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Saturday, July 12, 2003


Las Vegas Review-Journal Story on the Nevada Decision: It's here, and quotes this blog, among other sources. I particularly like this comment:
Gary Peck, executive director of the ACLU of Nevada, said members of the organization were troubled by the reasoning the Nevada Supreme Court used to reach its decision, "particularly the dubious distinction it made between substantive and procedural constitutional rights."

"We hope that distinction does not set a precedent that might be used to improperly create a hierarchy of rights inconsistent with core constitutional principles," Peck said.


More on the Kate Spade/ Napster connection: A reader responds to my earlier post about the similarities between downloading copyrighted music and buying counterfeit Kate Spade bags by suggesting that the connection may be stronger than I had initially thought. She writes:
I bought a knock-off Spade bag because, as the women you spoke to said, it's lunacy to spend the money when a knock-off is perfectly acceptable. But I do it with a bit of the hostility that some bring to music downloading. It irritates me when a bag that is made of fabric costs that much. I know what it's made of. I'll spend the money on quality leather, but not on a piece of sturdy cardboard covered with microfiber. She sells her brand. That's great. But I don't have to buy it!


One way to get off a university mailing list is to falsely report your own death. Sure, the news of your death might cause a bit of pain and suffering among your friends who read your obituary, but hey, it sure will get you off that mailing list.


Know your blogger: When you send an e-mail about a blog post, please make sure that you send it to the right coconspirator. All our e-mail addresses are available just by clicking on the blogger's name on the left-hand side of the screen. (Some of the addresses have the word "at" instead of an @ sign, just to try to foil robots that harvest e-mail addresses for spamming purposes, so if you don't instantly see the address, just look a bit more closely.) Sending the message to the right blogger will save time both for you and for us.


Quotable Holmes: I was leafing through my copy of the Posner-edited collection The Essential Holmes, and was reminded of some of Justice Holmes's great lines, both on life and law:
Culture of course often means having more wood in your woodpile than you have in your furnace, and of a size that won't go in. (p23)

There is no short cut to fame or comfort and all there is is to bore into it as hard as you can. (p30)

Life, not the parson, teaches conduct. (p43)

Why? Why do I desire to win my game of solitaire? A foolish question, to which the only answer is that you are up against it. Accept the inevitable and do your damndest. (p44)

[W]hen I say a thing is true I only mean that I can't help believing it -- but I have no grounds for assuming that my can't helps are cosmic can't helps and some reasons for thinking otherwise. I therefore define truth as the system of my intellectual limitations. (p107)

The trouble is that our ideals for the most part are inarticulate, and that even if we have made them definite we have very little experimental knowledge of the way to bring them about. (p118)

To have doubted one's first principles is the mark of a civilized man. (p119)

I always say that I regard legislation like buying a ticket to the theatre; if you are sure that you want to go to the show and have the money to pay for it there is an end to the matter. I may think you foolish to want to go, but that has nothing to do with my duty. (p138)


Howard Dean guest-blogging on Larry Lessig's blog: Larry just announced this. Sounds pretty cool, and a sign of how important the Net -- and, in some measure, blogging -- has become. It will be interesting to see whether the posts will have the freshness and personality of a typical blog, or whether they will be (for perfectly understandable reasons) the typical canned campaigner rhetoric. In any case, many thanks to Larry for arranging this (and congratulations to him for having the prominence to be able to arrange it).

Friday, July 11, 2003


Springtime for Hitler: I saw The Producers tonight. Wonderful cast, terrific performance, great choreography, gorgeous sets. If you agree that this was one of the funniest musicals you have seen in recent memory, that you laughed until your sides hurt, and that you left the theater singing one of its original songs, then I do NOT want to hear from you. But if you could not understand why everyone was laughing so hard at such antiquainted schtick, including good old fashioned gay jokes that never ended, if you cannot recall a lyric or tune--other than "Springtime For Hitler," of course--to save your soul, if you did not think there was a single line delivered as well as in the film, if you longed for Gene Wilder, if you have absolutely no idea why this play won so many awards with seats going for $1000 a pop when it opened on Broadway, then please write to me. I do not want to think that my wife and I are completely crazy, as we seemed to be the only ones in the theater with smiles plastered on our faces (though we did appreciate and applaud the talent and efforts of the cast). We just didn't get it. Don't help us get it. We need reinforcement, not enlightenment. Be our Producers support group. Let us know you're out there.

(OK, there was ONE impressive moment: the way they replicated the classic overhead movie shot of the dancing swastika. I was wondering how they were going to do that and it worked.)


Stewart & Alt on cloning: Nathaniel Stewart and Robert Alt respond to my criticisms of their National Review Online piece (see here and below) at the NoLeftTurns site (see here and below). I'm afraid I'm too swamped to respond in turn, but I thought I'd pass along the links.


Nevada case information: Howard Bashman of How Appealing was kind enough to e-mail me the link to a Web page containing most of the documents (briefs and the like) in the Guinn v. Nevada State Legislature case.


"Anti-Left Viewpoint Discrimination": Eric Muller (IsThatLegal?) -- with whom I often agree, though not this time -- mentions the following incident (go to his site to get the links):
The little town of Carrboro, North Carolina, "The Paris of the Piedmont," as we locals like to call it, surely must be North Carolina's most liberal town. One of the first towns to pass a resolution protesting the PATRIOT Act. A town that declared April "French Products Month" to counter the anti-French mood in Washington during the Iraq war. A very popular and openly gay mayor. You get the picture.

Well, Carrboro doesn't get the picture.

The second-highest elected official in Carrboro ordered the removal last week of a controversial piece of artwork from a public display in town hall on the eve of Carrboro's Independence Day celebration? The piece, "Trying To Make Black and White Out of Red, White, and Blue," is an American flag with the stars arranged in the shape of a swastika. The alderman who removed the work was reportedly concerned that older people, including veterans, who would be playing bingo in the boardroom where the work was exhibited might be offended by it.

Sheesh. If you can't show a provocative piece of artwork in a public display in Carrboro, where can you show it?
Well, how about on your own property? Or on the property of someone else who's willing to display it? Or even in a public forum that the city opened for a wide range of private speech, which the city wouldn't be endorsing?

     The newspaper story suggests that the City was putting up an art exhibit, not as part of a broadly available open forum, but just because some city officials chose to showcase this particular artist's employees. Higher c ty officials were perfectly free to decide that, no, they didn't want to give this special benefit to this particular artist.

     Just to give an analogy, imagine that a Carrboro city employee decided that a city building should prominently display a sign saying "Liberals are Traitors to America." The mayor got some complaints, and said "Well, I don't think the City should be promoting this viewpoint." I think the mayor would be quite right to take it down.

     No-one is entitled, either as a legal or as an ethical matter, to have his work be specially displayed in a government building. Government officials can choose what messages they want to send (e.g., anti-drug but not pro-drug, anti-racism but not pro-racism, pro-American but not anti-American), and they can also decide when a display is pro-drug, pro-racism, or anti-American. That's viewpoint discrimination, but it's perfectly permissible viewpoint discrimination. (Incidentally, I think that exclusion of American flag / swastika mixes isn't "anti-Left viewpoint discrimination" any more than exclusion of a poster saying "Liberals are Traitors to America" is anti-Right viewpoint discrimination.) And if one lower-level government official authorizes such a specially privileged display, a higher-level government official may decide otherwise.

     If the government were denying an artist the right to put up this poster on private property, I'd firmly oppose that. Likewise if I saw some indication -- which I don't see -- that the artist was participating in a broadly open public forum, in which your or I could have our work displayed just for the asking. But if the artist is complaining that the government changed its mind about giving her special access to a piece of prominent government property, I'm not terribly impressed.

     Incidentally, I realize that the artist claims her poster isn't anti-American: "In t e statement, Levinsohn explained that she created the art in 1990 as a protest against the flag amendment, which would ban flag burning and, she believed, threaten First Amendment rights to freedom of speech. In an interview Thursday, Levinsohn, who is Jewish, said she had used the swastika because she thought it would make it clear to people that her art is about a type of repression that would threaten the freedoms in this country. The artist said she considers herself patriotic. On Thursday, she wore red, white and blue, down to her shoes." That's fine by me -- but passersby can quite reasonably perceive this as anti-American, and city officials may therefore reasonably conclude that they're helping spread an anti-American message, regardless of the artist's subjective intentions. To return to my hypothetical, imagine that the person who posted "Liberals are Traitors to America" actually intended this to be not an anti-liberal statement, but a parody of anti-liberal statements. Government officials could still conclude that this will be perceived as anti-liberal, and that they therefore don't want to display it on government property (at least unless the property has been opened up as a broadly accessible public forum).


Truman, Prejudice, and Anti-Semitism: David Bernstein has a thoughtful and informative post on this.


Apologies in advance over the brevity of my e-mail responses: I much appreciate getting messages from readers -- among other things, many of our posts have flowed precisely from such messages. Messages about interesting news items, such as the CBS News headline errors, or the Nevada Supreme Court decision, are particularly helpful, but arguments are also sometimes useful, too; you'll note that I sometimes quote them and respond to them.

     I should warn people, though, that I'll often reply simply with a "Sorry, swamped, have to pass" or some such. I'm sorry about that, especially when the message contains a substantive argument criticizing one of my posts; but unfortunately, I just have to sometimes leave my points undefended, rather than respond to what are often dozens of substantive messages per day. There are are only so many hours in a day, and some of them have to be occupied with real work! So, apologies in advance about this, but I'm afraid that there's nothing else I can do.


More about the Nevada situation: Some people have pointed that the Nevada Governor, who filed the lawsuit, should also be faulted. I asked Greg Boderick, from the Pacific Legal Foundation (which I believe was involved in the case), whether the Governor actually asked the Court to reject the Nevada Constitution's 2/3 requirement for tax increases. Here's what he wrote about the Governor's role, and about the background more broadly:
The Governor's petition, written by the Attorney General, was murky at best. I thought it was a tactic to give the Court wiggle room . . . . At any rate, the Governor asked the Court to issue a writ of mandamus that:

1) Finds the Legislature in violation of the Nevada Constitution by failing to approve a balanced budget including K-12 spending; and
2) Directs the Legislature to act by a certain time (unspecified) to authorize and appropriate sufficient funds for the schools (here, $1.65 Billion); and
3) Directs the Legislature to "provide[e] by law for an annual tax" sufficient to meet the overspending (In this case $860 million plus)

Then there was the usual language about amending the writ and "such other relief" and all of that.
So...He didn't specifically ask for suspension of the 2/3 requirement, but he sort of asked the Court to appropriate the money and raise taxes itself. Very odd.

You may find all of the documents relating to this suit here:

The real problem in this case was how they got this far.

The Legislature passed the budget in parts, leaving education to last.
After passing everything else, they had only $800 million (give or take) left to spend before they exceeded the tax revenue.
The Senate passed the Governor's education bill and $864 million in tax increases (21-0).
The Assembly Bill failed to reach the 2/3 margin by one vote (27-15).
The 72nd Regul r session expired.
The Governor called a special session (Special Session 19), but limited discussion to passing the Ed bill and raising taxes (The Constitution gives him authority to do so).
The Republicans held out and the Session ended with nothing.
The Gov. called Special Session 20, same result.

The Republicans are OK with raising taxes some amount, but they want to cut spending in other Spending Bills that already passed. Spending Bills pass by majority, taxes by 2/3, so they held out on taxes.

That is the simplified background story. . . .


There might or might not be a God but Allah -- of course we would never be so rude as to express a firm opinion on that: The Council on American Islamic Relations posts on its site this excerpt from a Newsday story:
A national Muslim organization demanded an apology Wednesday from a Flushing Buddhist priest who allegedly made disparaging remarks about Islam that were posted on the Internet.

Ghazi Khankan, executive director of the Council on American Islamic Relations-New York, said the Rev. Jisei Nagasaka made disparaging statements, including "Islam is a false religion." His comments came after another Buddhist priest made similar statements, including Allah "is a figment of the imagination."

"I was surprised because I know Buddhists are peaceful people," he said. "Why attack others? It didn't make sense to me."

After a news conference in front of the Buddhist temple - Nichiren Shoshu - on Beech Avenue in Flushing, Khankan and other Muslim leaders delivered a petition containing 388 signatures to a temple official.

The petition called on Nagasaka, the Flushing temple's chief priest, to apologize for his remarks, which were made to an audience and later posted on the temple's Web site, Khankan said.

While the statements in question were promptly removed from the Web site after letters and phone calls from Muslims, the council said Nagasaka's comments can only be rectified with better understanding and an apology...
     Now naturally Muslims won't agree with the Buddhist priest's view that "Islam is a false religion" -- just like the Buddhist doesn't agree with the Muslims' view that Islam is the true religion. And Muslims don't agree that "Allah 'is a figment of the imagination,'" just lik people of other religions (for instance, Hindus) don't agree that "There is no God but Allah."

     But one aspect of religious freedom is the freedom to express that you think other religions are mistaken. What, did Muslims think that Buddhists thought Allah was real, and Islam was a true religion? If the Buddhists did think that, they'd be Muslims, not Buddhists. Of course they think your religion is false -- and they're perfectly entitled to say so.

     Perhaps some especially gentle or subtle folk would avoid such statements, and instead not publicly opine on whether they think Islam is a false religion -- or, for that matter, not publicly opine on whether there is no god but Allah. But people have no ethical obligation to refrain from such statements, which (at least looking at the quotes that CAIR posts on its own Web site) actually seem pretty calm and measured. (All criticisms, political or religious, may be made so harshly that they'd become rude -- but saying that you think other people's viewpoints are false, or that there is no God but your God, is a proper way to express an important point of view.)

     Actually, it seems to me that CAIR's complaint can't really be about the Buddhist speakers' "attack[ing]" anyone, because they didn't attack anyone, or about the speakers being non-"peaceful," since they seemed to be expressing their views quite peacefully. Rather, their complaint appears to be about blasphemy, since that's the only offense that the speakers were committing. In America, though, this sort of blasphemy -- the civil disagreement with the beliefs of another faith -- is a treasured part of our religious freedom, not an offense which demands an apology.


SAY "HI" TO ME AT NORTHWESTERN On Monday, I will be lecturing for 6 hours on contract law at Northwestern University School of Law for LawPreview. I don’t often get invited out to speak on contracts, so for me it is a refreshing change of pace. If you are one of the aspiring legal eagles who will be attending, be sure to identify yourself to me as a reader of The Volokh Conspiracy.


Thanks for the Responses to my NRO column on Lawrence v. Texas: I have received a lot of links and responses to my NRO piece, Justice Kennedy’s Libertarian Revolution. I am especially impressed with the respectfulness and thoughtfulness of those writers who disagreed with my position. There is, of course, much much more to be said about a constitutional "presumption of liberty"--both historically, doctrinally, and practically--than I could get into in even a lengthy column. Understandably, therefore, many respondents had technical questions that will be addressed at length in Restoring the Lost Constitution: The Presumption of Liberty (which will be $32.50, not $39.50).

I normally try to respond to thoughtful blogs and e-mails, but I am leaving town tomorrow and really need to get back to reading the page proofs for the book and writing the index. I will try to catch up later if I can. If you are interested in more on the difference between liberty and license--or rightful and wrongful conduct--this is the subject of The Structure of Liberty: Justice and the Rule of Law.

I probably should emphasize that, in my NRO column, I was not predicting what the Supreme Court will do with Lawrence. I was only describing what the reasoning of the opinion means, if the Court takes it seriously. Whether or not one is optimistic about the Court, one still has to accept a victory when it occurs.


Appealing to the wrong authority: Several people e-mailed me to ask whether the Nevada Supreme Court decision can be appealed to the federal courts, on the grounds that it violates article IV, section 4 of the U.S. Constitution, "The United States shall guarantee to every State in this Union a Republican Form of Government." I think that would be the wrong solution.

     First, the Supreme Court has consistently held that it's not for the federal courts to decide which forms of government are "Republican" and which aren't. Now perhaps that's a mistake -- maybe courts should enforce even such vague provisions, rather than leaving them to Congress and other political actors. But it's the law, and I don't think the Court is likely to reverse it. What's more, while I think the Nevada Supreme Court's decision is outrageous, I'm not sure that it makes Nevada into a "non-Republican Form of Government"; it takes more than just some awful decisions like this to do that, I think. (Incidentally, the Guarantee Clause has in the past been used to challenge voter initiatives, on the grounds that they're not "Republican" enough; I think this argument is unsound, precisely because the system remains Republican even if it has some direct democratic components, and a considerable amount of judicial power.)

     But, second, the trouble here is that the Nevada Justices has rejected the will of the Nevada voters. The solution isn't, I think, to put your trust in other judges. The solution is for the voters -- or their direct representatives in the legislature, or both -- to fight back themselves. Nevada Justices can be recalled by the voters, and they can be removed by the Legislature, even without there having to be grounds for impeachment (see my first post on the subject below). I'm hoping that Nevadans will be incensed enough by the judges' decision to take these necessary steps.


The CBS screenshot I mentioned below: Here's the GIF, and here's the JPG. You can see (if your eyesight is good, sorry for the low aulity) the "Bush Knew Iraq Info Was False" headline, the "Video: Bush's Phony Iraq Claim" item, and the "Poll: U.S. Losing Control in Iraq" headline.


Can anyone answer a MS Word 2002 question for me? Sorry to trouble all of you, but I'd like to post that screen shot, but I can't seem to extract it from a Word document. I had done a "Print Screen" and then pasted the result into a Word document; now, the picture is right there in the document, but I don't know how to extract it as a .GIF or .JPG or whatever else. When I right-click on the picture, I don't get any "Save As" option. Once I have it as an external file, I'll be able to easily upload it to my site -- but I just don't know quite how to do it. (Even a "File / Save As Web" command, which is supposed to save the whole document as an .HTM file, doesn't seem to yield proper results -- when I look at the resulting page, the pictures don't show up -- but in any event I'd rather just save the pictures as .GIFs or .JPGs.) If anyone can help me with this, please e-mail me at volokh at Thanks!

UPDATE: Due to two typos, the original title of this post referred to "MS Word 1001," which I'm told is a somewhat obsolete version (though it does have a great "illumination" option).

FURTHER UPDATE: Reader Stuart Greene gave me the answer (or at least an answer), which was to copy it to the photo editor. Thanks, and thanks also to Mike Cakora and John Owen for other suggestions.


A perspective from Nevada: Reader Rick Henderson writes:
As you guessed, there's a LOT of politicking going on here, which I hope to write about for Reason or NRO or someplace outside my normal channels. What led to the impasse was a Republican governor who won re-election virtually unopposed and misread that victory as a mandate to give a big gift to the state's public sector while imposing a series of unpopular new taxes. When his plan failed to gain the necessary supermajority support, he forced the Legislature into special session, which accomplished nothing, although from a $5 billion budget, the two sides were less than $60 million apart in their spending demands. (There was also a spirited debate over the composition of the tax increases, with Republicans favoring an expansion of existing taxes, and Democrats backing a new, revenue-based "gross receipts" tax on non-gaming businesses.)

The governor refused to negotiate, setting the stage for the court battle. The outcome was a total shock, and though legislative Democrats are giddy right now, even they may soon rue this decision. I would not be surprised if the chief justice, Nancy Agosti, who's up for re-election next year, is recalled before she's defeated. She may become the Rose Bird of Nevada. (The black helicopter crowd also believes the Supreme Court was literally bought off by the casino industry, which ruthlessly worked over lawmakers who balked at the size of the spending increase and the implementation of the gross receipts tax. I find that hard to believe, but reporters at our paper are tracking down those rumors.)

It's also possible that the decision will stand and no one will be called to account for this gross injustice, meaning that Nevada will indeed become, as one Republican lawmaker suggested earlier this year, East California.


ed that Saddam Hussein recently sought significant quantities of uranium from Africa,” Mr. Bush said.

The statement was technically correct, since it accurately reflected the British paper. But the bottom line is the White House knowingly included in a presidential address information its own CIA had explicitly warned might not be true.

Today at a press conference during the President’s trip to Africa, Secretary of Sta e Colin Powell portrayed it as an honest mistake.

“There was no effort or attempt on the part of the president or anyone else in the administration to mislead or to deceive the American people,” said Powell.

But eight days after the State of the Union, when Powell addressed the U.N., he deliberately left out any reference to Iraqi attempts to buy uranium from Africa.

“I didn’t use the uranium at that point because I didn’t think that was sufficiently strong as evidence to present before the world,” Powell said.

That is exactly what CIA officials told the White House before the State of the Union. The top CIA official, Director George Tenet, was not involved in those discussions and apparently never warned the President he was on thin ice.

Secretary Powell said today he read the State of the Union speech before it was delivered and understood it had been seen and cleared by the intelligence community. But intelligence officials say the director of the CIA never saw the final draft.
There is still nothing in the story that says anything about what Bush knew (as opposed to what some lower level White House officials knew). How can this sort of headline-writing go on? The headline writers didn't make an error about some external information -- rather, all they needed to do was read and accurately summarize a 420-word article. Yet they seem to have failed in that task, both the first time and the second time when they knew they had to correct the headline. And they failed in a way that makes a serious personal and political allegation, the sort of allegation that people should know to double-check. What's up here?


And another incorrect headline from CBS News: Another front-page story has the headline "Poll: U.S. Losing Control in Iraq." (I originally noticed the story because it was right up there in the top middle of the page -- again, it's on the screen-shot that I'll put up in the morning -- with a subhead of "Less Than Half of Americans Now Say U.S. is in Control in Iraq"; it now rates just a one-liner with no subhead lower down on the page.)

     Sounds from the headline like a majority of respondents say that the U.S. is losing control in Iraq, no? Ah, but appearances are deceiving, at least on tonight. The whole story (which has the same "U.S. Losing Control in Iraq" headline that was also given on the front page) reports, in relevant part:
With U.S. troops continuing to take casualties in Iraq, less than half of Americans now believe the U.S. is in control of the situation there -- a dramatic decline from April, when 71 percent thought it was. . . .

Americans’ belief that the U.S. is in control of the situation in Iraq has plummeted to 45 percent, down from 71 percent in late April.




. . .
That's right:
  1. The "yes" numbers fell from 71% to 45%, which means that (unless some people thought the U.S. wasn't in control in late April but is in control now) a whopping 26% believe the statement in the headline "U.S. Losing Control in Iraq." Or, if you prefer, 26% more people believe that we're losing control than the percentage that believe we're gaining control. (I'm assuming that by "losing control" CBS means "the U.S. had control in late April but doesn't have it now," since that's the definition that its questions reflect. One may also define "losing control" as "the U.S. has less control now than in late April, whether or not it on balance still has control now; but that's clearly not what CBS's questions are trying to gauge.)

  2. Even today, 45% of respondents say "yes" and 41% say "no" (a statistical tie), so it's not even accurate to say "Poll: U.S. Not in Control in Iraq."
That's right, the CBS headline said Poll: U.S. Losing Control in Iraq. The actual story is better summarized as Poll: U.S. Evenly Split on Whether We're in Control in Iraq or Poll: A Quarter of Americans Seem to Think We're Losing Control in Iraq. Not a good night for CBS News.


Falsehoods about falsehoods: Reader and UCLA Law School student Shannon Mader points out this striking headline on CBS News:
Bush Knew Iraq Info Was False
(UPDATE: The headline was changed overnight, after I wrote this post and the UPDATE below; but the new headline is still mistaken -- see the post from this morning at 8 am or so, as soon as Blogger gets around to posting it.) Quite an allegation, and one that was the lead story on the page when I read it, with promise underneath of "Video: Bush's Phony Iraq Claim." (UPDATE: The line has just been changed to say "Video: Bush's Iraq Claim"; the headline has not been changed. I'll try to put up a screen shot of the old page, which I saved, when I get into the office tomorrow morning.)

     Here, however, is the whole story (I rarely reproduce entire stories, but because I think it's necessary to properly comment on it, I believe such a reproduction is a fair use in this situation):
(CBS) Senior administration officials tell CBS News the President’s mistaken claim that Iraq tried to buy uranium from Africa was included in his State of the Union address -- despite objections from the CIA.

Before the speech was delivered, the portions dealing with Iraq’s weapons of mass destruction were checked with the CIA for accuracy, reports CBS News National Security Correspondent David Martin.

CIA officials warned members of the President’s National Security Council staff the intelligence was not good enough to make the flat statement Iraq tried to buy uranium from Africa.

The White House officials responded that a paper issued by the British government contained the unequivocal assertion: “Iraq has ... sought significant quantities of uranium from Africa.” As long as the statement wa attributed to British Intelligence, the White House officials argued, it would be factually accurate. The CIA officials dropped their objections and that’s how it was delivered.

“The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa,” Mr. Bush said.

The statement was technically correct, since it accurately reflected the British paper. But the bottom line is the White House knowingly included in a presidential address information its own CIA had explicitly warned might not be true.

Today at a press conference during the President’s trip to Africa, Secretary of State Colin Powell portrayed it as an honest mistake.

“There was no effort or attempt on the part of the president or anyone else in the administration to mislead or to deceive the American people,” said Powell.

But eight days after the State of the Union, when Powell addressed the U.N., he deliberately left out any reference to Iraqi attempts to buy uranium from Africa.

“I didn’t use the uranium at that point because I didn’t think that was sufficiently strong as evidence to present before the world,” Powell said.

That is exactly what CIA officials told the White House before the State of the Union. The top CIA official, Director George Tenet, was not involved in those discussions and apparently never warned the President he was on thin ice.

Secretary Powell said today he read the State of the Union speech before it was delivered and understood it had been seen and cleared by the intelligence community. But intelligence officials say the director of the CIA never saw the final draft.
     That's right: "The top CIA official, Director George Tenet, was not involved in those discussions and apparently never warned the President he was on thin ice," which seems to suggest the opposite of what the headline says. But more importantly, not a single sentence in the story supports the serious charge in the headline. The closest I could see was "But the bottom line is the White House knowingly included in a presidential address information its own CIA had explicitly warned might not be true" -- but even there (1) the allegation is about "the White House," not "Bush," and (2) the allegation is that the White House knew that the information "might not be true," not that it was "false."

     I haven't been following the uranium/Niger/Iraq/State-of-the-Union story closely, but I'm perfectly prepared to believe that there were serious intelligence screw-ups, stretches by government officials, or even intentional attempts to mislead people on some people's part. Among other things, I'm perfectly prepared to believe that because that's the way governments (or, for that matter, human beings) often operate. If this happened, then it's bad, and it's right that people should try to get to the bottom of things.

     But as we follow the story, it's worth remembering that falsehoods can come from lots of sources, and in particular both from the Administration and its critics. Here, in particular, we have (1) the headline on a lead story at a major news source that (2) accuses the President of lying, but (3) appears to entirely misrepresent the actual content of the story. Seems like there are potential credibility gaps all around here.

Thursday, July 10, 2003


When is Real Faux? In When is Faux Real? I blogged about my experience watching Pink Voyd, a tribute band imitating Pink Floyd. While watching them I kept wondering which is "real" and which is faux? The young guys playing in front of me, the old guys who would now be Pink Floyd, or my 30 year old recordings? Tonight I had a converse experience.

I went to the Chris Isaak concert at Foxwoods. It was fabulous. Real Rock and Roll (not Rock), with a touch of Rockabilly, and some smoooooth ballads. He played a lot of the best songs from his latest album, Always Got tonight as well as his biggest hits. This band is tight and 'loud and clear.' A great 2 hour show with lots of personality. If you EVER get a chance to catch these guys do so. You'll thank me. (Here are their current tour dates.) But as I watched, I couldn't help thinking . . . .

Thanks to my Tivo, I regularly watch the Chris Isaak Show on Showtime. The characters are Chris and his real band, The Silvertones--Roly (bass), Hershel (guitar), & Kenney a fictional keyboard player--Anson--for comic relief. The thing is, the show seems based on these guys' real personalities. (They've played together since right out of college.) So watching them perform you feel like you really know them. On the TV show, we've lived through their on stage and off stage foibles and exploits. Chris is cheap, Hershel is naive, Roly is cool, Kenney is raunchy. And, like all TV personalities, you tend to think they know YOU back. Which isn't true of course, but it's hard to remember this when you see them in person.

So there they all are on stage right in front of you. Just playing guitars like ringing a bell, as on TV. You feel you know them, you've seen their life on TV. Except its all fiction. My guess is the personalities of their "characters" are pretty true to life--its not as if they are great actors--but their experiences are all unreal. Here the real Chris Isaak and Silvertones are playing out there like pros--not a faux tribute band--and Chris is goofing on the band like he does on TV. I find it terribly hard to separate this brief slice of reality from the fiction I have seen for weeks in a row, up close and very personal. So is "real," really "faux"?

By the way, in an unusually personal touch reminisent of country and western performers, Chris came out to the lobby after the show to sign autographs. He stood behind a horseshoe set of tables and went from one end to the other, over and over again, signing pictures and CDs and T-shirts and anything else put in front of him, posing for pictures, and schmoozing as much as he could given the crush of over 100 fans pushing towards the tables. When he passed by me I told him I really enjoyed the show and he said thanks. I told him I really liked the TV show too, and he looked up with a twinkle in his eye, looked straight at me and said, "Of course you do, its got naked girls." You don't suppose he really DOES know us do you?


Satellite radio The world is catching on to how great it is. See this post on today's Slate.

Better than cable, as I wrote on my first-ever Conspiracy blog.


Sundry points: Books and music A new (2002) book is Their Word is Law: Bestselling Lawyer-Novelists Talk About Their Craft, interviews by Stephen Murphy.

Most of you who wrote back don't think that downloading music is anyway near as bad as stealing food. One spirited correspondent, Stephen, wrote the following about the motives for downloading:

"Screwing the Man. Youth are a rebellious sort...Because of all the backhanded tactics the RIAA has used to screw over both artists and consumers, stealing their money is our way of getting back at them."

I loved this post, thanks Stephen.


Nevada Supreme Court orders violation of Nevada Constitution: I just read one of the most appalling judicial decisions I've ever seen. It was just handed down today, and it's available here (Guinn v. Legislature).

     Nevada appears to be in the middle of a fiscal crisis: Its constitution more or less requires a balanced budget (art. 9, sec. 2(1)). There's a shortfall. The Legislature hasn't funded the budget. Various state functions, including the educational system, are right now (as of July 1) unfunded. And the Nevada Constitution (art. 4, sec. 18(2), enacted by voter initiative in 1996), requires a two-thirds vote to increase taxes, which has contributed to the budget deadlock. (I have no independent knowledge of this; I'm paraphrasing the court's statement of the facts.)

     The Nevada Supreme Court has (1) ordered the Legislature to enact a budget, and (2) suspended the operation of the two-thirds majority requirement. That's right, the two-thirds majority requirement is right there in the Nevada Constitution:
2. Except as otherwise provided in subsection 3, an affirmative vote of not fewer than two-thirds of the members elected to each house is necessary to pass a bill or joint resolution which creates, generates, or increases any public revenue in any form, including but not limited to taxes, fees, assessments and rates, or changes in the computation bases for taxes, fees, assessments and rates.

3. A majority of all of the members elected to each house may refer any measure which creates, generates, or increases any revenue in any form to the people of the State at the next general election, and shall become effective and enforced only if it has been approved by a majority of the votes cast on the measure a such election.
But the Nevada Supreme Court has held that the Legislature must ignore this requirement.

     The Nevada Constitution does mandate (art. 11, secs. 1, 2, and 6) that the legislature create and fund public schools, though it's silent on the level of funding that the legislature must provide. Most state constitutions do impose such an affirmative obligation on the state government, and many have been read as providing affirmative judicially enforceable rights; I do not object to that conclusion here. But the Nevada Supreme Court has held that the constitutional provision requires the state legislature to fund the schools through means that are themselves unconstitutional.

     The Court recognizes this, and provides the following reasoning:
When a procedural requirement that is general in nature prevents funding for a basic, substantive right, the procedure must yield. Here, the application of the general procedural requirement for a two-thirds majority has prevented the Legislature as a body from performing its obligation to give life to the specific substantive educational rights enunciated in our Constitution.
     But this makes very little sense. First, the court just assumes that procedural requirements are somehow less important than substantive rights. How so? Some of the most important rules in our constitutions -- majority vote for most laws, the unanimity requirement on criminal juries (in many jurisdictions) or at least the supermajority requirement (in all jurisdictions), the procedural constraints on which chamber may initiate tax legislation, which chamber may approve appointments, and so on -- are procedural. These are tremendously important; courts may not waive them just in order to serve the constitution's substantive commands. Rather, American constitutions require that substantive entitlements be provided while respecting the pr cedural rules.

     Second, the two-thirds majority itself protects a substantive right -- the right to keep your property. That's why supermajority requirements for taxation are required: People believe that they have fundamental substantive property rights, and while they realize that sometimes they must yield their property for the state to provide various services, they want to make sure that these substantive rights aren't taken away unless there's very broad support.

     Third, if there is a square conflict between two provisions, the general rules are that (a) the specific prevail over the general -- and despite the court's pejorative characterization of the 2/3 tax provision as "general," it's really no more or less general than the broadly worded education provisions -- and (b) the newer prevails over the older. In 1996, the voters enacted the constraint on the state's power to tax. Of course such a constraint may make it harder for the state to fund services; the whole point was to make it harder for the state to fund services through the taking of private property. This new constraint prevails over any contradictory commands based on older provisions.

     Fourth, it's not at all clear that there's really a conflict between the provisions. As I mentioned, the education funding requirements in article 11 of the Nevada Constitution don't explicitly require a specific amount of funding. The Legislature could cut the funding for education, or for other services. It may be damaging to the state's educational system, but it is doable. And while the result might be lousy policy -- perhaps so lousy that the Legislature will muster the 2/3 majority needed for a tax increase, or find better places to cut, so that education would end up being better funded -- it would avoid what the court has done: A flat judicial nullification of an entirely explicit command of the Nevada peo le.

     Finally, if the court is willing to nullify "general procedural rules" so that it can order the legislature to fund education, why stop at the 2/3 supermajority? What if it turns out that the Legislature can't even get a simple majority for a tax increase? Under the court's reasoning, it should nullify the 50%+1 requirement, too -- after all, the simple majority requirement is also a mere "procedural requirement that is general in nature." Or, better yet, why not order the governor impose the taxes himself? The requirement that taxes be imposed by elected legislators is also just a "procedural requirement that is general in nature." But wait -- that would be inefficient. Why doesn't the court just impose the taxes itself, and order government officials to just seize the property from Nevadans' bank accounts? The only thing that stops it is also a "procedural requirement that is general in nature," and apparently those aren't really binding any more.

     This really is shameful, and I do not use the term lightly. Yes, I know that there are lots of claims of judicial overreaching -- but there are at least various defenses based on tradition, precedent, ambiguous constitutional text, or whatever else. Here, I see no such defense: Just the court's willingness to completely ignore the very constitution that gives it power.

     I hope that Nevada legislators and Nevada voters will not stand for this. Obviously, they can amend the Constitution with a "We Really Mean It Clause," though I don't know whether they can do it in time. I should mention that, under art. VII, sec. 3, "For any reasonable cause to be entered on the journals of each House, which may, or may not be sufficient grounds for impeachment, the Chief Justice and Associate Justices of the Supreme Court and Judges of the District Courts shall be removed from Office on the vote of two thirds of the Members elected o each branch of the Legislature, and the Justice or Judge complained of, shall be served with a copy of the complaint against him, and shall have an opportunity of being heard in person or by counsel in his defense . . . ." No high crimes and misdemeanors or breaches of "good behavior" are required -- just "any reasonable cause," and I think that this flagrant violation of the Nevada Constitution's protection of basic property rights qualifies. Also, art. II, sec. 9 seems to provide for popular recall of judges as well as other officials:
Every public officer in the State of Nevada is subject, as herein provided, to recall from office by the registered voters of the state, or of the county, district, or municipality which he represents. For this purpose, not less than twenty-five per cent (25%) of the number who actually voted in the state or in the county, district, or municipality which he represents, at the election in which he was elected, shall file their petition, in the manner herein provided, demanding his recall by the people. They shall set forth in said petition, in not exceeding two hundred (200) words, the reasons why said recall is demanded. If he shall offer his resignation, it shall be accepted and take effect on the day it is offered, and the vacancy thereby caused shall be filled in the manner provided by law. If he shall not resign within five (5) days after the petition is filed, a special election shall be ordered to be held within thirty (30) days after the issuance of the call therefor, in the state, or county, district, or municipality electing said officer, to determine whether the people will recall said officer. On the ballot at said election shall be printed verbatim as set forth in the recall petition, the reasons for demanding the recall of said officer, and in not more than two hundred (200) words, the officer’s justification of his course in office. . . .
This requires a large number of signatures, but provides for a prompt election if the signatures are athered.

     I'm not up on Nevada politics, and for all I know this might be one of those weird political kabuki dances where everyone, including the voters, might actually like the result. That doesn't keep the result from being outrageous, but it might mean that it won't generate much outrage. I do, though, hope that Nevadans won't stand for this judicial nullification of the people's will, and that they will promptly make clear that it is they who get to add or delete portions of the Nevada Constitution.

     (Thanks to Rick Henderson for the pointer to the decision.)


More on the Federal Marriage Amendment: Ramesh Ponnuru at The Corner disagrees with Andrew Sullivan on the Federal Marriage Amendment.
Andrew Sullivan reprints the text of the proposed Federal Marriage Amendment: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups." He then says, "Note how the states are effectively barred from providing anything that resembles marriage or any of the 'legal incidents thereof.' It's an attempt not only to reverse any state that wants to have same-sex marriage but to invalidate all domestic partnership laws, any state-provided benefits, or any support for same-sex couples anywhere anyhow. It's a massive power-grab from the states, in an area where states have always had constitutional authority."

There may be sound arguments against the FMA. But Sullivan's claim is ridiculous. What does he suppose the words "be construed to require" are doing in the amendment? The amendment is aimed to prevent a judge (or executive-branch official) from inferring same-sex marriage or same-sex marriage-lite from a state or federal law. It precludes a state's adoption of gay marriage (that's the first sentence). It precludes a judge's imposition of civil unions (that's part of the second sentence). It does not preclude a state legislature or popular referendum from creating civil unions or whatnot. . . .
     I think Ramesh may be mistaken here. First, let me highlight one thing that he does mention (though I unaccountably failed to grasp the full import of his mentioning it when I first posted on this). Consider this scenario: The New York legislature - or the voters of California -- say "We enact that gays shall be allowed to marry." Under the FMA, I think that would be unconstitutional, because it violates the first sentence, which says "Marriage in the United States shall consist only of the union of a man and a woman." After all, New York is in the United States; marriages in New York may not include gay marriages, regardless of what New Yorkers prefer. The amendment thus constrains more than just judges or executive branch officials. It constrains legislators or voters, too.

     This is reinforced by the "construed to require" sentence. Say that two gay men go to the courthouse to register their marriage. The county clerk says "Nope, I don't register gay marriages." The men say, "But the statute requires you, as the government employee in charge of marriages, to register gay marriages." "Not so," replies the clerk. "Under the Federal Marriage Amendment, no 'state . . . law . . . shall be construed to require that marital status . . . be conferred upon unmarried couples or groups.' Therefore, even though the legislature has just enacted a state law saying that gays can marry, you're still unmarried (under the FMA's first sentence) and this state law can't be construed to require me to confer marital status on you (under the FMA's second sentence)." Both the first and the second sentence of the FMA would thus bar gay marriages, no matter what the state legislators or voters say. That alone, I think, is enough to justify disagreeing with FMA: Why should we keep the voters or legislators of another state from implementing the marriage regime that they think is right for them, especially if the Defense of Marriage Act (and other doctrines) prevents that regime from being foisted on other states?

     Now consider another scenario, where my disagreement with Ramesh lies: The New York legislature or the California voters decide to create a "civil union" statute, under whic ks for the state, goes to his human relations director and says "Please add my partner to the insurance policy." "Nope," says the director; "I only add married people to the policy, not you newfangled gay civil unioned types." "But wait," says the employee; "you're required by state law to treat us just like a married personcouple." "Not so," says the director; "the Federal Marriage Amendment specifically says that no 'state . . . law[] shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.' You're telling me that I'm required to confer the legal incidents of marriage -- here, addition to the insurance plan that my department reserves only for married people -- on you, even though you're an unmarried couple. But the U.S. Constitution says that I cannot be so required."

     Again, then, the FMA would block not just gay marriages or civil unions imposed by judges or executive branch officials, but also normal state laws adopted by legislators and voters. Contrary to Ramesh's reading, it would "preclude a state legislature or popular referendum from creating civil unions or whatnot."

     Now I realize that courts could interpret the FMA differently; courts have certainly interpreted lots of constitutional provisions in ways that don't track their literal text. But it seems to me that the reading I outline is at least plausible -- and I think it's actually the most plausible:
  1. The first sentence mandates an unchangeable definition of marriage ("Marriage in the United States shall consist only of the union o a man and a woman"), thus prohibiting state legislators and voters from allowing gay marriages.

  2. The second sentence bars state laws that require local and state government officials to recognize civil unions, domestic partnerships, and other attempts to track the incidents of marriage -- "[no] . . . state . . . law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups" -- thus prohibiting state legislators and voters from setting up such civil union schemes.
The FMA would thus substantially reduce the autonomy of each state, and the authority of its legislators and voters.

UPDATE: I'm sorry to say that I originally misread part of Ramesh's post -- I failed to really grasp the sentence where he acknowledges that the Amendment would entirely ban states, include state legislators and state voters, from allowing gay marriage. (I focused too much on where he talks about the Amendment just disabling judges, and leaving legislators and voters relatively free, and I glossed over his acknowledgment that this isn't so as to gay marriage itself.) This means that in the first scenario, I actually agree with his prediction of what the Amendment would do, though I think that it would be bad for the Amendment to do that. In the second scenario, we do disagree. I've revised the post to incorporate this correction, but I wanted to leave this update and my apology here in any event.


Traffic totals for various blogs: N.Z. Bear now tracks traffic totals (visits, I think, rather than just page views) for a wide range of blogs. Not all blogs are included -- How Appealing, for instance, isn't; I assume that it's largely because they don't have a publicly available SiteMeter counter (it looks like Bear is relying only on SiteMeter data).


Theft and deprivation. Tyler and Orin muse below about why people are more comfortable recording music in violation of the law than they are in stealing food. One important reason why people feel that way, I think, is different from rationales they mention. If I take food that belongs to others, I get it and they don't. But if I unlawfully record music I have not diminished the supply of it available to others, at least directly (i.e., setting aside the question of the reduced incentive to create more of it).


Federal Marriage Amendment: Andrew Sullivan aptly criticizes the Federal Marriage Amendment, which reads (in the most recent version that I could find:
Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups.
Sullivan writes:
Note how the states are effectively barred from providing anything that resembles marriage or any of the "legal incidents thereof." It's an attempt not only to reverse any state that wants to have same-sex marriage but to invalidate all domestic partnership laws, any state-provided benefits, or any support for same-sex couples anywhere anyhow. It's a massive power-grab from the states, in an area where states have always had constitutional authority. If you merely want to stop one state's marriages being nationalized, you have the power already. It's called the Defense of Marriage Act, alongside the long established precedent of states being able not to recognize out of state marriages for public policy reasons. The FMA, in contrast, is an attempt to use the federal constitution to rob gay citizens of any rights in their relationships whatsoever, regardless of where they live or what their states want. . . .
     I think he's quite correct here. The Amendment doesn't just leave state legislatures free to follow their own policies (as it would if it simply said "Neither this constitution or the constitution of any state, nor federal law [omitting the mention of state law], shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups"). Rather, a state legislature would no longer be allowed to enact a law saying "County clerks and state courts shall register and tre t gay marriages the same way as they do straight marriages" -- since, after all, the amendment would bar this "state law" from being "construed to require that marital status . . . be conferred upon unmarried couples or groups" (even though that's precisely what the state legislature wants to require). Even state voters, acting through the initiative process, wouldn't be allowed to legalize gay marriage in their state.

     What's more, this may indeed jeopardize state laws providing for domestic partnerships that mirror some attributes of marriage -- because those laws "require that . . . the legal incidents [of marital status] be conferred upon unmarried couples or groups." One could argue that these laws don't really provide "the legal incidents [of marital status]," because they provide only some incidents (e.g., health insurance, the ability to recover for wrongful death, state tax treatment, and the like). But the stronger argument, I think, would be that the laws do indeed provide "the legal incidents [of marital status]," because they do provide some such incidents, and are aimed at duplicating the rules applicable to married couples.

     So this would indeed be a huge interference with state rights -- and, I think, quite unjustified. If New York voters (or their representatives) decide to allow gay marriage, or gay domestic partnerships that provide most of the incidents of marriage, why should Californians say "no"? If the concern is that the New York marriages would have to be recognized by other states, the Defense of Marriage Act should indeed suffice; and even in the unlikely event that it's struck down (and I should say that some people have urged that it be struck down), that could be reversed with a much narrower amendment than the Federal Marriage Amendment.


More on Dusty Baker: A reader writes, apropos Dusty Baker's comments:
But isn't it still illegal to discriminate on the basis of race? . . . If Baker believes that blacks and latinos play better in the heat, isn't he more likely to play them on hot days? If such a pattern existed, wouldn't the white players on the team have grounds to sue?
Others have made a similar point.

     If there was evidence that Baker was engaging in illegal discrimination, or if he was saying that he ought to do so, then he would be properly taken to task for that.

     But I know of no such evidence; all I see is the inference that because Baker believes something, he'll be willing to violate the law. That seems to me to be an unsound inference. It's contrary to the benefit of the doubt that we ought to give people when deciding whether to publicly condemn them, or to publicly demand apologies for them.

     The fact is that all of us harbor lots of opinions that, if we were willing to violate the law, might lead us to act illegally. Many Jews think that we are God's chosen people. Many atheists (and nonatheists) think that certain religious beliefs are unsound or illogical. Many people think, absolutely correctly, that the average man is stronger than the average woman. Many people think, absolutely correctly, that the average woman is less prone to violence than the average man.

     While all such opinions should be phrased politely, and while as a factual matter there's no doubt that some people will bristle at these points, it seems to me that people are entitled to express them, and shouldn't be publicly condemned for it. It's true that people who hold these beliefs might therefore discriminate against non-Jews, or against certain religions, or against women, or against men. But I don't think that one s ould just condemn a person who expresses these beliefs simply on the grounds that he might act on them in the future, unless we have some better evidence that he really is willing to break the law in that way.


Justice Kennedy's Libertarian Revolution You can read my take on Lawrence v. Texas today on National Review Online. It is called Justice Kennedy's Libertarian Revolution. Here's the introduction:

The more one ponders the Supreme Court's decision in Lawrence v. Texas, the more revolutionary it seems. Not because it recognizes the rights of gays and lesbians to sexual activity free of the stigmatization of the criminal law — though this is of utmost importance. No, the case is revolutionary because Justice Kennedy (and at least four justices who signed on to his opinion without separate concurrences) have finally broken free of the post-New Deal constitutional tension between a "presumption of constitutionality" on the one hand and "fundamental rights" on the other. Contrary to what has been reported repeatedly in the press, the Court in Lawrence did not protect a "right of privacy." Rather, it protected "liberty" — and without showing that the particular liberty in question is somehow "fundamental." Appreciation of the significance of this major development in constitutional law requires some historical background. . . . .


The Limitations of the Denial of Patents: OK, my last item for now on the National Review Online cloning piece. To their credit, the authors recognize that there should be limitations even on anti-cloning measures:
In response to this flurry of activity, it is clearly time for Congress to act, and America to lead. . . . Yet even the best of [the current-anti-cloning] proposals suffers from fundamental flaws -- it exceeds congressional authority and fails to adequately address the vast and disturbing array of emerging embryological technology.

Congress has cited only one enumerated power as a basis for its federal cloning ban: congressional authority to regulate interstate commerce. In order to survive a constitutional challenge, such a ban would need at the very least to substantially relate to commerce among the several states -- a standard that a cloning or embryonic research ban would almost certainly fail.

While an outright "Commerce Clause" ban on human cloning, hermaphroditic embryos, or fertile fetuses might be sexier to voters, legislators should eschew this course in favor of regulations conforming to Congress's limited powers. By doing so, Congress would not only act constitutionally, but could actually reach more disfavored conduct by targeting the substantial economic incentives which motivate human embryological research.

Accordingly, Congress could restrict the U.S. Patent & Trademark Office (PTO) from issuing patents on human cloning and the more macabre embryo and fetal research. . . .

If, as prophesied, "big biotech" is waiting to cash in on a Huxleyan vision, then a carefully drafted prohibition on such patents would do much to curb that brave new urge. But maybe big biotech isn't the only Dr. Frankenstein to fear. Suppose Congress worries about nonprofits privately funding narcissists who would fre ersity receives federal money one way or another, whether through research grants or Medicare payments. Even the threat of withholding these federal funds would preemptively padlock these promethean labs, thereby providing an effective if unpopular first step.

Now, take a step back and imagine the possible aggregate effect. Who is likely to still be, as Messenger Boxer would have it, "doing God's work?" Not big biotech. Without patent protection, their process would be protected only as a trade-secret; which works fine for protecting the Coca-Cola formula, but not so well in scientific research where, like your fifth-grade math teacher, the dons require you to show your work. Not universities or hospitals. They'd be cutting off their noses and eyelids to spite their faces; and could never withstand the backlash for choosing such research over education and health-care dollars. Private foundations? Perhaps. But probably not many, particularly if their tax status is on the line. Leaving us with marginalized, privately under-funded, non-tenured scientists who can't prove to anyone how they did it without jeopardizing any profit they might otherwise stand to gain. Have at it.

The hour for debate has passed. Madrid has demonstrated that genetic science and embryology, left to their own devices, will fulfill our worst expectations. Congress should act expeditiously, and constitutionally, to spare us the grotesque reality of children born of aborted mothers.
But while I appreciate the authors' attentiveness to he proper limits of federal power, it seems to me their proposal will be both unduly intrusive and ineffective.

     I suspect that patent law is indeed a powerful incentive for invention, especially when research is expensive (though as I understand it, economists are quite uncertain on the subject). But it's hardly the only incentive. There are lots of very rich people in America, and many more pretty rich people; many of them are sick with some pretty serious diseases; all of them face the possibility of one day become sick with a pretty serious disease. Lots of these people already donate lots of money to medical research. Even if the donations are somehow made non-tax-exempt, and otherwise discouraged, quite a few people may be willing to fund advanced research -- partly out of philanthropy, and partly out of self-interest: If you have some form of disease in your family, and you have a multi-million dollar fortune, and cloning or embryonic research seems to offer some serious potential benefit, you may be perfectly happy to spare some tens of millions to fund this research.

     But beyond this, it's a big world, and even if America tries to "take the lead," it's not clear how much of the world will follow. If Japan or Europe allow patents for human cloning, then the proposal in the NRO would at most diminish the incentive for cloning (though of course broader bans would be limited this way, too). Companies, whether American or foreign, will engage in the research overseas -- probably more slowly, but they'll still do it. Then doctors in the U.S. would use this research (which, though slower in coming, may end up being cheaper to use because of the lack of patents) in the U.S. How much comfort will that give the anti-cloning forces?

     Now those who think that all cloning or embryonic research (and to their credit, the NRO authors apparently want to discourage all cloning but only some em ryonic research -- "Congress could restrict the U.S. Patent & Trademark Office (PTO) from issuing patents on human cloning and the more macabre embryo and fetal research") is evil, perhaps because it murdered living human fetuses or some such, might not be much moved by these practical considerations. They might just think that the U.S. government shouldn't grant people patents for technology that's inherently evil, or let them use the courts to defend their evilly gotten gains. On the other hand, denying such patents does seem like a pretty feeble step in the battle against evil.

     On the other hand, those who think that cloning and even "macabre" fetal research are potentially valuable -- if, for instance, proper safeguards are used to keep gestationally old fetuses from being aborted for research purposes, or to prevent the birth of living children with horrible defects, or some such -- while also potentially harmful (if those safeguards aren't implemented), should be about as troubled by the unpatentibility / defunding / tax-exemption-stripping proposals as by total bans. The research will still happen, just in less regulated and less visible contexts and also overseas. If anything, people who are skeptical about at least some forms of this research will have less input in the process than they would without the unpatentibility etc. rules, since the domestic process would be moved entirely to special-purpose organizations whose only job is to engage in the research, and which would thus be less subject to public pressure or even public scrutiny. Not a terribly satisfying result, it seems to me.


Kate Spade handbags and the Napster phenomenon: Tyler's post below overlooks what I think is the most important reason why many people feel no qualms about downloading copyrighted music for free: when intellectual property laws are not enforced, social norms evolve that make violation of those laws socially acceptable, and even cool.

     I thought about this recently when a female friend was discussing the future of Kate Spade handbags. For the men in the audience, Kate Spade handbags are stylish but very expensive handbags that are widely copied by counterfeiters. You can buy knockoff fake Kate Spade handbags nearly everywhere in Washington; as a colleague here reminded me, a man sells them from a table right outside the GW Metro stop three blocks away. The counterfeiters copy not only the style, but the label; looking at a knock-off bag, you can't tell the difference. And a knockoff typically costs about $25, in contrast with the real bags that cost around $175 to $250.

     The interesting thing is, it turns out that very few people actually own the real Kate Spade bags. Based on a highly scientific study I conducted (that is, I asked a few female friends about it), it seems that very few of the Kate Spade bags you see are real. And the counterfeit bags are so widely available and so widely used that there is no social stigma at all attached to having a counterfeit bag as opposed to a real one. In fact, a few women I spoke with told me that they would find it a bit strange if someone carried a real bag rather than a fake one. As one person told me, "You would wonder, what kind of person spends their money just to have the real bag?" The norm is having the counterfeit bag, and the very few people who insist on only carrying the real thing 'just for the principle o it' are considered total dorks.

     I find this fascinating because these attitudes seem to mirror those of the downloading crowd, and yet the folks who buy counterfeit Kate Spade bags don't voice the same justifications that you usually hear from the downloaders. No one hates Kate Spade. And no one hates the product or how it is packaged. Rather, they like the product a lot-- it's just that they don't want to pay full price for it. And it is socially acceptable not to, in part because knockoffs are so widely available and are sold out in the open. With Kate Spade handbags as with downloading, everybody does it and no one imagines that there is any downside to it. It's just a matter of getting a good product at a cheaper price-- in the case of Kate Spade, it's $25 instead of $200, and in the case of downloading mp3s, it's free instead of $15 for a compact disc.


Human Cloning and Horror Stories: A separate point about the National Review Online piece I mention in the following post: The piece urges Congress to take serious steps against all human cloning -- but it doesn't show that all human cloning is troubling, even under its own pretty vague standards of what should trouble us. The chief examples it gives are (1) the harvesting of reproductive material from embryos that are gestationally fairly old (22-33 weeks), for purposes of perhaps eventually having actual eggs born from aborted fetuses, and (2) the creation of "mixed gender balls," something that does indeed arouse many people's (and I suspect especially many prospective parents'") revulsion. But why does it follow that human cloning generally, as opposed to certain kinds of human cloning, should be opposed? (They speak generally of cloning, even as they are more nuanced as to other research: "Congress could restrict the U.S. Patent & Trademark Office (PTO) from issuing patents on human cloning and the more macabre embryo and fetal research.")

     After all, we don't ban all surgery just because we think some form of surgery are disgusting or even unethical. We don't deny all parents authority over their children just because we know that some parents abuse their kids in the most heinous ways. More broadly, we don't just deny everyone liberty even though we know that some people use their liberty to perform atrocities. Where potentially valuable but sometimes harmful behavior is involved, we usually (not always, but usually) try to discourage the harmful behavior while allowing the valuable behavior (and as I understand it, there are indeed potentially very valuable applications of embryonic cloning), at least unless there's some pretty strong evidence that (1) it's impossible to effectively fight the harmful conduct without also p ohibiting the valuable, and (2) the harmful conduct is so harmful that eliminating the harm justifies eliminating the value of the valuable behavior that's also eliminated.

     Now doubtless the authors of the column believe that all human cloning is indeed harmful, and would distinguish it that way from surgery, childrearing, liberty, and so on. But they don't actually defend this position, or any other position that would justify banning human cloning (e.g., some human cloning isn't harmful, but it's so hard to distinguish the harmful from the valuable, and the harmful is so harmful, that all of it needs to be discouraged). Rather, they simply point to a few troubling applications of the technology, and urge Congress to take steps to discourage the technology altogether. That seems to me to be a mistake.


"We're Reasonably Sure That's Not What the Creator Intended": Nathaniel Stewart and Robert Alt have a piece on human cloning in the National Review Online -- I'll try to blog some more about it later, because it actually contains an intriguing (though I think ultimately misguided) policy proposal. For now, I want to focus briefly on one particular argument they use.

     Stewart and Alt describe some proposals that may well seem troubling, e.g., harvesting ovarian tissue for infertility treatments from 22-33 week old aborted fetuses, or "creating 'part male and part female' embryos." (I say "may well seem troubling" because I don't know all the details, and sometimes the more detailed explanation proves to be less troubling -- or more troubling -- than the one-line summary; but I set that aside for now, because my argument really doesn't turn on this particular factual issue, and because I doubt that I'll be able to go into all the details even if they were present.) They then say "While we don't claim to share Senator Barbara Boxer's anointed insight that tinkering with human embryos is 'doing God's work,' we're nonetheless pretty sure that making a mommy out of an aborted fetus is not what the good Lord intended" and then repeat the argument: "Once again, with due respect to Boxer and Annas, we're reasonably sure that's not what the Creator intended either."

     Now I can't for a moment claim to be a theological expert, but I'm really puzzled about how they can be reasonable sure about which surgical procedures "the Creator intended." It seems to me that religious moral argument in this context can fall into several rough categories:
  1. This is wrong because the holy books say that it is prohibited. For those who believe that the holy books are divinely inspired, this would surely be an e fective argument. But unfortunately to my knowledge the holy books don't say much specifically on this topic, which is, I take it, why the argument above focuses on the Creator's supposed intent, rather than on His words.

  2. This is wrong because it is contrary to the way human beings operate in their natural, Creator-created state. If one accepts this position, then I agree that human cloning -- both the examples that the authors give, and all other examples -- should be condemned. Unfortunately, this would also condemn most modern surgery, chemotherapy, pharmaceutical care except perhaps using herbs that grow in the wild, and so on. I take it that the authors don't condemn such behavior, even when applied to children; for instance, I assume that they don't worry whether the Creator intended that kids be sometimes born by caesarean section. (I'd also assume that they don't oppose in vitro fertilization, at least on the "unnaturalness" grounds, as opposed to the destruction-of-fetuses grounds; but perhaps I'm mistaken in that assumption.)

         Of course, they might defend surgery generally, caesarean sections specifically, hormonal infertility treatments, and so on by saying that the Creator did intend that people use their Creator-given minds to make life better for them. But of course exactly the same can be said about human cloning.

  3. This is wrong because it's contrary to the Creator's intent as we infer it from the natural world and from the implications of the holy books. This may well be a legitimate objection to those with a religious worldview -- but thoughtful religionists must surely realize that these sorts of inferences are highly unreliable. After all, they involve not God's actual word, which some might think is infallible (so long as it's properly translated and understood), but people's inferences, often pretty tenuous inferences. And there is certainly a long history of people drawing inferences t are misunderstandings, but I suspect that everyone can point to some errors in inference that others have made.) I doubt, for instance, that the authors agree that the Creator intended not to allow contraception, or that the Creator intended blacks to be kept in slavery to whites, or that the Creator intended that women not be allowed to work or even not be allowed out of the home unless they wear burkas. These counterexamples don't, of course, show that religious inference is necessarily wrong -- but they should warn us of the risk of error that's inherent there.

         Of course, to a religious person the risk of error flowing from religious inference cannot be a barrier to ever engaging in religious inference, just as to a secular person the risk of error flowing from secular moral inference cannot be a barrier to ever engaging in secular inference. The Inquisition or the Taliban don't prove the impropriety of religious thinking any more than Stalinism or Maoism proves the impropriety of secular moral thinking.

         But at the very least, the risk of error inherent in guesswork about what the Creator must intend shows the importance of carefully articulating the argument, and giving a detailed, specific explanation of why the Creator doesn't intend this, but does intend caesarian sections, or contraception, or in vitro fertilization, or hormone shots, or the use of incubators to care for dramatically premature babies. The risk of error shows the need for thoughtful, overt, and self-critical analysis of just why we fallible humans are making this particular guess about what the inscrutable Creator, who moves in mysterious ways, never actually chose to tell us about his "intentions." Unfortunately, the article doesn't really give us that.

  4. The final alternative is This is wrong because it just feels to me lik the sort of thing that the Creator must not intend. This is obviously a tremendously emotionally powerful cause for belief; and I'm sure that at times it has led people in precisely the right direction (I suspect that many religious people's opposition to, for instance, slavery or segregation flowed from this very feeling). But of course it has led them in the opposite direction, too. Here, too, as in the previous item, it seems to me that we need to call on people to explain their reasoning -- and if their reasoning is inexplicable, and just flows from their gut feeling, then I don't think that we should respect the claim much as an argument (as opposed to an expression of their own felt conclusion).
So, at bottom, I think that even deeply religious people shouldn't be terribly impressed by bare arguments about what the Creator intended.


Why do you steal music but not food? Millions of Americans download music from the Internet (first Napster, now Kazaa and others), in violation of copyright law. Yet these same people would not dream of walking out of a restaurant without paying, nor would they walk out without leaving a tip.

Why the difference?

I can think of a few hypotheses:

1. Anonymity - they can take the stuff without anyone seeing. This suggests a rather bleak view of human nature. Plus walking out of strange restaurants is quite easy, but few people do this.

2. People think copyright is a weaker form of property, perhaps their intuitions embody a more "physicalist" notion of property rights. "Hey, it's my computer, I'm not violating anyone else's personal sphere." I've heard anti-copyright libertarians offer this hypothesis.

3. Revenge against the music companies. In this view they cheat us, they price gouge, collude and fix prices, they destroy talent with excess commercialism, etc. What rights do they have?

4. Hatred of the business model. Some downloaders buy the CD if they like what they download. Music companies ought to like this. Of course these people don't buy the CD when they don't like what they hear. They then think the following: why should we respect a business model that makes money only by tricking us and selling us lemons? Isn't it enough if I buy the ones I like?

What do you all think? I would welcome hearing your views on this question.


When U.S. News talks, universities listen: The New York Times has a very interesting story today about changes in the methodology of the annual U.S. News & World Report college ranking:
  Perhaps the most influential survey of American higher education is changing the way it ranks the nation's top colleges and universities, dropping from its ratings a statistic that many institutions had sought to manipulate in hopes of raising their ranking in the survey.
  As it prepares to release its annual rankings, U.S. News & World Report, which conducts the survey, has dropped from its formula a statistic known as the yield rate. That figure is the percentage of applicants accepted by a university who later enroll at that institution.
  U.S. News had placed little weight on the yield rate; the figure represented less than 2 percent of a college's overall score, the magazine said. But the institutions, eager to do anything that might raise their scores, had considered the rate, and its potential impact on rankings, important enough to admit more students under "binding early decision" programs than they have in the past.
  Students who are accepted under such programs commit in advance to enroll at a college, so the practice automatically improves an institution's yield rate.
  In recent years, some Ivy League and other highly selective colleges have come to admit more than 40 percent of their freshman classes through such programs, before most applicants have even applied.
     The fact that colleges manipulate their figures in an effort to boost their rankings is hardly news. Law schools do the same thing. At the same time, it's worth pausing to think about this. Several of the finest universities in the world had configured their admissions programs to optimize a number that represented less than two percent of the overall score that a magazine was using to rank schools. Remarkable, isn't it? It will also be interesting to see how schools respond, and whether (and how quickly) the admissions practices change.


Judging people from the past: Eric Muller of IsThatLegal? has an interesting post on this, contrasting President Bush's quote:
At every turn, the struggle for equality was resisted by many of the powerful. And some have said we should not judge their failures by the standards of a later time, yet in every time there were men and women who clearly saw this sin and called it by name.
with the quote by the nineteenth century British legislator Lord Macaulay:
[T]he very considerations which lead us to look forward with sanguine hope to the future prevent us from looking back with contempt on the past. We do not flatter ourselves with the notion that we have attained perfection, that we are wiser than our ancestors. We believe, also, that our posterity will be wiser than we. It would be gross injustice in our grandchildren to talk of us with contempt, merely because they may have surpassed us . . . . As we would have our descendants judge us, so ought we to judge our fathers. In order to form a correct estimate of their merits, we ought to place ourselves in their situation, to put out of our minds, for a time, all that knowledge which they, however eager in the pursuit of truth, could not have, and which we, however negligent we may have been, could not help having. It was not merely difficult, but absolutely impossible, for the best and greatest of men, two hundred years ago, to be what a very commonplace person in our days may easily be, and indeed must necessarily be. But it is too much that the benefactors of mankind, after having been reviled by the dunces of their own generation for going too far, should be reviled by the dunces of the next generation for not going far enough.
It seems to me that there's a great deal of truth in both quotes.

Wednesday, July 09, 2003


Sue the Stud Manufacturer? This from the BBC: Lightning strikes woman's tongue stud. Becky Nyang, 26, was temporarily blinded, unable to talk and badly blistered by the bolt of electricity that surged through her body via the piercing. Ms Nyang, an airport worker from Reading, Berkshire, was on holiday in Corfu when she and a friend were caught in a downpour. A flash of lightning bounced off a nearby archway and hit her in the face, where it was conducted by the metal jewellery in her tongue. . . . More here or (just to prove its real) here.


University of North Carolina Assigned Summer Reading for Freshmen: Last year, the UNC Eric Muller at IsThatLegal? has thoughts on last year's assigned summer reading (a book about the Koran) and this year's (Barbara Ehrenreich's Nickel and Dimed). I hope he's right that "the discussion leaders will encourage students to take a critical stance toward the book," whatever the book might be.


Iranian protests: The Jerusalem Post reports (thanks to my colleague Jonathan Zasloff for the pointer):
Shrugging off death threats by government paramilitary forces, tens [of] thousands of Iranian students took to the streets Wednesday night, burning at least three government banks, calling for the country's democratization and the death to its extremist leader Ayatollah Ali Khameini.

The demonstrations, banned by the Mullarchy, came on the 4th anniversary of 1999 pro-reform protests which triggered a violent regime crackdown, the death of one student and the arrest of thousands.

Opposition group leaders hailed Wednesday's demonstrations the culmination of month-long anti-government activities as a deadly blow to the repressive regime, saying it edges Iran ever closer to a democratic revolution.

Following and eerily quiet day in Iran, three-sided street battles erupted between pro-reform youth, regime-backed para-military forces, and police outside Tehran University.

As many as 100,000 also gathered around one of Tehran's main city squares Wednesday night chanting pro-democracy slogans and calling for the death of Khameini, an opposition source said. . . .

Beyond the demonstrations themselves, [Safa Haeri, editor of the leading opposition newspaper, the Iranian Press Service] regarded the student's capture of the world media' attention "a watershed event." According to Haeri the demonstrations and the a student letter campaign calling Iran a "political Apartheid state," might compel the U.S. to slap an embargo on Iran for violating basic human rights.

Earlier in the day three student leaders were promptly arrested after they criticized the government in a news conference held to declare that they canceled the day's demonstrations.

Government supported m litants have been attacking students, primarily invading student dormitories and beating students in their sleep, for over a month. The attacks are aimed at discouraging students from their almost nightly demonstrations calling for an end to the repressive regime of Khameini.

With crackdowns coming with increasing fury, students have fought back, for the first time calling for Khameini's death, a crime punishable in Iran with a hefty prison term or even disappearance, at the hands of the paramilitary forces. . . .

The Mullahs told reformist parliament deputies to reign in demonstrators or they "would be mercilessly crushed," according to a Iranian opposition source. . . .

In an open letter sent to U.N. General-Secretary Kofi Anan Iranian student leaders claimed that "a political apartheid has taken all hopes from the Iranian people, because it is denying us self rule and the right of choice, the right to be master of our own destiny, because it has lowered our expectations to the lowest limits possible and also because we are worried to see the experience of our neighbors be repeated here."

In what experts called a remarkable show of mushrooming anti-government sentiment the signatories represented student associations of thirty universities. . . .


y reticent about the effect, operation and usage of the Act, having resisted all FOIA requests, and ultimately arousing the ire of irritated Congressmen (in refusing to disclose details regarding the Act and its operation).

[2]: It is possible that the government takes a much more aggressive stance with respect to the Act, or has a broader view of the Act, than Professor Kerr, commentators or media [given [1], it's difficult to say one way or the other].
     I think this is basically right; more specifically, I think that [1] is right, and that has allowed people to speculate a lot about the possibility of [2]. It's part of the culture of DOJ; DOJ sees itself as there to enforce the law, not explain it to reporters. As a result, DOJ tends to be far too secret about what it's up to. This is unfortunate, I think. Of course, some things must remain secret: you can't expect DOJ to identify who the government is investigating. But more broadly, DOJ could serve an important public function by opening up and teaching the public about the law, and to the extent possible, how it is being implemented.

    This was a problem before 9/11, but it's more of a problem today (given the greater threats and greater fears). A few months ago, I suggested to a DOJ official that DOJ should embark on a public education campaign about the anti-terrorism laws. My idea was that DOJ should create a series of presentations on the law taught by subject matter experts employed by DOJ; the presentations would then be available on DOJ's website via streaming audio. For example, if you were interested in the Foreign Int lligence Surveillance Act (FISA), you would be able to go to the DOJ website and view an hour-long presentation on FISA that would explain the law and what it did. Perhaps different versions could be made available-- a short one for non-lawyers, a longer one for aspiring FISA nerds. The idea would be that DOJ would be making an effort to explain to the public the laws that regulate it. The public debate would be much richer; the public would understand more. That was the idea, anyway.


Solum v. Goldberg Larry Solum takes on NRO's Jonah Goldberg on the issue of dead constitutions. Jonah's reply is here under the title FASTER TEXUALISTS, KILL! KILL!


Has the Justice Department led a campaign to mislead the public about the Patriot Act?: Speaking of misunderstandings of the Patriot Act, the ACLU has a report out today called "Seeking Truth From Justice -- PATRIOT Propaganda: The Justice Department's Campaign to Mislead the Public About the USA PATRIOT Act." (Copies available here.) As the title suggests, the report accuses the Justice Department of trying to mislead the American public about the Patriot Act. DOJ has engaged in a "pattern of deceit", the ACLU concludes. "It is time for the Department of Justice to stop misleading the American people." This is rather ironic, in my opinion; I have noted the ACLU's highly misleading descriptions of the Patriot Act before, see, e.g, my April post IS THE ACLU TELLING THE FULL STORY IN ITS NEW ANTI-PATRIOT ACT ADVERTISING CAMPAIGN?. Still, there's an important difference between the ACLU being misleading and DOJ being misleading; DOJ has the power to arrest people and the ACLU does not. So the question is, has the ACLU made a convincing case that DOJ has engaged in a campaign of deceit about the Patriot Act?

     In my opinion, no. The ACLU report does show something that has been widely known for several months: that when librarians and civil liberties groups started making a lot of noise about Section 215 of the Patriot Act this past spring, some law enforcement representatives and spokespersons made statements in defense of Section 215 that were incorrect. In particular, DOJ spokesman Mark Carallo made two mistakes: he incorrectly stated in September 2002 that the Section 215 power did not apply to U.S. citizens, and he incorrectly stated in April 2003 that Section 215 required a warrant. As the ACLU correctly notes, neither is true. Section 215 requi a court order but not a warrant, and Section 215 doesn't apply to any activities protected by the First Amendment by United States citizens or permanent residents, but can otherwise apply to U.S. citizens. An FBI spokeswoman named LaRue Quy later repeated Carallo's error about the warrant requirement at about the same time, and in May 213 the U.S. Attorney for Alaska repeated Carallo's error that Section 215 doesn't apply to U.S. citizens.

     As I read the ACLU report, this is the total of the actual errors that the ACLU has found. The report is padded with a lot of other stuff, more areas of disagreement than factual error. For example, on page 7 of the report, the ACLU has a section on DOJ statements that the ACLU characterizes as equivalent to the claim that "The American people can trust the authorities not to abuse their powers." The report then labels its own characterization a 'false' statement, and informs us that the 'truth' is that "Democratic societies are based on checks and balances, not on blind faith in the good intentions of government officials." Not exactly helpful.

     So the question is, do the factual errors that the ACLU has collected show a "pattern of deceit"? I don't think so. To me the errors show that DOJ spokesman Mark Carallo had some of his facts wrong when he was discussing Section 215, and that one or two others also made the same mistakes (perhaps after following Carallo-- I don't know). I find it quite hard to believe that Carallo intentionally misled the public about this; among other things, I don't think Carallo is a lawyer, and it seems much more likely that he just had the facts wrong. (I should note that I once spoke on the phone with Carallo about Section 215; when I asked him some fairly basic questions about how FISA was being implemented, he said that he would have to ask some FISA experts, because he didn't know himself.) This seems particularly likely given the time that the statements were made, this past fall to this spring: at that time, there was lots and lots of confusion about Section 215 and what it did. As I blogged on Section 215 back on April 21 of this year:
With all of the stuff in the papers these days about the Patriot Act -- most of which focuses on FISA in general and Section 215 in particular -- I've decided that the time has come to really learn my FISA, and to get to know Section 215. And trying to learn this area of law has made me realize something funny about the FISA debate related to the Patriot Act: no one else seems to understand this area of law, either.
(emphasis in original).

     In light of this, it seems fairer to attribute a false statement to an inadvertent error, rather than a campaign of deceit. More broadly, it seems odd to think that misstatements by two or three spokespersons and DOJ officials on two points about a single provision of the Patriot Act in the course of two years amount to a concerted campaign by the Justice Department to mislead the American public.


Death penalty: Reader Michael Glazer writes:
I have mixed views on the death penalty, but I do believe that if it applies to anything, it should applying to knowingly testifying falsely or knowingly using false testimony with the intent to obtain a conviction in a death penalty case, at least if, as so often seems to be the case in these days of DNA analysis of old prosecutions, the defendant turns out to be innocent. The police and particularly prosecutors seem to me to have a much higher duty of care about these things than the average person. And we're not talking here about one of those split second decisions a cop has to make when someone pulls out something that may be a weapon. Rather, these are well considered strategies, perfect for the deterrent effect the death penalty is said to have.

But what are the odds of such a law being enacted? Or of such a law, or even the ones we currently have on the books being enforced? Unless the court reporters tell a very different story from the newspapers, not very high.
It turns out that the chances of the law being enacted in California are 100% (or, if you interpret the question another way, 0%, because such a law already exists). Cal. Penal Code sec. 128 provides that:
Every person who, by willful perjury or subornation of perjury procures the conviction and execution of any innocent person, is punishable by death or life imprisonment without possibility of parole. The penalty shall be determined pursuant to Sections 190.3 and 190.4 [the normal death penalty provisions].
The law was enacted in 1872, apparently as
Every person who, by willful perjury or subornation of perjury procures the conviction and execution of any innocent person, is punishable by death
and was then amended in 1977, pr sumably in response to the U.S. Supreme Court's decisions prohibiting automatic death penalties. I'm unaware of the law ever having been applied, but I'm also unaware of any California incidents where it should have been applied.


"Armed guards to enforce ban on sex in the woods":
A Romanian mayor is planning to hire armed guards to stop residents from having sex when they go for picnics in the woods. . . .

[The mayor] told the Realitatea Romaneasca daily: "They will make sure both that trees are not harmed in any way, but also that people behave themselves while on picnics during the day. . . ."

But passionate couples would, he said, be allowed to have sex in the woods at certain times during the day, adding: "Sex in the woods is only forbidden until dark falls."
(Thanks to Dan Gifford for the pointer.)


Update on Zen Judaism: The source has been identified -- it's David M. Bader's book ZEN JUDAISM: For You, a Little Enlightenment. The book is available on amazon, but the amazon page is also linked to at Bader's site. (Thanks to readers John Mastandrea and Ted Stern for the pointer.)


"The truth is a relative term": A tip -- if you're trying to build or maintain your credibility with people, and you're not a professor in an English department, avoid the phrase "the truth is a relative term." Someone just e-mailed me a message quoting Rep. Darrell Issa, who's said to be interested in California Governor Gray Davis's job, saying exactly that:
"The truth is a relative term" -- Rep. Darrell Issa (R-CA), asked on CNBC if he'd ever been arrested for car theft ("Capital Report").
Not a great political move.

     But at the same time, if you're trying to soundly criticize a candidate (rather than just get a laugh at his expense), avoid quoting such one-liners unless you've carefully checked the context. In context, the statement takes on a somewhat different and more defensible meaning (though it's still highly inartful):
MURRAY: There's a radio ad that's running in the state. Let's listen to it, and then get your response.
(Excerpt from radio ad)
MURRAY: Strong stuff.
Rep. ISSA: Well, sure, but...
MURRAY: I mean, is it true?
Rep. ISSA: No, it isn't true.
MURRAY: You were not arrested for car theft?
Rep. ISSA: The truth is a relative term. Was I arrested? Yes. Was I cleared? Yes. Was it 30 years ago? Yes. The amazing thing, though, is...
MURRAY: The gun charge?
Rep. ISSA: The...
MURRAY: Carrying a gun.
BORGER: The gun at the office.
Rep. ISSA: No. That's completely untrue. . . .
     I haven't heard the radio ad, but I take it that the ad accuses Issa of having been arrested for car theft. There are two messages within that sort of claim: (1) Literally, Issa was arrested for car theft. (2) Implicitly, Issa is therefore a car thief. (I'm pretty sure that Issa's opponents are much more interested in having the public believe message 2 than merely message 1.) Issa was asked if he claim was "true"; his view is that its literal meaning (1) is true, but the message that the ad's creators are trying to spread (in Issa's view, 2) is false. Again, "The truth is a relative term" is a bad way of putting it. But in context, the point that Issa was trying to make -- assuming that he in fact wasn't guilty of car theft -- is more sensible than the isolated phrase suggests.


nd Dusty Baker, together! Dan Drezner, to whose Dusty Baker post I responded yesterday, has a characteristically thoughtful reply:
Like Eugene, I have no clue whether Baker's generalization is factually correct, but my suspicion is that it is not (it certainly depends on the definition of "white"), which was my problem with the comment.

Another concern of mine -- and I'm walking right into Volokh's area of expertise on this -- is the slippery slope question. Eugene distinguishes between generalizations of physical conditions ("blacks perform better in baseball in hot weather") and those of moral character ("blacks are less coachable athletes"). The latter are examples of bad manners; the former are not.

Part of me wants to agree with him on this, because to disagree means applying a moral censure over a wider swath of conversations about race. Conversations about race in this country are circumscribed enough as it is, so I'm very uneasy with suggesting further constraints.

Volokh admits, however, that the phisical/character dichotomy is "a subtle difference and one of degree," and "speculations about morals and ethics involve many more vague lines, subtle differences of degree , and unprovable propositions about human nature than even speculations about law do." Under Volokh's criteria, for example, is it permissible for a coach to make comments distinguishing between the races on a combination of physical and character issues, i.e., "Blacks do worse in pressure situations because their bodies generate excessive amounts of adrenaline under stress relative to whites?" I want the dividing line to be as clear as Eugene, but I'm pessimistic that it really is this distinct.
Dan makes a good point; I think I still disagree with him on this, but it's a subtle disagreement, and I don't think its deta ls are that important.

     I do, though, want to ask the more general question: Assume that we think that Dusty Baker's statement was itself harmless on its own terms (it wasn't rude, and it was either correct or incorrect but not rudely so). Should we publicly excoriate him, or even mildly condemn him and call for an apology on these "slippery slope" grounds"?

     My tentative sense, subject to change on further discussion and reflection, is "no." I do think that there are times that we should oppose otherwise inoffensive government policies for fear that they may make it more likely that others will implement much more dangerous policies in the future. And I also think that there are times when we ourselves should avoid doing something that's itself harmless for fear that it may lead us to do other bad things in the future. (I'm told, for instance, that some radio commentators in an earlier era would try never to swear in private life, because they were concerned that private swearing may become a habit that may inadvertently manifest itself on the air.) Finally, parents and teachers should try to inculcate good habits and prevent bad habits in children, partly for the same slippery slope concerns.

     But I don't think that adults should be publicly condemned, or pressured to apologize, because of these fears. Part of this stems, I think, from the inevitability of vague and subtle distinctions of degree in matters of manners and non-rights-focused ethics -- I generally support bright-line rules in law, to the extent that this is possible, but I think they're less apt in these other areas.

     Another part, I think, stems from my sense of people's rights, again not in the legal sense but in the ethical and manners sense. Urging fellow voters not to enact law A because it might lead to law B doesn't respass on their proper freedom of action. But publicly condemning or socially pressuring people does interefere with their freedom of action (again, we're not talking about the proper rules for legal coercion, but the proper rules for social pressure). And while such condemnation and pressure may still be justified if the people are indeed misbehaving, my sense is that it's not justified when the statements being condemned are fine by themselves, even if tolerating them may risk a "slippery slope."

     We see (or should see) a version of this in science: Assume, as some people suggest, researching biological differences between races or sexes -- and researching them well, in a way that's likely to yield accurate results -- may lead other people to start arguing in favor of immoral race or sex discrimination. I believe that this would not be reason enough to condemn the first set of researchers, because such condemnation would interfere with their academic freedom (again, freedom to investigate without social censure, a freedom that should itself be enforced by ethical, professional, and good manners norms, and not just freedom to investigate without legal punishment, a freedom that should itself be enforced by legal rules).

     Noticing the slippery slope risk may be useful, because it may help forestall the slippage. But the risk shouldn't justify condemning otherwise proper research. The analogy to lay commentary such as Dusty Baker's is imperfect; perhaps, one might argue, scientific research should be more protected against social condemnation because it's more socially valuable, or perhaps there's less risk of a slippery slope because the scientific community may be better able to distinguish sound claims of race/sex difference from unsound than the lay community. Still, I think the analogy is helpful.

     In any case, those are some tentative thoughts on the matter.


One of my favorite items about law: I was just reminded of this (I include it as an epigraph in my First Amendment textbook, and I had the file open just now), and thought it was worth blogging. It's from a lecture to Harvard University undergraduates, delivered on Feb. 17, 1886 by then Oliver Wendell Holmes, Jr., who was then on the Massachusetts Supreme Judicial Court but eventually served with great distinction on the U.S. Supreme Court:
And now, perhaps, I ought to have done. But I know that some spirit of fire will feel that his main question has not been answered.

He will ask, What is all this to my soul? . . . What have you said to show that I can reach my own spiritual possibilities through such a door as this? How can the laborious study of a dry and technical system, the greedy watch for clients and practice of shopkeepers' arts, the mannerless conflicts over often sordid interests, make out a life?

Gentlemen, I admit at once that these questions are not futile, that they may prove unanswerable, that they have often seemed to me unanswerable. And yet I believe there is an answer. They are the same questions that meet you in any form of practical life. If a man has the soul of Sancho Panza, the world to him will be Sancho Panza’s world; but if he has the soul of an idealist, he will make -- I do not say find -- his world ideal.

Of course, the law is not the place for the artist or poet. The law is the calling of thinkers. But to those who believe with me that not the least godlike of man’s activities is the large survey of causes, that to know is not less than to feel, I say -- and I say no longer with any doubt -- that a man may live greatly in the law as well as elsewhere; that there as well as elsewhere his thought may find its unity in an infinite perspective; that there as well as elsewhere he may wreak himself upon life, may drink the bitter cup of heroism, may wear his heart out after the unattaina le.


Dusty Baker and Mississippi Secession Declaration: Several people have linked two of my posts from yesterday, and pointed out that Dusty Baker's claim --
"Personally, I like to play in the heat," he said. "It's easier for me. It's easier for most Latin guys and easier for most minority people.

"You don't find too many brothers in New Hampshire and Maine and the Upper Peninsula of Michigan, right? We were brought over here for the heat, right? Isn't that history? Weren't we brought over because we could take the heat?

"Your skin color is more conducive to the heat than it is to the light-skinned people, right? You don't see brothers running around burnt and stuff . . . running around with white stuff on their ears and nose and stuff."
echoes the claim of the Mississippi Secession Declaration:
"Our position is thoroughly identified with the institution of slavery -- the greatest material interest of the world. Its labor supplies the product which constitutes by far the largest and most important portions of commerce of the earth. These products are peculiar to the climate verging on the tropical regions, and by an imperious law of nature, none but the black race can bear exposure to the tropical sun. These products have become necessities of the world, and a blow at slavery is a blow at commerce and civilization. That blow has been long aimed at the institution, and was at the point of reaching its consummation. There was no choice left us but submission to the mandates of abolition, or a dissolution of the Union, whose principles had been subverted to work out our ruin. . . ."
I suppose that's right, but I don't see much significance in that. The problem with the Mississippi Secession Declaration isn't its assertion about the general differences between black and white heat / sunlight sensitivity -- it's the Declaration's use of the differences to justify slavery. Even a stopped clock is r ght twice a day; perhaps the Mississippians were factually correct, setting aside their hyperbole, about the heat question (I've gotten some messages both ways on that factual issue, incidentally, but nothing especially probative). They were certainly factually correct, again setting aside the hyperbole, if "exposure to the tropical sun" means resistance to sunburn. Doesn't make them morally right, or Dusty Baker wrong.


Zen Judaism: Author unknown. (UPDATE: The source has been identified -- it's David M. Bader's book ZEN JUDAISM: For You, a Little Enlightenment. The book is available on amazon, but the amazon page is also linked to at Bader's site. Thanks to readers John Mastandrea and Ted Stern for the pointer.)
Let your mind be as a floating cloud. Let your stillness be as the wooded glen. And sit up straight. You'll never meet the Buddha with posture like that.

There is no escaping karma. In a previous life, you never called, you never wrote, you never visited. And whose fault was that?

The Tao has no expectations. The Tao demands nothing of others. The Tao does not speak. The Tao does not blame. The Tao does not take sides. The Tao is not Jewish.

Drink tea and nourish life. With the first sip, joy. With the second, satisfaction. With the third, Danish.

The Buddha taught that one should practice loving kindness to all sentient beings. Still, would it kill you to find a nice sentient being who happens to be Jewish?

Zen is not easy. It takes effort to attain nothingness. And then what do you have? Bupkes.


Racial double standards and group guilt: A reader writes:
[There is an unspoken] structure of human etiquette that means that white people have to be much more careful about what they say about other races than non-whites (what ever happened to people of color? That was much easier).

I think the reason for this is history. There is a huge history of white oppresion. A white person talking about the superior ability of black people to work in the sun just brings up a lot of bad memories. In essence -- and I'm not saying that it's fair -- white people in this country have, as a race, commited an offence against just about every other race, and now white people, as a race, having admitted that they were wrong feel the pressure to be extra sensitive around people of other colors. It's some kind of built-in rule of etiquette. It's like if you unfairly blew up at your wife, once you apologized you are going to be extra careful about blowing up again. Similarly, Germans can't really say much negative about Jews. It just doesn't feel right.
     I agree that the reader's point in some measure does describe social reality in America today; and I think I even understand the emotions behind it. But I think that this approach does far more harm than good, and needs to be thoroughly abandoned. This is true for two reasons.

     First, racial double standards in what people may say are very costly. (They may be slightly less costly as to humor, where there might be something to the notion that people are given more slack when they make jokes about their own group; let me set that aside for now, though I agree that there are serious costs to such double standards there, too.) They are costly because they preclude honest discussion of serious issues, which go far beyond heat tolerance -- issues related to race relations, crime, welfare, social security, and a vast range of other ause it's rude," that spreads to many other Xs.

     Second, and most important, I'm white, and I haven't admitted that I was wrong, and I have no intention of doing so. I haven't admitted that I was wrong for owning slaves; I haven't admitted that I was wrong for supporting Jim Crow; I haven't admitted that I was wrong for not hiring blacks. I haven't admitted it because I've never done it, and until I personally do it, I won't take any blame for it.

     It's true that some other people that happened to share a skin color with me have done so. What's my moral responsibility for this? Precisely the same moral responsibility as the moral responsibility of a law-abiding black man for the crimes committed by blacks. Precisely the same moral responsibility as my moral responsibility, as a Jew, for having caused or allowed the death of Jesus (hypothesize for a moment that Jesus's death was indeed caused or allowed by the Je s). Precisely the same moral responsibility as the moral responsibility of Japanese-Americans -- or for that matter, of Japanese who were two years old at the time of Pearl Harbor -- for the Rape of Nanking or any other Japanese atrocities. Which, of course, is to say absolutely zero.

     The concept of racial or ethnic guilt, by which "[white/black/Japanese/Jewish] people as a race" must "admit[] that they were wrong" for the misconduct of people who happen to share the same skin color or ancestry, is both a moral error and a practical disaster. It's long past time that it died out; but while it endures, it seems to me that those tarred with alleged racial guilt must vociferously reject the charge, and point out the charge's deep moral bankruptcy.

     At least some other justifications for race-consciousness are somewhat more logical -- for instance, I understand the continuing suspicion on the part of many blacks that a disproportionate number of whites are racists, because there are indeed many whites who are racist. I don't think we should organize our society around this suspicion, just as we shouldn't organize it around the continuing suspicion on the part of many whites that a disproportionate number of blacks are criminals, or the continuing suspicion on the part of various other ethnic groups that still other ethnic groups retain their traditional hatreds. But the notion of group guilt -- of people being responsible for others simply because they share the same skin color, which is what I saw in the reader's message -- is simply a mistake.

     Finally, as to the Germans, I can't stand it when people wave the bloody shirt at today's Germans because of the atrocities perpetrated by other Germans 60 years ago, Germans who are now mostly dead. I'm told that there's an unfortunate amount of anti-Semitism in Germany today, and German anti-Semites should be punished. But Germans should be just as fre to express views about Israel, Judaism, or Jews as anyone else. I suspect that telling Germans that they can't do so will only strengthen any modern German anti-Semitic movement. But independent of the pragmatic considerations, a German today has the very same right to discuss the very same issues as anyone else, and the sins of his grandfather (or of his neighbor's grandfather) have no moral effect on that.


Anti-Jeffersonian South: While we're on the subject of the anti-liberarian antebellum South, it is worth noting that as the southern states seceded they explicitly disavowed the Declaration of Independence. Of course, this has something to do with slavery (as did most of the pernicious laws Clayton Cramer details here) as the secessionists recognized there was a slight contradiction between "all men are created equal" and a right to revolution on the one hand, and the peculiar institution on the other.

Tuesday, July 08, 2003


The Non-Libertarian Antebellum South: Clayton Cramer has some interesting points on the subject, points that go beyond just slavery. This, by the way, was as I understand it a constant refrain of anti-slavery forces: To defend its system of repressing blacks, the Slavocracy had to also end up repressing whites. I have read about this specifically in the context of suppression of free speech; Michael Kent Curtis, a law professor at Wake Forest, has written some excellent stuff on the subject in recent years, including a book, "The People's Darling Privilege" (the title contains the quotes), on free speech controversies in the antebellum era and during the Civil War. But Clayton points out this was true as to other rights as well. Far less significant, in my view (and, I suspect, in Clayton's), than the nightmarish repression of the liberty of blacks -- but worth keeping in mind in any event.


A bit more about the Dusty Baker matter: A comment by reader JT on Wizbang! reminded me of a twist on the manners issue involved here:
Dusty meant no harm by his comments, but if Joe Torre off-handedly remarked about white players being "more coachable", or playing "smarter baseball", I am certain the outcry from the various ethinic communties offended by such opinion would generate much more substantial -- and cause for removal or at least boycott -- in many individuals perceptions.
     Actually, I think there is an important difference here, though a subtle difference and one of degree, as many questions of manners are. As I've mentioned below, Dusty Baker's comments may be accurate, or they might not be; and they're also generalizations that may have only a weak correlation with people's actual attributes. That's not necessarily a problem: People sometimes make mistakes, and such mistakes, even about racial physical attributes, aren't cause for outrage (unless they seem so silly that they suggest that the person has a deeply misguided view of racial differences). And generalizations aren't necessarily that troublesome, if they don't form the basis for illegal activity. Blacks are generally less susceptible to sunburn and skin cancer than whites; Ashkenazi Jews are more susceptible to certain genetic diseases than other groups are; and so on. That's the way things are, and there should be no taboo against saying so.

     Things are properly different, as a matter of good manners, when the allegation is tied to something that people generally see as a character defect. Lack of intelligence falls into that category (maybe it shouldn't, but it generally does); so does uncoachability. When we suggest that people have such attributes, we are properly held to a higher standard of proof. We can see that even i we set aside race: "I'm pretty sure my acquaintance Joe Schmoe might be prone to heat exhaustion" is something that we can comfortably say on very little evidence. "I'm pretty sure my acquaintance Joe Schmoe isn't smart" is something that we would generally pause a little longer before saying -- especially if we're saying it in public.

     Moreover, when we suggest that people as a group have such attributes, those members who lack those attributes understandably bristle -- the generalization is felt as more of a personal attack. Again, I think we see this even outside the context of race. Generalizations about groups (fraternity members, people who engage in certain occupations, residents of a particular area) are, especially if they're accurate, quite acceptable if they relate to a relatively morally neutral property. But if they relate to a morally troublesome trait (stupidity, dishonesty, and so on), they cause more bristling, even if they are statistically well-supported, though not as much as when they're made about groups that have a more self-conscious identity (such as racial, ethnic, or religious groups).

     Now I might well have missed the mark in some of this -- as I've mentioned before, speculations about morals and ethics involve many more vague lines, subtle differences of degree , and unprovable propositions about human nature than even speculations about law do. But my sense is that we would and should have a different reaction if Baker's generalizations were about traits that seemed more like character defects and less like physical conditions.


Should foundations be forced to spend more? As you may know, the House is considering legislation that would exclude operating expenses from the five percent a year, from corpus, that foundations are forced to spend by law (it is more complicated than that, various rolling averages enter the picture, but basically the figure is five percent). This provision would make foundations spend more, is this a good idea?

This question is surprisingly difficult to answer. A few stabs at a first cut:

1. Simple models from capital theory -

Does the risk-adjusted, expected rate of return on assets exceed the social rate of time preference for foundation spending? Probably, equities pull in an average of five to seven percent a year, in real terms, the real rate of return on T-Bills is much lower, frequently about one percent. So why cash in when your rate of return exceeds your impatience? But this framework suggests that foundations should always accumulate funds, never spend them, foundations will be worth more and more over time. That can't be right.

2. Macroeconomic growth theory -

If the rate of growth of the economy exceeds the real interest rate, the present value of future wealth is massive, possibly infinite. Foundations can spend more and save less, at literally zero cost if the time horizon is infinite. After all, there is always more wealth just around the corner. We should run huge deficits too, so Bush might like this one. Of course you've noticed by now that it contradicts #1. And should we really believe that such an intertemporal free lunch lies right before our eyes?

3. Agency theory, or don't trust them -

Perhaps the people who run foundations spend all the money on plush carpets, unconstrained by market forces. If we make them spend down their corpus, they will be forced back into the market for funds, which will improve accountability and improve the quality of their giving. Starve them of cash, and make them compete. Make them spend more.

4. Trust them

Foundations are remarkably wise and far-sighted. Why constraint such smart people? They know best how to spend or save the money. And it is best if they are insulated from marketplace constraints, that is the whole point of the non-profit sector. Of course this contradicts #3, directly above.

How to decide?

Note that before the five percent requirement existed, many foundations were mere storehouses/tax shelters for private wealth. Many spent nothing at all each year. Is this so terrible? Isn't it just like burning the money? Is that what a wise philanthropist should do, simply burn his or her money, and make the money of others worth that much more? Why should a philanthropist think he can spend money more effectively than other people can? Is the philanthropist simply finding a socially acceptable way of being a paternalist? Should he get out the matches instead?


Another perspective on day games. Eugene’s musings below about the latest indiscretions from a Chicago Cubs’ manager remind me of the somewhat more amusing indiscretions committed 20 years ago by the team’s then-manager, Lee Elia. The season had started poorly, and the manager was, shall we say, displeased with the fans who came to Wrigley Field to watch day games and then booed the home team. You can hear him articulate his disappointment here (salty language advisory).


s sociologist who served on the faculty at the University of California-Berkeley for 30 years, called the comments "unfortunate and not totally informed" but said they weren't malicious....

"If a white manager made those statements, there's no question he would find himself in a group that includes Al Campanis and Jimmy 'The Greek' Snyder," Edwards said.
Baker, one of four African-Americans among seven minority managers in the major leagues, agrees. "But as a b ack manager, I can say things about blacks that a white manager can't say, and whites can say things about whites that blacks can't say."

Now, the problem I have with this is that Baker is not saying things only about blacks. He's making a comparative statement about different races -- blacks and Latinos are better at tolerating the heat than whites. There is no difference between the content of what Baker said and the content of what CBS Sports analyst Jimmy "The Greek" Snyder said fifteen years ago when he argued that blacks were better athletes because of the way they were bred as slaves. Snyder recanted; Baker is standing firm.

Should Baker apologize for making such uninformed and stereotypical remarks? Yes, he should.     So here's my first question: Is Baker correct that blacks and Hispanics are less bothered by the heat than whites are? I have absolutely no knowledge on the matter, but I'm not willing to just dismiss this out of hand as inaccurate. Blacks and dark-skinned Hispanics are obviously physically different (on average, of course) from whites in some ways; one obvious way -- pigmentation, and the resulting decrease in the risk of sunburn and skin cancer -- does have to do with survival and comfort in the places where their ancestors had lived for much of the ancestors' history. I have heard it said that Eskimos tend to have physical characteristics that make it easier for them to stand the cold. What are the facts here? If someone has some expertise on the subject, please let me know.

     If Baker is correct, then it seems to me hard to fault him for his comments. They may be "stereotypical" in that they deal with generalities that aren't necessarily correct for everyone; but they don't sound mean-spirited or insulting, and Baker gave no indication that he was going to act illegally based on those stereotypes (e.g., fire all white players and replace them with black ones).

  & bsp;  Now I realize that white speakers might have been pilloried for such comments -- but I think that would be too bad, if the comments are said in this sort of context. And the possibility that others may have been unfairly attacked for such remarks doesn't make it fair to attack Baker. (I don't much like his defense that he's black and should be allowed to say it about other blacks; but I don't think he needs this defense.)

     Can someone fill me in on the facts that I mention earlier in the post? Or are there some other issues that I'm missing here? I reserve the right to change my views if Baker's factual claim ends up being wrong (though even if it is wrong, it seems like not an awful honest mistake for him to have made), or if someone can persuade me that his claim is improper even if it's factually accurate. At this point, though, I don't really see why exactly he needs to apologize.


Patriot Act errors: From time to time, I blog about some article or commentary that misdescribes the effects of the USA Patriot Act (as I did earlier today). Correcting such errors is a surprisingly easy game to play: the majority of the descriptions of the Patriot Act that I come across in major newspapers, magazines, or online have significant errors. Pretty much all of the errors cut the same way; they overrepresent the effect of the Patriot Act, making its provisions seem much more significant than they actually are.

     This isn't a recent development. Major newspapers started warning as early as September 12, 2001, that the government was likely to introduce draconian legislation that would curtail our civil liberties. By the time DOJ introduced its anti-terrorism proposal a week later, many in the media had warned that Big Brother was coming. I wonder if some media sources took a shortcut -- rather than working through the hundreds of pages of dense legislation, they simply assumed that the DOJ proposal (later passed in modified form as the Patriot Act) was the dramatic legislation they expected.

     Whatever the explanation, it seems to me that the Patriot Act that is actually on the books is often rather far from the law that you read about in the press. Nor is this an eccentric view, I think. I wrote a law review article making this point about a few aspects of the Act not long ago; it's called Internet Surveillance Law After the USA Patriot Act: The Big Brother That Isn't. I have had a good number of substantive and engaging discussions about this article with hardcore civil libertarians, both in private and in public presentations, but as best I can recall I've yet to find someone who read the article and said that the fundamentally disagreed with what I said. Some have argued that I am right on the specifics but that when considered as as a whole the Patriot Act significantly shifts the privacy/security balance. This may very well be correct, but seems quite different from what the press has reported. Put another way, if I can make a claim as to what Patriot Act "experts" tend to think about the Act, I think it's fair to say that there is a consensus that the law doesn't do most of what people think it does. Of course, that doesn't mean that the Patriot Act is necessarily good or bad, or that specific parts shouldn't be amended; only that its impact is smaller than most people think.

     Here's the interesting question. Assuming I'm right that the effect of the Patriot Act is considerably smaller than what most people think, is this misunderstanding a good thing or a bad thing? My instinct is that it's a bad thing, because our democratic system depends heavily on accurate feedback from the press on issues like this. People want laws that strike a particular balance between privacy and security -- whatever that balance is for particular people -- and it doesn't help if the press is telling people that a particular balance has been struck by their current leaders when it fact a significantly different balance has been reached. The press provides the main feedback loop here that drives the democratic process, and they aren't doing a very good job in this area.

     There is a positive side, however. For example, the misunderstandings may add to the deterrent effect of the law: after all, the bad guys presumably read the same papers as the rest of us. The misunderstanding is also a good thing if you believe that pre-Patriot Act law already struck a balance that favored security too much and privacy not enough; widespread beliefs that the Patriot Act is vast and sweeping make it easier to blunt calls for additional steps like the so-called Patriot Act II ( hich more or less would do what most people thought the first Patriot Act did, at least in terms of scale and siginificance).

     In the end, my sense is that the misunderstandings probably do more harm than good, but like so much else in the war on terrorism, it's not entirely clear.


Slavocracy: A reader writes:
[In your] post on Buchanan and slavery[,] you refer to the south as a "Slavocracy." Wouldn't this mean a land ruled by slaves, just as a oligarchy is a land ruled by the few and a democracy is a land ruled by the people?
One would think so, just as one would think that a womanizer is a surgeon who performs male-to-female sex-change operations. But the life of the language has not been logic, but experience (apologies to Oliver Wendell Holmes, to forestall further plagiarism allegations), and the term "slavocracy" has meant more or less "persons or interest formerly representing slavery politically, or wielding political power for the preservation or advancement of slavery" since (I believe) the mid-1800s.


Plagiarism Scandal Rocks the Volokh Conspiracy! My friend, colleague, and former criminal procedure teacher David Dolinko gently pointed out today that about a year and a half before I printed my Lost Maxims of Equity, he had circulated to the UCLA Law faculty distribution list the following message, which I reproduce alongside mine:

David Dolinko's messageMy Lost Maxims of Equity
(1) Equity abhors a noodge.
(2) He who comes into equity must come with clean underwear.
(3) Money talks.
(4) Equity delights in doing justice, but loves a good joke.
(5) Equity pierces through substance to form.
(6) Equity builds strong bodies twelve ways.
(7) The square of the hypotenuse is equal to the sum of the squares of the other sides.
(8) He who seeks equity is asking for trouble.
(9) Equity makes the world go round.
(10) Where there are equal equities, the baby should be cut in half.
Equity abhors a nudnik.
Equity delights in a good practical joke.
He who seeks equity must do so with full pockets.
Equity is not for the squeamish.
Equity, schmequity.
Equity can be grumpy before its first cup of coffee.
Equity is crunchy on the outside, soft and chewy on the inside.
Equity is a mean drunk.
Equity, like all of us, prefers the rich and good-looking.

I had completely forgotten about David's list [Yeah, right, tell that to George Harrison-ed. Now you're making me plagiarize Mickey Kaus!], but on reflection I realize that I must have been subconsciously influenced by it -- my first two items sure do eem pretty similar to David's #2 and #4. So I wanted to apologize, give David full credit, and make his own list of maxims available for your lawyerly delectation.


Why is it OK for MSNBC to drop Savage? Some people suggest that my endorsement of MSNBC's firing Savage is inconsistent with my questioning (in the wake of the Dixie Chicks controversy, though the question is much broader than that) the propriety -- not the legality, but the ethical propriety -- of some such "private speech restrictions." See this post and some others that came later that week, and which are thus above it on the archives page.

     As I mentioned in the earlier posts, I think the ethical question is much more complex than the legal question. I'm not sure what the right answer is; I suspect, though, that it requires distinctions that we wouldn't want courts to draw but that we must ourselves draw in our daily lives. Thus, as I suggested,
If we hear that a friend refuses to have dinner with people who are Nazis or Communists, we'd probably think he's acting properly; we might think the same if he refuses to do business with them, or perhaps even if he refuses to hire them (though I suspect that some people may have a different view as to the latter). If we hear that he refuses to have dinner with people who are Republicans, or who were for the war -- or a different friend refuses to have dinner with Democrats or anti-war people -- we'd probably think he's intolerant, and we'd think that even more if he refused to do business with such people or hire them. We might conclude that he has the legal right to act this way, but we'd think that this isn't how open-minded, decent people should generally act. And we'd shudder at the thought of a society where more people acted this way, partly because life in this society would be too combative, partly because people in this society would largely lose the benefits that come from hearing the views of friends who disagree with them, and partly because such a society would pre them seem to be so rude and vitriolic that MSNBC was right to stop providing him a forum. Look, the guy person lly attacked a caller and wished that he would die of AIDS. This isn't just a calm and rational -- or even a conventionally impassioned -- criticism of the pro-gay-rights movement. This is speech that is far outside halfway decent manners and morals.

     Naturally, this is a matter of degree, and I don't think courts should draw such distinctions for legal purposes. But our own ethical judgments about whom we associate with, and whom we allow to use our property, must necessarily draw such distinctions. Democrats and Republicans yes; Communists and Nazis no; people who support or oppose gay rights yes; people who do so by telling their opponents that they wish the opponents would die a painful death no. Again, I suspect that this influences how we decide on our dinner guest lists; it would certainly influence how I decide which panelists to have at a conference that I'm putting together; and I think it should go into how MSNBC influences who should use its valuable property. And that's why I think that firing Michael Savage was a very easy ethical call, while organizing a boycott of the Dixie Chicks was a tougher ethical call (though it may well be that on balance such boycott organizing was still ethically proper.)


TVA v. EPA: I am a bit surprised there has not been more blawg commentary on the 11th Circuit's most recent decision in TVA v. Whitman, and it's predecessor. These decisions held, respectively, that part of the Clean Air Act (CAA) is unconstitutional and that the federal government may sue itself (or, more properly, that one part of the federal government may sue another). Perhaps it's because the greenblogger is on an indefinite hiatus, or perhaps it is because few Ad-law geeks (myself included) bother to blog. In any event, I posted on this litigation before, here.


BALANCE AT ACS: Since Orin's post on the ideological composition of the announced speakers at the American Constitution Society's first annual national convention, ACS has added Northwestern law professor Steve Calabresi and Justice Department official Dan Collins to the lineup, among others. These additions raise the number of identifiably right-of-center speakers on the program to five -- out of approximately 100 listed in the program. This is certainly less balance than one finds at a Federalist Society conference. I wonder, however, does five percent constitutes a "critical mass" of an under-represented perspective?


Peace and the Palestinians Two weeks ago I asked whether we could explain the Israeli-Palestinian conflict, in rational choice terms, in ten words or less. After all, why don't the parties just trade their way to a solution, as the Coase theorem might suggest? I have been allowed ten pages. My article, intended for the economics journal Public Choice, is now on my home page (click on Tyler, in the list of names to the left, to get there). Comments and criticism always welcome.


Standing in "the Corner" You can check out my first post to NRO's The Corner as a summer guest here. I am touting Victor Davis Hanson's superb book, "Culture and Carnage: Landmark Battles in the Rise of Western Power."


A "modest" proposal that doesn't seem very modest: One of the odd byproducts of the public misunderstanding about the Patriot Act is that people can be against the Patriot Act because they think it is too extreme, and then can propose what they see as moderate steps that seem more draconian than the provisions of the Patriot Act.

     Take this Tech Central Station column by Stephen W. Stanton. Stanton doesn't like the Patriot Act because it "violates freedoms we hold dear." He focuses on wiretapping:
  For years, we forced the police to obtain a warrant to tap a phone or intercept a private message. Americans took this precaution because we did not want to give the government carte blanche to spy on us. Thousands of criminals have been set free over the past few decades because authorities did not have proper authorization to conduct their searches. Letting some guilty dirtbags out of jail on technicalities was a price were willing to pay as a society to protect our privacy, and indeed our freedom.
     The Patriot Act ended this, Stanton suggests, and that wrongly violates our freedoms. The only trouble is, Stanton has the law wrong: the Patriot Act hardly changed the Wiretap Act at all, and the law still requires the same "super warrant" that it has required in the past to tap a phone (the law since 1968) or intercept a private e-mail message (the law since 1986). So, to use Stanton's line, "[l]etting some guilty dirtbags out of jail on technicalities" is still a price we are willing to pay as a society "to protect our privacy, and indeed our freedom."

     Stanton suggests that rather than tap the phones of law-abiding people, the government should go after the other guys: in particular, he recommends that the govern ent should create a database containing the fingerprints and facial recognition IDs of every person ever arrested and every person who enters the United States on a visa, and should check this database everytime someone new is arrested (and perhaps when someone new enters the U.S. on a visa). Stanton isn't very specific on the proposal so it's not entirely clear what he has in mind, but here is what he writes:
  Message to legislators and law enforcement: Take fingerprinting seriously. Actually run each set of fingerprints against a national database after each arrest. Do the same with facial recognition software. You will put far more career criminals behind bars and keep the streets safer. When people enter this country on a visa, add their faces and fingerprints to the database. If we do a good job of keeping track of the bad guys and aliens, we will not have to violate the rights of law-abiding citizens.
    Stanton suggests that this is a "simple, elegant, legal, and largely uncontroversial measure," but it sounds pretty invasive to me. What Stanton calls "keeping track of the bad guys" seems like a major surveillance scheme. (The closest that the Patriot Act comes to this seems to be Section 405; this section authorizes $2 million for the Attorney General to write a report for Congress on the feasibility of improving fingerprinting databases that can identify a person who holds a foreign passport or a visa and is wanted in connection with a criminal investigation in the United States.)

    What explains Stanton's odd combination of fear of wiretapping and enthusiasm for fingerprinting and facial recognition databases? Stanton suggests the answer in his last paragraph, after he has explained the story of a person he calls "Bob," a junkie who has used several different aliases in an ongoing effort to avoid serious prison time for his offenses.
  Instead of tapping my phone and reading my emails, go make ure the Bobs of the world are properly identified and locked up securely.
I get it: don't mess with me, mess with the other guy.


Reasonable arguments and unreasonable ones about the South and the North: The author of Southern Appeal blogs his disagreement with some aspects of my Buchanan post, and e-mails me the following:
I did, however, find your characterization of the Civil War South as evil -- as opposed to simply the institution of slavery, for which both North and South were responsible -- unfortunate. That may not have been your intent, but that how I interpreted the post. In this regard, I have responded to your post (in a manner which I hope you will consider to be both civil and respectful) and asked you (and others) tone down the South bashing. In making this request, I am not suggesting that the South was perfect (far from it). Nor I am in any way attempting to justify the unquestionably evil and horrendous institution of slavery. What I am asking is that non-Southern conservatives of your stature and intellect not lend your prestige to simplistic historical views (i.e., North good, South evil). History is more complicated than that, and the South's struggle for independence was clearly about more than just slavery. . . .
     I don't think I was characterizing the Civil War South as evil, though it was fighting in large part to maintain a tremendous evil. My point was simple: Buchanan was faulting "Lincoln's War" against "free and independent states," and praising a bygone era of the "sovereignty [of] the people" and a "constitutional republic." And he said not a word about the fact that the Southern states weren't "free" in the nonredundant sense of the word (i.e., more than just "independent of other states"). Not a word about the fact that the Southern states didn't really protect the sovereignty of the people, but ra her a sovereignty of white people, which included the sovereign power to oppress black people. Nor any words about the fact that the Southern states continued to try to exercise this power after the Civil War, which actually helped lead, at least for a while, to the increase in "Congressional supremacy."

     What does one make of this silence? The logical implication, it seems to me, is that the unfreedom of the slaves, and their inability to participate in the sovereignty, just don't matter in Buchanan's scheme of things. Either Buchanan doesn't even think about them -- the oppression of the Southern whites is present in his mind, but the oppression of the Southern blacks aren't. Or he thinks about them, but thinks that the oppression of the Southern whites was so clearly greater than the oppression of the Southern blacks that the latter isn't even worth mentioning. Or he recognizes that the war brought great increases in freedom as well as, in his view, great diminution in freedom, but is just not willing to mention the latter because they don't fit his argument.

     Whatever is in his mind, his argument works only by utterly ignoring -- not acknowledging, confronting, and balancing, but utterly ignoring -- slavery. That is not a respectable or respectworthy argument. And conservatives must forcefully condemn it, or else be plausibly accused of themselves caring more about oppression of the mostly white majority (the chief examples being the taking down of the Ten Commandments, the legalization of gay marriage, or the constitutional protection of flagburning, which are the main focuses of Buchanan's criticism) than about oppression of blacks.

     I don't object to criticisms of Lincoln's actions during the war -- there was a good deal to criticize. I don't object to arguments that the Constitution should have been interpreted as allowing secession; I haven't studied this, but they migh long aimed at the institution, and was at the point of reaching its consummation. There was no choice left us but submission to the mandates of abol tion, or a dissolution of the Union, whose principles had been subverted to work out our ruin. . . ."
The Mississippi leaders' words, not mine. I'm just saying that people should remember this when they cast the South-North conflict as Southern freedom and independence against Northern oppression.


Travel: I might have time to blog once or twice again before I leave, but then again I might not, so-- on Thursday I'm off to Malawi for two weeks. (Reading material, since that appears to be the new bloggerly thing to share prior to travelling: The Name of the Rose, Anil's Ghost , Bel Canto, probably more...) E-mail and blogger access are expected to be nonexistent during that time.


Campaign Finance Amicus Brief: I just finished this amicus brief to the Supreme Court for the Cato Institute and the Institute for Justice in McConnell v. FEC. It calls for Buckley v. Valeo to be overruled and replaced with a more consistently speech-protective regime. Somebody had to say it.


More on Lawrence v. Texas I have an essay on Lawrence v. Texas due out on National Review Online sometime this week. I will link to it when it appears. In the meantime here is a typically thoughtful analysis by Larry Solum over on Legal Theory Blog of what the Court might mean by "legitimate state interest." Click to it here. It is truly amazing what is now available on the web.


Auditions, anyone? Not that there’s any chance it’s going to happen, but I wish the Republican party would start looking for a different candidate than Bush for next year. I realize Bush can be advertised as a “war president” who is winning. I realize that for a number of years there were Democrats as well as Republicans who said we should go to war with Iraq. I realize that the case for war may have been quite strong without the evidently false statements Bush made to support it. I realize Bush may well win in 2004, and that if he isn’t the nominee, a Democrat may win. But I do not think it is in the national interest to have a president whose credibility is as poor as Bush’s now has to be.

     Whether his credibility is becoming a problem domestically I do not know. There are plenty of people in this country who will continue to defend the Bush administration almost no matter what happens either because they find Bush personally appealing or because the importance of keeping the Democrats out is so great that they would rather excuse Bush and go on trusting him, more or less, content to call for the heads of whatever underlings were, ahem, “responsible” for any misinformation that was distributed. They feel that it beats the alternative. I understand why.

     Internationally, though, this will not wash. I am sure some countries will continue to provide us with ample respect and cooperation in any case because they regard it as so strongly in their interest to do so. But at the margin the cost in credibility will have to be high. I should think that most countries -- their people and their leaders -- will look back at the war on Iraq nd remember the incredulous indignation we heaped upon those who would not go along with us. Then they will look at what came out afterwards and conclude that we are clowns or worse. They will not focus on what we claimed that was true. They will focus on what we claimed that was false. This is natural.

     Let me put it this way: Imagine events occurring over the next five years that would make international respect and cooperation urgently valuable to us. It isn’t particularly difficult, is it? Now given the state of the record on Iraq, is George Bush the man you would want to send forward in those circumstances to make promises and representations abroad? True, any replacement might have similar troubles. Doubts about credibility affect this country’s reputation, not just the reputation of its figurehead. But I just do not see how Bush can now step onto the national stage, make representations on matters of security, and expect them to be taken entirely seriously. If I am right, that is a grave handicap for a president and the country to bear, and I would rather do without it.


The group blog I mentioned yesterday... is up and running: , in honor of Isaiah Berlin's favorite saying.

Monday, July 07, 2003


Interesting piece on recordings of poets reading poetry, in today's Slate.


Government Information Awareness: The Associated Press has a story about a new website, Government Information Awareness:
  Its creators hope it will become a Google of government, a massive Internet clearinghouse of information to help citizens track their leaders as effectively as their leaders track them.
  On Friday, Massachusetts Institute of Technology's Media Lab debuted a Web site called "Government Information Awareness," that aspires to be far more than just another, dime-a-dozen assemblage of government documents and resources.
  Instead, GIA hopes to create a self-sustaining community where, as occurs with popular Web sites eBay and Google, the users keep it running and credible.
  Its creators at Media Lab -- a research center whose eclectic projects bridge technology, the arts and media -- view the project as a way to pool the wisdom of government watchdogs and counter new government technologies that are consolidating information about citizens.
     This sounds like a great idea, but the more I think about it, the less I am sure just what it will add. (The article is short on the details of what you can learn from the site that you can't learn from a simple Google query.) Right now it seems that most of the interesting functions promised by the website are down, so we'll have to wait and see.


Petitions and counter-petitions: Craig Holman of Public Citizen posted the following to a discussion list that I'm on, and agreed to let me blog it. I'm not expert enough on the subject to be able to confirm or deny this point, but it seemed worth passing along:
[Another discussion list member] cites an article in today's Los Angeles Times that discusses the paid petition circulation process, especially as it relates to the current recall drive in California. The technique of hiring petition circulators to collect signatures for a "counter-petition" is highlighted as a means "just to serve a public relations purpose."

Public relations is not the primary purpose of hiring signature-gatherers for an "anti-petition drive" -- the purpose is to deplete the fixed pool of available circulators and to raise the cost of petition circulation.

This strategy to stifle a petitioon drive by hiring signature-gatherers to collect signatures for a meaningless counter-petition has been done twice before to my knowledge.

Below is a footnote I wrote on the strategy for the 1992 book, Democracy by Initiative:

"Competition for paid petition circulators has sometimes reached cutthroat proportions. Only a handful of professional petition circulation firms serve the California market. Given the need to employ professional circulation services to meet the state's high signature threshold, a new strategy has evolved to influence the state's political agenda. The strategy is simple: pay petition circulators not to collect signatures for an initiative proposal.

"This strategy was used unsuccessfully by the tobacco industry in its effort to prevent a tobacco tax initiative from qualifying for the 1988 general election ballot (Proposition 99). Opponents of the tobacco tax enlisted the professional services of Clint Reilly Associates (a campaign management firm) and American Petition Consultants (a signature-gathering firm) prior to the measure even qualifying for the ballot. At a cost of $112,139, plus an additional $38,250 in various professional expenses, American Petition Consultants hired an army of solicitors to collect signatures of those opposed to a possible tobacco tax measure. The petitions had no legal standing; they did not offer an initiative proposal and they were not designed to qualify an issue to the ballot. The signatures clearly were not used for fundraising purposes either; there was only one contribution to the opposition campaign given by an individual (the campaign was almost entirely funded by tobacco interests).

"What was accomplished by collecting signatures in opposition to the proposed tobacco tax was a depletion of signature gatherers available to help qualify the tax to the ballot. All signature-gathering firms tend to draw solicitors from the same limited supply of labor. Kimball Petition Management was already employing petition solicitors on behalf of five initiative proposals, and American Petition Consultants was attempting to qualify an additional five proposals for the state ballot. Employed by the tobacco industry to collect signatures against the proposed tobacco tax, American Petition Consultants was no longer available for hire by supporters of the tax.

"Supporters of the tobacco tax turned to the new firm of Masterton & Wright for assistance in collecting signatures. That firm had considerable difficulty in finding enough petition circulators for the tobacco tax initiative, partly because of the firm's inexperience and partly because of the strained market. Competition for petition circulators among the many initiative proposals made their services more expensive. Both Kimball Petition Management and American Petition Consultants paid their workers a higher rate than Masterton could afford, drawing solicitors away from the tobacco measure. To complicate matters further, many petition circulators were under the distinct impression that they would be blacklisted fr m work with American Petition Consultants if they solicited signatures for Proposition 99. Nevertheless, Masterton & Wright was able to muster an adequate petition drive that took the entire 150-day circulation period to qualify the measure to the state ballot.

"Attempting to 'buy up' the signature-gathering labor pool in order to prevent a measure from reaching the ballot has been a strategy used in local elections as well. The city of Los Angeles witnessed an initiative battle between a coalition of environmentalists and Occidental Petroleum Corporation over oil drilling on the coast of Pacific Palisades. A proposal by environmentalists to ban any oil drilling (Proposition O) on the coast was countered by an oil industry proposal to allow drilling but with certain restrictions and safeguards (Proposition P). Occidental Petroleum enlisted the signature-gathering services of both Kimball Petition Management and American Petition Consultants with the clear understanding that neither firm would assist the qualification efforts of the anti-oil drilling initiative. Unable to engineer a sufficient paid circulation drive, proponents of Proposition O had to resort to the expensive method of direct mail petition circulation -- a very uncommon means of signature gathering at the local level."


"The decision was an easy one": reports on MSNBC's firing of Michael Savage:
"His comments were extremely inappropriate and the decision was an easy one," MSNBC spokesman Jeremy Gaines said. . . .

Savage was taking viewer phone calls about airline horror stories, and a male caller began talking about smoking in the bathroom.

"Half an hour into the flight, I need to suggest that Don and Mike take your ..." the caller said, before he was cut off and his words became unintelligible.

"So you're one of those sodomists. Are you a sodomite?" Savage asked.

The caller replied: "Yes, I am."

"Oh, you're one of the sodomites," Savage said. "You should only get AIDS and die, you pig. How's that? Why don't you see if you can sue me, you pig. You got nothing better than to put me down, you piece of garbage. You have got nothing to do today, go eat a sausage and choke on it."

He asked for another phone caller who "didn't have a nice night in the bathhouse who's angry at me today."

These bums "mean nothing to me," he said. . . .
I haven't listened to Savage, but from what I hear this sort of trash was quite predictable. It's too bad MSNBC decided that it wanted to carry his show -- but better learn that lesson late than not at all. And, no, this isn't "censorship": Television networks, newspapers, magazines, and other privately owned communications media are fully entitled (both legally and morally) to refuse to carry this sort of vile abuse. I'm glad that MSNBC decided not to let Savage use its property any longer.


Charlotte police react to sexual autonomy decision: Duke law professor Chris Schroeder passed this along to a discussion list that I run for constitutional law professors, and agreed to let me blog it. If I recall correctly, North Carolina is one of the few states that has indeed recently been prosecuting consensual sodomy:
The following has just come to my attention. It is the guts of a memo just issued to the police force of Charlotte, NC, regarding the implications of Lawrence v. Texas for the enforcement of North Carolina's crimes against nature statute. The statute itself is delightfully brief: If any person shall commit the crime against nature, with mankind or beast, he shall be punished as a Class I felon.

Here is the excerpt from the memo issued by police headquarters to the police officers in Charlotte:
Lawrence] draws into question the constitutionality of N.C.G.S. §14-177, Crime Against Nature. Clearly, the holding in Lawrence prohibits charging two consenting adults who are engaging in a crime against nature within a private residence with the above charge. However, the case did not directly address the solicitation of a crime against nature (SOLCAN).

For the time being and until a court tells us otherwise, we are of the following opinion: 1.) a SOLCAN charge wherein a subject offers to commit a crime against nature for money in either a private or public place is a valid charge; 2.) a SOLCAN charge wherein the subject offers to commit a crime against nature for no money in public or at an unspecified location is a valid charge; and 3.) a SOLCAN charge wherein the subject offers to commit a crime against nature for no money or consideration at a private place is no longer a valid charge.

We have spoken with the D.A.’s office who has agreed to continue to accept these charges; however, in the event a judge dismisses these cases based on a different interpretation, we may have to disco tinue filing some or all SOLCAN charges.

Officers should still charge individuals with felony crime against nature if persons are observed engaging in anal or oral sex in a public place, such as a park or a restroom.


Ebay and law enforcement: American Digest complains about ebay's policy of giving information to the police without a court order:
Ebay's Number One Rent-A-Cop Joe Sullivan put police around the country on notice that Ebay won't ask them for anything as inconvenient as a court order when it comes to getting your personal information from the online leviathan. As reported in The Nation's recent article Buyer Beware, Sullivan announced:
If you are a law-enforcement officer, all you have to do is send us a fax with a request for information, and ask about the person behind the seller's identity number, and we will provide you with his name, address, sales history and other details -- all without having to produce a court order.
. . .
The post obviously disapproves of Ebay on this; but I wonder why exactly that should be so. If the police go to a store and say "Can you tell us who bought this item? We're investigating a crime, and this might be relevant," I imagine many store owners will say "Sure, officer -- we like to help the police." I think that's traditionally been seen as part of a citizen's moral duty: Not just to give the minimal legally required help to the police, with the maximal legally permissible obstruction, but to help wholeheartedly, at least until he sees that there's some serious abuse taking place.

     Sure, we can all imagine situations where the merchant should resist, for instance if the police are enforcing some law that is clearly immoral, or if the merchant knows that they're using improper tactics, or if the person being asked to help has a special duty of confidentiality to his clients -- for instance, if he's a lawyer or a psychiatrist. One can even extend the latter category to service providers, who may sometimes facilitate anonymous political advocacy, something that we might see as valuable enough that we should expect service providers to keep the subscribers' information as confidential as possible. (The Nation story points to the FBI trying to track down information on the purchase of some books by a Pakistani scientist; some argue that purchases of books should also be seen as confidential, but even if that's so -- and I'm not sure it is -- I suspect that this involves a small fraction of Ebay-police interactions.)

     But in most situations where Ebay is asked to provide information -- which I suspect involve alleged fraud, theft, forgery, or other criminality related to publicly conducted business transactions -- the laws are likely pretty just, and there is and should be no expectation of confidentiality on Ebay's part. Under these circumstances, a policy of helping the police enforce laws (mostly laws aimed at preventing fraud and protecting property rights) should, I think, be thought of as public-spiritedness.

     Now if you think that the police are evil, most laws that they enforce (and are likely to enforce against Ebay) are evil, or both, then I can see why you should protest Ebay -- just as you should protest any witness who willingly helps the police track down a suspect in a theft, fraud, or other case. But if you think (as, I suspect, most people think, and as I think) that it's pretty important that the laws be enforced, and that we're generally better off if the police get help from citizens rather than getting constant obstruction from citizens, then you should see such criticisms of Ebay as pretty misguided.


Washington Times misunderstands the Court's Nike decision: Reader Skip Oliva e-mailed me about a pretty wrongheaded Washington Times editorial:
Recent misjudgments in favor of affirmative action and sodomy overshadowed one issue on which the Supreme Court came down sensibly. Citing procedural problems, the court declined to hear a case brought against Nike by anti-corporate crusader Marc Kasky, who argued that conditions in Southeast Asian factories do not live up to Nike's propaganda. The activist was fishing for a ruling to state that Nike's corporate advertisements qualify as commercial speech rather than political or social commentary. Because the court has not applied strict First Amendment protection to commercial speech, Mr. Kasky was hoping Nike could be sued for false advertising and even subjected to injunctions against continued advertising. But it is Mr. Kasky -- not Nike -- who is full of nonsense.
The editorial goes on to condemn Kasky's substantive criticisms of Nike's practices, a matter that I'll set aside. But I don't get the editorial's praise of the Supreme Court's decision.

     Kasky got his "ruling" that Nike's defense of its practices "qualif[ies] as commercial speech rather than political or social commentary" -- he got it from the California Supreme Court, and now he's allowed to "sue[] for false advertising." Nike was asking the U.S. Supreme Court to reverse the California Supreme Court's decision; the U.S. Supreme Court refused, on procedural grounds. As I argue in this Wall Street Journal piece, there's reason to think that the U.S. Supreme Court will eventually decide in favor of business speakers on this question, and might even rehear this very case later in the process if Nike loses at trial and appeals again. But from Nike's perspective, the Court's refusal to consider the case is basically a loss, not a victory.

     (Also, if the Times is really on Nike's side, I don't see why they characterize Nike's speech as "commercial advertising" -- that's another way of saying that Nike's statements are commercial speech. Nike's position is that their statements, which are contained in letters to the editor, press releases, and [most controversially] letters to institutional buyers, are advocacy on economic policy questions, not commercial advertising.)


Horse quartet: OK, I don't know why this is amusing, but it is. Click on any combination. (Thanks to fellow lawprof Myron Moskovitz for the pointer.)


Correction I've already been told my summary of My Cousin Vinny is totally wrong.

Breaker Morant was another idea, though the feel of the movie is too ponderous for me to love it.


Law and cinema, what movie should I show my class? I am overwhelmed by the flood of suggestions, far more than I got for my earlier law and literature query (now what does that tell us?) My apologies for not being able to thank each and every one of you individually.

The most popular pick was Twelve Angry Men. The cast is great, but everything is so cued, signed, and anticipated that the movie makes me sick at times. Still, I will consider it.

Number two pick was Anatomy of a Murder, though it is too long for my purposes.

Here are my opinions on some other common picks:

The Sweet Hereafter - a very sad and beautiful film concerning tort law

The Caine Mutiny - hard to go wrong here, though perhaps too military

Inherit the Wind - haven't seen it

Judgment at Nuremberg - German judges on trial, great but long

The Trial, Orson Welles's adaptation of Kafka remains underrated

My Cousin Vinny - NJ mob stuff, I need to see this one

High Noon - certainly conceptual enough, and a perfect movie.

From the Hip - a silly comedy, has potential; I was surprised not more people mentioned Liar Liar

Rashomon - the Kurosawa classic on multiple perspectives, I might use this one.

A Man for all Seasons - Many of you love this one, but too stuffy for my taste.


ding this beyond a reasonable doubt? Finally, is it really right to outlaw behavior that millions of people perfectly properly engage in, and that in nearly all cases is entirely noncoercive, just to make it easier to prosecute the small fraction of incidents that are coercive?" Well, yes; outlawing consensual genital sex to make i easier to get rape convictions is a very bad idea. Why doesn't the same go for outlawing consensual oral or anal sex?

     Incidentally, the same argument is commonly made for rigid statutory rape laws (e.g., prohibitions on all sex with girls under the age of 18, which often apply even when the "rapist" is under 18 himself): Such laws, the claim goes, are rarely enforced when the sex is really consensual, but are a convenient backup to rape laws when the prosecutor thinks the sex wasn't consensual, but concludes that this wouldn't be easy to prove to a jury. This argument seems to me weak there, too, for the reasons I mention above -- but at least there are other arguments for such rigid statutory rape laws that make them more sound than laws that ban consensual adult sex. (I think that on balance such rigid statutory rape laws are still unsound, and should be replaced with rules that are more focused on the difference in ages; though such age-difference tests have their own problems, they are less constraining and less unrealistic than the rigid no-sex-with-under-18-year-olds laws.)


Pat Buchanan's Omissions: Here's the meat of Pat Buchanan's column on the Supreme Court, Congress, and the states:
[W]e no longer live in a constitutional republic.

In a brief brilliant essay, "The 'Happy Convention,'" William Quirk, author of "Judicial Dictatorship," describes how Americans now live under a "convention" that is a fraud upon the Constitution our forefathers crafted.

Our original Constitution divided the powers of the government and put restrictions on those powers, in a Bill of Rights, and in the retention by the states of much of their sovereign power.

Lincoln's War overthrew that Constitution. When 11 "free and independent states" sought peacefully to depart from the Union, they were dragged back in, by invasion and war. By 1884, Woodrow Wilson was writing in his "Congressional Government," "we are really living under a constitution essentially different from that which we have been so long worshiping as our own peculiar and incomparable possession." . . . "[T]he actual form of our present government is . . . a scheme of Congressional supremacy."

After World War II, that second Constitution gave way to a third, an unwritten, "Happy Convention," in Quirk's phrase. By the terms of that convention, Congress cedes its power over war, peace and foreign policy to the president, and its power to decide issues of race, gender, religion, culture and morality to the Supreme Court.

Why did Congress cede its powers? For the most basic of reasons: survival. Decisions on war, peace, race, religion, morality, culture and gender, divide us deeply and emotionally. These are issues where one vote could cost scores of congressmen their seats. Why not turn them over to justices, appointed for life, who never face the voters and who relish remaking our society according to their own vision and beliefs? . . .

Today, we read that George W. Bush and his advisers are terrified of having gay marriage become an issue in 2004, as they will have to oppose such marriages as immoral, in order to secure their political base, while the Big Media lashes them as bigots. . . .

The Bushites are delighted to have questions of race, religion and morality settled by courts. For when courts decide, politicians can throw up their hands and say, "We may not like it, but there is nothing we can do. The court has the final say."

But, as Quirk argues, the court does not, in the true Constitution, have the final say. As Jefferson refused to enforce the Alien and Sedition Acts, President Bush could refuse to take down the Ten Commandments from that Alabama court house, should the Supreme Court order him to do so.

In our written Constitution, the doctrine of judicial supremacy does not exist. Congress has the power to abolish all federal courts except the Supreme Court and to limit that court's jurisdiction to "cases affecting Ambassadors, other public Ministers, and Consuls, and those in which a State shall be a party." . . .

If Congress will not confront the Court, the people should confront the Congress. For our national sovereignty rests with the people, who took it away from King George and Parliament and lodged it in a written Constitution, not in this insiders deal by which we are ruled today.
Now Buchanan actually has two reasonable points here. The first is the rather commonplace observation -- but one that's to a large extent accurate, and worth making -- that indeed our constitution, in the sense of our actual governmental structure, is quite different from the one the Framing generation thought they were putting into place, partly because of constitutional amendment but partly because of some pretty creative reinterpretation by all three branches of the federal government. This is true both as to Congressional power, and as to the details of some rights provision, q ite likely including the Establishment Clause and the various provisions that may be said to secure unenumerated rights (the two items about which Buchanan objects specifically).

     The second observation is less commonly mentioned, but still probably true in considerable part: Many democratically elected and accountable legislators are often happy to leave certain decisions in the hands of democratically unaccountable judges, because this diminishes political risk for the legislators. Some Republican legislators, for instance, may be happy that abortion bans have been rendered unconstitutional, because this lets them appeal to pro-life voters ("I oppose abortion, and would ban it if I could") and at the same time to pro-choice voters ("I support all these other things that you support, and you don't have to worry about our disagreement on abortion, since the courts have taken that issue off the table"). Other Republicans, of course, are deeply unhappy about those court decisions, because they sincerely believe that abortion is murder, or strongly feel that the issue should be left to the voters' elected representatives. But quite a few may take the view that Buchanan describes, and that I describe earlier in this paragraph; so a coalition of people whose positions win in court (e.g., pro-choice legislators) and people whose positions lose, but who still gain politically (e.g., some legislators who don't want to want support both from pro-life and pro-choice voters) can help keep the courts powerful. (Mark Graber, a political science professor at the University of Maryland, has written about this general point.)

     But these two good points are overshadowed, I think, by two huge problems. The first is, of course, the casual sneer at Lincoln and defense of the Slave South, which is unfortunately common among some on the Right. Yes, I know that there are plausible legal arguments that the South was constitutionally entitled to secede; a d it is also true that the Amendments enacted following the Civil War did intentionally increase federal power at the expense of the states.

     The trouble is that if you just make these points when you're talking about "sovereignty rest[ing] with the people," and praising the glorious lost days of the past, you're omitting something pretty huge: The Southern states were not ruled by the people, and as a result neither was the nation. They were ruled by white people. (I set aside here the ineligibility of women to vote, for various reasons; the chief one is that such ineligibility was nearly universal throughout the world at the time, and certainly on both sides of the Civil War, and didn't really begin to diminish in a material way for several decades [race discrimination in voting was prohibited throughout the nation de jure, if not really de facto, by the Fifteenth Amendment in 1870; sex discrimination in voting only began to erode around then, and wasn't accomplished nationally until 1920]. I'm hesitant to fault people for falling into universal errors.) White people in the supposedly "free and independent states" -- "free," of course, only in the redundant sense of "independent," and not free in the sense of "securing freedom to their citizens" -- had a largely unlimited license to own, beat, rape, and, in smaller measure, kill black people. In the process of maintaining the Slavocracy, incidentally, the Southern governments also restricted the speech of white citizens, often prohibiting them from advocating for abolition of slavery; but that was naturally a tiny imposition compared to the evils perpetrated against slaves.

     And this omission is especially troubling in the context of Buchanan's specific argument. Buchanan isn't saying (explicitly or implicitly) "Yes, the Civil War freed the slaves, but it also dramatically reduced the liberty of all people by facilitating [list of huge encroachments on liberty by the fede al government]." I don't think such a case can be effectively made -- though I do think the federal government interfers with liberty in many ways, I think that slavery was such an awful crime against liberty that on balance the nation today is considerably more free than it was in 1860. (There are also other gains in liberty, of course, that help outweigh the various losses in liberty.)

     Rather, the specific horrors of federal power that he points to are . . . the possibility that the Supreme Court will require the legalization of gay marriage; the courts prohibiting government agencies from posting the Ten Commandments; and, in passing, the constitutional protection for flagburning. (Buchanan doesn't even explicitly mention abortion, the one thing that pro-life forces could consistently argue is the moral equivalent of slavery.) Arrayed against these costs is his omitted benefit of "Lincoln's War" -- the restoration (in some measure) of the liberty of millions of black Americans.

     Moreover, the little matter that Buchanan omits also undermines his praise of "the Constitution our forefathers crafted." That Constitution was a great document for its time; but it was not a great document for our time, precisely because its "retention by the states of much of their sovereign power" also left the states with the power to enslave a huge fraction of their population (which in turn kept the national election processes from being truly fair or representative of all Americans). It was not in that respect entirely a "noble charter," and it needed "overthr[o]w[ing]" at least in part. Fans of liberty and of democracy should praise those changes (even if they at the same time object that the changes may have, in their view, been accomplished with too much bloodshed or even too much procedural irregularity). They should acknowledge that while we should respect the Framers' handiwork, we should recognize its flaws (again, flaws that may ave been inevitable in 1787, but that are nonetheless real flaws). But all Buchanan provides is unconditional praise.

     Finally, Buchanan's lack of perspective about slavery is matched by his lack of perspective about modern times. He writes:
After World War II, that second Constitution gave way to a third, an unwritten, "Happy Convention," in Quirk's phrase. By the terms of that convention, Congress cedes its power over war, peace and foreign policy to the president, and its power to decide issues of race, gender, religion, culture and morality to the Supreme Court.
     Where does this leave the Civil Rights Act of 1964 (which prohibited private discrimination by "race, gender, [and] religion"? The Voting Rights Act? Title IX, which generally barred educational institutions from discriminating based on sex? These were much more important "deci[sions on] issues of race [and] gender" than were the Court's race and gender decisions (chiefly Brown v. Board of Education and the 1970s cases prohibiting governmental discrimination based on sex).

     Again, if you weigh them against all the Court's decisions on "race, gender, religion, culture and morality," you get vast real-world changes weighed against a few important real-world changes in the "race [and] gender" category and a bunch of relatively minor decisions in the "religion, culture and morality" category. Buchanan is entitled to rail about the Ten Commandments, gay marriage, and flagburning; even if I disagree with him on the policy questions and even the constitutional questions, I can see the merit in some of his criticisms of having these matters be decided by the Court. But there is no merit in his vast exaggeration of the importance of these issues. (The one conceivable exception to my argument is the development of abortion rights, which I recognize pro-life people understandably view as tremendously important. But Bu hanan doesn't mention abortion; and if this matter of life, death, and freedom qualifies as being fundamentally about "religion, culture and morality," then all Congressional decisions -- for instance, about the war on drugs, taxation, public health funding, and so on -- would also qualify as being about "religion, culture and morality," and Congressional influence in this field would again swamp the Court's influence.)

     A sense of perspective -- an ability to recognize the true magnitude of the harms against which you rail, and to compare it sensibly to other matters, especially the countervailing benefits that have come about together with these harms -- is intellectually and practically important. When you're making moral arguments, it's also morally necessary. An argument that complains about how Congress has turned over to the Court its power on certain matters, while ignoring the vast range of Congressional decisions on those very matters that is much more important than the Court's decisions, is a factually unsound argument. And an argument that attacks Lincoln and worships the original Constitutional framework without even mentioning slavery is a morally unsound one.


Blog media consolidation It looks like lots of the scholar-bloggers at the top of my daily reading list (Kieran Healy, Chris Bertram, the Farrells, and Brian Weatherson) are getting together for what promises to be a great group-blog-- differing from the Volokh Conspiracy in both political leaning and in disciplines represented. I'm looking forward to its debut. One of the blogmembers let the name slip, so I've peeked at the (good-looking, MT-based) site, but I won't post a link until they make it official. Keep your eye out for it...

Sunday, July 06, 2003


Bogus Patriot Act coverage?: Eric Muller is on the case over at Is That Legal? in response to this article in his local newspaper. Of course, the fact that this particular article doesn't seem to involve a real abuse doesn't mean that there aren't real abuses out there. But on the other hand, the fact that there may be real abuses out there doesn't mean that we should falsify some in the meantime.

     UPDATE: A reader writes to note that the piece mentioned above "appears to be an op-ed piece in the 'Village Voices' section of the paper. It was apparently written by a contributor not on staff (if the staff member names listed on the paper's web site are correct)." That's right, I think: the article is not a news report or a regular op-ed, but rather a guest column.

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