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Saturday, May 03, 2003


OTHER NICE THINGS: Most of the cast does a great job. The movie is less Wolverine-Centric than the first one was (and much less Rogue-centric), leaving much more room for other characters. Halle Berry actually gets some lines this time (which, say, Kelly Hu doesn't), and gets to so more impressive things than frying Toad. Ian McKellan in unsurprisingly amazing; but I'm surprised at how much Rebecca Romijn-Stamos added this time. The centerpiece action-effects sequences-- Nightcrawler's solo assault on the White House, Wolverine against Stryker's forces in the mansion, the Wolverine-Deathstrike matchup-- are very, very good.

UPDATE: I've now watched the deleted scenes on the DVD of the first movie, and I understand why they didn't give Berry any lines in the released version. The accent she was affecting was awful. Storm's background is, roughly, Afro-Egyptian, and as I recall she learned English in a telepathic crash course from Xavier. In the comics they didn't add any noticeable accent or dialect to her speech (unlike, say, Australian or Irish characters, who get saddled with absurdly excessive dialects). In the movie they gave her an accent that was a muddled mess, and it marred some otherwise very nice scenes that were then deleted. This time out, they've dropped the accent, and let Storm keep her lines; they've even gone so far as to specify that Storm is American, though with rumored relatives in Egypt, on the X2 website.


X2: First thing is: yes, it's true, the movie is better than the first one-- even much better. It's much more successful as a movie; while every ten seconds or so there's some juicy bit for fanboys (see my exclamation-point-ridden post below), Bryan Singer has managed to really figure out how to put it all together into a satisfying, coherent story that weaves together subpolts from several different clusters of characters, and to make a movie out of that story. It has enough funny moments without ever turning remotely campy; it works well as a straight summertime save-the-world action movie, while keeping moral and emotional themes that animate (so to speak) the X-Men. Compared to the other best movies of the genre-- Superman II, Batman, and Spider-Man-- I think this one might come out as the best of them all. A few thoughts about why that is:

It borrows plots, not just premises, from the comics. The Superman and Batman movies in particular, but also the first X-Men movie, treated the comics as source material for characters, for their personalities and powers and recurring situations. And sometimes they had a lot of fun in the unfolding and tweaking and developing of those situations-- Marlon Brando chewing the scenery as Jor-El, Christopher Reeve checking out the new-style phone booth, "Wait'll they get a load of me," etc. Tim Burton devoted lots of energy to developing the gorgeous look of his Gotham, too. But then, all too often, they'd their characters and settings and premisses out on the table and be unable to quite figure out what to do with them. "I've got an idea! Let's have the villain kidnap the girl and place her in mortal peril!! Or let's have someone threaten to expose his secret identity! Yawn. Of course, Batman and Superman comics themselves were like that once upon a time-- say, in the 50s and 60s: Secret-identity-protection stories ("stories") were mind-numbingly common, as were kidnapped-Lois-or-Jimmy-or-Robin stories. The big difference is that in the movies the villains had a distressing tendency to die at the end of each movie, whereas in the comics the status quo ante was always restored. The movies only exaggerated that tendency-- the Superman movies invented whole new powers (the amnesia-kiss and the spin-the-world-backwards-to-reverse-time move) to make sure that the status quo ante got really, really restored. (The first Superman movie was a nearly-great movie that was nearly ruined by the world-spinning bit.)

Spider-Man marked a big change in this respect. While it took bits and pieces from different storylines, it treated the comics as a resource for story ideas, too. WIth thirty-five years or so of Spidey comics out there, having been written by some unimpressive people and some very impressive people, it's possible to learn something about which plotlines resonate and work well for a character with that premise and which ones don't. The Harry Osborne-Norman Osborne-Green Goblin-Gwen Stacy storyline is pretty universally agreed to have worked very, very well-- so well that the writers can't quite get rid of it, can't lose the compulsion to keep trying to do it again. It had some of the standard elements-- secret identity peril, kidnapped girlfriend, etc. And one of the things that made it most distinctive was altered in the movie-- in the comics, he doesn't save the girl. But somehow it works much, much better than Jack Nicholson and Kim Basinger in the bell tower.

X-Men is free of lots of the tropes and constraints of the classic super-heroes. Most conspicuously, the secret identity shtick is entirely missing. Sure, some of the X-Men have from time to time had careers or relationships or lives outside the mansion, and some of them hide the fact that they're mutants from friends and family. But their lives are fundamentally geared around the mansion and the people who live there. The ones who hide their mutation from some loved one(s) don't then constantly show up in costume to rescue those loved one(s). There's no Bruce Wayne, foppish playboy persona, no too-curious-for-her-own-good Lois trying to prove once and for all that Wolverine really is Logan, and so on. The secret identity motif is in the comics for a reason; I'm not saying it shouldn't be. But it gets tiresome to keep making movies about it. The TV show "Lois and Clark" made a smart move in its setup (a move the comics had made just a few years before). It decided that no one had any reason to suspect Superman of having a secret identity. he doesn't wear a mask, after all. So the general understanding became that he was Superman, full-time, which spared us the "I'm going to find out who Superman really is!" plotlines (mostly). X-Men is freed from that constraint to begin with.

Similarly, the X-Men have never been a status-quo-restoring comic in the fashion of the 1950s Superman. People die on both sides; people join and leave the team; people switch sides; X-Men who were once students grow up; the school shuts down. To the degree that there is a status quo to be restored, it's not an especially happy one -- it's war-not-yet-quite-broken-out. In addition, for ten-plus years X-Men-- and related graphic novels and spinoff series-- was written by one guy, Chris Claremont, who plotted thickly and for the long term, and who became one of the best team-book-plotters ever. People make fun of Claremont now for a lot of things, and often rightly so. (I remember there being a "canonical list of Claremont dangling subplots" at one point; it was long, and some of the subplots remained unresolved for many years.) But the bulk of his run on X-Men stands as one of comics' most impressive achievements, and it was his work that made X-Men the most popular comic of its time, a position it has occupied more or less continuously ever since.

And X2 makes full use of Claremont plots. The story is loosely based on the first X-Men graphic novel, God Loves, Man Kills, one of the highlights of Claremont's run. The plot works; we know it works; use it. Bur almost everything in the movie comes from his 70s and 80s plotlines and developments of the characters: the Logan-Jean-Scott dynamic, to take one example that got old eventually but worked very well for a long time. (Unsurprisingly, Claremont couldn't keep the same quality up forever; the movie judiciously doesn't rely on much of anything after about 1988. We see Jubilee for two seconds in this movie just like we did in the last movie. On a computer screen we see the name of one of the most annoying of Claremont's creations, Remy LeBeau. But it's let go at that.)

I should note that-- unlike, say Jonah Goldberg-- I'm not fundamentally a Marvel/ X-Men fan; my preferences have always run toward DC (home of Batman and Superman). But credit where credit is due-- to Bryan Singer, and to Chris Claremont.

Friday, May 02, 2003


WILL IRAQ BECOME THE NEXT LEBANON? Michael Desch argues that the U.S. occupation of Iraq has eerie parallels to the Israeli occupation of Lebanon:

Israel’s Lebanon war and the U.S. war in Iraq are alike in at least four respects. Proponents of both wars regarded them as parts of larger plans to change fundamentally the strategic landscape in the Middle East. Advocates of each took liberties with the truth in making their cases for war. Both the Israelis and the Americans made some questionable alliances in the course of their wars. And finally, both sought to implement major political transformations in deeply divided societies.

The obvious implication is that the American occupation of Iraq will become the same quagmire as the Israeli occupation of Lebanon.

I have serious doubts about this prediction, in large part because the U.S. military victory in Iraq was much more complete than the Israeli occupation of Lebanon, which was constrained at the time by U.S. pressure. This gives the U.S. more options and more flexibility in dealing with the occupation phase.

Desch says at one point -- in words that must have been written a few weeks ago:

While the United States has won a major military victory in Iraq, difficult tasks remain: we must bring the war to a close quickly and with little additional bloodshed, keep Iraq’s restive ethnic groups from killing each other or breaking away, establish a stable democratic regime in Baghdad, and preserve regional stability. To accomplish even a few of these tasks will be a challenge.

Well, the war has pretty much ended, I don't see/hear any Iraqi groups making separtist claims, and regional stability does not appear to have been seriously affected. I've written elsewhere that many are underestimating the chances of democracy flowering in Iraq. Bad things could happen in the future, but, as I've argued previously, much of the pre-war doom and gloom scenarios haven't panned out.

I doubt this post-war doom-and-gloom scenario will play out either. However, it is a possibility, which is why I'm raising the issue. The Lebanon analogy is a useful one to remember that things in Iraq have the potential to turn sour.


SAD: I saw the following point made by George Waters on the ELECTION-LAW discussion list, and got his permission to pass it along:
Absolutely stunning that, leaving aside findings having to do with the identities of the parties, two members of the court could agree on only [12] findings of fact, #s 41 to 52 in the per curiam opinion. And even those findings begin with phrases such as "The NRA presents evidence that . . ." (No. 41, p. 95 of per curiam opinion.)

I think that the district court has basically taken itself out of the ballgame. All their legal opinions will be reviewed de novo. The findings of fact, which will be granted more deference, are minimal. Their efforts, Herculean though they may be, will have virtually no effect on the outcome of this case.
Yup, too bad -- they write over 1500 pages, which few people will read, which will not be given much deference by the Court, and which will be largely ignored once the Court hands down its opinion. Of course, lower court opinions can often influence the Justices, but here (1) the Justices already have pretty well-settled views on their own about the general issue, (2) there'll be lots of briefs that will explore the questions, and (3) I doubt that anyone will read 1500 pages as carefully as they'd read 50. All that work, for very little.

UPDATE: Linda Greenhouse in the New York Times likewise thinks that the opinion means little:
Would this bloated judicial product have the power to shape the eventual decision by the Supreme Court, the court that will finally determine the fate of the Bipartisan Campaign Reform Act?

The answer was almost certainly no.

When the justices take up the case, probably no sooner than the start of the next Supreme Court term in October, they will be free to start from scratch, and they almost certainly will. The Supreme Court has a strong record of overturning lower-court opinions in campaign finance cases.

The deference the Supreme Court usually pays to a lower court's factual findings is absent in this case, because the special three-judge federal district court conducted a trial only on paper, reviewing tens of thousands of pages of affidavits and depositions about the current campaign finance system and the likely impact of the changes made by the new law. Appellate judges usually defer to trial courts because it is the trial judge, after all, who actually watches the witnesses and hears the testimony, an experience the appellate court cannot duplicate.

But the justices are capable of reading a paper record themselves, and they likely will read it, or at least substantial portions of it.

Further, the panel in this case failed to accomplish the one task that might have sent a decision on to the Supreme Court with a certain momentum: to produce a unified and coherent set of factual findings and legal conclusions.

Instead, the panel produced the opposite. . . .


MORE ON THE EMERGING SHI'ITE MEME: Glenn Reynolds links to this story from The Scotsman indicating that not all Shi'Ites in Iraq are eager to see either an Islamic Republic or a hasty withdrawal of U.S. troops. This would be consistent with the Shi'ite meme of the week.

An embarrassing question: is the proper spelling Shiite or Shi'ite?

UPDATE: J.B. Devries has a long post on Shi'a politics, and links to this fascinating Adam Kushner article on Hezbollah in the Columbia Political Review. The most provocative grafs:

[Boston University Hezbollah expert Augustus Richard] Norton authored a paper in 2000 called “Hezbollah: From Radicalism to Pragmatism?” and argued that during the 1990s, Hezbollah changed its focus to domestic politics, electing members to the Lebanese parliament and consolidating political power among the Shiites of southern Lebanon. Academics around the world are starting to take notice, even if the press isn’t.

“For the past 12 years, Hezbollah has been playing a different kind of game inside of Lebanon,” he said. “They’ve been in the parliament since the beginning of the 1990s.” Hezbollah was founded to overturn the ruling order with an Islamic Revolution. Twenty years later, in an astonishing volte-face, its members now stand for election. “This is an organization with a popular base; I’d say that in Lebanon there is something on order of 1.1 to 1.2 million Shii Muslims. Of that, they probably attract the loyalty of at least a third, probably more,” Norton said....

The whims of its constituents have also helped moderate the Hezbollah agenda. Public opinion polls show that residents of southern Lebanon detest any Hezbollah behavior that incurs Israeli retaliation. They crave stability and trade, not jihad. Lebanon, along with Iraq, is a traditional hub of Middle East trade; instances of violence and instability generally hurt Lebanese business interests.

“We don’t want to conquer anybody,” said Ziad Abdelnour, who chairs the United States Committee for a Free Lebanon. “We are pro-Western business people, entrepreneurs, builders. That’s who we are in Lebanon; we want to be left alone.”

Click here for a much more pessimistic view of Hezbollah's aims.


FACTUAL FINDINGS: Rick Hasen writes about something that Orin Kerr had in some measure anticipated:
The factual findings -- the part that the Supreme Court, at least in theory -- is supposed to show the greatest deference to, are pretty skinny in the per curiam opinion. The individual judges make findings on their own (Kollar-Kotelly and Henderson battle over the usefulness of the Buying Time study of the Brennan Center, and Leon takes a middle position on the study). Without a majority on facts, to what does the Supreme Court defer?
Indeed. As Rick had blogged earlier, it's the factual findings that are most important in the district court opinion -- the Supreme Court Justices will consider the legal questions afresh, but in theory they're supposed to follow the district court's factual findings (since district courts hear evidence, and the Supreme Court doesn't):
Whatever the three-judge court decides in the BCRA case on the legal issues is relatively unimportant. The Supreme Court will not defer to the lower court's decision. (So if you see Mitch McConnell (or, less likely but still possible, Fred Wertheimer) crowing at some press conference in the near future about a "victory," realize how premature this is.) In the most recent Supreme Court campaign finance cases, Shrink Missouri and Colorado Republican II, the Supreme Court reversed the lower court on the legal issues.

What will be significant in what comes out from the district court (likely in the next day or so, I believe) are the court's factual findings. There is supposed to be some deference by the Supreme Court to the lower court's factual findings, and yesterday's order regarding the Buying Time study indicates that there may be some important factual findings in the opinion, particularly on the extent to which the new test for separating election speech from issue advocacy captures "genuine issue advocacy" (as opposed to thinly veiled campaign ads -- or sham issue advocacy). But even there, the Supreme Court might not be too deferential. . . .
So what is the Court to do when the factual record that the district court is supposed to have developed isn't very useful, given that the lower court judges themselves disagree about it?


BACK FROM PLAYING HOOKEY: As Jacob said, went to see X2 and enjoyed it. What intrigued me is that we're currently living in a golden age for geek movie-goers. The X-Men series. The Matrix series. The Lord of the Rings series. We saw previews for both Hulk (which looked damn cool) and The League of Extraordinary Gentleman (which looked pretty incoherent).

Of course, at the end of this year both the Matrix and LOTR series will have played themselves out. And everyone with a 13-year old geek inside them will feel a sense of loss.


MIA: I stole Dan for the afternoon and we went to see X2. Cool, cool, cool, better than the first though I think you need to have seen the first to make any sense of it. Big review and commentary post coming tonight. In the meantime: Nightcrawler! Bamfing! Colossus! Shadowcat! Artie! The Morlock Tunnnels! Proteus (mostly)! God Loves, Man Kills! Deathstrike! The P-word that I shouldn't use here in case anyone who knows what it refers to wants to be surprised! Mythos from Highlander! Hank McCoy! Project Wideawake! Matrix trailer! Hulk trailer! League trailer! and more, and more. Ian McKellan, is very, very good at what he does... I'd never have thought that they could cram so many bits from so many different comics storylines into one plotline for one movie, and have it work so well. I think that non-fanboys will fully enjoy it, too (Dan did, and he doesn't know most of the references-- or at least didn't, before I took it upon myself to enlighten him). UPDATE: My buddy Todd Seavey has convinced me that-- contrary to my initial impression-- Jason Stryker is Legion (mostly). I had mixed up some of the identifying bits about Legion and Proteus; thought that "Mutant 143" was a reference to Proteus' original anonymizing designation (which was actually "Mutant X"); and thought that the blue-eye-green-eye bit was Proteus rather than Legion. My brother had the same inchoate sense that Jason was a hybrid of the two characters. But I can't quite express why it seems that way, and it may just be that they've gradually merged in my own memory. So, anyway, replace "Proteus (mostly)!" with "Legion (mostly)!" Does anyone remember for sure which character had differently-colored eyes? UPDATE AGAIN: Several folks have pointed out similarities to Mastermind, starting with the first name Jason. And MM's powers certainly had the same apparently-reality-altering aspect to them-- the aspect that was pa t of why I was thinking of Proteus to begin with. I'm sure you're all right that MM's in there. But Jason Stryker simply wasn't, well, much of a mastermind; Jason Wyngard was very active, a planner, someone who knew what he was doing and didn't need anyone else to give him his ideas. He wasn't a sad case in the way that Legion was.

See also this post above which includes links to lots of other people's commentaries, and my own mocking of reviewers who misunderstood basic plot points.


SPEAKING UP FOR FUNDAMENTALISTS: Bo Cowgill points to my Jews-and-sex post and writes:
Eugene Volokh finds a study suggesting that Jews have more sex. Yet another reason for fundamentalists of all breeds to hate them, I suppose . . . .
     I'm surely no fundamentalist myself, but I don't think this criticism of fundamentalism is quite right. To my knowledge, groups that are generally identified as fundamentalist Christians are generally not particularly likely to be anti-Semitic; in fact, as I understand it, many of them are fairly staunch supporters of Israel. (Yes, one can oppose Israel and not hate Jews, but it's not terribly likely -- though I agree that it's theoretically possible -- that one would support Israel and hate Jews.) True, many fundamentalists believe that Jews cannot be saved if they don't accept Jesus, but that's because they believe that no-one can be saved unless they accept Jesus; and they don't hate Jews because of it.

     Fundamentalists get a lot of grief; some of it may be deserved, but quite a bit, in my experience, has been undeserved. It seems to me that people ought not make erroneous generalizations either about Jews or about fundamentalists.

UPDATE: Reader John Thacker points to this Anti-Defamation League article that supports my factual assertion -- Evangelical Protestants (which generally refers to what many people would call fundamentalist Christians) are not particularly anti-Semitic.


CAMPAIGN FINANCE REFORM AND TIMING: So the opinions in the Bipartisan Campaign Reform Act case take up over 1500 double-spaced pages. The Justices must be thinking "Good Lord, if it took three judges so much time, effort, and e-ink to hash all this out, it will take the nine of us at least as long." And yet presumably the Justices would like to get this resolved sooner rather than later, so as not to change the rules of the game in the very heat of the 2004 campaign. (If the enforcement of the Act is stayed and then the Court upholds part of it in, say, February 2004, campaigns will suddenly have to radically adjust their behavior; if enforcement isn't stayed and then the Court strikes down part of it in February 2004, campaigns will likewise have to radically adjust their behavior, albeit in different ways.)

     Maybe that's no longer possible, but if the Justices still want to try, what can they do? Presumably they could promptly agree to hear the case (maybe the parties will file the jurisdictional statement for the appeal earlier than they need to, precisely to get this expedited), give the parties limited time to file the briefs -- though if the case is so complex, presumably there'll be some real work needed, since litigating a case before the Supreme Court, which can change the precedents, is different from litigating it before a lower court -- and then hear the arguments quickly, perhaps by late June. Then they might work on the case over the Summer, and try to hand down an opinion by September or October.

     But I've never heard of the Court actively working on an opinion throughout the Summer, and it actually poses nontrivial (though not insurmountable) institutional problems. The U.S. v. Nixon tape subpoena case, for instance, was argued on July 8, 1974 but decided on July 24, 1974, and I highly doubt that the Court could get this decision out this quickly. Cooper v. Aaron, the landmark 1958 Little Rock desegregation case, was argued on August 28 and September 11; a quick per curiam was handed down on September 12, and then the main opinion was handed down on September 29, with a concurrence following on October 6. That case, though, involved simple though difficult questions, and relatively short resulting opinions. Neither of the cases involved continual work throughout the Summer -- but given the likelihood that the Justices will be as split on this as they were in Buckley v. Valeo (8 sitting Justices, 6 opinions) and as the lower court judges were in this case, I think it would require several months' worth of work, rather than just a few weeks' worth.

     So what will the Justices do? Might they conclude that they can't avoid the interference with the 2004 election in any event, and just decide the case in the normal course of things? Am I exaggerating the likely interference in any event? Or will they try to get things done as quickly as possible? I don't know the answer to this, but I suspect that a lot of politicos and election lawyers are asking precisely these questions right now.

UPDATE: Rick Hasen of the Election Law blog -- who's a major expert on election law, though one with whom I disagree on a lot of the constitutional questions -- writes:
[T]he Supreme Court working on the case over the summer . . . seems unlikely to me too . . . . I see either expedited briefing with an opinion out at the end of (a possibly extended) term, or oral argument the first Monday in October.


REPUBLICANS AND CONSERVATIVES: Jim Lindgren, a lawprof at Northwestern, and the director of the Demography of Diversity Project there, writes this apropos the University of Miami student government's rejection of a proposed conservative student group on the grounds that there's already a Republican student group:
If the AP story is correct, one sad part of this affair is the false assumption that conservatives and Republicans are not just related, but that they are more or less the same thing. I ran data from the University of Chicago General Social Survey (GSS), the most used data source among sociologists except for the US Census.

In the 18-29 age group in the 1998-2002 GSS, only 43.4% of those who call themselves conservatives consider themselves to be Republicans, while fully 15.0% of conservatives consider themselves to be Democrats (n=366 conservatives). If you add those independents and minor party adherents who merely lean Democratic, then 27.6% of conservatives 18-29 are Democrats or lean Democratic. Only if you add in those independents and minor party adherents who lean Republican could you even say that a majority of conservatives (56.6%) are Republicans or lean Republican.

If you combine all ages, then 47.4% of conservatives consider themselves Republicans, 19.5% of conservatives consider themselves Democrats, and 26.4% of conservatives are either Democrats or lean Democratic (n=2301 conservatives).

If you confine the analysis to students 18 or older in the 1972-2002 GSS, then 46.4% of conservatives consider themselves Republicans, 22.4% of conservatives consider themselves Democrats, and 30.6% of conservatives are either Democrats or lean Democratic (n=330 conservatives).

These attempts to stifle viewpoints are all too common on university campuses. It hard to believe that just 40 years ago, university campuses were perhaps the places in our society most open to the viewpoints of political minorities.


THE PATRIOT ACT AND ARCATA, CALIFORNIA: According to the Washington Post, last month Arcata, California became "the first in the nation to pass an ordinance that outlaws voluntary compliance with the Patriot Act" (emphasis added). NPR introduced its story about this by saying that "Arcata is the first city in the country to pass an ordinance outlawing voluntary compliance with the Patriot Act." CNN: "The city has become the first in the nation to pass an ordinance telling town officials not to comply with the Patriot Act . . . ."

     Fox News: "The Patriot Act is running into resistance as some towns consider laws to forbid voluntary cooperation. Earlier this month, Arcadia, California, became the first in the nation to actually ban the Patriot Act." UPI: "Arcata's ordinance, which passed on a 4-1 vote last month and takes effect in May, instructs senior city managers to not get involved with any federal operations that invoke the Patriot Act." The San Francisco Chronicle: "Arcata, that tiny North Coast bastion of the robustly liberal, has quietly made itself the first city in the nation to outlaw voluntary compliance with the USA Patriot Act" (though it qualified this a bit later).

     Not so. The ordinance does not generally outlaw voluntary compliance with the Patriot Act. Rather, it says (emphasis added):
No management employee of the City shall officially assist or voluntarily cooperate with investigations, interrogations, or arrest procedures, public or clandestine, that are in violation of individuals' civil rights or civil liberties as specified in the Bill of Rights and Fourteenth Amendment of the United States Constitution.
The drafter of the ordinance echoed this in the NPR and CNN stories, saying that "our management employees should not cooperate in any way with federal officials enforcing the Patriot Act if that is unconstitutional or contrary to the Bill of Rights." So did the San Francisco Chronicle article, though several paragraphs after its "outlaw voluntary comparison" lead.

     The ordinance thus allows a wide range of voluntary cooperation, so long as the cooperation isn't unconstitutional; and, as various cobloggers of mine and I have argued, the Patriot Act is generally quite constitutional (though, like all laws, it may at times be applied unconstitutionally, and though a very few of its provisions may pose special constitutional problems). Since government officials already have a legal obligation not to act unconstitutionally, the ordinance thus does not create any new legal obligation, though it does provide a new means of enforcement -- prosecution for violation of a city ordinance -- and of course also makes a public statement. The City of Arcata might actually think that much of the Patriot Act is unconstitutional; according to the San Francisco Chronicle,
[T]he Arcata City Council approved an ordinance telling its management workers they cannot "officially assist or voluntarily cooperate" with any investigators trying to carry out what the city considers provisions of the Patriot Act that violate the Bill of Rights and the Constitution.

Which, city leaders said, is pretty much all of the act except the heading on the governmental letterhead.
But (1) the law doesn't bar cooperation with provisions that the city considers violate the Constitution, but rather bars cooperation only "where such procedure is in violation of . . . the Bill of Rights and Fourteenth Amendment," which would be up to courts, not the city, to decide; (2) the city leaders are quite likely mistaken on the constitutional issue (if the Chronicle's description of their sentiments is accurate); and (3) in any event, by only banning unconstitutional conduct, the ordinance bans only conduct that is already prohibited.

     Incidentally, while I'm not an expert on California statutory construction rules as applied to ordinances, my guess is that courts will infer a so-called "mens rea" -- guilty mind -- requirement, under which the ordinance will apply only if the government official knows that his conduct was unconstitutional, or at least knows there's a substantial chance that it's unconstitutional but blithely ignores this possibility (something that the law generally calls "recklessness"). The actual scope of this ordinance would thus be particularly small, because it would apply only to conduct that the government official knows is unconstitutional.

     Unless I'm badly mistaken on this -- and I'm pretty confident here -- some of the nation's top news organizations seriously misstated what the Arcata ordinance did; and if they had just read the ordinance itself, they would have seen the error. This isn't rocket science. The ordinance isn't in incomprehensible legalese. Couldn't news organizations do a little better? And how can we trust them on other matters, legal and otherwise, when they make such basic mistakes?


CAMPAIGN FINANCE DECISION IS OUT: View the AP story here. Read the opinion here. Keep an eye out for Rick Hasen's analysis which will surely be forthcoming here. (Thanks to How Appealing for the link.) Meanwhile, over at they're still leading with the Mark Geragos story . . .


ALL THE NEWS THAT'S COMPLETELY IRRELEVANT: For the last few hours, the lead story on has been

FOX NEWS: The Fox Report will be running a story tonight about university speech codes, and in theory they should be using a sentence or two (have no idea which ones) from me. They tell me the current plan is for it to start shortly after 7:50 pm Eastern, but one never knows with these things.


WELL, WHAT A SURPRISE DEPARTMENT, PART TWO: My colleague Jonathan Zasloff writes, citing this Ha'aretz article:
The road map has been public for less than 48 hours, and Arafat has already broken it. The road map was exceptionally clear on the new structure of Palestinian security: only three agencies, all under the direct supervision of the Interior Minister, who reports to the Prime Minister. Arafat has now created a "National Security Council" with himself as chair, to oversee all security operations. As the Ha'aretz reporter accurately states, "In practice, the establishment of the council empties the new structure of the Palestinian security services of its content and derogates from the ability of Abu Mazen and Dahlan to implement security reforms."

If the Bush Administration does not respond swiftly and firmly to this direct flouting of the road map, the entire process is dead. US policy should be clear: it will withdraw the road map and refuse to engage in any negotiations unless the Council is immediately terminated. The US should also immediately send a new military and civilian aid package to Israel. Criminologists have long argued that it is the certainty and swiftness of punishment, not its severity, that count. Here's a chance to test the theory with Arafat, the Palestinian arch criminal. Anything less essentially condemns the region to more violence.

The interesting question at this point is not whether Arafat will do all that he can to subvert the road map (and thus subvert Abu Mazen). It is, rather this: is there anything that Arafat can do that will convince his European backers that he isn't interested in peace and is committed to terror? Or is it just that they don't care?


MORE SPEECH RESTRICTIONS AT UNIVERSITY CAMPUSES: This is a private university, so it's not legally bound by the First Amendment; but most private universities take the view -- which is usually correct, I think -- that private universities ought to, as a matter of academic freedom, follow the same rules as public universities must follow as a matter of constitutional law. And if the facts are as this this AP article reports them to be, then the student government's conduct is clearly improper:
Four University of Miami conservatives say the student government is blocking them from starting a club and say the college's president, former Clinton Cabinet member Donna Shalala, has refused to intervene.

The students say they were told by student leaders that since the university already has a College Republicans chapter, there was no need for another conservative group. Shalala, who was Clinton's Health and Human Services secretary, has ignored a letter asking for help, the four women and their supporters say. . . .

"There's a difference between Republican and conservative," said Sarah Canale, 19, the would-be club's co-president. "But they kept telling us there's too much overlap with the College Republicans."

A university spokeswoman said Thursday that neither the school nor the student government would comment. . . .

They submitted an application to the student government committee that oversees clubs asking for recognition but were refused, they say. They continued meeting anyway, but learned when they tried to hold a support-the-troops rally during the Iraqi war that without university accreditation they could not advertise on campus, invite speakers or use school facilities.

They resubmitted a revised constitution to the club oversight board, trying to highlight that they were not interested in party politics. They were denied again. . . .

In response to the letter, the women were given another hearing before the club oversight committee. The meeting lasted 40 minutes and felt like an "interrogation," Canale said.

"We really think we made the point that we didn't overlap with the College Republicans," Canale said. "And even if we were, we feel like there's so many clubs on campus that overlap already, so the argument doesn't make a lot of sense at all."

There are approximately 175 clubs on campus and many of them have similar agendas, [Foundation for Individual Rights in Education] president Alan Charles Kors argued in his letter to Shalala.

"UM recognizes, rightly, that 'liberal' does not mean 'Democrat' ... ," Kors wrote. "Why, then, does your institution believe that 'conservative' necessarily means 'Republican?'"

But the letter appeared to have little effect, said Canale . . . .
Thanks to InstaPundit for the pointer.


BATTLE ROYALE OVER THE SOCIAL SCIENCES: Following Jacob Levy's links, I winced, I physically winced, while I was reading Megan McArdle's broadside against the humanities and all of social sciences save economics. Megan's basic argument is that economics relies on "the scientific mindset" while the other fields do not. Megan's comments page has prompted even more extreme rhetoric, such as this lovely passage from one David Thomson:

The Ph.D. is largely the degree of the intellectual slut. One usually must be a whore who has little self respect and integrity. Do I offend anybody? Tough, thats just the cold reality of the matter.

As someone who's had graduate-level training in both economics and political science, I could write a long disquisition on why Megan and David are mostly wrong about the social sciences, but Henry Farrell and Kieran Healy have done much of the hard work.

I will mildly defend Megan on one aspect of her argument -- methodology in the humanities. Scholars working on close textual analyses of Shakespeare's works rely on a different analytical tool kit than the social scientist -- as they should. However, a lot of recent research in in the humanities focuses on non-conventional forms of literature -- personal diaries, dated textbooks, old self-help manuals, or other examples of "found" literature.

I don't argue that these documents aren't worthy of serious analysis -- they are. It's just that much of this analysis boils down to either social history or cultural sociology -- in other words, social science. Many humanities scholars lack the methodological training to do this kind of analysis properly, and so, as a result, they produce work that is inferior to what a historian, sociologist, or anthropologist would do.


BLOGGERS AS JOURNALISTS? If I may offer a friendly amendment to Dan's claim, I agree that bloggers generally aren't reporters, in the sense of people who just aim to report the facts. But it seems to me that we're no different in many ways from opinion columnists, who mix fact, judgment, and argument.

     I'm interested in this partly because I've been wondering for a while how various laws that offer special benefits to the media -- for instance, the limited privilege that some states offer to reporters who refuse to reveal their confidential sources, or special press access to various locations (such as crime scenes), or the ability to avoid much or all defamation liability by publishing timely retractions, or the exclusion from certain political campaign expenditure rules -- would apply in a world where any of us can be a member of the media. (I'm generally not talking about First Amendment rules [except as to the controversial First Amendment reporters' privilege, which some federal courts have recognized], which usually apply equally to the media and to others, but rather about special benefits that the legislatures voluntarily provide to the media.) Would bloggers be able to take advantage of these rules? If someone e-mails you something, and then it becomes relevant to a lawsuit, may you refuse to turn it over, citing the reporter's privilege (if your state provides it)? What if the e-mail didn't have to do with a story you were already covering, but you argue that your blog covers a wide range of topics, and any e-mail is potential fodder for a blog post?

     Incidentally, if anyone has examples of real-life controversies that have raised this "Are bloggers 'media'" question -- whether or not they have come to court yet -- I'd love to hear them. I'm less interested in e-mail about general moral/political/philosophical/legal theory arguments about what the rules should be; but concrete stories (or specific caselaw that bears on the subject) would indeed be quite valuable.


HOW BLOGGING CHANGES THINGS: Last month, when the Sean-Paul Kelley got caught plagiarizing on his blog, there was much handwringing about whether bloggers were journalists or not.

My take on the question is that the value-added of blogging is usually not acting as a journalist.

That said, I will confess that on one dimension, bloggers are treated like journalists. In the past few months, when a friend or colleague relates really good dirt to me, they usually preface it by saying, "Don't put this on the blog."


ASSAULT WEAPONS BAN: Jacob Sullum at Reason's Hit & Run writes:
The "assault weapon" ban is important as a precedent precisely because its justification is so slight. It suggests that you don't need a good reason to limit Second Amendment rights. It also invites further infringements down the road, as supporters take the critics' arguments to heart and start arguing that the ban is not broad enough. After all, it covers only a very small percentage of the guns used in crimes.
I'm actually not sure that the assault weapons ban does violate the Second Amendment (for complex reasons that I lack the time to go into, but that are indeed based on the very slight actual burden that it itself imposes on people's ability to be armed), but the general point is quite right. (The reason the justification is so slight is that, as Sullum points out, the law "ban[s] weapons based on little more than their militaristic appearance. As [Rep. Ron] Paul notes, the guns covered by the law are not true assault rifles, which are capable of automatic fire. The banned weapons are semi-automatic guns, firing once per trigger pull, that are neither especially dangerous nor especially favored by criminals.") And if you're inclined to pooh-pooh the slippery slope argument here, consider what Charles Krauthammer, a proponent of a total gun ban says:
In fact, the assault weapons ban will have no significant effect either on the crime rate or on personal security. Nonetheless, it is a good idea . . . . Its only real justification is not to reduce crime but to desensitize the public to the regulation of weapons in preparation for their ultimate confiscation.


WOMANIZER: Shouldn't this mean "a surgeon who performs male-to-female sex-change operations"?


KIDS AND GUNS: Reader William Sulik e-mails, referring to this post about CBS's "Kids and Guns" item including, in its first factoid, people up to age 24:
So according to CBS, President Clinton really did have sex with a Kid -- since Monica was 23 when they had intimate relations.
A kid and a juvenile, under the CBS approach.


CONFIRMATION HISTORY: IGNATZ & THE SESSIONS NOMINATION Sam Heldman alleges several errors in my post on the history of judicial nomination fights (see also here), but he only identifies one. Heldman claims I was wrong to suggest that the defeat of Jeff Sessions' nomination to a district court in Alabama was "one of the most notable examples of Democratic "obstruction" of Reagan nominees." Heldman recommends the transcript of the hearings -- "it will knock your socks off" -- as evidence that Sessions deserved to be voted down. Here Heldman alludes to serious charges of racial insensitivity lodged against Sessions. Sessions denied the worst of these charges -- and his account had some corroboration -- but Heldman is correct that the charges were serious enough to justify doubts about the nomination. Indeed, one of Sessions' home state Senators -- Howell Heflin -- voted against the nomination in committee, as did one of the committee's Republicans (though it is interesting to note that Sessions was subsequently elected to fill Heflin's seat in the Senate).

Whether or not the Senate Judiciary Committee was justified in voting down the Sessions nomination, I think the context supports my initial suggestion that the action symbolized growing Democratic efforts to obstruct Reagan's judicial nominees in the mid-to-late 1980s. Beginning in late 1985, Senate Democrats announced efforts to try and slow down the rate of judicial confirmations. It was clear that the primary reason for this was that Democrats and liberal interest groups, such as the Alliance for Justice's Judicial Selection Project, were concerned about the ideological make-up of President Reagan's nominees. But Senate Democrats were unwilling to make ideology an overt issue. As the Washington Post reported on November 12, 1985:
Since they are loath to oppose a nominee solely on ideological grounds, the Democrats have trained their fire on other issues -- credibility, temperament, discrepancies in testimony -- to wound the most conservative nominees for judgeships and Justice Department vacancies.

As it happens, Sessions was the first victim of this campaign. Although other judges were also targeted, Sessions was the first Reagan nominee to a district court rejected by the Senate Judiciary Committee.

Again, whether merited or not, Sessions' defeat was the first in what became a serious effort to keep conservative appointees off the bench in the mid-to-late 1980s. In November 1986, the Democrats retook the Senate and quickly announced plans to slow down the nomination process. Incoming Senate Judiciary Committee Chairman announced the formation of an all-Democrat task force on the committee, Chaired by Senator Patrick Leahy, to "screen" Reagan nominees. At this point, the confirmation process began to lag as Democratic Senators sought dirt against conservative nominees, raising transparent allegations and issuing holds to delay floor votes. As the 1988 elections approached, the delays got worse, as one would expect. Thus, whatever one thinks about the Sessions nomination, I believe my broader historical point stands. (And as Heldman has not identified the "other ways" in which my initial post in error, I cannot yet respond -- though I welcome the further opportunity to clarify the record.)

UPDATE: Sam Heldman responds here. I think our fundamental disagreement is on a few interrelated points. First, I believe that the Senate should be relatively deferential to Presidential nominations -- after all, "advice and consent" for judicial nominations is mentioned in the same section and clause of Article II as for ambassadors, "other public ministers and consuls," and "all other officers of the United States" -- whereas Heldman believes that if the present nominates based on ideology, the Senate should oppose on ideology as well. Second, I believe that there is a difference between voting against a nominee one opposes on ideological grounds and using procedural means (e.g. filibusters, blue slips, holds, etc.) to block floor votes on nominees, whereas Heldman appears to have no objection to this practice. And third, I believe that if Senators are going to oppose nominations based on ideology they should do so openly, and not resort to "gotcha" politics of the sort that dominates the current nomination process -- and, while Heldman is forthright in his ideological reasons for opposing certain nominees (e.g. Estrada, Pryor, etc.), if he has criticized Senate Democrats for obfuscating the matter, I missed it (but would gladly link to any such post he has written). I should reiterate that my concerns apply to both Democrats and Republicans alike -- even though Republicans have never filibustered lower court nominees on ideological grounds.

UPDATE: More interesting confirmation history -- posted in December 2001 -- at perpetualbeta. My favorite factoids are these:
1) "No Senate since before Kennedy has failed to confirm at least 80% of a President's nominees within his first two years."
2) During Clinton's first two years in office, the Democratic Senate confirmed Clinton's judicial nominees at a much slower rate than that at which the Republican Senate confirmed Reagan's nominees.


GOOD NEWS FROM SOUTH ASIA: Relations between India and Pakistan sound like wouldn't affect the rest of the world, until you remember that both countries have nuclear weapons, have gone to war at least three times in the past 60 years, and that religious extremists are powerful in both countries.

So it's good to hear that India has restored diplomatic ties with Pakistan. Air links between the two countries are being restored as well.

The Pakistani reaction to the announcement suggests some important behind-the-scenes help:

Pakistan Foreign Minister Khurshid Mehmood Kasuri has welcomed the new peace initiative of Prime Minister Atal Behari Vajpayee and said the two countries should hope to take their relations back to the pre-December 13, 2001 level.

The Pakistan Minister praised the United States for playing a "very positive role" in the recent rapprochement between India and Pakistan. "The US is an active broker.... The US has been active in the last one year. Suffice to say that the US has played a very positive role." (emphasis added)

An Indian minister made sure to deny that the U.S. had applied any coercive pressure on the Indian Prime Minister. This appears to have been old-fashioned diplomacy.

Progress in South Asia, encouraging developments in the Middle East... yeah, that war with Iraq has been a foreign policy disaster.


UPDATE: Last night, in response to Kieran's post about sociology, that as a theorist I didn't have much stake in the disputes he was entering.

I was mistaken; I hadn't read the Jane Galt post to which he was responding. Now, having read it (and the many comments to it, including long ones from Chris Lawrence, D-Squared, and others) and associated posts linked to by Kieran I understand what's going on a bit better. Agnosticism duly forsworn; Kieran (and Henry and others) are clearly right.


HAPPY TO BE HERE: I'd like to thank Eugene for the opportunity to temporarily join the Conspiracy. For a few days, at least, I'll know what it's like to evolve from a large mammal to a Higher Being.

For those lawyers reading this and wondering what I'm doing here, you can click on a series of "I'm not a lawyer, but.." posts on my blog here and here.


DANIEL DREZNER GUEST-BLOGGING TODAY AND MONDAY: I'm delighted to say that Daniel Drezner, a political science professor at the University of Chicago, will be guest-blogging today and Monday. Some of you may have read his own blog in the past; if you haven't, you should. (Even if you have, you still should.) We think that you'll much enjoy his contributions. Here are a few items from his self-introduction on his own blog:
Q: What do you know?

A: I can claim some genuine expertise on the utility of economic statecraft, the political economy of globalization, U.S. foreign policy, and Buffy the Vampire Slayer. However, as my wife is fond of pointing out, this narrow range of expertise does not prevent me from discussing with false confidence everything else under the sun.

Q: What’s your political affiliation?

A: I’m a libertarian Republican who studies international relations, which means I’m frequently conflicted between my laissez-faire instincts and my clear-eyed recognition that there is no substitute for nation-states in world politics. Just keep reading the blog, you'll get a pretty good sense of what I believe.

Thursday, May 01, 2003


BITS AND PIECES: 14,000 visitors today; the Conspiracy will get its millionth visitor sometime in the next week (unless you all go on vacation or something). Cool.

Elsewhere: lots of really good stuff over the past few days, so I'm just going to play Glenn and point to some of it. Chris Suellentrop on the Matrix; Tim Noah on one of my favorite topics, federalism in Iraq; Brad DeLong explains Alan Greenspan (and is of course right-- not about preferred policy, but about Greenspan); &c and Matt and Andrew and the Post on the bizarre Republican line of defense that insists on Santorum's "inclusiveness" while trying to avoid the substance of what he said; Kieran Healy on the social sciences (note that, while I'm in a political science department, I'm not properly a social scientist myself and don't have much of a stake in the arguments Kieran describes) and on Marx; Lawrence Solum on the constitutionality of recess appointments; Julian Sanchez on May Day; Chris Bertram on the workings of British academic review; and the Chicago Tribune manages to get through an entire article about a 12-year old coming to the University of Chicago med school nex year without ever once using the words "Doogie" or "Howser."

ObPolitics*: I managed to be irked both by W's obvious use of a fighter [CORRECTION: several readers pointed out to me that the jet was not a fighter] for a future campaign commercial and by Tom Brokaw's pointing it out.

I spent today trying to find out when the Federalist Papers were first published in French. Answer, as far as I can tell: 1792. Next question is who, in France, was reading them when.

Final note: Is it just me, or are May sweeps a little pathetic this year? Fred Savage and Macaulay Culkin as big event guest stars, and a TV-movie about the behind-the-scenes drama of Three's Company? All the more time for reading, I guess. On tonight's list: portions of The French Idea of Freedom, Republicanism, Liberty, and Commercial Society, 1649-1776 , and Constant's Republican Constitution. On tomorrow's agenda: something a little less dense, which as far as I can tell is closely based on a classic work from my high school years that one would think the publisher would want to bring back into print right about now, unless doing so would require admitting the resemblance and paying unwelcome royalties.

*"ObTopic": an old Usenet usage. "Obligatory" reference to the ostensible topic of the newsgroup, in a post that's otherwise off-topic.


THE FIRST AMENDMENT AT THE UNIVERSITY OF TENNESSEE (KNOXVILLE): Last year, I blogged extensively about an incident involving the Kappa Sigma fraternity at the University of Tennessee (Knoxville); some Kappa Sigma members went to a party as The Jackson Five, with their faces painted black. (It turns out, I'm told, that the students were freshmen from a small town in Tennessee called Jackson, and apparently thought it would be an amusing little joke.)

     This caused a furor; the national Kappa Sigma chapter suspended the fraternity, which apparently led to its automatic suspension by UT. So far, no constitutional problem -- the national chapter may impose whatever demands it pleases on its local chapters, and if indeed the UT has a content-neutral policy of recognizing only those fraternities that are in good standing with the national group, then UT isn't liable either. Unfortunately, UT administrators started threatening administrative punishment for the students and talking about how this incident showed the need for speech codes. Such punishment and such speech codes would be unconstitutional, but apparently nothing came of the talk. (See the initial post here, and also here and below.)

     Now, though, the University is apparently indeed violating the First Amendment. The national Kappa Sigma, I am told, has reinstated the UT chapter; but a University administrator wrote the following e-mail to the UT chapter's alumni advisor (emphasis added):
Attached is a document detailing recommendations for Kappa Sigma to address the blackface incident of last Fall. As we look into reinstating the chapter, meeting these recomendations will be necessary.

These recommendations do not address the alleged hazing incident. As our investigation of that incident progresses, we will keep you posted.

When you sign off on this portion, I will let Dean Collins, Dean Thompson, and VP Rogers know that we are ready to move forward.

If you have any questions, please feel free to call.
And here are the "recommendations" (emphasis added):

These recommendations are submitted in partial fulfillment of the terms of suspension for Kappa Sigma fraternity. This document is intended to identify specific strategies and programs that attempt to counteract some of the negative campus atmosphere observed in the wake of the “Black Face” Incident at The University of Tennessee beginning October 2002 and persisting until the present.

Mandatory Items:

1. Kappa Sigma will participate in a Diversity Training series of workshops during Fall 2003 semester. These workshops are intended for all greek organization chapters -- IFC and Panhellenic -- but are mandated for Kappa Sigma.

The workshops will be developed and facilitated by the Office of the Dean of Students. They will be under the direct supervision of the Fraternity Affairs Advisor and the Panhellenic Affairs Advisor.

* Kappa Sigma will be help market the Diversity Training workshops and will assist in recruiting all members of the greek community to participate.

2. Kappa Sigma will require its members to read The Color of Water by James McBride and participate in a discussion of the reading. This literary work is required reading for all incoming UT freshmen. Every entering freshman will participate in a faculty led series of discussions focused on the contents of this book during the first week of classes for Fall 2003. The Office of the Dean of Students, in conjunction with selected faculty, will also facilitate this discussion with the chapter.

Suggested Items:

3. Kappa Sigma should consider designating one of the executive officers of the fraternity as a liaison with the Black Cultural Programming Committee to identify programs focused on diversity and racial sensitivity awareness. Members of the fraternity should attend such programs whenever possible.

4. Kappa Sigma should consider developing a marketing campaign designed to demonstrate the benefits of diversity for the entire university community and also focus on how and why diversity enhances the Greek community at UT.

Such a marketing campaign would be very useful for IFC and Panhellenic and would enable the greek community to take a leadership role for all students at the university in promoting the benefits of diversity at The University of Tennessee.
     So here the university is, as a condition of recognition by the school -- recognition that, to my knowledge, is generally available to a broad range of student groups, and thus qualifies as a "designated public forum" -- imposing special burdens on the organization because of its members' past speech. That violates the organization's First Amendment rights, just as it would violate the organization's First Amendment rights to demand special behavior from groups whose members engaged in antiwar advocacy, or Communist advocacy, or criticism of the university administration. And remedying a "negative campus atmosphere" is not an adequate justification for imposing special burdens on people because of their speech.

     Now some of these requirements (for instance, reading a certain book or participating in certain workshops) may have been constitutional if they were imposed on all students. The university may require its students to go to certain classes or read certain books, even when the classes and books are aimed at inculcating a particular ideology. But it may not impose such requirements only on those students and groups of students that have engaged in disfavored speech in the past. (By way of analogy, a public university can certainly require all students to take a class on evolution -- but it can't require such a class only for those students who have expressed pro-creationism sentiments.)

     And one of the requirements -- that "Kappa Sigma . . . help market the Diversity Training workshops and will assist in recruiting all members of the greek community to participate" -- would also be unconstitutional even if it were applied to everyone. A public university may require students to take certain classes, and even give certain answers on the exam as a condition of taking those classes. But it can't require them, outside class, to engage in speech that promotes certain ideologies. (Again, imagine a public university requiring students, whether all or just some, to help market pro-patriotism or pro-war workshops.)

     The First Amendment violation is pretty clear here, it seems to me; but let me just close with a hypothetical for those who may not be persuaded. Say that some fraternity members go to a party dressed as, say, marauding American soldiers (or, for that matter, go to a party and a burn a flag). People are outraged at the implied viewpoint that American soldiers are dishonorable. The fraternity is suspended, and the University then tells the fraternity:
To be reinstated, you must participate in a series of partriotism workshops (because you've acted in an unpatriotic manner in the past); you must help market these patriotism workshops to others; and you must read and discuss a book that we hope will teach you the true value of patriotism.
Clear First Amendment violation, yes? Well, if it is, then the First Amendment is just as violated no matter what viewpoint the government wants to disfavor, and what viewpoint it wants to inculcate.


"GUNS IN AMERICA" AND DEFENSIVE GUN USES: So here's a riddle for you: How many times does the entire CBS "Guns in America" presentation (see below for the link) mention defensive uses of guns?

     Defensive uses; those are the reason why lots of people own guns, and they are a huge part of the debate about guns in America. In two of the school shootings for which CBS provides blurbs in the "School Shootings" section (Pearl, Mississippi and Edinboro, Pennsylvania), the shooters were actually apprehended by law-abiding citizens using guns of their own. Studies estimate the number of defensive uses in the country at 60,000 to 2.5 million per year (yes, the range is that broad; it's hard to figure these things out). You know, those defensive uses. How many times does the report point to either specific defensive gun uses, or statistics on defensive gun uses? (I don't count the statement that "In 1995, 1 in 12 students in a national survey reported carrying a firearm for fighting or self-defense at least once in the previous 30 days," which says nothing about actual uses, only carrying for the purpose of use; refers to conduct that's largely illegal, since it presumably involves people who are mostly too young to get concealed carry licenses; and combines carrying for offensive and defensive purposes.)

     It would be unsporting to give the answer away, but I will give you a hint: If you answered "1," your answer would be too high.


ANOTHER ITEM FROM THE CBS "GUNS IN AMERICA" SERIES (see below for the link): The "Kids and Guns" icon will take you to a page that promises "more facts on guns and juveniles"; and then the first icon there tells you that "For 10 to 24 year olds, firearms are the second leading cause of death -- trailing only unintentional deaths (which include motor vehicle accidents and drownings)."

     Hmm; why "24"? 18-to-24-year-olds don't seem to be kids, and they don't seem to be juveniles. In fact, the 10-to-17-year-olds make up a bit less than 21% of the 10-to-24-year-old range -- the remaining 79% is 18-to-24-year-old adults. (Naturally, the lion's share of firearms deaths even among juveniles is among older juveniles, 15-to-17-year-olds; once again, my sources for this are the CDC's invaluable WISQARS.)

     Likewise, some of the other items under the "more facts on guns and juveniles" / "Kids and Guns" include ages above the age of majority -- 24, 20, 19. One page reports that "Among young people 10 to 19 years old, there were 1,308 suicides with guns in 1996"; might it be relevant that 589 -- nearly half of the 1,308 -- were among 18-to-19-year-olds (i.e., adults)?

     Now I don't want to overstate the problem here -- when the pages report the numbers, they do candidly report the age range. But the large ranges obscure the reality that patterns of gun deaths and gun use vary greatly from 10-to-14-year-olds to 15-to-17-year-olds to 18-to-24-year-olds. And I am curious why the front pages promote the information as involving "kids" and "juveniles," and then the back pages give statistics in which huge fractions of the deaths were actually deaths of adults.


GUN DEATHS: has an interesting interactive feature on "Guns in America" -- it's on the right-hand side of the screen here (ignore the main story, which is unrelated to the subject). Here's what it says at the start of the "Gun Death & Laws" item:
The number and rate of firearm related deaths in the United States have declined in the past decade. Still, 28,663 people died of gunshot wounds in 2000 and the national rate of deaths by firearms per 100,000 residents was 10.4.
When you click on each state ("click on each state to see the number of people killed by firearms"), it gives you the number (e.g., for Vermont, "Firearm deaths, 2000: 55 (63 in '98) Rate per 100,000: 9.2").

     Here's my question -- when you read that "28,663 people died of gunshot wounds in 2000," how many did you think were homicides? It turns out that, even if you include accidents (fewer than 1000), the number was a bit over 12,000. The remainder (16,586) were suicides (16,049 by adults).

     Might it have been helpful for CBS to make this clear to people? Suicides, after all, might be, in many people's eyes, morally different from homicides -- do you, for instance, feel the same sense of tragedy when you hear about a homicide (assume it's not in self-defense) than when you hear about a suicide? If you don't, then wouldn't breaking out the suicides as a separate number be more helpful than silently combining suicides and other deaths? Also, suicides seem particularly unlikely to be sensitive to changes in gun laws (and the section, judging by its "Gun Death & Laws" title, seems to be suggesting a connection between gun deaths and gun laws) -- among other things, as I've mentioned before, since one can commit suicide even more easily with a shotgun than with a handgun, even a perfectly enforced total handgun ban doesn't seem at all likely to change the homicide rate much.

     So the numbers are technically accurate -- but quite misleading, unless most readers will quickly understand that the "died of gunshot wounds" number includes suicides as well as homicides and accidents. (The later "Who's At Risk?" section, to CBS's credit, does separate different kinds of gun deaths, but obviously some people will see the "Gun Deaths & Laws" section but not the "Who's At Risk?" section.)


GAY-BASHING THE MAFIA BOSS: An interesting story:
Fearing they would be the laughingstock of New York's underworld, a mafia turncoat testified in court Wednesday that he killed his mob boss because he engaged in gay sex.

Anthony Capo, a former soldier for the New Jersey-based DeCavalcante family, which is often described as the real-life "Sopranos," said he killed John "Johnny Boy" D'Amato after finding out about his secret life, the New York Post reports.

"Nobody's gonna respect us if we have a gay homosexual boss sitting down discussing La Cosa Nostra business," Capo told jurors in Manhattan federal court. . . .


HOW YOU CAN TELL YOUR DAUGHTER IS NOT STUDYING FOR HER FINALS at that high-priced Ivy League college you've sent her to: When she sends you URLs like this one that she has just discovered. [Though I admit, it's quite a concept . . . ]


"PEOPLE OF": Composing the previous post reminded me of a term I came up with for whiteys like me:
People of pallor.
Unfortunately, a quickie google search revealed that I wasn't the first to think this up, but I thought I'd pass it along anyway.


MORE THREATS OF CENSORSHIP: Prof. Francis Boyle at the University of Illinois, Urbana Champaign, is an indefatigable opponent of this Administration; he's the drafter of the Draft Impeachment Resolution Against President George W. Bush, and has spoken out often and stridently against both the war in Afghanistan and in Iraq. In the process, he condemns the Administration for various (generally unnamed) violations of the First Amendment:
  1. The Draft Impeachment Resolution cites the President's supposedly "violating the First Amendments rights of the free exercise of religion, freedom of speech, peaceable assembly, and to petition the government for redress of grievances" (this is just before a complaint about the "totalitarian Federalist Society").
  2. A speech entitled "No War Against Afghanistan!" says "Let me conclude by saying that we still have our first amendment rights, despite Ashcroft's best efforts."
  3. A Daily Illini article from last Fall quotes him as complaining that "The climate [at the law school] is very threatening to professors of dissent."
     Curiously, though, a reliable source just passed along to me an e-mail that Boyle sent around last November, which seems to demonstrate a slightly different attitude about the First Amendment:
Subject: To:Department of Justice, Office of Civil Rights:"Boyle Bashing"

It has already been reported in national news media sources, that I have filed a Complaint with the Department of Justice, Office of Civil Rights, which is currently pending. Any "Boyle bashing" will be filed with DOJ/OCR in support of that Complaint, including this message. That could create problems for people dealing with a Character and Fitness Committee who want to be admitted to the Bar somewhere. Francis A. Boyle Professor of Law
Interesting -- a professor threatening to try to jeopardize the careers of people (presumably students, since they're the ones who would most care about Bar admission) if they criticize ("bash") him. (The law school dean, to her credit, promptly condemned Boyle's actions.)

     This is not, however, the first example of Prof. Boyle's somewhat limited view of free speech. As I mentioned in an earlier post, Prof. Boyle had also sent around (in 1997) a mass e-mail calling for law professors "to prevent[] the appointment of Federalist Society Members to our faculties," a policy that would violate basic academic freedom principles, and, if engaged in by public schools (such as Prof. Boyle's own), would violate the First Amendment. And note also the basis for the Complaint that Boyle's e-mail refers to (from Reason):
Boyle, described by legendary activist Philip Berrigan as "a lawyer of the quality of Thomas More or Gandhi . . . the most competent and impassioned advocate of international law in the U.S.," claims he experienced discrimination when he objected to the bar crawls graduate students hold every St. Patricks Day. "A bar crawl in honor of St. Patrick, the Patron Saint of Ireland, and one of the great figures of Western Judeo-Christian Civilization, is completely sacrilegious," he says.

Boyle’s objections, he says, made him a target. "It’s clearly a hostile work environment for me," he says. "I’ve been subject to ridicule by students and student organizations. This is a hostile environment based on my race -- I’m of Irish nationality and a citizen of the Irish Republic -- and on my religion -- I’m Catholic."

Indeed, Boyle claims the harassment got so bad that he complained to the U.S. Department of Justice’s Civil Rights Division, noting that "it doesn’t cost me anything" to have the government investigate his claims. Yet when pressed for details, Boyle becomes as vague as Van Morrison lyrics. "I got nasty e-mails," the professor says, giving no hint of their contents. "They ridiculed me for being Catholic and ridiculed Catholicism. Two years ago, they even made a T-shirt ridiculing me." Was this ridicule based on religion or ethnicity, or do Boyle’s students and colleagues just dislike him? Without examples, it’s impossible to say.
Apparently "the First Amendments rights of . . . freedom of speech" do not, in Prof. Boyle's book, extend to people who want to ridicule Catholicism, or, for that matter, their professors. "Free speech for me," as Nat Hentoff's book title says, "but not for thee."


GETTING BLOG POSTS BY E-MAIL: A reader e-mailed me asking how she can get blog posts delivered by e-mail; so I thought I'd post again the instructions. We have over 40 people subscribed that way, and it seems that the feature is working for them. My favorite response from a reader:
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.


TELEMARKETING REVENGE FANTASIES: My friend and former colleague Mark Eckenwiler received an automated telemarketing call at 5:24 am. Unfortunately for the telemarketer, he had picked the wrong guy to call at that hour. Fortunately for us, Mark has written up the story, which begins,"[i]n November 2002, a telemarketer called my home in D.C. at 5:24 a.m. This is the story of how that call cost him $500."


urveillance Act of 1978, Title 50, United States Code, Section 1807, as amended.

During calendar year 2002, 1228 applications were made to the Foreign Intelligence Surveillance Court for electronic surveillance and physical search. The Court initially approved 1226 applications in 2002. Two applications were "approved as modified," and the United States appealed these applications to the Foreign Intelligence Surveillance Court of Review, as applications having been denied in part. On November 18, 2002, the Court of Review issued a judgment that "ordered and adjudged that the motions for review be granted, the challenged portions of the orders on review be reversed, the Foreign Intelligence Surveillance Court's Rule 11 be vacated, and the cases be remanded with instructions to grant the United States' applications as submitted..." Accordingly, all 1228 applications presented to the Foreign Intelligen[c]e Surveillance Court in 2002 were approved.

John Ashcroft
     I'm not exactly sure what to make of the numbers. FISA allows orders for electronic surveillanc that are mere pen register orders, or else full content wiretap orders; it also allows physical search orders; and post-Patriot Act it allows Section 215 orders, as well. The statutory authority seems to require an accounting of only the first category, but Ashcroft's letter seems to refer to the first two categories, and maybe all three categories. As a result, it's hard to tell exactly what this number means. However, the raw number is about 25% higher than the equivalent overall figure for 2001-- something you might expect given that most of 2001 was pre-9/11.


ANOTHER TIP FOR GETTING MORE BLOG READERS: Pejman has an interesting suggestion. But that's not why I've been blogging about that subject, I swear!


MAPS: Now here's a topic I can get into. I first acquired Karen Fonstad's brilliant Atlas of Middle-earth when it was in hardcover, when I was 10. I also still have my nearly-the-same-vintage hardcover edition of The Dictionary of Imaginary Places, which is chock full o' maps. Both well-worn by now, but they're holding up. I loved that stuff then, and I love it now.

Tolkien's pre-posthumous books (humous books?) about Middle Earth provided four major maps: Wilderland, the Shire, Middle Earth north and west of Mordor, and Gondor and Mordor; and with every bit of travel in the plot, I'd faithfully go back to the beginning of the book to trace things out with my finger on the map. The Earthsea series is a map-rich environment, too. On the other hand, classic SF provided almost no maps. None in the Foundation series, none in the Robot series, none in Heinlein's Future History (though there was an elaborate timeline chart given for that). You had to know that Trantor was in the center of the galaxy and Terminus was out on the edge of nowhere; you had to know that Aurora was closer to Earth than any other spacer world. But a) providing interstellar charts in 2-space is tricky and b) it doesn't seem particularly germane, when in-story computers do the navigating and superliminal travel means you don't really see stuff along the way. The major exception from classic SF was Dune, and that's telling; nearly all the action happens on one planet.

To this day I get the sense that fantasy (the Wheel of Time, for instance) is a lot more likely to provide maps than at least space-opera SF. When I was a kid I'd occasionally try to map out what we knew of the Legion of Super-Heroes or the Star Trek or Star Wars galaxies-- but a) there was too little information given and b) creating two-dimensional maps of space frustrated my efforts every time.

Eugene, which books do you think really call for such maps that don't have them? I haven't noticed the absence in any books in which they seemed relevant.

(OK, that's enough geekiness for now. I've got to save something for tomorrow's post-X2 blogging...)

UPDATE: Lots of nice e-mail about this. A couple people mentioned the Narnia books. Somewhere along the way I lost a couple of the volumes from the boxed set I had as a kid, which I've replaced from second-hand bookstores. That means my "series" now has three different printings from two different publishers. As far as I can tell the run I think of as the "real" version of the books (I know, I know)-- the Collier-MacMillan version-- had no maps in it. Somewhere along the way HarperCollins picked up the rights (or did it pick up MacMillan?) I have one volume from Lions-HarperCollins, which appears to be British and has no map (though it's The Magicina's Nephew, and there's not really anthing to have a map of.) I also have two 1990s volumes from HarperTrophy- HarperCollins-- with arguably the least interesting maps I've ever seen in a fantasy novel. The Dawn Treader map ("the first part of the voyage," through the Lone Islands) is pretty undifferentiated coastline to the west, with a grand total of seven little islands named in the ocean that dominates the map. The Horse and His Boy map has Tashbaan marked at the bottom, Archenland marked at the top, and is 80% taken up by unnamed "desert" in the middle. Maybe the Harper editions of the volumes set in Narnia proper have more interesting maps; if not, just look at the Dictionary of Imaginary Places mentioned above.

In response to my suggestion that it's mostly spacefaring SF that does without maps and that this makes sense, I got a number of recommendations to look at David Weber, who includes lots of interstellar maps and charts and diagrams in his Harrington books. Jerry Pournelle includes maps in his books, as do Stephen Donaldson, David Eddings and Raymond Feist. "Most of the Baen [a publisher] books that could use maps, have them." Specific mention was made of maps in Bujold, The Vor Game, and Vinge, A Fire On the Deep.


CONFIRMATION HISTORY - BALKIN RESPONDS Jack Balkin has a thoughtful post in reply to my take on confirmation battles past (which also criticized his initial post on the matter). I have a few comments to make in response, but I strongly suggest that readers first check out what Balkin has to say. He is indeed correct that we agree on many points.

In Balkin's view, the nub of our disagreement is that I see the current confirmation battles as a continuing downward spiral of retaliation, whereas he sees the current fight as a consequence of the 2000 election imbroglio. I suspect he is correct that many Democrats have ratcheted up their opposition due to their anger over Bush v. Gore, and this anger may explain, in part, the current filibusters. I would add two qualifications, however. First, I believe that in the late 1980s and early 1990s the Democrats initiated a new level of obstruction for appellate nominees. This was a break for the sort of fights that had gone on before over Supreme Court nominees, not just politics as usual. In many cases, I think that the Democrats did go "too far" in their obstruction during this period, as did the Republicans once the tables were turned.

Second, while Balkin may be correct about how many Democrats (and liberal academics) feel about the election 2000 case, I think it is important that this is not the public explanation for the obstruction. To the contrary, the public explanation given by most Democrats and most supporters of their filibusters, is that this is a justified, perhaps even necessary, response to GOP obstruction of Clinton nominees. Given the facts I detailed in my post below -- and the fact that Clinton saw as many of his nominees confirmed over eight years as did Reagan (despite having four more years of the Senate in hostile hands) -- I think this conventional narrative is wrong. Were more Senate Democrats as forthright as Balkin is on this matter, my visceral reaction to their arguments would be less strong.

Third, I always find it interesting in these discussions how little mention there is of a) President Bush's judicial olive branches, and b) the 2002 Senate elections. Many seem to forget that President Bush included two Clinton nominees (Barrington Parker and Roger Gregory) in his first batch of twelve judicial nominations. This act was unprecedented and unnecessary (as the Republicans still held the Senate at the time). Yet when Senator Jeffords jumped ship, this gesture prompted no conciliatory response from Senate Democrats.

Many also seem to forget that Republican Senate candidates made judicial confirmations an issue in many states -- as did the President in his campaign swings to battleground states -- and this helped Republican candidates win key races, including those Georgia, Minnesota, and Texas. (Indeed, in Texas the Owen nomination likely elected Senator Cornyn.) In Balkin's framework, I would think that these election results would represent a step toward ratification of the "constitutional revolution" that has him so concerned -- especially since, nationwide, the Republican-Democrat split in voting was no longer 50-50, but essentially 52-48. This is another way of saying that I suspect that for many (though perhaps not Balkin, as I believe his arguements are made in good faith), the issue is not the "legitimacy" of constitutional change, but the fact of constitutional change. So I suspect many on the left would be just as eager to obstruct judicial nominees if Bush had won in a landslide -- and I think the history from the 1980s and 1990s I've recounted supports this claim.

One final point I would like to throw out is that many of those on the right (myself included) see Bush v. Gore as the Warren/Brennan legacy coming home to roost. For decades, liberals generally supported an activist court that discovered constitutionally protected rights and discarded traditional restraints on an activist judiciary (e.g. much of the political question doctrine, as in Baker v. Carr). In the view of many on the right, the Constitution was "taken over by ideological extremists" during this period. (Nonetheless, the response was not to shut down President Carter's nominees, but to wait until more conservative judges could be nominated by a sympathetic president.) Therefore, when we hear Balkin or anyone else inveigh against Bush v. Gore, our gut reaction is to say "Well now you know how we felt about [insert Roe, Baker, Miranda, or some other outrageous case here]." So while I agree with Balkin that those on the right should try and appreciate the outrage of left over the election, I would also suggest that those on the left should try and appreciate that the right feels the left is simply reaping what it sowed.


FANTASY MAPS: Maps for fantasy books are indeed helpful, as Eugene notes below. Several years ago a Philiadelphia librarian published a book of maps of various fantasy worlds, An Atlas of Fantasy. Alas, the book is now out-of-print.


HOW NOT TO DO THE ANONYMOUS PUBLICATION THING: Today's Washington Post has a story about Peggy Cafritz, the head of the District of Columbia School Board. An essay attacking school vouchers for DC schools appeared on Cafritz' website a couple of weeks ago -- notwithstanding the fact that Cafritz just recently endorsed a Bush Administration plan for vouchers for DC schools. Cafritz' initial response was that she had not written the essay, and that a "hacker" must have put it there.

      Today, though, she admitted that she was, indeed, the author of the essay.

     The whole episode's fairly insignificant. But it made me think (probably because I just spent several fascinating days at the "Wyoming Humanities Festival" in Casper,Wyoming, talking about this stuff) about how masterfully the "Constitutional generation" -- Hamilton, Jefferson, and that crowd -- used anonymous and pseudonymous publications to advance their side of the debates. One suspects that Cafritz' recent conversion to the cause of school vouchers is somewhat less than deeply felt; the DC public school elite, of which Cafritz is a prominent member, has, sadly, long opposed voucher programs. I can certainly imagine that Cafritz was trying to play both sides of the fence -- she'll take the federal money attached to a new voucher program, but she wants to maintain her opposition for domestic political reasons. If she were Jefferson or Hamilton, she would have figured out a better way to get her essay out there than putting it on her own website and concocting some ridiculous story about a "hacker" being resonsible.


MAPS: So here's one thing that bugs me about some fantasy and science fiction books -- if you're creating a whole new world (or using little-known parts of the old one), and you're going to be talking about the heroes voyaging here and traveling there, and about why the war needs to be fought between Beeblebrox and Trantor, because otherwise the Barrayarans would intervene, why not include a map? Sure, this isn't the most important thing. Sure, the characters and the dialogue are more significant. Sure, some readers will figure it out just from the prose. But sometimes it can make things a lot clearer, and make it a lot easier for the reader to get into things (which is why some books do indeed include such maps). And how hard can it be?


The Alabama House voted against a bill Tuesday that would have removed a ban on sexual devices, such as vibrators, from the state's obscenity law. The ban on sexual devices was added at the last minute when the obscenity law passed the Legislature in 1998.

A federal district judge in Birmingham has twice ruled that the ban is unconstitutional. The first ruling was overturned by the 11th Circuit Court of Appeals and the second ruling has been appealed to the appeals court.

The sponsor of the bill, Rep. John Rogers, D-Birmingham, said because of the court ruling, the obscenity law is unenforceable as long as it contains the ban on sex toys. . . .

"What you just did is make our obscenity law illegal. You voted for obscenity,'' Rogers shouted at lawmakers.
TalkLeft takes Rep. Rogers' claim at face value, saying, before its quote from the AP article:
Alabama Legislators Render State's Obscenity Law Illegal

Legislators in Alabama aren't too bright. On Tuesday, they voted against a bill legalizing sex toys. What's dumb about that? Read on.
InstaPundit picks up on the TalkLeft story.

     As best I can tell, though, Rep. Rogers was quite mistaken -- the federal district court's ruling does not make the whole obscenity law unenforceable; rather, the federal court only invalidated the sexual devices ban, and left the rest of the obscenity law untouched. The district judge's final judgment reads (emphasis added):

In accordance with the memorandum opinion entered contemporaneously herewith, plaintiffs' motion for summary judgment (doc. no. 76) is granted, defendant's motion for summary judgment (doc. no. 77) is denied, and that portion of Alabama Code § 13A-12-200.2(a)(1) (1975) (Supp.2001) which makes it "unlawful for any person to knowingly distribute, possess with intent to distribute, or offer or agree to distribute ... any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value" (hereinafter, "the subject statutory provision") is declared unconstitutional.

Accordingly, it is ORDERED, ADJUDGED, and DECREED that defendant, the Attorney General of the State of Alabama, and any agents, attorneys, investigators, or law enforcement officials acting under his direction, supervision, or control, together with any other law enforcement officers or officials within the State of Alabama acting in concert with defendant, directly or indirectly, or who acquire knowledge of this judgment, be, and they hereby are, enjoined and restrained from enforcing the subject statutory provision.
The full first sentence of Alabama Code § 13A-12-200.2(a)(1) reads "It shall be unlawful for any person to knowingly distribute, possess with intent to distribute, or offer or agree to distribute any obscene material or any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value"; the ellipsis in the first paragraph that I quote above thus represents the words "any obscene material or." The district judge thus specifically did not enjoin the enforcement of the prohibition on distribution of obscene material, only of obscene devices. And that makes sense, because the constitutional challenge that the judge accepted was a challenge to the distribution of obscene devices.

     I oppose bans on sex toys and on obscene material (setting aside child pornography, which is governed by a different set of laws); but presumably Rep. Rogers' colleagues support such bans. They probably thought there was a good chance that the federal district judge will be overturned again by the court of appeals (and I think there is a good chance of that), so the existing ban may well survive if they leave it on the books. And, contrary to Rep. Rogers' statement, their leaving the sex toys ban untouched won't affect the enforceability of obscenity laws.

     If I've misread the district court's order (Williams v. Pryor, 220 F.Supp.2d 1257 (N.D. Ala. 2002)), and Rep. Rogers is right all along, please let me know. But given what I've seen, I think that the Alabama legislature isn't as "dumb" as some people suggest.

Wednesday, April 30, 2003


CONFIRMATION HISTORY Yale Law Prof Jack Balkin and the Brennan Center's J.J. Gass (posted on How Appealing) both note Senate Republicans' shameful record of stalling some of President Clinton's judicial nominees. While they are correct that Republicans were obstructionist, I think they overstate the case. Gass' stats, for instance, do not distinguish between blue-slipped nominations and those bottled up in committee. This is relevant because Clinton made some nominations over the opposition of home state Senators, thereby ensuring the nomination would not go forward due to a blue slip. At a more fundamental level, however, I think that both posts are highly misleading in that they leave out important history -- history that explains some of the GOP opposition to Clinton judicial picks. Indeed, I would go farther and say that the history of judicial nomiantion fights that Balkin's claim that "Democrats tended to roll over and play dead" in judicial nomination fights until the 2000 election is just plain wrong.

The first modern judicial nomination fight came over President Johnson's nomination of Justice Abe Fortas to the Supreme Court. That nomination was filibustered, largely over ethical allegations against Fortas (see my prior post on Fortas). Democrats retaliated against two of Nixon's High Court picks, and then the issue cooled for a time. After Nixon left office, the fights over judicial nominations were relatively few and far between, but there were a few. For instance, the National Rifle Association took an unsuccessful run at then-Congressman Abner Mikva's nomination to the D.C. Circuit in the late 1970s.

Ronald Reagan made the composition of hte federal courts a campaign issue in 1980, and once in office his administration concentrated on nominating strong conservatives with impeccable professional and academic credentials. The aim was to nominate a critical mass of intellectual heavyweights to stem the leftward drift of the federal judiciary. For obvious reasons, various liberal interest groups and Democratic constituencies did not like this development. Thus, when the Democrats retook the Senate in 1986, they began a concerted effort to slow down President Reagan's nominations. Yes, you read that right. Senate Democrats began the obstruction of lower court judicial nominations in the mid-to-late 1980s. Some judges had their confirmations delayed (e.g. David Sentelle); others saw their nominations voted down (e.g. Bernard Siegan, Jeff Sessions). Confirmations were slow in 1987, and they came to a virtual halt in 1988. It was generally understood at the time that the delays were intended to ensure a larger number of judicial vacancies should the Democrats recapture the White House in 1988. Indeed, there was a period of time when there was a general understanding that Presidents would get more of their nominations confirmed during their first two years in office than at the end of a term.

Of course the Democrats did not take back the White House in 1988, and they loosened their grip on the judicial nomination process. In 1989 and 1990, most of President Bush's nominations sailed through (though there were some exceptions). Starting in 1991, however, the delays began, and numerous talented legal minds were left to wait for months -- in some cases years -- for hearings, let alone confirmation. Talented legal minds such as Lillian BeVier never got a hearing. Gass suggests that Democrats oppose the confirmation of conservative judges to fill vacancies that are only open because Republicans blocked Clinton nominees to those seats. That's a fair point, but Gass totally ignores that some of those vacancies were only open for Clinton to fill because Democrats blocked some of President George H.W. Bush's nominations, including John Roberts and Terrence Boyle -- yes, the same Roberts and Boyle re-nominated by the current President Bush. (Note: I have not even mentioned the fights over Supreme Court nominations, including Rehnquist's elevation, Bork, and Thomas -- fights that were hardly repeated over Clinton's nominees to the High Court.)

The above is not meant as a defense of Republican obstructionism during the Clinton presidency. After Democratic obstructionism during the Reagan and Bush presidencies, the Republicans did not content themselves to responding in kind. Rather, they upped the ante. Now the Democrats have done the same in return again -- and on it goes.

If Gass wants to suggest that Democrats are trying to stop Republicans from taking advantage of the fruits of their obstruction, he should acknowledge that GOP obstruction of Clinton's nominees is eligible for the same defense. If Balkin wants to claim that Democratic hardball in judicial fights is a response to the 2000 election controversy, he has to explain why Democrats were slowing down judicial nominations in the 1980s and early 1990s. In my view, Republicans were wrong to delay hearings and votes on Clinton's nominees then, just as it is wrong for Democrats to use such tactics now, as it was wrong for Democrats to use such tactics during the presidency of George H.W. Bush. Both parties have contributed to this mess. I only wish one or both parties would clean it up.


BOGUS PATRIOT ACT STORY?: Instapundit asks whether this story sounds legit. I assume that there is at least some truth to the article-- for example, I gather that there was in fact a government raid at an Indian restaurant. However, I seriously doubt that the raid had anything to do with the Patriot Act. The idea that the author was told that he was "being held under the Patriot Act" sounds particularly unlikely to me. I can't find a section of the Patriot Act that could conceivably apply to this. (At the same time, the Patriot Act doesn't do half of what people say the Patriot Act does, so this isn't altogether unusual. Details, details.)


CONTRACEPTIVES AND ADULTERY: Hit & Run's Ron Bailey writes:
Hoover Institution fellow Stanley Kurtz defends Senator Rick Santorum by pointing to the rise of divorce rates and adultery since the 1960s and suggests that the growing tolerance of homosexuality is undermining marriage. That as may be, but Kurtz completely ignores THE elephant in the room -- the pill. Surely, effective contraception had far more effect on things like divorce rates and adultery than a growing tolerance for homosexuality. I wonder what Kurtz' position on Griswold v. Connecticut is?


FEAR IS GOOD: Apropos David Post's "Reverse Tinkerbell Effect", check out this Slate piece on SARS. (The more people fear SARS, the less cause there'll be to fear it, and vice versa.)


SCALIA ON CAMBRIDGE: Mark Stancil reports the following from today's argument in Virginia v. Hicks, "which concerned a Richmond municipal housing authority policy allowing the authority's director wide discretion to bar nonresidents from the premises."
Respondent Hicks, who previously had been informed in writing that he was not permitted on authority property, was charged with criminal trespass when a police officer observed him in the Whitcomb Court housing development. . . . One issue raised at oral argument was whether a state can effectively designate certain streets or sidewalks "private," by ceding them to a separate authority or otherwise barring the public. Justice Scalia pushed Hicks' counsel to concede that, for example, the street leading up to the door of the Virginia Governor's mansion is not "public" in the true sense of the word. After counsel sidestepped the issue by calling the pavement in question a "driveway," Breyer chimed in with the observation that there are things in Cambridge (Mass., I assume) called "private ways," but no one really understands what that means. As the ripple of laughter subsided, Scalia brought down the house with his retort that "there are a lot of things up in Cambridge that no one understands what they mean." . . .
UPDATE: Matthew Yglesias helps out Justice Breyer with an explanation of "private ways" (courtesy of a reader of his). It's actually pretty interesting.


KURTZ REVISITED: This morning I said mildly nice things about Stanley Kurtz's latest piece about gay marriage; I'm happy to say that I've been getting some mild flak for doing so. (It's a pleasant ideological shift from last week's e-mail deluge.) Aaron Schatz, an old associate from our days in the WBRU newsroom and now editor of the addictive Lycos 50, sent an extended commentary on the article:
First, Kurtz's argument about banning adult incest as a way to create even further distance between normal behavior and child abuse incest reminds me of the concept of "a fence around the Torah." For example, why can't you eat chicken and cheese together - I mean, chicken doesn't even have milk, why should it be subject to milk/meat laws? The answer was that people might confuse it with beef, so the sages created a fence around the Torah by expanding the law.

This is also the basic reason behind the Ashkenazic ban on corn, rice, and other legumes on Passover - even though they aren't banned by Torah, people were making bread-like products out of them, and they would get mixed up in the storerooms, so the rabbis banned them.

Second, I think Kurtz mistakes the concept "People find it difficult to understand the continuing necessity of shared moral standards" with the concept "People feel that there is a continuing necessity to make the reduction or prevention of homosexuality one of our shared moral standards." I dunno, the idea that Andrew Sullivan doesn't believe in shared moral standards is a bit absurd. He does believe in such standards, as do I, as do you and most other libertarians I would expect, but the standards we believe in revolve not around personal issues of holiness and living a life closer to God's image, but around helping other people rather than hurting them.

At this point, Kurtz would say that homosexuality does hurt people because it is a gateway towards society being more open to non-monogamy. This is a disagreement that can't be bridged - either you think that gay people who want to be married are telling the truth about wanting monogamy, or you believe they are lying.

My father and I have discussed this issue plenty - you talk about issues of moral behavior a lot when your father is a rabbi. Anyway we start with the idea that most gay people (men and women, though obviously more women) do want to live monogamously if given opportunity to be treated the same as straights. We also believe that society does have an interest in emphasizing that heterosexual monogamy is the best way to live and raise children. We're kind of traditional that way.

So the problem with gay marriage is that we can't emphasize both heterosexuality and monogamy. We have to choose. If we do not allow homosexuals to marry, perhaps we send a message to bisexuals that straight lives are preferred. But we also send a message to homosexuals, "Hey, we don't care if you all screw around with each other, we're not going to give you a legal framework to profess your love that might draw you towards monogamy." If we do allow homosexuals to marry, we perhaps make it more difficult to send the message that heterosexuality is preferred to homosexuality, but we also send the message that for everyone - straight man or woman, gay or lesbian - a committed, monogamous relationship tied together under the law is the preferred way to live.

So at that point, the question becomes - is it better for society to emphasize monogamy at the expense of heterosexuality, or heterosexuality at the expense of monogamy. I think it is clear that adultery and promiscuity hurts society more than homosexuality does, and thus it is society's interest to provide gay marriage. Of course, Kurtz would disagree because of his belief that gay marriage is an excuse for swingin', swingin', and more swingin'.
UPDATE: See also Kevin Drum.
Is he serious? The reason to oppose gay marriage is because it's the only thing that keeps all us heterosexuals from cheating on our wives?

Men have been cheating on their wives since the dawn of marriage itself, and the popularity of this activity has stayed high through thick and thin. If Stanley Kurtz thinks that adultery has been under control all this time but will suddenly overwhelm society if gays are allowed to get married — well, he's living in a different universe than I am.

Is this really the best that NRO can do to try and convince libertarians that it's OK to be a Republican?
Heh. He calls the Kurtz article "the most breathtaking abuse of the slippery slope argument I've ever seen." I'd say it's not nearly as bad as Santorum's, or indeed as bad as many of Kurtz's other comments on this question. As I said, on the narrow question of adult incest I think he's onto something. But, when it comes to questions of law and justice in a liberal society, fences around the Torah must be narrowly drawn, and Kurtz is 'way out there building a Berlin Wall around it instead.

Ron Bailey has more, as do Matt Yglesias, Julian Sanchez ("rebutting Stan Kurtz is starting to feel a little like debunking astrology. I mean, it's fun, but why bother?") and Radley Balko.


I don't entirely disagree with you, but consider this: If desecrating a flag is protected speech, wouldn't a war veteran's actions in beating the hell out of the person desecrating the flag also be protected speech?
Well, no. No-one is saying that all conduct that conveys a message is constitutionally protected.

     Rather, as I mentioned in my earlier post, the government generally may not restrict conduct (or speech) when it's doing so precisely because of the message that the conduct or speech send; but it generally may restrict conduct (or, often, speech) when the reason has nothing to do with the message. Thus, the government may ban beatings, or for that matter may ban the burning of things in places where the burning may lead to a brushfire. These restrictions aim at harms that have nothing to do with the message being sent, and they apply equally without regard to whether the conduct sends a message -- beating someone is harmful even if the beating conveys no ideology whatsoever. But flagburning bans apply to flagburning precisely because it sends an offensive or harmful message.

     There may also be another important distinction in play here, as the Supreme Court has hinted in some cases, and as Justice Scalia urged in the nude dancing case -- the distinction between conventionally expressive conduct (waving flags, burning flags and other symbols, and so on), which has become part of our accepted symbolic language, and conduct that usually has nothing to do with expression. Under that test, burning a flag is also different from beating someone. But in any event, whether just under the first test or both the first test and the second, flagburning bans are quite different from assault laws.


WOULD A NEW HAMPSHIRE BILL REALLY LEGALIZE WAR DRIVING? Wired News has a story out announcing that a pending New Hampshire bill would legalize the practice of "war driving," geek speak for unauthorized access to open wireless networks. The only trouble is, the law would do no such thing-- in fact, by my read it wouldn't have any legal effect at all! Here's the beginning of the Wired News story:
  A land where white pines easily outnumber wireless computer users, New Hampshire may seem an unlikely haven for the free networking movement. But the state, known for its Live Free or Die motto, could become the first in the United States to provide legal protection for people who tap into insecure wireless networks.
  A bill that's breezing through New Hampshire's legislature says operators of wireless networks must secure them -- or lose some of their ability to prosecute anyone who gains access to the networks.
  House Bill 495 would, experts say, effectively legalize many forms of what's known as war driving . . . .
     Oddly, though, if you actually look at the law, it doesn't seem to do what the article says it does. First, a bit of background. The New Hampshire law at issue here is New Hampshire's state unauthorized access to computers criminal law. All fifty states and the federal government have these laws, although their meaning remains a bit of a mystery. (Full disclosure: I have an article on unauthorized access statutes forthcoming in the New York University Law Review. A draft should be up on SSRN shortly.) Here's the current version of the New Hampshire statute:
  A person is guilty of the computer crime of unauthorized access to a computer or computer network when, knowing that the person is not authorized to do so, he or she knowingly accesses or causes to be ccessed any computer or computer network without authorization. It shall be an affirmative defense to a prosecution for unauthorized access to a computer or computer network that:   (a) The person reasonably believed that the owner of the computer or computer network, or a person empowered to license access thereto, had authorized him or her to access; or
  (b) The person reasonably believed that the owner of the computer or computer network, or a person empowered to license access thereto, would have authorized the person to access without payment of any consideration; or
   (c) The person reasonably could not have known that his or her access was unauthorized
    What we have here is a pretty basic unauthorized access statute with some fancy elements marked out as (a), (b) and (c) that are designed to clarify what mens rea or mental state the defendant must have to violate the law. The first sentence of the statute states that a person has not committed the crime unless they have knowingly accessed the computer, had no authorization to do so, and in fact knew that they were not authorized to do so. Fancy element (a) is entirely redundant thanks to this language: if you actually and reasonably believed that you had that authorization to access the computer, you could not also have knowledge that it was unauthorized. Fancy element (b) isn't entirely redundant, but wouldn't apply very often: under this section if you know you're not allowed to access the computer but have a reasonable belief that the owner would have allowed you to access the computer if you had contacted the owner, then it's okay. (This seems sort of like a necessity defense to me, but I'm not entirely sure.) Fancy element (c) seems entirely redundant to me: if you actually did know that the access was unauthorized, then I don't know how at the same time it can be unreasonable for you to know that the access was unauthorized. In other words, the defendant would have to say, "sure, I knew it-- but it was acting unreasonably, and that's the only reason I knew it." This is a particularly weird section, I think-- perhaps they are trying to say that if a reasonable person wouldn't have realize that the access was unauthorized, it's an affirmative defense. I don't get that from the actual text of the statute, however. Perhaps that's what the authors of the section were trying to do, but I don't see it in the text.

     In any event, the proposed bill would add the following text:
The owner of a wireless computer network shall be responsible for securing such computer network. It shall be an affirmative de ense to a prosecution for unauthorized access to a wireless computer network if the unauthorized access complies with the conditions set forth [in (a) to (c)].
     Okay, so that's the language that Wired News says would legalize war driving. However, unless I'm missing something, the new law doesn't do anything. First, the line that "[t]he owner of a wireless computer network shall be responsible for securing such computer network" sounds great, but doesn't appear to have any legal effect. And the rest of the amendment simply says that the same affirmative defense available for all computer networks is also available for wireless networks-- something that is true now, as the affirmative defense applies to all computers and computer networks, and New Hampshire's definition of computer networks already includes wireless networks.

     Either I'm missing something, or else this Wired News story is way off base. (Of course, I'll be happy to post a correction if I'm missing something.)


"SUPPLEMENT TO THE FIRST AMENDMENT": Not only is there one, according to, but apparently I wrote it!

     The official and less confusing name (though one that may be too long for quickie online listings) is, of course, "The First Amendment: Problems, Cases and Policy Arguments" (2002 Supplement). (Just calling textbooks "The First Amendment" or "First Amendment Law," followed by a subtitle, is pretty standard in the law biz.)

UPDATE: Reader Alexander Sudnik also points out something I completely missed when checking out that page:
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CONSTITUTIONALITY OF RECESS APPOINTMENTS: Lawrence Solum has just posted a short law review article (er, I mean, a long blog posting) about the topic over at Legal Theory Blog. Read the whole thing here.


Eugene Volokh has something to say about this perennial error. My view is that the notion that flag burning is a form of protected speech is a bit bizarre (along with smearing your naked body with chocolate sauce on stage), but you know what? I want left-wing crazies to burn the American flag. It's just one more way for them to marginalize their ideology with the vast majority of Americans. . . .
I think Clayton is right on the political point, but I don't think it's at all bizarre to view flag burning as a form of protected speech. Our culture has lots of conventionally understood symbols that communicate much like words communicate. A cross (which is protected under the Free Speech Clause as well as under the Free Exercise Clause) is one example; so are black armbands, uniforms, and flags. The Supreme Court has long treated the display of such symbols as constitutionally protected speech (the first such case was handed down in 1931, only a decade or so since the first Supreme Court cases that really focused deeply on the freedom of speech), and I think rightly so: Their function is the same as the function of words.

     The same, it seems to me, applies for burning flags, burning crosses, burning or hanging effigies, and so on. They too are forms of communication, and when they are restricted precisely because of the effects of the message that they communicate -- because the message is offensive or evil or undermines the meaning of a symbol -- it seems to me quite proper to treat restrictions of this communication the same way we treat restrictions of verbal communication. (If they are restricted for other reasons, for instance because of a general prohibition on burning things in a public park where the burning may start a brush fire, then those restrictions are generally constitutional.)

     Nor does the textual objection -- flagburning isn't "speech" or "press" -- seem to me particularly significant. Handwriting isn't "speech" or "press" in the narrowest sense of the term; we wouldn't normally call the singing of the Star-Spangled Banner "speech"; a picket sign isn't "speech" or "press" in the narrowest sense. Should courts really hold that therefore such communication is constitutionally unprotected?

     "Speech," it seems to me, ought to be innterpreted to cover communication through well-understood languages of symbols, whether sign language, Morse code, ASCII encoding, or the waving or burning of flags -- communication that is functionally identical to communication through the human speaking voice. When the government restricts this communication precisely to suppress the message being communicated, it seems not at all bizarre to treat that as tantamount to a speech restriction.


MIXED-CASE RSS POST TITLES: I'm thinking of switching our post titles (such as the "MIXED-CASE RSS POST TITLES:" text at the start of this post) so they come out in mixed-case in our RSS feeds, though they'll still be upper-case on the blog itself. If you know of any problem with doing that, please let me know in the next day or two.

     Thanks to reader Kim Scarborough for the suggestion, and for the HTML code that will upshift the titles for the blog (<span style="text-transform: uppercase"><$BlogItemSubject$></span>). That's our policy, by the way -- want a formatting change, give us the code to do it.


FLAG PROTECTION AMENDMENT IS BACK: Apparently the House Subcommittee on the Constitution is having a "Legislative Hearing and Markup on H.J. Res 4, the 'Flag Protection Amendment,'" next Wednesday (May 7). Here's my short piece on "What’s Wrong With the Flagburning Amendment"; a version of it was published in the L.A. Times a couple of years ago:
"Congress shall have power to prohibit the physical desecration of the flag of the United States, and the flying of the Confederate flag."

OK, so that’s not exactly how the proposed flag protection amendment reads -- I’ve added the Confederate flag phrase. But this little thought experiment helps show that the flag protection amendment is a bad idea.

After all, burning the U.S. flag and flying the Confederate flag are similar in many ways. Some people argue that flagburning shouldn’t be protected by the First Amendment because it isn’t "speech." Well, burning one flag and waving another are pretty similar on that score. I think both are traditional terms in our political language, and should be constitutionally protected; but if I’m wrong, then both should be unprotected.

Of course, burning the U.S. flag deeply offends many people. But so does waving the Confederate flag, even when it’s done by individuals and not by state governments. Many American boys died defending the U.S. flag -- and many of them died fighting against the Confederacy. Burning the U.S. flag is often an anti-American symbol. Likewise, the Confederate flag was a symbol of treason and rebellion against the lawful American government.

It’s true that many people see the Confederate flag as not just as a symbol of the Confederacy, and of a slave state rebellion prompted by the election of an anti-slavery President: They also see it as a symbol of other things, such as Southern pride. But likewise some people burn the U.S. flag not because they hate America, but only because they want to protest what they see as the American government’s errors. Like most symbols, flagburning and flagwaving often mean subtly different things to different people.

So one danger of the anti-flagburning amendment is the slippery slope. If the amendment is enacted, even without a clause for the Confederate flag, many people will be energized to try to ban other symbols that offend them. Think of it as "censorship envy" -- if my neighbor gets to ban symbols he dislikes, why shouldn’t I get to do the same? This kind of misplaced desire for equality of repression is a powerful psychological force.

Of course, it’s likely that the slippery slope will be resisted here, and people will remain free to wave the Confederate flag. But America would be even more endangered by a selective ban on flagburning alone than by a broader ban: Such selective suppression will bitterly divide us, rather than uniting us.

Right now, when people -- mostly blacks -- are deeply offended by what they see as a symbol of racism and slavery, the legal system can powerfully tell them: "Yes, you must endure this speech that you find so offensive, but others must endure offensive speech, too. Many Americans hate flagburning as much as you hate the Confederate flag, but the Constitution says we all have to live with being offended: We must fight the speech we hate through argument, not through suppression."

But what would we say when flagburning is banned but other offensive symbols are allowed? "We in the majority get to suppress symbols we hate, but you in the minority don’t"? "Our hatred of flagburning is reasonable but your hatred of the Confederate flag is unreasonable"?

If you were black and saw the Confederate flag as a symbol of slavery and racism -- and millions of blacks do, whether you agree with them or not -- would you be persuaded by these arguments? Would you feel better about America because of them?

America is different from most other countries, and even from most other democracies. In America, all ideologies are protected, even those that the majority thinks are evil.

Why is this right? Because the First Amendment was drafted and interpreted by people who intimately understood cultural, religious, and political conflict, and who knew how calls for censorship could launch the most bitter of culture wars.

The Amendment is a truce: "I won’t try to suppress your ideas, if you don’t try to suppress mine." And the flagburning amendment risks shattering this truce.


LYNDON LAROUCHE IS BACK IN THE NEWS: Clayton Cramer reports that dozens of current and former Democratic elected officials -- plus former Surgeon General Joycelyn Elders -- are urging that LaRouche be invited to a nationally broadcast May 3 Democratic Presidential debate.


HANGOVER-FREE VODKA? From, via Matt Welch:
A Bulgarian company has begun producing a vodka that contains vitamins C, B1 and B2, honey, milk and other bioactive ingredients. The mixture allegedly minimalizes the possibility of a hangover . . . .

According to the head of Vinprom, the vodka, called "Shock" doesn't even burn when flowing with full force down the gullet. The drink contains vitamins C, B1, B2, honey, milk and other bioactive incredients that help the body absorb alcohol, and therefore it helps reduce the unwanted side effects of drinking, wrote the Bulgarian newspaper Dněvnik.

This raises the question of whether the new drink even tastes like vodka. The newspaper is tactfully silent on that question. . . .


SEXUAL HARASSMENT LAW: Jacob asks an excellent question below. Here's the short answer: The university's policy fairly closely tracks the rules of workplace harassment law, but several courts have held that these rules cannot be applied to student speech in public universities; in fact, the leading speech code cases (all of which have struck down speech codes) have generally dealt with speech codes that were phrased in terms much like those used by UCLA. So as I argue in my memo, the policy is unconstitutional (Part C) and certainly not legally required (Part D).

     I have argued, in several articles (the substance of which has been organized, edited, updated, and generally gussied up here), that even workplace harassment law is in part unconstitutional; but I realize that this is an uphill legal argument. The argument that these speech codes are unconstitutional as applied to university students, though, is extremely well-supported.

     Finally, while I generally sympathize with institutions who are caught in legal double binds, and who are therefore willing to do a lot to avoid even those lawsuits that they're likely to eventually win, it seems to me that universities should take a more aggressive view. They don't just have an "institutional responsibility to avoid lawsuits"; they also have an ethical institutional responsibility to protect academic freedom, even if that means fighting some lawsuits -- plus of course a constitutional responsibility to avoid First Amendment violations. And I think that we have a responsibility, and certainly a right, to at least increase the public relations cost of instituting such speech codes, to show universities that instituting speech codes isn't necessarily the most cost-effective approach.


MORE ON PUNITIVE DAMAGES: Clayton Cramer responds to my piece below (do these links even work now?) on punitive damages. Well, he mostly disagrees with me, therefore I mostly disagree with him, but you might read it anyway.

One small point: Clayton says I suggested that these suits tie up the resources of the legal system, while I don't recall ever having suggested that, and in fact, I don't think I think that. What I did suggest, though, is that they use up the valuable social resource of blame, a moral resource which, when administered by the criminal justice system, requires the assent of both the jury and a politically accountable prosecutor. Yes, this means powerful people might not get prosecuted sometimes (a point Clayton makes), but the civil justice system, which only requires a jury's assent (because the plaintiff is obviously self-interested), may assign blame to too many people. For instance, as my professor Kip Viscusi has written, sometimes companies get slapped with punitive damages just for doing a cost-benefit analysis that "looks" reprehensible to a jury. Consider Clayton's Idaho lead poisoning story -- and I still can't tell, without more facts, whether this was reprehensible or whether it was even negligent at all. When choosing between underblaming and overblaming, if it's better that n guilty men go unpunished than one innocent man be punished, maybe this underpunishment is O.K.

As for where Clayton somewhat "agrees with me" on the merits, I don't agree with his reasons. "You won't find [him] defending the greedy ambulance chasers." I say, What's wrong with ambulance chasers? If people deserve to recover, ambulance chasers are how the market is supposed to bring meritorious claims to the courthouse. To the extent ambulance chasers are bad, it's because the substantive tort doctrines are bad, that is, people are recovering who don't deserve to recover. But this is the result of bad law, not bad lawyers. Similarly, we may have too many farmers doing unproductive work because of farm subsidies -- do we dismiss them as greedy crop-raisers just because they take advantage of a bad government program? Hate the subsidy, love the subsidy-suckler.

Moreover, Clayton says that "large punitive damages may seem absurdly large." Why do they seem large? Because it "smacks of 'I've won the lottery.'" Why does it matter that it seems like a lottery (which, as far as I can tell, only means a large payment that you might get with some probability). If these damage awards are necessary to deter or punish bad conduct, then they're justifiable, and it shouldn't make a difference that they might enrich certain plaintiffs who are otherwise undeserving. After all, the actual lottery also rewards the undeserving, but surely there's nothing wrong with giving people huge payments unless you can also tell a story why that money should have gone elsewhere. In fact, if you think (as Clayton does) that punitive damages are justified to control bad behavior because the private system is a necessary supplement to government criminal enforcement, then these payments might serve a valuable functional purpose in actually making sure these suits get brought.

My account, incidentally, does give a story about why the money should go elsewhere, and it doesn't involve the lottery-like nature of the payment: (1) either these defendants aren't really blameworthy, since the current system has insufficient procedural protections and produces too many false positives, so they should have kept their money, or at least they should only have been compelled to give up their money under a higher burden of proof, or (2) these people are somewhat blameworthy but the scarce resource of blame ought to have been applied elsewhere through a politically accountable process, so at least that money should have been diverted to the government so as not to encourage unaccountable private attorneys general.

Finally, Clayton says that "[t]here is clearly a strong argument that a lawyer shouldn't become multimillionaire for spending 100 hours pursuing a lawsuit." Why? In the adversary system, we depend on lawyers to bring cases. The compensation of lawyers is contractually determined with plaintiffs, so it's really plaintiffs paying lawyers out of whatever they earn, and they pay the lawyers a percentage that's necessary to get them to bring the case. (The story is different with class actions, but that's a question for another day -- punitive damages are a general issue for both class actions and individual litigation.) Far be it from me to quarrel with what private professionals make in their private dealings. But to the extent we want to argue about social usefulness, there's an even stronger argument that lawyers should make whatever it takes for them to bring cases under our system. If the substantive law is wrong, too many cases get brought, but that just means we should change the substantive law, not that we should discourage lawyers from making a lot of money, which would indiscriminately fall on both meritorious and unmeritorious cases.

So, to recap -- Clayton finds punitive damages unobjectionable on moral grounds, but dislikes the natural procedural workings of the system that's necessary for cases to be brought under the adversarial system. I dislike punitive damages for moral reasons, but, given the adversarial system, I love lawyers and how they get paid. P.S. Clayton advocates fines proportional to income. Query whether we should go after absolute deterrence (collect the minimum necessary to deter all such acts or as many as possible, in which case proportional punishment may be justifiable) or whether we should after efficient deterrence (collect an amount equivalent to the social harm done by the act, which is the same whether it's done by a rich person or a poor person).

And, another P.S., the McDonald's suit is an awful example of why punitive damages might have been necessary: given that you believe you're not liable, it's never reprehensible to refuse to pay unless you lose the lawsuit.


SEXUAL HARASSMENT: A question for Eugene, and interested other parties. Was the old UCLA policy overbroad compared with sexual harassment law? As far as I can tell, an institution that didn't prohibit "verbal conduct of a sexual nature" that "create[s] an intimidating [or] hostile... University environment" ("offensive" may have been UCLA's own gratuitous addition) would be prone to liability in sexual harassment lawsuits.

Eugene's memo on the new policy emphasizes that statutory sexual harassment law cannot take precedence over the First Amendment, which is obviously true. But it's also not much comfort to the university administrator whose neck is being breathed down by the EEOC, and who sees sexual harassment lawsuits being lost by institutions that lack such a policy. The in-principle unconstitutionality of [portions of or interpretations of] a statute and the implementing regulations passed by regulatory agencies probably isn't going to persuade many institutions to take the policy on. It was a long time before any university was willing to challenge the administrative interpretations of Title IX; and, ultimately, they lost anyways.

The new policy is clearly overbroad, even relative to current law. But is the old one? And how should university administrators balance their view of constitutionality against their institutional responsibility to avoid lawsuits under the law as currently interpreted?

UPDATE: I quite agree with everything Eugene says in his response above; just thought the issues would be interesting enough to get out into the open.


UCLA PLANNING TO INSTITUTE NEW SPEECH CODE: I regret to say that my very own institution, UCLA, is planning to institute a new speech code, under the guise of a "sexual harassment policy." This policy doesn't just limit sexual extortion, unwanted sexual advances, physical contact, or threats. Rather, like many such policies, including several that have been struck down by federal courts, it risks punishing a wide range of speech -- allegedly sexist political statements, sexually themed jokes, sexually themed art, and other speech. And it would potentially do this in student newspapers, in public places, in Internet discussions, and in a variety of other places.

     The old sexual harassment policy was problematic enough -- by saying
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute sexual harassment when: . . .

C. Such conduct has the purpose or effect of unreasonably interfering with an individual's performance or creating an intimidating, hostile, or offensive University environment.
it prohibited an ill-defined but potentially quite broad range of "verbal . . . conduct" that "creat[ed] an . . . offensive University environment." This is definitely not the narrow precision that the First Amendment demands of speech restrictions. (Just to make it clear, I have no constitutional objection to the old or the new policy as applied to nonspeech conduct, or to constitutionally unprotected speech, such as threats. My focus is to the policy as applied to constitutionally protected speech.)

     The proposed new policy essentially retains this definition (it clarifies that the policy applies only when the speech is "severe or pervasive" enough to create an offensive University environment, but those terms are again vague enough that they don't help much, for reasons I explain in my memo), but also makes quite clear that it is intended to be a speech code, potentially applicable to a wide range of jokes, statements, art, and other speech, as in fact such policies have indeed been applied in other universities. (I know some defenders of the policy bristle at the term "speech code," but a speech code is clearly what it is.) I have posted a fairly detailed memo explaining the breadth and vagueness of the policy, and citing cases that show that the policy violates the First Amendment.

     The UCLA administration tells me that it's extended the comment period for the policy until Monday, May 12. If you're a UCLA staff member, and want to submit comments, you should e-mail thompson at; if you're a UCLA faculty member, you should e-mail mfractor at Unfortunately, the cover letter doesn't explain where UCLA students -- or representatives of UCLA student organizations, such as student newspapers -- should submit e-mail, so presumably you'd have to use one of these addresses.

     I'm hoping that a strong enough protest from the UCLA community will keep this misguided, unconstitutional, and unnecessary policy from being enacted, and may even lead UCLA to repeal its old policy. It's pretty sad that we still have to be fighting this battle, but we do.


JEWS AND SEX: According to Robert T. Michael et al., Sex in America (1994) -- a seemingly quite comprehensive study of sexual practices of noninstitutionalized Americans age 18 to 59, 12% of all respondents had 0 sex partners in the last twelve months. This was roughly the number for the irreligious; for mainline Protestants; for conservative Protestants; for Catholics; and for people of other religions. But among us Jews, the fraction was 3%. As Glenn Reynolds says, "Heh."

     (Yes, since the sample size was about 3500 people, and Jews are roughly 2% of the population, the margin of error is pretty darned hefty there.)


NOW ONLINE: My new TNR column is up, here. It's accompanied by a related piece from the estimable Reihan Salam, here.


YET MORE ON GAY MARRIAGE: I've complained about Stanley Kurtz's NRO writings and postings on many occasions, and have said that his pieces on Santorum etc were flatly wrong on some points. His panic at the thought of legalized gay marriage has always struck me as absurd. Today let me say that his The Libertarian Question is one of the best pieces I've seen on the conservative side of these questions. It's wrong; and it doesn't even try to make a case for the priority of taboo-maintenance over the moral concerns on the other side. (At a crucial point it also, unsurprisingly, falls into common tendency Eugene noted last week to make a claim about male homosexuality and treat it as a claim about homosexuality as such.) But it doesn't seem to misrepresent anyone; doesn't talk about Santorum enough to be another whitewash of him; makes the argument that there is to be made seriously and thoughtfully; offers publicly-accessible arguments, not religious arcana; and is free of Derbyshirish juvenalia. It's worth a read, and some consideration. And I think there's at least something to his argument about the incest taboo. It's very unclear to me that the criminalization of adult consensual incest is the primary mechanism for maintaining that taboo; but it does seem plausible that maintaining the taboo in a general way serves a protective function. Cultural norms operate in broad fuzzy bands, unlike the bright lines of ethics and law. It may sometimes be the case that we either have to have a norm that condemns behavior that isn't morally wrong (adult consensual incest), or that we lose the desriable cultural revulsion at behavior that is morally wrong (non-consensual or dubiously-consensual or adult-child incest).

Relatedly, see Andrew Sullivan here and here, and the James Miller piece Sullivan mentions here. The Miller piece seems to me to get things right-- it takes Kurtz-style concerns seriously, but explains why they apply to incest and not to homosexuality.

UPDATE: Let's be clear about something: I think the leap Kurtz makes to gay marriage is wrong, and saying that he's offered one of the better defenses of the conservative view on this question isn't offering very high praise. See also this post above.


MORE SUGGESTIONS FOR INCREASING BLOG READERSHIP: Reader Matthew Morse passes along some other advice -- it's not for everyone, and I don't follow parts of it myself, but I think many people might find it helpful:
In a recent post of yours . . ., you field the question of how to increase your blog readership, and in particular how to get the attention of "famous" bloggers.

I started my blog in January. I had a change of focus in mid-March. Since then, I've been getting more attention from others. I feel like I've hit the vertical part of the growth curve in the last two weeks. As someone who feels like he's on the way up, I have some thoughts.

1. Pick a topic. Good topics include anything that you are likely to launch into unprovoked speeches about. If it's gotten to the stage
where talking about it annoys your SO, relatives, and friends, that's a good sign. Make it as narrow as possible. Narrow topics give focus.

2. Own the topic. Find every blog and news source on the topic you can, and read them all. If there's an angle that no one else is covering that you find interesting, work it. Narrow topics work in your favor here as well.

3. Be prolific. Don't overdo it, but the more you write, the more likely people will feel they will miss something if they don't come back.

4. Be link-happy. If you come late to a discussion, link to everybody else. You'll get links just for your collection of links. Beyond that, linking to other people feeds their egos and makes them want to link back.

5. Syndicate. I see every new post in my aggregator every day. I only read posts from people without RSS feeds when I click on the bookmark. Readers are lazy. Most blogs can generate feeds for you, but if yours doesn't, do it by hand. I do.

6. Include comments. It makes your readers feel like participants. It also strokes your own ego when you get comments from people you don't know.

7. Important! Don't worry about it. The more time you spend worrying or checking blog popularity contests, the less time you spend blogging. The same is true for self-promotion. Let them find you because you're blogging, not because you tell them about yourself. This also means that anytime you come across yourself in another blog, it's a pleasant surprise. I've started finding myself on other people's blogrolls. The curious thing is that some of them list me by first and last name, and my last name doesn't even appear on my blog.

Tuesday, April 29, 2003


OH, DRAT: I was planning on working tonight on a short article that I have to write, but the day's mail brought Sean McMullen's Voyage of the Shadowmoon, which turns out to be as engrossing as Souls in the Great Machine. I am weak, and after all it's days until the deadline. Memo to myself: Do not bring the book to school tomorrow, even "just to read for a couple of minutes as I'm walking from my car."


SULLUM ON TORTS: Jacob Sullum, whose work on tobacco, drugs, and other vices I admire a lot, has a recent Reason article on the tort system that I think could be somewhat clearer. [UPDATE: Yes, I admire both Sullum and vices.]

In "Damage Control," he argues in favor of the Supreme Court's recent decision striking down an "excessive" punitive damages award on Due Process grounds. The reasons he gives against punitive damages are that they "muddy[] the distinction between civil and criminal justice" (civil justice, he says, is supposed to be for compensation, while criminal justice is for punishment and deterrence) and they don't provide much statutory guidance or protections for the accused.

I think Jacob is basically right, but the reasoning isn't ideal. Why is the focus of civil justice "supposed to be" compensation? Punitive damages have a long pedigree -- in America, they go all the way back to the 18th century and were used (in smaller amounts than today, granted) explicitly to punish people whose behavior was really outrageous. Sometimes they were called "exemplary damages." And victim restitution does play some role in criminal justice. Why should we seek to maintain the sharp division between compensation-only civil justice and punishment-and-deterrence-only criminal justice? Similarly, punitive damages may have few protections for the accused, but so do compensatory damages (which work on a "preponderance of the evidence," i.e., 51%, standard). Punitive damages may have little statutory guidance, but juries are similarly unguided when they calculate pain and suffering damages, which are compensatory.

Now I'm no fan on punitive damages (see my op-ed and policy study I wrote some years ago, when I was at the Reason Public Policy Institute). But we have to make clear in functional terms why more procedural protections are needed for punitive damages or why the civil justice system should be for compensation only.

We need procedural protections for punishment because (I presume) we have a core moral intuition that it's better that n guilty men go free than one innocent man be punished and all that. For punishment, usually people think that n is (possibly much) greater than 1, while the assumption is that in matters of compensation, n is equal to 1 (if I sue you for an injury, we don't think the error of wrongly making you pay is much worse than the error of wrongly making me suffer uncompensated). The criminal system is good at providing procedural protections, for instance in the form of high burdens of proof. One solution to punitive damages would be to abolish them and leave them to the criminal justice system; another solution would be to keep them but adopt high burdens of proof (some states have adopted a "clear and convincing evidence" standard).

Another possible distinction between civil and criminal systems is that civil lawsuits are privately instituted while criminal lawsuits are run by government employees who are supposed to be politically accountable. Perhaps private enforcement is great to compensate private injuries, while we don't want unaccountable people running around "prosecuting" people and wrongly using up the valuable social commodity of blame. Again, one solution along this dimension would be to abolish punitive damages and leave punishment to the criminal justice system; another solution would be to divert punitive damage payments into the public treasury to dull the private incentive to prosecute people.

How does that compare to what the Supreme Court thinks? I don't much see the point in caring about the ratio between compensatory or punitive damages (the Supreme Court loves talking about ratios), or absolute caps on the amount of punitive damages (some state legislatures have enacted those). Moreover, the Court's "substantive due process" analysis which Scalia hates (and half of what you all don't like about the Supreme Court fits into there) really is somewhat unprincipled and made up. The Court is probably going in an O.K. direction, but for the wrong reason, and it doesn't help matters to just talk about dulling the distinction between civil and criminal as though that alone justifies the Court's substantive due process analysis.

That's all for now -- maybe later I'll blog about Jacob's article about the legislation protecting gun manufacturers from lawsuits.


WILDEBEESTS, AMERICAN INDIANS, AND VENICE HOSTELS: Speaking of wildebeests, aren't they herbivores, Eugene (and another reader of Waddling Thunder) asks? But maybe the meat on the other side is girl wildebeests.

Eugene's note below on how American Indians prefer "American Indian," and if that's inaccurate, so's "Native American," reminds me of a Daily Bruin column I read when I was in college in the early '90s. I think the columnist was Susan Rinderle, and she wrote that Hispanics dislike the term "Hispanic" because it smacks of European imperialism, while they like to stress their pre-Columbian heritage . . . therefore, you should call them . . . Latino.

Finally, I did manage to get myself a hostel. It's about a half hour's bus ride outside of Venice, which is probably even better than in Venice itself, given what I hear about how touristy Venice is. And . . . only 13 euros (roughly $13) a night!


RESULTS OF THE 2002 WIRETAP REPORT: Federal law requires the federal government to file a report every year about both state and federal wiretapping practices performed in criminal cases during the previous year. The 2002 Wiretap Report is now out, and you can access a copy here. Keep in mind that the report covers only wiretapping performed in criminal cases, and does not include wiretapping in national security cases. (The FISA Court granted another 930 court orders in national security cases in 2001, the last year stats are available, although it is unclear how many of those court orders involved wiretapping, as opposed to physical searches or other types of surveillance. Thanks to The Technoptimist for the pointer to the 2001 numbers.) Still, the results of the wiretap report are quite fascinating. On the whole, the number of criminal wiretap orders in 2002 was down slightly:
After increasing 25 percent in 2001, the number of wiretaps reported decreased 9 percent in 2002. A total of 1,358 applications were authorized in 2002, including 497 submitted to federal judges and 861 to state judges.
The primary difference in terms of the number of wiretapping applications approved in 2002 versus in 2001 appears at the state level:
Compared to the number approved during 2001, the number of applications approved by federal judges in 2002 increased 2 percent, and the number of applications approved by state judges dropped 14 percent.
As is always the case, state wiretapping practices were focused heavily in particular states:
Wiretap applications in New York (404 applications), California (143 applications), New Jersey (81 applications), Pennsylvania (79 applications), Maryland (54 applications), Florida (37 applications), and I linois (25 applications) accounted for 96 percent of all authorizations approved by state judges. The number of states reporting wiretap activity was lower than the number for last year (19 states in 2002 compared to 24 in 2001).
The great majority (77%) of wiretapping orders were obtained to wiretap cellphones, as opposed to landline phones. (This may seem odd, but note that most criminal wiretap orders are obtained in drug cases-- drug dealers don't often use landline phones.) A surprisingly small number of orders (only 3 of 497 federal wiretapping orders) were so-called "roving" wiretap orders, which federal law has allowed in criminal cases since 1986:
Federal authorities reported that roving wiretaps were approved for three investigations, with two authorized for use in racketeering investigations, and one for use in a drug offense investigation. On the state level, six roving wiretaps were reported; five applications were authorized for use in drug offense investigations, and one for use in a robbery investigation.
The government encountered encrypted communications in over a dozen cases, but was able to decrypt the communications somehow in each of the cases:
Encryption was reported to have been encountered in 16 wiretaps terminated in 2002 and in 18 wiretaps terminated in calendar year 2001 or earlier but reported for the first time in 2002; however, in none of these cases was encryption reported to have prevented law enforcement officials from obtaining the plain text of communications intercepted.
As is usually the case, drug cases were the most prevalent type of criminal case for which a wiretapping order was obtained:
Violations of drug laws and gambling laws were the two most prevalent types of offenses investigated through communications intercepts. Racketeering was the third most frequently noted offense category cited on wiretap orders, and homicide/assault was the fourth most frequently cited offense category reported. . . . 7 percent of all applications for intercepts (1,052 wiretaps) authorized in 2002 cited drug offenses as the most serious offense under investigation.
Most wiretap orders ended up monitoring a good number of people, and also intercepting a fairly high number of incriminating communications:
Nationwide, in 2002 the average number of persons whose communications were intercepted per order in which intercepts were installed was 92, and the average number of communications intercepted was 1,708 per wiretap [order]. An average of 403 intercepts per installed wiretap produced incriminating evidence, and the average percentage of incriminating intercepts per order rose from 21 percent of interceptions in 2001 to 24 percent in 2002.
Finally, the report included a tally of convictions that were reportedly based on evidence obtained through wiretapping in past years. According to the report, "[d]uring 2002, a total of 2,458 arrests, [and] 2,616 convictions . . . arose and were reported from wiretaps completed in previous years." Interesting stuff.


SUTTON CONFIRMED: Congratulations to Jeff Sutton on his confirmation by the Senate. It is well past time. He is exceedingly qualified, and the Democratic libels being used to delay him were despicable. The notion that he is an enemy of the disabled because he represented the States and advanced federalism arguments against portions of the ADA is like saying that Democrats are active supporters of murderers, rapists, thieves and other unsavory types if they they defend procedural protections for criminals. (Well actually ....) (Just kidding ....) (Really ....) Senator Harkin should be noted for his particularly shameful attacks on Sutton. I think the fact that Sutton made it through his hearings without laughing out loud at the hypocrisy and disingenuousness of many of his inquisitors is more than sufficient evidence of his judicial temperament. Ditto for Estrada. In any event, it is just nice to see that the nonsense Sutton had to endure was not for nothing.


STILL MORE ON REPORTERS' BLOGS: Reader Kirk Parker writes:
I see it from exactly the opposite point of view as [Linda] Seebach. What if I read a reporter's blog, and thus learn more of their actual views, and then don't always find that slant in their reporting? Shouldn't this (hopefully) common scenario actually enhance the objective-wannabe newspapers' credibility?


BRAINSTORMS, HANDICAPS, ETC.: From The Telegraph (thanks to Betsy Newmark for the pointer):
The term "brainstorming" has become the latest target of political correctness, according to a charity.

Trainee teachers are being told to avoid the word for fear of offending pupils with epilepsy. Instead they are being advised to use "word storm" or "thought shower".

However, charities working with epilepsy say "brainstorming" is not offensive. "We had several inquiries from teachers about it so we did a survey of our residential home," said Gemma Baxter from the National Society for Epilepsy.

"We also contacted people with epilepsy in the community and the overwhelming response was that 'brainstorming' implies no offence to people with epilepsy, and that any implication that the word is offensive to people with the condition is taking political correctness too far."

People found it more offensive that the question was being asked of them, she said. . . .
I never quite know what to make of these newspaper reports; perhaps this is just one person's folly that's being blown out of proportion precisely because it seems so foolish. Still, past experience with other words makes such stories seem more plausible: I've been told a couple of times, for instance, that "handicapped" is supposedly offensive -- see this "Sensitivity Guide: Avoiding Dehumanizing or Offensive Labels and Terms" from a Kentucky government agency -- because it originated from handicapped people begging with cap in hand (false). "American Indian," some complain, is offensive, even though the most recent survey I saw (1997, I believe) showed that most American Indians prefer that over "Native American" (and if the objection is that "American Indian" is not literally accurate, the same is true of "Native American"). The list, unfortunately, goes on -- and it would be too bad if the perfectly fine "brainstorming" were being added to the list, too.


AGAINST RECESS APPOINTMENTS. Professor Randy Barnett, as Eugene mentions a couple of posts below, believes he has hit on a winning strategy for the Republicans: give Robert Bork a recess appointment to the Supreme Court, and also use recess appointments to give temporary judgeships to other people who couldn’t possibly be confirmed because of their politics or for other reasons. Actually, Barnett says, the Republicans wouldn’t need to actually do this. The mere threat of it will cause Democrats to capitulate and give floor votes to “ordinary” Bush nominees. A few thoughts:

1. I must be missing something. The best thing George Bush could possibly do for the Democratic party would be to give Robert Bork a recess appointment or put others on the bench who couldn’t be confirmed. Bush would get minimal mileage from the effort – just a year of judicial service, and anything radical the appointee tried to do would look like a terrible end-run around the separation of powers. Democrats would get endless mileage out of it in 2004. Yeah, I’ll bet the Dems are just terrified by this proposal.

2. I wish that people who suggest the use of escalation tactics (“wouldn’t that be great?”) would spend a little more time thinking through the long-term consequences of the use of them by both sides. If Bush were to use recess appointments to put far-right people onto the court temporarily, we can expect similar tactics from Democrats. Barnett invites us to “imagine the fascinating opinions we would get from these ‘untenured’ judges before they exit the judicial stage.” I’m sure that a recess appointment of Steve Reinhardt to the Supreme Court would likewise produce some fascinating opinions. I can do without them. (Of course Reinhardt is about as likely as Bork to get a recess appointment to the Court, but I’m trying to buy into the fantasy for the sake of argument.)

Let’s imagine more realistically that recess appointments are used, but not to put forward way-out-there nominees. Making recess appointments a habitual route for avoiding trouble in the Senate would create an ongoing class of temporary judges who lack the independence that life tenure is supposed to provide them. They would be spending a year auditioning for the part, hoping that it will become a permanent assignment with eventual Senate confirmation. But judges aren’t supposed to be auditioning. They are supposed to be judging.

3. Where is the crisis that justifies this talk? It’s not as if Democrats are refusing to confirm anyone. They are refusing to confirm some nominees they think are strongest ideologically. So what? Michael McConnell got confirmed. Jeff Sutton just got confirmed. Why does the failure to give floor votes to a few others amount to a crisis? Sounds like a forced ideological compromise to me. If the scarcity of judges becomes all that unbearable, the Republicans can make more moderate nominations. If the favorite nominees from either party can't get floor votes because a minority feels strongly enough to filibuster them, so be it. I wouldn't be in any hurry to deny either party that power. (I would, however, like to see the filibustering party forced to really filibuster, but that's a separate issue.)

4. Professor Barnett talks about how exciting it would be to see recess appointments of conservative and libertarian judges to the courts. If the recess appointment tactic were used in the way he wants (it won’t be, but pretend), it would be used to install conservatives, not libertarians. Is Miguel Estrada a libertarian? Carolyn Kuhl? Owen? Pickering? Bork? Ashcroft? Bush? A yes answer to any of those would be news to me. When Barnett talks about appointing Bernie Siegan it sounds like he thinks it’s 1987. In fact it’s 2003, however, and the Republican party has changed a lot during those 16 years.

5. By the way, check this out:

“Critics of the current Senate logjam say that although the framers may not have intended for the recess powers to be used to skirt the Senate, the framers also did not imagine that the Senate would use its ‘advise and consent’ powers to block nominees over partisan or ideological disputes.

“‘The genius of the federal system is that when any one branch tries to shut down another, there's almost always a check and balance,’ says Neal Katyal, a law professor at Georgetown University and former official in the Clinton Justice Department. ‘So if the Senate is trying to shut down the judiciary by not considering nominees, then the Constitution gives the president a remedy.’”

-- St. Louis Post-Dispatch, Oct. 31, 1999.

“[Recess appointments] would create an illegitimate process for bypassing the Constitution's framework for governing the country. The Constitution allows a narrow, temporary exception to the Senate-consent rule only for filling vacancies that "happen during the recess" for an obvious reason. In the early days of the Republic, Senate sessions were much shorter and recesses much longer. The Constitution's focus is on when the vacancy occurs, not on when the appointment occurs. The race-baiters would reverse this order, turning a narrow temporary exception to the fundamental consent requirement into a gimmick for avoiding Senate confirmation altogether.”

-- From an op-ed piece in the Washington Times, Nov. 5. 1999.

As these items show, the current debate is a rerun of the late 1990s, when Clinton considered using recess appointments to get Ronnie White, Richard Paez, and Marsha Berzon onto the bench after years of waiting (Paez and Berzon finally got confirmed the old-fashioned way. But Clinton did use the recess appointment power to get Roger Gregory onto the Fourth Circuit). Something to think about (see “2” above). For the record, I think the position taken in the Washington Times piece was correct when it was written and is still correct now.


Saudi Arabia is home to some of Islam's holiest sites and the deployment of US forces there was seen as a historic betrayal by many Islamists, notably Osama Bin Laden.

It is one of the main reasons given by the Saudi-born dissident -- blamed by Washington for the 11 September attacks -- to justify violence against the United States and its allies.
Oh, yeah, that's what it was -- dissent. And Timothy McVeigh was doubtless engaged in civil disobedience. Appalling. (Thanks to Andrew Sullivan for the pointer.)


FEDERALISM & THE LEFT: Robert Alt and Instapundit both believe that real federalism is not only for conservatives. Alt focuses primarily on federal regulation of abortion and pornography, but he could easily expand the list. Federalism also suggests that the federal government has limited power to regulate recreational drugs, prohibit doctor-assisted suicide, and enact broad tort reform, among other things. Over the weekend I suggested that local opposition to the Patriot Act could further rehabilitate federalist principles on the Left. I sure hope so.


LAWYER CARTOONS: There are some great ones at Stu's Views; highly recommended.


RECESS APPOINTMENTS OF JUDGES: Some interesting stuff from two leading constitutional law professors -- Randy Barnett urges recess appointments as a way to get judges confirmed, while Larry Solum expresses some skepticism about the politics and policy of the proposal, and promises some constitutional analysis of this tomorrow.

     I have no firm opinion on the matter myself, but I do think it's worth remembering a wise line from Jonathan Rauch, albeit from a subtly different context: "For all its New Testament rhetoric, Washington is an Old Testament city."


MORE ON REPORTERS' BLOGS: Linda Seebach of the Rocky Mountain News writes:
Speaking from inside what Glenn calls "Big Journalism" I'd like to come to the defense of the Hartford Courant and its decision not to let reporters have blogs. What are they vulnerable to? Loss of credibility.

You know that a substantial part of the public believes that their daily newspapers deliberately slant news stories to conform to the ideological predispositions of their reporters/editors/publishers/corporate owners. I don't believe that is true on any large scale in the news departments of mainstream dailies, at least as to the "deliberately" part. Reporters and editors are trained to strive for fairness and balance in coverage, and when they fall short, as does happen, it's because they spend way too much time in the company of like-minded people.

Nonetheless, readers' discovering by way of a blog what their reporter's opinions actually are will confirm their worst fears, and it is not unreasonable of the paper to worry about that. Two blogs, of differing viewpoints, would be even worse than one blog, because every reader would find something to object to.

Note that I am speaking specifically of news reporters at papers that aim for balance. I doubt the editors of the Nation or the Weekly Standard would mind if their staffers had blogs; there, it would be an asset. Readers don't mind if sportswriters are fans of the teams they write about. I'm an opinion writer, and I could probably get permission to run a blog, if I wanted to work that hard, because I wouldn't say anything I wouldn't say in my column.

But news reporters? What do people think when they find out that Linda Greenhouse, who covers the Supreme Court for the NYTimes, attends rallies in support of Roe v. Wade? (She did, once.)

Now in one respect the public's concern is misplaced. The problem, to the extent there is one, is that reporters let their biases seep into what they write, and that problem is not made any worse if readers know what the biases are.

Lots of law-school professors blog. Do judges? Should they? When they give speeches, every word gets picked apart by law-school professors.
She follows it up with this:
[T]ravel writing generally falls under the heading of feature writing, and the expectations for objectivity in feature writing are somewhat more relaxed. If our Spotlight section does a piece on feng shui, the reporter is not expected to include comments from scientists pointing out that it is superstitious nonsense. But from the employer's point of view, making case-by-case decisions might be difficult to defend and not worth the hassle.

Anyway, he's a travel writer now; maybe next week he'll want to apply for the education beat.
Interesting points, and worth passing along.


"INFRINGE ON THE RIGHTS OF OTHERS": Sasha Castel-Dodge writes (thanks to InstaPundit for the pointer):
Thought experiment

"I am entitled to __________ without interference from the government, if I do not infringe on the rights of others, and if I deem it necessary for my health, protection, personal safety or enjoyment, or that of my family."

Fill in the blank:

a) own/carry a gun
b) smoke a joint
c) have an abortion
d) watch a dirty movie
e) worship (or not) as I please
f) educate my children according to my personal values

I would agree with all six. What do other people think? And how does your choice of response place you ideologically?
I think this is an interesting argument, but my suspicion is that a huge amount of ideological division -- perhaps most such division -- comes not on the abstract proposition "I am entitled to __________ without interference from the government, if I do not infringe on the rights of others" but on the question of what constitutes "infring[ing] on the rights of others."

     This is clearest, of course, as to abortion, where the question is who counts as the rights-bearing "others." But it's also true as to educating children -- some people believe that children have a right to, for instance, learn certain things about sex, or learn the theory of evolution, and so on, while others disagree. It's likewise true as to discrimination (does it "infringe on the rights of others" if someone refuses to hire gays?), various economic regulations (does it "infringe on the rights of others" to supposedly exploit them by paying them too little, or demanding that they work too long), zoning (does it "infringe on the rights of" my neighbors if I build an office building that produces a lot of extra noise or traffic, or for that matter if I build a house that blocks neighbors' views), and so on. Of course, many people may have very definite views that some or all of these do not infringe on the rights of others -- but it's those views on how one defines others' rights, and not abstractions about "I am entitled to do what I like so long as I do not infringe on the rights of others," that generally decide the matter for them.

     Another range of ideological disagreement stems from the question of how direct the effect on others has to be to qualify as infringement. For instance, my driving drunk doesn't itself infringe your rights; does it follow that people should be free to drive drunk, at least until they cause an accident? Some say yes, but some say no, on the theory that driving drunk materially increases the chances of my injuring others. Likewise for a substantial range of other behavior, such as failing to immunize one's children, manufacturing dangerous chemicals in a residential area, and so on.

     This disagreement tends to be at the heart of many (though not all) debates about gun possession and carrying, drug use, consumption of pornography, and even religious worship -- people believe (rightly or wrongly) that this behavior indirectly causes harm to others' rights, from people shooting others in a moment of anger, people driving while stoned or committing crimes while on more serious drugs, people being more likely to engage in sex crimes, adultery, disease-causing promiscuity, or sex discrimination because of their consumption of pornography, people being more likely to engage in certain crimes or other rights-violating acts because of the religion that they've been taught, and so on. Again, many people might reject these arguments on factual grounds, because they believe that the behavior doesn't cause any material injury to others' rights, even indirectly, or because they believe that prohibiting this behavior would cause more injury to people's rights than tolerating it would. But again the debate would be over those issues, or over the question of how direct the harm must be to constitute "infringement," and not over the abstract question whether "I am entitled to do what I like so long as I do not infringe on the rights of others."

     Some debates, it is true, may be influenced in some measure by one's view on this abstract question; I don't want to claim that it has no relevance at all. But my sense is that usually, in today's America, the key issues have to do with which "others" qualify (fetuses? animals?), what their rights are (right not to be exploited? right to enjoy their property free of extra traffic, noise, and pollution? right not to be discriminated against? right not to be libeled?), and what qualifies as "infringement."


LOTS OF BAKING SODA (about 64 oz.) on my carpet right now -- or there was when I scattered it and started running the Roomba. Will see what happens when I come back. Possible problem with the experiment: Maybe 64 oz. of powdery dreck is too much for the Roomba to fit, and since I suspect that it's an unusually large amount of stuff, the Roomba might still be useful even if it can't suck up that much. If necessary, I'll rerun the experiment with less soda, though still scattered in different parts of the room. Always happy to invest effort in the name of Science.


LITERALLY: My friend and fellow constitutional law professor David Bernstein points to this article that doesn't just use "literally" to mean "figuratively," but actually uses the term "quite literally" to mean "figuratively":
Now at least five stores offering satellite dishes have sprouted around the shopping district, selling 400 to 500 channels for about $350. That's a pricy sum, but in a country craving a window on the outside world, Salih's satellites are selling, quite literally, like hotcakes.
Quite literally? People are buying quite literally as many satellite dishes as they are hotcakes? (Or is it just that Iraqis don't eat that many hotcakes?)

     Just to anticipate the messages from inconsistency-hunting prescriptivists, yes, at some point "literally" will completely lose its traditional meaning, and become an all-purpose intensifier (consider what happened to "cool," "bad," or for that matter "fucking"). It may have already happened now. But I never said that people aren't entitled to be annoyed by certain usages, or for that matter amused by them.


O'REILLY FACTOR: If all goes as planned -- and in the news biz, it's impossible to predict -- I should be the O'Reilly Factor today, defending the Fourth Circuit's decision holding that the Virginia Military Institute supper prayer violated the Establishment Clause.


RESISTANCE IS FUTILE: Apparently the U Chicago undergrad group-blog I mentioned yesterday, Baudes Blog, is assimilating some of the individual student blogs I also mentioned. They're looking for suggestions for a new name that don't include the word "conspiracy." For a while Lawrence Solum was coming up with an entertaining new non-Conspiracy name for us every couple of days; maybe he can help. (My favorites are here and here.)

Elsewhere: an interesting exchange between Timothy Burke and Kieran Healy about scholarship and specialization. I'll try to have something worthwhile to say about it later this week. (Blogging that sort of thing will put me in a much better mood than all the Santorum blogging has-- not that I'm going to quite beating that horse, mind you!) UPDATE: follow-ups from Chris Bertram and Henry Farrell, with an independent but interestingly-related post from John Holbo.


STATISTICS ON HOMOSEXUALITY: Just ran across American Sexual Behavior: Trends, Socio-Demographic Differences, and Risk Behavior, by Tom W. Smith of the National Opinion Research Center (updated 1998, based on the General Social Survey). I'm not generally up on the research in this field, so I can't tell whether this is consistent with other data, an outlier from the other data, or the main source of the data; but my understanding is that these people generally have a pretty good reputation.
Marital Status
Never Married8.110.211.2
Remarried0.8 1.83.3
Community Type
Top 12 Central Cities8.59.614.7
Top 100 Central Cities5.66.78.3
Suburbs of Top
Suburbs of Top 1002.43.55.9
Other Urban1.92.44.2
Less than High School3.14.15.6
High School Grad.
Assoc. Col. Degree2.43.54.9
Bachelor's Degree4.25.06.2
Graduate Degree3.33.76.4
Household Income
Less than $10,0006.18.69.4
Church Attendance
C2. Socio-demographic Differences Among Women
% with Same Gender Partner
Last 12 MonthsLast 5 YearsSince Age 18
Marital Status
Never Married6.68.6
Community Type
Top 12 Central Cities1.82.96.1
Top 100 Central Cities3.13.56.3
Suburbs of Top
Suburbs of Top 1002.63.55.4
Other Urban1.72.33.4
Less than High School2.54.25.8
High School Grad.
Assoc. Col. Degree2.73.64.4
Bachelor's Degree1.72.14.0
Graduate Degree3.34.77.8
Household Income
Less than $10,0003. 4.96.5
Church Attendance
Source: GSS, 1998

Monday, April 28, 2003


HOSTEL WORK ENVIRONMENT: Apparently, Waddling Thunder, my schoolmate, was less than fully convinced by my Harvard Law Review recruiting session for Federalist Society types. I'm not really intimidating, that's just a ruse. Please, take the competition!

In other news, why is it impossible to book a hostel bed in Venice using Hostelling International's International Booking Network?


MYSTERY SOLVED: Matt Yglesias has answered the question of what Ari Fleischer was thinking when he talked about Daniel Pipes' work as a Sovietologist. Standing up for the real Daniel Pipes (whom I've criticized, a lot, over Campus Watch) isn't actually that hard; wonder whether the White House will be willing to do it?


DOING THE DOZENS: So why, when we want to talk about a vague high-double-digits number, we say "dozens" rather than "tens"? After all, we say "hundreds" or "thousands," so why not "tens"? Yes, I've heard that 12 has long been seen as having all sorts of mystical qualities, and that 60 and therefore 12 played notable roles in the Babylonian counting system. But why should this have particular effecs on some European languages but not on others? In Russian, one would always say "tens" (desiatki) rather than "dozens" ("dioozhiny"), just as in English the idiom is vice versa. Friends of mine tell me that in Spanish, one says "dozens," while in French one says "tens." Why?

     If you have an actual factual honest-to-goodness answer, please let me know. Vague conjectures I can probably do without, since I come up with plenty on my own . . . .

UPDATE: Quare points to a specific context where we do say "tens of people."


FRANCE: In response to Matt Welch pointing out that it's a little odd to boycott France and not, say, China, or to deny diplomatic perks to France that are handed out to, say, Saudi Arabia (though I wonder how many world leaders actually enjoy those trips to the ranch?) "harm" says that it's reasonable to hold France to a higher standard than China because (among other things) France shares basic ideals with the United States and is a longtime ally-- therefore its actions count as betrayal in a way that China's don't. (I'm paraphrasing; follow the link if you want to see the full claim.) Moreover, France might be vulnerable to consumer pressure in a way that China isn't.

I note that the "higher standard" argument is one that I'm most accustomed to seeing from Israel-boycotters. When asked why they favor singling Israel out for such treatment when there are so many states in the world that do so much worse things, and trying to give non-anti-Semitic answers, the advocates of boycotting and divesting from Israel say that a democracy that aspires to liberal values and that is uniquely vulnerable to pressure from the U.S. may legitmately be singled out for those reasons. (Some of them don't bother giving non-anti-Semitic answers, of course.) I'm unconvinced, in that case as in this.


WHO LOSES OUT WHEN CONSUMERS DOWNLOAD MUSIC RATHER THAN BUY IT? Lawprof Terry Fisher of Harvard has a very interesting summary posted online (view a draft in .pdf here) of different studies that discuss where the money goes when you buy a compact disc. The results may surprise you. I often hear folks say that it's okay to download CDs rather than buy them because the money just goes towards more profits for the greedy record companies. However, Professor Fisher estimates that for a typical $18 compact disc, about $7 goes to the retail store that sold you the disc; $3.75 goes back to the artists, performers, and composers; $1.50 goes into manufacturing the disc; $1.50 goes into the distribution of the disk from the manufacturer to the retailer; $1.50 pays for marketing the disc; $2.50 pays for the record company's overhead, and a whopping 19 cents is record company profit. (I have rounded off Fisher's numbers a bit-- see page five for his chart).

     I understand that the record companies have done some pretty bad stuff in the past, and of course they are the industry that every one loves to hate. If I understand Fisher's figures correctly, however, record company profit makes up only about one percent of the price of a compact disc. If record companies decided to operate on a not-for-profit basis, the average price of CDs would drop from $18 to $17.81. This is certainly news to me. Am I missing something, or does downloading hurt local retailers the most-- with artists, record companies, and manufacturers all taking their share of the hit as well?


ROOMBA UPDATE: Will buy several boxes of baking soda tonight or tomorrow (my Saturday experiment taught me that it takes several), sprinkle it on the carpet in my study, run the Roomba to see how much it sucks up, and report back.




GOOSE, SAUCE, GANDER: The following excerpt is from Saturday's "Weekend All Things Considered" on NPR. The Volokh is Eugene, not Sasha.

[Host]: How does a person get control over what's being made about their life story, then, or can they? They just can't?

[Volokh]: Well, one of the things that you guys do in your line of business is you tell stories about people, often without their permission. And if somebody says, 'Don't report on my life or things that I did on the radio. I object.' You say, 'Hey, we've got the First Amendment right to report whatever we want.' The same thing goes for biographies. . . .

As a business matter, they may sometimes negotiate this right. They say, 'Look, I will cooperate with you if you promise some degree of control.' And under certain circumstances, the other side might agree to exchange control for cooperation, but that's really the only bargaining chip they have.

[Host]: You know, Professor, I have to say that something about this just doesn't seem fair to me . . . that a person's life is not their own.

[Volokh]: Well, you report on people's lives all the time. If I did something noteworthy or perhaps noteworthy in a bad way and you did a story, would you want me to be able to stop you from reporting this news story? And your answer is, well, you have the First Amendment right to cover the news. Well, television programs and book authors have the right, under the First Amendment, to publish events from people's lives. . . .


PROMOTING ONE'S BLOG: Reader Thomas Katsampes writes:
I'm relatively new to the blogosphere[, and] I would like to know if it would be possible for you to give me some advice on how I could get linked by some of the bigger blogs . . . . I would like to attract more readers to my blog. I've sent some emails to some of these people but as of yet have received no reply. I see that your blog is linked on most of the major blogs, and so you must have done something right . . . .
This is a great question, and I don't have a definite answer to it. Blogging is more of a meritocracy than many other media are, but it's still hard to get noticed, even if your material is very good. My coconspirators and I had an edge: We know quite a few of the big guns personally, and our academic credentials give us extra credibility. Thus, what I'm about to say is just guesswork, not even personal experience; take it for whatever it's worth. With that disclaimer, here are some suggestions:
  1. E-mailing people about your stories isn't a terribly effective form of publicity -- but it's the most effective one that I know of, at least when you're starting out. Do not, however, expect replies, and never, ever complain about not getting a reply. Trying to sell your blog to a stranger is like trying to sell anything else to a stranger -- it's a reasonable thing to try to do, but the stranger can feel free to just ignore you, like you ignore most of the sales pitches you get.

  2. As with all sales, ask yourself: What will persuade my customer that he wants to buy my stuff? What is he looking for? A few thoughts:

    • No-one is looking for a new blog to read. They may, however, be interested in a specific new story you've found, or a new idea you have. Therefore, pitch the blog post ("Here's a post I just posted:") not the blog ("Come and read my blog"). If people really like your posts, then they'll start to regularly read your blog.

    • Your recipient is very busy; make it easy for him to read your post -- include both the text of the post and the specific URL for it in your e-mail. You might think that it's easy enough for the person to just click on the URL, so you don't have to include the text. No; when someone gets dozens of messages each day, clicking on each one (especially on a relatively slow line) is enough of a pain that the recipient might just ignore the message, especially when he's busy. If you include the text, the recipient can read it immediately. And if you include the URL for the specific post, the recipient can link to it with minimal work. (This is probably the least obvious suggestion of the lot, so if you're skimming, this might be the one you ought to read.)

    • Don't bug the recipient too often. Pitch him only your very best posts (more shortly on what constitutes "good"). Then, if he uses some, he'll be more likely to read others.

    • Does your recipient often link to other bloggers, at least outside his circle of blogfriends? If he almost never does, don't waste his time unless you've got something extremely juicy.

    • What posts does the recipient want to read? Much, of course, depends on the particular recipient's interests, outlook, and style. But in general, people are looking for something new. Ask yourself: Will the recipient read this and think "Hmm, I haven't thought / heard of that before, and probably my readers haven't, either?" Totally new factual information will usually be more appealing than a new perspective on an old story, just because the novelty of the former is more quickly visible. The big scoop -- the story from some local paper that others aren't reading, or a technical issue that people haven't yet effectively popularized -- is what will help you make your name.

    • People will also be more likely to pay attention to something on which you can plausibly claim expertise. If you blog about your layman's thoughts on morality, and your specialist's thoughts on the latest stories about biotechnology, then pitch the biotech posts (assuming, of course, that they're accessible to most of your recipient's readers), and include a brief summary of your credentials. (Of course, if your recipient doesn't care at all about biotech, then you're wasting your time on him, and should find someone else to pitch to.)

    • As I've mentioned before, good grammar, spelling, punctuation, and other details boost your credibility; good writing is just easier to read; and relatively short paragraphs (two or three sentences) and relatively short posts (at most four or five paragraphs, though I know I violate this rule often myself) likewise make the substance more readable. So if you want to pitch a blog post to people, make sure you've edited it carefully.

    • I'm even less sure about this suggestion than about the others, but my sense is that "Here's why I disagree with your post on . . ." messages aren't likely to catch the recipient's attention, if the recipient runs a popular blog. Top bloggers get lots of such messages; they know they can't carefully read all of them, so they probably won't pay much attention to any of them. Once they know you, they may closely read your disagreements, especially if you're polite, insightful, and brief, and they may then link to you out of a sense of fairness. But if you're a total stranger, your disagreement will be just one of dozens of disagreements from total strangers that they receive each day -- and thus won't be likely to be noticed.

  3. Besides pitching your posts to high-traffic strangers, you should also pitch them to friends, even if they run relatively low-traffic blogs. The friends are more likely to give you a hand up, and some of the more popular bloggers may read their blogs, and find yours through theirs. But if you want to keep them as friends, don't bug them too aggressively, and never express any resentment that they aren't linking to you "often enough."

  4. You can also get some traffic by having your name be included on someone's "blogroll," the permanent list of links to other blogs that most bloggers keep on their sites. Asking for a blogroll link, though, is asking for a big favor, and needs to be done politely, and with the expectation that you may be refused. Close friends will usually do it for you, as will some people who have often linked to you -- but everyone always has a perfect right to say "no," especially since I suspect that most people feel their blogrolls are already too large. Likewise, if you send a message offering a blogroll link exchange ("I'll blogroll you if you blogroll me"), or even say "I've added you to my blogroll, would you please consider adding me to yours?", be prepared for a polite "thanks very much, but I'm afraid that my blogroll is probably too big already."
Of course, all this assumes that your posts are worth reading -- that they're generally interesting, novel, and readable, and entice people to return once they've visited. And, as I said before, this is just my opinion, based more on conjecture than personal experience or, God forbid, serious study. But, hey, this advice is worth every penny you paid for it.


SORTING THROUGH THE TRASH: Am I the only one who finds it at all odd that British newspapers are coming up with such great intelligence coups by going through old Iraqi government files?

First of all, why only British papers? Are there no enterprising American journalists who read Arabic? (Maybe not. But surely there are some French ones?) [UPDATE: Tom Westberg reminds me that the Christian Science Monitor got some of the Galloway documents.]

Second and more important: if the newspaper reporters can figure out where the important stashes of files are, why can't the U.S. military or the CIA? Or do the latter groups have no interest in securing the records?

I'm all for a free press, but I've got to think that if I were Garner I wouldn't just leave the Iraqi government ministry buildings open for reporters to wander through looking in the filing cabinets and trash baskets. I suppose there's not great concern about secrecy-- these are the other side's secrets, documents with a high probability of embarrassing people the U.S. wants to see embarrassed and confirming news that the U.S. wants to see confirmed. Maybe the idea is that reporters are more credible than U.S. military spokesmen releasing the same documents. But still...

UPDATE: ScrappleFace was there first.


DAVID BROOKS ON PUBLIC OPINION AND THE EFFECT OF THE WAR IN IRAQ: A very interesting essay from The Weekly Standard. I agree with much of what Brooks says, although he assumes that the future will look pretty much like today, which seems unlikely. Still, the essay is worth reading.


TENURABLE ACTIVITY: Matt Yglesias expresses concern about my productivity, which is appreciated. (He showed the same solicitude for Kieran's professional future last week.) As it happens, I've just sent off (I think) the final revised version of an academic piece. I'm pretty proud of it, but the funny thing is that-- while it'll be a high-profile piece in a leading journal-- it's not a sure bet that it'll be to my long-term professional advantage. It may make a famous and powerful and very senior member of the profession very, very annoyed with me. Someday maybe I'll look back and decide "I shouldv'e been blogging instead..."


The Santorum "affair" is a manufactured crisis — a trumped-up attempt by the media and the Democrats to make the Republicans look bad. Republicans aren't about to impose sodomy laws on the country. Many or most Republicans probably oppose them in the first place.
Well, the insidious media and Democrats had a little bit of help from at least one Republican in making Republicans look bad here, no?

In any event: Republicans may not be "about to impose" sodomy laws-- but there are many sodomy laws currently in place, and Santorum has said that they're a good idea-- not merely constitutional, but actively desirable. And when the question of repeal comes around in any given state, it's typically Republicans who fight to keep the law on the books. Maybe most Republicans Stanley Kurtz knows at Stanford oppose sodomy laws; that's probably true. But in state capitols around the country, not so much.

A note to those whose preferred-policy-position tracks Kurtz's. If you're worried about judicial slippery slopes, if you want to head off sweeping court decisions that accomplish too much and push too far, you should get out there and push for legislative repeal of the bad laws that invite such a judicial response. If Texas had repealed its sodomy statute, there'd be no Lawrence v Texas to be arguing about in the first place. Don't merely passively "favor" such repeal, but do something about it-- including arguing with your socially-more-conservative friends and allies about it. Some death penalty supporters have noticed this dynamic and have actively worked for important procedural reforms.

I suspect there's a general form of this thought-- something about the intolerable being the enemy of the good. (An example on the other side of the fence: if you're worried about the consequences of a Reaganite revolution, don't let marginal tax rates hit 70% in the first place.) But it may have special force in episodes that involve legislative and judicial power. As we all know from Eugene, slippery slopes are an issue in a precedent-based judicial system than involves the enunciation of general principles; but legislatures are neither precendent-bound nor in the habit of offering general principles for their particular actions. If you wanted to be rid of sodomy laws without setting a new privacy or equal protection precedent-- well, you've had a decade and a half since Bowers to convince state-level Republicans to get out of the way of legislative repeal movements.

UPDATE: big, condescending, Al Gore sigh Now I see that Kurtz is playing the "anti-Catholic bigots" card.

I'm very tempted to replicate Santorum's line here: "I have no problem with Catholics. I have a problem with Catholic legislative acts"-- but even that's overstating things, since Santorum's legislative views aren't those of most American Catholics. Unlike Andrew Sullivan, I have no opinion on whether Santorum's is the correct interpretation of Catholicism; and I have no objection to Catholicism identifying sodomy as a sin. I'm not Catholic, and it's a mistake for an outsider to critique religious doctrines on the grounds that they insufficiently resemble the principles of a liberal democratic state. On the other hand, the religious basis for a set of political views provides no immunity against their being criticized by non-believers, and indeed invites a new line of inquiry as to whether the line between the civic and the religious is being maintained in the right place and the right way. It's not bigotry to remind a politician of the truth Eugene's been emphasizing in his Ten Commandment posts-- that it's also a mistake to treat the internal doctrines of one's religion as sufficient reason for legislation and coercion, that it's a mistake to criticize the liberal democratic state for insufficiently resembling one's own church.


SINCE, UNLIKE HARVARD, WE DON'T HAVE A DEAN OF STUDENT BLOGGING: The U-of-Chicago based Baudes Blog has added identifying colors to the names of the various posters-- a very fine idea! (Apparently our Conspirator-in-Chief explained to them how it works. (I certainly don't know.))

While I'm at it, I'll mention the blogs of some other Chicago students, many of which sustain interesting ongoing conversations among themselves: Peter Northup, Matt Reading, Amy Lamboley, Diotama, another 1L, and concur in part. The final two are, unsurprisingly, from law students; the rest are, I believe, from current undergraduates.


IN THE END: The "first-ever convention of state poets laureate" was held over the weekend in Manchester, NH, "at the Highlander Inn."

This immediately inspired the image of a weekend-long succession of swordfights; the last state poet laureate with his or her head still attached to his or her body would become the national poet laureate.


SLIPPERY SLOPES: By the way, the discussion of the "right of privacy" and homosexual conduct reminded me of a quote from Justice Goldberg's influential concurrence in Griswold v. Connecticut (1965), the font of the modern "right of privacy" jurisprudence. This concurrence, which was joined by Chief Justice Warren and Justice Brennan, defended the right of privacy (applied there to protect a married couple's right to use contraceptives) by relying on the Ninth Amendment; and the votes of these three Justices were necessary to provide a majority for the result. Here's the quote:
[I]t should be said of the Court's holding today that it in no way interferes with a State's proper regulation of sexual promiscuity or misconduct. As my Brother HARLAN so well stated in his dissenting opinion in Poe v. Ullman:
"Adultery, homosexuality and the like are sexual intimacies which the State forbids . . . but the intimacy of husband and wife is necessarily an essential and accepted feature of the institution of marriage, an institution which the State not only must allow, but which always and in every age it has fostered and protected. It is one thing when the State exerts its power either to forbid extra-marital sexuality . . . or to say who may marry, but it is quite another when, having acknowledged a marriage and the intimacies inherent in it, it undertakes to regulate by means of the criminal law the details of that intimacy."
Don't worry about a slippery slope, the Justices were assuring the readers: We're just recognizing a right of privacy that protects the use of contraceptives by married couples, not a broader right that might protect (for instance) homosexual conduct. And yet now there's talk of the Supreme Court possibly reversing Bowers v. H rdwick (far from certain, but there does seem chance of that), and recognizing this very right -- based in part on the authority of the right of privacy as defined by that now broadly accepted, no longer even very controversial decision in Griswold.

     This doesn't, of course, prove that Griswold was wrongly decided; the Court could resist the slippery slope, and perhaps it will. Or perhaps the slippery slope is to be embraced here, not regretted. And of course much has changed since 1965: If the Court accepts a right to engage in homosexual sex today, this acceptance may well be caused simply by the changes in social attitudes, and not by Griswold -- maybe in a hypothetical world in which Griswold had come down the other way in 1965, the Court would still have protected the right to engage in homosexual sex in 2003.

     But still, it seems worthwhile to note the possibility that the slippery slope is taking place (for good or for ill): that the contrary assurances by Goldberg, Warren, and Brennan in 1965 were misplaced, and that the doctrine they were elaborating wasn't as easy to cabin as they suggested. That may be something to keep in mind when people suggest a principle with a potentially quite broad justification, and then assure us that actually the principle will be applied quite narrowly.


MORE ON THE TEN COMMANDMENTS: People sometimes describe the Ten Commandments as an important source or foundation of modern American law. As I mentioned in my post Friday, only 3 of the Ten Commandments -- thou shalt not kill (or, as I'm told the better translation goes, thou shalt not murder), thou shalt not steal, and thou shalt not bear false witness -- are actually implemented in modern American law; so much of the Ten Commandments isn't in fact an important source of modern American law.

     But I wonder whether even those three commandments qualify as a source of modern law. The assertion that some old law is a source of new law means, I think, that the new law came about because of the old one, and not because of some other alternative source.

     My sense is that most functioning societies contain prohibitions on murder (though the exact boundaries of what killing is lawful vary in some measure from one society to another) and stealing, at least within the group -- the societies need the prohibitions to remain functioning. I suspect the same would be true of bearing false witness, since without some such prohibition, at least as to actually being a witness in court, the judicial system wouldn't function effectively.

     English law (which is the source of the American prohibitions in this area) was an amalgam of the law of the Anglo-Saxons, who had been Christianized by the time of the Norman Invasion, and the law of the Normans, which I take it was probably a mix of Viking law with some elements of Roman law. So the question is: Did these legal systems adopt prohibitions on murder, stealing, and bearing false witness when they became Christianized? If so, then the Ten Commandments would indeed be a source of those aspects of modern American law. But if the legal systems already had such prohibitions before the conversion to Christianity (as I strongly suspect, though if you know something to the contrary, please let me know), then those old prohibitions, not the Ten Commandments, would be a source of the modern rules.

     Now it may well be that in any event, more people obeyed those rules because of the Ten Commandments. More broadly, I don't want to deny the influence on American law of Christian thinking and theology about other parts of the Bible. (For instance, I suspect that the prohibitions on homosexuality did flow from the Bible.) Moreover, Christian thinking, including thinking about the Ten Commandments, may well have influenced American social norms that aren't legally enforceable. The country would be better if more people obeyed many of the Ten Commandments. And, finally, I recognize that the Ten Commandments has become an important symbol in the culture wars.

     But I do think that the claim that the Ten Commandments are a source or foundation of modern American law is not in fact accurate. Some of the Commandments couldn't be implemented into American law without violating the Free Exercise Clause ("no other gods before me" and "no graven images"). Some others were once implemented partly, but not fully, and we have since generally retreated (quite rightly, in my view) from trying to implement them (not taking the Lord's name in vain and not working on the Sabbath). One was once legally enforced but isn't so today (no adultery). Two others couldn't be implemented as legally binding, at least without an extremely oppressive government (honoring your father and mother, and not coveting). And the three -- no killing, no stealing, and no bearing false witness -- that are part of our secular law today were part of the pre-Christian precursors to our law as well, and thus probably flow from those precursors rather than from the Ten Commandments.

NOTE: After writing this, I noticed that Matthew Yglesias has made a similar point.

Sunday, April 27, 2003


PARSING REVISITED: I see that Stanley Kurtz's reply to Andrew Sullivan includes the following:
For starters, Sullivan chastises me for ignoring the fact that Santorum equates homosexuality to child abuse and bestiality. But in his interview, Santorum explicitly said that homosexuality is not child abuse and not bestiality.
Kurtz doesn't actually answer Sullivan's argument on this point (which is the same one I made here).
"In every society, the definition of marriage has not ever to my knowledge included homosexuality. That's not to pick on homosexuality. It's not, you know, man on child, man on dog, or whatever the case may be. It is one thing."

Here, homosexual relationships are associated with bestiality and - again - child abuse. (In the sentence beginning, "It's not, you know, man on child, ..." the "It's" clearly refers to marriage, not homosexuality. The referent is picked up again with: "It [i.e. marriage] is one thing.")
Along with the characterization of priests molesting 14-year-old boys as "basic homosexual relationships," this is the most appalling part of Santorum's comments, and Sullivan's right not to let Santorum's defenders dodge it.


SAINTHOOD: As an outsider, I am of course not entitled to a view about who deserves beatification or canonization. But if I were, I think I'd be pleased by this.


WORDS FROM SENATOR HATCH: Responding to allegations by anti-polygamy groups that polygamists forced young girls (13 and 14) into plural marriages, Sen. Orrin Hatch replied that
he could not take unsubstantiated claims and enforce law, and he would not "sit here and judge anybody just because they live differently than me."
Good attitude, and one that's worth applying more broadly than just to polygamists.


THAT REMINDS ME... This comment from Josh Marshall,
And after reading the full transcript of Rick Santorum's remarks to the AP about homosexuality, it occurred to me that there's also a fine line between Christian conservative and porn-king.

Say what you will about Teddy and Barney and the rest of the liberal standard-bearers on the Hill, I don't think any of them has ever brought up "man on dog" sex in an on-the-record interview.
reminds me of a conversation I once had with a senior Cato official. (Not trying to be mysterious, just don't know whether the comments were meant for public consumption.) He started off by noting that it took a certain kind of mindset to, when confronted with libertarian ideas, immediately spring to the question "What about a man humping a dead boy dog? Shouldn't that be illegal?" And he'd run into this sort of thing a lot, had had more conversations about necrophelia than seemed remotely in order. And he hadn't been having that conversation with northern liberals.

He went on to generalize this to a "secret sin" theory of politics-- that people form their political views on the basis of a generalization of their own deepest darkests. (This, by the way, is something like the method Hobbes defends, though that fact didn't come up in conversation.) So: if you think it's only the law that keeps you from plunging into a life of full-time sexual depravity and debauchery, you become a moralistic conservative. If you think it's only the law that keeps you from becoming Ebeneezer Scrooge and screwing the poor just for the sheer sadistic joy of it, you become a lefty. And if you look inward and detect a craving for power, you generalize that to everyone else and become a libertarian. The moral was that people should listen to libertarians, believe them, follow their policy recommendations-- and not elect them.

This won't bear too much scrutiny as a general theory, but every so often something reminds me of it; and there's clearly a little something there. UPDATE: Sheesh-- while I was sleeping, many people proceeded to try to make this bear lots of scrutiny. Let me reaffirm that, while it's true that the Marshall piece reminded me of this and it's true that the conversation took place as reported, I have no real commitment to the truth of the underlying claim. I do tend toward pessimistic politics, so I like to have a thought like this one floating around in the face of equally simplistic notions "libertarians must believe that everyone's naturally good" and "left-liberals must believe that governing brings out the wise and virtuous in people." But the reduction of political philosophies to bumper stickers, pro or con, is the antithesis of what I've chosen to do for a living...

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