Wednesday, July 14, 2004

All constitutional lawyers agree

that the Defense of Marriage Act is unconstitutional. So said Sen. Rick Santorum on the NewsHour (see here, roughly at the 9 minute mark), explaining why the Federal Marriage Amendment is needed:

The Supreme Court case in Lawrence versus Texas last year was very clear. The majority opinion was very clear. It signaled clearly that the Defense of Marriage Act was not going to stand. Every left, right, and middle constitutional lawyer in this country have all said that as a result of the Lawrence decision, the Defense of Marriage Act will not stand.

Yesterday on CNN, Sen. Hatch likewise said "most likely all constitutional authorities say the Defense of Marriage Act will be ruled unconstitutional" (I'm quoting a transcript on this).

Now I don't want to quibble with the "every . . . constitutional lawyer" — Sen. Santorum is entitled to a bit of hyperbole. But even taking that into account, it semes to me the Senator is just wrong. The Court did not clearly say or signal that DOMA was unconstitutional; the Court held that criminalizing sexual conduct violated people's liberty, not that homosexual couples were entitled to equal access to the benefits flowing from marriage. And my sense is that most constitutional scholars (not all, but most) that have considered the issue believe DOMA would be upheld. Indeed, some people, mostly liberals, have argued that DOMA is unconstitutional — but not remotely the broad swath that Santorum is suggesting.

One can plausibly argue that courts might strike down DOMA. I doubt that they will, but if one thinks that would be a really awful result, one could argue that we should preempt it now, rather than waiting for later. Of course, if one's concern is really about courts forcing the pro-gay-marriage position on states that oppose gay marriage, the solution would be an amendment that constitutionalizes DOMA. There'd be no need for an amendment that would force the anti-gay-marriage position on states that support gay marriage (which is what the FMA would do).

But in any event it seems to me incorrect to argue that somehow the courts' striking down DOMA is a foregone conclusion — and especially to argue that all or nearly all constitutional lawyers make such a prediction.

NOTE: It would also be wrong, I think, for those who say DOMA is unconstitutional to use DOMA's existence as an argument for why the FMA is unnecessary. (I suppose they could argue that DOMA is unconstitutional but courts will still uphold it, so the FMA is unnecessary because of that; but that still doesn't seem quite right to me, because they'd essentially be arguing that their fellow citizens should just rely on the government's violating the constitution. At the very least, such an argument ought to be made explicitly.)

If anyone can point me to specific examples of both of these arguments being made, likely at separate times, by a particular person or organization, I'd love to see that. Note, though, that I'm looking for the person or group making specifically those arguments. It's not just that they argue that DOMA is bad policy and that the FMA is unnecessary, or that DOMA is unconstitutional and that the FMA is unwise, or anything else. To deserve condemnation, they need to have argued that DOMA is unconstitutional and have also argued that the FMA is unnecessary because of DOMA.

Taxpayers paying for damages caused by Rep. Janklow's car accident:

Interesting little illustration of the way lawsuits against federal officials sometimes work, from the AP -- both as to who pays, and as to the resulting limits on punitive damages. I express no opinion about whether this is the proper result, but it seems interesting:

Former U.S. Rep. Bill Janklow was on duty when he caused a fatal accident last summer, so taxpayers should pay any civil damages in a wrongful death lawsuit, according to a court ruling Tuesday.

U.S. Magistrate Arthur Boylan sided with U.S. Attorney Tom Heffelfinger's conclusion that Janklow, 64, was on official business Aug. 16 when he sped through a stop sign near Trent and collided with motorcyclist Randy Scott, 55, of Hardwick, Minn.

Boylan concluded that the federal government, not Janklow, should be listed as the defendant in the lawsuit filed by Scott's mother, sister, son and daughter.

The family's lawyer, Ronald Meshbesher of Minneapolis, wanted the case moved back to state court in Minnesota so the family could get punitive damages, something not allowed if the case stays in federal court. . . .

Janklow had appointments or appearances over two days in Rapid City, Pierre and Aberdeen and was on his way to his Brandon home when he went through a stop sign at an intersection of two county highways. . . .

The magistrate also concluded that Janklow's driving habits did not remove him from coverage by the Federal Tort Claims Act that legally protects federal employees.

"It is foreseeable that improper driving conduct, including conduct that can be construed as reckless, would occur," Boylan wrote. . . .

Janklow, who was elected to Congress in 2002 after serving a total of 16 years as governor, spent 100 days in jail after being convicted of speeding, running a stop sign, reckless driving and second-degree manslaughter. He resigned from the House in January. . . .

Thanks to reader Dennis Callahan for the pointer.

Soliciting ideas for Academic Legal Writing:

I hope to put out a second edition of my Academic Legal Writing book eventually. If any of you have used it, can you suggest any changes, or let me know what you'd like to see added? Please let me know, at volokh at And if you run a legal Weblog that has some law student readers, and could pose this question to them, I'd be very much obliged. Many thanks in advance.

Crime of violence vs. crime of sex:

Some research I was doing recently reminded me of the familiar line, "rape is a crime of violence, not a crime of sex." It's certainly true that rape (setting aside statutory rape and a few other unusual situations) is a crime of violence. I also suspect that most rapists aren't just after ordinary sexual gratification, but also want the feelings of domination (or something like that) that come from the violence of the act. Given the serious penalties for rape, and even taking into account the difficulty of catching and convicting the rapist, committing rape just to get ordinary sexual gratification is a pretty expensive proposition.

But it seems to me pretty likely that there's a false dichotomy here. In fact, rape seems to be both a crime of violence and a crime of sex -- the rapist is motivation by sexual desire as well as by the desire for domination (and the two may well be intertwined). The best evidence that I've seen for this is the breakdown of rape by age of victim (see National Crime Victimization Survey data, table 4):

Age range

Rate per 1000 women in the age group (* = estimates based on 10 or fewer sample cases in the survey)













65 and over


Rapists seem to select victims in age ranges that are pretty highly correlated to the generally understood peaks of sexual attractiveness. Yes, there are rapes of older women; yes, women outside the highest-risk groups are sexually attractive; but the correlation is still quite striking.

Now of course there may be other explanations: For instance, younger women may spend more time in places where rapes might occur. Indeed, the simple assault and robbery rates peak in the same age ranges, too (see the same table) -- but the rates level off far more gradually, for instance with simple assault per 1000 women in the age group going from 32.8 for 12-15 to 37.1 for 16-19, 23.7 for 20-24, 15.9 for 25-34, 12.1 for 35-49, 7 for 50-64, and 1.4 for 65 and over. (Simple assault is defined as successful or attempted "[a]ttack without a weapon resulting either in no injury, minor injury . . . or in undetermined injury requiring less than 2 days of hospitalization"; the way the NCVS treats this, it seems to exclude the great majority of rapes or attempted rapes.)

Also, younger women tend to date younger men, younger men tend to be more likely to commit crimes, so younger women may be more likely to be victimized by date rape. But though roughly 2/3 of rapes involve nonstrangers (see table 27 here), 1/3 involve strangers, so the drop-off even for stranger rapes seems to be quite striking (see table 29 for data, though note that again there are relatively few cases in the survey for each category).

Again, perhaps there's some other explanation that completely eliminates the connection between rape and the offender's likely sexual interest in the victim. But given the data, I find that pretty implausible. Rape seems generally to be a crime of violent sex, not of violence or sex alone.

United States v. Councilman: This Time the Sky Really *Is* Falling:

In debates on Internet surveillance law, I often end up arguing that reports of privacy's death have been greatly exagerrated. For example, I wrote a law review article in 2002 describing the effect of the USA Patriot Act on Internet surveillance law as The Big Brother That Isn't. Two weeks ago, however, the First Circuit decided a case called United States v. Councilman that poses a very real threat to Internet privacy. There has been some press on the case already, but some writers and commentators have also suggested that the decision really isn't a big deal. Declan's take is representative of the no-big-deal school:

the folks who are most upset about this haven't read the court's opinion carefully, and those that have are discounting the ability of state law and tort sanctions to keep people in line. There are other mechanisms than just federal wiretapping law that can enforce good behavior.

I disagree with Declan, and thought it might be worth explaining why the Councilman decision is so dangerous.

First, a bit of background. Federal law protect e-mail privacy through two primary laws: the Wiretap Act, codified at 18 U.S.C. 2510-22, and the Stored Communications Act, 18 U.S.C. 2701-11. The Wiretap Act offers very strong protection against the real-time interception of telephone or Internet communications. If any one tries to step in and snoop on the contents of another person's communications, they commit a federal felony offense unless one of several fairly narrow exceptions applies. If the government tries to do this, they need a super-search warrant called a Title III order. In contrast, the Stored Communications Act sets up lesser privacy protections for access to stored communications. First, the law is much narrower; it applies only to files held by particular providers, and has much broader exceptions. Second, the prohibition against snooping on stored files is much narrower and ordinarily a misdemeanor. Third, law enforcement access to stored files is normally governed my a basic warrant requirement, rather than a super-search warrant requirement. Why the different treatment for stored and in-transit communications, you wonder? Well, there are a couple of reasons, but one important reason is that the Supreme Court suggested in Berger v. New York that in-transit interception requires special protections under the Fourth Amendment. (By the way, I discuss how the Wiretap Act applies to the Internet in the Big Brother article I linked to above. I also give a basic explanation of the Stored Communications Act in a forthcoming article you can download in draft form here.)

The Councilman case addresses an ambiguity in the line between the Wiretap Act and the Stored Communications Act. The question is, when is a file stored, and when is it in transit? This is a big question because on the Net communications are often at rest for very brief periods of time in the course of transmission, and the statutory text doesn't make particularly clear whether access to a file that is at rest for a nanosecond is supposed to be covered by the Wiretap Act or the Stored Communications Act. Councilman involved an ISP employee who wrote and installed a computer program to scan incoming e-mail of the ISP's customers; ISP employees would then read the e-mails and try to use them for the commercial advantage of the ISP. In a nutshell, the First Circuit held (by a vote of 2-1) that because the program scanned the e-mails while they were at rest for a nanosecond, the e-mails were in storage at that time and access to them was covered by the Stored Communication Act, not the Wiretap Act. Because Councilman had been indicted for violating the Wiretap Act, the Court affirmed the dismissal of Councilman's indictment.

Why is this decision a big deal? It's a big deal because the line between the Wiretap Act and the Stored Commmunications Act doesn't just regulate ISPs. It regulates everybody, including federal and state criminal investigators. The Justice Department and Congressional staffers have interpreted the Wiretap Act quite broadly and the Stored Communications Act quite narrowly, and based both existing practice and recent legislative amendments on that understanding. When I was at DOJ advising agents on this sort of thing, the informal yardstick was that when a law enforcement agent planned a series of accesses to a file or account, the repeated series of accesses triggered the Wiretap Act rather than the Stored Communications Act. So in a pre-Councilman world, an FBI agent couldn't make an end-run around the Wiretap Act by lining up a bunch of warrants and executing them once every ten minutes. This approach remained true to the Supreme Court's decision in Berger and also ensured that the strong privacy protections of the Wiretap Act were not gutted by end-runs around the statute.

The Councilman approach largely nullifies the Wiretap Act online, by contrast, with rather remarkable implications. It is my understanding that when the FBI gets a Wiretap order to install a network wiretapping device such as Carnivore, they usually install the device at a nanosecond-storage point. Well, guess what, folks-- that's no longer regulated by the Wiretap Act. Under Councilman , DOJ can install Carnivore with at most only a search warrant. Even worse, the FBI doesn't need a search warrant at all if the owner of the computer where Carnivore is installed consents and that owner is a University or business other than an ISP. Because the exceptions to the Wiretap Act are narrow while the exceptions to the Stored Communications Act are much broader, the switch from protection via the former to via the latter is not only a switch to lesser protection, but in many cases a switch to no protection at all. For example, if the FBI wanted to install Carnivore at my university's servers and the university was willing to let them do this, the FBI could monitor all of my incoming and outgoing e-mail (and all of the e-mail of everyone at the University, for that matter) in real-time without any legal process or oversight whatsoever. Do you remember the controversy over the "computer trespasser" exception to the Wiretap Act, which was one of the most controverial sections in the USA Patriot Act? Under Councilman, that kind of monitoring generally will not even implicate the Wiretap Act in the first place, so the monitoring is no longer limited by the specific statutory requirements of the trespasser exception. Bad stuff. Very bad.

There are rumors afoot that Congress may step in and fix this problem soon. Fortunately, the politics are a win-win: both DOJ and civil liberties groups want the prior understanding restored. There is even proposed statutory language floating about that would do the trick quite nicely. Let's hope that Congress acts sooner rather than later. Stay tuned.

Chirac relents:

France will have a referendum on the proposed EU constitution in the second half of 2005. (Story is in French.)

Other bits and pieces from the President's Bastille Day interview:

Chirac reaffirmed his commitment to the 35-hour workweek but expressed support for liberalizing the law to increase the freedom of workers "who want to work more in order to earn more." He denounced gay marriage as "a parody of marriage," but discussed further improvements and expansions of the rights associated with the French equivalent of civil unions. He reiterated his stock hostility to "communitarianisme" ("communalism" is probably a closer English match than "communitarianism") and his stock endorsement of civic education, schooling for equality, etc.-- i.e. there will be no movement on the headscarf issue. He mentioned the need to "rehabilitate work, responsibility, and merit in our society" in the context of discussing unemployment, sympathizing with those who "feel that they're always paying more for those who don't work" and insisting that "it is unacceptable for an unemployed person to refuse to ever get a job."

FMA Fails

I'm struck by one thing on the list of who voted how on cloture on the FMA. The Republicans voting against cloture were Campbell, Chafee, Collins, McCain, Snowe, and Sununu.

Campbell's an odd duck. McCain is a funny combination of highly principled and incredibly self-important, devoted to his public standing as a contrarian, Republican who opposes Bush whenever possible. Snowe, Collins, and Chafee are the usual suspects-- Jeffords Republicans. Sununu and McCain are the only fiscal conservatives in the bunch, and McCain tilts left on lots of non-budgetary items. Three cheers for John Sununu Jr., a fiscal conservative, spending-cutter, free-trader, Social Security reformer who voted against the FMA.

It's disappointing to libertarians that it's so rare to see positions like Sununu's. We intermittently get excited about some Republican who claims to be a fiscal conservative and a social liberal; but, almost inevitably, their fiscal conservatism disappears. Much as we wish otherwise, and much as we would like to believe that a drive for intellectual consistency will push people to be consistent anti-statists, the most consistent free-marketeers in Congress tend to be real social conservatives. The social liberals tend to be wet at best on economic questions. (Of course, there are lots of social conservatives who are also wet on economic and fiscal issues.) This isn't as true in the commentariat as in Congress, and isn't equally true on all "social" issues; free-market conservatives are a lot more likely to be drug-legalizers than to be pro-choice, and some free-market conservatives are pretty hardcore constitutionalist-civil libertarians on questions like criminal procedure and federal criminal law. But, in office, the free marketeer/ social conservative correlation is (from our perspective) unpleasantly high.

I'm enough of a believer in the long-term rationality of the parties as vote-seekers to think that this must be due to the underlying preferenes of voters. No matter how many people tell pollsters that they like social liberalism/ fiscal conservatism, there just aren't many votes to be had at that particular intersection. Maybe it's not a coincidence that Sununu is from my homestate; maybe the political culture I was surrounded by when I was growing up is pretty idiosyncratic.

Hmm. Hadn't meant to write a glum post; I'd meant to write a "Yay John Sununu!" post. Anyway, Yay John Sununu.


According to Andrew Sullivan, New Hampshire's other fiscally conservatie Republican Senator, Judd Gregg, planned to vote against the FMA though he voted in favor of cloture. The same goes for McCain sidekick Chuck Hagel and usual suspect Arlen Specter.

See also the post-mortem from FMA supporter [whoops-- see below] Ramesh Ponnuru. I think Ponnuru is right that Frist badly mishandled this (though of course that doesn't disappoint me nearly as much as it does him).

Whoops. Ponnuru never endorsed the FMA, though he did endorse the Hatch proposal. He's been careful to talk about federalism and about what he took to be misunderstandings of the FMA without necessarily supporting the latter. He discusses these things here .

Crime of violence vs. crime of sex:

Some research I was doing recently reminded me of the familiar line, "rape is a crime of violence, not a crime of sex." It's certainly true that rape (setting aside statutory rape and a few other unusual situations) is a crime of violence. I also suspect that most rapists aren't just after ordinary sexual gratification, but also want the feelings of domination (or something like that) that come from the violence of the act. Given the serious penalties for rape, and even taking into account the difficulty of catching and convicting the rapist, committing rape just to get ordinary sexual gratification is a pretty expensive proposition.

But it seems to me pretty likely that there's a false dichotomy here. In fact, rape seems to be both a crime of violence and a crime of sex -- the rapist is motivation by sexual desire as well as by the desire for domination (and the two may well be intertwined). The best evidence that I've seen for this is the breakdown of rape by age of victim (see National Crime Victimization Survey data, table 4):

Age range

Rate per 1000 women in the age group (* = estimates based on 10 or fewer sample cases in the survey)













65 and over


Rapists seem to select victims in age ranges that are pretty highly correlated to the generally understood peaks of sexual attractiveness. Yes, there are rapes of older women; yes, women outside the highest-risk groups are sexually attractive; but the correlation is still quite striking.

Now of course there may be other explanations: For instance, younger women may spend more time in places where rapes might occur. Indeed, the simple assault and robbery rates peak in the same age ranges, too (see the same table) -- but the rates level off far more gradually, for instance with simple assault per 1000 women in the age group going from 32.8 for 12-15 to 37.1 for 16-19, 23.7 for 20-24, 15.9 for 25-34, 12.1 for 35-49, 7 for 50-64, and 1.4 for 65 and over. (Simple assault is defined as successful or attempted "[a]ttack without a weapon resulting either in no injury, minor injury . . . or in undetermined injury requiring less than 2 days of hospitalization"; the way the NCVS treats this, it seems to exclude the great majority of rapes or attempted rapes.)

Also, younger women tend to date younger men, younger men tend to be more likely to commit crimes, so younger women may be more likely to be victimized by date rape. But though roughly 2/3 of rapes involve nonstrangers (see table 27 here), 1/3 involve strangers, so the drop-off even for stranger rapes seems to be quite striking (see table 29 for data, though note that again there are relatively few cases in the survey for each category).

Again, perhaps there's some other explanation that completely eliminates the connection between rape and the offender's likely sexual interest in the victim. But given the data, I find that pretty implausible. Rape seems generally to be a crime of violent sex, not of violence or sex alone.

Rape in the Phillippines

In response to my post on statutory rape law in Brazil, a reader from the Phillippines informs me that the Phillippine penal code provides that in cases of rape "the subsequent valid marriage between the offender and the offended party shall extinguish the criminal action or the penalty imposed." I find this a little less bizarre, but still offensive.

Update:Another reader offers this insight on the Phillippine law:

The odd twist you posted on rape law in the Philippines--that marriage between perpetrator and the victim would annul the charge of rape--was actually (I believe) common in American colonial times. My criminal law professor (Anne Coughlin) has done a bunch of work on the origins of rape law, and her (admittedly controversial) conclusion is that the goal of the law was to punish premarital sex, and that thus many of the idiosyncrasies of rape law can be understood if the woman was regarded as a possible accomplice, rather than a victim.

This law makes sense in that light: the woman cried "rape" to protect her honor and cover up her participation in the crime of premarital sex; her decision to marry the man who raped her is essentially an admission of her own complicity and thus the man's innocence.

I'm not saying this is a good law, just that it can be better understood through Coughlin's lens than by brushing it off as pure sexism.

Revisiting the Torture Memos: Last week, the WSJ ran an op-ed by University of Chicago law professors Eric Posner and Adrian Vermeule that could best be described as anti-anti-torture memos. Although not defending the specific conclusions of the individual OLC memos on torture, the applicability of the Geneva Conventions to enemy combatants, and so on, the op-ed strongly challenged the memos' critics, who they claim "have puffed up an intramural methodological disagreement among constitutional lawyers into a test of professional competence." I wholeheartedly agree. In my experience there is a disturbing tendency — on all sides of the ideological spectrum — to accuse those with whom one disagrees of ignorance, bad faith, or both. After all, why debate an opponent when you can diminish or demonize him?

Some further excerpts from Posner and Vermeule's thoughtful and persuasive piece:
the memorandum's arguments are standard lawyerly fare, routine stuff. The definition of torture is narrow simply because, the memorandum claims, the relevant statutory texts and their drafting histories themselves build in a series of narrowing limitations, including a requirement of "specific intent." The academic critics disagree, but there is no foul play here. . . .

As for the constitutional arguments, the memo explicitly limits their context to the interrogation (1) outside the U.S. (2) of identified enemy combatants (3) concerning the enemy's plans of attack. The logic of the arguments might be stretched further, but need not be, and it is routine for executive-branch lawyers to proceed one step at a time, just as courts do. Everyone, including even the most strident of the academic critics, agrees that Congress may not, by statute, abrogate the president's commander-in-chief power, any more than it could prohibit the president from issuing pardons. The only dispute is whether the choice of interrogation methods should be deemed within the president's power, as the memo concludes. That conclusion may be right or wrong — and we, too, would have preferred more analysis of this point — but it falls well within the bounds of professionally respectable argument. . . .

whatever one's views on the use of torture on the battlefield, the memorandum is not "incompetent" or "abominable" or any more "one-sided" than anything else that the Justice Department has produced for its political masters.
As Glenn would say, read the whole thing. [Of note, Berkeley law professor John Yoo, author of one of the controversial memos (discussed in several prior posts, the most recent of which is here), made similar arguments in his own defense in the July 6 LA Times.]

Posner and Vermeule also suggest an interesting intellectual undercurrent to the controversy.
An older generation of legal academics developed something like a consensus in favor of enhanced congressional power over foreign affairs; support for the War Powers Act; and a favorable attitude towards Youngstown and other decisions that restrict presidential power. That conventional view has been challenged in recent years by a dynamic generation of younger scholars [including John Yoo] who emphasize constitutional text, structure and history rather than precedent, and who argue for an expansive conception of presidential power over foreign affairs, relative to Congress. . . . From this perspective, the academic critics' complaints have a distinct methodological valence, one with intellectually partisan overtones. . . .
Given the op-ed's authors — two prominent and prolific University of Chicago law professors — I expected the op-ed would get more comment in the blogosphere. Perhaps it was overlooked because the WSJ did not place the article on-line. Now that it's posted on Chicago's site here, perhaps it will receive more discussion. [NOTE: Link is down, but Google cache is here.]

Update:Neither Jack Balkin nor Michael Froomkin is persuaded by the Posner-Vermeule op-ed.

(By the way, what does it mean that I "often write[] as if [I] were a government lawyer"?)

In These Troubled Times?: One of my pet peeves is the trope, "In these troubled times...." A few weeks ago, I was at a conference also attended by a much younger and quite pessimistic professor of English. I tried to buck him up by telling him that things were not going to hell in a hand basket. Indeed, politically speaking, things were looking up. Mine was a comment, not on current party politics, but on the revival of classical liberalism, the more radical variant of which is libertarianism. He tried to take solace from my going back from decade to decade in search of one where times were less troubled than today.

The 70's? (Vietnam, boat people, gas lines, stagflation, Iranian hostage crisis, the cold war)
The 60's? (Cuban Missile Crisis, assassinations, race riots, Vietnam, but an excellent sound track, the cold war)
The 50's? (Korea, global Communism, Mutual Assured Destruction, Selma, the cold war)
The 40's? (WWII, the Holocaust)
The 30's? (the Great Depression, the rise of National Socialism and Fascism, War in Europe)
The 20's? (Prohibition and the attendant rise of organized crime with its widespread violence and corruption, stock market collapse)
The 10's? (WWI and the "lost generation")

Too much before then and I lose my sense of the decades, but we had the savagery of Southern reaction to Reconstruction followed by a racial apartheid that lasted until the 1960s, and legal slavery before that--not to mention a Civil War in between that killed more Americans than any other and the Indian Wars that followed. The antebellum decades were not all that terrific either.

To all this you can add the lack of antibiotics.

In other words, all times are troubled but, since the 1980s, things have been comparatively blissful--and I include in this assessment the post-911 world for all its tragedy, tumult and a global war between the United States and its allies and the NGOs of Islamo-fascism and their government enablers.

But I could tell he was unconvinced. So perhaps he would be more interested in this essay by William F. Buckley from the inaugural issue of the National Review in 1955. Does this sound familiar?

"I happen to prefer champagne to ditchwater," said the benign old wrecker of the ordered society, Oliver Wendell Holmes, "but there is no reason to suppose that the cosmos does." We have come around to Mr. Holmes' view, so much that we feel gentlemanly doubts when asserting the superiority of capitalism to socialism, of republicanism to centralism, of champagne to ditchwater — of anything to anything. (How curious that one of the doubts one is not permitted is whether, at the margin, Mr. Holmes was a useful citizen!) The inroads that relativism has made on the American soul are not so easily evident. One must recently have lived on or close to a college campus to have a vivid intimation of what has happened. It is there that we see how a number of energetic social innovators, plugging their grand designs, succeeded over the years in capturing the liberal intellectual imagination. And since ideas rule the world, the ideologues, having won over the intellectual class, simply walked in and started to run things.

Run just about everything. There never was an age of conformity quite like this one, or a camaraderie quite like the Liberals'. Drop a little itching powder in Jimmy Wechsler's bath and before he has scratched himself for the third time, Arthur Schlesinger will have denounced you in a dozen books and speeches, Archibald MacLeish will have written ten heroic cantos about our age of terror, Harper's will have published them, and everyone in sight will have been nominated for a Freedom Award. Conservatives in this country — at least those who have not made their peace with the New Deal, and there is a serious question of whether there are others — are non-licensed nonconformists; and this is a dangerous business in a Liberal world, as every editor of this magazine can readily show by pointing to his scars. Radical conservatives in this country have an interesting time of it, for when they are not being suppressed or mutilated by Liberals, they are being ignored or humiliated by a great many of those of the well-fed Right, whose ignorance and amorality of never been exaggerated for the same reason that one cannot exaggerate infinity.
In my proto-libertarian youth, I had two sources of political inspiration (other than my father): Milton Friedman's column in Newsweek magazine, and the National Review. The undeniable ugliness of today's political and intellectual climate stems not from the fact that times are worse, but from the fact that a great ideological debate has been joined. A debate, I should add for those prone to undue optimism, that will never end. There will always be forces arrayed for and against liberty, for and against the state. All that changes is who has the upper hand. At the moment, we are in something close to equipoise politically, but I believe (and I know others will passionately disagree) that classical liberal ideas have been on the ascendency for a long time and are now the engine driving the intellectual debate, just as communism and socialism was when Buckley wrote 50 years ago.

What has not changed nearly enough is the marginality of classical liberal ideas among tenured academics, but even here there is simply no comparison between academia today and that of only a few years ago. Someone recently asked me how I am treated by my fellow law professors--whether modern liberal or more leftist--expecting me to complain of abuse and insult. I could truthfully say that, for whatever reason, I am quite consistently treated with much courtesy and respect by my colleagues both at home and away. Those who despise my ideas keep whatever malevolent thoughts they may have to themselves. Add to this the enthusiasm and idealism of the many students I met at the 45 laws schools on my tour and at the many others I visited in recent years.

This is not to say that no ideological discrimination against classical liberals exists in academia. I have witnessed it first hand and think it is quite common. But I have also witnessed discrimination against the radical left by more mainstream modern liberals. This is more a function of the corrupting affect of being in the majority, I think, than of which ideology is dominant. As soon as there are some classical liberals in a department, the personal cost of discriminating against others increases, as it does when there are blacks or other minorities in the room.

Of course, much remains to be done on the field of ideas, but I think we who love liberty should pause to appreciate the progress that has been made and that continues apace.

CORRECTION: An astute reader points out that the violence in Selma occurred in the 1960s not the 50s. I was thinking of the Little Rock crisis when President Eisenhower sent federal troops to enforce a desegregation order (this is from the Eisenhower Presidential Archives):

On May 17, 1954, the U.S. Supreme Court ruled in Brown vs. Topeka Board of Education that segregated schools are "inherently unequal." In September 1957, as a result of that ruling, nine African-American students enrolled at Central High School in Little Rock, Arkansas. The ensuing struggle between segregationists and integrationists, the State of Arkansas and the federal government, President Dwight D. Eisenhower and Arkansas Governor Orval Faubus has become known in modern American history as the "Little Rock Crisis." The crisis gained attention world-wide. When Governor Faubus ordered the Arkansas National Guard to surround Central High School to keep the nine students from entering the school, President Eisenhower ordered the 101st Airborne Division into Little Rock to insure the safety of the "Little Rock Nine" and that the rulings of the Supreme Court were upheld. The manuscript holdings of the Eisenhower Library contain a large amount of documentation on this historic test of the Brown vs. Topeka ruling and school integration. [available at the above link--RB]

Update: A reader provides this link to a story about a skeleton of a teen from the 1660s found buried from in basement:

He suffered from tuberculosis and worked so hard that he had herniated discs and other back injuries. An infection in his rotting teeth might have caused his death. He had 19 cavities.
Some may discount this sort of story as being about "mere" physical standards of living, rather than matters more spiritual or cultural. For them, another reader brings to my attention this marvelous poem by Billy Collins, my favorite line of which is "Even this morning would be an improvement over the present.":


Remember the 1340's? We were doing a dance called the Catapult.
You always wore brown, the color craze of the decade,
and I was draped in one of those capes that were popular,
the ones with unicorns and pomegranates in needlework.
Everyone would pause for beer and onions in the afternoon,
and at night we would play a game called "Find the Cow."
Everything was hand-lettered then, not like today.

Where has the summer of 1572 gone? Brocade sonnet
marathons were the rage. We used to dress up in the flags
of rival baronies and conquer one another in cold rooms of
Out on the dance floor we were all doing the Struggle
while your sister practiced the Daphne all alone in her room.
We borrowed the jargon of farriers for our slang.
These days language seems transparent a badly broken code.

The 1790's will never come again. Childhood was big.
People would take walks to the very tops of hills
and write down what they saw in their journals without speaking.
Our collars were high and our hats were extremely soft.
We would surprise each other with alphabets made of twigs.
It was a wonderful time to be alive, or even dead.

I am very fond of the period between 1815 and 1821.
Europe trembled while we sat still for our portraits.
And I would love to return to 1901 if only for a moment,
time enough to wind up a music box and do a few dance steps,
or shoot me back to 1922 or 1941, or at least let me
recapture the serenity of last month when we picked
berries and glided through afternoons in a canoe.

Even this morning would be an improvement over the present.
I was in the garden then, surrounded by the hum of bees
and the Latin names of flowers, watching the early light
flash off the slanted windows of the greenhouse
and silver the limbs on the rows of dark hemlocks.

As usual, I was thinking about the moments of the past,
letting my memory rush over them like water
rushing over the stones on the bottom of a stream.
I was even thinking a little about the future, that place
where people are doing a dance we cannot imagine,
a dance whose name we can only guess.

Zarqawi continued:

My New Republic column is online (link should work for non-subscribers as well as subscribers).

Tuesday, July 13, 2004

Download the new Landes and Posner:

The Political Economy of Intellectual Property Law, published by AEI, June 2004, the download is here, 42 pp..

Here is the summary:

This monograph seeks to explain the expansion of intellectual property law over the last half century, focusing in particular on the rapid growth that began with the 1976 Copyright Act. In so doing, it explores a fundamental, unresolved issue in the theory of regulation: why some kinds of regulation have increased dramatically over this period while others have virtually disappeared.

I have yet to read it, but obviously this will be of interest to many.

Thanks to the ever-excellent for the pointer.

Recent developments in the Church sex abuse litigation

reminded me of this old chestnut: A man goes to his minister. "Reverend, help me -- everything is going badly for me, I've almost given up hope, nothing is going right, what should I do?"

"Well, my son, do what I always do: Just open up a Bible to a random page, put your finger in a random place, and whatever you're pointing to is sure to be good advice."

A month later the man comes up to the minister again. "Thank you so much, Reverend," he says. "I followed what you said to the letter, and everything is much better now."

"I'm so glad to hear it, my son," the minister says. "But I'm curious: What verse did the Lord guide you to?"

"Well, I opened up the Bible, put my finger on a random place, and there it was, in black on white: Chapter 11!"

Bainbridge vs. Epstein on Judicial Review: Steve Bainbridge takes issue with Richard Epstein's op-ed piece, Live and Let Live, in today's Wall Street Journal (available only to paid subscribers).

Generally--and here the illiberal FMA is a jarring exception--conservatives insist that most important structural questions in the U.S. should be decided through the democratic political processes. The libertarian wing regards democratic government as an imperfect means in service of the larger end of personal liberty, and thus strongly pushes the guarantees of individual rights to their logical conclusion. Both sides struggle to accommodate the rival impulse: All majoritarians recognize some limitations on government. All libertarians recognize that there are some inherently political decisions that no personal rights can trump. But how to draw the balance?
In his essay, Richard calls himself a "constitutional libertarian." From our previous exchange, I have some inkling what Steve thinks of "constitutional libertarians," which he again pursues in a blog post entitled, The Problem with Constitutional Libertarians: Groping Towards a Conservative Theory of Judicial Review. Richard responds here.

Steve's final comment is illuminating:

But it also seems to me that ensuring judicial restraint is the key sticking point of any theory of judicial review. Indeed, the strongest argument for democratic majoritarianism may be the impossibility of achieving judicial restraint, as it is not clear to me that judicial restraint is any more easily obtained under a constitutional libertarian theory either.
It is good that Steve is wrestling seriously with how to limit judicial review and that he sees that the problem of limits affects all such theories. Any retreat to pure majoritarianism eliminates this problem but at a terrible price for liberty--a price neither the founders nor those who adopted the Fourteenth Amendment were unwilling to pay. The question then is whether the sort of mixture of judicial review/restraint that Steve favors (though he has yet to work it out) offers any advantages over an original meaning approach to textualism that sanctions considerably more constraints on legislative discretion than he wants. In other words, if it is difficult to draw any line, then where one chooses to the draw the line might make little difference, so you may as well draw the line at a place that is more protective of liberty. As I have argued in my amicus brief in Lawrence, if a naked legislative assertion of immorality is deemed sufficient to justify any legislative restrictions on liberty, then this justification knows no limits, and is supremely dangerous to liberty.

Richard concludes his essay with an observation that I wish conservative democratic majoritarians (and their democratic compatriots on the left) would take to heart:

The path to social peace lies in the willingness on all sides to follow a principle of live-and-let-live on deep moral disputes.
And the deeper the moral dispute, the more important that it not be enshrined by a majority into law.
Took a short CPR class this morning,

with a special emphasis on infant CPR, for Benjamin's benefit. Glad to know how to do it, though I hope I'll never have to.

DOJ Makes the Case for the Patriot Act:

Today the Justice Department released a 30-page report in support of the Patriot Act. The AP story is here; the DOJ report itself is here in .pdf format. I read the report, and there's nothing particularly unexpected in it. Still, worth noting.

Academic study reveals:

Ice cream production is closely correllated with the rate of forcible rape. Yes, that's right — Professor Eugene Volokh, of the prestigious UCLA School of Law and the even more prestigious Volokh Conspiracy Web log, has uncovered scientific evidence that ice cream production is closely correlated with the forcible rape rate.

Professor Volokh used 2000 data from the Federal Bureau of Investigation's Uniform Crime Reports, and 2000 data from the international Dairy Foods Association's Dairy Facts publication; the correlation was 0.84, which is very high (1 would be a perfect correlation and 0 would be no correlation at all) and statistically significant. Unfortunately, data on monthly ice cream consumption was unavailable, but ice cream production data seems likely to be a good rough proxy for ice cream consumption. For the spreadsheet containing this data — The Volokh Conspiracy is a stickler for openness in research — see here.

It is time, especially in this election season, that Big Dairy be asked some serious questions about this disturbing phenomenon and about its impact on the women and children of our nation. Professor Volokh (volokh at is available for interviews and commentary on this important research finding.

(Read here before sending me e-mail accusing me of statistical ignorance.)

Intelligence Errors and the American Psyche:

Over the course of the last year, it has become increasingly apparent that the United States invaded a country the size of California based in part on a misunderstanding. Popular support for the war in Iraq was based in large part on the belief that Iraq was gathering weapons of mass destruction, which itself was based largely on U.S. intelligence reports. Although different people had different reasons to support the war, many thought we needed to go in to Iraq to make sure that Saddam didn't pass off a nuke to Al-Qaeda.

According to this 500-page report from the Senate Select Committee on Intelligence (check out the 30-page summary of conclusions here), it turns out that the intelligence agencies were kinda off on that whole WMD thing. The report is quite damning, and suggests that our intelligence agencies failed us in a most remarkable way. Of course, it may turn out that Saddam was doing more than we now realize; it may also be true that the war in Iraq would have happened even without the intelligence failures. But at this point it looks at least plausible that "but for" the intelligence errors, no war would have occurred.

It's easy for the importance of this to get lost in the politics of the moment. For opponents of the Bush Administration, the intelligence failures are a sign of Bush's incompetence (and another reason to vote against Bush). For Bush supporters, they are old news that matter less than what to do now that we are in Iraq (and provide no reason to vote against Bush). But I wonder: short-term politics aside, what are the long-term implications of the intelligence errors on the American psyche? I don't know the answer; I'm afraid that this is more a question-asking post than a question-answering post. But I wonder if the intelligence errors will have a ripple effect in future years on how people interact with and respond to the government in areas far removed from intelligence agencies and warfare. Many people placed their trust in the intelligence agencies to get it right, and it looks like they didn't. I wonder if we will begin to see changes in areas of law and culture that are based directly or indirectly on whether the American people trust their government. Maybe we won't; perhaps people are happy to just forget about the errors and move on. But it seems plausible to me that the remarkable importance of the errors will lead to some unexpected consequences over the long term.

Where is the shopping in our neighborhood? Will Baude and Phoebe Maltz (multiple posts each; follow the links) have an exchange going on a topic Dan Drezner also recently mentioned: the stunning lack of commerce in Hyde Park, Chicago. The neighborhood has neither the amenities of a real college town nor those of a collegiate neighborhood in a big city (Phoebe compares it unfavorably with Morningside Heights, about which she is surely correct). The old joke goes that you can buy anything in the world you want to in Hyde Park, as long as it's a book. Two of the country's great bookstores are here, plus a very good used/ rare book shop, a very nice Borders, and a mediocre little Barnes & Noble. But (as Phoebe and Will point out) there's nary a Gap in sight. No Banana Republic. No Indian food, no sushi, no Bed & Bath, no Whole Foods or Trader Joes, only one allegedly first-rate restauarant (though it isn't) where outside speakers or job candidates can be brough without embarrassment, very few low-price studenty restaurants or bars. No comic book stores or gaming stores. No poster stores or boutiques selling precious little $200 Guatemalan peasant skirts. No Birkenstock dealer. And so on, and so on. The area around the U of C looks nothing like the area around any other American residential college or university I know of. Says Phoebe:
Many Chicago students have a sort of shopping phobia, assuming that proximity to a source of, say, new tee shirts would cause the University to lose its intellectual edge.[...]If a GAP were to open on 55th Street, goes the argument, people would forget about Hegel and Aristotle and spend weeks on end trying to decide which jeans best flatter their asses. This is absurd--as much as they hate to admit it, Chicago students, like mere mortals, buy new clothing and accessories from time to time. It would actually leave more time for important scholarly business if Chicago folk didn't have to sneak up to Michigan Avenue every time they wanted to buy pants.
Will responds:
Hyde Park is devoid of Michigan Avenue's shopping opportunities not because people are afraid the GAP would destroy the young American Mind, but because UChicago (largely, but not exclusively) caters to folks who don't buy (or won't admit to buying) new pants so frequently that they want their blue jeans within walking distance.
Honestly, what are they teaching in University of Chicago economics classes these days? I thought Chicago was supposed to produce libertarians who knew to look for government failure behind market strangeness. In short: it's the zoning. Want to know why there's no Gap on 55th Street? Click through to the searchable map. Pan up and down 55th Street, the barren wasteland that bisects Hyde Park. Do you see how much of it is zoned for commercial or business use?

Chicago is, generally, zoned so as to make commercial development extremely difficult-- and institutionally arranged so that an individual Alderman (one's local city councillor) exercises tremendous discretionary power over zoning waivers. Vulgar public choice theory is overrated by many libertarians; but the rent-seeking dynamic doesn't get much more vulgar than the Chicago zoning code. The system is not designed to allow commercial (or residential) supply to spring up to meet demand. It's designed to allow elected and unelected officials to control their neighborhoods, for political or economic gain. There's clearly market demand for more commerce in Hyde Park-- and for commerce closer to campus than 53rd Street or Lake Park Avenue. But commerce can't get in the door. The landmark off-campus bar, Jimmy's Woodlawn Tap, was closed for a year and a half when Jimmy died and left the place to his bartender, because it was now under new owenrship and had to re-apply for lots of licenses to continue doing what it had always done in exactly the same space. Bar Louie was delayed for who knows how long. Borders had to struggle for a good long while to get permission to open.

As I understand things, the rest of the story has to do with the way the U of C is laid out, with the university's history of entanglement with Daley-Sr.-era urban renewal and urban planning, and with contemporary neighborhood politics. The layout is a real but minor problem. For as small a student body as we have, the dorms are spread all over the place, some farther away than one wants to walk at night or in the winter. That diffuses the student demand that ordinarily gets concentrated in a few blocks surrounding campus. We also have a very small undergraduate population for a research university, especially an urban research university. (Columbia's is huge by comparison, and of course NYU's is huge by any measure.) And undergraduates tend to have access to more discretionary income than do the doctoral students who make up such a large share of Chicago's student body. So demand is weakened that much further.

Much, much more important is the University/city alliance on urban planning some decades ago-- an alliance that, like everything else to do with Daley-era zoning and urban planning, was about race. Hyde Park was once one of the nation's great centers of jazz and blues. But that was a long, long time ago. The University and the city shut the clubs down; they attracted the wrong element into the neighborhood, donchaknow. Not coincidentally, the clubs were on 55th Street. Jane Jacobs could have predicted the result all too easily. The neighborhood's economic ecology has never really recovered from the decision to shut 55th Street down as a commercial district; and, as big stretches of the neighborhood became unpopulated at night, safety declined, further frightening away other businesses.

Neighborhoods that the city wanted to "protect" as white (or, in the case of Hyde Park/Kenwood, white and upper-class black) got surrounded with barriers (Interstate 90/94, the UIC campus, Washington Park) that made pedestrian traffic into them from surrounding neighborhoods as difficult as possible. Commercial barrenness and pedestrian inaccessibility were inescapable results, indeed were part of the point. When, inevitably, the strategy failed, Hyde Park was left as a pretty dysfunctional neighborhood.

Decades later, the local political power in Hyde Park is arranged very differently, while the memory of the University's role in urban renewal is still sharp and bitter. So the officials who have discretionary power over what commerce comes in, and their constitutents, aren't in any rush to turn the place into a college neighborhood, or into a gentrified faculty one either. The existence of university-centered demand for a good or service is not treated as sufficient reason to let anyone into the neighborhood to provide the service.

There are other issues that have nothing to do with the university's self-image as being too lost in the books to get lost in the aisles. Parking is a recurring issue, here as in lots of dense urban areas. But the heart of the story is political power, allied to the university in a very bad cause decades ago, now arrayed against the commercial interests of the university's residents; and systematically bad decisions about urban planning.

Don't get me wrong; I love it here, and the neighborhood as well as the campus have real virtues. But there are also real quality-of-life sacrifices involved in living in a city neighborhood where there is so little walking-distance commerce, and so many barriers to developing more of it. Those sacrifices aren't made necessary by the (deserved) pride our students take in their commitment to intellectual pursuits.
New York 9/11 election:

I am told that when the New York election scheduled for 9/11 was postponed, the votes cast on the original day were discarded, and people were expected to revote on 9/25. Joel Graber, of the New York State AG's office, posted something more about this to an election law list I'm on, and I pass it along with his permission:

In New York City on 9-17-01, nine African-American, Hispanic and Asian-American Democratic candidates for City Council, and some voters, represented by highly-experienced civil rights attorneys, sued in the EDNY to postpone the primary rescheduled from 9-11-01 to 9-25-01, alleging violations of their "right to vote, free speech and political participation, freedom of association, right to due process and equal protection of the law," and sections 2 and 5 of the VRA. The claims boiled down to the arguments that the board of elections, which is located close to the WTC, was not up to the task, that voters were too distracted by the attack, and that Rosh Hashanah fell on Sep. 18 and 19 thus hampering plaintiffs' opportunities for political activity. A [temporary restraining order] and [preliminary injunction] were denied by [district judge] I. Leo Glasser on 9-20 and the case was abandoned. Barbour v. Board of Elections, EDNY 01-cv-6216 (ILG).

Legislation was passed on 9-13 resheduling the primary (and liberalizing absentee voting and other things), on the authority of N.Y. Const. art. III, sec. 25, which provides that the Legislature, "in order to insure the continuity of state and local government operations in period of emergency caused by enemy attack or by disasters (natural or otherwise), shall have the power and the immediate duty . . . to adopt such . . . measures as may be necessary and proper . . . ." The legislation also provided that valid absentee and military ballots cast by 9-11 would be counted and that votes cast at polling places on 9-11 would not be counted. 2001 N.Y. Laws ch. 298, ch. 303.

So at least in New York, there is already state law authorization for the state legislature to take care of election interruptions.

George Bush as Peter Parker?

David Frum calls Spiderman 2 "the great pro-Bush movie of the summer." I'll at least agree with Frum that it was a great summer movie.

Update: A reader e-mails this comment:

Frum does seem to be stretching here. Last I checked Peter Parker was an orphan who is struggling to pay for college by delivering Pizzas. He's a scientifically gifted social outcast who has devoted his life to helping others. And Bush? Son of a president; grandson of Senator; born into huge money and the 2nd most powerful political family in the country; Andover, Yale, Harvard; proud to be a C student, consistently places religion over science, puts his financial backers interests above this alleged conservative principles, etc. And the Bugle is clearly the NY Post or Drudge. Moore may be an ass and a liar, but he's not a tabloid.
Fair points all.

Statutory Rape in Brazil: Yesterday's print WSJ contained a front page (middle column) story on a bizarre statutory rape case. Dr. Boadyr Veloso, a "politically prominent" physician, was convicted in 2000 for staturoy rape of seven girls, and sentenced to ten years and eight months in prison. In February 2004, however, Dr. Veloso was released and his sentence nullified. Why? Because all seven of the girls with whom he had sex had since married.

The law in Brazil apparently provides that a sex criminal's conviction can be nullified if his victim gets married. As explained by one politician quoted in the story, this law was adopted in the 1940s, when "a woman's destiny was marriage, and a woman who was raped lost her chance to fulfil that destiny. So marriage was seen as resolving the damage of sexual abuse." In other words, if a young girl is raped, the only harm is the reduced likelihood a man will wish to marry her. How offensive. How bizarre. At least one member of Brazil's legislature is seeking to have the law repealed.

The story includes other interesting details of Dr. Veloso's case: Several of the women involved were married under suspicious circumstances. Three of the women were married by the same justice of the peace on the same day, and then same official married three more just twelve days later. Dr. Veloso always maintained his innocence of all charges, yet there are also reports he paid some of the women to marry. For those interested, the story is "Convicted of Rape, Brazilian Doctor Finds Way to Remain Free," by Matt Moffett, WSJ, July 12, 2004, A1.

Update: I've added a post on rape law in the Phillippines here.

Update:Another reader e-mails this "sidebar" to the story: Prior to January 11, 2004, Brazilian law allowed a man to obtain an annulment in the first 10 days of the marriage if he discovered that his wife was not a virgin. Mt correspondent adds: "One wonders if Veloso's sentence would've been reinstated, had any of the husbands decided to annul their marriages." Indeed.

The Boston 9/11 election:

Reader David Smith reports that many people did leave work on September 11, because they wanted to be home, though that didn't seem to keep them away from the polls:

I live in Cambridge, work in Boston, run a small company, and was at my desk on 9/11. I remember the attacks clearly -- we turned on the office television. People were in quiet shock. Around 10:30 people started leaving their offices -- I could see them from my fifth floor window, on the streets, heading for subways and trains. There was a sense that we had no idea what would happen yet, and it seemed better to be home with loved ones and not in large buildings. Just because we did not know what better thing to do.

Perhaps people voted on their way home. Perhaps they voted in the morning before they knew the news of 9/11. (Voting is heavily clustered before 9 and after 5.) Perhaps they voted on a minor local issue because it was all such a shock that we could not interpret what to do next, and the minds were made up.

He also suggests that given the 9/11 shock, people won't be as shocked next time, and there'd be still less disruption of the election (at least in those places that aren't directly attacked):

All those facts would be different if, God forbid, a terrorist attack hit a day or two before the election. We are smarter now, wiser, we have seen things we wished not to see. We have had the Spanish 3/11 and its consequences. There would, in short, be not the same element of emotional shock. And so the Boston (or other) 9/11 voting experience is, in my view, not relevant to whether an election should be postponed in the event the unthinkable occurs.

May well be so.

An example of state law on postponement of elections:

A reader passes along this letter from the General Counsel to North Carolina's State Board of Elections summarizing the emergency powers given to the Executive Director of the State Board:

Dear Mr. Stephens:

Pardon for the delay getting back to you. Our office has just concluded a major statewide educational conference. Mr. Bartlett asked that I respond to your concerns.

The backbone of election disruption control is G.S. 163-27.1 set out below:

§ 163-27.1. Emergency powers.

The Executive Director, as chief State elections official, may exercise emergency powers to conduct an election in a district where the normal schedule for the election is disrupted by any of the following:

(1) A natural disaster.

(2) Extremely inclement weather.

(3) An armed conflict involving United States armed forces, or mobilization of those forces, including State National Guard and reserve components.

In exercising those emergency powers, the Executive Director shall avoid unnecessary conflict with the provisions of this Chapter. The Executive Director shall adopt rules describing the emergency powers and the situations in which the emergency powers will be exercised. (1999-455, s. 23; 2001-319, s. 11.)

At this time, I would interpret a terrorist attack that adversely affects an ongoing election as coming within the meaning of "armed conflict" as set out in (3) above.

Your concerns as to the effect of terrorism prior to Election Day on voter turnout have a less clear solution. However, the sanctity of both the legal and historical general election date of the first Tuesday after the first Monday in November would weigh heavily against a delay of the general election based upon calamities that make it more difficult for voters to vote, either physically or emotionally. The certainty of election dates sets the Untied States apart from other countries.

Let's look at some of the elements that may effect this situation.

Approximately 10% of the voters vote in a general election during one stop-absentee voting that starts 19 days prior to the election and ends the Saturday before Election Day. Thus we must view the "slow calamity" disruption issue in the context that voters in North Carolina, and many other states, can vote on more than one day. And absentee by mail voting starts 50 days prior to Election Day.

A statewide primary election will cost about $4 million dollars, and the cost of a statewide general election will be around $5.5 million dollars.

A suspended election would involve extraordinary efforts to secure and protect ballots and voting systems. Issues arise as to the terms and conditions of resuming the suspended election.

A cancelled election means that voting systems would have to reprogrammed, and ballots reprinted. These activities are time and labor intensive as well as costly.

A suspended election or new election could prohibit winning candidates from taking office in a timely matter, allowing previous officeholders to hold over until the winning candidates are certified and sworn in.

In addition, North Carolina has some Section 5 counties under the Voting Rights Act, and all actions as to suspended or new elections would have to be precleared by the U.S. Justice Department, a procedure that can take up to 60 days.

As to your three suggestions, let me offer some positive news.

First, the counties are very aware of the situations that can cause Election Day disruption. We have had precincts closed due to bomb threats, gas leaks, ice storms, tornados, hurricanes, and flooding. The county board makes an analysis of the situation and requests a decision under GS 163-23.1.

Secondly, GS 163-23.1 is designed to have a quick response to a situation. Of course, the State Board is consulted over such issues. This agency starting in 2000 encouraged counties to have disaster and recovery plans on file.

Thirdly, Congress is currently dealing with the issues you note. You may want to review H.R. 2844 that deals with replacing members of the House of Representatives in cases of extraordinary circumstances. The entire issue of continuity of government is being addressed by the Continuity of Government Commission (a joint project of the American Enterprise Institute and the Brookings Institution). Go to their website at . They issued their first report in May, 2003.

This agency is currently considering suggesting to the General Assembly a clarifying amendment to GS 163-23.1 to clearly mention terrorism as a basis for emergency powers by the Executive Director.

Please be assured that this most difficult subject will continue to be a major active concern of our agency.

Don Wright

General Counsel

Monday, July 12, 2004

Pleasantly surprised:

I wrote earlier today that

I agree with Jack Balkin, though, that:

The fact that a terrorist attack might influence voters one way or the other is not a reason to cancel an election. Lots of things happen before elections that can influence voters. Rather, the reason to postpone an election is that it is simply not possible to conduct the election in a particular jurisdiction, because, for example, there are dead bodies lying everywhere or buildings have been blown up and local services have to be diverted to matters of life and death.

I would probably set the threshold somewhere below "not possible" and "dead bodies lying everywhere." On September 11, 2001, one shouldn't have conducted elections even in Boston, where elections were physically possible and no dead bodies were present, because I suspect that lots of people would have been scared away from the polls (at least for several hours) either by the shock of the event, or by the reasonable fear that there might be still more attacks that very day. Naturally, that's a judgment call, but a categorical delay of several days following a very serious terrorist attack — on the order of hundreds or thousands of deaths, especially coordinated in multiple places — would probably be wise. But in any event, the focus has to be on the risk that the election would be disrupted by lower turnout or difficulty physically conducting the process, not by people's views being influenced.

Well, reader Steve Jens points out that there was an election in Boston on September 11, 2001, a Congressional primary for a vacant seat. The turnout was apparently expected to be about 20%-25% (not unlikely for that sort of election). The election went on as scheduled, despite the attacks, and the turnout was 32%. I can't confidently say the attacks increased the turnout, but there's little reason to think they decreased the turnout. So perhaps Jack is right: If there's a September 11-scale terrorist attack in the area where a state or local election is held, that election should be postponed (as was done for an election scheduled for that day in New York), but if the attack is in a different area, the election should go on as planned. (One could argue that the vote will be distorted by the passions caused by the attack, but as I mentioned in my earlier post I tend to agree with Jack that this isn't reason enough to postpone the election.)

That still leaves the question of what to do with a major terrorist attack during a national election. I tend to agree with Rick Hasen that one should probably postpone the entire election, rather than hold a makeup election in just the affected area.

But in any event I'm pleasantly surprised, happy to have my hypothesis proven wrong, and thankful to Steven Jens for the correction.

I didn't know this was even possible:

The U.S. Court of Appeals for the Second Circuit, sitting en banc, just certified questions related to the constitutionality of the Sentencing Guidelines to the U.S. Supreme Court. So instead of a party's asking the Supreme Court to consider a question (via a petition for certiorari or, in some cases, an appeal), it's the Court of Appeals that's asking.

I didn't know this was possible. I knew federal Courts of Appeals could certify questions to those state supreme courts that allow this procedure, but I didn't know that they could certify questions to the Supreme Court. Some research reminds me that this was a normal procedure in the 1800s for deciding legal issues in criminal cases; since there was no provision for appeal in such cases, which were often heard by two-judge federal trial courts, the case would sometimes go up to the Supreme Court when the judges certified the question to the Justices (especially when the trial court judges were evenly divided). Learn something new every day . . . .

In any case, 28 U.S.C. sec. 1254(2) provides that the Supreme Court may consider a matter "By certification at any time by a court of appeals of any question of law in any civil or criminal case as to which instructions are desired, and upon such certification the Supreme Court may give binding instructions or require the entire record to be sent up for decision of the entire matter in controversy." The Court may refuse to answer the questions (see, e.g., Supreme Court Rule 19.3; In re Slagle, 504 U.S. 95 (1992); Foley v. Carter, 449 U.S. 1073 (1981); Atkins v. U.S., 426 U.S. 944 (1976) (with three Justices dissenting from dismissal of certificate)), and leave it for the Court of Appeals to do the work.

A quick search suggests that the practice was not unheard of (though producing only a tiny fraction of the docket) until the mid-1950s, but in Wisniewski v. U.S., 353 U.S. 901 (1957), the Court seemed to try to discourage the practice. The most recent case I could find in which the Court decided a matter certified to it by a Court of Appeals is Iran National Airlines Corp. v. Marschalk Co., 453 U.S. 919 (1981). Here's the heart of Court of Appeals' argument for certification (besides its argument that it's hard to tell what the recent Blakely v. Washington decision means for the Guidelines — if ceritification were proper whenever a Supreme Court decision led to confusion, then the Court would have to answer certified questions nonstop):

[W]e believe this is one of those "rare instances" when "the proper administration and expedition of judicial business" warrants certification of a question to the Supreme Court. Blakely not only casts a pall of uncertainty on more than 220,000 federal sentences imposed since Apprendi was decided, but it also raises the prospect that many thousands of future sentences may be invalidated or, alternatively, that district courts simply will halt sentencing altogether pending a definitive ruling by the Supreme Court. We are convinced that a prompt and authoritative answer to our inquiry is needed to avoid a major disruption in the administration of criminal justice in the federal courts — disruption that would be unfair to defendants, to crime victims, to the public, and to the judges who must follow applicable constitutional tequirements.

And here's the circuit's plea for unusual speed:

We recognize that the current term of the Supreme Court has ended, but we respectfully request that the Court not only entertain this certification, but do so at its earliest convenience, with an expedited briefing and hearing schedule, cf. Dames & Moore v. Regan, 453 U.S. 654 (1981) (setting case for oral argument on June 24, 1981, after regularly scheduled arguments concluded, and deciding case on July 2, 1981); Iran Nat'l Airlines, 453 U.S. at 919 (answering certified questions seventeen days after in order to minimize, to the extent possible, what we see as an impending crisis in the administration of criminal justice in the federal courts.

And apparently the Court's initial decision whether to consider accepting the certificate will be made solely based on the Court of Appeals' arguments, without briefing by the parties; here's the relevant part of Supreme Court Rule 19 (emphasis added):

3. When a question is certified, the Clerk will notify the parties and docket the case. Counsel shall then enter their appearances. After docketing, the Clerk will submit the certificate to the Court for a preliminary examination to determine whether the case should be briefed, set for argument, or dismissed. No brief may be filed until the preliminary examination of the certificate is completed.

4. If the Court orders the case briefed or set for argument, the parties will be notified and permitted to file briefs. . . .

I would guess, though, that given the unanimous request of the Second Circuit's judges, the Court would at least ask for briefing.

Thanks to Douglas Berman (Sentencing Law & Policy) for the pointer to the Second Circuit decision.

UPDATE: Marty Lederman (SCOTUSBlog) has more.

Minimum wage

This Steven Landsburg piece in Slate has prompted blogospheric commentary (Brad DeLong, Tyler Cowen, John Quiggin, others) about the core empirical/ policy claim: that minimum wage increases (at least of the scale that we've seen in the U.S. in the past couple decades) have at most a small negative impact on employment.

I have a question, not about the economics but about one of Landsburg's pieces of meta-evidence.

Twenty years ago, they'd have told you otherwise. Back then, dozens of published studies concluded that minimum wages had put a lot of people (especially teenagers, blacks, and women) out of work. As the studies continued to pile up, you might think we'd have grown more confident about their common conclusion. Instead, the opposite happened. Even though the studies were all in agreement, they managed to undercut each other.

Here's how: Ordinarily, studies with large sample sizes should be more convincing than studies with small sample sizes. Following the fates of 10,000 workers should tell you more than following the fates of 1,000 workers. But with the minimum-wage studies, that wasn't happening. According to the standard tests of statistical significance, the results of the large-scale studies were, by and large, neither more nor less significant than the results of the small-scale studies. That's screwy. Screwy enough to suggest that the studies being published couldn't possibly be a representative sample of the studies being conducted.

Here's why that matters: Even if minimum wages don't affect employment at all, about five out of every 100 studies will, for unavoidable statistical reasons, appear to show a significant effect. If you could read all 100 studies, that wouldn't be a problem—95 conclude the minimum wage is pretty harmless as far as employment goes, five conclude it's a big job-killer, you realize the latter five are spurious, and you draw the appropriate conclusion. But if the 95 studies that found no effect were deemed uninteresting and never got published, then all you'd see were the spurious five. And then the next year, another five, and the next year another five.

Even when the bulk of all research says one thing, the bulk of all published research can tell a very different and very misleading story.

How do we know what was in all the unpublished research about the minimum wage? Of course we don't know for sure, but here's what we do know: First, the big published studies were no more statistically significant than the small ones. Second, this shouldn't happen if the published results fairly represent all the results. Third, that means there must be some important difference between the published and the unpublished work. And fourth, that means we should be very skeptical of what we see in the published papers.

But if it were really the case that the minimum wage was employment-neutral, and that the studies finding otherwise were just statistical noise, then shouldn't they be equally distributed across pro-employment and anti-emplyment results? That is, the distribution should be: 95 (unpublished) studies showing no effect, 2.5 (published) studies showing a pro-employment effect, and 2.5 (published) studies showing an anti-employment effect. And surely the pro-employment-effect studies would get published; after all, they have a very interesting and policy-relevant counterintuitive result.

If, as Landsburg claims, the published studies are "all in agreement" about the direction of the effect, then the underlying distribution of studies can't be as he describes it, can it? Publication bias in favor of significant findings, superimposed on an actually-neutral relationship ought to generate equal numbers of ostensibly-significant findings in each direction.

The econo-bloggers all seem to think Landsburg is basically right about the consensus view among economists. But is that consensus view really based on the meta-analysis position he describes? If so, what's the explanation for the (according to Landsburg) absence of studies that randomly happen to show significant increases in employment?


John Quiggin answers, in an update to the same post linked to above.

Actually, the Card and Krueger study found weak positive impacts of minimum wages on employment using a data set where most of the obvious sources of bias had been removed. There may have been earlier studies with similar results, but they would almost certainly have been discarded, on reasonable grounds of weak statistical significance or omitted variable bias. By contrast, studies with similar weaknesses, but with the expected sign would have been published.


OpinionJournal's Best of the Web repeats an old math gag:

Let a=1

Let b=1

Therefore a=b

Multiplying both sides by a gives a^2=ab

Subtract 1 from the left and b (which equals 1) from the right: a^2-1=ab-b

If you remember your quadratic equations, this factors to: (a+1)(a-1)=b(a-1)

Dividing both sides by a-1, we have a+1=b, or 1+1=1

Therefore 2=1

Persuades me!


(Click here for the explanation.)

More on elections and terrorism:

Rick Hasen has more:

In this discussion, I think it is valuable to disaggregate a few different issues:

(1) Who should decide on whether an election should be postponed in the event of a terrorist strike? Jack Balkin's post makes it clear that, so long as we are talking about presidential elections, it is for Congress, not the executive, to make such decisions. This is both constitutionally mandated and politically wise. One caveat: Norm Ornstein and others have been focused on questions related to a catastrophic attack on Congress, and the need for a plan to select replacement members of Congress if necessary. If for some reason the terrorist attack would be directed at Congress, some backup plan might be necessary.

(2) Which criteria should be used to determine when a presidential election should be postponed? As blog readers know, I am a big believer in setting forth clear rules with as little discretion as possible for resolving election disputes before they arise. Some kind of mechanical rule seems desirable here. (Eugene Volokh suggests a few possible rules in his post.)

(3) If a terrorist attack occurs in one part of the United States, should the entire presidential election be postponed, or only the election in directly affected areas? Putting aside the problem of clearly defining which areas are "directly affected," the more fundamental question is whether Congress should use its powers in the event of an emergency to delay the election nationwide. As I mentioned earlier, fairness should dictate the entire election be postponed. Imagine a terrorist attack in a battleground state, where it would be impossible to hold an election on election day. The entire country besides this state votes on Election Day and either election results are announced by the other states or the media report on their exit polling. Such information could then sway votes and/or turnout in the battleground state on the date of the makeup election, and could thereby change the result the would have occurred had the entire country voted on the date of the makeup election. (Think of the Nader voters in Palm Beach County, voting on a hypothetical revote after the butterfly ballot fiasco.)

(4) Should a presidential election ever be postponed because of a terrorist attack that does not interfere with the ability of voters to cast votes? I think the early blogospheric consensus is that simple shock or grief would not be a legitmate reason for the postponement of an election.

Obviously these are difficult issues and ones with which some people would rather not deal. But prudence dictates thinking about these kinds of issues in advance whenever possible.

Again, I agree, especially as to item 2.


I'd forgotten about this entirely. Way back in July of 2001, my former professor Robert P. George made the first public argument I know of for the Federal Marriage Amendment. He doesn't claim to have originated it;

Pro-marriage activists are inclined to back an amendment that would read: "Marriage in the United States shall consist only of the union of a man and a woman. Neither this constitution or the constitution of any state, nor state or federal law, shall be construed to require that marital status or the legal incidents thereof be conferred upon unmarried couples or groups."

But I had never heard of it before that, and I forgot about it pretty quickly thereafter. Most proposals for constitutional amendments put forward in opinion magazines can be safely disregarded. For that matter, most proposals for constitutional amendments altogether can be safely disregarded. And George is (as he would be the first to admit!) pretty far from mainstream legal thought or even mainstream Republican legal thought. This hardly seemed like the harbinger of a major constitutional fight, even in the pre-9/11 days when the idea of Congress wasting valuable time on a culture war shadow-boxing match wasn't so far-fetched.

There's a good reason I didn't go into one of the predictive subfields of political science, I guess.

(By the way: I see that George's interpretation of the amendment's second sentence is the same as the one Ramesh Ponnuru pressed in an online exchange several months ago. I respect George-- and Ponnuru-- a great deal, but I still can't see it. The second sentence appears to me to ban even the deliberate legislative creation of civil unions-- because the state law creating such unions may not be construed as to create them. Somehow, George assures us, language at this level of generality can be trusted to allow the extension of hospital visitation rights to same-sex partners while simultaneously prohibiting the extension of inheritance rights. Even if that were a normatively sensible distinction, I cannot see how the text of the FMA generates it.)

Naming a character after a famous person costs writer $15 million:

The St. Louis Dispatch reports (thanks to How Appealing for the pointer):

Tony Twist, the former rock 'em-sock 'em Blues hockey player, was awarded $15 million Friday by a jury that concluded comic book artist Todd McFarlane had profited by using Twist's name without his permission.

McFarlane, formerly the principal artist and writer of Spiderman comics, gave the name Tony Twist to a violent New York mob boss in McFarlane's Spawn comics in the early 1990s.

In a case that could have broad meaning for artistic freedom, McFarlane insisted the name had literary value and his use of it was protected under the First Amendment, but Twist contended McFarlane had exceeded free speech rights. . . .

McFarlane's attorneys argued that his use of the name was protected and that no reasonable person would confuse the fictional character with the real person.

"The use at issue in this case is no different from Simon and Garfunkel's use of the name Joe Dimaggio in the song 'Mrs. Robinson,'" said Michael Kahn, one of McFarlane's attorneys. . . .

Kahn vowed to appeal the verdict "all the way."

Michael Kahn is absolutely right: This sort of literary device — which has been used by countless writers and filmmakers (Aldous Huxley, Steve Martin, Robert Heinlein, and many more) — should be fully protected by the First Amendment. In context, it's clear that the use is fictional, not an assertion of fact, so there's no viable defamation claim. And people (especially famous people) shouldn't have the right to stop others from alluding to them in works of fiction.

McFarlane had already asked the U.S. Supreme Court to consider the case (there has already been a trial and a Missouri Supreme Court decision in it; this trial is the retrial after the Missouri Supreme Court ruling). I filed an amicus brief on behalf of Michael Crichton, Larry David, Jeremiah Healy, Elmore Leonard, Harry Shearer, Ron Shelton, Scott Turow, Paul Weitz, and the Authors Guild, Inc. supporting the petition for review — check out the brief (it's short and should be pretty readable) for my explanation of why McFarlane has a First Amendment right to do what he's done.

The Supreme Court refused to hear the case, but I think that may well have been because of the procedural posture — the Court is often reluctant to consider a case, even when the lower courts disagree on a legal question, when there has been no final judgment in the case below. Now that there has been a jury verdict, which the Missouri appellate courts will presumably affirm (since the Missouri Supreme Court has already considered the legal question), that procedural barrier will be absent if McFarlane asks the U.S. Supreme Court to consider the case again. So I think there'll still be a good chance of the Justices agreeing to hear the matter; and if they do, I'm quite confident that they'll hold for the author.

Easterbrook on Moore:

Gregg Easterbrook, writing in The New Republic online, states that Fahrenheit 9/11 contains fabrications and "classic propaganda" techniques meant to deceive the audience. OK. But Easterbrook also makes the bizarre claim that the movie "is exactly the kind of political speech the First Amendment was designed to protect." It seems obvious to me that the First Amendment was not designed to protect false and deceptive speech. No one would design a constitutional provision with such a goal in mind. Rather, deceptive (and to a lesser extent) false speech is protected as a necessary evil in the cause of protecting true and nondeceptive("good") speech. I, along with I think anyone else sensible (including James Madison in his day), would be happy to censor false and deceptive speech if we (1) had a reliable mechanism for separating it from "good" speech, and (2) could ensure that censoring deceptive and false speech wouldn't lead to a slippery slope culminating in the censorship of "good" speech disliked by the government.

"Another Libertarian For Kerry"

Over at Liberty and Power, Steven Horwitz writes that

I'm a "conscientious abstainer," and that if I were to vote, I would still vote Libertarian. However, if I was coerced into voting and could only vote for one of the two major party candidates, I think at this point I would, in fact, vote for Kerry. Or perhaps more accurately, as of now, I'll be rooting for the Democrats to win come November.[...]Bush has governed as a social conservative and a fiscal liberal - precisely the opposite of what a libertarian would like to see[...] In the end, I think a world with Kerry as president and a GOP-controlled Congress is the least of all evils. Gridlock rules!!![...]Consider this an argument for just how bad the Bush administration has been. I so cannot stand both Kerry and Edwards on a personal level - the thought of a smarmy, elitist, faux-child of the 60s paired with a greasy, blow-dried, trial lawyer is making me reach for a bucket - that the idea of even verbally supporting their victory fills me with immense psychic trauma. (Only Al Gore would be worse.) However, my analytical side tells me that little could be any worse than the incumbents and that the 90s showed the power of gridlock. So I swallow hard and silently root for a split decision. For now.

In comments, his co-blogger Sheldon Richman agrees. Steven also stresses the importance of trade, saying that if Kerry-Edwards "run as protectionists, my earlier calculus is upset... I would have a hard time even verbally supporting a presidential ticket that was willing to keep the third world immiserated for the sake of a few votes in swing states." Me, too.

Speaking of both trade and split decisions, I'm starting to look for Congressional races where there's a clear difference on trade, which of course is likely (not certain) to mean a Republican moral advantage. Anti-trade Senators are a real problem regardless of who sits in the White House; and anti-trade Senators from the Carolinas (of both parties) have been particular problems. So I'm taking a special interest in the South Carolina race between Republican Jim DeMint, who seems to have a surprisingly good record on both trade and spending, and Democrat Inez Tenenbaum, who is making traditional Carolina protectionism her central issue. DeMint is, unsurprisingly, on the wrong side of a lot of social-cultural issues; but a Senator can't do as much harm on those topics as on trade, especially if the Presidency is socio-culturally liberal. In worrying about the precise shape of the gridlock I'm rooting for, I may end up supporting DeMint as well as Kerry.

The November election and terrorism:

Leading election law expert Rick Hasen (Election Law) writes:

A number of blog readers (some with alarm) have sent me a link to this Newsweek report, which begins: "American counter-terrorism officials, citing what they call 'alarming' intelligence about a possible Qaeda strike inside the United States this fall, are reviewing a proposal that could allow for the postponement of the November presidential election in the event of such an attack, NEWSWEEK has learned."

Far from seeing this as some conspiracy to keep George Bush in power (as some blog readers have suggested to me), I think this is a good prudential step to take. A presidential election can be disrupted in a number of ways, and having voting take place on different dates across the country presents some serious fairness problems (you may recall this issue arose after the some called for a revote following the use of the notorious butterfly ballot in Palm Beach, Fla. last election).

As with all election law controversies, better to have rules set up in advance, so that no one can jockey for partisan advantage in the case of a hole in the rules after (part) of the election has taken place.

By the way, John Fortier and Norm Ornstein will have an article on presidential elections and terrorism (with a host of sensible suggestions for reform) in the October issue of the Election Law Journal.

UPDATE: Jack Balkin here notes some important issues regarding the respective roles of Congress, the executive branch, and the states in rescheduling an election in the event of a national emergency.

The devil is of course in the details, and the Newsweek piece is short on details. But my first reaction is the same as Rick's, if (as seems likely) the proposal would have a substantively clear cutoff (e.g., an attack involving at least X hundred deaths at least Y days before the election) or a procedurally clear one (e.g., some supermajority vote by some bipartisan body, though that poses some complex constitutional problems itself).

I agree with Jack Balkin, though, that:

The fact that a terrorist attack might influence voters one way or the other is not a reason to cancel an election. Lots of things happen before elections that can influence voters. Rather, the reason to postpone an election is that it is simply not possible to conduct the election in a particular jurisdiction, because, for example, there are dead bodies lying everywhere or buildings have been blown up and local services have to be diverted to matters of life and death.

[UPDATE: I think I was probably mistaken in this paragraph, for reasons given here.] I would probably set the threshold somewhere below "not possible" and "dead bodies lying everywhere." On September 11, 2001, one shouldn't have conducted elections even in Boston, where elections were physically possible and no dead bodies were present, because I suspect that lots of people would have been scared away from the polls (at least for several hours) either by the shock of the event, or by the reasonable fear that there might be still more attacks that very day. Naturally, that's a judgment call, but a categorical delay of several days following a very serious terrorist attack — on the order of hundreds or thousands of deaths, especially coordinated in multiple places — would probably be wise. But in any event, the focus has to be on the risk that the election would be disrupted by lower turnout or difficulty physically conducting the process, not by people's views being influenced.

CNN goof on Supreme Court's military detention decision:

Unlearned Hand points out this item:

[Edward] Lazarus said several unusual alliances were formed in many of the bigger rulings, where traditional liberal and conservative justices came together.

Such was the case of Yaser Hamdi, a Saudi Arabian man born in Louisiana. He was captured in Afghanistan in 2001, and eventually transferred to U.S. military custody, without access until recently to a lawyer. In the biggest ruling this term, the court said he deserved a hearing before a judge.

Moderate-liberal justice David Souter, as well as Breyer and Ginsburg sided with Hamdi, joining the more conservative Rehnquist, Anthony Kennedy and O'Connor. Supporting the government was liberal John Paul Stevens, joined by the two most conservative justices, Antonin Scalia and Clarence Thomas.

Uh, except that Justice Scalia, joined by Justice Stevens, wrote an opinion strongly opposing the government's position; Justice Thomas supported the government. I think the description of the other Justices' position is also somewhat inaccurate -- they supported Hamdi in concluding that he was entitled to some review of whether he's an enemy combatant, but supported the government in concluding that such review could be relatively deferential, for instance not requiring a jury trial or proof beyond a reasonable doubt -- but at least that's a judgment call. The mischaracterization of Justice Scalia's and Justice Stevens's position is clearly wrong.

Now I stress again: Errors are inevitable, even in the work of reputable news outlets. But this should be a further reminder not to believe everything you read, even in the major media, and even on objective matters where readers might expect there to be little dispute and little chance of error.

(I can't speak to whether the error was originally Lazarus's or CNN's -- I suspect the latter, but I'm not sure -- but even if Lazarus misspoke, CNN is responsible for the errors of the sources it cites, especially when the information is easily verifiable.)

Note that the story is time-stamped Tuesday, July 6, so either CNN hasn't noticed the error, or decided not to correct it.

Famous European scientists and inventors, by country:

Here's the puzzle for the week: For each of the following European countries or areas (basically those that now have a population of 4 million or more) — Austria, Belarus, Belgium, Bulgaria, Croatia, Czech Republic, Denmark, England, Finland, France, Germany, Greece, Hungary, Italy, Moldova, Netherlands, Norway, Poland, Portugal, Romania, Russia, Slovakia, Serbia, Spain, Sweden, Switzerland, Ukraine — name at least one really famous (in America) and important scientist or inventor who was born there (that is, within its modern boundaries), who worked most of his life there, or who is culturally identified with the nation (even if he lived in a colony or a place that is no longer in the country). Also, include people for any of the smaller countries, if you can think of them. It's surprisingly hard for some countries, even some big and formerly prominent ones, notably Spain.

I have my current list hidden below. If you have some names for the countries that are not yet filled in, please e-mail them to me at volokh at Please include a URL of a page that confirms the person's affiliation with the country. Please do not send me more names for countries for which people are already included (unless the included people are all somewhat iffy, generally because they may equally be claimed by another country). Please also do not send me messages arguing that Armenia, Azerbaijan, Georgia, Kazakhstan, Turkey, Uzbekistan, or Wales should be included.

The test of a famous person: I must have heard of him. Here I represent the typical American layperson who is not a scientist, but who likes science enough that he pays attention to relatively prominent scientists. (It helps, fairly or not, if the person has something named after him.) Special proviso for people now living or recently dead: There must be good reason to think they'll be famous a century from now.

The test of an important scientist or inventor: Entirely subjective, though if a scientist or inventor is still famous a century or more after his death, that's a good sign that he's important. Note, though: For inventors the invention has to be something pretty novel; for instance, much as I like my Glock, Gaston Glock doesn't count, even though his name is famous. Likewise for Porsche, or the Belarus-born Sukhoi, whose name is famous among military aircraft buffs (a line of Soviet warplanes are named after him). As I said, lots of arbitrariness here.

(Click here to show list.)

Sunday Song Lyric: "Get Born" by Jet has to be one of the best rock debut albums in quite some time. You can hear their influences (Rolling Stones, the Kinks, AC/DC, Oasis) throughout the album, yet it remains fresh and new. The lyrics aren't the most profound, but they work with the music. This is true rock and roll done well, so it's about time I posted a Jet song as the Sunday Song Lyric. Since "Are You Gonna Be My Girl" and "Cold Hard Bitch" get so much radio airplay, I thought I'd post "Lazy Gun" instead:
Lazy Gun messed up my television yeah
You get no Younger from those colours in your hair
Teach your kids how they're all young enough to fight
Talk about the answer
Tell them they're alright

Change Nothing
Futures in
Close the door
Wear a name
Be the same
Take some more

Lazy gun messed up my television fun
Shoot the shotgun but the war is never won
Who's the enemy, who's sucking on my sun?
I'm the only one left now you've taken all my fun

Change Nothing
Futures in
Close the door
Wear a name
Be the same
Take some more

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 . . .


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.


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.


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.


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" 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?)

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 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, 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.