better had we officially declared war -- that may in fact be so. But even without this declaration, we were certainly at war after 9/11, and I'd say that we're at war now, too, though in a calm phase of the war. This isn't hyperbole, or metaphor, but fact, and both law and usage recognize this fact.

. . . WITHOUT END: At the same time, we should recognize that, unlike with other wars, it may be very hard to tell when it's over. In World War II, when Germany and Japan surrendered in 1945, we knew that the war was over, and that we could return to a basically peace-time footing (of course, until the next war). But now, when will we know that al-Qaeda is defeated, much less that all the other terrorist groups that may want to attack us are defeated? Even if 5 years pass without any terrorist attacks, how could we know that the threat of dirty bomb / nuclear bomb / plague weapon / chemical weapon threat is over, or even substantially reduced in magnitude?

     Obviously, this can't stop us from doing what we need to do to defend ourselves. But we can't take comfort from claims that various measures are only temporary, war-time measures that will be lifted when the war is over. This war may never be over, in any traditional sense -- or at least it may not be over until the world has gotten to be a much safer and America-friendly place than it is now.


RULES OF THUMB: Prof. Robert Lipkin wrote the following on a lawprofs' discussion list (and kindly gave me permission to quote it):
It is probably an axiom of prudence that when faced with imminent evil or destruction, preventing it, if possible, is a priority, despite adverse future consequences.  But it is probably an empirical truth that the more readily we appeal to this axiom, the more likely we are to use it when upon reflection no reason exists for using it. This empirical truth (if it is true) suggests a second prudential axiom (and probably a moral imperative as well), namely, appeal to the first axiom only as a last resort.
     I doubt that I'd always agree with Prof. Lipkin on how this is to be applied, and he and I both agree that this rule of thumb is necessarily quite vague -- but I think there's a lot of truth to it.


MIXED NEWS ON TOBACCO: Big verdict (with a 97-to-1 punitive-to-compensatory ratio) upheld in Oregon; but on the plus side, a smoker has lost in Florida. On a related note, see this interesting article from the Chronicle of Higher Education about Kip Viscusi, Harvard law professor and somewhat of a personal hero of mine (I cited him in a Wall Street Journal op-ed some years ago). To give you a hint of what the Chronicle article's about -- it's subtitled: "Harvard professor says smokers know exactly what they're doing." Also, here's a piece by Kip himself, critical of the tobacco litigation (on the grounds that governments don't lose any money because of smoking), based on his book, Smoke-Filled Rooms.

UPDATE: Reader Joel Bruhn points out that people also understand the risks of cocaine; some argue that therefore both drugs should be legal, while others argue that the risks are too great and they should both be banned; he asks where I stand. I'll assume it's true that people understand the risks of cocaine (I actually don't know -- does anyone have a link to info on that?). If so, there's still one more thing I would consider relevant -- whether the drug has a very high probability of making you violent or otherwise prone to violate others' rights. The ideal would be to make the underlying bad behavior illegal -- not the drug itself that supposedly "causes" the behavior -- but I am willing to at least entertain an argument that if the probability is high and the harm is great and it's somehow infeasible to control the harm through normal channels, you might be able to justify violating the rights of responsible drug users and ban the drug.

Again, I have no idea how any of this applies to cocaine; it's just what I would need to know for any given drug. If people understand the risks of cocaine and also understand the risks of tobacco, and if cocaine doesn't make you particularly violent, then yes, my presumption (subject to some other minor concerns) is that they should both be legal for adults.


MILITARY DETAINEES AND CITIZENSHIP: An anonymous but extremely knowledgeable correspondent points to a case that I read a few days ago, but neglected to mention in my post:
On the points made about the detention of the dirty bomber, I think this case is instructive: In re Territo, 156 F 2d 142 (9th Cir 1946), [which holds] that a citizen who is an enemy belligerent [there, a prisoner of war] can be held without trial for the duration of the war. The only question is whether the Executive's determination of belligerent status is subject to habeas [corpus] review. I believe that it is, and should be, and I predict that the dirty bomber will seek habeas, and that the Executive will present its evidence, and that the federal courts will determine that he is in fact an enemy belligerent subject to detention without trial.


"THE CONSTITUTIONAL VALIDITY OF MILITARY COMMISSIONS": For those who are interested in the constitutional and statuory justifications for the President's military tribunal order, check out "The Constitutional Validity of Military Commissions,", written by law professors Curtis Bradley and Jack Goldsmith. I am not a great expert on the subject, but they are; and I've read the piece and found it to be quite persuasive.

     When you follow the link, click on "Click Here to Download Document"; or, if you want to first read the abstract, just go to the start of the Web page.


STRIPPING CITIZENSHIP: Reader Dean de Freitas asks:
If it could be determined, as part of the legal process, that Jose Padilla was in fact an enemy combatant, could he be stripped of his citizenship and then be subject to a military tribunal without changing the current rules? Perhaps this would offer an additional level of protection to prevent abuse of the tribunal system.
     As it happens, I dealt with the legal rules related to stripping people of citizenship in my Dec. 17, 2001 Slate Explainer focused on John Walker Lindh. The rules should be the same here, though there might be some differences in application.


HIGHLY TENTATIVE THOUGHTS ABOUT THE DIRTY BOMBER AND MILITARY JURISDICTION: Here are some highly tentative thoughts about the dirty bomber and military jurisdiction -- I hope to learn more about this in days to come, and may well change my mind on some or all of these:
  1. Under Ex parte Quirin (1942), enemy saboteurs and spies can be tried by military tribunals, whether or not they are citizens, for violation of the laws of war. Quirin makes a persuasive case that this has long been seen as an exception to various Bill of Rights protections, and that the Framers would not have understood the Bill of Rights as applying to such military crimes.

  2. At the same time, it's easy to see the risk of military tribunals, which may operate in secret and dispense with all sorts of other protections, trying people for "sabotage" and "espionage." Such tribunals would be potentially particularly powerful tools for suppressing legitimate domestic dissent. World history is full of military law and military justifications being used for this purpose; we cannot casually ignore this risk. The same is true in some measure of military detentions, which can be open-ended in a way that civilian ones can't: POWs, for instance, can generally be detained without trial until the end of the war, and I assume that alleged unlawful combatants like saboteurs and spies can be as well (and for longer if they were tried and convicted of violations of the laws of war). (Thanks to Aeon Skoble for helping me clarify the last sentence.)

  3. This is why it's good that the President's executive order limited military tribunals to noncitizens: Not because noncitizens somehow don't deserve the same criminal justice protections that citizens do (the Court has since at least the late 1800s held that the Bill of Rights applies to noncitizens, and while they can be kicked out of the country, while they're in our hands we should treat them fairly), but because the limitation diminishes the chance that military tribunals would be used for suppressing domestic dissent. Most domestic dissent movements will involve at least many citizens, and likely a majority; tribunals, as defined by the executive order, will thus not be very useful against such movements.

  4. While military tribunals may pose unusually high dangers -- in the long-term, not (in my view) now -- of suppressing domestic dissent, military detention may pose such dangers, too, even if it's followed by eventual civilian trial.

  5. On the other hand, we can't let even a real risk of the slippery slope down to bad results in the future cripple our ability to protect ourselves against dirty bombs, nuclear bombs, smallpox plagues, and all the other horrors that the enemy may unleash on us. And the sad fact is that our criminal justice system may not be an effective way to deal with saboteurs who are agents of an enemy force such as al-Qaeda. The evidence against these people may often need to be kept secret, and though there are some procedures for using secret evidence in civilian courts, they are understandably quite limited. Also, there's a very real risk that the jurors and judges in these cases will be subject to retaliation; unless I'm mistaken, the judge in one recent terrorism trial is still under 24-hour-a-day protection, because of threats to his life. Military trial, or at least military detention, may often be a necessary tool in fighting the war.

  6. What's more, the risk of the slippery slope is serious, but American history cuts against it, at least as to military tribunals and military detention. As someone pointed out to me, less than ten years after Ex parte Quirin, we were not just in a Cold War but in a hot one (the Korean War), and had serious concerns about domestic spies and saboteurs who were working for the enemy. But even though there were some excesses (relatively mild by world standards) in our attempt to root out these spies and saboteurs, there was no resort to military justice. Even during the McCarthy Era, American traditions were robust enough to resist any slippage to greater use of military justice against civilians.

  7. A possibly relevant, though possibility not relevant, fact: While the saboteurs in Quirin were tried by military courts, those who allegedly helped them -- who were not in any meaningful sense enemy soldiers, and were perhaps not in on the plan in the first place, but who allegedly ended up knowingly assisting the saboteurs -- were tried by civilian courts; see Haupt v. United States and Cramer v. United States. (Cramer's treason conviction was in fact reversed.)

    Might this point to a sensible distinction between people accused of being actual enemy soldiers, and those who were supposedly only helping them, incidentally to their daily lives? At first, the distinction may seem silly -- we usually treat aiders and abettors as pretty much equally culpable as the actual actors -- but I wonder whether there might be some merit in it: Accusations that someone conspired with or aided an enemy soldier are generally much easier to make, and thus more likely to lead to slippery slope effects in troubled times, than accusations that someone was in fact a member of al-Qaeda or some such group. I am particularly tentative about this thought, but the historical point about the distinction between the Quirin defendants and the Haupt and Cramer defendants struck me as worth mentioning, and possibly worth building on.

  8. One important question to which I haven't seen the answer: Will there be some civilian court screening of whether there's indeed very strong evidence to think that a detainee really is an enemy combatant, and thus properly subject to military detention and perhaps (if he's a noncitizen, or if he's a citizen and the rules are changed) military trial? It's one thing to say "enemy soldiers must be subject to military law" -- but quite another to say "people, including U.S. citizens, who are believed by the military to be enemy soldiers must be subject to military law," especially when we leave the easy case of soldiers captured on the field of battle.
In any case, just some loosely connected and highly tentative thoughts. I much look forward, as I said, to learning more about the subject.


LETTER FROM ZIMBABWE: Philip Gourevitch's essay on Zimbabwe and President Robert Mugabe in The New Yorker is long, but so disturbing that it's hard to put down. Note (though this is not the main point of the article, and far from the worst thing about what's going on in Zimbabwe) the environmental degradation and disincentives to responsible stewardship that go along with violating property rights.

On a lighter note, this is how Disney comments on property rights, including in Africa; and this is why all sorts of non-Western cultures can benefit from property rights.


PHILOSOPHY: WHO NEEDS IT? Danny Postel writes in "The Life and the Mind," Chronicle of Higher Education, June 7, 2002, about the new trend of biographies of philosophers, and asks, "Do they tell us anything important about philosophy?"

The pro-biographers point out that it's useful to know the context of a philosopher's life and work, so you know what he's reacting against and who his audience was. Which is fair enough -- who can object to a full and rich account of intellectual history? Philosophers today are "taking situatedness much more seriously than they used to," says philosophy professor Michael Krausz of Bryn Mawr.

But this doesn't explain how it's useful to explain Foucault's "preoccupation with discipline, punishment, deviance, and surveillance" by "his penchant for sadomasochistic homoeroticism," or, similarly, how we benefit from seeing the seeds of Nietzsche's philosophy in his repressed homosexuality.

At best, this spices up an ideas-oriented intellectual history and gets laymen (and even philosophers) more likely to read and retain the ideas; at worst, it lets us trivialize and dismiss the actual ideas by psychologizing them away. Heidegger said biography doesn't tell us anything useful -- he said of Aristotle: "He was born. He lived. He died."

Of course, Heidegger has embarrassing Nazi bits in his own past, but his defenders say those biographical details don't reflect on his philosophy either. Says philosophy professor Thomas Nagel: The work of philosophers "is always something finer than they are," and can be "extracted from a flawed and messy self so that it can float free, detached from the imperfect life that produced it."

But this article also connects with a broader question I've had for a while -- Why do we even read old philosophers?

In math and physics, we rightly don't read the old masters, since the whole discipline has built on their contributions and surpassed them -- if you're studying in those fields, better get a modern textbook instead.

In economics, there are still good ideas in Smith & Co., but in economics departments, we don't read Smith, Ricardo, and Mill, and we don't even read moderns like Marshall and Keynes (we don't even teach Keynes anymore), and that's probably a good idea. If I were teaching economics today, I would pretty much rely on materials written since 1970, aside from a handful of foundational documents, most of which would only be useful to give the student an interesting (but not necessary) historical context. (Excerpts from the classics like Smith and Ricardo, and some more modern types like Hayek, though I find him mostly interesting for his rhetorical value.)

In literature, on the other hand, we do read the ancients as well as the moderns, because old works of literature don't become obsolete when new ones are published.

Philosophy seems like something in between. Some arguments are still just as valid as they ever were; others, not so much -- and even the valid arguments have surely been expressed more clearly? more relevantly? more correctly? in a way that responds to more recent critiques? by more modern authors. My political science friends tell me that you shouldn't read any writer on political science who published before World War II, except for Thucidydes, who they tell me remains a very good international relations theorist.

Maybe my philosophy friends (Quare?) might tell me what we gain today from reading Plato, Aristotle, Voltaire, or Nietzsche. Or is philosophy these days just a fancy term for intellectual history?

UPDATE: This post has generated more feedback than most things I've written. On blogoSFERICS, Kevin McGehee has posted his musings. Hanah on Quare has also taken up my challenge, and basically agrees that some fields (like epistemology) may not be worth reading in the ancients (who didn't know neuroscience), while others (she cites political philosophy) still are, because no one has yet come up with a satisfactory answer to these questions. (She also has a good discussion of how philosophy's interest in the ancients is different from intellectual history's.)

I'll readily grant that some issues like whether there is a God or the foundations of morality are just as well discussed by Aristotle as by a modern; but as I mentioned above, I'm inclined to believe my political science friends that ancient political philosophy may be worth skipping (though I'm not sure of this). It seems like political scientists today have better methods, more testable hypotheses, more sophisticated theories, and more data. Many of the "older" guys are either overly general (because of their historical context and the audience they were writing to), naive, or possibly sensible but untested. In other words, it's not that I think moderns have better answers, but I think they ask better questions.

So, to the extent Aristotle is right on whether democracy is good, maybe I should hear it from a modern political scientist and skip the Aristotle? (In the same way that Adam Smith was right for his time and had a good idea that has influenced all of economics, but otherwise is basically obsolete, except rhetorically.)

Monday, June 10, 2002


SPEAKING OF REASON: I've just been reading a bunch of Reason articles, and have reminded myself that my former colleagues Ron Bailey and Jacob Sullum are two of the best writers on science, environment, and health issues around. Go read them! (Read them either on their personal Reason pages listed above, or on the Reason page itself -- there doesn't seem to be total overlap.) Also, incidentally, read Mike Lynch's "Road Show," about why development aid tends to not work.


THE INTELLIGENT BAYESIAN AND AFFIRMATIVE ACTION: Read Richard Epstein's clever argument in Reason, defending government affirmative action programs in his his review of Glenn Loury's recent book, The Anatomy of Racial Inequality. In brief: Epstein defends private affirmative action programs, which (contra Loury) liberal individualism makes possible, points out that such programs were pioneered by private businesses and universities, and argues that government policy under the 1964 Civil Rights Act (before the Supreme Court's reinterpretation of the Act to allow affirmative action) slowed such programs down.

Because private corporations and universities have found affirmative action useful -- not as "the product of a corrupt or factional political system," but as "an outgrowth of a multidimensional deliberative process" -- Epstein argues that government-run businesses and universities, which compete against such private entities, "should be allowed the same latitude" (contra Prop. 209 and the Supreme Court's war on government preference programs).

It's an interesting argument -- there's good stuff in it, though I don't think I buy the bottom line. But I think the most interesting part of the article is the summary of Loury's argument in favor of affirmative action -- a beautiful economic argument about the perpetuation of stereotypes that relies on Bayesian updating:

One of Loury's instructive examples of "self-confirming racial stereotypes" involves a group of employers who start out with the belief that blacks are less likely to work hard than their white peers. These employers are quicker to fire blacks, because they believe they need less evidence to confirm their original low estimation. Black workers in turn understand that they are under harsh scrutiny and thus invest less energy in doing a job they think they are unlikely to keep. The upshot, according to Loury, is that they exhibit a higher rate of failure, which appears to confirm the false initial assumption about their lesser capacities.

A similar feedback loop operates at night on the streets of any major city. Let cab drivers think that young black males are more likely to commit crimes than white ones, and these drivers (of both races) will gravitate to white customers. Honest black males therefore will exit this market, so that the black fares that remain will be in fact more dangerous than the white fares, even when the two overall populations are equally law-abiding.

In these and similar cases, Loury's critical insight is that mistakes in perception lead to mistakes in judgment that reinforce the initial social stigma. Because each actor occupies a small competitive niche, it does not pay him to correct his errors. He can do little to alter the larger, entrenched patterns of social behavior, and he has no incentive to do so, given that his filtered observations are consistent with his assumptions.

For a more detailed discussion, see Stephen Coate & Glenn Loury, "Will Affirmative-Action Policies Eliminate Negative Stereotypes?", American Economic Review (1993). I'm not passing any judgment on whether this model describes the world at large; Epstein argues in his book review that Loury underestimates the true gains that blacks have made in recent years and reasons that such gains wouldn't have been possible if the feedback loops reinforcing negative stereotypes were as strong as Loury says they are. Just, this is an interesting economic argument I wanted to highlight.


GOOD THINGS AT HARVARD: First, Harvard adopts a policy encompassing (among other things) date rape that requires actual corroborating evidence before the administrative board investigates. Now, Zayed Yasin has finally delivered his commencement speech, "Of Faith and Citizenship," originally titled "American Jihad," and despite widespread complaints that this was going to be a big apology for terrorism, he apparently said nothing particularly offensive. (I can't find the speech online, so I can't say for sure. But it looks like maybe people should hold off before flying off the handle at the mention of the word "Jihad.")


DOES CAPITAL PUNISHMENT SAVE LIVES? The otherwise excellent Jeff Jacoby of the Boston Globe errs in his recent column, Capital Punishment Saves Lives (June 6). "Death penalty abolitionists don't usually mention it," he says, "but in promoting a moratorium on executions, they are urging us down a road we have taken before."

Jacoby discusses the period from 1965 to 1980, when, because of legal challenges, "there was practically no death penalty in the United States." ("[T]here was literally no death penalty" between 1967 and 1976 -- "a national moratorium.") "Did a moratorium on executions save innocent lives?" he asks? His answer: "Between 1965 and 1980, annual murders in the United States skyrocketed, rising from 9960 to 23,040." The murder rate went from 5.1 to 10.2 per 100,000.

"Was it just a fluke that the steepest increase in murder in U.S. history coincided with the years when the death penalty was not available to punish it? Perhaps. Or perhaps murder becomes more attractive when potential killers know that prison is the worst outcome they can face." From 1995 to 2000, Jacoby continues, executions have averaged 71 per year, and the murder rate has dropped from 10.2 in 1980 to 5.7 in 1999; the murder rate, says Jacoby, fell everywhere but fell more in states that use capital punishment.

Is this all convincing? "Obviously, murder and the rate at which it occurs are affected by more than just the presence or absence of the death penalty. But even after taking that caveat into account, it seems irrefutably clear that when murderers are executed, innocent lives are saved." These sentences are the most crucial ones in the article; anyone reading these sorts of statistics should wonder what else affects murder rates and wish for some sorts of statistical controls.

Without such controls -- the sort of analysis we've seen so far is nothing more than eyeballing, looking at rising and falling curves on a graph -- nothing is irrefutably clear. Crime rates rose in the '60s and '70s for all sorts of reasons, including social policy and demographic change, and fell in the '90s for all sorts of reasons, including social policy and demographic change. (Apparently, one of the big drivers of crime rates, understandably enough, is just the number of "crime-aged" youths in the population. Meanwhile, John Donahue and Steve Levitt, controversially, argue that abortion has played a role, and John Lott and John Whitley disagree, see this page for a non-objective summary of that debate.)

I find it intuitively plausible that the death penalty should have some deterrent effect, but there are good arguments the other way too. (Does it decrease the value placed on human life to have the state executing people? Does it make some madmen kill people to get the national exposure that comes from being on Death Row? Is there more of a deterrent effect (as well as cheaper) if you put people in prison for life, since (as Beccaria famously argued long ago) people are more scared of a lifetime of slavery than of a single terrifying moment?) There's no way I'm going to be convinced without some good statistical arguments -- and to the extent anyone's convinced by the eyeballing, I'm not sure that that's a good thing.

The shame of it all is that there is statistical evidence out there. In The Deterrent Effect of Capital Punishment: A Question of Life and Death (1973), Isaac Ehrlich estimates that each execution deters 7 or 8 murders. Using a more recent data set, Dezhbakhsh, Rubin & Shepherd estimate in Does Capital Punishment Have a Deterrent Effect? New Evidence from Post-Moratorium Panel Data (2001) that each execution results in 18 fewer murders. This website seems to bring together a lot of information on the pro-capital punishment side; this website has stuff on the anti-capital punishment side, including a brief discussion of studies claiming to show no deterrent effect; and this one discusses studies on both sides.

I don't know who's right in all this, though as I said above, the economist in me is sympathetic to the view that the death penalty does deter. (How you put this together with the costs of possibly executing innocent people is another story altogether.) But when I read an article about this, I want to see some discussion of this data, not some irrelevant (or statistically ambiguous) data. (Much less do I want to see data about how many Americans support the death penalty being used as an argument in favor of retaining the death penalty.) At least, if we're going to use the sexier, more hit-you-between-the-eyes statistical "evidence," let's at least briefly make a bow toward the more valid stuff?


WAS THE FBI STYMIED BY ANTI-RACIAL-PROFILING SENTIMENT? As I've mentioned before, I think there are powerful arguments both for and against racial profiling, even in the antiterrorism context; I am genuinely unsure of the right result. But Stuart Taylor -- an extremely thoughtful, moderate, and respected writer for the well-regarded National Journal -- makes a strong case that the FBI's failures before 9/11 were partly (and of course only partly) caused by the anti-racial-profiling sentiment that was then so politically powerful.

     This is a very important article, which is likely to get a good deal of attention. Much worth reading.


RECOMMENDATIONS FOR HIT COUNTERS, preferably free but possibly a modestly-priced for-pay one? I've had glitches both with, and the current one,, and I'm looking for something more robust. I'd like something that can give me statistics for the last several days and for the last 24 hours; I'd also prefer something that can show me both the most recent few visits, including referrer pages, and (more rare, in my limited searches) the total referrer counts over the last several days.

     I might eventually move off blogspot and have the page be hosted by the UCLA Law Library, if they'll be so kind, and this might solve my problem (or create new ones!). But in the meantime, I'd like a slightly more robust counter of my own.

     If anyone has any high recommendations, please e-mail me, at volokh at Thanks!


EPISODE IV: A NEW BLOG: Check out my friend Garrett Moritz's new blog. Not a political blog, but astute cultural commentary, including a discussion of Scott McCloud's new book, Understanding Comics; on being the guy in the fez; the addictiveness of legal research; and the Scoville scale for pepper heat.

Speaking of being the guy in the fez, I've done that at least three times. When I moved to Washington, D.C., after graduating from UCLA and started working for CEI, I started consistently going by "Sasha" instead of "Alexander" (except when I publish). When I was in a Biogeography class at UCLA in Fall 1992, I spent ten weeks speaking in a Russian accent. More recently, shortly before I moved to Boston to start graduate school, I grew a large beard (which I shaved after a few months).

You may also want to check out Garrett's actual web site, gTexts, where Garrett has short articles on Gogol (NOTE: Gogol's short story "The Nose" is perhaps the greatest piece of short prose ever written! Read it now!), Larry King Interviews Darth Maul, and Britney Spears Meets Harry Potter.

UPDATE: Oops, reader Ned Batchelder tells me Understanding Comics isn't new, but was published in 1994. Garrett doesn't make that claim; I guess I just made that "fact" up because I saw the book being reviewed.


SIT VIS TECUM. May the Force be with you.


RESTRAINING ORDERS AGAINST BIG HAIRY SPIDERS: The Washington Post reports on Harvard Law professor Steven Wise, who argues that we should extend basic rights to the animal kingdom. Based on animal behavior research, Wise argues for granting some rights to the following nine species: chimpanzees, gorillas, orangutans, bonobos, Atlantic bottlenose dolphins, African gray parrots, African elephants, dogs, and honeybees. These species "meet the standards of consciousness, some sense of self-awareness and ability to act intentionally" (and are listed in descending order of having these abilities). Yes, that's right, honeybees are on Wise's lowest rung of animals deserving rights -- "honeybees 'have the second most complex natural language after human beings.'"

Unfortunately, opponents of animal rights are often not terribly articulate on why animals don't have rights. Judge Richard Posner and Peter Singer had a debate on the subject last summer in Slate, and I found that Singer, the pro-animal rights guy, generally had the better of the argument. Here's the strongest bit (my boldface):

People often say, without much thought, that all human beings are infinitely more valuable than any animals of any other species. This view owes more to our own selfish interests and to ancient religious teachings that reflect these interests than to reason or impartial moral reflection. What ethically significant feature can there be that all human beings but no nonhuman animals possess? We like to distinguish ourselves from animals by saying that only humans are rational, can use language, are self-aware, or are autonomous. But these abilities, significant as they are, do not enable us to draw the requisite line between all humans and nonhuman animals.

Posner rests his speciesism on mere "moral intuition deeper than any reason that could be given for it and impervious to any reason that you or anyone could give against it." (Note the similarity to the yuck factor used to justify banning cloning and other biotech/biomedical innovations.) This is terribly weak, and Singer makes short work of it: "Insofar as we are thinking, ethically reflective beings, it is the instinctive reactions, not the philosophy, that have to go."

Posner also believes that "gratuitous cruelty to and neglect of animals is wrong," and, at least in theory, favors alleviating animal pain in ways that don't substantially reduce our own standard of living. Posner bills this as just the outcome of a utilitarian calculation, since he doesn't like to see animals suffer (though he doesn't want to force this on others). But is this mere sentimentalism? Or is it informed by some hidden moral theory which, if we were honest about it, would require joining Singer? Posner doesn't say, but just leaves it as a bare assertion.

What Posner doesn't do is explain where rights actually come from -- what's the ethically significant feature, in Singer's words. Honeybees may have a complex natural language, but are consciousness, some sense of self-awareness and ability to act intentionally morally relevant?

My own view comes close to what philosopher Tibor Machan says in the Washington Post article:

[T]he criterion for rights is morality. "Such rights would only arise if animals developed into moral agents, which they haven’t," [Machan] says. "Notice no one is expecting animals to be kind, compassionate, considerate of their own victims, stop being carnivorous if they are, and so forth. That's because the only moral animals are human beings."

What would it take for me to recognize rights in animals? I don't really know -- I prefer to adopt a common-law-type, "I'll know it when I see it" approach. But I think it should be more than merely respecting rights in others -- various social animals do have rule-based orders, but not hitting your fellow shouldn't be enough if it's merely out of fear. I think it would have something to do with being able to intellectually understand the concept of "rights" and know that you should respect your fellow's rights not because you'll get punished but because it's "wrong" to do so. With that in mind, take a look at the following, from the Post article, about a 300-pound gorilla named Koko, who "knows more than 1000 signs" and "uses more than 500 regularly and understands several thousand English words":

Wise reports this conversation from the day after Koko bit a caretaker, and her trainer asked what she had done.

"Wrong wrong," Koko signed with her large dark fingers.

"What wrong?" her trainer signed back.

"Bite," signed Koko. "Sorry bite scratch."

"Why bite?"

"Because mad," signed Koko.

"Why mad?"

Koko signed, "Don't know."

Now this isn't exactly a rights philosophy. But enough of this stuff, with a lot more research into the cognitive processes of gorillas, and who knows? Maybe even I might be convinced.

UPDATE: What ethically significant feature can there be that all human beings but no nonhuman animals possess? Reader Duncan Frissell suggests, "How about a soul?" All I can say is, I'm agnostic on that point. Reader Barry Molefsky would like to have a neutral observer tell whether these animals are really speaking using sign language or whether this is just a Clever Hans phenomenon. I agree. Max Power mentions that there is skepticism over whether Koko really knows what she's talking about; apparently, Chomsky believes language depends on neural stuff that's unique to humans. Captain Spaulding also weighs in. But remember Amy, the talking gorilla (thanks to sign language, motion sensing gloves, and a voice simulating computer) from the movie Congo (Tim Curry!)? That was cool!

MORE UPDATES: Vegard Valberg has a good post against Steven Wise's view; you should read it, though he disagrees with me and Tibor on the requirement of morality for rights; instead, he requires, to recognize rights, that the animal "be rational AND able to use language AND self-aware AND autonomous AND capable of abstract thought AND capable of voluntarily overriding their instincts. Show me a gorilla or a chimpanzee that will voluntarily, and without training, make a fire for instance, or fashion a spear for fishing."

Meanwhile, reader Henry Cohen argues that morality can't be the basis for rights, because "mentally incompetent humans (infants, the criminally insane, mentally retarded, etc.) have rights. To make morality the criterion for rights only for animals is blatant speciesism." Yup, the morality argument would deny rights to some humans; I'm not sure about infants. I haven't heard a good argument why all humans have rights; would someone like to suggest one? (Note -- even if not all humans have rights, maybe all humans still deserve protection. For instance, we may want to prevent the killing of the mentally incompetent because some killers will make mistakes and kill the mentally competent; or someone may kill someone who's in a coma that's thought to be permanent, when in fact it wasn't. So don't assume that "no rights" means "no morally justified legally protection.")


PARANOIA OR REALITY?: More about the French. Le Monde published a five-part series on "the liberation of racist discourse in France since the first round of the presidential election." I read the first part (May 28), by Philippe Broussard: "These Young People Who Reject the Foreigner." This article is interesting mostly for its subtext -- a tone that both fairly quotes and unfairly dismisses the "anti-immigrant" sentiment of the young.

It's the other youth of France. The one which didn't demonstrate against the National Front [Le Pen's party - SV]. A diverse youth, in its own way, Parisian and provincial, urban and rural. Teenagers, students, employees, sons and daughters of civil servants, railroad employees or factory workers, all convinced that they're right, as against the "moralists." Racist? Most of them reject the label. The term annoys them; they believe it unjust and caricaturing, like all the insults borrowed from History: "facists!", "nazis!" . . .

Racism, to their eyes, comes from the other side, from the shameful side of the "anti-French." No matter: for them, the relation to "the other" -- "the foreigner," "the Arab," "the immigrant" -- is at the center of all discussions and of many obsessions; they like to argue, justify themselves, but with trusted interlocutors, open to debate, because "these things" are still "a little taboo." "A little" only . . . .

Among family members, among friends, or before journalists (under cover of anonymity, first names changed), the barriers come down, the rejection becomes more conventional. The Le Pen effect? Not only. The phenomenon runs deep; it mocks political barriers and reaches all circles. "People talk about it more, it's true, but in restricted company, and certainly not in class, for fear of retaliation," notes Josette, high school student from Arras (Pas-de-Calais), FN activist since 1999. "By talking, one ends up realizing that others think like us, even if they don't support Le Pen," continues her friend Lucie, age 17. A statement confirmed by Stephane, fifth-year law student from the Lille region: "There's a dynamic of freeing up of speech, especially in the lower classes."

The article interviews several young people, some of them raised left-wing, who have been turned off by anti-French attitudes among young North African immigrants and the impunity of North African gangs. At the same time, the author describes Arabs as "targets of all reproaches and of the most tenacious prejudices," all the while quoting young people like Antoine, a 24-year-old Parisian who works in a telecommunications company:

The problem is the Mob, as they call themselves . . . . I don't consider myself a racist. The real xenophobe is the guy who, in a restaurant, can't stand being served by a North African or a Black. That's not me! I don't have anything against the good guy who comes here to work and integrate himself. I'm not saying that we have to send away three million immigrants. Having different cultures is a stroke of luck for a country. But the Mob is different, they don't respect anything. In the first round, I voted for Le Pen, to send a message. In the second round, Chirac, because the FN doesn't have good economic policies . . . .

The author notes uncomfortably: "The argument of 'anti-French racism,' long reserved to FN ideologues, is back in all conversations, supported by examples."

Finally, at the end, the 64,000-euro question: "Paranoia or reality?" You'd think the answer would have something to do with how we feel about all this.

"You've got to live in the suburbs to understand it," assures Vincent, computer company employee. He has always lived two steps from Paris, in the cities of Val-de-Marne, at Villejuif [literally "Jewtown" - SV], then at Fresnes. His father is far left ("votes Arlette" [Arlette Laguiller, longtime Trotskyist candidate]), his little brother "hangs with the mob," but that doesn't prevent Vincent from denouncing, for his part, what he calls "anti-French racism":

"Of course it exists, but the media will never talk about it, for fear of jostling good consciences. For the Mob, my brother will always be . . . a white boy who will have to prove himself to be accepted. The anti-Le Pen Parisians, the far left joint smokers can't understand this, they who live in an ultra-protected bourgeois city. Let them cross the Beltway! Let them come out to the suburbs! Beyond the Orleans Gate, it's different! The Mob controls the neighborhoods, enjoys a total impunity, spends its time insulting France, and they want us to accept everything? Don't write that I'm a racist. Nationalist, rather. Is that a shame?"

Take the above seriously, and it throws a new light on the whole question of right-wing French attitudes toward immigrants (not that there aren't racists among them, but that who's a racist is a lot more complicated than it seems), and kind of undermines the rhetorical point of the article as a whole. Bury it at the end, and "Paranoia or Reality?" becomes a mere rhetorical question, Vincent casually dismissible.


DISCRIMINATION POSITIVE: "Positive discrimination," that's how the French call affirmative action. While in France, I read the following, "The EU reinforces its aid to the integration of Gypsies," by Mirel Bran, in the May 28 Le Monde:

It will have taken three years for the Romanian government and the representatives of the Gypsy minority to agree on a national plan. In 1998, the European Commission set aside 2 million euros for technical assistance in this operation and putting in place several pilot projects. In 2001, the budget reached 7 million euros and, this year, it will be revised upward. Today, forty Gypsy experts work in Romanian prefectures and others should fill counselor positions in city halls. As for access to higher education, Romania has chosen the formula of "positive discrimination," reserving places in universities. "In 1996, only a handful of young people entered into universities," affirms Costel Bercus, president of the Association Romani Criss. "This year, there are 800 Gypsy students."

In Hungary, also, several thousand young Gypsies have been awarded a university diploma. Like in Romania, they have set up associations able to manage European funds. The protection of minorities, which is one of the political criteria for adhesion to the European Union, has led to programs aimed at improving the lot of Gypsies in central Europe. However, discrimination remains quite present. Gypsies are still considered parias and their access to the labor market remains very limited.

I bet the Europeans (the Romanians and Hungarians may just be setting up these programs because the Europeans require them and provide money) think "positive discrimination" in favor of Gypsies will actually improve the image of Gypsies? Will native Romanians and Hungarians feel more kindly toward Gypsies when their own sons and daughters lose places at universities because of the Gypsy quota? At least if there were some assurance that such policies won't encourage identity policies on the Gypsy side... but that seems unlikely:

What has changed in recent years is the appearance of a cultivated core in the young generation. "This new intelligentsia is the effect of the European policy," explains the Hungarian sociologist Martin Kovats. "Nonetheless, these young Gypsies are evolving much more quickly than the societies they live in. On the one hand, they are able to easily integrate into a modern society. On the other hand, their high intellectual level allows them to measure the rejection of the majority population. The young cultivated Gypsy, proud of his identity, will be more and more radical. It's for this reason that the countries of central Europe could face an identity crisis in the new European construction. If we don't prepare for it, it will be dramatic."

In a companion article, "In Pecs, Hungary, the Gandhi School Revives Beash Language and Culture," Mirel Bran describes a school reserved for Gypsy speakers of Beash. Beash is an ancient form of Romanian spoken by about a sixth of Hungarian Gypsies (another sixth speak Romany, and two thirds don't speak any Gypsy language). Bran doesn't say whether the school is privately or publicly funded, but he does go on to describe Hungarian policy with respect to Gypsies:

The Hungarian law on minorities allows the election of "self-governments" on ethnic lines. The procedure is simple: a list of 15 signatures is enough to submit a candidacy and create a would-be local "self-government" which would receive a subsidy of about 3000 euros per year. Out of the 1300 "self-governments" created, 700 claim to represent the Gypsy minority. "I'm against this sort of 'ethno-business,'" says Viktoria Mohacsi, former Gypsy journalist. "The 'self-governments' have no administrative power. Instead of solving real problems, they create others. I'm waiting to see what will happen after the integration of Hungary into the European Union, scheduled for 2004. For the moment, Europe is for us a way of pressuring the authorities to address Gypsy problems. But what will happen after membership?"

Europe returns like an obsession in the discourse of young Gypsy intellectuals in central Europe. It's, to their eyes, the last rampart against the discrimination from which they suffer in their country. Aren't they in some way the creation of Europe, which finances most of the programs that concern them? It's thanks to Western money that the young Gypsies are becoming conscious of their weight and their rights in membership candidate countries. Far, in space and time, from their homeland, marginalized, discriminated against, the Gypsies of central Europe are waking up. They could soon become of the great challenges of the construction of Europe.

It's kind of depressing to see other countries adopting the same sort of ethnic politics that depresses us here, and that also hasn't turned out so well in India. I'm not hoping, but I am expecting, to not hear good news from those quarters.

UPDATE: Emmanuelle Richard, who reported on the Pecs school for Le Monde in 1997, tells me that the school (at least at the time) was mostly financed by George Soros's Open Society project in Eastern Europe. Emmanuelle was not terribly impressed by the school's bilingual program, which she says looks a lot like bilingual education in California.


ORGANICS ARE UGLY TOO: One reader writes in to note that organic produce is often of lower quality than conventional produce, particularly in terms of appearance (e.g. blemishes, bad spots, etc.) or spoilage rates. This may be true, but I know of no systematic studies, and I have certainly seen robust, blemish-free organic vegetables at my local supermarket. I also would note that for many advocates of organic food, the occasional blemish is an indication of the products "natural" condition, as some conventional produce is treated to enhance its appearance and the robust appearance of a given fruit or vegetable is not always a good indication of its flavor or freshness. On these points organic food producers arelikely correct. On the claims that their products are more healthy or better for the planet, they are not.


AN E-MAIL FROM A RELUCTANT GUN OWNER: After my KUER debate this morning, I got a very nice e-mail from Stephen Humphrey, who listened to the show and checked out the blog as a result. Here's one part -- a copy of a comment that he had e-mailed to the show's producer -- that struck me as particularly important; and I suspect that it's also the reason that my parents bought guns in 1992, for the first time in their lives. (I doubt that they had even touched a gun before then.)
Thank you for today's show.

I have long called myself a "reluctant gun owner." Certainly, I would prefer that living in our society held no threat of violence against me or my family. But I read history and the newspapers, and I can't pretend I can always depend on the government to protect me.

I lived in South Central Los Angeles during the riots. My wife was driving alone on the same streets just an hour and a half before Reginald Denny was pulled from his truck and beat up. For the next three days, the police could not be expected to drive into my neighborhood to save us. But I didn't have any means of saving myself. Even after that horrific event, I still didn't buy a gun for my family until we were stalked by a man in Nevada while we were driving from California to Utah. I'm every bit aware of how paranoid that sounds, but the rational part of my mind cannot refute the facts.

The possession of a gun in any situation equates to the possession of power. Guns might not always help a bad situation, but they often do. What would Elizabeth Smart's family have done if they had confronted her abductor and his gun in their home? I don't know, but I believe if her father held a gun as well, the probability of a positive outcome would have increased.

I want good people to have power over evil people, and so, reluctantly, I support the right of good people to be armed.
Very well-put, I think. And here's one other item, that he sent just to me, not about guns but also much worth quoting:
My wife and I lived at Crenshaw and Vernon with our two young children. We were in school at USC at the time. One element of the story I rarely share is that, on the second afternoon, two cars of teenage thugs drove down our street looking for "those white people who live around here." Our decent, black neighbors redirected them vaguely to an area several blocks away. We didn't hear about this until a week after the National Guard arrived. Scary.


EMINEM DOMAIN: Amen to Michelle on Eminem. One of my favorites, for rhyme, energy, and instrumental technique -- I think from the Marshall Mathers album -- is "I'm Gonna Kill You." There's no way I can do justice to this song in a blog post; just listen to the album.


AT HOME ON THE RANGE: Back from Europe; will soon post about France. Meanwhile, the Harvard Law Bulletin, a glossy alumni publication, has an article about me and the Harvard Law School Target Shooting Club, by Emily Newburger, in its Summer 2002 issue. Also, Michael S. Brown's article on college gun clubs was reprinted in the NRA magazine America's First Freedom (June 2002), with a photo of me, my club members, and the Mt. Holyoke Second Amendment Sisters at the Boston Gun Range in Worcester, Mass.

UPDATE: A snippet from the Bulletin interview, which mirrors what Eugene has written above:

Although Volokh doesn't own a gun (he says laws in Cambridge are too restrictive, he imagines that someday "for protection" he might. "Life is unpredictable," he said, "and you never know what situation you are going to be thrown into later on. And so if, God forbid, you should ever have to use a gun, you should know what to do with it."

He first came to this realization when he was 18. "My family never really felt strongly about guns. We're Jews who emigrated from the Soviet Union in the '70s." But in 1992, after the Rodney King verdict, the LA riots changed all that.

Volokh remembers a mob running down the streets, breaking windows, burning down buildings, undeterred by the police. It was a few miles from his family's home, but it made him feel helpless. He also recalls the image on the news of armed Korean liquor store owners standing on the roofs of their businesses "taking the protection of their lives and property into their own hands."


BLOG QUOTES IN THE MAINSTREAM MEDIA: I highly recommend John Leo's very thoughtful U.S. News & World Report column today on the Nuremberg Files case -- it's quite balanced, and seriously considers both the free speech arguments and the arguments that some speech is indeed so threatening that it needs to be restricted. I likewise recommend Kathleen Parker's syndicated column on the Justice Department proposal to keep closer track of visitors from certain countries, which appeared yesterday in the Orlando Sentinel (and, I believe, quite a few other papers).

     I'm also of course quite happy that both columns quoted posts from this very blog on this subject; a few weeks back, The Economist likewise quoted a post from this blog, as did a Rocky Mountain News editorial. And these quotes weren't the results of journalists calling me on the subject, or them quoting "official" published articles that I'd written -- they just read the blog, saw something they liked, and quoted it.

     Other bloggers of course often have the same happen to them, and this is precisely my point: We may just have a few thousand daily readers (or some tens of thousands, in InstaPundit's or Andrew Sullivan's case), but some of those readers sometimes forward the material to others. Some of this "pass-along" is in e-mail to a few friends; some, by readers who are themselves bloggers, is to thousands of the blogger's own readers; and some, by readers who are themselves mainstream journalists, can be to hundreds of thousands of readers that the journalists themselves have. Blogging might thus have an influence that, at least sometimes, exceeds the rather modest numbers of page-views that we can count.


UTAH RADIO GUN DEBATE LISTENERS: For the text of various original sources related to the Second Amendment, click here.

     For a summary of the argument for the individual rights view (from my Senate subcommittee testimony on this subject several years ago), click here.

     For the text of the Utah Attorney General's opinion that concludes that Utah statutes bar the University of Utah from disarming people who have legal concealed-carry permits, click here. (The opinion did not discuss any constitutional right to bear arms claims, because its focus was solely on the existing Utah legislation.)

     The text of the Utah right to bear arms provision, article I, section 6 of the Utah Constitution, is "The individual right of the people to keep and bear arms for security and defense of self, family, others, property, or the state, as well as for other lawful purposes shall not be infringed; but nothing herein shall prevent the legislature from defining the lawful use of arms." This particular version of the provision was enacted in 1984, though the Utah Constitution has secured a right to bear arms since 1896.


WHY DOES PREVENTING ONE TRAGEDY MAKE ANOTHER SEEM ALL THE MORE LIKELY? Attorney General Ashcroft has just announced that a terrorist was caught at O'Hare airport last month, thereby foiling a "dirty bomb" plot. This news might make me less nervous, taken as proof that our new security system is working, or more nervous, taken as proof that Al Qaeda is still strong enough to attempt further terror. In truth, of course, it provides some evidence of both, and I don't have enough information to evaluate how safe I should feel.

     Another example of this indeterminacy of new information (at least for the lay person on the outside) includes those states that repeatedly sentence suspects to death, and then remove the inmates from death row on appeal. Should we feel worse about the underlying process that put the suspects in that position, or better about the end stages of the process, that seemingly finds the mistakes and corrects them?


REPRESENTIN' ASSONANCE: On the rich topic of Eminem's value, and with a winning Keats comparison, friend Adam Bonin says:
     You know what else is amazing about Without Me? Forget about Dre for a second, if that's possible. Forget, even, about the general rhyme scheme, which is incredibly complex. Just look at (and, preferably, listen to) his use of assonance -- repeated vowel sounds throughout a section. Think of Keats' repeated 'oo' sound in "beauty is truth, truth beauty" or the long 'i' sounds in "Thou still unravished bride of quietness/ Thou foster child of silence and slow time," both from Ode to a Grecian Urn.

     It's unreal how well Eminem does it. Compare the soft 'o'/long 'a' pattern in "Without Me", the first single off the new album:

Some vodka that'll jump start my heart quicker
than a shock when I get shocked at the hospital
by the doctor when I'm not co-operating
When I'm rockin the table while he's operating (hey!!)
You waited this long, now stop debating
Cause I'm back, I'm on the rag and ovulating
I know that you got a job Ms. Cheney
but your husband's heart problem's complicating

     That immediately shifts to the long 'e' repetition here:

So the FCC won't let me be
or let me be me, so let me see
They try to shut me down on MTV
But it feels so empty, without me

     Similarly, third verse, watch the shift from short ah's to long o's:

A-tisket a-tasket, I go tit for tat
with anybody who's talkin this shit, that shit
Chris Kirkpatrick, you can get your ass kicked
worse than them little Limp Bizkit bastards

And Moby? You can get stomped by Obie
You thirty-six year old baldheaded fag, blow me
You don't know me, you're too old, let go
It's over, nobody listen to techno

     Or from "The Real Slim Shady" off the Marshall Mathers LP, watch the aw's become a flurry of 'ah's and long o's within a split second:

Of course they gonna know what intercourse is
By the time they hit fourth grade
They got the Discovery Channel don't they?
"We ain't nothing but mammals." Well, some of us cannibals
who cut other people open like cantaloupes
But if we can hump dead animals and antelopes
then there's no reason that a man and another man can't elope

     Not much to add to Adam's analysis, but to remind people who don't ordinary listen to rap that much of the rhythm and rhyme is "spontaneously" produced while the artist is free-form rapping, and then perfected over time and in the studio. Jazz fans continue to enjoy the impromptu creativity of scatting. Rapping requires substantially more skill and creativity.

Sunday, June 09, 2002


IS KRUGMAN CRAZY? How else to explain his claim that placing Dick Cheney in charge of energy policy is scarier than Islamic terrorism. The reason? "Osama bin Laden can't destroy Western civilization. Carbon dioxide can."
(Thanks to OpinionJournal.)


WHAT’S SO GOOD ABOUT ORGANIC FOOD? Not all that much actually. While environmental activists and some health food junkies swear by it, there’s little basis for believing that organic food is any better for you or the planet.

One reason people advocate eating organic foods is the claim that pesticide residues pose a threat to human health, specifically cancer. This argument sounds plausible – after all, what kills bugs can’t be great for people – but it ignores the basic fact of toxicology that the dose makes the poison. Pesticide residues on food are too miniscule to pose a cancer threat. Ample research, such as that by Bruce Ames, shows that most of the carcinogens that humans consume are natural. Fruits and vegetables come with various pesticides of their own, thanks to Mother Nature. As with synthetic residues though, the doses are too small to pose a threat to human health. In addition, the above argument for organics assumes that such foods come without pesticide residues. This too is a questionable assumption , as Howard Feinberg explains. So, eating more fruits nad vegetables may help keep you healthy, but sticking to organics won't reduce your risk of cancer.

What about organic farming’s environmental benefits? The BBC claims a study published in the May 31 Science gave the environmental impact of organics “a ringing endorsement.” Not so. What the study found is that organic farming uses less energy and other inputs than conventional farming. (See summaries here.) As a consequence, however, organic farming is far less productive. On average, the study found, organic farms produce 20 percent less per acre than their conventional counterparts. This means that to produce the same amount of food, organic farming requires substantially more land than conventional farming. This may not be a big deal in the U.S., but in developing nations, organic farming will mean more habitat is cleared to make way for farms, fewer people get fed, or both. Moreover, as Ron Bailey points out, organic farming’s energy benefits may be a mirage, as the Science study didn’t consider the newest, most energy-efficient conventional farming techniques.

So, eat organics if you want, but don't think you're doing yourself or the planet any favors.

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