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Saturday, December 21, 2002


N.Y. TIMES ‘FLOODS THE ZONE’ ON ELECTRONIC SURVEILLANCE: There's yet another story in the N.Y. Times today on electronic surveillance: today’s story is titled Going Electronic, Denver Reveals Long-Term Surveillance. The piece is primarily about the troubling discovery that the Denver police have been gathering information on local activists since the 1950s. The angle for why this is “electronic” surveillance seems a bit of a stretch: the police had been putting the information on paper index cards for the last fifty years, but when the filing cabinet that stored the index cards recently filled up, the police decided to switch to a computer-based system to save space. Ergo, “electronic” surveillance. In any event, at some point the Denver police started disclosing the contents of some of the files to other police departments, and in March 2002 someone leaked a paper printout of a file to a local activist, who told the press.

     Clearly the Denver police’s practices are highly disturbing. It's an important story for that alone. But it’s interesting how the Times can take a story about index cards and turn it into a story about electronic surveillance. The main lesson the Times draws from the story seems to be this:
The incident has highlighted some pitfalls of police intelligence software, which has been hailed widely as a major tool in the war against terrorism.
     Wait, you might be wondering, what does this story have to do with “police intelligence software”? Or the war on terrorism? Well, here are the dots that the Times connects. When the Denver police decided to switch to computer files instead of index cards, the software they purchased (apparently something like search engine software) was manufactured by a company called Orion Scientific Systems. That company has sold software to other police depart ents, and had its start in the 1980s developing programs for DARPA. DARPA is of course the agency responsible for Total Information Awareness. As the Times explains:
Orion got its start two decades ago developing an analysis tool for the Defense Advanced Research Projects Agency, where a new office run by Adm. John Poindexter is developing controversial plans to gather vast amounts of personal information as a means to hunt terrorists.
Therefore the Denver episode is linked to TIA, and the story becomes a story about “police intelligence software” and its “pitfalls.”

     UPDATE: A reader e-mails suggesting that I may be making too much out of the "electronic surveillance" angle in my post. The story doesn't really claim to be about "electronic surveillance," he writes, and it's unfair of me to criticize it for pushing an angle that it doesn't push. There may be something to this; although the title to the story suggests an electronic surveillance angle, the rest of the article is more about privacy, snooping, electronic databases, and the general tension between security and civil liberties in the computer age. Sometimes these are considered electronic surveillance questions in a broader sense, sometimes not. At the same time, my concern remains: the Times wanted to tell a story about the "pitfalls" of TIA and computerized databases and the like, and had to stretch the Denver story to try to pull it off.

Friday, December 20, 2002


MORE ON THE K.C. JOHNSON / BROOKLYN COLLEGE MATTER, in the Wall Street Journal. (Thanks to Erin O'Connor for the pointer.)


SMALLPOX VACCINATION: My friend and colleague Mark Kleiman has some very interesting and persuasive arguments about the value of mass smallpox vaccination. (Thanks to InstaPundit for the pointer.)


ALAS, IT WAS NOT TO BE: Oh, I had plans this week (and late last week). I was going to post more about "Happiness is a Warm Gun" (including the Snoopy theory and the Gun Magazine theory). I was going to post more about Mormons baptizing dead Jews. Even before then, I was going to post about gays in the military and elected public defenders. I was going to respond to other interesting e-mails, some of which I had personally replied to, and some of which I was planning to respond to by blogging.

     And then, work intervened. And life. Sorry excuses, I know, but there they are. And now, what's the point, with the original posts over a week in the past? Time passes, Lott resigns, last week is but a distant memory. Who was that strange man in early December, who was supposedly me but is now lost in the dim caverns of the past? Many apologies to all those whose messages I didn't get to . . . .


MARK STEYN ON JOHN KERRY, in (featured article). I don't know enough about Kerry to know whether this is correct, but like all of Steyn's stuff, it's very readable.


MORE HEADLINE VS. STORY: Todd Seavey points to an AP story with the headline "Public Supports Bush, Not Tax Cuts." The trouble is that the story says nothing about the public not supporting tax cuts. It says "People were about evenly split on [Bush's] tax policy," and mentions in the same paragraph the ABC / Washington Post poll; that poll shows that the public approves of Bush's handling of taxes (though with no separate question about tax cuts as such) by 51-44. And the evidence that the public doesn't support tax cuts is . . .?


CANADIANS AND AMERICANS: Canadians are generally indistinguishable from Americans. The surest way of telling the two apart is to say that to a Canadian.

     (Credited sometimes to Richard Staines and sometimes to Richard Starnes; thanks to Phil Proctor for passing this along.)


THE ORIGINS OF FEDERALISM: Why does the United States have a federal structure? Not because federalism is conducive to good government, not because the Framers thought it would be wise to have a country made up of sovereign states, and not because of racism. We have federalism today because in the late 16th and early 17th centuries, when the English government began establishing colonies in North America, England set up a bunch of separate colonies rather than one big colony. Distances were so great and technology so simple circa 1600 that North America would have been very hard to govern as a single colony. By the time of independence it was too late to change. Canada and Australia have a federal structure today for the same reason. New Zealand does not, because it was small enough and colonized late enough to be run as a single colony.

     Now, I have no idea whether on balance federalism is good or bad. All I'm saying is that if it's good, we lucked into it, and if it's bad, we're stuck with a system intended for circumstances quite different from our own.


LIMITS ON FEDERAL POWER: Orin pointed earlier this morning to an E.J. Dionne piece that condemned states' rights (which usually means structural limits on federal power) on the grounds that it had been used to support racism. Orin expressed skepticism, and I share that skepticism: That states' rights can't be treated as the preeminent constitutional principle (which many of the Dixiecrats may have done, and which some today caricature conservatives as doing) doesn't mean that states' rights are a bad principle.

     The Constitution embodies many principles -- equal rights, constitutional protections against both state and federal violations of individual rights, constraints on federal power vis-a-vis states, constraints on state power vis-a-vis the federal government, self-government at the state level, self-government at the federal level, a forceful federal government as to some topics, a limited federal government as to other topics, and many more. The Dixiecrats wrongly rejected some principles in order to extol others (as David Kopel has powerfully explained). Some modern federal power maximalists make the opposite mistake. The Dixiecrats' mistake was more morally objectionable, but the opposite mistake is also practically dangerous, and is also untrue to the Constitution.


NEPOTISM, GOOD SENSE, OR BOTH? According to the an AP story, former Sen. Frank Murkowski, who was just elected governor of Alaska, has just appointed his replacement who will serve in his stead in the Senate until the next election: His daughter, state legislator Lisa Murkowski (who had been selected House Majority Leader).

     So what should we think about it? Is this classic nepotism, given that someone is being appointed to high political office by her relative? Or is it just good sense? As now-Gov. Murkowski says, "Above all, I felt the person I appoint to the remaining two years of my term should be someone who shares my basic philosophy, my values, but particularly one who shares on the issues of Alaska matters that are before us [-- s]omeone whose judgment I trust in representing the state and all of its people." Murkowski probably knows his daughter quite well, better than he knows most other people, and trusts her more than he trusts most other people. (This isn't always true of parents and children, but it's often true, and it may well be true in this case.)

     This question comes up periodically in American public life; as I understand it, for instance, the same question was asked when JFK appointed Robert Kennedy as Attorney General. One possible response is that it all depends on whether the person was in any event qualified for the job (as Lisa Murkowski might well be, given her own success as a politician), but while this is a necessary condition for the action being proper -- appointing unqualified people is certainly bad -- it's not really sufficient: I'm sure there were lots of qualified candidates, and there might even have been some who were more qualified in some sense (though I should stress that I don't know for sure, and am only speculating here). It's hard to escape the sense that they were passed over, and Lisa Murkowski was selected, because they were unrelated to the new Governor and she was related to him, and that doesn't seem quite fair.

     And yet, on the other hand, maybe the relationship is properly seen as part of the qualifications, precisely because it is often closely correlated to how well the appointer knows and trusts the appointee. And maybe -- though here I'm more tentative -- there is some proper role in politics for people helping their own flesh and blood, especially when it's done overtly and with the possibility of reaction by the voters. Yes, government offices aren't private fiefdoms to be bestowed on one's family, and the goal is to serve the public; but is it really so bad for a father to give a daughter this sort of leg up, especially when she does seem at least fairly well-qualified? The desire to help one's children is a basic, likely biological, human drive. We are right to frown on it being used as the basis in most public decisionmaking by government officials (and by business officials who aren't sole owners of the business) -- but can we, and should we, try to banish it altogether?

     So as you can tell, I don't have a particularly firm opinion here; still, it seems to me like an interesting question.

     (Thanks to How Appealing for the pointer to the story.)


HUNTING FOR THE FACTS IN THE NEW YORK TIMES’ LATEST STORY ON ELECTRONIC SURVEILLANCE: As I’ve mentioned before, the N.Y. Times writes occasional stories about secret plans that the government has to “monitor the Internet.” These stories often recycle information that has been public for awhile, usually with very vague facts. As for whether a particular story is important, that’s usually hard to tell: the stories are often so short on the facts that it’s hard to make an independent assessment of a particular story’s value. Trying to make sense of the story can demand a lot of leg work into the facts.

     Today’s installment is an article by John Markoff and John Schwartz titled Bush Administration to Propose System for Wide Monitoring of Internet. This is quite a headline, so let’s see what the facts are. What is this “system for wide monitoring of the Internet”? According to the article, it is “a centralized system to enable broad monitoring of the Internet and, potentially, surveillance of its users.” What does that mean, you wonder? Well, the article doesn’t tell us much. It does say that the system is proposed in a forthcoming report that describes the system as an “early-warning center” that the report says “is required to offer early detection of Internet-based attacks as well as defense against viruses.” But what is the system? What is the proposal? Alas, the article doesn’t say. I’ve read the article several times, and I can’t tell what the proposed system actually is.

     Rather than describe the system, the article features worries and concerns from named and unnamed representatives of corporations that would have to comply with this system (whatever it is) and who object to it ostensibly on grounds of their possible civil liability and the privacy implications. One unnamed corporate representative has my favorite quote: “Am I analogizing it to Carnivore? Ab olutely. But in fact it’s 10 times worse.” This is a great quote, but it’s a bit odd, isn’t it? Rather than tell us what the proposal actually is, the article gives us the assessment of an unnamed source that it is ten times worse that Carnivore. Maybe I’m old-fashioned, but I think I would rather make that assessment myself.

     Perhaps the best hint for what the system actually is comes in the middle of the story, where the article explains that the report that will propose the system “was first released in draft form in September, and described the monitoring center, but suggested it would likely be controlled by industry. The current draft sets the stage for the government to have a leadership role.” Okay, now we’re on to something. So the actual facts of the proposal have been public for a few months; what has changed is that the final draft of the report appears to give the government a bigger role in the system. (The word “appears” is important, because the story reports that the proposal is “still in flux,” and of course it’s ambiguous what it means to “take a leadership role.”)

     This brings us to the draft report that was released for public commentary in September, “The National Strategy to Secure Cyberspace,” by the President’s Critical Infrastructure Protection Board, which you can view here. I gather that the relevant recommendation is this:
Develop early warning and efficient sharing of information both within and between public and private sectors so that attacks are detected quickly and responded to efficiently.
As best I can tell from the context of the draft report, the “early warning” that they have in mind are systems like Intrusion Detection Systems and virus protection software that system administrators commonly put on networks to monitor attacks against the network. These are akin t electronic burglar alarms that let a system operator know when unusual network traffic such as a denial of service attack has been identified. And of course, most home users are also familiar with virus protection software, such as that sold by McAfee and Symantec.

     To summarize, I’m still not exactly sure just what the facts are. As best I can tell, however, the Critical Infrastructure Protection Board appears to be considering a proposal which would expand and perhaps require the use of intrusion detection systems on networks to be able to provide an early warning system of denial-of-service attacks, viruses, and the like. Is this a good idea? I don’t know. Maybe, maybe not. But it does seem odd that it’s so hard to figure out the facts. And given that the facts are so unclear, it seems a bit premature to call this a “propose[d] system for wide monitoring of the Internet.”


"JEW, JEW, JEW!": I'm always hesitant about these sorts of hate crime stories, because people take them to be more representative than they may well be. That a few schoolkids in a nation of nearly 300 million people, or a few Arab-American kids out of the millions of Arabs in America, acted this way doesn't tell us much. I think that anti-Semitism is not a huge problem for most Jews in America today (though this doesn't mean that it's not a problem).

     Nonetheless, given how prominently hate crimes are indeed reported, it's helpful to keep in mind that there's a broad range of them, with no group having a monopoly on victimhood or victimization. So with that introduction, here's the N.Y. Post story:
Religious tensions erupted yesterday after authorities confirmed that an Arab girl beat up a Jewish girl at a Brooklyn middle school.

The Arab teen was arrested and suspended for the Dec. 12 attack on the 13-year-old Jewish girl, an honors student, at IS 259 in Dycker Heights, sources said. . . .

Brooklyn Assemblyman Dov Hikind, who spoke with the victims' parents, said he believes the assault was bias-related -- although it was not reported as a hate crime.

"The attack was the culmination of weeks of taunting and tormenting by this group, led by one particular Arab girl," Hikind said in a letter to Schools Chancellor Joel Klein.

"They were chanting, ‘Jew! Jew! Jew!' " Hikind added in an interview. . . .
UPDATE: A person whom I trust, and who has no reason to defend anti-Semites, suggests that Dov Hikind might not be a particularly reliable source. If Hikind is wrong, and this incident didn't happen (or was just a common schoolyard brawl between two kids), I'll be quite happy. I should stress that I don't have any personal knowledge one way or another about Hikind's reliability, or about his accuracy in this instance -- just passing along a warning that one should, as always, be cautious about newspaper accounts like this.


DISCRIMINATION BASED ON COUNTRY OF CITIZENSHIP: A couple of recent e-mails (and a radio show I heard this morning) suggest that the INS actions with regard to non-permanent-resident aliens from Iran, Iraq, Libya, Sudan and Syria might constitute unconstitutional discrimination based on religion or ethnicity. I don't think so, and I thought I'd repost parts of an item I posted on the subject on June 5.

     When people complain about discrimination, they're complaining that someone is being treated worse because of some attribute. It's thus important to identify clearly what the attribute is. Is it religion? Or is it status as citizen of a particular foreign country (and unfortunately, many of the countries that pose the highest risk to our security are indeed majority-Muslim countries)?

     Discrimination based on race or religion does indeed go against important American constitutional traditions, and broader ethical principles as well. It may on very rare occasions be proper, but we should always be suspicious of it. (It turns out, incidentally, that the arguments against religious discrimination and religious profiling have to be somewhat different than those against racial discrimination and racial profiling, but I think they are quite powerful.)

     Discrimination based on the foreign country in which one is a citizen stands on very different legal and ethical footing. Legally, I don't believe there's any constitutional bar to such discrimination. And ethically, we have to recognize that the nation of one's citizenship can quite properly be counted in our government's decisions, especially ones related to immigration and national security.

     The problem with the internment of Japanese-Americans during World War II was precisely that they were Americans, who were entitled to a presumption that they'd be just as loyal as other Americans. But there's no reason to assume that noncitizen visitors will be loyal or even friendly to our nation. Many are friendly, but not all are. And it stands to reason that those from countries that have a great deal of anti-American sentiment would be more likely to be hostile to American interests.

     What's more, since they are not American citizens, their presence in the U.S. is a matter of grace, not (as with citizens) a matter of constitutional right. General suspicions that might not justify (quite independently of discrimination questions) restraints on citizens may well justify some modest restraints on noncitizens.

     It's perfectly constitutional to require foreign citizens to register and to come in for interviews even when we don't require this of our own citizens. Foreign citizens are not Americans. They do not have a constitutional right to be here. We are perfectly entitled to deport them when their visa term comes up, or for other reasons, and it's helpful for that purpose to have some idea where they are. They have not earned our trust, or sworn allegiance to us. They are our guests, and we should treat them fairly. But there's nothing unfair about a host claiming the right to know where his guests are, and what they're doing on his property.

     Whether these sorts of programs actually make good sense is a different, and a much tougher question. I'm not sure that the recent INS actions do, but I'm not sure they don't. On the one hand, many, quite likely most, people from Iran, Iraq, Libya, Sudan, and Syria are probably here because they don't like the governments of their home country, and like us much better. On the other hand, some may be here precisely because they were sent to engage in terrorism. I'm not knowledgeable enough on the policy questions to have an informed opinion.

     But the issue is what's good policy -- the Constitution, and more general principles of generally treating people without regard to race or religion, do not bar distinguishing Iraqi citizens from Irish citizens.

UPDATE: Thanks to eriposte for pointing out that my original post was in error when it said that noncitizens "have no legal right to be here"; I meant to say only "have no constitutional right to be here," and have changed the text accordingly.


"the name of the rose" free mpg
Search engines work in mysterious ways their wonders to perform.


Responding to Sen. Trent Lott's recent comments, Rep. Cass Ballenger told a newspaper he has had "segregationist feelings" himself after conflicts with a black colleague.

Ballenger, a North Carolina Republican, said former Rep. Cynthia McKinney, D-Ga., so provoked him that "I must I admit I had segregationist feelings." "If I had to listen to her, I probably would have developed a little bit of a segregationist feeling," Ballenger told The Charlotte Observer in Friday's editions. "But I think everybody can look at my life and what I've done and say that's not true.

"I mean, she was such a bitch," he said. . . .

Ballenger told Charlotte radio station WBT Friday that his comments were "pretty stupid on my part" and that he didn't think he had segregationist feelings.

"I talk too much," Ballenger told the radio station. "In that specific case, I was trying to say that almost anybody can develop an animosity to individuals. In this particular case, I picked on Cynthia McKinney because she was what I consider less than patriotic to the United States." . . .

When told of Ballenger's remarks, Rep. Mel Watt, a black Democrat from Charlotte, said he believed race was not the main motivation for them.

"I suspect that whatever she's doing that's gnawing on him has to do more with what she's saying and how she's saying it than the fact that she's black," he said.

"I doubt it's her blackness that's annoying him, but it's probably that added factor that makes it intolerable to him, in a sense. I wonder if somebody white did and said the same thing that Cynthia McKinney is saying it would even become a part of his discussion."
Oooh, what a rocket scientist Mr. Ballenger is.

     Mel Watt's comments are also mistaken, I think, but only partly, and partly correct. Indeed, some people do get more outraged by bad behavior by someone of a particular race, religion, ethnicity, or sex; there's no doubt that there's some degree of this sort of feeling out there. On the other hand, if McKinney had been white, other people might have condemned her still more, because they wouldn't have been worried about the danger that their condemnation would be characterized by some as racist or insensitive. And most people, I think, would have condemned her pretty much equally whatever her race -- not because most people are so wonderfully fairminded, but because her statements and actions were so appalling.

UPDATE: CalPundit takes me to task, and rightly so. Mea culpa, mea maxima culpa . . . .


DOES FEDERALISM EQUAL RACISM?: E.J. Dionne, Jr. sees a link. I often find Dionne pretty reasonable; today isn't one of those days.

Thursday, December 19, 2002


SWEET HOME ALABAMA: Sometimes you just can't help but chuckle when a state like Alabama goes out of its way to play to type. Supremacy Schmemacy, that's what I have to say. Thanks to How Appealing for the link to this news account of the Alabama Chief Justice's latest jurisprudential raspberry.


DISCRIMINATION AND PROFILING? By the way, here's one alleged rights violation in the INS program that I haven't heard people discussing; nor did I hear much discussion of a similar problem in the plan several months ago to interview thousands of men who are citizens of Middle Eastern countries -- sex discrimination. These programs are explicitly limited to males.

     The reason for this limitation, I think, is pretty clear: The overwhelming majority of all violent people, from terrorists to killers, are men. That seems to be a fact of biology (whether or not it's also exacerbated by societal factors).

     But does this reason suffice, under existing constitutional law, to allow the government to discriminate based on sex -- either in identifying potential suspects (what one might call sexual profiling), or in actually taking tangible action against people, such as demanding that men do certain things that women don't have to do?

     It's far from clear that this is so: As the Court said in U.S. v. Virginia, the Virginia Military Institute case, "Parties who seek to defend gender-based government action must demonstrate an 'exceedingly persuasive justification' for that action." What's more, generalizations about gender-based differences in rates of misbehavior are generally not enough (see Craig v. Boren), especially when the actual rates of misbehavior in either group are quite low. And "administrative ease and convenience" has likewise been generally rejected as a justification (again, see Craig). So the obvious argument in favor of the sex classification -- "Men are more likely to be terrorists than women, so we want to save time, money, and effort by focusing just on the men and not on the women" -- seems to be foreclosed.

     Now I'm not trying to make a fuss here -- this sort of sex classification doesn't get my blood boiling (though maybe it should). I don't make the law, I just report it. But it's interesting that even though the constitutional objection here is quite substantial (much more so than, for instance, any racial profiling objection, since in this program the discrimination is based on nation of citizenship, and not on race or ancestry), very little has been said about it.


HEADLINE VS. STORY: A FoxNews headline reads: "Families of Jailed Middle Eastern Immigrants Say Rights Violated." But when I read the story, I didn't see anything that explained which rights were violated.

     "[M]ale visa holders, age 16 and older, from Iran, Iraq, Libya, Sudan and Syria were asked to report to local immigration offices in order to be fingerprinted and photographed or risk being deported"; several hundred of them, who the INS claims "have violated immigration laws or are wanted by law enforcement for a crime," were then detained. Here are some quotes from people who criticize the program:
Mohajeri and relatives of the hundreds of Middle Eastern men and teens who have been detained in California this week say they feel betrayed by the country that once offered them a safe haven. Even worse for many family members is the feeling that they acted as unknowing accomplices to the U.S. government.

"I blame myself. Why I brought my son here and put him in jail. Why? Just because I followed the law," [a family member] cried. "I made a mistake. I shouldn't do that. But I did." . . .

The program has provoked the ire of a coalition of statewide civil rights groups, including the American Civil Liberties Union, which issued a statement Thursday calling on the government to "scrap the flawed and misguided" program, or to at least extend the deadlines so that complaints can be addressed.

"The INS roundup is confused, ineffective and deceptive," said Salam Al-Mayarati, executive director of the Muslim Public Affairs Council. "It is clear these measures erode our freedom, yield no enhanced security and serve to damage America's global image." . . .

Zahra Modjarrad, a psychologist who fled Iran on foot for Pakiston 22 years ago, said she too felt relief when her medical student son was released from detention Wednesday.

But she worried about the long-term emotional effects of his detention, which included a body search with a flashlight, she said.

"His spirit has been broken very badly because he was the person who never had any problems in his life," Modjarrad said.
But where is the allegation of actual violation of actual rights? Now it may well be that the program is a bad idea, perhaps some aspects of it even do violate people's rights, and maybe the ACLU and the Muslim Public Affairs Council even made this clear. None of this, though, made its way into the article, despite the claim that "Families . . . Say Rights Violated."


MORE ON RANKING LAW SCHOOLS: I agree with much of what Stuart says below about law schools and rankings (the direct link doesn't seem to be working, so you'll have to scroll down to see it). However, I think there is a difference between ranking law schools and ranking cars, to use Stuart’s example. When ranking cars, the primary question is how well the car will perform in the usual tasks that drivers demand. A ranking tells the prospective buyer that from the evaluator’s perspective, one product does a better job than another.

     Ranking law schools is a bit different. There are two basic questions, not one. Law school rankings try to measure both the actual quality of the school, and also the school’s reputation for quality. Both are important to prospective students, of course. The actual quality can tell applicants how good the education may be, and the reputation for quality gives applicants a ballpark sense of the kind of career options they might enjoy if they attend the school.

     Focusing on both actual quality and reputational quality makes sense from the standpoint of a law school applicant trying to figure out where to go to law school. But I can imagine that from a law school dean’s perspective, the dual focus makes law school rankings seem a bit unfair. Consider how a car manufacturer might feel if Consumer Reports started considering reputation alongside actual quality when it evaluated new cars. The editors at Consumer Reports might think, “Well, this Chrysler runs much better than that Lexus, which is a real clunker. But on the other hand, the Lexus brand name exudes class and taste. So we’ll rank the Chrysler below the Lexus.” If you’re Chrysler, you’re not going to be very happy: here you built this great car, but you don’t get credit for it from the rankings. Eventually you may see the rankings not as an evaluation of your product, but rather as an assessment of what (often uninformed) people ge erally think of your product. Similarly, I can imagine that a law school dean might be frustrated that efforts to improve a school might make the law school much better, but make no difference in the rankings.


ENGLISH ISN'T LATIN: By the way, it appears that both the "it's wrong to split infinitives" myth and the "it's wrong to end a sentence with a preposition" myth probably have a common root (at least in part): The assumption that English should be like Latin. From Webster's Dictionary of English Usage:
Where did this "cherished superstition" [that there should be no prepositions at the end of sentences] come from? It seems to have originated with the 17th-century English poet, playwright, and essayist John Dryden. . . . We cannot be sure how Dryden developed the idea that the terminal preposition was an error, but Latin is probably involved. The construction does not exist in Latin, and Dryden claimed to have composed some of his pieces in Latin and then translated them into English -- apparently for greater elegance or propriety of expression. . . .

The original cause for complaint [about split infinitives] was probably awareness of a relatively sudden marked increase in use of the construction, perhaps combined with the knowledge that in those more elegant languages, Latin and Greek, the infinitive is never split -- because it is a single word distinguished by its ending rather than by an introductory particle.
Well, English isn't Latin (or for that matter Russian, another language in which one wouldn't end a sentence with a preposition, or split an single-word infinitive). We English speakers split our infinitives, we end our sentences with prepositions, and we're perfectly entitled to do so.


A GOVERNMENT CONSPIRACY TO PROTECT PRIVACY?: According to today's N.Y. Times, the Pentagon commissioned a secret study of how technology can be used to protect privacy. Thanks to the Freedom of Information Act, the government has just released the 23-page report summarizing the study's findings. Among the conclusions: "Privacy of personal data is an absolutely essential element of any information system that carries information about American citizens."


SOME THINGS GO WITHOUT SAYING: This is the first installment of what I hope will be a regular feature: a list of some of the things that are so obvious they go without saying, at least in the view of the judges who recently said them after explaining that they go without saying. As these are all things that go without saying but have nevertheless recently been said (by the very people who think they go without saying), we have to assume that many of them won't be said at all sometime soon, because they will be deemed so obvious as to no longer need saying that they go without saying. And when that happens, we won't have any way to know what they are.

     That said, here are some things that judges have, within the past few weeks, said go without saying:
  • An individual who informs on drug runners expects that his or her identity will not be made public for fear of reprisal.

  • Legitimate claimants should be paid as quickly as possible.

  • The ability to communicate develops with age.

  • A contract cannot bind a nonparty.

  • The public has a vital interest in seeing that the poor are not destitute.
This list is obviously much shorter than the list of things that don't go without saying, but those things are more easily found, because they have already been said. But you know how that goes.


MY HYPOCRISY: Bill Clinton has set me straight on Lott:

Former President Clinton says it is "pretty hypocritical" of Republicans to criticize incoming Senate Majority Leader Trent Lott for stating publicly what he said the GOP does "on the back roads every day."

"How do they think they got a majority in the South anyway?" Clinton told CNN outside a business luncheon he was attending Wednesday. "I think what they are really upset about is that he made public their strategy."

He added: "They try to suppress black voting, they ran on the Confederate flag in Georgia and South Carolina, and from top to bottom the Republicans supported it."

     In other words, racism is The Way of the Right, so why get up in arms about it now?

     I don't consider myself to be part of Clinton's "They," but if one of our two national political parties is founded on and driven by racism, we are in a much worse state than I thought.


RANKING LAW SCHOOLS: Law school deans have been complaining about the U.S. News ranking for years. Their argument is that the ranking is misleading to prospective students, because no ranking can capture all the important differences among schools. Different schools are optimal for different students, they say, so any attempt to order the schools along a single dimension will overlook the characteristics of individual schools that might be attractive to particular applicants. I've never been convinced, because I've always thought the argument would apply equally well to any product or service. Cars all have different characteristics too, so any ranking of cars along a single dimension would overlook features that might appeal to particular drivers, but magazines rank cars, and that's useful for purchasers. Why shouldn't the same be true for law schools?

     Having one's work evaluated is always uncomfortable, so it's understandable that law schools would have the same distaste for U.S. News that musicians have for music critics. But I think there's more to it than that. One of the nice things about academic life is that most of the time we're able to act like we're not competing with one another. We can share ideas and personnel to an extent that would be unimaginable in any other industry. And then every year U.S. News comes along and reminds us that lurking beneath the life of the mind is a competitive market to attract students.


A FANTASTIC LILEKS PIECE on Christmas hatred. (Thanks to InstaPundit for the pointer.)


SPLIT INFINITIVES: Reader Michelle Dulak facetiously points to my post criticizing the Language Police, and writes:
"Seems to me that if the Language Police want to publicly accuse someone [. . .]"

You put that split infinitive in there deliberately, didn't you, just to see how many of us would call you on it? ;-)
I wish I could claim credit for such creativity, but I can't. I split the infinitive without thinking about it, precisely because normal, educated English speakers and writers split the infinitive without thinking about it -- and they are right to do so. "To boldly go where no man has gone before" sounds normal, even to people who have never seen Star Trek. "Boldly to go where no man has gone before" sounds stilted. Likewise, "to publicly accuse someone" sounds much better to my ear than "publicly to accuse someone."

     What's more, it's not against the rules. Webster's Dictionary of English Usage: "the objection to the split infinitive has never had a rational basis." "The consenus in the 20th century . . . seems to be that awkward avoidance of the split infinitive has produced more bad writing than use of it." "The commentators recognize that there is nothing wrong with the split infinitive."

     The Harper Dictionary of Contemporary Usage likewise calls it a "pedantic bogey," and says that "if the intrusion of one or at most two adverbs between the elements of an infinitive sounds right to your ear and if it aids in clarity, feel free to split the infinitive. 'He wanted to really help his mother' sounds less stilted than 'he wanted really to help his mother.'" Fowler takes a similar view -- "a real [split infinitive], though not deisrable in itself, is preferable to either of two things, to real ambiguity, & to patent artificiality":
We will split infinitives sooner than be ambiguous or artificial; more than that, we will freely admit that sufficient recasting will get rid of any s.i. without involving either of those faults, & yet reserve to ourselves the right of deciding in each case whether recasting is worth while.
The New Fowler's is my one usage book that takes a sterner view, but even it makes clear that though in its view "all the evidence point towards the reality of the feeling that it is 'wrong' to split infinitives," "rigid adherence to a policy of non-splitting can sometimes lead to unnaturalness or ambiguity," and thus "[n]o absolute taboo should be placed on the use of simple adverbs between the particle to and the verbal part of the infinitive.

     So those in the Language Police who say that split infinitives are wrong -- as opposed to just sometimes inelegant -- aren't just prescriptivists who follow authority: They're applying a prescription that leading authorities renounce, a usage myth rather than a usage rule.

UPDATE: Kieran Healy takes the same view.


OBJECTIVELY PRO-___: Last week, I suggested that it might often be wrong to call people "objectively pro-Saddam" (or words to that effect) on the grounds that their actions in fact help Saddam, even if they aren't intended to. Thanks to a reader, I've found an ally -- none other than George Orwell.

     Orwell, of course, is probably the most famous user of the "objectively pro-___" locution; in 1942, he wrote:
Pacifism is objectively pro-fascist. This is elementary common sense. If you hamper the war effort on one side, you automatically help out that of the other.
I suspect that many people who use the phrase today are referring to Orwell.

     Two years later, though, Orwell took a different view. In a Dec. 8, 1944 column (which I've checked in print, in Collected Essays, vol. 3, pp. 288-289 (1968)), he wrote:
The same propaganda tricks are to be found almost everywhere. It would take many pages of this paper merely to classify them, but here I draw attention to one very widespread controversial habit -- disregard of an opponent’s motives. The key-word here is "objectively".

     We are told that it is only people’s objective actions that matter, and their subjective feelings are of no importance. Thus pacifists, by obstructing the war effort, are "objectively" aiding the Nazis; and therefore the fact that they may be personally hostile to Fascism is irrelevant. I have been guilty of saying this myself more than once. The same argument is applied to Trotskyism. Trotskyists are often credited, at any rate by Communists, with being active and conscious agents of Hitler; but when you point out the many and obvious reasons why this is unlikely to be true, the "objectively" line of talk is brought forward again. To criticize the Soviet Union helps Hitler: therefore "Trotskyism is Fascism". And when this has been established, the accusation of conscious treachery is usually repeated. . . .

     In my opinion a few pacifists are inwardly pro-Nazi, and extremist left-wing parties will inevitably contain Fascist spies. The important thing is to discover which individuals are honest and which are not, and the usual blanket accusation merely makes this more difficult. The atmosphere of hatred in which controversy is conducted blinds people to considerations of this kind. To admit that an opponent might be both honest and intelligent is felt to be intolerable. It is more immediately satisfying to shout that he is a fool or a scoundrel, or both, than to find out what he is really like. It is this habit of mind, among other things, that has made political prediction in our time so remarkably unsuccessful.
Naturally, appeals to authority can only count for so much, especially when the authority has contradicted itself. But it seems to me that Orwell's 1944 sentiments are quite persuasive.

Wednesday, December 18, 2002


VENALITY OR STUPIDITY? Several of the posts today and over the past several days cause me to revisit a question I often contemplate: When faced with distasteful behavior by persons that I do not know well (or at all), should I (rebuttably) presume that such behavior is the result of venality or stupidity? Even where the behavior is recurring, the question is often not easy to answer. A person or entity that repeatedly engages in the same class of bad behavior even after it is pointed out might well be thought venal, but it seems at least plausible that they are just exceptionally stupid or non-educable.

I am not suggesting that all bad behavior is in fact a result of venality or stupidity. Sometimes it is a result of laziness or inattention, sometime simple mistake, sometimes confusion, and sometimes the behavior simply appears bad through lack of adequate context. But that said, it still seems to me that most bad behavior is more plausibly the result of one or both of the two traits initially mentioned. I would be curious to know what presumption others think is the most reasonable. For those needing specific examples to focus on the more general question, feel free to contemplate the spiraling disaster that is the Trent Lott affair, or the uniformly abominable treatment of polls, studies, statistics, and all other forms of basic factual information by many news outlets, or even my own current (perhaps excessive) criticality. (The latter example, of course, is easy: presume venality, or at least a mild form of nastiness, but hey, we all have to amuse ourselves.)


REPUBLICAN HEAD COUNT ON LOTT? I pass this along, for whatever it's worth, from the Web site of Government Executive magazine, citing CongressDaily:
At least 17 Republican senators are leaning toward voting for incoming Senate Majority Leader Trent Lott, R-Miss., to remain party leader next year, while only seven senators indicated that they plan to oppose him, according to an informal CongressDaily survey conducted Wednesday. But the tally belies the difficulty Lott faces in finding the nine remaining votes to give him the 26 he needs to cling to power.

While Sen. Lincoln Chafee, R-R.I., became the first Republican senator to ask Lott to step down, 26 current Republican senators remain either undecided or silent about how they would vote in a closed-door referendum on Lott's tenure slated for Jan. 6. Among that group are Sens. Don Nickles, R-Okla., and Bill Frist, R-Tenn., who are both thought to have their eye on Lott's job. A 51st Republican senator will be appointed later this week to fill in for former Sen. Frank Murkowski, R-Alaska, who was elected governor.
What are these people thinking? Lott, it seems to me, has become a huge liability to the Republican Party; as I understand it, he hadn't had that great a reputation before this fracas, but now keeping him as Majority Leader would be a disaster. My guess is that much of this has to do with personal loyalty, and perhaps something has to do with the possible problems with his replacements (about whom I know little). And I recognize that the Republican Senators are seasoned politicians, who presumably know much more about such matters than many outside commentators do. But, boy, I sure hope that the 17 won't grow to 26, or that Lott decides to do the right thing on his own.


WHAT I DON'T KNOW CAN'T HURT ME: Today's Wall Street Journal has a story here about a proposal by the folks who run the LSAT not to disclose the LSAT scores of applicants to law schools evaluating law school applications (thanks to Howard for the link). Under the Law School Admissions Council proposal, law schools would only receive a percentile mark comparing an applicant's LSAT score to the scores of other applicants or the previous year's admitted students. So, for example, if a student applied to Harvard with a 168 LSAT score, Harvard would only learn that the applicant had an LSAT score in (say) the 50th percentile of last year's admitted students. Harvard would not actually get to know that the applicant's LSAT score was a 168.

     Here's the funny part. The rationale behind the proposal is that by keeping the schools in the dark about the LSAT scores of their admitted students, schools would be unable to report those scores to the U.S. News for its annual law school rankings. That's right: the people who run the LSAT don't like the fact that U.S. News asks schools to report the collective LSAT averages of their students, and their proposed answer is to not even tell the schools the numbers so they can't be reported and can't be a part of the U.S. News ranking.

     This seems strange on several fronts. First, if the people who run the LSAT think that LSAT scores are not indicative of much, then isn't the answer to get rid of the LSAT? On the other hand, if they are indicative, shouldn't schools get to know the actual scores, and shouldn't it be good that the US News collects them and uses them in the rankings? More broadly, why should the LSA people care what methodology the U.S. News decides to use?

     The WSJ article indicates the answer to the last question: the people who run the LSAT are themselves a group made up of representatives of the law schools. As the LSAC website states, "[t]he Law School Admission Council (LSAC) is a nonprofit corporation whose members are 200 law schools in the United States and Canada." Many individual law schools don't much like the U.S. News focus on the LSAT scores. While an individual school may find it hard to refuse to disclose the LSAT scores of its students to the U.S. News, the collective action through the LSAC could make it harder for the U.S. News to use LSAT scores in its ranking.

     It seems to me that the law schools need to decide: is there significant value in the LSAT, or not? If there is, they should report the scores. If there isn't, they should get rid of the LSAT altogether.


A SMALL PROBLEM WITH HOW THE WASHINGON POST / ABC NEWS POLL WAS REPORTED: The Post article reported that "More than half -- 54 percent -- feared that Bush will act too quickly to use force, while 40 percent worried that he won't move quickly enough." That's pretty odd -- 94% of people are either fearful or worried, and only 6% think Bush will do it just right?

     The trouble is that the question only gave people two options: "Which concerns you more: that the Bush administration (might move too quickly) to take military action against Iraq, or the Bush Administration (might not move quickly enough)?" 5% volunteered "neither," and 2% expressed no opinion, but the question was (presumably intentionally) structured to pressure people into expressing one or the other concern.

     This phrasing might be useful in some cases, but one should be very careful about how one reports the results of questions that are phrased this way. And simply reporting that "54 percent . . . feared" one thing and "40 percent worried" about the other is not a sound way of reporting this. All we know is that when faced with a choice between these concerns, 54% chose one and 40% chose the other -- this tells us nothing about how many people are actually "fear[ful]" or "worried" about this, and how many people aren't terribly concerned that the Administration will err at all (though of the ways in which the Administration could err, they are more troubled by one or the other).


WASHINGTON POST / ABC NEWS POLL RESULTS: They're available here. Apropos Iraq -- the subject of my earlier post about the L.A. Times poll -- here are some interesting findings:
  1. "Which political party, the Democrats or the Republicans, do you trust to do a better job handling . . . . the situation with Iraq and Saddam Hussein?" 56-30 in favor of the Republicans.

  2. "Do you approve or disapprove of the way Bush is handling the situation with Iraq and Saddam Hussein?" 58-37 approve.

  3. "Would you favor or oppose having U.S. forces take military action against Iraq to force Saddam Hussein from power?" 62-35 favor (41 favor strongly, 20 favor somewhat, 15 oppose somewhat, 20 oppose strongly).

  4. The poll then asked those who favored military action, "Would you favor or oppose . . . having U.S. forces take military action against Iraq, even if U.S. allies oppose such action?" Aggregating those who oppose military action generally and those who favor it generally but oppose it in these circumstances, the result was 52-42 against.

  5. "Would you favor or oppose . . . having U.S. forces take military action against Iraq, even if the United Nations opposes such action?" 58-37 against (calculated the way described in point 4 above).

  6. "Would you favor or oppose . . . a major U.S. bombing campaign against Iraqi military targets?" 50-45 favor (calculated the way described in point 4 above).

  7. "Would you favor or oppose . . . a U.S. invasion of Iraq with ground troops?" 50-45 oppose (calculated the way described in point 4 above).

  8. "Would you favor or oppose . . . a U.S. invasion of Iraq with ground troops, even if it means a significant number of U.S. military casualties?" 63-30 oppose (calculated pretty much the way described in point 4 above).

  9. "Do you think the Bush Administration has or has not done enough to try to win support from other countries for taking military action against Iraq?" 66-31 has done enough.

  10. "Do you think Bush has presented enough evidence showing why the United States should use military force to remove Saddam Hussein from power, or would you like him to present more evidence?" 58-40 would like more.

  11. "Which concerns you more: that the Bush administration (might move too quickly) to take military action against Iraq, or the Bush Administration (might not move quickly enough)?" 54 too quickly, 40 not quickly enough, 5 volunteered "neither."
There are lots of other questions, but a few observations:
  • Americans are hesitant about military action against Iraq, unless it's done with multilateral support, and done with little risk to American soldiers -- which, I think, means, hesitant about it unless it's done under the best-case scenario.

  • At the same time, they generally support the Administration's actions, even though the Administration has seemed willing to act unilaterally, and has been talking about actions (such as commitment of ground troops) that involve serious risk to American soldiers.

  • The answers to the questions can be treated as if they were consistent, but it seems more likely that they aren't terribly consistent -- which probably reveals that most respondents don't have firmly established, clear views on the subject.

  • My tentative conclusion: The Administration should lead, without focusing too much on the polls. Public opinion isn't an existing quantity to be deferred to, but a fluid, unsettled set of attitudes that will likely be highly responsive to firm steps that the Administration takes -- especially, of course, if those steps seem successful.
UPDATE: The original version of this post erroneously described the results in items 4 through 8 as covering only the views of those people who favored the war generally; this rested on a misreading of the data (I focused on the "(IF FAVOR)" mentioned under item 17 in the study, but missed the "(NET ALL RESPONDENTS)" notation on the summary table). Whoops!

     Many thanks to reader Dan Lewis for pointing this out. And apropos Erik Jaffe's post above (which was posted before I added this update), I hope my mistake is seen as evidence merely of stupidity, and not venality.


JOKES ABOUT FOREIGN COUNTRIES: InstaPundit excerpts a Boston Herald article that says:
John Kerry, puffed with righteous indignation, waded into the Trent Lott furor, demanding the Republican's head on a platter.

"There can never be an appearance of racism or bigotry in any high position of leadership,'' he declared.

Funny, but that's pretty much what prominent Italian-Americans were saying about Kerry the morning he tried to come off as droll on the Don Imus show, quipping, "The Iraqi army is in such bad shape, even the Italians could kick their butts.''

State auditor Joe DeNucci led the angry backlash, charging, "He wouldn't have the guts to say that about Jews or blacks,'' prompting a Kerry spokeswoman to suggest DeNucci cool his jets, that the senator was obviously being facetious. . . .
The article goes on to analogize Lott's remarks to Kerry's, and suggest that Lott should be cut more slack than he's been getting.

     It seems to me that this analogy just doesn't fly, for several reasons, chief of which is that Kerry was speaking about a foreign country. Criticizing the weakness of a foreign army may be seen as a mild insult in international circles, even when done in jest, but countries (and their citizens) generally don't take it too personally. Criticizing domestic American groups -- such as Jews or blacks -- is seen (rightly, in my view) as more insulting. Suggesting, even lightheartedly (though not quite facetiously) that American segregation might have been a good thing is seen as more offensive.

     It might be interesting to explore the reasons for this different treatment about comments about foreigners and comments about Americans. One difference, I suspect, is that people expect more respect from their own nation's officials than they do from foreign nations' officials. Another difference is that the past or present bad behavior (even cowardice) of foreign armies can be put off to the errors of politicians or bureaucrats: The Italians and the French have gotten a reputation as inept and too prone to surrender, but I doubt that the stereotype really extends to the supposed cowardice or folly of the typical soldier -- it's certainly quite possible that, with proper leadership, the French could have been as successful in World War II as they often were in the early 1800s (until that little Russian mistake), and of course the French didn't surrender in World War I, though I don't know whether they fought particularly wisely or effectively. There might well be other differences, too.

     But in any event, casting aspersions -- seriously or humorously -- on the Italian army strikes me as not really analogous to casting aspersions on Italian-Americans, Jews, or blacks, or to suggesting that America would have been better off had Strom Thurmond won in 1948.


BARRY BONDS AND DICK HELMHOLZ: A San Francisco trial judge just decided who owns the ball Barry Bonds hit for his record-setting 73rd home run the season before last. The dispute was between Alex Popov, who got his glove on the ball but then dropped it when he was mauled by a crowd, and Patrick Hayashi, who picked the ball up off the ground. The judge found that Popov never gained possession of the ball, but that he nevertheless acquired "a legally cognizable pre-possessory interest" in the ball by nearly catching it, and thus that he has as good a claim to the ball as Hayashi does. The bottom line: the ball is to be sold and Popov and Hayashi are to split the proceeds. The opinion includes an unusually long discussion of the views of law professors, and in the end the judge relies heavily on a 1983 article by Dick Helmholz, who is now at the University of Chicago. The decision makes new law, so there's a decent chance it will be reversed if either side appeals, but if it doesn't get reversed the opinion will be in the first chapter of every Property casebook published in the foreseeable future. It's the Pierson v. Post of our era.


FINISHED DRAFTING MY COPYRIGHT EXAM -- finally! What a relief (and just in time, since the exam will be administered tomorrow). Thirty questions (26 multiple choice, 4 short answer) chock full of trickiness and malice. Bwahaha!



     The Fourth Amendment, which long protected citizens' homes against unreasonable search and seizure, was among the eliminated amendments. Also stricken was the Ninth Amendment, which stated that the enumeration of certain Constitutional rights does not result in the abrogation of rights not mentioned.

     "Quite honestly, I could never get my head around what the Ninth Amendment meant anyway," said outgoing House Majority Leader Dick Armey (R-TX), one of the leading advocates of the revised Bill of Rights. "So goodbye to that one."


A MODESTLY PROPOSED MEETING BETWEEN LOTT AND JACKSON: Stephen Moore's vision of an appearance by Trent Lott on Jesse Jackson's show is fabulous (yes, literally). I worked for Moore as an intern at the Cato Institute in 1992, but I doubt he remembers me.

Call me old-fashioned, but I think Lott should be removed simply for his BET interview. Lott has insulted anyone who wants unbigoted political representation by implicitly arguing that an endorsement of affirmative action demonstrates his purity.


GREAT OP-ED BY ABIGAIL THERNSTROM in the New York Times today, on Lott but also on much more. (Thanks to Andrew Sullivan for the pointer.)


A SANTA STRATEGY: I'm at a loss when the kids ask whether Santa is real. I could say yes, but that would be lying, which is something we try to discourage. The kids will soon figure out the truth, and I have no doubt that when they do, they will remember my lie, and ask me why I lied to them. I could say no, but of course that would make them sad, not just about the loss of Santa, but about my previous failure to disclose Santa's nonexistence, which they would see as impardonable dishonesty, like not disclosing the presence in the kitchen of a large chocolate cake. So far I've been relying on a third option: I plead ignorance. This is, fortunately, a plausible strategy in the short run, because from the kids' perspective there is a large class of important things dad doesn't know, like how to fix the printer, or why people cry when they are sad, or which dinosaurs are which. My agnosticism does impose a large externality on my wife, who normally gets the hard questions dad can't answer, and in the long run it will backfire just as badly as option #1, because one day the kids will remember my claim of ignorance but no longer believe it. Sometimes I worry that if you are a child around seven or eight years old, the message of Christmas is that adults will conspire to mislead you about alleged supernatural creatures, for no reason other than their own pleasure that you are so gullible.


A FIRST FOR ME: Blogging during a final exam! (Alan Dershowitz, Legal Profession)


REGARDING THE LITTLE TOE: Howard gives a summary of all the comments he got back on his posts about grammar (see my post here) and Latin pronunciation (see my post here). He ends with a brief discussion of the expression de minimis, as in "de minimis non curat lex" (the law does not concern itself with trifles). "De minimis" outnumbers "de minimus" on Google 6 to 1 -- which is correct?

Well, let me lay down the law here. There is room for disagreement about the pronunciation of amicus. First, who knows for sure how things were pronounced in Latin? Second, there are several different dialects of Latin -- not just classical and medieval dialects, in which "amicus" ends up the same anyway, but also the historical English lawyer's Latin dialect, where I suppose they may have transformed Latin long vowels into English long vowels, and why shouldn't that control? Anyway, there's no real consensus on which of all those dialects we should consider authoritative.

However, there is no room for disagreement about de minimis. "De minimus" is incorrect Latin, no matter which way you cut it. I think it comes from people who don't know Latin but who do know that lots of words in Latin end in "us." "De minimis" is a construction called the ablative plural; you don't use the ending "us" after the preposition "de," though there is an ending "ibus" (e.g., "de gustibus non disputandum est") that does happen to end in "us."

(You may ask, how does this absolutism square with my defense of common error as correct usage in English? Unlike English, and like the Constitution according to Scalia or like Jacob Marley (for some holiday flavor), Latin is pretty much dead. To the extent it's alive, American lawyers aren't the ones speaking it. If all lawyers start to use "de minimus," then yes, "de minimus" will become a correct legal expression. But we'll have to stop calling it Latin, at least until the few actual modern speakers of Latin also start saying "de minimus" frequently, which is highly unlikely. Even then, we may choose to call it "neo-Latin," which is a term commonly used for Latin words written in the Renaissance or later, or even "post-neo-Latin.")

By the way, "minimus" means, among other things, "the little finger or toe." It also means "the youngest or lowest in standing of several students at an English public school with the same surname." Even if you were saying "regarding the little toe" in Latin, though, you wouldn't say "de minimus" but "de minimo."

UPDATE: My friend Gil Milbauer says the Jacob Marley example isn't quite right, because Marley did come back with a different message.

UPDATE 2: Mark Kleiman and others send along the following:

A Harvard law student named Rex
Had diminutive organs of sex.
When charged with exposure
He replied, with compusure,
"De minimis non curat lex."

Tuesday, December 17, 2002


IS BEER RESPONSIBLE FOR CIVILIZATION?: The Beer Institute thinks so. I'm inclined to believe them. Besides, how can you question the Beer Institute?


CHATTING OVER SEX DOESN'T MAKE PEOPLE PREGNANT: Samizdata, reporting on an English countryside protest against the Hunting Bill (link through Glenn), mentions a "Devonian middle-aged lady."

A Devonian middle-aged lady? She's downright ancient!

Brownie points to whoever can figure out what the title of this post means. A hint: Camels ordinarily sit down carefully (most peculiarly). Perhaps their joints creak. Perhaps early oiling might prevent permanent hobbling or rheumatism.


IT'S ALL GREEK TO ME: Does anyone out there know ancient/medieval Greek? If so, I'd be grateful for a translation of these couple of lines.

They're from the Basilica or Imperial Law, a Byzantine law code from the time of Emperor Leo the Wise (886-911). I was reading a book for my Roman law paper, and of course they have to go put a fragment of untranslated Greek in there, right in the middle of the untranslated Latin and the rest of the work which is in Italian. Sorry, I didn't know how to use MS Word to put all the other accents, that is, the curvy ones, the marks that go below the letters, the grave accents, and so on. Let me know if those are necessary. Thanks!

Oh, and the main thing I'll need to know -- just so a potential translator doesn't figure these words can be fudged -- is whether things are falling accidentally or are being thrown down.

UPDATE: Thanks to David Rohrbacher, classics professor at the New College of Florida, for helping me out!

UPDATE 2: Chris Monsour asks what those lines actually meant. Here goes: "Someone pruning a tree and hurling branches has harmed someone. If, on the one hand, it is on public land, then [Quintus] Mucius[, Roman late republican jurist,] pronounces the law [i.e., liability for failure to warn]; if, on the other hand, he has thrown the stones or branches of the trees in a private place, then he must be carefully examined concerning his rashness."


GENDER GAP: Here's an item from the L.A. Times poll that the L.A. Times story didn't even mention:
Q56: Suppose U.N. weapons inspectors conduct inspections in Iraq and find no evidence of weapons of mass destruction. Would you then favor or oppose invading Iraq with U.S. ground troops in an attempt to remove Saddam Hussein from power? . . .
Favor (Net)413739513630533745
Favor strongly251927322216342723
Favor somewhat161812191414191022
Oppose (Net)495653375856385543
Oppose somewhat221725251927212618
Oppose strongly273928123929172925
Don’t know1078126149812
If no evidence of weapons of mass destruction were found, men would oppose the war 55-37, but women would be evenly split (45-43 in favor, but the gap is statistically insignificant). Surely runs against the conventional wisdom of belligerent men / peaceful women. On the other hand, on many other questions, women seem less supportive of Bush's foreign policy, and ore pessimistic about the outcome of a possible war; what's more, on Q 63, which asks "Suppose President George W. Bush decides to order U.S. troops into a ground attack against Iraqi forces. Would you support or oppose that decision?," men say "support" by 64-33, and women only by 52-37. Mighty odd -- does this mix of data carry some deep hidden insight, is this a reflection of the possibility that many voters' views are rather ill-formed and may thus yield seemingly inconsistent results, or is there an error in the polltakers' reporting of the data?


THE L.A. TIMES IRAQ WAR POLL -- BURIED ITEM AND MADE-UP "CONCERN": Here's what the L.A. Times story about its latest poll says, in paragraphs #2 through #4:
[I]n the absence of new evidence from U.N. inspectors, 72% of respondents, including 60% of Republicans, said the president has not provided enough evidence to justify starting a war with Iraq.

The results underscore the importance of the outcome of U.N. arms inspections underway in Iraq if the Bush administration expects to gain clear public support for an attack.

"I'm not against [war] if it is necessary," said 59-year-old Kramer Smith, a preacher, carpenter and registered Republican from Bloomfield, Iowa, one of a number of respondents who explained their views in follow-up interviews. "But I think we need to be pretty sure before we start pulling in the big guns. If they could put their hands on evidence of real production of weapons of mass destruction, then I would say go ahead and do it." . . .
(Slate mentions this item, and I believe I heard NPR mention it this morning, too.) But then paragraph #15 says, without elaboration:
If U.N. inspections fail to turn up evidence of Iraqi weapons programs, almost half of respondents said they would oppose war. Only 41% would favor war, and 10% said they don't know whether they would favor or oppose.
Yup, that's right: If "U.N. weapons inspectors . . . find no evidence of weapons of mass destruction," 72% of all respondents say, then "George W. Bush has [not] already provided enough clear evidence to go to war with Iraq" but rather "[needs] to provide more hard evidence before war is declared on Iraq." But under the same no-new-evidence condition, only 49% of respondents would say that they would "oppose invading Iraq with U.S. ground troops in an attempt to remove Saddam Hussein from power." That means that 23% (nearly 1/3 of the 72% who think Bush hasn't provided enough clear evidence) apparently think that Bush hasn't provided enough clear evidence, but that we should go to war with Iraq anyway:
Q56: Suppose U.N. weapons inspectors conduct inspections in Iraq and find no evidence of weapons of mass destruction. Would you then favor or oppose invading Iraq with U.S. ground troops in an attempt to remove Saddam Hussein from power? . . .
Favor (Net)413739513630533745
Favor strongly251927322216342723
Favor somewhat161812191414191022
Oppose (Net)495653375856385543
Oppose somewhat221725251927212618
Oppose strongly273928123929172925
Don’t know1078126149812
Why isn't this the more relevant question to stress in paragraphs #2-4, since it goes to what Americans actually think Bush should do, and to what importance they actually attach to U.N. arms inspection, rather than just to whether they think Bush has done a good job of making his case?

     (Alternatively, maybe the juxtaposition of the 72% saying the president hasn't provided enough evidence to justify a war against Iraq, but only 49% saying they oppose the war against Iraq, suggests that some respondents haven't fully understood one or both of the questions, or thought through the issue enough to have a fixed view of the matter. If that's so, then that undermines the general value of the survey, no?)

     CONCERN: One more small item -- the story says that "Respondents also expressed concern that the president may not be getting balanced information from his advisors. Fifty-one percent of respondents said they believe Bush's advisors favor going to war; 20% said the advisors present a balanced view; and 11% said the advisors are opposed to war. Roughly a fifth said they are not sure whether Bush's advisors favor or oppose war." The numbers are in the survey, but the "concern" is entirely made up by the Times. The question reads:
Thinking now about the advice George W. Bush is given on the subject of Iraq by his advisors. . . . Do you believe that the president’s advisors present a balanced view for and against military action in Iraq, or do you think his advisors mostly favor military action, or do you think his advisors mostly oppose military action in Iraq?
First, the question is ambiguous -- people can both believe that the advisors are presenting a "balanced" (in the sense of a fair) view, and that they mostly favor military action. Second, while I suspect that most respondents would resolve this ambiguity by interpreting "balanced" as having its alternate meaning of "equally representing both sides," this would just mean that none of the possible answers necessarily express "concern": One can believe that the advisors mostly favor war, and not be at all concerned about that.

     Now I should stress that this is far from the worst misreporting of poll results that I've seen; and even if the Times has no political ax to grind here, newspapers naturally tend to highlight the most dramatic findings and the most dramatic spins. But it shows that (1) the coverage of this poll is somewhat flawed, (2) there's no substitute for looking at the underlying poll, and not just at the story, and (3) it's great to have the Web, without which I highly doubt that the raw(ish) data that I cite would have been conveniently been made available.


As Republican appointees to the United States Commission on Civil Rights, we deplore Senator Trent Lott's December 5, 2002 statement that if Strom Thurmond had been elected president in 1948 "we wouldn't have had all these problems over all these years."

The central issue on which Thurmond ran was support for racial segregation. Senator Lott thus lends credibility to the view that such
civil rights advances as President Truman's executive order mandating an end to racial segregation in the U.S. armed forces, the Supreme Court's decision in Brown v. Board of Education, the Civil Rights Acts of 1957 and 1964, and the Voting Rights Act of 1965 were grave mistakes. Certainly, in 1948, Strom Thurmond opposed all of them.

This is a particularly shameful remark coming from a leader of the Republican Party, the party of Abraham Lincoln, and the party that
supported all of these essential steps forward far more vigorously than did the Democratic Party, which at the time was the home of
congressional southerners committed to white supremacy.

The civil rights era was a shining moment in American history. We believe Senator Lott agrees, and invite him to join us in celebrating
the revolutionary change in the status of African Americans that flowed from a movement in which blacks and whites joined hands to make a better America.

Abigail Thernstrom
Jennifer C. Braceras
Peter N. Kirsanow
Russell G. Redenbaugh
Commissioners, U.S. Commission on Civil Rights
They don't call on Lott to resign, though I don't think that such calls would be part of the role of Commissioners -- but the word "shameful" communicates well, I think, the strength of their condemnation.


CHARMING. "The media were shocked, shocked to discover that prominent Republicans have a soft spot for segregation — something that was obvious long before Mr. Lott inserted his foot in his mouth." -- Today's column from Paul Krugman. I decline to link to it.


LET THEM EAT TORT: Mark Kleiman comments on my post below on the tort system. I think he and I agree.

Just to clarify: I don't believe that, "from a libertarian perspective, the common-law tort system is actually the preferred means of regulation," though I did quote "Hayek and some other libertarians" who do think so, just to make the point that there's nothing inherently wrong with bypassing the "democratic process" or good about regulating through actual regulation. Mark is right that "[t]ort litigation competes with regulation plus social insurance as a way to serve [the] two purposes [of deterrence and compensation/insurance]," and even libertarians should believe this.

What I was objecting to in my post was the tendency, often among libertarians and the right, to miss the trees for the forest and blame the entire tort system -- in particular trial lawyers, class actions, and the "lottery"-like nature of litigation -- for a problem which is really the fault of certain fixable bad doctrines. Get the ideal tort system, and it's a substantial improvement over the current tort system, one which gets rid of most of the horror stories you find among tort-reform pundits, and one which serves a lot of good libertarian ideals. This ideal tort system might still be worse than ideal regulation, either on efficiency grounds or on liberty grounds, much as I hate regulation. As it happens, what we have to choose between in reality is the imperfect tort system and an imperfect regulatory system.


REP. DAN BURTON AND DRUG DECRIMINALIZATION? Radley Balko writes (thanks to InstaPundit for the pointer) that
In a little noticed hearing of the House Government Reform Committee last week, Indiana Congressman . . . and longtime drug warrior Dan Burton made some stunning comments. In a hearing entitled "America's Heroin Crisis, Colombian Heroin and How We Can Improve Plan Colombia," Burton stopped just a hair short of advocating the decriminalization of drugs.
Balko includes a transcript of the hearing, which is very interesting reading.

     My friend and colleague Mark Kleiman, who's one of the nation's top drug policy experts, has an even more interesting analysis. I can't do it justice, but here are a few key paragraphs.
Making heroin legal would benefit crime victims and current heroin addicts at the expense of marginal heroin addicts -- those not addicted under current policy who would become addicted if it were legal. It would also benefit those who would otherwise have become involved in heroin dealing (which is a superficially attractive but predictably disastrous career choice) and who under the new conditions would stay within the legal economy. Since the crime victims, drug dealers, and current addicts are concentrated in poor neighborhoods, where heroin is already readily available, and the marginal addicts are mostly non-poor, the bulk of the benefits of legalization go to the inner city and the bulk of the costs go to people who voted for Dan Burton.

Now given a straight-up choice, I'd rather protect people from one another than from themselves, and would be reluctant to help the better-off at the expense of the worse-off or whites at the expense of blacks and Latinos. If legalizing heroin led to only a 50% increase in the number of heroin addicts, I'd be for it.

But what if it led to a fivefold increase, from the roughly 1 million we now have to 5 million? That would still be only a third of the number of problem drinkers, which is the best estimate I have of the number of people likely to get in trouble with a legal intoxicant that has a significant "capture rate" from occasional use to abuse and dependency. (Heroin would probably be less popular than alcohol even if it were legal, but it would probably have a higher "capture rate.") If that were the result, I think I'd prefer to stick with our current laws.
Read the whole thing -- I'm not sure that I fully agree with it, but it's much worth thinking about.


AMERICAN LAW INSTITUTE: I was delighted to hear today that I've been accepted as a member of the American Law Institute (the organization that does the Restatements, some Model Codes, and other cool projects).


IDIOTS: A cautionary tale about the importance of understanding the big picture before judging the rationality of people's responses (from Gerd Gigerenzer, Adaptive Thinking: Rationality in the Real World p. 265 (2000)):
A small town in Wales has a village idiot. He once was offered the choice between a pound and a shilling, and he took the shilling. People came from everywhere to witness this phenomenon. They repeatedly offered him a choice between a pound and a shilling. He always took the shilling.
The idiot!


ELCOMSOFT NOT GUILTY: A jury in San Jose has found the Russian software company ElcomSoft not guilty of violating the criminal provisions of the Digital Millennium Copyright Act:
Jury foreman Dennis Strader said the jurors agreed ElcomSoft's product was illegal but acquitted the company because they believed the company didn't mean to violate the law. "We didn't understand why a million-dollar company would put on their Web page an illegal thing that would (ruin) their whole business if they were caught," he said in an interview after the verdict. Strader added that the panel found the DMCA itself confusing, making it easy for jurors to believe that executives from Russia might not fully understand it.
    Why does it matter whether the company meant to violate the law, you might wonder? Here's a bit of background. The general rule in criminal law is that intent to violate the law doesn't matter. As they say, "ignorance of the law is no excuse." However, Congress occasionally limits criminal liability to "willful" violations of the law. Although there is some dispute as to what it means to violate a law "willfully," the general rule is that a willful violation means a violation that is knowingly and purposely in violation of the law itself. Willful violations are an exception to the usual rule that ignorance of the law is no excuse: when Congress limits a crime to "willful" violations, ignorance of the law is an excuse. The government must prove not only that the defendant violated the law, but that the defendant knew he was violating the law.

    The DMCA is one of those laws that limits criminal prosecutions to willful violations. In other words, Congress only wanted violations of the DMCA to be criminal when the person actually knew that they were violating the law and did it anyway. Because the San Jose jury was not convinced beyond a reasonable doubt that ElcomSoft knew they were violating the law, the jury acquitted. Why did Congress limit the criminal reach of the DMCA to "willful" violations, you might wonder? Because these laws are hard, and Congress didn't want someone to go to jail when it wasn't relatively clear what the law was. That's the explanation that the courts have offered in the area of tax law, another complex area of law that allows criminal prosecutions only for "willful" violations. Here's an excerpt from the Supreme Court's decision in Cheek v. United States, 498 U.S. 192 (1991), a case that interpreted "willfully" in the context of the federal tax laws:
The proliferation of statutes and regulations has sometimes made it difficult for the average citizen to know and comprehend the extent of the duties and obligations imposed by the tax laws. Congress has accordingly softened the impact of the common-law presumption by making specific intent to violate the law an element of certain federal criminal tax offenses. Thus, the Court almost 60 years ago interpreted the statutory term "willfully" as used in the federal criminal tax statutes as carving out an exception to the traditional rule. This special treatment of criminal tax offenses is largely due to the complexity of the tax laws. 199. The same goes for the DMCA.


EMINENT DOMAIN IN MASSACHUSETTS: Also, the Boston Globe reported on Sunday (just getting around to reading the articles today) that the state acquired a parcel by eminent domain for the Big Dig. Actually, it was a settlement -- the state said the land was worth $17.7 million, while the owner, Guilford Transportation Industries, said it was worth $36.7 million. They ended up settling for $23.1 million. But here's an interesting tidbit on why the state wanted to settle:

[Attorney Mark] Bourbeau [who represented the state] said it might have been risky to allow the Guilford case to go to a jury, in part because juries have awarded generous amounts to landowners who have their property taken by the state for a major project.

Makes me feel better about Massachusetts juries. (Also, apparently a Massachusetts case (the article doesn't say which one) prevents the state from arguing that the landowner should get less because his land is being used for transportation purposes.)


GAMBLING IN MASSACHUSETTS: Looks like Boston Globe archives aren't available for free on the Web, but an article on Sunday reported that the police aren't opposing plans to allow casinos in Massachusetts like they've opposed them in the past. (Since 1989, the article says, "28 states have joined Nevada and New Jersey on the roll of states with casino-style gambling.") This is good news, since the evidence linking legalized gambling and crime seems somewhat shaky.


NEWS ABOUT THE CATHOLIC CHURCH: On his return to New York, Cardinal Law chose The Adventures of Pluto Nash as his in-flight movie.

Also, Charles Sennott, the Globe reporter who chatted with him on the airplane, says:

Now Law's fight -- his struggle to reckon the mistakes he has made and the hurt he has caused -- will be an internal one. He will no longer have the pulpit from which to pastor or the platform of the power from which to repair the extensive spiritual and financial damage that the church has suffered through the crisis.

Now, "pastor" as a verb is fine, but "the platform of the power . . ."? Sounds strange to me.


THE SPIRIT OF LIBERTY: I recently had the opportunity to re-read Learned Hand's famous Spirit of Liberty speech, delivered in the midst of World War II at an event in Central Park. It's a short speech that is both remarkably eloquent and rich with meaning. Perhaps the most famous line:
The spirit of liberty is the spirit which is not too sure that it is right[.]
This section comes in a close second:
I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.
I've read this speech at least one hundred times, and it gets me every time. You can read the whole thing here.


YOU'VE GOT AN AMICUS IN PENNSYLVANIA: Howard wants input in how to pronounce amicus (as in amicus curiae and amicus brief). He says there are there pronunciations out there:

  • to rhyme with "hammock us" (or sound like "Atticus" or "Alabamicus"?);

  • to rhyme with "ficus" (Howard says only Breyer does this so, he says, maybe it's a Harvard pronunciation);

  • to rhyme with "seek us."

My copy of Black's Law Dictionary lists #2 and #3, in that order, and not #1. In Latin, the correct pronunciation is #3 only, because the i in "amicus" is what we in the biz call a long vowel.

UPDATE: Reader Glen Whitman says his Latin teacher said a "u" in Latin should be pronounced "oo". My understanding is that a short, unstressed "u" is pronounced like a schwa, that is, the way we'd pronounce it in any of the three versions above, so my favorite, version #3, is actually good Latin. Glen is "in favor of either consistent Latin pronunciation or consistent Anglicization." I don't know if I buy that as a general theory, but it's hard to apply in this case, since words that look like "amicus" don't show up naturally in English. The "rule" for Anglicization of foreign words, to the extent there is one, includes some accommodation to the foreign pronunciation; the question is just how much.

UPDATE 2: Rory Miller says the unstressed "u" is somewhere in between the schwa and the "oo", more like in "put." He wishes full Latinization would catch on ("Nicaragua!") but admits this is unlikely. Soob-poi-na!


ANOTHER FALSE ARREST FROM THE LANGUAGE POLICE: Ariana Huffington, in an apparent bid for the William Safire language-politics-pundit slot, has an op-ed complaining about the misuse of apostrophes to indicate plurals. Two paragraphs are devoted to mocking the headline "Saudis Seize Kuwaiti in Shooting of G.I.'s, Who Are Recovering" -- "G.I.'s," Huffington says, can only be a possessive ("belonging to G.I."), and not a plural. A "grammatical gaffe," she calls it, and while parts of the column are fairly light-hearted, she does seem to be claiming that this is really an Error.

     One problem with the Language Police, though, is that they're often mistaken even by their own prescriptivist standards -- standards that rest on the notion that proper usage is set by the Authorities, and that anything that departs from these authorities is a "gaffe." Here, for instance, if we check the authorities, we find that the apostrophe plural is quite acceptable (though not required) when you're pluralizing an abbreviation such as "G.I." My Webster's Dictionary of English Usage (1989), p. 109, says that
The apostrophe is sometimes used with -s to form the plural of letters, numerals, abbreviations, symbols, and words used as words. . . . [This] is not now as common as pluralization with simple -s[, though a] dissent can be found in Safire 1980; he prefers 1980's . . . .
Likewise, on p. 746, the dictionary points out that both the apostrophe-s form and the simple-s form are just two different styles, one older and one newer.

     New Fowler's Modern English Usage (R.W. Burchfield, 3rd ed. 1996), takes the same view (p. 602), describing the old style and the new style without suggesting that either is wrong. The Harper Dictionary of Contemporary Usage (William & Mary Morris ed. 1985) takes the same view (p. 470) as to plurals of letters and numbers, and says nothing about plurals of abbreviations, but this seems at least not inconsistent with Webster's and the New Fowler's. The Oxford English Grammar (1996), p. 550, also talks only about plurals of letters and numbers, and doesn't mention abbreviations; it endorses the apostrophe-s plural as to letters "if doing so avoids confusion," but says that "it is better to add simply 's'" in instances where no confusion would result from a simple-s. Even this source, though, doesn't say that the apostrophe-s is wrong in such cases, only that it's "considered unnecessary."

     So there's no "gaffe" in "G.I.'s"; I've seen plenty of gaffes in other sources that use apostrophe-s to indicate a plural, but there's none in the source that Huffington chose to mock. Seems to me that if the Language Police want to publicly accuse someone (even an anonymous someone), they should be quite sure that their targets are in fact guilty.

     And more broadly, one problem with many (though not all) prescriptivists' view of the language is that they assume that there's always just one proper rule. "Both are correct" isn't a frequent phrase in their vocabularies. And yet "both are correct" is often the right rule, even under the prescriptivist model.

Monday, December 16, 2002


ENGLISH USAGE BY MAJORITY VOTE: Howard cites the American Heritage Book of English Usage for the "possessive + gerund" construction. (That is, "I don't approve of your friend's going there," not "of your friend going there.") The whole vote counting on the usage panel puts me off a bit, but I can see why they do it. More importantly, they say that 66% of the panel rejects possessive-less constructions like "Imagine a child with an ear infection who cannot get penicillin losing his hearing," but without suggesting how to fix it! Surely you shouldn't put "child" in the possessive, but what's their preferred fix?

UPDATE: Reader Peter Schmid suggests the ear infection sentence has too much going on between the child and the losing his hearing, and while context makes it clear this time, it doesn't always. For instance: "Imagine a child who broke his leg playing contact sports." Is the broken-legged child playing sports, or did the child break his leg as a result of playing? This can be fixed by reworking the sentence: "Imagine a child's playing contact sports with a broken leg" or "Imagine a child's breaking his leg while playing contact sports" or similar. Similarly, the sentence about the ear infection might be reworked to "Imagine a child's losing his hearing because he couldn't get penicillin for his ear infection." My claim isn't that the sentence is unfixable, but that the American Heritage Book of English Usage left it at "66% of our panel didn't like this sentence." First, the majority vote has no normative force in itself; second, it's all the more unpersuasive when you don't give a reason why it's wrong. Fowler, for instance, stood alone in his views on the English language, and so does Garner -- but they give good reasons why they're right or why their opposition is wrong, and that's why they're persuasive.

UPDATE 2: On Eugene's Ariana Huffington story above, I actually learned in school that the correct way to pluralize weird things like abbreviations or numbers was to add an apostrophe. Since then, I've learned that other usage guides do it differently. But both have always seemed reasonable to me.

UPDATE 3: Reader Donald Rintala says, soundly, that "The real criterion for whether a sentence is grammatically correct is whether it sounds OK to a native."

UPDATE 4: Boy, did Update 3 get people up in arms. First, a clarification, to make my friend Gil Milbauer happy. By "sounds," I mean "looks" when the issue is apostrophes. By "a" native, I mean some form of "most, in the group you're trying to communicate with." Thus, a sentence that's gramatically correct when addressing Ph.D.'s (look, an apostrophe for the plural!) becomes incorrect when addressing inner-city youths, because essentially, they speak different languages.

Reader Stephen Quick says this is the wrong criterion entirely, because his kids come up with all kinds of incorrect things and say their teacher said it was correct, "[w]hich only proves that ignorant teachers make ignorant students." I agree, except that these students' ignorance, if widespread, becomes the correct usage of tomorrow. No harm, no foul. Note that I'm not in favor of teaching things that are awkward or confusing -- the goal of language is communication, and I'm in favor of criticizing any usage on those grounds. After all, I am an editor! But I would be thrilled if we all forgot the "who"/"whom" distinction tomorrow. Also, Steve thinks the sentence in the first Update, about losing one's hearing, should be without the possessive -- "imagine a child losing his hearing," not "a child's." That sounds great to me as a reworking, because I have no particular love for the possessive/gerund rule, though we do use it at the Harvard Law Review.


DUDLEY HATE-CRIME ENFORCER: Also through Glenn, more on (1) racist comments in Canada and (2) the repressive Canadian regime, under which praising Hitler is a hate crime (see also here) that carries a money fine and/or imprisonment. But here's the main quote, from Chris Axworthy, attorney general of Saskatchewan:

We're referring this to the Royal Canadian Mounted Police to see whether or not charges should be laid.

Whoa! They have Mounties enforcing the hate crime laws! They may be on an evil mission, but Mounties are still cool.


REGULATION THROUGH LITIGATION: Ben Stein discusses "how to ruin American enterprise." His list of ways includes allowing schools to fall into decay, creating a blame-the-other-guy culture, sneering at hard work and thrift, and so on. (Link through InstaPundit.) Glenn says he's more optimistic than Stein is, but at least I agree that most of Stein's claims, if true, are probably bad. (Stein's title implies bad for American enterprise, but I presume he only means bad for American enterprise in ways that are also bad generally.) But here's my quibble, with his #2 item:

Encourage the making of laws and rules by trial lawyers and sympathetic judges, especially through class actions. Bypass the legislative mechanisms that involve elected representatives and a president. This will stop -- or at least greatly slow down -- innovation, as corporations and individuals hesitate to explore new ideas for fear of getting punished (or regulated to death) by litigation for any misstep, no matter how slight, in the creation of new products and services. Make sure that lawsuits against drugmakers are especially encouraged so that the companies are afraid to develop new lifesaving drugs, lest they be sued for sums that will bankrupt them. Make trial lawyers and judges, not scientists, responsible for the flow of new products and services.

All litigation is regulation. When you get injured by someone, sue, and get paid, you're "regulating" the defendant, in the sense that the government is willing to (at your request and given your proof) punish the defendant for something he did. If it works "right," potential defendants take that into account when making decisions that might lead to accidents, so litigation works not only as compensation after the accident but also as a prospective rule to help avoid accidents -- regulation, if you will. Since the tort system doesn't care whether your injurer is a person or a company, the tort system is basically a form of regulation of businesses.

And what's wrong with that? If corporations or individuals create new products and services that injure people, it seems to make sense for them to pay -- on the very libertarian theory that you should pay people for the harms you cause them. Hayek and some other libertarians love the common-law system for this individualist, rights-vindicating feature -- precisely because it bypasses legislatures and the president, who might otherwise ban things that no one's complaining about, or protect politically powerful business interests by insulating them from having to compensate their victims. (From a Hayekian perspective, this is the market's decentralized knowledge production at work -- senators don't know who's harmed, but plaintiffs do!) And maybe putting scientists on top would also increase injuries if, for instance, scientists have a pro-innovation bias and don't care as much about injured people.

Sure we'd be helping American enterprise (as Stein's headline says) if we protected it from its victims, but we'd be helping it do bad stuff, since you really can't know whether your activity is on balance beneficial except if you get all the benefits and paying all the costs. (This is the classic Austrian economics line.) The company captures the benefits through the purchase price for its products; it should pay the costs if third parties are injured. (This admittedly isn't the case with many products that have positive externalities, like vaccines, where the non-vaccinated benefit every time someone gets vaccinated.)

In fact, to the extent liability is based on negligence -- that is, if you injure someone through sheer accident, having taken all precautions, you pay nothing -- injurers pay too little. Also, to the extent people don't sue for tiny harms, injurers also get off too lightly, so the class action mechanism, which aggregates similar claims (but doesn't change any of the substantive legal standards), seems like a positive development. Not only does it make companies pay for individually small but collectively large harms, but as David Rosenberg points out, it also gives plaintiffs better incentives to invest in proving their cases.

So, is there anything wrong with the tort system at all? Here's a whole list of potential problems which, if true, make defendants pay too much:

  • Junk science;

  • Irrational and/or redistributive juries;

  • Frivolous and nuisance suits;

  • The expense of the legal process itself;

  • Punitive damages;

  • The inability to insulate yourself from liability through disclaimers and waivers.

I'm sure there's more out there (for instance, for all I know, maybe courts are too unwilling to blame the victim in cases of contributory negligence), but that's a start. So the problem with the tort system is bad doctrine -- people should be able to make binding agreements not to sue in exchange for cheaper products; it should be difficult for junk science to be admitted; maybe juries should be more controlled in what they see or what questions they can decide; there should be penalties for frivolous suits; we shouldn't have punitive damages; and so on. (And I might also support other reforms that would increase liability, like switching from negligence liability to strict liability, requiring that injurers pay somewhat more than the market value of the harms they cause, and possibly increasing the monetary value of life.) But many of the cases out there, including many class actions, are good cases, and remedies that just clamp down on the use of the judicial system get rid of both good and bad cases.

So it seems the proper argument against the tort system is that we should get good doctrine and then have plenty of lawyers and lawsuits bringing all these cases that should be brought. But, one might argue, changing doctrine is really hard while getting angry at lawyers is easier, so as a second-best solution, we might as well limit the tort system, at least while we wait to get good doctrine. (Maybe this is right. But is it really true that changing doctrine is harder than limiting the use of the tort system? It's the same constituency you're fighting against either way.)

But this has little to do with disliking class actions, disliking trial lawyers, or liking the work of legislatures.

UPDATE: Reader Fritz Anderson says that Stein's complaint "is that the tort system is becoming a plaintiff's lottery, in which defendants can find themselves subject to new and surprising law, ex post facto. If a drug manufacturer cannot predict the standard of conduct it will be held to -- if the regulation to which it must answer is not revealed until years later in a trial court -- then only the few drugs that can sustain the litigation risks will ever reach patients. That is the cost to society when courts regulate instead of adjudicate."

First, let me ignore the phrase "plaintiff's lottery," which it seems to me doesn't carry any informational content other than that sometimes plaintiffs win and sometimes they lose, which we already have in the "new and surprising law" part. Well, the revelation of new law ex post facto has been part of the tort system as long as we've had a tort system in America. Tort law has always been judge-made, and continues to be today, except in a handful of instances where legislation changes the result. What this means is that you never know the rule for sure until you're sued.

But maybe this violates the rule of law? Well, Hayek, who I think went overboard among libertarians in reducing all of liberty to the rule of law, specifically believed that this feature of the tort system was good. Why? When legislatures made rules, they were being subject to the Fatal Conceit and trying to run everything on imperfect information, so it definitely violated the rule of law for them to make retroactive rules. But when judges made law in the context of an adjudication, they were merely "discovering" rules that were always there, implicit in people's moral understanding. Moreover, this process conforms with Hayek's view of the decentralized rulemaking system: you don't really know whether a particular behavior is wrongful until you see it in a particular context; the tort system allows these rules to evolve on a case-by-case basis, with the possibility of reversal if the situation gets out of hand.

Now obviously, Hayek is rejecting the Legal Realist perspective which says that judges are making it up just as much as legislatures, and you can also quibble with the supposed market-like nature of the tort system. All I want to point out here is that (1) the tort system has been subjecting people and industry to new rules ex post facto for centuries, and (2) it's not obvious (though not inconceivable) that such a system violates the rule of law.


CATCH THE BABY! Fellow lawprof Myron Moskowitz points to the Michael Jackson Catch-the-Baby Game. Simple but amusing.


ADVICE FOR HISTORIANS AND THEIR CRITICS: In 1759, after Cadwallader Colden (the on-again, off-again Lieutenant Governor of New York) had criticized William Smith's recent "History of New York," Smith responded in a letter to Colden:
In historical Accounts it is scarce possible to avoid Mistakes. As the Memory of them, so the Proofs relating to Facts, ordinarily decrease in Proportion to our Removes from the Period of Action -- all therefore that can be done, is to make use of the best Lights that offer, and to permit Nothing to slide into a Work, unsupported by the best Evidence, which the Nature of the Thing will admit. He that writes under these Guards, will escape all just Censure, even tho' he should happen to err; And yet every Man has a Right to correct him, if it be done with Decency and Candour. But an abrupt Intrusion upon him, with an angry Accusation unhappily defeats the very Design of the Corrector, by rendering his Disinterestedness suspected; the unbiased Advocate for Truth being generally calm and unruffled.
The Letters and Papers of Cadwallader Colden, vol. V, 1755-1760, Collections of the New-York Historical Society for the Year 1921 (New York, 1923).


ELITE LAW SCHOOLS, NEIGHBORHOOD LAW PRACTICES: In response to the efforts by some schools to train students to open neighborhood law practices, Sasha writes below:
I like the recent efforts to start neighborhood law practices. But how realistic is this, if you're trying to attract good law students from good law schools? Business lawyers make a ton of money because, the way things are today, millions of dollars ride on their decisions. The best law students are attracted to the money, and who can blame them?
I don't think the law schools are pushing neighborhood law practices to attract "the best" law students. Rather, I think they recognize that such practices open some doors for their graduates, both to help their careers and to help the community. At many law schools, only the top graduates can get jobs at the big name law firms. And public interest jobs are even more competitive than law firm positions (so much for the best students being attracted to the money). The best thing about neighborhood law practices is that any one can open such a practice, and a young law school graduate can offer services to people who might not otherwise afford an attorney.

     UPDATE: In re-reading Sasha's post, I realize that I may have misread his comment-- it may be more focused on how to persuade elite law school graduates to work in neighborhood law practices, rather than the merits of the practice as a recruiting tool for law schools. If so, my apologies-- and two reactions. First, the fact that low-paying public interest jobs tend to be more competitive than high-paying law firm positions suggests that money isn't everything. Second, I'm not sure why it matters whether "the best students from elite schools" participate in neighborhood law practices. Is the thinking that they make the best lawyers? I'm not so sure about that.


LAW REVIEW AND PEER REVIEWS CONTINUED: I would like to thank all of those who have offered comments and critiques on my earlier post "Why are there so few legal Bellesiles?", including those by my co-bloggers Sasha and Orin. I agree with much of what they wrote, but would add a few comments.

I should be clear that my claim was not that bad legal scholarship is always caught, rather that it is far more likely to get caught than scholarship which is merely subject to peer review. I base this conclusion, in part, on my observations and experience as a law review editor, as well as a contributor to both peer-reviewed and non-peer-reviewed journals. Here's why.

First, the peer review process has its own problems, and I get the sense these problems are greatest outside of the "hard" sciences. For a brief discussion see footnote 97 in this article, in which the authors cite scholarship suggesting "the process screens out articles based on the reviewer’s attitudinal predispositions rather than methodological validity." The Bellesiles scandal itself provides ample evidence for this point, as does the infamous Alan Sokal hoax in Social Text.

Second, while student editors at law reviews will not review statistical methodologies and will often trust the author's representations of archival research, they typically do demand that authors produce all of the sources that are cited. In the case of Bellesiles, this would have prevented dozens of misstatements and misrepresentations that appear throughout his work. I may have exaggerated my point in my initial post insofar as I suggested that the law review process would have caught all of Bellesiles errors - or would have uncovered the misuse of probate data - but I think there is little doubt that the law review process would have caught far more than the peer review process did.

Third, I do not think that it is a great failing of law reviews that they will occasionally publish articles that (in Sasha's words) "make no sense" (though I do feel that this could be a problem in the scientific context). I feel comfortable with my ability to read legal articles and evaluate the arguments presented therein, provided I have some assurance that the supporting material is accurate. Sure I may have to wade through mountains of dreck before finding the real gems, but I am unconvinced that academic peer review would serve as an effective filter for law reviews (even though it may be a reasonably effective filter for science journals). If this is the trade-off for ensuring greater (though by no means perfect) accuracy in citations, I think it's a good deal. To be clear, I am not arguing that all fields adopt the legal model. I do wish to suggest, however, that the law review process serves the legal academic community rather well - or at least as well as any available alternative.

On a related note, Cronaca thinks I overestimate the amount of academic fraud, and another reader points out this article on how scientists often fail to read the articles they cite.

One last thing, another reader claims this guy is the legal Bellesiles.

CORRECTION: An astute reader notes that the Sokal hoax is not on point. It seems the Sokal article was not peer-reviewed prior to publication.


VERNON'S TOAST: Here is the toast given by Vernon Smith upon receiving the Nobel Prize in Economics.


INTERESTING LICENSE PLATE: My friend Tim Sandefur's license plate says "198US45". Tim is also the author of The Common Law Right To Earn a Living, 7 Independent Rev. 69 (2002), and, Cato-like, ends his e-mails with "Also, I think the Slaughter-House Cases should be overruled."


WHO ARE THE PEOPLE IN YOUR NEIGHBORHOOD, IN YOUR NEIGHBORHOOD, IN YOUR NEIGHBORHOO-OOD: I agree with Orin below; I like the recent efforts to start neighborhood law practices. But how realistic is this, if you're trying to attract good law students from good law schools? Business lawyers make a ton of money because, the way things are today, millions of dollars ride on their decisions. The best law students are attracted to the money, and who can blame them? Many of them have huge debts to pay off; corporate work is definitely highly socially productive (even if it's not social-justice activism), so students who go into that don't have to feel ashamed of their work; and why should they wear the hair-shirt? As my legal ethics professor says -- Alan Dershowitz, whom I greatly respect -- you're entitled to be rich.

Maybe the answer is to encourage lawyers to do more pro bono (or what the article calls "low bono") work:

[B]ig law firms are slowly stepping up their commitment to free services, after 10 years of pulling back. Yet their lawyers still spend less than 42 hours a year doing pro bono work, far short of the profession's guidelines to perform at least 50 volunteer hours each year. Even during more charitable times, the bar association says, most of the free or less costly work is handled by small firms and solo practitioners, making them a natural target for the consortium's sights.

Trying to get many lawyers to do a few pro bono cases may be a better strategy than convincing more people to take a very substantial salary cut to provide services to the poor. (Or at least it might be a viable complementary strategy, especially if you want to get the best students from elite schools participating -- if a decent proportion of high-income lawyers each spend an extra hour, that's like a few low-income lawyers working full time.) The Institute for Justice, for instance, has a network of lawyers who are willing to occasionally do a pro bono case. And this is IJ, an ideological organization. Some people are willing to work full-time for cheap for ideological groups like IJ or the NAACP or Greenpeace, but we're talking about drawing up contracts and wills and dealing with small personal injuries, which far fewer people are fired up enough about to forego the high salaries they could otherwise be getting.

What the article doesn't mention -- and I don't blame it for this, because this isn't what the article is about -- is (1) the importance of simplifying the law, so that ordinary people aren't as reliant on lawyers, and (2) deregulation of legal services, so that more people can handle simple legal transactions without having to spend the big bucks and three years at law schools.

UPDATE: Glen Whitman suggests that lawyers might be able to give money to pro bono or low bono outfits instead of doing the work themselves (on the one hand, high-paid corporate lawyers might be better lawyers; on the other hand, they might not be so good at legal services for the poor which are unfamiliar to them), thus "satisfy[ing their] ethical obligations with cash."


4-4 SPLITS ON THE SUPREME COURT: "An evenly divided Supreme Court upheld a judgment Monday against a California farmer who accused the government of going overboard to protect wetlands. The Supreme Court, on a 4-4 vote, affirmed Angelo Tsakopoulos' punishment for converting wetlands into vineyards and orchards without obtaining a federal pollution permit." (Gina Holland, AP. Little-known fact: Gina's name is pronounced "Jenna" rather than the more common pronunciation "Jeenna.")

     But 4+4, you say, is 8, not 9. True -- Justice Kennedy recused himself, not just from the decision on the merits, but also from the decision to agree to hear the case (i.e., the decision to grant certiorari). According to the Sacramento Bee, "Kennedy is known to be acquainted with Tsakopoulos and his family."

     So does it mean that the Justices should have denied certiorari in the first place, since they knew that the case might end up 4-4, which means the Justices' time and the lawyers' time and money would essentially be wasted? (An affirmance by an equally divided court sets no precedent, nor changes the outcome of the case below.) Or would that have been unfair to the petitioner, who would be denied an opportunity to have his case considered, and possibly resolved, if the votes don't break down 4-4? Or is it just too hard or unseemly for the Justices to essentially count likely votes before the briefs are filed, in order to estimate the likelihood of such an unproductive split?

     I doubt that it's possible to answer these questions in the abstract. Among other things, there's the question of how urgent the need to consider the issue seems to be, and how likely it is that another case will present the same issue again soon. Still, you can tell that there are some mighty annoyed litigants and court-watchers out there today.


PLURAL OF BELLESILES, PART 2: Reader Tom McCarthy points me to Paraskevaides v. Four Seasons Wash., 292 F.3d 886, 887 n.1 (D.C. Cir. 2002), where Judge Sentelle writes:

The author recognizes that the rules of grammar dictate that to create the plural form of a proper name that ends in an "s," one must add an "es." E.g., The Chicago Manual of Style § 6.5 (13th rev. ed. 1982). The plural of "Paraskevaides" would therefore be "Paraskevaideses." However, the author finds the name "Paraskevaideses" so distracting that he chooses to ignore the rule. See In re Gaston & Snow, 243 F.3d 599, 601 n.1 (2d Cir. 2001). No such willingness to ignore the rules of the English language should be imputed to Judge Garland or Senior Judge Silberman [who also signed on to the opinion].

Let's check out the cited case there, In re Gaston & Snow, 243 F.3d at 601 n.1, where Judge Van Graafeiland writes:

The author is aware of the grammatical rule which dictates that to create the plural form of a proper name that ends in an "s" one must add an "es." E.g., The Chicago Manual of Style § 6.5 (13th rev. ed. 1982). Thus, the plural of "Erkins" would be "Erkinses." However, the author finds the name "Erkinses" so distracting that he chooses to ignore the rule. No such willingness to ignore the rules of the English language should be imputed to Judges Winter or Calabresi [who also signed on to the opinion].

Now I think the case for avoiding Paraskevaideses is stronger than the case for avoiding Erkinses (the latter doesn't distract me at all); by way of comparison, the Chicago Manual of Style does have an exception to its normal rule for possessives (always add an 's even if the word already ends with an s) for Jesus, Moses, and Greek names ending in "es."

Where does Bellesiles fit into all this? I think it's more like Erkins than like Paraskevaides myself; on the one hand, it ends with an "es," but on the other hand, it's not Greek (which means that the "es" isn't stressed). Of course, if you go with my Latin suggestions below, you still get "Bellesiles" as a plural or "Bellesilices"/"Bellesilides."


MORE ON THE NUREMBERG FILES CASE: It's a CVSG! Yes, a CVSG -- the court just issued an order Calling for the Views of the Solicitor General. Technically, the order says "The Solicitor General is invited to file a brief in this case expressing the views of the United States," but clerks and Supreme Court lawyers call this a CVSG. The Solicitor General will file the brief, and the Court will then consider the petition for certiorari in light of both the parties' briefs and the SG's brief.

     The reason for the CVSG, presumably, is that the litigation here challenges the interpretation of federal statutes (the Freedom of Access to Clinic Entrances Act and the Racketeer Influenced and Corrupt Organizations Act), and the constitutionality of one particular interpretation of those statutes, but neither party is the federal government. The Solicitor General's office might therefore be able to present the government's own perspective on the matter.

     I don't think one can infer much from this order about the Court's views on the merits; Justices on either side of the issue may be quite happy getting some more input from the SG's office. And I for one have a hard time guessing what the SG's office will say. If the claim here was that the law is unconstitutional on its face, the SG's office would almost certainly argue against that; but here, the SG's office could argue that the law constitutionally applies to threats, but the particular speech here was not a constitutionally unprotected threat, and the law therefore shouldn't be read as applying to it. Hard to predict this, I think.

     In any event, we do know that this will delay the Court's consideration of the case, and that if the Court does eventually agree to hear the case, the hearing will happen next Term rather than this one. It thus becomes much harder for the Court to decide this free-speech-or-punishable-threat case alongside the other free-speech-or-punishable-threat case, Virginia v. Black (the cross-burning case); but I still suspect that the Court's decision in Black will be made with an eye towards the Nuremberg Files scenario. The two cases are not by any means identical, but they do raise similar issues.

     And I stick by my earlier prediction: Ultimately, "either the Justices will grant certiorari, or . . . one of the Justices will write a dissent from denial of certiorari."


LAW SCHOOLS AND AFFORDABLE JUSTICE: Today's N.Y. Times has a very interesting article on recent efforts by a few law schools to train their graduates to start neighborhood law practices. The idea: young lawyers can serve the public interest by offering low-cost legal services to local individuals, rather than by working for big corporate law firms. I think this is a great idea.

     Why didn't anyone think of this before? At the end of the article, Stanford law professor Deborah Rhode offers an explanation: "these issues are low on the academic pecking order, and not what get most faculty recognized." She continues: "The truth is, legal education is partially responsible for the disconnect between what ordinary Americans need and what educated lawyers can supply." Yep.


HOW NOT TO PERSUADE PEOPLE ABOUT ANTI-SEMITISM: A couple of weeks back, the American Jewish Committee put out this press release:
American Jewish Committee Exposes Inherent Anti-Semitism in Campus Criticism of Israel . . .

The American Jewish Committee (AJC) exposes and counters the widening pattern on American college campuses of anti-Semitism, often camouflaged in criticism of Israel, in a new publication, Why Campus Anti-Israel Activity Flunks Bigotry 101.

"Too many complaints about Israel are unmistakably driven by anti-Semitism. The current divestiture and 'boycott' movements are a case in point," says Kenneth Stern, the American Jewish Committee's specialist on anti-Semitism and extremism, and author
of Bigotry 101, which is available at . . . .

Bigotry 101 points out that a sign of bigotry is when people try to use code words to "explain" away their defamation of a group. "Whites opposed to the civil rights movement knew it was 'politically incorrect to say they were anti-black, so they used code words such as 'anti-busing,' " Stern notes. "Right-wing anti-Semites who want to maintain the fiction that they are not bigoted use code words such as 'international bankers.' The word 'anti-Zionist' is of the same mold in the lexicon of the left, and it should fool no one. Anti-Zionism is anti-Semitism." . . .
It's arguments like this that remind me to be cautious of claims that opposition to Israel is necessarily anti-Semitic (though, as I've blogged in the past, these claims are indeed sometimes right). True, some opponents of busing were racists -- but others opposed busing because they thought it was bad policy. In fact, while I'm no expert on the subject, to my knowledge busing was often bad policy, a well-intentioned but often counterproductive attempt at social engineering that didn't properly take into account many white parents' quite legitimate concerns about the education and safety of their children.

     Condemning all opposition to busing -- or affirmative action or welfare or what have you -- as racist because "anti-busing" is somehow a "code word" for racism is wrong, and it's counterproductive, because it stifles an important debate. And such blanket denunciations remain wrong and counterproductive even if indeed some opposition to busing is racist.

     If anti-Zionism is indeed to anti-Semitism as anti-busing sentiment is to anti-black sentiment, then anti-Zionism, like anti-busing views, is often quite legitimate. As it happens, I think that anti-Zionism does often stem from anti-Semitism, because it often reflects (as other parts of the press release point out) a double standard that is only applied to Israel and not to other countries that are much more repressive. But the anti-busing analogy weakens the AJC's case more than it strengthens it, both logically and politically -- and I suspect that it does this even to many liberals, since to my knowledge even many liberals no longer see busing as a great success.

Sunday, December 15, 2002


TOM TOMORROW is also really funny.


OH MY GOD. (Through Max Power.)


IS NICKLES NEXT? I didn't mean to suggest (two posts below) that I would want Nickles in Lott's place -- just that like everybody else I want someone to oust Lott and am glad to see Nickles -- or anyone -- taking the initiative. But as long as we're talking about Nickles, a reader was good enough to pass along this link as evidence that Nickles is no libertarian. That's unfortunate but hardly surprising -- not because I know much about Nickles (I don't), but because it's getting tougher all the time to find libertarian Republicans in public life; now even Dick Armey is gone. I consider it a bit of a mystery why libertarians are presumed to have more in common with Republicans than with Democrats nowadays, so that people assume that the libertarian party siphons votes away from the Republican party in the same way that the Greens suck votes from the Democrats. There is less all the time for a libertarian to like about the Republican party in general and the Bush administration in particular. But getting rid of Trent Lott has to be considered good news almost no matter who you are, unless maybe you're a left-winger who wants to see the Republicans squander their political capital trying to ban partial-birth abortions.


EUREKA: Michael McNeil reports that Archimedes was on his way to discovering the calculus.

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