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Saturday, April 17, 2004

Fallacies and vices: A bunch of us were sitting around, trying to figure out what is The Economist's Vice. Here was one good candidate:

The Economist's Vice: "To think that Wealth Maximization is a good proxy for Utility Maximization"

I nominated the following:

The Economist's Vice: "To think that it is scientific to talk of "satisfying preferences," and paternalistic or mystical to talk about other normative values."

We then turned to The Philosopher's Vice. I suggested the following:

The Philosopher's Vice: "To think that The Economist's Vice(s) open the door for rampant egalitarianism and national health insurance"

One of us suggested The Experimental Economist's Vice:

The Experimental Economist's Vice: "To think that students are like other people"

Another group member suggested The Lawyer's Vice:

The Lawyer's Vice: "To think that words alone can settle an argument" [just for the record I did not suggest or endorse this one!]

Blogger's vice anyone? How about this?

The Blogger's Vice: "To think that packaging a link with an expression of moral outrage is a worthwhile exercise."

Addendum: John Nye suggests the following:

The real (modern) economist's vice: To think that formal (mathematical) rigor is equivalent to scientific (substantive) rigor.
Another Win-Win: Rantisi is brought to justice: "We will all die one day. Nothing will change. If by Apache or by cardiac arrest, I prefer Apache," he said. It's nice when cosmic justice and individual preferences can both be satisfied.

UPDATE: Mark Kleiman objects:
The point seems to me an elementary one. Since "To bring X to justice" means "To arrest and try X according to law," using the phrase "X was brought to justice" to describe a situation in which X was, in fact, shot down like a dog must be an error. It may be warfare, but it isn't justice.
Sorry, Mark, but I don't see why arrest and trial is necessary for justice, nor do I think that arrest and trial create justice. Rantisi not only didn't deny responsibility for his crimes, he reveled in them. There is no injustice in killing him. There are sound prudential reasons for generally not giving governments the power to eliminate even obviously and admittedly guilty, unrepetant mass murderers without arrest, trial, etc., but these are prudential reasons only, not interests of justice per se. In Rantisi's case he was not only obviously and admittedly guilty and unrepetant, but a "ticking time bomb" who was Hamas's primary contact with Iran and Hezbollah, attempting to import their mass murdering skills to Israel. An operation to arrest and try him would not only have put additional Israeli and Palestinian lives in danger during its undertaking, but would have required additional weeks or months of planning that would have allowed Rantisi to participate in many more murders, and build up the infrastructure of murder. No, the interests of "justice" argue for exactly what Israel did.

As for arrest and trial not creating justice, O.J. Simpson was arrested and tried according to law, but I'd laugh at anyone who says that "justice" had anything to do with either the conduct of the trial or its outcome. Again, we accept such fiascoes because, over the greater run of cases, justice is better served by arrest and trial than by alternative methods of attempting to secure justice. But to suggest that justice is purely a matter of following procedure seems to me legalistic nonsense.

Mark also objects that it's bad manners to express glee at the death of the likes of Rantisi. Guess we will have to cancel Purim. [I posted the update as I was rushing out for the day, and I thought I had deleted the last two sentences, which I decided did not do justice to rabbinic Judaism's ambivalent teachings on how one should feel when an evil enemy has been duly punished. But the holiday of Purim does indeed gleefully celebrate the hanging of the evil Haman and his sons, who, according to tradition sought to destroy the Jews of the ancient Persian empire. Meanwhile, I can't disagree with Pejman:
The objection against "danc[ing] on the graves of one's recently slain enemies" is frankly bizarre. Again, Rantisi was a murderer and a psychopath on a mass scale--a characterization with which I am sure Kleiman agrees. Why shouldn't those who support Israel against such terrorists rejoice in his death? Once we in the United States capture or kill Osama bin Laden, will we not rejoice? Shouldn't we? For the record, I'll smoke a huge cigar, toast the capture or death of bin Laden, and perhaps even engage in some forms of hedonism (ladies, take note of this--you are invited to help me in this noble cause) once the goal of capturing or killing bin Laden is accomplished. Far from being "bad manners," such a response would be entirely appropriate--and it is appropriate in response to Rantisi's death. He was too long of this world. And the world is far better without his presence.]

Friday, April 16, 2004

Why Not Let the Top Seeds Pick Their Opponents?: The NBA playoffs start tomorrow. The Minnesota Timberwolves are the 1st seed in the Western Conference - meaning that they play the 8th seeded Denver Nuggets. If the Timberwolves had the choice, they might well prefer to play the 7th seeded Houston Rockets, who slumped badly at the end of the season and are playing the worst basketball of any of the teams from the West. Why shouldn't the Timberwolves have that choice?

Playoff seedings are determined by regular season records. If (as in the NBA) 8 teams go to the playoffs from each conference, the team with the best record will play the team with the 8th best, the 2nd will play the 7th, and so on. The idea is to reward the teams with the best records by pitting them against the weakest opponents. But a better - and more interesting - system would allow the top seeds to choose their opponents.

My proposal is straightforward. At the end of the last game of a given round of the playoffs (or, for the first round, the last game of the regular season), the first seed would choose which team in the bottom half of the seedings it wanted to play. The second seed would then choose among the remaining teams, and so on. This need not delay anyone's travel plans; the selection could proceed in order (like a draft), with each team having a few minutes to make its selection. The only difference between my approach and the current one is that the best teams would have some ability to choose their opponents.

Why make this change? It truly rewards the teams with the best records, and it avoids the problem of a top team having the bad luck to be pitted against another top team while teams with fewer wins have weaker opponents. Maybe the 7th seed slumped at the end of the season or has just suffered injuries, whereas the 8th seed ended the season strongly and would have had a better record if its star had not been hurt in the beginning of the season.

My proposal would make for better matchups. Leagues like the best teams to meet deep into the playoffs, and this makes it more likely that that will happen - because the team with the best record will avoid playing the stronger teams until late in the playoffs.

It should also greatly increase fan interest. Fans of the choosing teams can debate who their team should opt to play in a given round of the playoffs. And it would create a new element for the chosen teams and their fans. If the 1st seed decided to play the 7th seed rather than the 8th, the 7th could use the choice as a motivating tool ("They chose to play us because they thought we were weak. Let's show them.") and the 8th seed could boast that the best team was afraid to play them. And if the 8th seed met the 1st seed later in the playoffs, the story line would be irresistible ("The 1st seed must now play the team it sought to avoid.")

Who would oppose this change? There is only one group of people who have anything to lose from this system - the coaches. Woe to the coach who chooses to play a higher-seeded team and then loses. But that woe translates into fan interest - "Can you believe he chose to play Team Y when he could have played Team Z?" - and a new set of story lines. My system might even induce fans to watch a blowout until the end ("As soon as the game is over, the coach will choose his next opponent").

Having options makes sense in other areas of life. Why not this one?
Jacob Levy on Ethics: I just ran across Jacob Levy's article on New York Times ethicist Randy Cohen -- it's really an excellent and thoughtful piece about the complex relationship between ethics and morality; I highly recommend it. It was published in late 1999, and maybe Cohen has improved since then. But to me the important thing wasn't the criticism of Cohen as such, but rather the broader points that Jacob makes.
NRA TV: Stop the Bleating reports:
Instead of buying a TV station, as it was previously rumored to be considering, the NRA has decided to take its message to the Internet via NRANews.com, "Freedom's Last Channel of Communication." They'll have daily webcasts, including a three-hour live segment. Advantages?

-Lower overhead.
-Not having to deal with the FCC.
-Less pesky FEC/Bipartisan Campaign Reform Act crap to worry about; FEC regulations implementing BCRA expressly exempt Internet communications from the definition of "electioneering communications." For now. . . .
I'm not sure how successful this tactic will be; my sense is that, at least right now, Internet video is considerably less effective than TV. It does have advantages, for instances that the archives are constantly available, and presumably over the years, Internet video will rival TV more and more. But right now, I doubt that the video portion of the site will be a roaring success -- though I'd be glad to be proved wrong.
"People ought to stay out of our business": That's what the 9/11 Commission chair Thomas Kean seems to be saying in response to calls for Jamie Gorelick to resign. (I say "seems" because there's always the possibility that he was quoted out of context.) From the Washington Post:
Gorelick told CNN yesterday that she will not resign. "The wall was a creature of statute. It's existed since the mid-1980s," she said.

Several of Gorelick's colleagues on the commission rushed to her defense, characterizing her as qualified and nonpartisan, and complaining privately that she was ambushed by Ashcroft.

"We don't want to get in a fight with the attorney general, and I hope he doesn't want to get in a fight with us," said commission Chairman Thomas H. Kean, the former Republican governor of New Jersey. But "people ought to stay out of our business." . . .
Hmm -- I'd have thought that, in a democracy, the makeup of investigative panels like this was very much the people's business, and not just the panel members'. "There's no reason for Gorelick to resign because . . ." would be a perfectly appropriate response. "People ought to stay out of our business" is not. But it looks like more than one politician seems to be forgetting that.

     Thanks to Best of the Web for the pointer.
Jonathan Rauch on the 9/11 commission: I haven't been following the commission's work, and have no informed opinion -- but I much respect Rauch's views, and he's written extensively on the pathologies of American government procedures. Some key paragraphs (emphasis added):
The time and attention of Washington's top policy makers is Washington's most precious commodity. According to news reports, Rice and her staff spent hours preparing her public testimony: briefing her, assembling timelines, "war-gaming" likely questions. Each of those hours was an hour not spent on national security. Meanwhile, an armed uprising -- the most dangerous yet -- was erupting across Iraq.

Maybe Rice's diverted hours didn't matter. Sometimes, though, when policy makers take their eye off the ball, bad guys kick it. In 1998, Saddam Hussein took advantage of President Clinton's impeachment distraction to throw weapons inspectors out of Iraq, and that same distraction may have impeded an effective U.S. response. . . .

[D]istractions in time of crisis do not help. And Washington could not have chosen a worse moment than now for a paroxysm of finger-pointing. "Our focus has been on 9/11 -- who did what and who didn't," Senate Foreign Relations Committee Chairman Richard Lugar, R-Ind., told ABC's "This Week". "But it ought to be on June 30," the date when sovereignty is supposed to be transferred in Iraq.

Economists speak of transaction costs. Washington needs to master the concept of investigation costs. A government saddled with a high-profile probe is a government less focused on other tasks, and wartime is the worst time for distractions. . . .
UPDATE: Here's a different view from another writer whose work I also much like, Matt Welch:
Above all, Bush's attitude toward sensitive information has remained consistent from his pre-9/11 behavior: Transparency is overrated, secrecy is a virtue, and post-Watergate reforms curtailing the government's ability to snoop, prosecute and act freely are a serious obstacle to protecting the country.

These beliefs don't make him venal, just wrong. History has shown that a government that acts without the checks and balances of scrutiny is a government that abuses its power. Secrecy is often just another word for "it would be embarrassing for me if you saw that." And transparent examination and debate, however untidy, unlocks the genius of distributed, free-flowing intelligence -- one of America's biggest competitive advantages -- and gives citizens their deserved seat at the decision-making table.

Consider for a moment how things would be if Bush would have gotten his way on the 9/11 hearings: We would not have seen the strangely cathartic (and/or infuriating) gesture of Richard Clarke apologizing to the surviving families of Sept. 11 victims, Condoleezza Rice would not have faced public grilling, Bush probably wouldn't have held a rare primetime press conference, and we certainly wouldn't have been able to read the infamous PDB memo. Reforms would have been handled by the wise men and women of the congressional intelligence committees and the internal investigators at the CIA and FBI. Our knowledge of the changes would be limited to whatever leaks were thrown our way (as opposed to daily sworn testimony of officials like George Tenet and John Ashcroft). . . .
(Thanks to reader Pete Guither for the pointer.) As I said, I have no informed opinion on the subject myself, but I'm happy to pass along opinions from others who know more than I do. I link, you decide.
Rats -- we're not Banned in Burma any more; my correspondent tells me that we're accessible again.
Greens for Tax Increases: I find it somewhat amusing that many environmental groups spent Tax Day calling for a tax increase. Specifically, U.S. PIRG, the Sierra Club, and other groups called upon Congress and the Bush Administration to increase taxes. Specifically, they called for the re-enactment of taxes on corporations and certain chemical feedstocks to pay for hazardous waste cleanups at abandoned waste sites under the federal Superfund program. Such a tax expired several years ago and the BUsh Administration opposes its reimposition. Although BushGreenWatch would prefer to call the imposition of this tax "restoring industry fees," it is a tax increase, pure and simple.

Environmental groups claim Superfund taxes represent the "polluter pays" principle - the generally unassailable idea that polluters should pay for the costs of their polluting activities. The problem is that the Superfund tax imposes costs on companies (and, by extension, consumers and shareholders) irrespective of their relative contributions to pollution problems. The tax on chemical feedstocks imposes costs on the highly progressive and environmentally responsible corporation just as surely as it imposes costs on the corporate scofflaw. The Sierra Club's Carl Pope claims "the Bush administration is using tax dollars instead of making corporate polluters pay to clean up their toxic messes," but the same can be said of Pope's preferred policy. Across-the-board taxes on corporations and specific chemical substances similarly use "tax dollars" to pay for cleanups and do nothing to "make corporate polluters pay to clean up their toxic messes." As Angela Logomasini of the Competitive Enterprise Institute noted in this story, "The Sierra Club is basically saying that if you're in business, you're a polluter and guilty."
Tort sanity:
"A top Russian ballerina, who was sacked for being too heavy, lost a damages claim for £575,000 against the chief of Moscow's Bolshoi Theatre yesterday. The prima ballerina Anastasia Volochkova, who was fired in September for being too bulky to be lifted by her dancing partners, sought the damages from the Bolshoi's general director, Anatoly Iksanov, for harm to her personal and professional reputation."

Here is the full story.

The economics of Iraqi reconstruction: Randall Parker offers some interesting facts about the finances of Iraqi reconstruction. Here is one good bit:
"Even though involvement in Iraq is costing US taxpayers a lot of money at this point very little of the reconstruction money from the US government has been spent.

Efforts to repair war damage and kick-start the economy, which have fallen behind. Only $2 billion of the $18 billion aid and reconstruction package Congress approved last fall has been committed to contracts.

A increasing portion of the construction money is going to pay rising security costs.

For some companies, security costs now amount to 20% of the total contract price, double the standard 10% estimate that industry groups and government contracting officials quoted six months ago. As much as $4 billion may wind up going to security, Bowen said."

Read the whole post. Parker is a skeptic about the possibility of democracy in Iraq. He also argues for the partition of Iraq, under the belief that at least the Kurds will like the U.S.. I am not sure how we would handle Turkish opposition to this idea, or the possibility of civil war in Turkey, if Turkish Kurds try to secede. Nonetheless the argument is an intriguing one. It doesn't have to be so perfect to be the best option on the table.

Thursday, April 15, 2004

TaxProf: An interesting new academic blog from taxprof Paul Caron, aimed at tax professors but also useful to lawyers and students working in the field.
Banned in Burma, yanked from Yangon: A reader reports (I don't yet know how he figured it out):
You should know that as of today the Conspiracy is banned in Burma (Myanmar). The yellow flag says "banned phrase found."
Handy Aramaic phrases to use while watching The Passion of the Christ, from The Guardian (U.K.) (thanks to Michael Klein for the pointer):
Its alleged anti-semitism isn't the only problem with Mel Gibson's The Passion of the Christ. There's also the small matter of it being in Aramaic. To help enrich your enjoyment, here is a handy glossary of useful terms . . .

B-kheeruut re'yaaneyh laa kaaley tsuuraathaa khteepaathaa, ellaa Zaynaa Mqatlaanaa Trayaanaa laytaw!
It may be uncompromising in its liberal use of graphic violence, but Lethal Weapon II it ain't.

Da'ek teleyfoon methta'naanaak, pquud. Guudaapaw!
Please turn off your mobile phone. It is blasphemous.

Shbuuq shuukhaaraa deel. Man ethnaggad udamshaa?
Sorry I'm late. Have I missed any scourging?

. . .

Ma'hed lee qalleel d-Khayey d-Breeyaan, ellaa dlaa gukhkaa.
It sort of reminds me of Life of Brian, but it's nowhere near as funny.

. . .
There's much more.
Gmail fun: Reader Mike Aracic writes:
Lawyers can sure make it tough to have a good time! I am eagerly awaiting the time the first of my friends got a Gmail address[.] The victim (friend) was going to immediately get a short paragraph from me about refinancing and "male enhancement."

If the leaders of the Jewish Community needed an impetus to try to discourage the ridiculously excessive bar and bat mitvzah parties that have become the norm in many large cities, this story in the April 26 People Magazine (not online) should be it:
She's got the deejay blasting Beyonce and a computerized light show. She has nearly 100 friends crammed into Manhattan's ritzy Bryant Park Grill. She's got the gift table groaning with Tiffany bags and guests greeting her dad at the door with "Mazel tov!" Everything is perfectly poised for 13-year-old Kimya to have a world- class bat mitzvah, except for one tiny detail:

Kimya isn't Jewish.

Welcome to the strange new world of faux mitzvahs, where non- Jewish teens like Kimya Zahedi--whose parents are Iranian-born Muslims--and Taylor Lasley, African-American and Presbyterian, get to party like it's 5764 (that's 2004 on the Hebrew calendar). A centuries-old Jewish tradition, bar mitzvahs (for boys) and bat mitzvahs (for girls) mark the passage from childhood to adulthood with rituals like candlelighting and slicing braided bread called challah, as well as with elaborate and often expensive celebrations. Now more and more non-Jewish kids areinsisting on their own bar or bat mitzvah-style parties--without the religious rites and months of studious preparation--when they turn 13. "You see how you can have so much fun with so many people," says Kimya, who attends one or two bar or bat mitzvahs every weekend in and around her wealthy neighborhood in Alpine, N.J.
The article goes on to quote Gentile parents bullied by their children into throwing lavish 13th birthday parties for them so the kids can be part of the "in" crowd. Talk about a Chillul Hashem! (desecration of God's name!) When the most widely-known Jewish rite gets to be known less for its spiritual significance and more for the social status the accompanying party provides, so much so that 13 year old social climbers insist on emulating it, someone needs to do something.
Law and film: In my law and film class this year we watched four movies: High Noon, Kubrick's early Paths of Glory, Kurosawa's Rashomon, and Atom Egoyan's The Sweet Hereafter, a Canadian movie from 1997. A schoolbus crashes through the ice and many schoolchildren drown, leading to a liability suit in a small town. To my surprise, this latter film was by far the class favorite of the four. Many class members considered the other movies stilted or at times even ridiculous. Everyone found The Sweet Hereafter intriguing. It is a sad and moving film, and thus it is not appropriate for every evening. But if you have any interest in law and cinema at all, see it.
A bit more on gmail: David Link, who works for Senator Figueroa -- the California legislator who's talking about outlawing google's new free e-mail with customized advertising service -- writes:
The Senator has represented a good portion of the Silicon Valley for the twelve years she has been in the legislature, and has earned the respect of much of the high-tech community for her concern about the unique and challenging issues this industry raises.

More important than that, though, the issues with Google's proposal go a bit deeper than just the Nanny State pejorative would suggest, and I wanted to offer some of thoughts for you to consider.

After speaking with Google's policy and legal staff, it became clear to us that Google had not thought through some of the key problems of consent that G-Mail raises. You are certainly correct that the G-Mail subscriber consents to the service's requirements. But, as you acknowledge, there is a separate problem about the consent of non-subscribers who send e-mail to a G-Mail customer. The problem is that Google seems to have less interest in scanning the e-mails their customer sends out than in scanning the e-mails their customer receives. And those people are not asked -- and, I think, could not practically be asked -- to consent to having their personal sentiments scanned for ad-friendly content.

This variation on the issue of consent has some similarities to the question of taping telephone conversations -- something that, in California, requires the consent of both parties, if I remember correctly. The fact that Google thought only in terms of one party -- its advertisers' target -- confirms what we learned from Google's staff -- that they hadn't thought about those people's rights at alll, and had no interest in exploring it.

You make a good point when considering your own concerns about how your e-mail to someone else might be treated, and how the ad would be "associated" with it. But that is exactly what is so odd about G-Mail -- what other form of private and personal correspondence (telephone, letters) has anything close to this sort of potential issue? Yes, the ads are targeted at the recipient, but they are based on someone else's thoughts, sometimes quite personal or sensitive ones. In those other forms of communication, the only way any outside party can have any access at all to the content of the conversations is to get a court order based on some sort of suspected wrongdoing. G-mail proposes a different standard -- however benign it may seem right now -- for e-mail.

Is this a good idea? Google has a technology that CAN scan e-mail, while the phone companies and the US Postal Service do not, and, most likely, can not. But because a technology exists is not, in itself, a reason to use it. We are accustomed to a very broad notion of privacy in those other contexts, and, up until now, have seldom had reason to question the sanctity of e-mail privacy. In fact, this is one of the barriers e-mail services had to overcome in order to get people to use it in the first place -- and they did a rather good job.

Now, though, comes G-Mail. Google presents G-Mail as a very small step, but I think it is more than that -- I think it begins to work a change in the very notion of communicative privacy altogether. It's clear to me that Google doesn't intend to collect information about people's private correspondence, but by telling people they will now be reviewing e-mail -- even using a non-human technology -- the idea that e-mail is as private as a letter slowly recedes. At the very least, we should stop and think about the implications of that.

These are the reasons Senator Figueroa's initial letter to Google said that she thought this might ultimately be a Faustian bargain. She is convinced that Google has made a very big mistake in this, and that the market will ultimately work against them. I believe that, too. But some mistakes, I think, may be too dangerous even to make -- at least without more thoughtful consideration of their consequences. G-Mail seems to be one of those.

I think there is much more to this issue than your initial post might have presented. I hope all of this leads to a more productive discussion about what, exactly, is at issue here. At the very least, I hope, if you disagree with any bill we might introduce -- and you very will might -- that there is a more informed discussion than the current press would lead people to believe.
     I much appreciate Mr. Link's response, but I stand by my criticism. As I mentioned in an UPDATE to my original post, I don't think a ban on gmail would really protect any legitimate right of the senders. As best I can tell from press accounts, gmail would only be connecting information about a gmail user's e-mail with that gmail user, and using it to market to that gmail user. My messages to a gmail user are not associated with me in the gmail output -- they're just associated with the gmail user. And if the user agreed to that, I see no grounds for me as the sender to complain.

     It's true that google's marketing to the gmail user will in some sense be based on my thoughts. But so what? I'm sharing my thoughts with my recipient. My recipient is already able to retransmit those thoughts to someone else, simply by forwarding them; and such forwarding, unlike with gmail, would actually associate my thoughts with my name in some other human's eyes. (This illustrates, incidentally, that a third party can indeed get access to e-mail, and even to letters, without a court order -- simply by getting the recipient to show the third party this material.)

     With gmail, the recipient is simply having those thoughts automatically routed through the gmail advertisement generator. There's nothing wrong with that, no invasion of any legitimate rights claim on my part. In fact, I'm much more worried that my recipients would forward some of my messages to another human than that the messages would be automatically scanned -- and associated with the recipient's identity, not mine -- and used to generate ads to be shown to the recipient. (Note that Senator Figueroa's proposal, at least as it's described, is in no way limited to making sure that the sender's identity is indeed protected from disclosure to others.)

     So this really isn't about protecting the sender's identity, as the Senator's own analogy ("We think it's an absolute invasion of privacy. It's like having a massive billboard in the middle of your home") shows. Rather, it's about preventing a form of marketing that some people think is distasteful, and that some people think might change people's attitudes towards privacy ("the idea that e-mail is as private as a letter slowly recedes").

     I don't think that this is something that the California Legislature should be using its coercive power to do. The government shouldn't be banning voluntary services -- services that many users might find to be quite valuable to them, and to involve no real intrusion on the rights of others -- in order to prevent changes to voters' ideas about e-mail.
Bush and Sharon: For all the handwringing of the American (not to mention world) media, the dynamic is very simple: Bush has made it abundantly clear that he wants the Palestinians to have a responsible government that fights terrorism, and wants the Israelis to move toward a settlement that turns over sovereignty of Gaza and most of the West Bank to a Palestinian state. No progress was being made in either direction for some time. Then, Sharon announced a unilateral withdrawal from Gaza. Self-interested, sure, but also a political risk that breaks the impasse that had developed, and a potential momentum builder. Bush looked in vain for a reciprocal gesture from the Palestinians. He got nothing. Worse than nothing, the Palestinians have been busily discussing how to bring Hamas into their government. Result: political rewards for Sharon, a cold shoulder for the Palestinians. It was almost two years ago that Bush made it clear that he would judge the Palestinian leadership by one criteria: its willingness to fight terrorism. Why, two years and no willingness to fight terrorism later, it expects "evenhandedness" from Bush shows that they simply don't understand the man.

UPDATE: Debka, which takes a "right-wing" Israeli line, is alarmed that Bush referred to the 1949 armistice lines, and not the 1967 "Green Line." Bush's actual remarks: "Realities on the ground have changed over decades. In the light of those changes, including already existing major Israeli population centers, it is unrealistic to expect the outcome of final status negotiations will be a full and complete return to the 1949 armistice lines." Traditional American (and Israeli) policy has been that the 1967 borders, with modifications, should be the baseline for the final settlement. By pushing things back to 1949, I wonder if Bush, with Sharon's complicity, isn't hinting that demographic realities run both ways, and that major Arab population centers in Israel--Nazareth, Umm Al-Fahm and surrounding villages[edit: note that Arab population centers in the Galilee were under Israeli military rule until 1966]--may be transfered to the new Palestinian state in exchange for Jewish settlement blocs in Judea and Samaria.

UPDATE: Then again, Laurence Rothenberg of the Center for Strategic and International Studies suggests via email that the president was simply trying to emphasize that the 1967 lines are not fixed and internationally recognized "borders" but armistice lines, subject to negotiation.

Wednesday, April 14, 2004

Gorelick recusal rule: This Eric Muller (IsThatLegal?) post is so useful that I thought I'd link to it and excerpt it even though InstaPundit has also already done it. The bottom line:
Under these guidelines, it certainly seems to me that Ms. Gorelick should not be participating in the portion of the Commission's investigation that focuses on law enforcement's role in counterterrorism. I think it would have been wise for her not to be present at the hearing yesterday.

On the other hand, she's a very smart lawyer and her participation in other hearings has, to my eye, been very focused and helpful.

I think the calls for her outright resignation are exaggerated. On the other hand, I think she should confess that she ought not be playing a role in the Commission's law-enforcement-related inquiries, and should recuse herself from all further deliberation on the matter.
For the text of the guidelines, and more from Eric, see his post.
Who benefits? I'm hardly one to espouse a naive (or sophisticated) self-interested view of political action. That being said, I chuckled when I read the following:
" Last year's tax cut proved to be a significant windfall for its main architect and political instigator, saving President Bush tens of thousands of dollars on his 2003 return."

Bush's income fell four percent over the last year, to $822,126. His current income tax liability fell fifteen percent, saving the Bush family about $30,858. The Cheneys saved more than $88,000. But most of these savings were due to write-offs. In fact the Cheneys were hit by the Alternative Minimum Tax.

How about Kerry?
"Meanwhile, for Sen. John F. Kerry (Mass.), the Democrat seeking to drive Bush from the White House, his tax burden more than tripled on income that surged with the sale of a million-dollar painting."

The Kerrys filed separately, but John reaped $1.35 million from the sale of a painting by Dutch Baroque artist Adam Willaerts.

Here is the full story, brief registration required but subscription not needed.
Wall of Separation: You might find this excerpt from Attorney General John Ashcroft's testimony before the 9/11 Commission to be of interest:

The single greatest structural cause for September 11 was the wall that segregated criminal investigators and intelligence agents. Government erected this wall. Government buttressed this wall. And before September 11, government was blinded by this wall.

In 1995, the Justice Department embraced flawed legal reasoning, imposing a series of restrictions on the FBI that went beyond what the law required. The 1995 Guidelines and the procedures developed around them imposed draconian barriers to communications between the law enforcement and intelligence communities. The wall "effectively excluded" prosecutors from intelligence investigations. The wall left intelligence agents afraid to talk with criminal prosecutors or agents. In 1995, the Justice Department designed a system destined to fail.

In the days before September 11, the wall specifically impeded the investigation into Zacarias Moussaoui, Khalid al-Midhar and Nawaf al-Hazmi. After the FBI arrested Moussaoui, agents became suspicious of his interest in commercial aircraft and sought approval for a criminal warrant to search his computer. The warrant was rejected because FBI officials feared breaching the wall.

When the CIA finally told the FBI that al-Midhar and al-Hazmi were in the country in late August, agents in New York searched for the suspects. But because of the wall, FBI Headquarters refused to allow criminal investigators who knew the most about the most recent al Qaeda attack to join the hunt for the suspected terrorists.

At that time, a frustrated FBI investigator wrote Headquarters, quote, "Whatever has happened to this — someday someone will die — and wall or not — the public will not understand why we were not more effective and throwing every resource we had at certain 'problems'. Let's hope the National Security Law Unit will stand behind their decision then, especially since the biggest threat to us, UBL, is getting the most protection."

FBI Headquarters responded, quote: "We are all frustrated with this issue ... These are the rules. NSLU does not make them up."

But somebody did make these rules. Someone built this wall.

The basic architecture for the wall in the 1995 Guidelines was contained in a classified memorandum entitled "Instructions on Separation of Certain Foreign Counterintelligence and Criminal Investigations." The memorandum ordered FBI Director Louis Freeh and others, quote: "We believe that it is prudent to establish a set of instructions that will more clearly separate the counterintelligence investigation from the more limited, but continued, criminal investigations. These procedures, which go beyond what is legally required, will prevent any risk of creating an unwarranted appearance that FISA is being used to avoid procedural safeguards which would apply in a criminal investigation."

This memorandum established a wall separating the criminal and intelligence investigations following the 1993 World Trade Center attack, the largest international terrorism attack on American soil prior to September 11. Although you understand the debilitating impact of the wall, I cannot imagine that the Commission knew about this memorandum, so I have declassified it for you and the public to review. Full disclosure compels me to inform you that its author is a member of this Commission. . . .
It is difficult to blame Commissioner Gorelick for her failure as Deputy Attorney General to forsee 9/11 when she issued this directive. Had she anticipated 9/11, there is little doubt she would have acted differently.

UPDATE: Instapundit links to blogospheric reaction to press coverage of this disclosure and Gorelick's conflicts of interest.

Tuesday, April 13, 2004

Fast-Track Ramesh Ponnuru writes:
While I'm on the subject of this blog, I may as well mention a post there that had caused me some puzzlement. Jacob Levy, in the course of making a point about originalism that I think is wholly sound, remarked that he thought that the "fast track" procedures for approving trade agreements were unconstitutional. ("Fast track" has been relabeled "trade promotion authority" for obscure p.r. reasons.) I had previously associated this view with crackpots, not people who know what they're talking about, so I was surprised to see it coming from Levy--and I'd be interested in seeing why he takes it.
I appreciate that Ponnuru was surprised rather than unsurprised to see me espousing a crackpot view...

It's a view that has mostly been espoused in court by unions trying to block NAFTA, though Lawrence Tribe represented them on one occasion, as I recall. Neither is entirely comfortable company, to be sure.

The Constitution requires a two-thirds vote of the Senate to ratify treaties; the Senate has the right to amend these or ratify them only in part. The post-World War II innovation of a "Congressional-executive agreement" moves many international agreements out of the category "treaty" and into the catgeory of something else (an agreement) that can be submitted by the President for a straight up-or-down vote-- by simple majorities of both houses.

This is not the treaty-ratification procedure. Neither is it the ordinary legislative procedure. (One might think that NAFTA was just a legislative act, as far as U.S. domestic law was concerned, because it lowered tariffs and did other things that Congress has to do legislatively. But it doesn't fall under the category of ordinary legislation.) When Congress and the President arrange a new procedure for enacting... stuff, and when that "stuff" falls between Constitutionally-recognized categories (treaties and legislation), I think we have good grounds to worry that something constitutionally dubious is going on. Congress and the President aren't supposed to create new extra-constitutional procedures in side agreements between themselves.

Moreover, there appears to be no consistent standard as to when something counts as a treaty and when it is eligible for a Congressional-executive agreement. It's not only trade; and when it is only trade, that's just because Congress said so. This allows for the Treaty Clause to be gutted; the President and Congress might agree to have everything submitted for fast-track approval rather than 2/3 Senate approval. (As far as international law is concerned, we'd still be bound by the treaties-that-aren't-treaties-as-a-matter-of-domestic-law.)

Whether something is a treaty or not has been held by the courts to be a non-justiceable political question-- also often a red flag. The "political questions" doctrine is sometimes right, that there are things that the political branches do that the courts lack the competence to inquire into. But it always means that there's something potentially unconstitutional going on under its cover. On balance I think the courts are right to stay out of the question of whether a given military action is a war for the purposes of triggering the requirement that Congress declare it. But that means that, at least sometimes, at least potentially, there are military actions that should properly be constitutionally classified as wars that won't be. At least some of the choices that the political branches are left free to make on any given subject by the political questions doctrine are probably unconstitutional; the courts simply hold that they're not competent to determine which ones.

Finally, during FDR's presidency, when progressive thought turned against so many of the procedural and substantive limits that the Constitution placed on policymakers, the Treaty Clause was one of the objects of derision. In the early 40s, a number of states passed resolutions calling for a constitutional convention to replace the Treaty Clause power with majority approval by both houses. The House passed a constitutional amendment doing so, in 1945. But the amendment and the movement for a convention died, because Truman found that it wasn't necessary; he submitted many of the postwar agreements to both houses of Congress under Congressional-executive agreements.

This seems like pretty compelling evidence to me. Even New Deal-era progressives thought that the Constitution had to be amended to authorize two-house-majorities rather than 2/3 Senate approval for treaties (and they didn't tend to be scrupulous about pursuing Constitutional amendments to change the Constitution). Some states as well as the House considered the Treaty Clause worthy of amendment. And then-- mirable dictu! a heretofore-undiscovered category of international-agreements-that-aren't-treaties is found, and that category's proper means of approval is found to be what the amendment would have prescribed for treaties themselves. This is not the stuff of good-faith constitutional interpretation. This is the stuff of Roosevelt-era constitutional amendments without using the amendment procedure. Not coincidentally, it resulted in a significant strengthening of executive power, because the President now has the ability to cherry-pick the procedure that is most likely to yield a favorable outcome. (Trade treaties couldn't survive the amendability of the straight Treaty Clause power, but many other Congressional-executive-agreement agreements are military and could have.) Also not coincidentally, it resulted in a weakening of the Senate, one of the constitutional bogeymen of the era, held up as an aristocratic anachronism.

One more nail in the coffin as far as originalists and textualists are concerned should be the following: the most influential defense of the constitutionality of the agreements has come from Bruce Ackerman, and his defense has been that in 1944-46 we had one of those extra-textual "constitutional moments" that (according to his theory) result in a new constitution without the bother of formal amendments. It's of a piece with his New Deal "constitutional moment" that originalists and textualists know to treat with grave suspicion

I wish the amendment had passed; and I'd truly hate to see my argument carry the day in court, because it would knock the U.S. out of the trade-agreement business, possibly for a long time. (I doubt that the amendment could pass today, when it would be understood as the vehicle for trade agreements.) But I can't see either an originalist or a textualist account that says we're constitutionally allowed to proceed as if that amendment had passed.

UPDATE: Professor Julian Ku writes in:
With respect to your recent blog posting on congressional executive agreements, I'd agree with you that the originalist/textualist case for such agreements is a bit problematic, but I don't think it is as impossible as your post suggests.

The Constitution does recognize the existence of non-treaty agreements (the power to make "compacts" that are denied to the states without congressional approval). It is reasonable to assume the power to make these sorts of non-treaty agreements lies with the President. The hard question, of course, is whether there is a subject matter limitation on these non-treaty agreements, which were made from the Washington administration to the present, but which only recently have dealt with trade.

I would recommend to you the best originalist analysis I've seen, by Michael Ramsey at 77 N.C.L. Rev. 134, if you are interested. Basically, he argues that the non-treaty agreements power was understood to be held by the President, but that they could only be temporary agreements, deal with minor matters, and that they could never have domestic effect without congressional implementation.

This last point suggests a tenable distinction: executive agreements can be made on whatever the P. wants, but unlike treaties, they can never be self-executing. Alternatively, others have argued that treaties could extend beyond Congress' commerce clause powers against the states, while executive agreements were limited.

I think you are right that the law is a bit iffy here, but I think there are plausible textualist or originalist arguments for non-treaty international agreements, even in the trade area, that might survive judicial review by an originalist court.
I'll follow up and read the Ramsey article; I'm intrigued. I appreciate the reference.
Does Europe face a Muslim demographic time bomb? Maybe not, read this article. Here is one provocative bit of several:
"Figures of eight million French Muslims are regularly tossed around, based, it seems, on panicked fears of high Muslim immigration and a high Muslim birth rate. These figures are vastly overestimated, though. Figures on religious affiliation and ethnic background aren't kept by the French government, as part of a long-standing reaction against the misuse of those figures by Vichy to deport immigrant Jews to the concentration camps. The suggestions of The Economist that there are a bit over four million French Muslims seem to be more sensible and generally accepted. This amounts to roughly 7% of the French population--a significant number, to be sure, but not an overwhelming majority.

If this minority population grew for the next 50 years at a rate of 2% per annum (a high rate, and one that doesn't seem to be supported by signs of an ongoing demographic transition), while the remainder of the population shrunk at a rate of 0.5% per annum (also a high rate of decrease, and one that doesn't seem likely to be achieved for a while given generally high French fertility rates), at the end of this 50 year period the total French population would have shrunk by 9%, and France's Muslim population would amount to roughly one-fifth of the total. You'd have to wait for a century to approach a position of parity between the two populations, assuming the same unrealistic growth rates. This is definitely not any sort of imminent threat, nor as I shall demonstrate is it a very plausible threat at all."

Or how about this:
"The French Muslim community, after all, is barely more than a generation old. In Tunisia, fertility rates have fallen below the levels needed to sustain the population over the long term; Algeria and Morocco, Turkey and Tunisia, are not much further behind. There isn't any more reason to assume that French Muslim fertility rates will remain above replacement rate, after all, than there was to expect Western fertility rates to remain above replacement level. If anything, quite conceivably Maghrebin fertility rates could fall far below replacement levels. Societies with a certain minimal level of female autonomy, fairly low living standards, and access to contraceptive technologies can have rather low birth rates despite being generally conservative--look at Romania and Bulgaria, for instance, or Poland and China, or even Italy and Spain. It isn't difficult to imagine a situation where, one day, the countries on the southern shore of the Mediterranean will have a lower fertility rate than the countries on the northern shore of the Mediterranean. I have already. The impact that this will have, of course, on French Muslim fertility rates can hardly be anything but negative."

I would need to play around with the numbers for a long time before I could endorse all of these conclusions. Nonetheless it is worth pointing out that there is another side to the story. Too many people assume, without further investigation, that parts of Western Europe will rapidly become a Muslim sea.

Thanks to the ever-insightful Chris at CrookedTimber.org for the pointer to the article.
"Intoxicated Man Seeks Job With Police": Thanks to the CrimLaw blog:
Robert Gulley, an unemployed radio technician, was ticketed for alleged drunken driving as he drove away from the patrol office in this city near Vancouver. He had asked for a job application. . . .

When Gulley walked into patrol headquarters Wednesday afternoon, he was slurring his words, had glassy eyes and his breath smelled of alcohol, Trooper Maureen Crandall said.

When she told him it wasn't a good idea to apply to be a trooper while intoxicated, Gulley denied drinking, another trooper said.

So Trooper Rich Bettger, who'd overheard what was going on, offered to measure Gulley's blood alcohol level with a hand-held breath tester.

Gulley blew a 0.095, above the state's legal limit for driving of 0.08, indicating he'd had at least three drinks, March said. . . .

When the troopers asked Gulley how he got to the station, they said he told them he'd been given a ride. The officers said they warned Gulley not to drive home.

But after leaving the office and pacing back and forth on a nearby side street for 10 minutes, Gulley got into his car and drove away, troopers said.

He was promptly pulled over and ticketed. . . .

"I actually still want to join the police department," Gulley said. "Those guys are doing their job keeping the roads safe."

But state troopers said Gulley's career prospects with the patrol appear dim. . . .
"First Amendment right not to speak on radio or television": I agree with those who fault Justice Scalia for asking that "the electronic media . . . respect[] my First Amendment right not to speak on radio or television when I do not wish to do so."

     Scalia probably has a constitutional right not to speak on radio or television when he does not wish to do so. Congress probably can't order him to speak about something on radio on television, except under narrow circumstances such as if it subpoenaed him to testify at a televised hearing, or if it provided by statute that Supreme Court hearings be televised (and presumably that each Justice ask at least one question). This, though, probably relates more to separation of powers and the limits on Congress's power to order around independent judicial officials, not the First Amendment. Government employees probably can be required to speak on radio or television, at least to answer questions.

     Now it's true that a private citizen would have a presumptive First Amendment right not to speak on radio or television; the government couldn't mandate such speech by private citizens, again outside some contexts such as compelled testimony. But this right, like other First Amendment rights, could only be violated by the government, not by the electronic media. A radio rebroadcast of a tape of Scalia's speech wouldn't violate or even fail to "respect" Scalia's First Amendment rights, though it might fail to respect Scalia's copyright in his speech, or conceivably (though I highly doubt it) Scalia's contractual rights (I doubt this because I don't think that announcement of this policy would create any such contractual obligation).

     The one support that Scalia might have is this language from Harper & Row v. Nation Enterprises, which upheld a copyright lawsuit based on the unauthorized publication of excerpts from Gerald Ford's then-unpublished memoirs:
Moreover, freedom of thought and expression "includes both the right to speak freely and the right to refrain from speaking at all." Wooley v. Maynard, 430 U.S. 705, 714 (1977). We do not suggest this right not to speak would sanction abuse of the copyright owner?s monopoly as an instrument to suppress facts. But in the words of New York?s Chief Judge Fuld:
"The essential thrust of the First Amendment is to prohibit improper restraints on the voluntary public expression of ideas; it shields the man who wants to speak or publish when others wish him to be quiet. There is necessarily, and within suitably defined areas, a concomitant freedom not to speak publicly, one which serves the same ultimate end as freedom of speech in its affirmative aspect." Estate of Hemingway v. Random House, Inc., 244 N.E.2d 250, 255 (1968).
Courts and commentators have recognized that copyright, and the right of first publication in particular, serve this countervailing First Amendment value.
But as I argue in my Freedom of Speech and Intellectual Property article (pp. 724-28), this analysis by the Court is mistaken; it's inconsistent with the Court's other cases, and would yield some highly unsound results. (And even if it is accepted on its own terms, it's not clear to me that it would apply to the audio publication of material that's said to hundreds of people, and licensed to be reprinted in text; recall that Harper & Row involved publication of material that was then entirely unpublished.)

     Of course, I suspect that Scalia isn't talking about his First Amendment right, but rather against what he sees as his moral right -- which he wants to suggest is consistent with broader First Amendment principles -- not to have the audio or video of his speech broadcast without his permission, or a right flowing from the obligations of good manners to respect a speaker's desires in this situation. One can debate about whether such a moral or good manners right exists. But I think that calling this a "First Amendment right" is an inexact and unfortunate usage.

UPDATE: Chris Lansdown writes:
I don't think that it's correct to fault Scalia for claiming a legal right not to speak on radio or television, since that plainly seems not to be the case if you read the whole sentence:
The electronic media have in the past respected my First Amendment right not to speak on radio or television when I do not wish to do so, and I am sure that courtesy will continue.
He's clearly calling respecting his "First Amendment right not to speak on radio or television" a courtesy, not asserting that it's a legal right. This juxtaposition is quite odd, but I think that since it's contained within the same sentence one must interpret the first half in the context of the second clause (even if they are two conjoined independent clauses). Whatever Scalia means, it can't be implying a legally enforceable right.

If one is required to guess what Scalia meant by "First Amendment right", I would imagine he meant that the right to silence is as much a part of the spirit of the first amendment as is the right to speak, and so when he wants to be silent, or partially silent, granting him this right is within the spirit of the First Amendment, and hence a matter of courtesy. . . .
Chris raises a fair point; perhaps I didn't focus enough on the "courtesy" part. At the same time, the term "First Amendment right" has such a firmly legal meaning that the "courtesy" sounds more like understatement than an acknowledgment that the "First Amendment right" is really no right at all but just a matter of kindness or good manners. So I still think that the "First Amendment right" usage is unfortunate and inexact, in large part because it makes the assertion sound like a claim of legal entitlement, with the "courtesy" at the end of the sentence not materially softening the sound.
Scalia and print vs. electronic media: Will Saletan of Slate points out that Justice Scalia's policy -- to "permit recording for use of the print media," but to ask the "electronic media" to "respect[ his] First Amendment right not to speak on radio or television when [he does] not wish to do so" -- seems to prohibit recording for transcription onto Internet-based magazines and blogs, which are "electronic" rather than "print."

     I suspect that Scalia is trying to draw a distinction between text uses and audio or video uses, and is using "print" and "electronic" without really thinking about Internet media. But it's not clear, and, if I'm right, it's a reminder that people's terminology hasn't fully caught up with the new media.
The Passion of the Easter Bunny: My friend Arvin Tseng points to this story:
A week ago Saturday, about 250 residents of the community settled into their seats at Memorial Stadium, expecting a local version of an Easter play.

Depending on whom you talk to, what the audience got was either a sadistic torturing of the Easter Bunny or a lesson in what Easter is really all about.

Both sides agree that various performers explained to the Easter Bunny the death of Jesus and what he endured, using streamers to portray how Jesus was whipped, and either plastic eggs or something else to depict stoning.

From there, the stories differ a bit.

Non-church members called the performance disturbing to smaller children, who cried when they saw the bunny being "whipped" and eggs trampled or thrown at him. Then, they said, performers shouted that there is no Easter Bunny, causing further trauma to the children. . . .

Church members, however, said the whole thing was overblown.

They said the bunny was not whipped or chased. The performance simply showed how Jesus was crucified. Only about a dozen children were upset, they said. The rest understood it to be a play. . . .
Please save us from ourselves, Ms. Legislator! News.com reports:
A California state senator said Monday she was drafting legislation to block Google's free e-mail service "Gmail" because it would place advertising in personal messages after searching them for key words.

"We think it's an absolute invasion of privacy. It's like having a massive billboard in the middle of your home," said Sen. Liz Figueroa, a Democrat from Fremont, Calif.

"We are asking them to rethink the whole product," she said.

In late March, the Web search giant announced plans to launch Gmail--a service that would offer users 1GB of free storage, more than 100 times the storage offered by other free services from Yahoo and Microsoft.

But in return for the extra storage, users would agree to let Google's technology scan their incoming e-mail, then deliver targeted ads based on key words in the messages. For instance, a user receiving a message about a friend's flu symptoms might also receive ads for cold and flu remedies. . . .
     Uh, and if I agree to have a massive billboard in the middle of my home -- in exchange for a discount on some service that I'd like to buy -- what exactly is wrong with that? People have lots of options in e-mail services. Google is offering one extra option, under which users would voluntarily surrender their privacy in exchange for some goodies. Why should users be spared from that?

     Presumably Ms. Figueroa really doesn't want anyone other than the recipients looking at her e-mail, even if that's a computer program that doesn't report the contents to anyone but just tailors advertising to her. In that case, I have an innovative surprising high-tech patent-pending solution for her . . . don't use Gmail! But if some people think it's just fine to have Google tailor advertising based on the contents of their message, why should she stop them?

     I realize that there are sometimes plausible arguments for saving people from their own folly; I don't always agree with them, but I respect them -- for instance, if their folly seems likely to get them killed (consider bans on dueling, seat belt laws, and the like), or likely to get them addicted and thus drastically diminish their ability to undo their error (that's a common justification for bans on certain drugs), or likely to seriously harm others as well as themselves.

     What's striking about this proposal is how utterly inapplicable those arguments are here. The Nanny State (or, at this point, one of its directors) is trying to save us from the irreversible, appalling horror of getting custom-tailored advertising based on the context of our e-mail. We're in trouble indeed.

UPDATE: A couple of people suggested that the bill might be trying to protect senders from gmail's learning things about them. But as best I can tell from press accounts, gmail would only be connecting information about a gmail user's e-mail with that gmail user, and using it to market to that gmail user.

     When I send a message to someone, I understand that the person might report its contents to others, which is why I'm often quite cautious with confidential e-mail; so even if gmail somehow associated this information with my name, and then either used that to market to me or publicized that information, I'm not sure how much of a legitimate objection I would have to that. But there at least there'd be serious room for debate. If, however, my understanding is right, then my messages to a gmail user are not associated with me in the gmail output -- they're just associated with the gmail user. And if the user agreed to that, I see no grounds for me as the sender to complain.
More on Free Speech in Canada: While Canadian authorities are busily penalizing speech critical of homosexuality, Daniel Pipes reports that Mohamed al-Asi recently presented a speech at York University in Toronto (sponsored by Muslim, Middle Eastern and Pakistani student groups) accusing the "Jewish Lobby" of responsibility for the 9-11 attacks. As blatantly false speech intended to promote hatred against a specific group, al-Asi's talk seems to clearly run afoul of Canada's hate crimes laws.

Of course, I believe that such liberal societies such as the U.S. and Canada should tolerate such speech, because the government cannot be trusted with the power to draw the line between acceptable and unacceptable speech. But if hate speech laws are to exist, they must be enforced in a strictly neutral way, so that they are less likely to become a political tool of the powers that be. Moreover, certain groups that support such laws will do so much less enthusiastically, if at all, once they recognize that their own freedom of speech will also be in jeopardy. So, is al-Asi under arrest, or at least under investigation, and if not, why not?
NYT on DDT - Better Late than Never: This Sunday New York Times magazine story, "What the World Needs Now Is DDT" has sparked lots of comment. The story points out that DDT is arguably the most important tool for fighting malaria in the developing world. A recent Cato Institute paper makes the same point (as does Africa Fighting Malaria). Of course, regular readers fo this blog have known about the benefits of DDT for quite some time. I blogged about on DDT nearly two years ago here. As I posted at the time:
What lessons should we draw from DDT? I think there are several. First, DDT, like most chemical substances, is reasonably safe when used responsibly, and harmful when used indiscriminately. Second, doing without DDT is relatively easy in wealthy countries like the United States, as we can afford alternatives. Doing without DDT in many poorer countries, however, means that people die. Third, the story of DDT illustrates the trade-offs that are inherent in most environmental policy questions. Pesticide use (or overuse) can cause environmental harms, such as the decline of bird species due to DDT. The prohibition of pesticide use can mean the loss of habitat or, in the case of DDT, a resurgence of malaria. It is not clear to me why good environmentalists must be more concerned about the former than the latter.
Of course, DDT is not without its downsides. In the United States, there is a strong case that DDT use threatened several species of birds (see here and here). This merely reinforces the point that trade offs are ubiquitous in environmental policy.
The New York Times Needs A Lesson on The First Amendment: The Times closes an editorial today on Justice Scalia's apology as follows:
Justice Scalia's apology is welcome. Most unwelcome, though, and offensive to the First Amendment, was his suggestion that he retains a "First Amendment right" to bar audio and visual coverage of his public speeches by the electronic media. There is no such right, as any person charged with safeguarding America's cherished free speech rights should easily see. With due respect, Justice Scalia, this is about something larger than being camera shy.
Justice Scalia has no obligation to give any public speeches. A fortiori, he has the right to condition his willingness to speak at a given venue on the absence of audio and visual coverage. (Edit: Of course, Justice Scalia could not stop a t.v. or radio station from airing footage of one of his speeches, if they acquire it. But he certainly could refuse to go ahead with a talk if he sees microphones or t.v. equipement present.)

Though I think Justice Scalia could bend a bit on this issue, I do like the fact that the Justices' relative anonymity allows them to live more or less normal lives. I once stood in line in back of Justice Ginsburg and her husband at a Gilbert & Sullivan production in D.C. (To her great credit, she did not pull rank to either avoid the line or get particularly good seats.) There must have been federal marshals somewhere, but I didn't notice them. We already have an Imperial President and an Imperial Congress. We don't need an Imperial Judiciary, too.

UPDATE: My understanding of the Times' editorial was that the editors were implying that Scalia had some sort of legal obligation to the public, as a government official, to permit t.v. and radio to rebroadcast all or excerpts of his public appearances. I have heard such an obligation, in fact, discussed in terms of the public's "First Amendment" right to know. I pointed out that in fact Scalia has no obligation to speak to the public at all, and thus cannot be under any obligation to speak when radio or t.v. equipment is present. A rule forcing him to speak under such circumstances would, in fact, violate the First Amendment. Thus, despite the objections Eugene notes in his post above, I maintain that Scalia is technically correct that he has a First Amendment right not to speak on radio or television. The accent should be on the "to speak", not on "the radio or television." He certainly has the contractual right to require that his hosts ban t.v. and radio equipment from his speaking venues. This contractual right is in the service of his First Amendment right to speak when, where, and under the conditions that he has voluntarily agreed to.

Monday, April 12, 2004

Light blogging and conference advertising: Blogging will be low, and responses to blog-oriented e-mails will be slow or nonexistent, until I'm through the next several weeks of conferences-- especially this one:"Colonialism and Its Legacies," the 2004 Annual International Meeting of the Conference for the Study of Political Thought, will be held April 23-25, 2004 at the University of Chicago's Gleacher Center in downtown Chicago, 450 North Cityfront Plaza Drive.

Special note to those who will be attending the APA Central annual meeting that weekend: the Gleacher Center is within walking distance of the APA conference site. Please drop in for a panel or three!
Scalia and the Fourth Amendment: Justice Scalia really ought to apologize to the reporters whose recordings of his speech were illegally seized and erased by federal marshals. I know that Scalia did not ask or authorize the marshals to do this, but they were acting on his behalf, in an attempt to enforce with his anti-recording policy. It would be a gesture worthy of a man of his stature.

UPDATE: It turns out that Scalia already has apologized. Good for him!
Jeff Jacoby on the 9/11 Commission: I haven't been following this issue closely, but Jacoby seems to make some pretty good points.
Canada: A "Pleasantly Authoritarian Country": Picking up on a theme expressed on the Volokh Conspiracy and elsewhere (and citing my You Can't Say That!), John Leo notes the growing threat to freedom of speech from antidiscrimination legislation in Canada. (Via Instapundit) In particular, Canada, joining many of its provinces (and several European countries), is on the verge of making public criticism of homosexuality a crime.

Fifteen years ago, when I was in law school, supporters of hate speech rules argued that there were no slippery slopes, that Holocaust deniers' and pornographers speech could be restricted without damaging the First Amendment. In Canada, they started making exceptions to their constitutional guarantee of freedom of speech just fifteen years ago. Those cases involved Holocaust deniers and pornographers, and now it's illegal to quote biblical condemnations of homosexual acts. No slippery slopes, indeed.
Volokh beats North Korean tyrant: Well, in a limited venue, as Steve Sachs reports:
Nowadays, North Korean dictator Kim Jong Il is primarily known for his reclusive nature, his pursuit of nuclear weapons, and his tyrannical rule of a famine-ridden gulag state. But those who know him well also know him as something of a film buff. In fact, in 2001, he published a book of criticism, On the Art of Cinema, which you can buy at Amazon.com. I haven't had the pleasure of reading it yet, but here's an excerpt from the preface:
The cinema is now one of the main objects on which efforts should be concentrated in order to conduct the revolution in art and literature. The cinema occupies an important place in the overall development of art and literature. As such it is a powerful ideological weapon for the revolution and construction. Therefore, concentrating efforts on the cinema, making breakthroughs and following up success in all areas of art and literature is the basic principle that we must adhere to in revolutionizing art and literature.
Unfortunately, On the Art of Cinema hasn't sold very well thus far, with a disappointing sales rank of #455,145. Kim's other critical work, Kim Jong Il on the Art of Opera: Talk to Creative Workers in the Field of Art and Literature September 4-6, 1974, ranks even lower at #789,855. And his real potboiler, Our Socialism Centered on the Masses Shall Not Perish, reached only a paltry #1,060,827.

What kind of showing is that for the absolute leader of a totalitarian state? Where are the mass purchases, the sycophantic reader reviews? Which faceless apparatchik has fallen asleep at the wheel? (I was tempted to buy a few copies, just to help the poor guy out, but decided that I could find better uses for my money than supporting the concentration camps.)

In a strange twist of fate, Kim's literary success has now been eclipsed by that of UCLA professor Eugene Volokh, whose Academic Legal Writing (which I purchased in the course of revising my thesis) now ranks at a healthy #2,118.

Which should just go to show you: in the fight between the friends and enemies of freedom, the bloggers will always win.
Hear, hear!
Things best left not reported to the police: From the Cameron Herald (Texas), via Vice Squad:
[L]ast Friday evening[,] a man walked into the [police] department to report that a woman had stolen his crack cocaine. . . .

[Police officer Philip] Anelli said the man told him that he and a woman were riding around when he decided to pay for two rocks of crack cocaine. The man planned to smoke one of the rocks and give the other to the woman in exchange for sexual favors. The plan was apparently moving along fine, until the woman smoked both rocks and then ran off without giving up any favors.

Angry, the man went to the police department to turn the woman into the police. . . .
The police pointed out to the man that if his story panned out, both he and the woman would be in pretty serious trouble; "the man weighed his options, then told authorities that he felt like he and the woman could work out the problem on their own, without help from police."
Rockin' Book Tour Enters Home Stretch: The Rockin' Book Tour for Restoring the Lost Constitution is drawing to an end. This week I go to Notre Dame. Next week to the Pacific Northwest.

This week:
Thursday 4/15:
South Bend, Indiana
Notre Dame law school (1:00pm, Moot Courtroom)

Next week:
Monday, 4/19:
Eugene, Oregon
Universtity of Oregon law School (noon, Room 142)
Portland, Oregon
The Cascade Institute & The Portland Federalist Society Lawyers Chapter (5:30- 7:00pm, Details here [RSVP requested])

Wednesday, 4/21:
Seattle, Washington
University of Washington law school (12:30pm, William H. Gates Hall, Room 133)
Puget Sound Lawyers Chapter and the Seattle University Law School Chapter of the Federalist Society (6:00-7:30pm, Details here [scroll down])

Sunday, April 11, 2004

"The Americans Are Jews": Boston Globe:
The 70,000-member police force the US-led coalition has sought hard to promote collapsed in disarray in many parts of the country. Hundreds of police officers and members of the Iraqi Civil Defense Corps quit during the fighting, as barracks and police stations were taken over by militias. Many switched sides and fought US troops.

In Shuala, a Shi'ite suburb of Baghdad that saw fierce fighting between Sadr's militia, the Mahdi Army, and US troops last week, police officers pulled up to the Sadr office in pickup trucks throughout the day to get instructions from the clerics.

"We are policemen, yes, but also Mahdi. And the Mahdi is stronger," said Natik Hussein, a 21-year-old policeman busy taping a poster of Sadr to his police truck as his colleagues played with the siren, turning it on and off. "Sadr is the ultimate authority. The Americans are Jews."
There have been no Jews to speak of in Iraq in this man's lifetime, yet the Jew nevertheless plays in his mind the traditional role of the malevolent outsider, the usurper, the follower of false authority, the evil force against which petty demagogues and thugs of all stripes can organize their militias. If Jews didn't exist, the Hitlers, Stalins, and Saddams of the world would have to invent them, as Sadr and his followers, in effect, have in their own context.
Sunday Song Lyric: While we're on the subject of great songs popularized by someone other than the composer, I thought it appropriate to post one of my absolute favorites: "Crazy." This song was one of Patsy Cline's greatest hits, but she did not write it. Rather, the lyrics were penned by Willie Nelson. Not being much of a country music fan (Patsy and Hank are exceptions), I've always found this a bit surprising. "Crazy" is a great song nonetheless.
Crazy, I'm crazy for feeling so lonely
I'm crazy, crazy for feeling so blue
I knew you'd love me as long as you wanted
And then someday you'd leave me for somebody new
Worry, why do I let myself worry?
Wond'ring what in the world did I do?
Crazy for thinking that my love could hold you
I'm crazy for trying and crazy for crying
And I'm crazy for loving you
Crazy for thinking that my love could hold you
I'm crazy for trying and crazy for crying
And I'm crazy for loving you.
Song Lyric Revisited: One reader takes me to task for omitting the poignant prologue to last week's song lyric, Cole Porter's "Every Time We Say Goodbye":
We love each other so deeply
That I ask you this, sweetheart,
Why should we quarrel ever?
Why can't we be enough clever, never to part?

The ever-vigilant James Lindgren also found it "odd" that I suggested Ella Fitzgerald "helped make famous" songs by Porter and Duke Ellington. My point was not that either Porter or Ellington toiled in obscurity prior to Ella's recordings of their work. To the contrary, I noted that each man's body of work extended far beyond the songs she recorded or otherwise performed. Rather, my point was that her recordings popularized much of each composer's work. Indeed, I suspect that Ella's renditions define some Ellington and Porter songs for many, particularly today. In any event, Prof. Lindgren passed along this link to more on Ella's recordings of the Duke Ellington and Cole Porter songbooks.
LadyKillers & Bob Jones University: I just saw the Coen Brothers' latest film, The Ladykillers. Although a remake of an older film, it retained the quirky Coen feel. One particularly odd touch: an elderly, chuch-going and morally upright African-American woman who sends monthly checks to Bob Jones University. As this was a Coen production, I suppose the reference to that infamous school was deliberate, but it was odd nonetheless.
Which one is it? When you talk with this woman in person, she refers to asymmetric information, not "asymmetrical" information. My dictionary lists the choice as optional, she could have called her blog Asymmetrous Information as well, though that is archaic. Here is her excellent post on health care, from a few days ago.