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Saturday, January 18, 2003


[W]hile in public the inspectors were celebrating their discovery of the artillery shells, in private experts from the International Atomic Energy Agency (IAEA) in Vienna were digesting the details of a substantially more significant find - the blueprint of Saddam's nuclear weapons project.

On the same morning that a team of inspectors had found the 12 artillery shells, another team of nuclear weapons experts had paid a surprise visit to the homes of two of Saddam's leading nuclear physicists who worked for Iraq's top secret for the Ministry of Military Industrialisation (MMI). . . .

Once inside they found what one Western official has described as a "highly significant" batch of documents which, on closer inspection, revealed that Saddam's scientists were continuing development work on producing an Iraqi nuclear weapon. . . .

When Saddam submitted his 12,000 page dossier to the United Nations Security Council at the end of last year, the Iraqi leader insisted that Baghdad no longer had any interest in developing nuclear weapons, and that Iraq's nuclear research programme had been discontinued.

The documents seized at the homes of the two scientists, however, confirm what Western intelligence has been arguing all along, that Saddam is continuing with his quest to develop the first Arab atom bomb.

Ever since the inspectors arrived back in Iraq two-and-a-half months ago, Saddam has gone to extraordinary lengths to conceal the true nature of his nuclear weapons programme.

Key Iraqi scientists have been given new identities and smuggled out of the country to take up postings in the Far East, and top secret documents have been hidden in the homes of Iraqi government officials. . . .
Thanks to InstaPundit, Little Green Footballs, and Michael J. Totten for the pointer.

UPDATE: There's also another Telegraph article on this point.


RALLY AGAINST THE WAR IN IRAQ, AND OTHER THINGS: I normally like to go down to the Mall to see major protests here in D.C., but today it's way too cold so I had to settle for watching it on C-SPAN. I always enjoy watching a good rally: it's interesting to see what makes other people tick and to try to understand the world as they see it. As best I could tell, the thrust of today's rally in D.C. was this: 1) they are against U.S. imperialism, 2) if it happens, the war in Iraq will be an example of U.S. imperialism, and therefore 3) they are against a war in Iraq. I think this explains why a good chunk of the rally covered issues other than Iraq: they see the war in Iraq as only one example of U.S. imperialism, so it must have seemed artificial to limit the rally to that one example of the broader problem.


Frequently Asked Questions about Copyright. . .

57. How do I get on your mailing list?

The Copyright Office does not maintain a mailing list. The Copyright Office sends periodic e-mail messages via NewsNet, a free electronic mailing list. Important announcements and new or changed regulations and the like are published in the Federal Register. Most will also appear on the Copyright Office website on the Internet.

58. How do I protect my sighting of Elvis?
Copyright law does not protect sightings. However, copyright law will protect your photo (or other depiction) of your sighting of Elvis. Just send it to us with a form VA application and the $30 filing fee. No one can lawfully use your photo of your sighting, although someone else may file his own photo of his sighting. Copyright law protects the original photograph, not the subject of the photograph.

. . .
(Thanks to FlashBunny and Cosmic Skidmark for the pointers.)


ROTHSTEIN ON LESSIG: Edward Rothstein of the N.Y. Times takes a critical look at some of Larry Lessig's work.


STRATEGIC BEHAVIOR AT THE COURT. As a connoisseur of strategic behavior I was entertained by the theory of Eldred offered below by Eugene Kontorovich. But it is based on a fun-house-mirror depiction of the Justices' commitment to interpretive consistency. I am referring in particular to the suggestion that the logic of Eldred, a copyright case, will cause the Court to be "hard pressed" to strike down the Ten Commandments in courtrooms and other practices that may be sanctioned by time despite seeming on their face to violate the Constitution -- and that the promise of such rulings is why the conservatives voted as they did in Eldred. The idea, I gather, is that (a) if the conservative Justices had struck down the Bono Act in Eldred they would later have felt inhibited about using the "sanctioned by time" argument to uphold the use of the Ten Commandments in courtrooms, etc.; or (b) now that the Court affirmed in Eldred it will feel especially inhibited about striking down such religious uses in public life, since they are supported by that same argument.

But of course none of this is the case. The argument assumes that it's important to the Justices to adhere to the same principles of interpretation across widely divergent sorts of constitutional cases, even when those principles produce outcomes they dislike. I know of no serious evidence to support that idea, and a boatload to the contrary. (I don't think there is a serious commitment to consistency even within given constitutional areas, but let that stronger claim pass for now.)

I suppose it might be different -- might -- if the Justices had explicitly committed themselves to the idea that old, unchallenged practices generally are immune from constitutional challenge. Justice Scalia has been pressing for years for the Court to adopt approximately this position -- that, for example, "when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down." Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990). But he has never secured a majority for that view, and Eldred hardly commits his colleagues to it.

An opinion by Justice Ginsburg would be an especially unlikely place to look for such a position, as she made her name arguing that the Fourteenth Amendment forbids laws discriminating against women that would have been considered fine when the Amendment was enacted and for about a century afterwards. Meanwhile the reason I emphasized the word “might” in the previous paragraph is that Scalia naturally has an escape hatch of his own: he qualifies his view by saying that it doesn't apply when the plain language of a constitutional provision requires a particular result, as it did in Brown v. Board of Education. (Oh.) See Rutan at p. 96, n. 1. It thus would have been easy enough for him to write an opinion reversing in Eldred without any embarrassment to his stated positions elsewhere or in the future.

So if the conservatives had joined the majority in Eldred thinking that it would win them anything in the establishment clause department, it would have been a fool's bargain. Here is my bold prediction: Eldred will have no effect on anyone's vote in the religion cases. (I'll be mildly surprised if Eldred ever is even cited in a religion case, but I suppose stranger things have happened; perhaps it will make a nice flourish for Scalia or Thomas during a string citation.)

Friday, January 17, 2003


BLOG VISITOR COMMENTS: Colby Cosh has an amusing line about this subject (a topic on which I am largely agnostic -- I just thought it was a funny dig). Thanks to InstaPundit for the pointer.


RUNNING DOGS: Reader Michelle Dulak also points to another item in the article that mentions the "just spoils of a righteous war" speech:
Bond's harshest words were reserved for the Republican leaders of the House and Senate, who he said have become "the running dogs of the [wacky] radical right."
"Running dogs"? A slightly odd locution in American political discourse, it seems to me.


THE FEDERAL GOVERNMENT'S BRIEFS IN THE MICHIGAN RACE PREFERENCES CASES: Josh Chafetz (OxBlog), who's always worth reading, has a post on this subject. (I haven't read the briefs myself yet, so I can't say much else about this.)


AFFIRMATIVE ACTION = "JUST SPOILS OF A RIGHTEOUS WAR"? So says NAACP national chairman Julian Bond, and so he has said on several occasions in the past (I found three stories on LEXIS quoting him on this, each mentioning a different speech): "Affirmative action is the just spoils of a righteous war."

     So here's what I want to know: War of whom against whom? Pro-civil-rights forces against anti-civil-rights forces? If so, then why is it that Asian and white 17-year-olds (among others) -- who were never in the war, and whose parents may well have been on the right side -- have to yield up the spoils?

     Or is he suggesting that, since spoils are given by the losers, the war must have been the victorious blacks and Hispanics against the defeated whites and Asians? Do we really want to think of the continuing civil rights debates as that sort of war? Is such a vision really helpful, either to the supposedly defeated, or to the supposedly victorious? I had thought that civil rights as race war was the preferred perspective of racist militants, not the NAACP.

     By the way, I just saw an opinion column dated today (distributed by UPI) that quoted Bond making this point again about the University of Michigan case -- surprisingly, though, it hadn't been picked up by the national media in any of the previous times that he'd said it.

UPDATE: The original post erroneously linked to the wrong speech, one in which Julian Bond was using the "just spoils" to refer to antidiscrimination legislation broadly, not to race-based affirmative action. All the other times that I've seen Bond use the phrase -- including the one that I now link to -- he was referring specifically to affirmative action being the just spoils. (Thanks to reader Jeff Bishop for pointing out my error.)


IS THE DMCA (DIGITAL MILLENNIUM COPYRIGHT ACT) UNCONSTITUTIONAL UNDER ELDRED V. ASHCROFT? My friend Jack Balkin, a Yale lawprof and one of the leading liberal constitutional law scholars in the country, has some very interesting thoughts about this on his new blog.


"HATE SPEECH": According to a Council on American-Islamic Relations press release,
MIAMI, Jan. 16 /U.S. Newswire/ -- Florida's office of the Washington-based Council on American-Islamic Relations (CAIR-FL) today called on religious leaders in that state to repudiate a Jacksonville Baptist church road-side display that says, "Jesus Forbade Murder, Matthew 26 52, Muhammad Approved Murder, Surah 8 65." To view a photograph of the marquee, go to:

"All Americans must band together to condemn hate speech designed to divide our nation along religious and ethnic lines. Any
attempt to marginalize or vilify one religious community is an attack on all people of faith," said CAIR-FL Executive Director Altaf Ali. Ali added that CAIR-FL sought dialogue with the church about the display, but that attempt at outreach was rebuffed with belligerent language.
Now I'm not a scholar of the Koran, but my sense is that theological arguments of the sort expressed on the sign are pretty dubious. CAIR claims that "The verse in the Quran, Islam's revealed text, referred to in the church display states: 'O Prophet (Muhammad)! Inspire the believers to conquer all fear of death when fighting, (so that) if there be twenty of you who are patient in adversity, they might overcome two hundred; and if there be one hundred of you, they might overcome one thousand of those who are bent on denying the truth, because they are people who cannot grasp it.'" If they're right (and I have no reason to doubt it), this says no more in favor of killing than do some verses in the Old Testament (which, while not Jesus's teaching, is of course still revered by Christians). There are lots of possible explanations for why the Old Testament verses don't actually justify murder today; but of course the same is surely true of this verse (which can be read as applying only to otherwise lawful fighting, and not simply to attacks on infidels).

     But at the same time, it surely is an abuse of an already overstretched term "hate speech" to apply it to all criticisms of religions and religious leaders. Religions are ideologies, presented with the hope of persuading the world; it is quite proper for people to try to explain why these ideologies are unsound or even evil. If the explanation is unfair or out-of-context, this might make it unsound or unethical, but it doesn't make it "hate speech." Encouraging hatred of those who adhere to a religion may well be hate speech; encouraging disagreement with the religion, or even condemnation of a religion, is what theological and moral debate is often quite properly about.

     This is just another reason why I bristle when I hear this broad, vague label ("hate speech"), certainly when I hear proposals to ban the speech, but even when I hear proposals to publicly condemn it. Like "racist" (or, in an earlier era, "Communist"), "hate speech" has become a general pejorative (see the discussion of "two-bit whore") more than an analytical tool. The logic of calling the church's sign "hate speech" is no more sound than the logic of the church's sign itself.


CONSTITUTIONAL LAW AND TRADITION: My friend and GMU lawprof Eugene Kontorovich writes the following; I don't entirely agree with his position, but I thought it was much worth passing along:
Like you, I think Eldred was wrongly decided. The text is clear, and more importantly, the text embodies important policy considerations which are eviscerated by the Court's opinion (and they seem to recogonize that their decision makes for bad policy on the last page of the majority opinion).

But what's interesting going forward is how the Court got to its decision -- and this may explain why the conservative justice joined.
One hand you have text and policy. On the other hand, you have the fact that the first Congress and many subsequent ones have enacted copyright laws that suffer from the same defect as the one complained of in the current case (I think the Court's characterization that the first Congress "retroactively" increased then-existing protections -- i.e., the zero federal protection that existed before the first Act -- is a bit thin, but not inane).

Basically the Court's opinion says this is constitutional because no one, especially the Framers' generation, ever thought it was
unconstitutional. That is a valid interprative principle (though particularly weak in this case for reasons I can explain later), but what is important about it is that this is the interpretive principle that singlehandedly sustains the Ten Commandments in courtrooms,
prayer at public gatherings, and various other de minimis intrusions of religion into public life. Indeed, having rested Eldred solely on this basis, the Court will be hard pressed to strike down such practices as violating the Establishment Clause. That is why the conservative justices -- who you thought might be swayed by the textualist argument -- sustained the Bono law. (Again, I think the consistent-usage-of-Congress argument works much better for the Establishment issues than for this Copyright issue, but that's another email.). So the bad news is we get a wrong interpretation of the copyright clause, but the good news is we'll probably get a right one of the Establishment Clause. Note that both the wrong and right interpretation have the effect of sustaining legislation in the face of plausible constitutional challenge.


GETTING BLOG POSTS BY E-MAIL: Several weeks ago, we started a small experiment with having Blogger deliver blog posts by e-mail. There are only 14 people subscribing this way, but when I e-mailed them asking them how they liked it, I got back five messages saying that they find the service quite helpful (the other nine said nothing, the norm in Web surveys). Scientifically valid? I think not! But it does show that at least some people like this stuff. My favorite response:
I absolutely love the e-mail updates! Not only I can forward your arguments to other interested parties, but also I can archive and store them for future use in any manner I see fit. I am so used to the e-mails that I rarely visit the URL. . . .

PS: I must ask you to keep the e-mail updates for one very selfish but personal reason. It is easier to read your posts in my [law school class] in e-mail format than opening my browser! Being caught laughing and web surfing in a seminar . . .was most unpleasant and I do not wish to repeat it.
If you'd like to use this option -- and I can see reasons why some people would like it, and others wouldn't -- send a message containing just the text
to the e-mail address LISTSERV at LISTSERV.UCLA.EDU . If you need to unsubscribe or your e-mail address is about to change just send a message containing just the text
to the same address. And if you'd like to get all of a day's posts in one message, send a message containing just the text
to the same address; and to undo that, the message SET VOLOKH-L MAIL should do the trick.

     Unfortunately, I'm swamped enough that I probably won't be able to provide any manual help with the list, but I hope that the automatic subscription and unsubscription results will do the job (it seems to have so far). Also, just a warning: This is only an experiment; if this ends up causing trouble, we might have to discontinue this, and return to a Web-only format.


I'M MY OWN MAN: I'm not Eugene nor, as some have suggested, am I Erik Jaffe. I can't speak for internet person of mystery Phillippe de Croy, but I can assure Howard (and anyone else with suspicions) that I am completely independent of the remaining conspirators.

Thursday, January 16, 2003


TRAFFIC: It's impossible to tell with any confidence, since our three hit counters (Bravenet, eXTReMe Tracking, and Site Meter) seem to measure hits differently, and the first two were apparently out of commission part of the day today, but it looks like our traffic this week and last -- since we returned from our light blogging schedule over the holidays -- is above 5000 most weekdays, with just occasional dips into the high 4000s. So far it seems to be something of an improvement over December, when the norm was in the low to mid-4000s. All numbers are "unique visits," whatever that means.


NEW CO-BLOGGER "DAVID POST": I want to introduce, and give a warm welcome to, our new co-blogger, "David Post." "David Post" is the online name used by David Post, a Temple University law professor and leading cyberspace law expert.

     I know David from my days clerking -- he clerked for Justice Ruth Bader Ginsburg in 1993-94 (yes, this really does refer to 1993-94). Like Orin, he spent six years between his first clerkship and his second; his first, it turns out, was also for Ruth Bader Ginsburg, when she was a judge on the U.S. Court of Appeals for the D.C. Circuit.

     Before going into law, David was a professor of anthropology at Columbia, specializing in the behavior of yellow baboons. [Insert your choice of joke analogizing the study of yellow baboons to the study of cyberspace users.] David is an extraordinarily smart and thoughtful fellow, and I'm delighted that he agreed to join us.


SHORT NEW ARTICLE: My Test Suites: A Tool for Improving Student Articles is now out (in the Journal of Legal Education), and here's the PDF. It's fortunately only 6 pages long, so some law professors might actually be willing to read it. As I may have mentioned before here, it's the one piece that I've written that actually borrows an important concept (though it's hardly rocket science) from my computer programming past.


ELDRED AND THE COPYRIGHT POWER: Unlike Orin, I agree with Glenn Reynolds take on the Eldred decision -- with one important caveat. The strict textualist argument that Glenn makes -- essentially the argument adopted by Judge David Sentelle in his dissent -- was disavowed by the petitioners. Before the D.C. Circuit, occasional Conspiracy participant Erik Jaffe submitted an amicus brief on behalf of the Eagle Forum, pointing out that, read literally, the copyright clause does grants Congress the power "to promote the progress of Science and useful Arts," and then proceeds to specify the means through which that power can be exercised (securing exclusive rights for limitied times, etc.). The preamble does not limit the power, it is the power. Therefore, any grant of a copyright which does not promote progress is beyond the explicit grant of power. This argument is not particularly complicated or elegant, but it was enough to convince Judges Sentelle and Tatel on the D.C. Circuit and, in my mind, would have had the best chance of reaching some of the conservative justices on the High Court. Yet for whatever reason, the petitioners never adopted it below, and by the time they reached the High Court, it was too late to do anything about it.


MSNBC: I should be one of the panelists on the Nachman show on MSNBC tonight, 5-5:30 pm Eastern time, talking about the University of Michigan race preferences case.


Meanwhile, Time magazine, quoting well-placed sources, reported Thursday that Saudi Arabia was pursuing a plan to engineer a U.N.-sanctioned plot for Iraqi generals to overthrow President Saddam Hussein.
I don't know -- when I think "plot," I think a furtive and highly secret conspiracy among a small group of like-minded people. Clearing it with the U.N., not to my knowledge an entity that seems likely to keep secrets tremendously well, seems, well, not very plot-like. Nor very effective, I'd guess.


Just in case people missed, let me repeat the riddle from earlier today (with a small correction from the original version, though the correction was also made in the post below). Each currently sitting Supreme Court Justice has, during his tenure on the Court, voted to strike down at least one federal statute on the grounds -- these days seen as characteristic of a "conservative" agenda -- that it exceeds Congress's enumerated powers or violates the Tenth Amendment. (I set aside votes that are based on other parts of the Bill of Rights besides the Tenth Amendment, on the separation of powers among the branches of the federal government, or on other limitations that appear in other constitutional provisions, such as art. I, sec. 9.)
Here's the answer, which Ilya Somin, Charles Eldred, and Mark Quinlivan got:
  • Chief Justice Rehnquist and Justices O'Connor, Kennedy, Scalia, and Thomas
  • have voted this way in quite a few cases -- Lopez (the Gun Free School Zones Act case), Morrison (the Violence Against Women Act) case, and others.

  • Justice Breyer of course voted to strike down the Copyright Term Extension Act, in the Eldred v. Reno case that has just been handed down.

  • Justice Stevens did the same, but he also voted in City of Boerne v. Flores to strike down the Religious Freedom Restoration Act -- and so did Justice Ginsburg. (The error in my original post was that I mentioned votes to strike down a law on the grounds that it exceeds Congress's art. I, sec. 8 powers; City of Boerne involved Congress's powers under sec. 5 of the Fourteenth Amendment, which is why I corrected the puzzle to say "enumerated powers" generally. Technically, though, by saying that the Act exceeded Congress's powers, Stevens and Ginsburg also implicitly concluded that it exceeds Congress's art. I, sec. 8 powers as well as the Fourteenth Amendment power.)

  • Justice Souter voted with the majority in New York v. United States to hold that Congress's powers did not extend to commandeering state legislatures, though he voted with the dissent a few years later in Printz, and took the view that Congress could commandeer state executive officials.

SPECIAL UNRELATED BONUS FACTOID: Charles Eldred, one of the three people who got the right answer, points out that (1) to his knowledge he's unrelated to the Eldred in Eldred v. Reno, and (2) Gregory Peck's full name was actually Eldred Gregory Peck. Who knew? (Well, I guess some people named Eldred did.)

UPDATE: Reader Andrew Lazarus points out that Eldred G. Peck was a UC Berkeley graduates, and that fellow graduates were also in the group of people Who Knew, since his full name appeared often in alumni publications. I guess that's what I get for going to UCLA instead of Berkeley . . . .


ELDRED AND LIMITED POWERS: Glenn Reynolds suggests that yesterday's decision in Eldred v. Reno is inconsistent with the Rehnquist Court's commitment to limited government. He writes:
. . . strikingly, all the Justices who have stood for limiting Congress’s powers in other recent cases (such as United States v. Lopez and United States v. Morrison) sided with [Justice Ginsburg's opinion upholding the CTEA], calling their commitment to limited government into question.
Near the end of the column, he adds:
While many people are unhappy with the Intellectual Property implications of this decision, its most striking aspect is the strict constructionists’ abandonment of the principles of limited government.
I have a different take. As I see it, cases like Lopez and Morrison are less about limited government than they are about limited federal government. It was clear in both Lopez and Morrison that the states could do what Congress tried to do: the question was whether the federal government could do it, too. Copyright law is different. The Copyright Act (specifically 17 U.S.C. 301(a)) explicitly preempts state copyright law schemes: the basic idea is that states aren't allowed to enact their own copyright laws, because that's a problem for Congress, not the states. As a result, the question in Eldred was not federal/state balance, but effectively whether any government at all was allowed to do what Congress did. I can imagine that made Eldred's "limited government" argument sound more like Lochner than Lopez or Morrison.


WONDERFUL NEWS! Our coblogger Orin Kerr has just been hired by Justice Kennedy to be a law clerk for the 2003-04 term of the Supreme Court. Orin's amount of past experience -- after clerking on the court of appeals) he was a prosecutor for three years, and has been teaching at George Washington University School of Law for the last two years (he'll be returning to teaching after the clerkship) -- is quite unusually high for a Supreme Court clerk; most of them have no experience other than their one year clerking (that was my story). But of course this experience will surely be a great advantage to him, and to his new boss. My heartiest congratulations to my friend and coblogger.

UPDATE: The original post said 1993-94 term, which is obviously wrong (it was the term I clerked, so maybe it was a Freudian slip).

FURTHER UPDATE: A judge wrote me the following, which I thought worth passing along:
You just posted about a person hired as a clerk for "1993-94". I know many Russian writers have been, for centuries, nostalgic for some past, but this seems extreme. However, it may be a new way for Judges to satisfy the demand for clerkships -- we can grant them for times that have already passed, thus saving the government money, ourselves time and trouble, and the clerks the loss of valuable professional advancement time.


HATE CRIMES, POLITICS, RACE, AND SEXUAL ORIENTATION: Andrew Sullivan makes some very good points, though they ultimately just lead me to reaffirm my opposition to hate crimes laws (and he himself correctly concludes that opposition to hate crimes laws is indeed the best solution).


SUPREME COURT RIDDLE SOLVED: Ilya Somin, Charles Eldred, and Mark Quinlivan got it. I'll post the answer this afternoon.


RACE PREFERENCES IN UNIVERSITY ADMISSIONS: I'll be on KPCC-FM (89.3) in L.A. this morning debating the subject with my colleague Kimberle Crenshaw.


TWO-BIT WHORES: Yesterday's L.A. Daily Journal (a paper aimed at lawyers) has the following in its front-page "Quotable" section:
"You're nothing but a couple of two-bit legal whores."
State Senator Bill Morrow said this to two lawyers who are being investigated for supposedly unethical conduct.

     But setting aside whether the lawyers' conduct indeed violated legal ethics rules -- they were apparently filing lawsuits against small businesses under a broad consumer protection law, alleging technical violations and then offering to settle the cases secretly for a modest amount -- what do whores have to do with it?

     First, "whore" is a pejorative because it's seen as shameful to have sex for money. But litigating for money (clients' money or settlement money) is what the profession of lawyer is all about.

     Second, "two-bit whore" is a pejorative because cheap prostitutes are seen as dirty, unusually promiscuous even for prostitutes, and particularly degraded precisely because they value their bodies so little. But what's wrong with lawyers charging low fees? We wish they'd do that more often! What this country needs is a good two-bit lawyer. (Of course, low cost may be a sign of low skill in lawyers, and I suppose in prostitutes as well, but that strikes me as a very small component of the pejorativeness of "two-bit whore.").

     Third, whores provide a valuable service for their clients, and often without anyone getting hurt in the process. They don't drive small businesses out of business, which supposedly happened in some instances here. They don't generally engage in something that to many people smacks of extortion (though the line between extortion and litigation is often harder to figure out than one might like). They don't engage in frivolous sex (or, if they do, that's part of the whole point). Hardly fair to either side, it seems to me.

Wednesday, January 15, 2003


OBJECTIVE JOURNALISTS WE AIN'T: According to the New York Times' generally very good story about Glenn Reynolds, "Martin Wisse, who runs the Progressive Gold blog [said] 'In short, he poses as an objective journalist when he's not.'"

     Objective journalism? Folks, we bloggers generally aren't in that business -- we're communicating our opinions. We like to think that we're fairminded, though opinionated, but we make no pretense to "objective journalism" in the traditional sense of what the news page of a newspaper is supposed to be like. Here's a tip: If someone has the term "Pundit" in his moniker, that's a good sign that he's purveying opinion, not reporting the news.

UPDATE: The Wyeth Wire objected to my not quoting the rest of the Wisse quote, which says: "He [Glenn Reynolds] presents opinions of people who agree with him as facts and distorts the positions of people who disagree with him," and then concludes that "In short, he poses as an objective journalist when he's not." I didn't quote the first part, because what can you say about it? There are no specific claims that one can prove or disprove; all one can say is "No, he doesn't do that." The second part one can respond to, even at its very high level of abstraction -- which is what I tried to do.


SUPREME COURT RIDDLE: Just in case people missed, let me repeat the riddle from earlier today (with a small correction from the original version, though the correction was also made in the post below). Each currently sitting Supreme Court Justice has, during his tenure on the Court, voted to strike down at least one federal statute on the grounds -- these days seen as characteristic of a "conservative" agenda -- that it exceeds Congress's enumerated powers or violates the Tenth Amendment. (I set aside votes that are based on other parts of the Bill of Rights besides the Tenth Amendment, on the separation of powers among the branches of the federal government, or on other limitations that appear in other constitutional provisions, such as art. I, sec. 9.)

     If you think you can demonstrate this, e-mail me (at volokh at the name of one case for each Justice in which the Justice voted this way. I will not be able to respond individually to each message, but I will post the answer mid-day Thursday, together with the names of the first three people who get this right (judged by the time that I receive their messages). Special bonus for people who can make more such cases for the four more liberal Justices (Stevens, Souter, Ginsburg, and Breyer).

     There have been six answers so far, but unfortunately all either incorrect or incomplete.


SPEAKING OF GLENN REYNOLDS: The N.Y. Times has just posted its piece on Glenn Reynolds and Instapundit. You can access it here. While you're at it, you can compare it to Ken Layne's parody from last week, which you can access here.


INSTAPUNDIT BRANCHES OUT: Glenn now has a blog at MSNBC, which is much worth checking out, though he's also keeping InstaPundit. (The MSNBC blog promises to be a several-times-a-week affair, as opposed to InstaPundit's dozens-a-day.) An interesting development.


CNN RADIO: I ought to be on CNN Radio this afternoon, talking about the Copyright Term Extension Act decision. I have no idea which sentences they'll pluck out of the interview, but I hope they'll make me sound smart!


COPYRIGHT TERM EXTENSION: I've read the opinions, and I don't have much to say beyond what Justice Breyer says in his dissent, which is much worth reading. The majority's position is not implausible, but I think that Justice Breyer has the better of the argument.


EMMA GOLDMAN: There's a fracas at Berkeley about a fund-raising letter for the Emma Goldman Papers Project, and some people are saying that the University's actions violate free speech:
In an unusual showdown over freedom of expression, university officials have refused to allow a fund-raising appeal for the Emma Goldman Papers Project to be mailed because it quoted Goldman on the subjects of suppression of free speech and her opposition to war. The university deemed the topics too political as the country prepares for possible military action against Iraq.

In one of the quotations, from 1915, Goldman called on people "not yet overcome by war madness to raise their voice of protest, to call the attention of the people to the crime and outrage which are about to be perpetrated on them." In the other, from 1902, she warned that free-speech advocates "shall soon be obliged to meet in cellars, or in darkened rooms with closed doors, and speak in whispers lest our next-door neighbors should hear that free-born citizens dare not speak in the open."

Berkeley officials said the quotations could be construed as a political statement by the university in opposition to United States policy toward Iraq. Candace S. Falk, the director of the project and author of the appeal, acknowledged that the excerpts were selected because of their present-day resonance. But Dr. Falk said they reflected Goldman's views, not the university's policies.

Robert M. Price, the associate vice chancellor for research, said, "It wasn't from nowhere that these quotes randomly happened to fall on the page." Dr. Falk "was making a political point, and that is inappropriate in an official university solicitation," he said.

Dr. Price edited the fund-raising appeal, striking the two quotations. A third quotation -- "the most violent element in society is ignorance" -- was not removed. . . .

The university's action has infuriated Dr. Falk and her small staff, who work out of a cramped former dentist's office a few blocks from campus. It has also raised concerns among scholars at similar documentary editing projects about academic freedom and free speech. . . .

Dr. Falk called the university's editing censorship and said it violated the spirit of Goldman's work, which emphasized freedom of expression. . . .

George Strait, an assistant vice chancellor for public affairs. . . said the dispute was not a free speech issue. "Clearly Ms. Falk had one opinion on the best way to raise money for the Emma Goldman Papers Project, and the person with direct responsibility for supervising that project had another," he said. "At best, what we are talking about here is a difference of opinion between two people who are valued members of the Berkeley community." . . .
I don't think there's a free speech problem here. Faculty members, even though they are university employees, have generally been seen as having very broad First Amendment rights -- even against their employer -- at least as to their scholarship and public comments, and possibly even as to their teaching (though the latter is a closer call). But university departments are parts of the university, and subject to the supervision of the university. They are just as much under the control over their supervisors as, say, the Solicitor General's Office is under the control of the Attorney General and ultimately the President. Their speech is the university's speech, and the university may, if it chooses, decide what this speech is to include (though their faculty members could, if they wanted to, speak themselves, using their own money, and be relatively free of the university's control).

     The Emma Goldman Papers Project seems to me to be pretty clearly a department of the University's research division. Its Web site describes it as a branch of the university; likewise, it solicits contributions on its Web site via the general UC Berkeley online giving form. It's an agency of the University, and thus -- as a First Amendment matter -- subject to the University's control; the University is entitled to dictate what the Project's fundraising letters and other official communications say. Again, the rule is different for scholarship by individual professors, who are employees of the University; but the Project is itself a portion of the University, not just an employee.

     There of course also remains the related but potentially different question of academic freedom -- there are certainly things that universities may constitutionally do that they shouldn't do, and that in particular violate traditions of academic freedom. (One clear, albeit somewhat distant, example: Private universities aren't bound by the First Amendment, but they're generally seen, with som exceptions, as being required by academic freedom principles to give similar rights to their students and faculty that public university students and faculty possess as a constitutional matter.) My sense is that such academic freedom claims would be strong if the matter involved a publication of the project, or even a conference put on at the project, and at their weakest when they involve a request for financial contributions. But because academic freedom questions are generally matters of professional norms rather than law, they tend to be even vaguer and more complex than constitutional questions are, so I can't be completely sure about this.

     Still, it's important to realize that this debate is not about the free speech rights of student, professors, or speakers -- it's about the rights of a subdivision of the university to defy the demands of those (such as the Chancellor's Office) who are responsible for the university itself. I know of no precedents that support such a constitutional claim.


SUPREME COURT RIDDLE: Each currently sitting Supreme Court Justice has, during his tenure on the Court, voted to strike down at least one federal statute on the grounds -- these days seen as characteristic of a "conservative" agenda -- that it exceeds Congress's enumerated powers or violates the Tenth Amendment. (I set aside votes that are based on other parts of the Bill of Rights besides the Tenth Amendment, on the separation of powers among the branches of the federal government, or on other limitations that appear in other constitutional provisions, such as art. I, sec. 9.)

     If you think you can demonstrate this, e-mail me (at volokh at the name of one case for each Justice in which the Justice voted this way. I will not be able to respond individually to each message, but I will post the answer in several hours, or at the latest tomorrow, together with the names of the first three people who get this right (judged by the time that I receive their messages). Special bonus for people who can make more such cases for the four more liberal Justices (Stevens, Souter, Ginsburg, and Breyer).

UPDATE: Six answers so far, but unfortunately all either incorrect or incomplete. Try harder, folks!


EUGENE IS AN ANTI-EGGHEAD: But Hugh Hewitt means that in a good way.


WRONG, WRONG, WRONG. That's me -- wrong, wrong, wrong in my prediction of the outcome in Eldred v. Reno, the Copyright Term Extension Act case. The Court just upheld the Act by a 7-2 vote. I'll be at McCrow's today eating a nice sandwich and reading the opinion; will try to get back to you folks with some comments later.

Tuesday, January 14, 2003


"POLICE DETAINMENT OF A PATIENT FOLLOWING TREATMENT WITH RADIOACTIVE IODINE" (thanks to Andrew Sullivan for the pointer). My initial reaction echoes Andrew Sullivan's: It's good that the police are watching for unusual sources of radioactivity. Still, it's an eerie scenario, a reflection on life in a dangerous world:
This patient's experience indicates that radiation detection devices are being installed in public places in New York City and perhaps elsewhere. . . .

We called the Terrorism Task Force of the New York City Police Department to determine how to prevent detainment of this group of patients. They recommended that treating physicians provide such patients with letters describing the isotope used and its dose, its biological half-life, and the date and time of treatment. The letters should also provide the physician's 24-hour telephone numbers to allow the police to verify the content of the letters. If a person who has been detected as emitting radiation provides such a letter, the police would then verify the letter's authenticity. Even in the best-case scenario, however, the patient would have to wait during this verification process. Patients should be informed about this potential problem after treatment with radioactive isotopes; they may choose not to use public transportation to avoid this inconvenience.


MORE ON JUSTICE GINSBURG'S DISSENT IN TODAY'S DOUBLE JEOPARDY CASE: Over at How Appealing, Howard Bashman offers a thoughtful response to my concerns (expressed here) about Justice Ginsburg's dissent today in Sattazahn v. Pennsylvania. Howard writes:
Although I would tend to agree with Justice Scalia's ruling, I do not believe that Justice Ginsburg's dissent can be condemned as outcome oriented. The main consideration that separated the majority from the dissenters was the weight to be accorded Pennsylvania's statute mandating that the trial judge impose a life sentence if the jury has deadlocked over whether to impose a death sentence. The statute could be viewed as the equivalent of a legislative acquittal of the death penalty (essentially the dissenters' view) or the statute could be viewed as in no way overriding the fact that the original jury actually deadlocked as to imposition of a death sentence (essentially the majority's view).
I suppose that's right. I also can see how Justice Ginsburg's approach was plausible in light of Bullington v. Missouri, 451 U.S. 430 (1981), which I just now read for the first time. The case provides an example of (and rationale for) the Court limiting the government to one bite at the death-penalty apple, at least in some cases. Interesting that Justice Ginsburg mentions it only in passing in footnote 6 of her dissent. It's worth reading if you're interested in today's decision.


BUSH TO OPPOSE PREFERENCES: The wait is over. Wednesday's Washington Post reports that the Bush Administration has decided to file a brief in opposition to the University of Michigan's affirmative action program. The Post article claims that the administration will acknowledge the value of diversity in higher education, but will nonetheless oppose the Michigan plans place too much emphasis on race.


MARK YOUR CALENDAR. Only four shopping days left til National Sanctity of Life Day.


NO CHIEF JUSTICE THOMAS: One consequence of Justice Thomas' jaw-dropping book advance may be to end rumors (scroll down) that he will be nominated for Chief Justice should William Rehnquist retire. Cynics could even suggest that Justice Thomas would want it that way, as it is no secret that the biggest obstacle to his nomination likely would be his opposition to going through another round of confirmation hearings.

Most proponents of elevating Thomas to Chief Justice support the move for ideological or symbolic reasons. Justice Thomas has arguably surpassed Justice Scalia as the Court's arch-originalist, and many delight at the political impact were President Bush to name the first African-American Chief Justice of the Supreme Court. Often overlooked is the fact that Justice Thomas could well be the most qualified member of the court for the Chief Justice spot as he, and perhaps he alone, has two important qualifications for the post -- qualifications that are more important than ideology or judicial philosophy.

First, Justice Thomas is universally liked, respected, and admired on the Court. While clerks in some chambers may dismiss him, the other justices and court personnel are quite fond of him. This distinguishes Thomas from, say, Scalia, who has not always been the most diplomatic or collegial member of the Court. Second, Justice Thomas has significant administrative experience -- an important and often overlooked trait for the nation's highest judicial administrator. These considerations are more important than ideology in no small part because being an effective Chief often requires that a Justice trim his ideological sails (one reason some conservatives would argue against elevating either Thomas or Scalia). Rehnquist wrote many more blistering dissents when he was just an associate justice. He doesn't so much any more, and even those who detest his jurisprudence acknowledge that he has been an incredibly effective and influential Chief Justice.

I don't expect Justice Thomas ever to be named Chief Justice -- in part because I believe that the above traits are not the basis upon which such decisions are made -- but he would probably be a more effective Chief than many of his detractors (and even his proponents) would expect. Indeed, I suspect he would be more effective than whomever gets that nod when Chief Justice Rehnquist hangs up his gold-banded robe.


SORRY FOR THE SLOW BLOGGING DAY: I taught for a bit over an hour, then talked to a student, then went to a 3-hour (ick) administrative meeting, and then straight to a 1-hour job talk. Sometimes, this professor gig can be almost like a real job. Awful.


"WHY BRITAIN NEEDS MORE GUNS," by gun historian Joyce Lee Malcolm.


DISAPPOINTED WITH DAHLIA: I’m generally a fan of Dahlia Lithwick’s writing. While I don’t always agree with her, I nearly always find her Supreme Court Dispatches engaging and worth the read. She's a very talented writer who typically offers provocative insights with a dose of humor. From this standpoint, I found her most recent essay on Justice Clarence Thomas, occasioned by his unseemly book advance, to be so very disappointing.

Ms. Lithwick is upset that Justice Thomas -- arguably the least wealthy justice -- will now be a millionaire because Harper-Collins (a division of Rupert Murdoch's media empire) offered to pay Thomas a $1.5 million advance for a memoirs. Thomas received such a large sum, she notes, because he holds public office, creating the appearance he is using his seat on the bench for personal gain. That Justice Thomas is generally considered the most intriguing justice - and therefore might merit such a large advance on the expectation that his book will sell - does not lessen the outrage one bit. If anything, it makes it worse. How dare the "quiet justice" cash in on his status! As Ms. Lithwick explains,
There's been little outcry over the fact that the reason Thomas is usually considered the most intriguing Supreme Court justice is that he refuses to participate in any way in the public life of the court (he sits silently, eyes closed, through most oral arguments) and that he alone among the nine justices has been accused of sexually harassing a subordinate.
I’m sorry, but I think Ms. Lithwick simply grinding her anti-Thomas axe here with this column -- at the expense of her journalism. Let me try and explain.

First, equating activity at oral argument with participating “in the public life of the court” is, well, quite odd and ahistorical. Though contemporary court watchers would not know it, rapid-fire questioning of oral advocates at the court is a modern development. As recently as twenty years ago, questioning by justices was relatively sparse. Historically speaking, Justice Thomas’ approach to oral argument is no more out of place than Justice Scalia’s or Ginsburg’s. Many liberal icons asked few questions from the bench, and court watchers thought nothing of it.

I would also note that while Dahlia consistently criticizes Thomas for his reticence, she’s anything but consistent in her characterizations of his behavior. Just last month Ms. Lithwick referred to Justice Thomas’ “standard posture of staring fixedly at the ceiling” (emphasis added). Well, which is it? Does he close his eyes or stare at the ceiling? Or are both characterizations simply potshots at her least favorite Justice? (I would note that in my own limited experience visiting oral arguments – admittedly more limited than Ms. Lithwick’s, but typically from a better vantage point than the press gallery – Thomas has his eyes quite open, even if he does typically appear uninterested in the proceedings.)

Ms. Lithwick further comments that “the most maddening part of Clarence Thomas' sweetheart deal is that it allows him to continue to do precisely what he's been doing as a justice for a decade: hide from any meaningful public debate or assessment.” In her view, Thomas has "now pierced that great black veil of secrecy, but only just enough to cash in." These are odd statements given Thomas' record since joining the court. Thomas has regularly given high-profile speeches to various groups and gatherings over the past ten years. These speeches - to the American Enterprise Institute, James Madison University, and the National Bar Association, to note only a few - have aired on C-SPAN (as did this Q&A session) and prompted thousands of column inches of commentary and debate. How then can Ms. Lithwick claim that he fails to participate in “the public life of the court” or “hide[s] from any meaningful public debate or assessment” cocooned in "in the cushiony bosom of the conservative media bubble"? If anything, Justice Thomas has gone to the other extreme, making more public pronouncements and participating in public debates to a greater extent than is usually considered proper for a sitting Justice. After reading Ms. Lithwick's column I had to wonder whether she did not know about these speeches, or simply did not care.

As for the allegation of sexual harassment, I think Ms. Lithwick may be taking liberties here as well, albeit to a lesser extent. Justice Thomas was accused of inappropriate conduct by Anita Hill, and this no doubt contributes to his notoriety. Yet as I recall Ms. Hill made a point in her Senate testimony (if not in other contexts) of not claiming Thomas’ behavior constituted sexual harassment – and for good reason. Even assuming that each and every charge Ms. Hill made were true, it is unclear that this would have constituted legally actionable sexual harassment.

All this leads me to suspect that Justice Thomas’ generous book contract was merely another opportunity for Dahlia Lithwick to take gratuitous swipes at Justice Thomas. Now I don’t expect her to pen fawning praise for Justice Thomas – she’s certainly entitled to dislike him and his jurisprudence, and there are reasons to criticize Justice Thomas' $1.5 million advance – but I do expect her to observe general standards of fairness and accuracy in her reporting. By this standard, I believe her latest piece simply falls short.

UPDATE: Stuart Buck was no more impressed with Ms. Lithwick's latest than I was.

SECOND UPDATE: A member of the SG's office from the 1970s questions whether there were significantly fewer questions at oral arguments twenty years ago. "There certainly seemed like a lot of questions to me," he wrote about his own oral arguments from that time. I have no basis to question his recollection. I would only note that my characterization was based upon conversations with several Supreme Court practitioners who felt that the mean number of questions in the average case had increased substantially in the last two decades.


THE DEATH PENALTY AND DOUBLE JEOPARDY: Today the Supreme Court issued a fascinating opinion (which you can access here) on whether double jeopardy bars a state from seeking the death penalty on retrial after a defendant's initial life sentence for murder was vacated. The state had pursued the death penalty the first time around and the jury had deadlocked; pursuant to state law the trial court had given the defendant a life sentence. Today the Supreme Court split 5 to 4 on whether the prosecution could seek the death penalty the second time around, with Justice Scalia writing for the majority (saying "yes") and Justice Ginsburg dissenting (saying "no"). Justice Scalia's basic argument was that the initial jury convicted the defendant of murder and simply deadlocked on the question of sentence, which is not an "acquittal" that would trigger the Double Jeopardy bar. In dissent, Justice Ginsburg reasoned that this was a very close question not directly answered by past precedents, but that the purposes of the Double Jeopardy bar made a bar appropriate, especially given that the state was seeking to impose the death penalty.

     UPDATE: I've had discussions about this decision today with friends both pro- and anti-death penalty. One question that tends to pop up: Is there a convincing explanation for Justice Ginsburg's dissent other than opposition to the death penalty? I'm no Double Jeopardy clause expert, and I haven't yet spoken with one about this case. But at least on an initial read, it seemed that Justice Ginsburg's dissent wasn't entirely convinced of its own logic. Consider this passage from the beginning of the dissent:
   Our double jeopardy case law does indeed 'attac[h] particular significance to an acquittal,' United States v. Scott, 437 U. S. 82, 91 (1978); that jurisprudence accords 'absolute finality to a jury's verdict of acquittal[,] no matter how erron ous its decision,' Burks v. United States, 437 U. S. 1, 16 (1978). And, as the Court stresses, the hung jury in Sattazahn's sentencing proceeding did not 'acqui[t]' him 'on the merits.' Ante, at 6 (internal quotation marks omitted). But these two undebatable points are not inevitably dispositive of this case, for our decisions recognize that jeopardy can terminate in circumstances other than an acquittal. Cf. Richardson, 468 U. S., at 325 ('[T]he Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy.' (Emphasis added.)).

   In no prior case have we decided whether jeopardy is terminated by the entry of a state-mandated sentence when the jury has deadlocked on the sentencing question. As I see it, the question is genuinely debatable, with tenable argument supporting each side.
Later on, Justice Ginsburg adds the following:
   I recognize that this is a novel and close question: Sattazahn was not 'acquitted' of the death penalty, but his case was fully tried and the court, on its own motion, entered a final judgment--a life sentence--terminating the trial proceedings. I would decide the double jeopardy issue in Sattazahn's favor, for the reasons herein stated, and giving weight to two ultimate considerations.
The first of the two "ultimate considerations" was that the majority's rule places defendants in the very uncomfortable position of deciding whether to appeal their convictions if they know they could face retrial in which they could get a more severe sentence the second time around. Perhaps I'm missing something, but that's usually the case in a criminal appeal, so I'm not sure I find that terribly convincing. The second ultimate consideration seemed more explicitly political:
the punishment Sattazahn again faced on re-trial was death, a penalty 'unique in both its severity and its finality.' Monge v. California, 524 U. S. 72 , 732 (1998) (internal quotation marks omitted). These qualities heighten Sattazahn's double jeopardy interest in avoiding a second prosecution. The 'hazards of [a second] trial and possible conviction,' Green, 355 U. S., at 187, the 'continuing state of anxiety and insecurity' to which retrial subjects a defendant, ibid., and the 'financial' as well as the 'emotional burden' of a second trial, Washington, 434 U. S., at 503-504, are all exacerbated when the subsequent proceeding may terminate in death. Death, moreover, makes the 'dilemma' a defendant faces when she decides whether to appeal all the more 'incredible.' Green, 355 U. S., at 193. As our elaboration in Gregg v. Georgia, 428 U. S. 153, 188 (1976), and later cases demonstrates, death is indeed a penalty 'different' from all others.
As I said earlier, I'm no Fifth Amendment expert, so I'm cautious about saying that the dissent's approach was inconsistent with preexisting law. And perhaps I am confusing judicial candor with weaknesses in logic. But at least on my initial read, it did leave me wondering whether the four dissenting Justices let their dislike of the death penalty get the best of them.

     If there are any double-jeopardy types out there who see this differently, let me know: I'd be happy to post (or link to) a response.

Monday, January 13, 2003


BLACK RUSSIAN CAKE (PUSHKIN CAKE?): Just made this again yesterday, from a recipe passed along to me by my friend Michael Koltonyuk, and was quite happy with it. In case anyone is interested, here it is:
Black Russian Cake (also known as Pushkin Cake)


1 (18.25 ounce) package moist yellow cake mix
1 (6 ounce) package chocolate instant pudding
4 eggs
1 cup vegetable oil
1/4 cup vodka
5/6 cup coffee flavored liqueur (you can use the cut-rate ones, no need to use Kahlua)
1/2 cup water
1/3 to 1/2 cup confectioners' sugar


1. Preheat oven to 350 degrees F. Grease and flour a 10 inch Bundt pan.

2. In a large bowl, combine the cake mix, pudding mix, eggs, oil, vodka, 1/3 cup liqueur, and water. Beat for four minutes with electric mixer. Pour batter into prepared Bundt pan.

3. Bake at 350 degrees F for 45 minutes, or until toothpick inserted in center of cake comes out clean. Cool on a rack for about 10 minutes for easy separation.

4. Make a glaze by combining 1/2 cup of coffee liqueur and 1/2 cup confectioners' sugar. Turn cake over on a cake plate. Poke cake several times with a fork. Cover with glaze, and dust with some confectioners' sugar.

Should yield at least 16 decent-sized (though not vast) slices.


TRIAL BY JURY AND COMMUTATIONS: Dennis Prager, a commentator whom I generally much like, suggested this morning that Gov. Ryan's commuting the death sentences of all prisoners on Illinois' death row interferes with the finality of jury verdicts. If one respects jury verdicts, Prager suggested, one has to accept them, whether they involve an acquittal one dislikes (such as the one in the O.J. Simpson verdict), or a conviction and sentence that one dislikes. A reader e-mailed me a couple of days ago with a similar argument, suggesting that the Governor's action interferes with the role of the jury in our constitutional scheme.
n specifically allows the President to pardon people convicted for federal crimes, and the Illinois Constitution specifically says that "The Governor may grant reprieves, commutations and pardons, after conviction, for all offenses on such terms as he thinks proper," art. 5, sec. 12.     And this asymmetry makes sense, for the obvious reasons: First, the government has tremendous power, and many of these provisions are important checks on government power. And second, wh le it is indeed important to punish the guilty, our system is skewed towards protecting the innocent from wrongful conviction more than towards protecting society from wrongful acquittal. "Better that n guilty men go free than one innocent person go to prison / get executed / etc." may be an oversimplification, but it does capture an important truth.

     More broadly, the governor's commutation power has long been a fundamental part of the criminal justice process, especially as to the death penalty. As my colleague and coblogger Stuart Banner -- author of a new book on the history of the death penalty -- blogged last month,
When the Constitution was written, there was little or no appellate review of criminal convictions, but we had a mechanism for resolving post-trial claims of innocence. It was executive clemency. Governors granted pardons and commuted sentences in numbers that seem startlingly high today, largely because they took seriously their responsibility to exercise mercy when there were doubts as to the defendant's guilt.
So one may disagree with the governor's decision in certain cases, or in certain sets of cases -- but the governor does have, and long has had, the traditionally and constitutionally recognized power to set aside a jury's findings when he thinks this is called for. In our system, a jury's death penalty decision has never been seen as definitively final; and while Governor Ryan may be faulted in many ways for his exercise of his discretion, he can't be faulted simply because he set aside the juries' judgments.


PUBLIC OPPOSITION TO UNILATERAL ACTION -- WHAT EXACTLY IS "UNILATERAL"? Here are the results of an NBC News/Wall Street Journal Poll last month (some formatting notations omitted):
"Do you think that the United States should take military action against Iraq only with the support of the United Nations, or should the United States take military action against Iraq even if the United Nations does not support such action?" Form B (N=500)
Only With UN SupportEven Without UN SupportNever Take Military Action (vol[unteered])Depends (vol[unteered])Not Sure

"Do you think that the United States should take military action against Iraq even if no allies are willing to take part in the military action, or should the United States only take military action if our allies are willing to take part?" Form B (N=500)
Even Without AlliesOnly With AlliesNot Sure
     Listeners thus seem to be interpreting "Even Without Allies" pretty much the same way as "Even Without UN Support" -- even though it's certainly easy to imagine us being stymied in the UN by, say, a veto from Russia, China, or France, but going ahead with the support of Britain, Australia, Turkey, Kuwait, or some other combination of allied countries. Tentative conclusion: Most of the people who oppose "unilateral action" probably haven't thought about what it is exactly that they oppose. One shouldn't lightly assume that this opposition to unilateral action means a demand for UN support -- or that it means merely a demand for support from Britain and a few other close allies.


"BASTION OF ANTI-WAR SENTIMENT": According to the San Jose Mercury-News,
A . . . Bay Area survey conducted last week shows that the region remains a surprisingly strong bastion of anti-war sentiment. The local poll, conducted by the Survey & Policy Research Institute at San Jose State University, found that just 57 percent of Silicon Valley adults were prepared to go to war, even with U.N. backing.
Wow, 43% opposition -- some bastion. But it turns out that the opposition isn't even that high: According to the surveytakers' own report,
Silicon Valley residents are prepared to support pre-emptive military action against Iraq by a margin of 57-31, if the U.S. has the support of the United Nations.
So, 31% of the Bay Area opposes a war on Iraq, and that makes them "a surprisingly strong bastion of anti-war sentiment." What exactly is the cutoff for bastion-ness? (Thanks to J. McConnell for pointing to this story.)


MORE ON THE "OFFENSIVE SEXUAL OBJECTS" CASE, from the Ohio U. campus newspaper:
Journalism Professor Patrick Washburn has [enlisted] the help of a representative of the Ohio Chapter of the American Association of University Professors in his appeal of College of Communication Dean Kathy Krendl's imposed sanctions.

Josephine F. Wilson, chair of the Ohio conference AAUP committee for academic freedom and tenure, penned a letter to OU Provost Stephen Kopp alleging that university officials violated various AAUP and OU policies and practices. . . .

In her letter, Wilson states that the major violations include failure to follow university policies, denial of Washburn's due process, failure to provide Washburn with copies of documents related to his case and abridgement of Washburn's right to free speech.

Wilson writes in her letter that as an "unbiased outsider" she has a "strong impression that some persons at Ohio University are exerting a great deal of energy to defame, humiliate and harass Professor Washburn."

She goes on to write that she would be willing to discuss the case with Kopp and hear any information that could change her impression because, as she writes in conclusion, she has "heard only one side of the story."

OU Director of Legal Affairs John Burns said he is in the process of preparing a response to Wilson's letter because, though she was provided with a lot of information, "she didn't have all of the information."

Burns added that he did not think there were any procedural violations, and Washburn's attempt to focus the debate on questions of policy and procedure ignores the larger issue of the complaints and findings lodged against him. . . .

The sexual-harassment committee's findings, Krendl's decision and Washburn's subsequent appeal all stem from Independent Counsel James Sillery's comprehensive review myriad complaints against Washburn that found one instance of sexual harassment. The instance related to a complaint that he showed a female student a nutcracker in the shape of a woman's legs. . . .


The only problem I see counter to Sullum's piece . . . [is that i]f reproductive cloning were to become very popular as a means of reproduction, then the long-term effects on the human gene pool would be negative, potentially extremely negative.

Genetic diversity is really important to the well-being of the human species, and reproductive cloning is one of those cases where what's good for one individual may not be so good for society as a whole.

That said, do I think reproductive cloning should be banned? Probably not.

But to the extent it offers no advantages over existing reproductive technologies (in vitro fertilization, including the ICSI procedure, etc), I don't see why any rational person should choose to pursue reproductive cloning . . . . . I suppose I'd rather see it scorned rather than banned. People make lots of bad choices, and as long as a large minority doesn't choose cloning, I suppose we can live with it . . . .
I share the reader's view that reproductive cloning should not be banned, simply because I have no reason to think that it's likely to become so "popular as a means of reproduction" that it would dramatically reduce "[g]enetic diversity." First, if cloning is expensive, lots of people would prefer to have kids the free way. Second, if cloning becomes very cheap, to the point that billions of people do it, then this won't dramatically diminish genetic diversity, since billions of people, not just a couple of hundred, would be getting cloned. (I realize that one can postulate situations where everyone prefers cloning to normal reproduction, but not everyone does either, so over many generations, genetic diversity will indeed substantially decline -- but this seems to be a highly unlikely scenario.) Third, many couples might still want to have children who are a blend of their genes, rather than a copy.

     Banning a technology seems to be a vastly excessive response to extremely speculative and far-fetched fears that maybe, many generations in the future, the technology might eventually lead to things that endanger the species. As I've written at length elsewhere, I am certainly open to arguments that sometimes our making a seemingly good decision today (allow cloning) may increase the likelihood of others making a bad decision in the future. But one still have to analyze these arguments on the merits, and consider just how likely these bad effects will be. They strike me as extremely unlikely here -- and certainly not likely enough to justify a cloning ban.


RAPE AND WITHDRAWAL OF CONSENT: In a widely reported case, the California Supreme Court held last week that "the offense of forcible rape occurs when, during apparently consensual intercourse, the victim expresses an objection and attempts to stop the act and the defendant forcibly continues despite the objection."

     I've heard some criticism of this rule, but it seems to me quite consistent with the statute -- Cal. Penal. Code sec. 261(a)(2), "Rape is an act of sexual intercourse . . . accomplished against a person's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the person or another" -- and with justice: If indeed a woman says "no" in the middle of the act, and the defendant forcibly continues, it seems to me to be forcible rape just as if the woman said "no" at the outset.

     If the concern is that the defendant might not understand the woman's statements, or think that she's joking -- a possibility, I suppose, in some circumstances, though I suspect in rather few -- California law does provide the defendant with a defense: As the dissent points out, it is still the rule that "a defendant’s reasonable and good faith mistake of fact regarding a person’s consent to sexual intercourse is a defense to rape." But if the defendant knows (or, in context, reasonably should know, given her statements) that the woman no longer wants to have sex, and the man forcibly proceeds, I don't see any plausible justification for the defendant's conduct.

     It's possible that, on the facts of this case, there wasn't enough evidence here to support a conviction under the rule -- Justice Brown argues this in her dissent, and I express no opinion about that. But in any event, the underlying legal rule seems to be correct.


CAMBRIDGE UNIVERSITY PRESS ON BJORN LOMBORG'S BOOK: This is a response by Stephen Bourne, Chief Executive of the Cambridge University Press to a message from Matt Ridley, author of Good-Natured and Genome; I'm reproducing it with both Mr. Ridley's and Mr. Bourne's permission:
Dear Mr Ridley -

Thank you so much for your email.

It won't surprise you to know that the campaign of opposition has meant that I have to deal with rather more attacks on Dr Lomborg's work than plaudits. But be assured: we are not discouraged by all this, as we believe that Dr Lomborg wrote the book in the spirit of honest intellectual debate and enquiry, which, after all, is what academia is all about (or should be). And I note that, even if the Danish scientific community did not regard the book as complying with scientific research standards, they did not suggest that Dr Lomborg was dishonest, in the conventional sense of the word. Fortunately, both the general public and many in the academic community share the view that there are inevitably two sides to problems of this kind and, while some of them find Dr Lomborg's conclusions uncomfortable, they recognise that the issues are not simply black and white. And that, in the end, is what the book is telling us: the impression has been created of a world in a state of terminal meltdown, but there are also positive stories to be told, so it's right that someone should challenge the traditional position.

What has surprised us in all this is the vehemence of the opposition. Clearly, Dr Lomborg's propositions are a threat to certain environmental lobby interests and beliefs - and I respect those concerns. But I am disappointed in those who would suppress the debate and exercise intellectual censorship. And I am amazed that Dr Lomborg's opponents and detractors continue to be so publicly strident, thereby simply fuelling the public appetite for the book. Meanwhile, this Press continues to publish on both sides of the discussion. Let us hope that what comes out of this is a clearer expose of the issues.

Many thanks, once again, for your analysis of the situation, and for your supportive comments.

Stephen Bourne


THE KEY TO SUCCESS IN LIFE: You've got to know when to be a hard-ass -- and when not to be. OK, it's not the key, but it's one of them.


human clones would not be copies of people already born, unless you take the view that one's identity can be reduced to DNA.

If that were the case, "identical" twins would literally be indistinguishable, one person rather than two. The fact that they are not demonstrates that people are more than their genes.

As Reason science correspondent Ron Bailey has observed, a person and his clone would in fact be less alike than identical twins, since they would be separated in time, probably by a generation or more, and would therefore have quite different experiences. In any case, there is no question that they would be distinct individuals, each with his own rights and his own life to lead. . . .

[Nor does t]he fact that someone else has the same genes as you . . . give you a right to treat him as a means to an end . . . . Identical twins do not have license to enslave each other or use each other for spare parts, so there is no reason to suppose that anyone would ever be permitted to treat his clone that way. . . .

The moral objection to cloning that carries the most weight is the concern, based on research with other mammals, that babies produced through nuclear transfer would have an unusually high rate of birth defects.

If so, reproductive cloning is unethical until this problem can be overcome. Assuming that healthy babies can be produced through cloning, however, it's hard to see why the method should be banned.

Some critics worry that clones would be constrained by parental expectations based on their genetic endowment. This concern is valid, but it is not different in kind from the issues raised by the usual adolescent struggles for independence. Children produced through conventional means also may have parents with unreasonable expectations, and that is not generally seen as grounds for government intervention.

Likewise, parents who consider cloning might not always have the most admirable motivations, but the same is true of people who reproduce the traditional way. The existence of egomaniacs who want to create miniature versions of themselves should not foreclose the option of cloning to infertile couples for whom it may be the only way of having genetically related children.
Exactly right, it seems to me.


HEROISM AND SURVIVAL: Brink Lindsey has some thoughtful remarks on heroism and national survival:
[Historian Peter Green’s The Greco-Persian Wars] recounts in thrilling detail Themistocles’ Churchillian stand against the invading barbarian -- his refusal to accept the possibility of Athenian subservience to Persia, his willingness to risk the utter destruction of his polis in defiance, his vision to see how victory was possible, and his political mastery in realizing that vision in action. Yet though the story has a happy ending -- the Greeks prevailed and the Golden Age ensued -- it’s really impossible to conclude that Themistocles faithfully served the “national interest” of Athens, if that interest is to be defined narrowly as the sum of the personal interests of Athenian citizens in peaceful, quiet, happy lives. Resistance wasn’t the only option, after all. Plenty of Greek city-states had recognized Persian sovereignty and prospered with a very light touch of imperial oversight. Those that defied the Great King, however, had been squashed like insects. Themistocles’ policy of unbending defiance threatened to bring death and destruction to his people, perhaps the annihilation of Athens altogether -- all for something as ineffable as self-rule.

Yet the verdict of history is that Themistocles is a great man. Should we question history’s judgment? How can we, when we know what followed? Even if we block out our hindsight, can we really find fault with bravery in the face of a conqueror? Does calculation really trump virtue?
There's more there, about Churchill, and other things. Much worth reading. Even much worth thinking about. (Thanks to InstaPundit for the link.)


MONEY TALKS: Just read a funny poem by Richard Armour:
That money talks
I'll not deny;
I heard it once:
It said, "Good bye."


IDEOLOGICAL HIRING AT THE DEPARTMENT OF JUSTICE?: The Washington Post had a very interesting article yesterday about changes in the hiring process at the DOJ Honors Program. The Honors Program is the main way that DOJ hires young attorneys. It's a prestigious program and often considered a great way to start a career. (Full disclosure: I was in the Program from '98 to '01.) The Post’s article reports that the political appointees who run DOJ have started to take a significant role in the hiring process for the first time in decades, and that some career lawyers have charged that the new involvement has biased the hiring process in favor of conservatives. The political appointees have denied the charge, and claim among other things that they are simply opening up DOJ to a more diverse range of applicants.

     To see why the career lawyers and political appointees could look at the hiring process so differently, imagine that you are in charge of hiring for the Civil Rights Division at DOJ. You have two candidates with similar credentials who have applied for one position. One of the candidates has shown a commitment to progressive politics and championing civil rights issues. This candidate (call him “A”) has interned at the ACLU, taken lots of civil rights courses in law school, and has written a student law review note arguing that the Rehnquist Court has improperly gutted the civil rights laws. The other candidate (call him “B”) is a political conservative, and has served as the president of his law school’s chapter of the Federalist Society. B has interned at the libertarian Center for Individual Rights, and has written a law review note urging Congress to narrow the scope of civil rights laws. Who should get the job, A or B?

      I think there are two basic ways of looking at the question, and the Washington Post article reveals the tension between the two. One way is to say that obviously A should get the job: A has shown a commitment to civil rights, and B has not. From this perspective, A is committed to DOJ’s mission of enforcing the civil rights laws, and B is committed to undermining that mission. Not only should A get the job over B, but someone like B should never get a job in the Civil Rights Division. The other way is to call the choice a toss-up: both A and B have similar credentials, and the only real difference between them is their politics. From this perspective, rejecting B because of his views discriminates against B for his conservative politics. It imposes an unfair litmus test: conservatives need not apply.

     As best I can tell, the clash between the DOJ career lawyers and the political appointees reflects a clash between these two approaches. There are many exceptions, of course, but the career lawyers who object to the hiring changes mostly take the former view, and the political appointees themselves mostly take the latter. Each sees the other as acting ideologically. The political appointees see the career lawyers as politically biased in favor of hiring liberals, and the career lawyers see the political appointees as politically biased in favor of hiring conservatives.

Sunday, January 12, 2003


SELF-DEFENSE AND COMMUNITY: A very interesting post by Steve Den Beste.

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