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Saturday, July 10, 2004

Mac glitch fixed:

For several weeks, the blog didn't show up right on some Mac browsers. That seems to be fixed now.


Should you vote for a third party candidate?

About a week ago Jacob Levy asked whether he should vote libertarian for President, and concluded in the negative, at least for this time around. I have no qualms with Jacob's points, but I will suggest an alternative option for thinking through the problem.

1. Your vote will not count, no matter what. If the election is close, the courts will decide it. "They" won't let me (or Jacob) decide an election.

2. The most important effect of your vote is on yourself. Over time people come to identify with their previous political commitments. "Digging in" is a much more frequent phenomenon than is "conversion." If you vote libertarian [fill in another other party name here], you will likely become more libertarian over time.

3. So ask yourself whether you wish to become, both publicly and privately, more toward the mainstream or more toward your potential third party vote. Make your decision accordingly.

Note that the above analysis is strictly concerned with consequences. You might instead think it is simply the "right thing" to act in a universalizable fashion, a' la Kant. Or perhaps you should vote for "the better man," regardless of consequences; you can imagine other variants on these views. Point granted. But insofar as you wield the sword of consequentialism, recognize that the relevant consequences really center around yourself. A similar analysis can hold, I might add, when choosing across the two major parties; that is my advice to Daniel Drezner.


Russian influences:

Cool -- I just learned that the name of one of my favorite games is apparently derived from Russian. What is it?

(Answer here.)


Friday, July 9, 2004

English words borrowed from Russian: A recent post reminds me of this question — which English words have been borrowed from Russian? Exclude words that are still used to refer only to Russian things, such as borscht, ruble, or samovar. Wikipedia has what looks like a good list, including some that surprised them. Here are my favorites, including some that I hadn't thought of as Russian in origin until I saw Wikipedia. (I knew the Russian equivalents, but I hadn't realized which way the borrowing went.)  

(Click here to see my list.)


Sentencing Guidelines and the Jury Trial Clause post-Blakely:

A Seventh Circuit panel, in an opinion by Judge Posner, essentially holds large aspects of the federal Sentencing Guidelines scheme unconstitutional because of the recent Supreme Court Blakely decision. (That's an oversimplification, but it's close enough.) Judge Easterbrook dissents.

Special bonus: Use of the words "ukase" and "discombobulate." Thanks to Doug Berman (Sentencing Law and Policy) and How Appealing for the pointer.

UPDATE: Geoffrey Manne, a lawprof at Lewis & Clark, notes this little bit of sparring between Easterbrook and Posner:

Note this bit from Easterbrook's dissent:
Procedure first. The Supreme Court alone is entitled to declare one of its decisions defunct. Even if later decisions wash away the earlier one's foundation, still the power to administer the coup de grâce belongs to our superiors. See, e.g., State Oil Co. v. Khan, 522 U.S. 3, 20 (1997); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989). . . . The Supreme Court alone can make a definitive judgment.
Slip Op. at 12. The reference to State Oil v. Khan is particularly poignant. Why? Because the appellate court opinion in Khan goes to great pains to adhere to Supreme Court precedent (precedent, in that case, described as having "increasingly wobbly, moth-eaten foundations") despite its strongly-expressed reluctance to do so. The appellate opinion in Khan practically begs the Supreme Court to reverse, but nonetheless feels bound by existing, if "moth-eaten," precedent. Of course the opinion was authored by Judge Posner. I should mention that Posner does, in his opinion in Booker (in the paragraph containing the word, "ukase," in fact), note the potential conflict with the State Oil v. Khan dictum, and he deals with and dismisses it. Still, Easterbrook's subtle barb seems to have been well-aimed.

Orin Kerr:

I am delighted to report that my friend and former coblogger Orin Kerr, who specializes in criminal law, computer security law, and other matters at George Washington University law school in D.C., is rejoining the blog. He left last year to start his clerkship for Justice Kennedy, and now that he's done, he's back. I'm very pleased that he has returned.


Writing exercise:

I thought I'd pass along, in case anyone is interested, a draft of an exercise that I plan to eventually include in the next edition of my Academic Legal Writing book. Many law students tend to phrase things too abstractly; this exercise aims to help them make their writing more concrete and therefore clearer and more effective. (I realize that this is a matter of style, and different people have different views on the subject, but I'm quite confident that a concrete style is usually — not always, but usually — more effective than an abstract one.)

Consider this first paragraph in an article on laws that prohibit the wearing of masks in public:

The existence of antimask laws poses difficult questions of constitutional law. We know that the freedom of speech is one of our most cherished rights, especially when there is a danger that the free expression of unpopular speakers would be deterred by the fear of negative consequences. And yet the prevention of crime, including crime facilitated by the wearing of masks, must surely be ranked as one of the more compelling of the possible government interests. The public understandably wants to avoid the harm to property, persons, and the social fabric that may flow from such crime.

The purpose of the antimask laws, as the paragraph suggests, is to prevent crime: Anonymity can make it easier for people to get away with crimes; masks facilitate anonymity; so therefore banning masks should (at least in some circumstances) help prevent crime. On the other hand, some people will be reluctant to express unpopular views unless they can do so anonymously, so antimask laws deter some unpopular speech.

The grammar and spelling in this paragraph is fine — but the paragraph is too abstract, and too full of unhelpful generalities. Try rewriting it to make it more concrete, clear, and vivid.

(Click here for my proposed rewrite, and an explanation.)


A google view of the world:

Musing on Jefferson's "We might have been a free and a great people together" line, I did a google search for "a free and a great people together" (without the quotes). Here were the first ten results:

Great Expectation Dating Services

Quality online dating services Internet directory

PACT: Los Angeles Cat and Kitten Adoption and Rescue

Changing Lives Together . . . the online community of Barstow Free Methodist Church . . .

WEDDING DISC JOCKEYS CORPORATE ENTERTAINERS AND KARAOKE DJ ...

Free Dating Service - Online Dating Services

Bridal and Baby Shower Games - Free Bridal Shower Games - Free ...

AESU - Great Deals on European Tours!

Quotes - Democracy.Ru [which didn't include the Jefferson quote]

Free Online Dating Service Directory for Singles by Reystar Dating

Yes, I'm sure this is all pretty sensible if one understands google indexing algorithms. (Had I surrounded the search string with quotes, I'd have gotten the Declaration draft; my whole point was to exclude the quotes and see what google found for me.) No, I have no broad political or philosophical point with it. I just found the juxtaposition amusing.


What might have been:

The alternate history "What if the British had kept America?" thread reminds me of Jefferson's original draft of the Declaration of Independence. Jefferson had a paragraph in which he condemned his fellow Englishmen:

Nor have we been wanting in attentions to our British brethren. . . . [W]e appealed to their native justice and magnanimity, as well as to the ties of our common kindred to disavow [the English government's] usurpations . . . . They too have been deaf to the voice of justice and of consanguinity, and when occasions have been given them, by the regular course of their laws, of removing from their councils the disturbers of our harmony, they have by their free election re-established them in power. . . .

He went on some more, and then had this line, which I've always found quite poignant:

We might have been a free and a great people together . . . .


Adam Smith on What If the British Had Kept America:

Reader Zev Sero points to Adam Smith's take (in 1776) on what would happen if the British kept America (as he thought they should, and they could with the right policies):

Such has hitherto been the rapid progress of that country in wealth, population, and improvement, that in the course of little more than a century, perhaps, the produce of American might exceed that of British taxation. The seat of the empire would then naturally remove itself to that part of the empire which contributed most to the general defence and support of the whole.

As I mentioned earlier, I suspect the English would have resisted this for quite a while, but Adam Smith is Adam Smith and I'm not.


Fertility:

Senator Sam Brownback goes even farther than Stanley Kurtz, offering as a reason for supporting the Federal Marriage Amendment that

The experience of Europe also shows that the decline of the institution of marriage goes hand in hand with a decline in married fertility, and a corresponding decline in population. Because of the birth dearth in Europe, many countries find themselves faced with the prospect of aging (soon to be shrinking) populations and an impending collapse of their social-welfare systems because of a declining ratio of workers to retirees.

towhich, of course, the response is: there's no variation on the dependent variable. All rich developed societies undergo a decline in fertility, regardless of the state of their marriage laws. The United States, Japan, Italy, Ireland, and the Netherlands have very different marriage laws and public cultures regarding sexuality and family life. All have seen very sharp declines in fertility, to levels below replacement. In the absence of immigration, all will see their populations shrink. (Not all of their populations will in fact shrink, as some of those countries have substantial immigration.) Yes, even Ireland, which has the strictest divorce laws of any developed country, no legal abortion, and certainly no same-sex marriage, has below-replacement fertility-- and its fertility was falling fast even before divorce was legalized in the '90s.

So, yes, rich developed countries that have embraced liberal attitudes on homosexuality and divorce and cohabitation have experienced fertility decline. So have all the other rich developed countries. There's not only no causal argument here; there's no correlation.


Who's stupid here?

My friend Arvin Tseng (Rebuttable Presumption) blogs:

Stupid, Dirty Girl

. . . Richard Riordan, former mayor of LA, and now state education secretary, told a 6-year-old girl that's what her name meant. Seriously.

The girl, 6-year-old Isis D'Luciano, asked Riordan if he knew her name meant "Egyptian goddess."

Riordan replied, "It means stupid dirty girl."

I mean, I'm all for making jokes. But they have to be funny. That was just mean, and served no purpose.

What was funny was that:

Democratic state Assemblyman Mervyn Dymally, who had scheduled a protest by civil rights organizations, canceled the demonstration after an apparent mix-up over the girl's racial background.

Dymally was quoted in the San Jose Mercury News Thursday saying the child was "a little African-American girl. Would he (Riordan) have done that to a white girl?"

The girl is white, with blonde hair.

Arvin's post has more, plus the link to the CNN news story (and I hope that at least the CNN story got its facts right).


Fashion slave:

Yes, yes, I knew that, as Virginia Postrel notes, a bad fashion sense isn't actually any defense against a charge of acting fashionably, and that she was suggesting that I might be responding to peer pressure from my fellow academics. I gave a non-responsive defense because a responsive defense to that kind of charge just can't be persuasive, can it? If I were just following academic fashion, I wouldn't admit it and might not know it, so no on-topic evidence will do me any good here.

But I will say this.

Vote for Kerry if you must, folks. But don't pretend you're doing it because Bush's economic policies are insufficiently free market or fiscally responsible.

I'd put it differently. The fiscal profligacy and protectionism mean that I don't have any affirmative reason to vote for Bush in domestic policy. Bush hasn't been such a fiscal/trade stalwart that I want to reward him for his behavior; he's been such a mess on both counts that I want to contribute my 1/200,000,000th of the decision to the lesson that steel, ag, shrimp, textile, lumber, etc protectionism and swollen spending lose an incumbent votes. Re-election campaigns are, rightly, part referendum on the incumbent's performance; and future politicians learn their lessons from the results of those referenda.

But I've never said that one should vote for Kerry on the strength of a head-to-head comparison on, e.g., trade policy. We've had too many mixed signals from his record and his rhetoric to know quite what to think Kerry's trade instincts and policies are.

Bush's fiscal and economic record means only that that set of possible reasons for libertarians to support him are neutralized. My active opposition to Bush, and active hope for Kerry, stems from the overlapping competence/ honesty/ expertise problems, and the way those problems have made a hash of postwar reconstruction.

Glenn Reynolds and others have cast scorn on the Peggy Noonan/ Mickey Kaus "take a break" argument, noting that neither al Qaeda nor rogue states will be taking a break in the meantime. I'd put that differently, too. It takes a different set of skills and virtues to break something than to build something. The war-on-terror argument for the war in Iraq was that the status quo in the Middle East needed to be broken. The Afghan state that was hopelessly entangled with al Qaeda had earlier needed to be broken. It might be that a Democratic President 2000-04 would not have done either. But reconstruction of both Iraq and Afghanistan is also crucial-- crucial for, as Paul Wolfowitz and others always said, beginning any kind of political-cultural shift that weakens Islamism and moves the Muslim and Arab worlds toward civil society and democracy. And the Bush Administration has not shown any ability to manage those reconstructions successfully. This is not a call to hide from the war on terror for four years and hope it goes away. It's a call to understand that overthrowing states is not the crucial skill oif the current phase of the war on terror; and that that's the only skill the Bush Administration has convincingly shown that it has. From Tora Bora to Abu Ghraib, they've been failing at both the fight against al Qaeda proper and at the effecting the political-cultural shift and diplomatic successes that we need.

Update:

See also this Robert Tagorda post, correctly pointing out that Edwards is a trade problem-- not Richard Gephardt, but a trade problem nonetheless. The fact that Bush has a terrible trade record certainly doesn't necessarily mean that Kerry-Edwards will mark a return to Clinton-era policies. And I'm going to be listening, carefully and nervously, to what Kerry and Edwards have to say about trade. I don't expect them to be much better than Bush has been, but I won't be a happy camper if they run a campaign centered on a promise to be worse.

Dan Drezner, here and heretalks through his own sources of uncertainty and indecision-- overlapping a great deal though not entirely with the questions I worried about in reaching a decision. (Ezra Klein answers Dan's questions.) Dan also points out this Ryan Lizza column maintaining that "These attacks on free trade were an awkward fit with the rest of Edwards's middle-class, New Democrat agenda, and they will clearly not be a major feature of the Kerry-Edwards rhetoric." I hope he's right.

Reason's Matt Welsh argues against both Virginia's imputation of heteronomous decision-making and her assumption that a Kerry presidency will be fiscally less responsible than a Bush one.

Finally, expanding on that last point, our own Tyler Cowen, over on Marginal Revolution, makes the case for thinking about the alignments of political forces and incentives that would face a re-elected Bush or a newly-elected Kerry, and concludes that "it is not obvious to me that Kerry would be less fiscally responsible than Bush."


"Capturing the Friedmans":

I saw the documentary "Capturing the Friedmans" last night. The film is about a "normal" family torn apart when the pedophile father and his eighteen year-old son are accused of (and ultimately plead guilty to) violently molesting children who took computer classes in their home. The case arose against a backdrop of hysteria over purported mass child abuse around the country; some of the alleged perpetrators in other cases have been exonerated.

The film is interesting on many levels, but holds some special interest for a professor, like myself, who teaches evidence and expert evidence. (Warning! spoilers ahead!) There is the prosecutor who recalls that the Friedmans had "stacks" of child pornography in open view in their home (suggesting the sort of recklessness that the Friedmans would have to have if they engaged in the sort of abuse alleged), when in fact there was one magazine in a drawer in an office, and another stash hidden behind the piano. One of the accusers recants as an adult in the film, suggesting he was bullied into his allegations by prosecutors. A parent describes witnessing the bullying of his son, and peer pressure from other parents to support their children's allegations with further allegations. Another prosecutor involved in the case admits asking children in molestation cases leading questions, and rejecting answers that tend to exonerate the accused. Another accuser, who initially seems a plausible witness to horrific events, reveals that he remembered nothing about the abuse until his memories were recovered (or invented) under hypnosis. Though the Friedmans are accused of repeated anal sodomy on young children, there is no physical evidence supporting the allegations. The allegations themselves seem so extreme as to be virtually unbelievable (one allegation involved an entire computer class of eight to eleven year olds stripped naked and repeatedly and violently sodomized by two adults, with the parents noting nothing amiss when they picked up their children after class). The son pleads guilty, tearfully begging for leniency based on his claim that his father molested him. Later, he claims that he was never molested, that it was his attorney's idea to make up the story. The attorney, by contrast, swears that the "true" story of the father-son relationship came pouring out of the son one day. Meanwhile, the father admits to molesting children elsewhere, starting with his younger brother, who, fifty-plus years later, claims to remember nothing, making you wonder about the children who now claim, as adults, that their abuse allegations were fabricated. And the father pleads guilty to a long sentence, purportedly to help his son, but without actually cutting a deal with prosecutors to help his son, for reasons that are obscure.

Were both Friedmans falsely accused? Were they guilty, but the allegations exaggerated? Was just the father guilty? Can an admitted pedophile and his son get a fair trial if accused of mass abuse? The film certainly suggests some overzealous behavior by prosecutors, but also a certain level of unwarranted (at least for the father) sympathy for the accused by the director. And the viewer never does hear from any credible alleged victims, and we are never told if that's because there aren't any, because the director didn't talk to everyone, or because he left them out of the movie.

In the end, the director leaves the ultimate issues of guilt or innocence in the underlying crimes unresolved. Highly recommended for anyone interested in criminal law or evidence.

Update:Fascinating overview of the case, with information (previously unknown to me) about the results of studies on pedophilia, by researcher (and fake abuse accusations expert) Debbie Nathan, who concludes that neither Friedman was guilty.


Thursday, July 8, 2004

Check out this sentence,

from the Eighth Circuit federal appellate court, in Rife v. Ashcroft ("this issue" refers to fear of religious persecution):

The record on this issue is not so compelling that no reasonable factfinder could fail to find the requisite fear of persecution from the ambiguous evidence in the Country Report that Israel may be less than receptive to proselytizing by its evangelical Christian residents.


An odd day:

My endorsement of Kerry, my criticism of Bush on grounds of competence, and my criticsm of Badnarik on security grounds have led to some very odd e-mails and blog posts; they've left me disagreeing with people I'm ordinarily very closely algined with and agreeing with people I'd really rather not.

But this has to be the oddest of all: Virginia Postrel, the ever-stylish analyst of aesthetics, has charged me,the academic who went through college in a Grimace-purple corduroy jacket (yes, really) and whose idea of office decor is restacking one of the countless fallen stacks of paper, with being excessively concerned with being fashionable and cool. I really don't know how to react to that, not least because my social circles are pretty different from the ones Virginia refers to to make her point.

Substantively, of course she's right that I will have plenty to loathe in the policies of a Kerry administration. I've never denied it. I'm by no means happy or enthusiastic to be hoping for a Kerry win-- I may be even less happy or enthusiastic about it than Mickey Kaus is. But I do hope for it, and intend to vote accordingly.


Religiosity and peaceful coexistence:

Robert Reich writes, in The American Prospect:

The great conflict of the 21st century will not be between the West and terrorism. Terrorism is a tactic, not a belief. The true battle will be between modern civilization and anti-modernists; between those who believe in the primacy of the individual and those who believe that human beings owe their allegiance and identity to a higher authority; between those who give priority to life in this world and those who believe that human life is mere preparation for an existence beyond life; between those who believe in science, reason, and logic and those who believe that truth is revealed through Scripture and religious dogma. Terrorism will disrupt and destroy lives. But terrorism itself is not the greatest danger we face.

Ramesh Ponnuru (National Review Online) criticizes this on the merits, and also points out that people who adopt Reich's perspective may make more enemies than they need:

One can believe in the political "primacy of the individual," the obligation of all people to answer to God, and the wrongness of any governmental attempt to make them answer to Him, all at the same time. But if our choice is between the primacy of individuals and the primacy of God -- if, that is, we are to choose between individual human beings and God -- then the vast majority of traditional religious believers would have to choose God. . . . That would be the case for plenty of believers who are not sure what they think about abortion law, or want a higher minimum wage. All of us, for Reich, are the enemy.

Here's a tentative thought: As a nonreligious person myself, I can certainly understand some of Reich's arguments in theory. There is, in theory, a vast gulf in worldview between those who believe in a vast range of important things for which there's basically no empirical evidence -- life after death, the existence of a God who has mandated that we follow this or that book, Scriptural miracles, and so on -- and those who demand evidence before having such beliefs.

But in practice, this theoretical gulf seems to have far less impact on the sorts of things that matter in society -- respect for human rights, the maintenance of structures needed for material economic progress, and even development of science -- than one might think. Nonreligious and scientifically minded people have benefited tremendously from a system of civil liberties that was in large measure created and defended by religious people. The most advanced economy in the world exists in a country (the U.S.) that's probably the most religious of the major Western democracies. Isaac Newton and Blaise Pascal did both science and theology, and other scientists have done the same (though I understand that religious belief is considerably less common among American scientists today).

More broadly, most of the principles of liberty, democracy, economic organization, and most of the scientific knowledge that we value -- and that Robert Reich probably values as well, though he may disagree in some measure as to economic organization -- were developed in a pervasively Christian culture, one in which most people believed in allegiance to a higher authority and at least the great importance of a future life. Perhaps these principles would have been developed more effectively or quickly if the culture had been less religious or less devout, or perhaps not. But this fact should at least give us nonreligious people pause before we focus too much on the epistemological or philosophical gulf between us and the religious.

Finally, the history of the 20th century shows us that some faults that were thought by some to be religious -- fanaticism, religious intolerance, totalitarianism produced by an all-encompassing worldview -- are actually faults of humans generally. Atheist Communism has much in common with the Spanish Inquisition.

It seems to me that nonreligious people (especially in America) should be happy about this coincidence of interests and, in many ways, of views between the nonreligious and the religious. Since we're in the minority, it's good that we can make common cause with the majority -- a true "battle" with them will not be pretty. Even if the battle is defined as the nonreligious plus those whose religion is mostly spirituality and morality, with little concern about a higher power or a future life, the battle would be mighty nasty.

Now perhaps the relatively peaceful coexistence in the West of the deeply religious, the deeply secular, and the people in between is a thing of the past. Perhaps in the 21st century the real philosophical gulf that he describes must yield a battle. But I doubt it. And I particularly think that before the secular badmouth the religious too much (and vice versa) they should consider how many valuable aspects of Western Civilization were created by the deeply religious -- and how much we all might continue to benefit from the work of those with whom we strongly disagree on philosophical matters.


America and England:

Tyler's post below reminded me of an observation I once heard when talking about something similar: At some point, a British Empire that included America would have become majority American. After all, the U.S. now has five times the population of the U.K., and while the immigration patterns would have been different had America remained British, I suspect that there still would have been plenty of immigration.

And unlike with India, this would have been a part of the Empire that would have been populated by people who, one way or another, would have ended up being seen as Englishmen (even if many were of other ethnic extraction). I suspect the Americans' complaints about lack of political representation would have been resolved somehow, so the extra population would have meant extra political power. It surely would have meant extra economic power; the economic and cultural center of gravity of the Empire might not have shifted as quickly to the Western Hemisphere, but such a shift would likely have happened eventually.

Moreover, the extra volume of immigration -- which would have been inevitable given America's size, the economic opportunity it represented, and the value of immigration as a means to resist encroachments from the French and the Spanish -- would likely have changed the culture of the aggregate British Empire. Perhaps, as Tyler suggests, the Empire might not have liberalized enough to embrace such a change, and the cultural change might have even undermined liberalization ("How can we give those people more of a say in Imperial councils, when they aren't even real Englishmen, but just the dregs of Europe?"). But I doubt that it could have done so for long.

One possible outcome would have been a peaceful de facto separation a century later, though with de jure rule by the monarch, as happened with Canada, Australia, New Zealand., and, less happily, South Africa But would such a separation have been acceptable to London, had there not been a precedent set with the departure of the American Colonies?

The other outcome, I suspect, would have been a truly bicontinental nation, with the capital still in London but the economic, intellectual, and cultural activity increasingly coming from America -- and the wealthy classes being increasingly ethnically mixed, with the mixture slowly leaking into the political classes as well (remember Disraeli).

Incidentally, one more consequence: A bicontinental British Empire would likely have been a much stronger player in European affairs than England alone was. Think of it as an alliance of the sort we saw in World War II, but permanent. (Naturally, of course, the added value of America would have been less in the 1800s; query, for instance, how valuable America would have been in the Napoleonic Wars, even if it had fought with Britain rather than against it.)

There doubtless would have been some friction when London called on the Americans to help in European wars, but much less than when the two were separate countries. And this suggests that Britain might have been more aggressive in its foreign policy, both in the Europe and elsewhere, with American might added to its own. As is always the case with alternate history, the potential changes quickly snowball.


Was the American Revolution a Good Thing?

Would it have been so terrible if America had remained part of the British empire? Perhaps slavery would have ended sooner and WWI might have been avoided.

Brad DeLong nonetheless endorses the Revolution:

Remember that the political evolution of Britain toward democracy was not foreordained as of 1775. (Indeed, the pressure exerted by the example of the United States was a powerful democratizing force in Britain throughout the whole of the nineteenth century.) Britain in 1775 was a corrupt monarchical oligarchy--albeit one with much softer rule, a much more effective state, and a much broader and more open system of political competition within the oligarchy than has been standard in human empires. It is quite likely that--absent the American Revolution and the Great Democratic Example across the seas, and absent the long reign of Victoria--the political evolution of nineteenth-century Britain would have stuck where it was at the accession of George III, or even moved backward away from democracy to some degree.

I'll add a few points:

1. A split was due sooner or later. When the Revolution came, while there were many refugees, we avoided serious civil war. (That being said, insofar as a causal connection is present, our later Civil War is the best argument against American independence.)

2. America had leaders of uncommon quality at the time of independence. Admittedly this may not have been evident ex ante but certainly it was true ex post.

3. The United States was founded on the pro-liberty ideals of the eighteenth century; the nineteenth century might not have provided such propitious foundations. For instance New Zealand was conceived as a nanny state from the beginning.

4. Much of North American territory probably was more valuable in American hands than French or Spanish. An independent American government had better ability and incentive to gain these lands than would have the Crown.

Historical counterfactuals are always problematic, but I too will endorse the American Revolution.


Wednesday, July 7, 2004

Pun of the day:

"Woad trip," as a throwaway caption in Slate's review of Arthur. (I also like the title, Arthur: On the Rocks, which I take it is an allusion to the other Arthur.)


Combatant Status Review Tribunal:

Here's the Defense Department order establishing it.

Many thanks to Gene Fidell of the National Institute of Military Justice for the pointer.

UPDATE: Marty Lederman (SCOTUSblog), who has thought a lot about the Court's recent military detention decisions, has comments.


More on Conservatives and Flagburning:

In support of Eugene's post below, I recount the following story. I was a student at Yale Law School when the flagburning issue was at its apex during the Bush I-Dukakis campaign. The Yale Federalist Society had an dinner, at which the issue was discussed. At the end of the discussion, I asked for a show of hands as to who thought that flagburning was protected by the First Amendment. Every person in the room (about fifteen, as I recall), including some decidedly nonlibertarian types (including as least two who now hold high positions with GWB), raised his hand. So I doubt that flagburning-as-free-speech really separates conservatives from liberals, but rather elite lawyers from popular opinion.


Flagburning and liberals: Clayton Cramer also writes (in a post aimed at supposedly "pointing out the absurdity of the liberal position"), that "Liberals do believe that" "burning an American flag is a form of free speech." True, many liberals do (probably more than conservatives do).

So did Justice Scalia and Justice Kennedy, who provided two of the five votes needed to strike down the flagburning ban. On the other hand, one of the four votes to uphold the ban was Justice Stevens, who is now one of the most liberal Justices on the Court (and at the time was mostly a member of the liberal wing, alongside Justices Brennan, Marshall, and Blackmun, who were in the majority on the flagburning case).

Now maybe liberal Justice Stevens was right, and conservative Justices Scalia and Thomas were wrong on this. But it seems helpful to recognize that the flagburning-as-speech position and even the flagburning-as-protected-speech position is not just a province of those darned liberals.

For my explanation of why this position is actually correct, and why Cramer's parade of horribles is unsound, see the post below. But my point in this post is that flagburning, at least as a constitutional matter, is hardly a crisp liberal-conservative question.


Flagburning:

Clayton Cramer e-mailed me this about the manure-spreading incident:

[I]f burning an American flag is protected freedom of expression, perhaps spreading manure [as a political protest] is too.

He was of course using it to suggest that flagburning shouldn't be protected, not that manure spreading should be.

I've never bought some conservatives' harping on the supposed ridiculousness of the Supreme Court's flagburning decision. I suspect that most people would agree that flag waving is constitutionally protected. The Supreme Court basically held that in 1931, in one of the Court's first decisions protecting free expression (Stromberg v. California). Would a law banning the waving of the Confederate flag really be obviously fine, because flagwaving isn't literally "speech" or "press"?

I suppose some people might argue that such a law would be constitutional for that reason. But I suspect that most people would disagree, and conclude that waving a flag really is a form of speech, just in a symbolic language. (It may not be oral speech, but unless one thinks that the government should have a broad right to suppress handwritten letters, because they are neither oral speech nor "press," one has to read speech more broadly than just oral speech.) Waving the flag is like wearing a black armband, applauding, saluting, wearing a satirical mask, or wearing a cross or star of David (which is protected both as religious practice and as speech).

It seems to me that flagburning is just as much symbolic speech as is flagwaving. One can argue that it's not very valuable speech, or that there's a specially compelling interest in banning it, as Chief Justice Rehnquist did in Texas v. Johnson. But the Court is quite right to treat it as speech.

Of course, all this deals with restrictions on flagburning on the grounds that it involves a flag. A law that bans the burning of all objects in certain public places — perhaps on the grounds that they are fire hazards — would be constitutional. [*] Likewise with a law that bans the placement of manure in the middle of a street.

So there's really not much tension here between the protection given flagburning and the lack of protection given manure spreading. An evenhanded ban on burning things in a place and an evenhanded ban on spreading manure there would be constitutional. Likewise, a ban on burning the American flag and a ban on spreading manure as a protest against gay pride parades would both be unconstitutional.

* * *

[*] NOTE: Under the United States v. O'Brien test, symbolic speech might be entitled to an exemption even from a generally applicable law — a law that doesn't single out expression — when the symbolic speech is highly unlikely to cause the harm that the law drives at.

This, though, is a very narrow doctrine, under which exemption claimants almost never win. And there are plausible arguments that the doctrine should generally be rejected, at least as to behavior that isn't traditionally expressive. Justice Scalia has been the chief advocate of such arguments, but note that even he recognized in the flagburning cases that a law that punishes expressive conduct precisely because it's expressive presumptively violates the First Amendment.


Another call for "hate crimes" laws:

The Arkansas Democrat-Gazette, July 3, reports:

Police on Friday arrested a man accused of spreading manure along the path of a gaypride parade last Sunday in Conway. . . . [The man is charged with harassment,] a Class A misdemeanor, carrying a maximum fine of $1,000 and up to a year in jail.

The Conway police, fire and street departments were compiling a list of cleanup costs and will ask City Attorney Mike Murphy to pursue restitution . . . .

On Sunday morning, parade organizers John Schenck and Robert Loyd said they found manure spread outside their house at 1605 Robinson Ave. and along the parade route. City workers cleaned the street before the parade began.

Police said a dump-truck load of manure was spread on the street about 6:30 a.m. . . . [Schenck] said the episode showed why Arkansas needed a "hate-crimes" law.

The FBI defines a hate crime as "a criminal offense committed against a person or property which is motivated, in whole or in part, by the offender's bias against a race, religion, disability, sexual orientation, ethnicity/national origin."

How does it show that? Manure Boy is rightly being charged with a crime — spreading manure on a public street is antisocial behavior that harms those nearby, whether paraders or not; you shouldn't be allowed to do that, as political commentary or otherwise. It's properly not a very serious crime, since spreading manure isn't that harmful; a fine and a suspended sentence is likely the right penalty.

But in any event, should the law really treat differently manure spreading aimed at a gay pride parade at a St. Patrick Day's Parade (since hate crimes laws would cover crimes motivated by the target's race and ethnicity), but not manure spreading aimed at a Veterans of Foreign Wars parade or an anti-gay parade? (I assume that the spreader here was motivated by the gay pride paraders' sexual orientation, and not just their views, but the spreader at the hypothetical anti-gay parade would likely be motivated by the anti-gay paraders' political views, not their sexual orientation.)

I generally think that hate crimes laws are not unconstitutional (the Court got this right in Wisconsin v. Mitchell (1993)), though I think that they're on balance a bad idea. But applying such laws to vandalism aimed at gay-affiliated political speech but not other political speech might indeed be unconstitutional; and even if it's not unconstitutional, it is at least especially troubling.

Before the anti-homosexuality people start seizing on this as further evidence of those dominant gays trying to oppress the rest of us, let me mention that hate crimes laws were originally most seriously pushed by groups that see themselves as defending Jews and ethnic minorities. I think those laws are just as unjustified when applied to race, ethnicity, religion, or disability as they are when applied to sexual orientation. But here it looks like gay activists are just trying to get in on the same action that other groups have gotten in the past.

I'm aware that there are plausible arguments that crimes motivated by these factors are especially harmful or especially blameworthy — but I think that on balance those laws do more harm than good (see here for a brief summary of my views). And this incident is a good example of why the law should focus on the misconduct, not the anti-gay motivation behind the misconduct.

UPDATE: My original post erroneously referred to Schenck as the person who is charged with spreading the manure -- my mistake; as the excerpt makes clear, he was the parade organizer and thus in a sense the victim, not the criminal. Very sorry; just typed the wrong name.


Sedition!

"Sedition" is more than just a cool song from Fiddler on the Roof ("Sedition, sedition! Sedition! Who, day and night, must counsel revolution, Stir up mobs of people, urge them to revolt? . . ."). It's also the name of a crime, and a reader asks me: Given how narrow treason is, what's up with sedition?

"Sedition" has many possible meanings, but I think the reader (and some others) have used it to refer to advocacy of revolution against the government, or advocacy of illegal conduct more generally, or even attempts to arouse hostility against the government. The most famous Sedition Act in U.S. history, the Sedition Act of 1798, was limited to seditious falsehoods (though in practice was used against seditious opinions, too), and said that:

[It shall be illegal -- on pain of up to a $2000 fine and 2 years in prison -- to write or publish] any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to

  • defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute;

  • or to excite against them, or either or any of them, the hatred of the good people of the United States,

  • or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act,

  • or to aid, encourage or abet any hostile designs of any foreign nation against the United States, their people or government. . . .

[The Act was to remain in force until March 3, 1801, the last day of the Presidential term in which it was enacted. Bullets added. -EV]

Take away the requirement of falsehood, and set aside the hostile designs of any foreign nation, you have a working definition of "sedition."

Actually committing physical crimes, or conspiring to commit such crimes (i.e., agreeing with specific people to commit those crimes), is still illegal. But mere advocacy of crime is generally constitutionally protected (see Brandenburg v. Ohio (1969)), unless the speech is (1) intended and (2) likely to incite (3) imminent illegal conduct. The classic example is giving a speech to an angry mob, urging them (explicitly or implicitly) to attack someone or destroy some property. Public advocacy of violent conduct at some unspecified future time, on the other hand, is not treated as advocacy of imminent conduct, and is thus constitutionally protected. And imminence seems to be read quite narrowly, as referring to conduct in a few hours or a few days at most.

Now some other kinds of related speech can be restricted under other doctrines. Threatening a particular person, for instance, is unprotected under the threat exception. Soliciting a specific crime against a specific person, especially when done privately ("Please kill my wife"), is also unprotected, though the Supreme Court has never explicitly defined the distinction between this and incitement of nonimminent conduct.

But simply advocating the propriety of illegal conduct, whether it's an illegal sit-in, illegal violence, or revolution, is constitutionally protected (again, unless it's intended to or likely to cause imminent illegal conduct, which is quite unlikely). About a decade ago, for instance, a Florida sheriff urged that Ice-T (who now plays a policeman on television) be charged with sedition because of his Cop Killer song; but that would clearly be foreclosed, even if there was evidence that Ice-T was seriously urging killing of police officers (since he wasn't intending to urge imminent killing). See Lee Sheriff Wants Sedition Charge Over "Cop Killer," Orlando Sentinel Tribune, July 7, 1992, at D6.

Is the right rule? I think it probably is. While it's tempting to say that in a democracy, people who think a law is wrong should urge that it be changed, not urge that it be violated, laws that ban advocacy of illegal conduct quickly end up punishing a lot of speech that's quite valuable. Bans limited to explicit advocacy can be easily skirted; the message "break the law" can easily be conveyed without using those words. So the government will usually, for understandable reasons, try to "close this loophole" by going after implicit advocacy as well.

But much strong condemnation of a law (e.g., "Abortionists are murderers, and the law that allows abortion and protects abortionists from righteous defenders of the unborn is wrong and contemptible") can be credibly argued to be implicit advocacy of violation. The World War I-era cases (such as U.S. v. Schenck and U.S. v. Debs) might be examples of this phenomenon.

So anyone who wants to condemn an existing law will be at the mercy of prosecutors, judges, and juries -- if they conclude that deep down inside he was really intending to advocate breaking the law, and not just condemning the law and advocating that it be changed, then he'll go to prison. And as a result many people might well be deterred from even expressing strong disagreement with a law, for fear that it will be interpreted as implicit advocacy of breaking the law.

But in any case, rightly or wrongly, under the Brandenburg rule nearly all seditious advocacy constitutionally protected.


I'm going to live forever via Dan Drezner, a Chicago Tribune story on the myriad health benefits of coffee. (registration required).
Though the virtues of coffee drinking may have been debated in the past, now there appear to be new reasons to rejoice over java. More and more studies have linked coffee consumption to a number of health benefits, including a reduced risk of diabetes, Parkinson's disease, gallstones, colon cancer and potentially heart disease. "Coffee has much more in it than caffeine," said Dr. PeMartin, director of the Vanderbilt University's Institute for Coffee Studies, which conducts medical research on coffee and is funded by a grant from a consortium of coffee-producing countries. "It's a very complex beverage that contains hundreds of compounds, including many with antioxidant effects." Though the tea industry has been touting its antioxidants, turns out coffee may contain even more--specifically polyphenols. One of the most potent antioxidants in coffee is called chlorogenic acid, which is partially responsible for the coffee flavor. Some reports estimate that more than 850 compounds are packed inside the humble bean. Martin said that the roasting process appears to change the structure of the compounds in coffee--boosting the potential disease-fighting benefits. Martin, who is also a professor of psychiatry and pharmacology at Vanderbilt, is looking at the potential use of coffee compounds to treat addiction and depression. Past studies indicate that coffee may help lift moods, reduce anxiety and depression, and even reduce the risk of suicide. Diabetes risk reduction Some of the strongest and latest research may be the connection between coffee drinking and a reduced risk of type 2 diabetes, a growing health epidemic that is closely linked to the rising rates of obesity. In Finland, where coffee consumption is higher than anywhere else in the world, researchers found that coffee appeared to have a protective effect against the development of type 2 diabetes. The more cups of coffee consumed, the greater the protection. Published in the March 10 issue of the Journal of the American Medical Association, the study examined the coffee-drinking habits of 6,974 Finnish men and 7,655 women. After a 12-year follow-up, women drinking three to four cups of coffee a day experienced a 29 percent reduced risk of diabetes, while risk dropped by 79 percent for women who drank 10 or more cups a day. For men in the study, drinking three to four cups of coffee a day was associated with a 27 percent lower risk for diabetes. Those men who drank 10 or more cups lowered their risk by 55 percent. A second study examining an even larger population in the United States found similar results. After analyzing data on 126,000 people for as long as 18 years, Harvard researchers found that having six or more cups of coffee each day slashed men's risk of type 2 diabetes by 54 per-cent and women's by 30 percent compared to those who avoid coffee. Decaffeinated coffee had a weaker effect. The study was published in the Annals of Internal Medicine.
The article goes on to emphasize that things like frozen strawberry frappucinos are really milkshakes, not coffee, for these purposes. (Does anybody really drink frozen strawberry frappucinos and not understand this?)

KerryEdwards.com:

From the Washington Post:

Indianapolis native Kerry Edwards is feeling pretty good today about his decision to immortalize his name on the Web six years ago.

On Tuesday morning, shortly after Sen. John Kerry (D-Mass.) announced that Sen. John Edwards (D-N.C.) would be his 2004 running mate, the 34-year-old bail bondsman and owner of www.kerryedwards.com said he took down the picture of his child that graced the Web site and put up a for-sale sign.

It didn't take long for the phone to ring.

"Our campaign did inquire about KerryEdwards.com, but because of the money they were asking for we took a pass," said Kerry spokesman Michael Meehan. He said Edwards wanted a five-figure payment. . . .

I'm pretty sure Kerry Edwards' actions don't violate the Anticybersquatting Consumer Protection Act. I also suspect that they don't violate Kerry's and Edwards' right of publicity, though that's a bit more up in the air, given the vagueness of that right. And when it comes time to the smell test, it seems that the domain name owner's being named Kerry Edwards, and having registered your domain in 1998, would make judges lean in the owner's direction, even though he's now trying to exploit the fact that people would go to the site thinking it's related to the campaign. So pay the man his money, folks.


Tuesday, July 6, 2004

Antiwar Libertarianism

My friend and sometime mentor in matters libertarian Roderick Long responds to my post below about Michael Badnarik's position on terrorism and 9/11.

The following three propositions are distinct:

a) The kind of interventionist foreign policy the U.S. regularly pursues is likelier to provoke terrorist attacks than to deter them.

b) The specific attacks the U.S. suffered on 9/11 were primarily a response to its interventionist foreign policy, and the further interventions with which the U.S. has responded are making future terrorist attacks more rather than less likely.

c) The U.S. would never suffer any attacks if it did not have an interventionist foreign policy. Note that (a) does not imply (b), and (b) does not imply (c). We antiwar libertarians have been defending propositions (a) and (b), but in doing so we are not committed to (c) — and no antiwar libertarian known to me has endorsed (c).

which is fair enough, as a response to the charge I literally made, which was that Badnarik emrabced

"silly Panglossianism about politics that says, 'Any wrong must be traceable to another wrong; if only we never did anything wrong, no one would ever do anything wrong to us.'"

That said, I think the rest of Rod's post illustrates my real point quite nicely.

Compare the following three propositions:

d) The kind of interventionist economic policy the U.S. regularly pursues is likelier to provoke economic crises than to deter them.

e) The Great Depression was primarily the result of the U.S. government's interventionist economic policy during the 1920s, and the further economic interventions with which the U.S. government responded served mainly to lengthen the Depression rather than alleviating it.

f) The U.S. would never suffer any economic crises — i.e., there would be no earthquakes, no floods, no hurricanes, etc. — if it did not have an interventionist economic policy. Most libertarians accept propositions (d) and (e); but of course this does not commit them to the absurdity à la Fourier of (f). Isn't accusing antiwar libertarians of Panglossian silliness a bit like accusing libertarians in general of not believing in earthquakes and floods?

Well, no. It's fallacious to treat the cases as so closely analogous. Indeed, Rod has usefully offered one of the neatest accounts I've seen of the fallacy that leads people to treat strict non-interventionism as a matter of libertarian principle.

Politics is not economics, and international politics is really not economics, and terrorism is really, reallynot economics.

In economics, there are sound theoretical, impersonal reasons for very predictable relationships to hold between actions and reactions, between interventions and effects. Those effects don't much depend on the decisions and agency and ideology of other people. Price controls set below the market price will limit the quantity supplied, whether the producers wish it or not; eventually they will not be able to afford to produce goods at a marginal loss.

Action-reaction relationships like thata re much rarer in international politics. The closest thing to an invisible hand/ equilibrium theory in IR is realist balancing, but the predictive value of realist balancing theory is much, much weaker than the predicitve power of basic supply-and-demand economics. And that's with respect to states. With respect to non-state threats, there's even less by way of an invisible hand theory. Terrorists do tend to be "produced" by corrupt states that are authoritarian but less than wholly totalitarian (though totalitarian states do support terrorist movements abroad, they don't spontaneously produce internal terrorist threats). But they're also "produced" by ideology, and by decision. Moreover, there's no iron law that says that foreign intervention produces corrupt authoritarian regimes-- and no law that the terrorists produced by such regimes will target the states that supported the corrupt regimes. Neither Australia nor Spain nor Turkey nor Morocco is responsible for the perpetuation of the Saudi regime; all have been targeted. Terrorism is other people making actual decisions about how to promote their own ends in the world; and neither their ends nor their choice of immoral means is mechanically produced by the actions of the states they target.

Badnarik says:

It was because of American troops in Saudi Arabia, lethal sanctions on Iraq, and other serious violations of International Law that 3,000 innocent Americans paid the ultimate price on September 11, 2001.

Now it's simply untrue that the Iraqi sanctions prompted 9/11. The sanctions were wrong; that doesn't mean that they were a wrong of any great importance to Bin Laden & co. That's what I mean by Panglossianism-- the thought that there's any particular relationship between the rightness or wrongness of our policies and how other people decide to act on us. (It's also not true that either the presence of U.S. troops nor the sanctions was a violation of international law.) There's no invisible hand that leads the radical Islamists of the world to respond violently to our wrongs rather than our rights, or even more frequently to our wrongs than to our rights. And, as an empirical matter, I don't think any such relationship holds in this case, much less for terrorism in general. People can differ on that empirical judgement without falling into fallacy. But it is a fallacy-- one akin to if not quite identical with Panglossianism-- to hold to the invisible hand explanation that terrorism is caused by the moral faults of the victims' governments, that there's some causal mechanism that links the moral wrongness of one state's actions to the decision by other states or non-state actors to take violent action. And I think that fallacy often drives the empirical judgement that terrorism in this case was brought about by policies that the one had independent grounds for disapproving of.

As Rod alludes to, this has all been hashed out many times, mostly in the months following 9/11. I don't expect to change many minds here. For that matter, I'm not (at this stage, anyway) trying to talk anyone else out of voting for Badnarik. I'm just offering my explanation of why I won't do so. If Badnarik were to come in second with tens of millions of votes, or even third with two million and newfound LP credibility, I'd be delighted. But if he were to become President I wouldn't be.

Update:

The Badnarik blog also responds. Rod rejoins. He gets the last word for now.


Treason:

An e-mail from a reader leads me to give this brief refresher on treason. The Constitution defines treason thus:

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

So, some ask, does this mean that anyone who helps our enemies (as the reader suggests John Kerry did with his statements during the Vietnam War) is guilty of treason, assuming the procedural requirements are satisfied?

No. The Supreme Court has held that "adhering" requires an intent to help the nation's enemies. Merely knowledge that one's actions will help the enemies isn't enough. Thus, for instance, in Haupt v. United States (1947), the Court concluded that a father's sheltering his son -- a Nazi saboteur -- isn't treason if his intention was simply to help his son (as a result of "parental solicitude"). To be treasonous, the father's actions had to be intended to aid the Nazis. Likewise, in Cramer v. United States (1945), the Court held that:

On the other hand, a citizen may take actions, which do aid and comfort the enemy -- making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength -- but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.

There are some mid-19th century decisions that take a broader view of treason, for instance concluding that all trading with the enemy in time of war is treasonous, without regard for whether one is intending to help the enemy, or just intending to make money (which one knows will help the enemy, but which one doesn't do with the specific purpose of helping the ennemy). But the modern view is that intention, not knowledge, is necessary.

And this is indeed right, for the reasons Cramer gives. In wartime, many actions may help the enemy. Criticizing the government may help the enemy. Running as antiwar candidate may help the enemy (by emboldening the enemy's allies).

Raising prices, either on goods sold to the military or on goods to the public at large, may help the enemy. So can striking. So can retiring from a high-level job (in government or in essential civilian work), when one knows that one's replacement will be less effective. (None of these may help the enemy vastly, but treason law doesn't require vast assistance, only some assistance.) If all of these actions were treated as treasonous, then we would have a totalitarian regime during every war.

It's actually not clear whether even intentionally aiding the enemy should always be punishable treason, if it's done through speech. For instance, say that an American opinion leader thought during the Spanish-American War that the Spanish were in the right and deserved to win, and argued this intending to help the Spaniards -- and actually helping them, because this emboldened them, weakened domestic morale, and so on. This might well be constitutionally protected speech, though I think some other speech that aids the enemey would not be constitutionally protected; consider the Axis Sally broadcasts from Nazi Germany by Nazi employees (though U.S. citizens), or of course a government employee's revelations of nuclear secrets.

This is a complex issue, and I don't know where the line should be drawn. My friend and fellow lawprof Tom Bell has an interesting draft article about it, though I don't think I entirely agree with him.

But merely knowingly aiding the enemy through antiwar speech -- for instance, when one's intention is to get America out of what one thinks is a wrongheaded or unwinnable war, rather than to help the enemy -- is definitely not treason. One may still criticize it on various grounds, but not on that one.


Workplace Harassment Law and Free Speech:

Glenn Reynolds reports today that some of his readers are concerned that looking at an Instapundit Blogad featuring a nude will get them fired for fear of a sexual harassment lawsuit. He notes the massive censorious effects of sexual harassment law, a topic on which Eugene is the world's leading expert, and on which I wrote about here (based on Chapter 2 of You Can't Say That!). I think my piece may contain the only discussion from an academic book of the famous South Park "Sexual Harassment Panda" episode.


Microsoft Word spell-checking and brackets:

I use Microsoft Word, and I'm generally pretty happy with it. If I'm wrong to be happy, that's fine, but I'm highly unlikely to invest the effort to switch to another word processor.

I would, however, like to be able to get the spell checker to ignore square brackets -- [ and ]. I don't want it to ignore text inside those brackets, only the brackets themselves. As blog readers may have noticed, it's standard legal practice (and I imagine standard in some other disciplines as well) to note changes in quotes using brackets, for instance, "Adher[ing] to [the United States'] enemies." I want the spell checker to treat the first word as simply "Adhering," rather than "Adher" followed by another word "ing."

Is there some way to get Word to do this? I've looked and asked, but couldn't find a good answer. Right now I'm copying the document, changing all [s and ]s in the document to empty strings, spell-checking the copy, and then making the necessary corrections to the original. I wonder, though, whether there's a simple way of avoiding this. (Switching to some supposedly better word processor doesn't qualify as a simple way, though buying a program that can quickly and easily spell-check Word files does qualify.)

If you have any suggestions, please e-mail me at volokh at law.ucla.edu.


Word of the day:

A conversation just reminded me of a word I've always liked -- "Idiolect":

The speech of an individual, considered as a linguistic pattern unique among speakers of his or her language or dialect.

Not a good word to use, mind you, simply because of the minor detail that people won't understand what you mean. And if everyone did understand, then it wouldn't be a good word of the day. But it's still a good word to be amused by . . . .


Edwards: When candidate Bush picked Dick Cheney as his V.P. in 2000, I was impressed, as I thought that Bush chose competence and experience over obvious electoral considerations (I'm sure that one could make the case that Cheney was actually the best pick from a political standpoint, but I didn't think so at the time). I thought Bush learned from the mistake of his father, who picked a pretty-boy lightweight as his own V.P., and lived to regret it.

Enter John Edwards. Like Bush I, Kerry has picked a lightweight for V.P., someone who I have no reason to believe has the experience or depth necessary to lead the nation through its current foreign policy perils if the need should arrive. If Pakistan was suddenly taken over by Islamic militants who seemed about to nuke India, would you really want John Edwards to be President? I can think of many, many, better Democratic choices from this perspective, including Gephardt, Graham, and perhaps even Clinton (Ms.).

I'm bound to receive emails pointing out the Bush Jr. himself had dubious foreign policy credentials, and he was at the top of the ticket. Point taken. And I think if 9/11 had occurred a year or two earlier, this would have been a much bigger problem for Bush, and it probably should have been, anyway. But none of that makes Edwards a good choice for Veep.

UPDATE: Edwards is "Quayle Light." Ouch! And lots of stuff on Edwards The Trial Lawyer at Point of Law. Some of my thoughts on the issue may be found here.

New on Zarqawi:

Last week I quoted from a Robert Novak column on the Zarqawi story. George Stephanopolous has written a letter to the editor of the Post taking issue with the column. (Registration required.)

Novak mischaracterizes an exchange I had with Condoleezza Rice on the June 27 edition of "This Week." I did not ask Rice, as Novak states, "Why did the United States pass up chances to kill terrorist Abu Musab Zarqawi in 2002 and 2003?" Instead, I laid out a series of facts on the public record: that Zarqawi had set up a weapons and training camp in northern Iraq; that the United States had evidence Zarqawi had visited the camp; and that the United States had considered but rejected plans to attack the camp in 2002 and 2003. I then asked Rice: "Was it a mistake not to take out that camp when you had a chance?" Either Novak didn't check the transcript or chose to rewrite my question precisely because it didn't fit his thesis.

Novak goes on to question my motives: "Why would [George] Stephanopoulos bring up another network's March broadcast of an obscure story never reported elsewhere? It has been spread by Sen. Hillary Rodham Clinton to imply that President Bush held back the attack to gain support for invading Iraq." Had Novak bothered to call, I could have told him that I've never discussed this issue with Clinton or her staff. Had Novak done his homework he would have known that possible military action against the Zarqawi camp had been reported not just by NBC News but also by ABC, the Los Angeles Times and columnists such as Andrew Sullivan in the Washington Times and Fred Kaplan on Slate.com. Questions about the failure to strike the camp were raised at hearings conducted by several congressional oversight committees both before and after the start of the war in Iraq.

Each time the questions were asked, administration officials declined to answer them in public session or provided incomplete, equivocal responses. Novak himself admits that the public responses from Pentagon and CIA officials have been "cautious" -- which is why I raised the question with Rice. While she did not acknowledge that an attack against Zarqawi's camp had been contemplated, she did say that "Zarqawi was on people's radar screens" and described the administration's efforts to capture Zarqawi and cripple his network. Her conclusion? The United States "never had a chance to get Zarqawi."

Rice's answer is the most forthcoming description of actions taken against Zarqawi and his network that I have heard from a top administration official. I have no reason to doubt it. Considering the havoc being created by Zarqawi in Iraq right now, I'm glad "This Week" viewers got to hear it.

Stephanopolous takes-- or at least says he takes-- Rice's statement as being more definitive than I take it to be; I've already blogged about that. Just wanted to keep you up-to-date on the latest.


Justice Scalia endorses reliance on foreign legal practices.

Two years ago, Ring v. Arizona (in which Justice Scalia concurred) held that the Jury Trial Clause requires juries, not judges, to find the basic facts underlying the aggravating factors that cause the imposition of a death sentence. But what to do about people who had already been sentenced under the old scheme, and whose sentences were now being reviewed via habeas corpus?

The standard doctrine generally says that new constitutional rules aren't retroactive as to habeas cases, unless the new rule is needed to make the judicial process substantially more accurate. So does the Ring jury trial requirement qualify? In Schriro v. Summerlin, which was decided a few weeks ago, Justice Scalia (writing for the five conservatives) held that it doesn't — and here's the core of his argument:

The question here is not, however, whether the Framers believed that juries are more accurate factfinders than judges (perhaps so — they certainly thought juries were more independent). Nor is the question whether juries actually are more accurate factfinders than judges (again, perhaps so). Rather, the question is whether judicial factfinding so "seriously diminishe[s]" accuracy that there is an "'impermissibly large risk'" of punishing conduct the law does not reach. The evidence is simply too equivocal to support that conclusion.

First, for every argument why juries are more accurate factfinders, there is another why they are less accurate. . . . Members of this Court have opined that judicial sentencing may yield more consistent results because of judges' greater experience. Finally, the mixed reception that the right to jury trial has been given in other countries, though irrelevant to the meaning and continued existence of that right under our Constitution, surely makes it implausible that judicial factfinding so "seriously diminishe[s]" accuracy as to produce an "'impermissibly large risk'" of injustice. When so many presumably reasonable minds continue to disagree over whether juries are better factfinders at all, we cannot confidently say that judicial factfinding seriously diminishes accuracy.

This is a sensible argument, and the distinction Justice Scalia draws with regard to foreign practices — not relevant to the meaning of the right, which should be decided with reference to the Framers' views and American traditions, but relevant to empirical questions, such as those that the Court's retroactivity rules raise — is a plausible one. But it's important to note that even Justice Scalia, a firm critic of certain kinds of reliance on foreign practices, finds it proper to draw such distinctions, and to consider foreign practices in some situations.

I think critics of some Justices' use of foreign law — especially the shrillest critics, who denounce such use as a near betrayal of the Justices' oath — should keep these distinctions, and other similar ones, in mind. Thus, for instance, the reference to foreign attitudes in the Lawrence v. Texas majority may be different from the reference to such attitudes in the Grutter race preferences case, and still other uses of foreign practices might be treated differently still.

For more on this, see here, here.


Don't believe everything you read:

I like Linda Greenhouse a lot, and she's certainly a very experienced and knowledgeable Supreme Court reporter. Still, I noticed this inaccuracy in her end-of-Term piece Saturday:

The second of the chief justice's major opinions came in an important church-state case, Locke v. Davey. The question was whether a state that underwrites college scholarships for secular study must also subsidize students who want to study for the ministry. The argument for the religious subsidies built on Chief Justice Rehnquist's opinion for the court two years ago in a school voucher case from Ohio, holding that it did not violate the Constitution for states to give parents vouchers for religious school tuition as part of a general "school choice" plan.

As a practical matter, the future of the school-choice movement depended on the answer to the question Locke v. Davey brought to the court: if vouchers were permissible, were they also constitutionally required? . . .

If that were really the question in Locke v. Davey, it would be quite remarkable -- I know of no Supreme Court or federal appellate opinion that has ever suggested that vouchers were constitutionally required. Clearly a state is constitutionally entitled to subsidize only public schools. (There are arguments that the state shouldn't be entitled to monpolize publicly funded education this way, but they are clearly losing arguments under today's doctrine, and likely wouldn't draw a single vote on any federal court.)

The question in Locke was different -- given that equal treatment of religious education and secular private education is permissible, is such equal treatment also constitutionally required? Davey's claim wasn't that vouchers were constitutionally required -- it's that once a voucher is given for a wide range of secular private education, religious private education couldn't be treated any worse.

This question is much closer, which is why the Ninth Circuit accepted this claim, as did two dissenters on the Court, in my view rightly. A careful reader might understand that this is the real issue, notwithstanding the way the article framed the question (especially given the paragraph that comes before). But I suspect that an average reader, who is breezing through the piece, would take the question quite literally.

I'm also not wild about framing the issue as an "argument for the religious subsidies." We probably wouldn't call an argument for evenhandedly including black applicants alongside white, Asian, Hispanic, and other applicants in some subsidy program -- with no distinction based on race -- an "argument for subsidies for blacks." We'd call it "an argument for equal treatment for blacks." Still, this is a somewhat closer matter; the framing of the question in the following paragraph is more clearly inapt.

So that's just another reminder of the need for caution in reading even work from experienced, respected writers: Mistakes happen, especially when one is writing with a short deadline, and with a word limit that sometimes yields imprecise shorthand. Even when an expert is writing (whether the expert is a Supreme Court journalist or a law professor), the reader should always be careful and skeptical. Unfortunately, many readers, especially ones who are quickly skimming the article, aren't likely to invest the effort into such skepticism -- and a writer's error can become an error in the thinking of hundreds of thousands.


Why Not Vote Libertarian?

Aeon Skoble, one of my favorite correspondents and now a guest-blogger at Liberty & Power, asks, quite reasonably,

All of the reasons he gives for being dissatisfied with Bush are perfectly valid, but I don't see why that implies voting for Kerry. Why not vote 3rd party, or just stay home that day? Bush's shortcomings aren't pluses for Kerry if Kerry himself is also objectionable, as Jacob notes he is.

Several people have said something similar in e-mail or in comments on other people's blogs, all apropos my unenthusiastic statement of intent to vote for Kerry last week. (It was then a conditional statement of intent-- conditional on Kerry not picking Gephardt. It's now a statement of intent.)

I offer a quick statement of my own reasons for abandoning an uninterrupted habit of Libertarian presidential votes. This isn't an attempt to persuade people not to vote Libertarian. A thriving LP seems to me a very good thing, and I'll probably vote Libertarian for every downticket race in which there's a candidate.

First, this is really the first presidential race of my adult life in which I've had a very strong commitment about which major-party candidate was the lesser evil. I've had leanings in previous races, but they were uncertain, and typically mitigated by a sense that both major-party candidates had crossed some threshold of unacceptability. This time, it seems very clear to me that the Bush Administration has failed basic tests of competence in policymaking and execution, and of trusteeship of long-term interests like alliances and trade negotiations and moral credibility. I expect to dislike an awful lot of John Kerry's policies. But I don't expect that kind of failure of the basic responsibilities of the office. Four or eight or twelve years ago, I guess I wouldn't have known how important I found those considerations, as I hadn't seen a president who had failed along those dimensions. Now I have, and I do.

Second, my LP enthusiasm is much diminsihed, both by inevitable third-party burnout and by a sense that the party never really came to terms with the Browne finance scandals. This is a very minor consideration, but it does have something to do with the absence of any LP fire in my belly.

Third, and most important: I find that this year I can't actually will the universalization of an LP vote. That is, I don't want Badnarik to become President. Casting a vote for him in the sure knowledge that he won't adds some infinitessimal weight to the LP's public cause and credibility, and that's good. But I've always voted in good faith for the person I most wanted to be elected President (heretofore always knowing that they wouldn't be, but still sincerely willing it). Contrary to what third-party enthusiasts sometimes say, those have been least-evil votes as well-- not least because I knew I was trading off policy agreement for a radical lack of actual governing experience and probable competence. (Yes, I know that "lack of governing experience" is self-fulfilling, if one never votes for third party candidates because they've never held office. It hasn't stopped me from voting for them, but it counts against them.) But, choosing among the available candidates, I was able to sincerely will a Libertarian win.

This year I can't, partly because it turns out I do value governing competence pretty highly, partly because Badnarik is conspicuously inexperienced even as LP candidates go, but mostly because of this.

First, allow me to dispel a myth. People in the Middle East do not hate us for our freedom. They do not hate us for our lifestyle. They hate us because we have spent many years attempting to force them to emulate our lifestyle.

The U.S. government has meddled in the affairs of the Middle East far too long, always with horrendous results. It overthrew the democratically elected leader of Iran and replaced him with the despotic Shah. After making Iranians the enemies of Americans, the U.S. government gave weapons, intelligence and money to Iran's mortal adversary, Saddam Hussein. The U.S. government also helped Libyan tyrant Col. Qaddafi come to power, propped up the Saudi monarchy and the Egyptian dictatorship, and gave assistance to Osama bin Laden.

Most Americans have forgotten these events. But the people of the Middle East will always remember.

It was because of American troops in Saudi Arabia, lethal sanctions on Iraq, and other serious violations of International Law that 3,000 innocent Americans paid the ultimate price on September 11, 2001.

The proper response would have been to present the evidence as to who committed the heinous act both to Congress and to the people, and have Congress authorize the president to track down the individuals actually responsible, doing everything possible to avoid inflicting harm on innocents.

A Libertarian president would not have sent the military trampling about the world, racking up a death count in the thousands, wasting tax money on destroying and re-building infrastructure, creating more enemies, and doing the kinds of things that led to 9/11 in the first place.

This goes beyond opposition to the war in Iraq. This amounts to a radical misunderstanding of 9/11, Al Qaeda, and the reality of radical militant Islamism. It's an insistence that even the Afghan war was unjustifiable and unjustified. And it's the kind of silly Panglossianism about politics that says, "Any wrong must be traceable to another wrong; if only we never did anything wrong, no one would ever do anything wrong to us." That falls below my threshold of a responsible understanding of the state of the world right now. It's out of the realm of policy disagreement and into the realm of a view of the world that I can't responsibly wish the inhabitant of the White House to hold. Security, as Democratic leaders warned Dean enthusiasts last year, is a sine qua non in this election.

At some level this is silly, of course. I could vote for Badnarik in complete confidence that my vote wouldn't put him into office, and I'd never have to worry about it again. But I do try to vote as if my vote would be decisive, irrational as that is. It's always led me Libertarian in the past. Absent some radical unforeseen change in Kerry, it won't this time. This time I've got a clear preference that the incumbent be turned out, and a clear threshold difference with the Libertarian. I trust Kerry's basic competence, and trust his basic understanding of the security situation. Neither of those statements is high praise. But I need to be able to say them both about a candidate I can vote for in good faith.

Update:

I'm not sure I'd want to commit to this as a universal principle, but I quite liked the sound of the following from a commentator at Kevin Drum's site: It's better to have a big competent government that admits it's big, than a big incompetent government that pretends it's small.

Reliving history:

Here are some old Presidential TV commercials, dating back to 1950. You can even view Ronald Reagan from 1964. Thanks to the ever-excellent Geekpress.com for the pointer.


VP:

Not Gephardt.


Israeli Successes in the War on Terror:

It hasn't received much coverage in the American media (but see this Krauthammer column), but Israel has been scoring a series of remarkable successes in killing or capturing leading figures of all the major terrorist groups in the West Bank. Last night, the leader of the Nablus Popular Front for the Liberation of Palestine and his deputy were killed (an Israeli soldier and two civilians also died, the civilians after the PFLP leader heroically ran into an apartment building occupied by civilians, and shot at Israeli soldiers, wounding one, while using the civilians as shields). Because of Israel's aggressive use of force and the building of the first part of its defensive barrier, there have been no suicide murders within Israel for months. There may not be, as the Israeli Left constantly argues, any military solution to suicide bombings, but it sure seems that the military can help quite a bit. That's one lesson. The other lesson is the effectiveness of going after the terrorist leadership--cutting off the head of the snake, as they say, actually works. There may be just as many (or more) young Palestinians willing to be suicide murderers, but without proper logistics, weapons, etc., they are impotent.


Monday, July 5, 2004

Quote of the day:

From Timothy Noah, arguing that Barbara Ehrenreich should be kept on as a permanent NYT op-ed columnist.

If keeping Ehrenreich on the Times op-ed page requires the jettisoning of Maureen Dowd or Bob Herbert, Chatterbox is prepared to make that, ahem, sacrifice.


Sunday, July 4, 2004

Lesbian Cruising.

The Impressiveness of Farenheit 911: Having read the lengthy piece by David Kopel, Fifty-six Deceits in Fahrenheit 911, I was struck by the sheer cunningness of Moore's film. When you read Kopel, try to detach yourself from any revulsion you may feel at a work of literal propaganda receiving such wide-spread accolades from mainstream politicos, as well as attendance by your friends and neighbors.

Instead, notice the film's meticulousness in saying only (or mostly) "true" or defensible things in support of a completely misleading impression. In this way, Kopel's care in describing Moore's "deceipts" is much more interesting than other critiques I have read, including that of Christopher Hitchens. Kopel's lawyerly description of Moore's claims shows the film to be a genuinely impressive accomplishment in a perverse sort of way (the way an ingenious crime is impressive)--a case study in how to convert elements that are mainly true into an impression that is entirely false--and this leads in turn to another thought.

If this much cleverness was required to create the inchoate "conspiracy" (whatever it may be, as it is never really specified by Moore), it suggests there was no such conspiracy. With this much care and effort invested in uncovering and massaging the data, if there really was a conspiracy of the kind Moore suggests, the evidence would line up more neatly behind it, rather than being made to do cartwheels so as to be "true" but oh-so-misleading. If the facts don't fit, shouldn't we acquit?

Update: Fred at Stone Court correctly notes an aspect of Kopel's column I decided not to mention: His count of 56 "deceits" is padded. Some items he takes issue with are not "deceits" and, in at least once case, I noticed what seemed to be double counting. So Fred's point is an entirely fair one. What I think is most interesting about Kopel's post, however, (and what I chose to blog about) is not the number of "deceits" he identifies but the cleverness with which he shows how Moore uses "true facts" (as the National Lampoon used to say) to give a false impression. To defend these particular claims of Moore as "true" or "defensible" is to miss the point I was making of why Kopel's list is so interesting and instructive.


Sunday Song Lyric: It is hard to think of a more appropriate song lyric for the Fourth of July than the national anthem. While everyone knows the first verse to Francis Scott Key's Star Spangled Banner, hardly anyone knows the second (let alone all four). Of note, the anthem was written during the war of 1812, not the Revolutionary War. Key, a lawyer (imagine that!), was inspired by the sight of the flag raised above Fort McHenry after the British had shelled the garrison through the night in 1814. Both the song and the flag became known as the "Star Spangled Banner." Here are the lyrics:

Oh, say can you see, by the dawn's early light,
What so proudly we hailed at the twilight's last gleaming?
Whose broad stripes and bright stars, through the perilous fight,
O'er the ramparts we watched, were so gallantly streaming?
And the rockets' red glare, the bombs bursting in air,
Gave proof through the night that our flag was still there.
O say, does that star-spangled banner yet wave
O'er the land of the free and the home of the brave?

On the shore, dimly seen through the mists of the deep,
Where the foe's haughty host in dread silence reposes,
What is that which the breeze, o'er the towering steep,
As it fitfully blows, now conceals, now discloses?
Now it catches the gleam of the morning's first beam,
In full glory reflected now shines on the stream:
'Tis the star-spangled banner! O long may it wave
O'er the land of the free and the home of the brave.

And where is that band who so vauntingly swore
That the havoc of war and the battle's confusion
A home and a country should leave us no more?
Their blood has wiped out their foul footstep's pollution.
No refuge could save the hireling and slave
From the terror of flight, or the gloom of the grave:
And the star-spangled banner in triumph doth wave
O'er the land of the free and the home of the brave.

Oh! thus be it ever, when freemen shall stand
Between their loved homes and the war's desolation!
Blest with victory and peace, may the heaven-rescued land
Praise the Power that hath made and preserved us a nation.
Then conquer we must, for our cause it is just,
And this be our motto: "In God is our trust."
And the star-spangled banner forever shall wave
O'er the land of the free and the home of the brave!

Update: A reader informed me of Isaac Asmiov's history and celebration of the national anthem. A must read for Independence Day.


Happy Fourth of July!