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Wednesday, July 21, 2004

Read the Whole Thing: Mark Kleiman complains that the WSJ editorial page is "full of Bush lit" for suggesting that the Joseph Wilson controversy might have a legal bearing on whether the leaker of Valerie Plame's identity can be prosecuted. As evidence, he cites a news story in yesterdays WSJ which reports:
Whether or not it damages [Wilson] or not, the report, in strictly legal terms, should not have any effect on Special Prosecutor Patrick Fitzgerald's investigation into whether the White House violated a law that makes it a crime to disclose the name of a clandestine intelligence officer.
So the WSJ editorial page flubbed the story, right? Not necessarily. Just One Minute notes that the very news story Kleiman cites provides support for the editorial page's claim.
Prosecutors are still trying to determine who leaked Ms. Plame's identity and why. The question, says a law-enforcement official, is whether the individual had a security clearance that gave him or her access to Ms. Plame's identity — and also leaked her name to damage national security. "We still have to prove that, and it's not easy to do," the official says. "That's why nothing ever happens with these cases."
[Substantial excerpts of the story are available here.]

I don't know enough about the relevant statute to know whether intent might matter. But given the story in question, Kleiman has not substantiated his charge.

Update: Kleiman has now updated his post, citing the relevant statute. It suggests that any prosecution of the Plame leaker would have many hurdles, including knowledge that Plame was a "covert agent" and that the government was actively seeking to conceal her identity (a point Novak's account undermines), but that intent to damage national security would not be necessary to prosecute the leaker under subsections (a) and (b) of the statute. Fair enough. But Kleiman's original post excorciated the WSJ editorial board for misrepresenting the statute without acknowledging that the article upon which he relied makes the very same mistake by relying upon an expert source who claims intent must be proven.

As for the substnative legal issue, if the leaker of Plame's identity did not know she was a covert agent (as opposed to some other type of CIA employee) and did not know the federal government was taking active steps to conceal her identity (when it appears that it was not), then I am not sure why the leak was so egregious. I haven't steeped myself in the minutiae of this controversy, but it seems to me that the statutory language incorporates the elements that would make the leak an egregious act -- placing political considerations above an individual's safety and national security. Yet if Plame's identity was not, in fact, a carefully guarded secret, where's the damage? Thus, in the end, I believe that if the prosecutor can make his case, heads should roll. If not, because evidence of necessary elements is missing, I'm not sure why this is such a big deal (though I'll be happy to convinced otherwise.

P.S. As for Kleiman's point that this is reason enough to vote against Bush, I'm also not convinced. Holding all else equal, I am not sure why I should be more against an administration that employs the Plame leaker than one that would employ Sandy Burglar. My vote -- which I expect to explain at a later date -- will be based on other things.
Climate: The More We Look, The Less We Know

That seems to be the implication of the "money quote" Daniel Drezner highlights from David Victor's CFR monograph on climate change policy.

Blakely and Lower Court Judges: I concur with Orin's post below that the ideological mix of judges on lower courts does not explain their response to the Blakely decision. Exhibit A to WIll Baude's argument is Paul Cassell. As an academic, Cassell was an advocate of the sentencing guidelines, yet he was one of the first federal judges to find the federal sentencing guidelines unconstitutional under Blakely.

I will, however, come to Baude's defense that the ideological composition of the lower courts most likely does explain the tepid reaction to Lopez and Morrison. Liberals, and even many conservatives, on lower courts are generally hostile to court-imposed limits on the commerce clause, so they've construed Lopez and Morrison narrowly. Liberals tend not to like the doctrine because it reduces federal power, while some (though by no means all) conservatives are simply less eager to invalidate federal statutes. Thus there is a distinct minority of judges on the lower courts willing to apply Lopez and Morrison in an aggressive fashion.
Blakely and the Selection of Lower Court Judges:

Over at TNR Online, Will Baude draws a connection between the lower court reaction to Blakely v. Washington and the ideology of lower court judges. According to Will, Blakely has caused an upheaval in the lower courts in part because lower court judges are ideologically sympathetic to the case and want to construe it broadly. Will argues that this highlights the importance of the appointments process governing lower court nominees.

Specifically, Will suggests that ideology can explain the difference between the tremendous impact of Blakely and the modest impact of federalism decisions such as Lopez and Morrison:

[I]t didn't have to be this way. The lower courts could have read the [Blakely] decision more narrowly; pointed out that it didn't necessarily apply to the Federal Sentencing Guidelines; and then, in the absence of a direct invitation from the Court, ignored the ruling's broad implications. Indeed, sometimes they do precisely that. When the Court decided a pair of cases that curtailed the power of Congress over states, no legal revolution followed, despite similar warnings by dissenters and academics: The logic that struck down a gun-control law (Lopez in 1995) and a statute focusing on violence against women (Morrison in 2000) could have been extended to federal laws dealing with arson, pornography, and marijuana--but lower courts have largely failed to take the bait. . . . . Blakely caught fire, and Lopez and Morrison failed to, because of the mix of judges on the lower courts. The majority in Blakely was an ideological blend--two of the Court's most conservative justices and three of its most liberal. On the other hand, Lopez and Morrison were decided entirely by the Court's more conservative wing. The lower courts, after President Clinton's presidency, are now a mix of the mostly conservative judges appointed by Reagan and Bush I and the largely pragmatic liberals Clinton selected. Blakely resonated among the lower courts, where Lopez and Morrison did not, in part because the ideologically mixed majority that decided it closely matched the ideological composition of the circuit courts that have started to implement it. That is, it requires a critical mass of judges sympathetic to the reasoning behind a High Court decision for any such ruling to catch fire in the lower courts.

I respectfully disagree. Will is quite right that the ideological dispositions of lower court judges matter, and are very important to the development of the law. The response to Blakely isn't a good example, however. If anything, the reaction highlights how legal reasoning can trump questions of ideology.

The problem with Will's argument is that Blakely is the latest in a string of Supreme Court cases, and the lower courts are responding to Blakely very differently than the earlier cases. When the Supreme Court decided the first of the cases, Apprendi v. New Jersey, back in June, 2000, the lower courts did pretty much what Will suggests. They "read the decision more narrowly; pointed out that it didn't necessarily apply to the Federal Sentencing Guidelines; and then, in the absence of a direct invitation from the Court, ignored the ruling's broad implications." Apprendi was a lot like Lopez; it was a modest step in the direction of major change, but left unclear whether it would be followed by a real revolution.

Anyone could see when Apprendi was decided that it might revolutionize criminal practice under the Guidelines. I was prosecuting a drug case in federal court in Virginia at the time, and I chose to submit the drug quantity to the jury out of an abundance of caution. But on the whole, lower courts treated Apprendi a lot like they treated Lopez. For the last four years, lower courts have been flooded with Apprendi claims. Those claims mostly have been rejected.

What makes Blakely different? Blakely is the first Apprendi case to involve a sentencing scheme quite similar to the Federal Sentencing Guidelines. Regardless of their views, federal lower court judges can read Blakely and see that its reasoning places routine federal court sentencing practices in doubt. Whether they think Blakely is right or terribly wrong, it's a hard decision for a lower court judge to ignore.

UPDATE: Eric Muller adds some interesting thoughts.
Center for Talented Youth:

Jacob writes today about his experience with the "CTY" programs of Johns Hopkins. Basically pre-college kids take college-like classes over the summer. I just did a parent-teacher interview there (as the parent). Yana, who is fourteen, took a class on the philosophy of mind. She just started another class on the French and Russian Revolutions. This is her third year there, she calls herself a CTY addict. The year before she did Latin. This time we had her for two days between sessions. I heard about modal logic, Newcomb's Paradox, and mind-body reductionism. Yana now knows why she believes in free will, and why she doesn't want to be an undergraduate philosophy major. She loves CTY, and so do we. It also seems that they enforce curfews, strictures against drugs, and so on. The instructors are smart and enthusiastic. Highly recommended, if you ask me.

OF GERBILS AND MEN:

My National Review column today is on Snopes, the indispensable urban legends debunker site. I became interested in urban legends several years ago, when for a while it seemed like that terrible tale of Richard Gere and the gerbil was all anyone was talking about. Gerbils aren't actually in the habit of burrowing up the rectums of movie stars — or anyone else, for that matter; I mean, what's in it for the gerbil? — but just try explaining that to the dozens of people here in Hollywood who kept insisting that their sister's/cousin's/uncle's friend worked at some local hospital and — swear to God! — had seen the gerbil X-rays.

People became very heated if you questioned the truth of their story. But gerbils, an exotic desert species that would wreak havoc on California agriculture if they were to get loose and breed, have always been banned as pets here. I remembered this fact from my pet-obsessed childhood, when I checked out every animal book in the library. So where would Gere have found that gerbil? Presumably a hamster or mouse would have served just as well. Obviously the story originated in some cold-weather state where gerbils are legal and migrated to California. And indeed it did: I tracked down a 30-year-old version about Jim Nabors.

And why would a celebrity go to an emergency room with such an awkward problem instead of calling a private doctor? These stories reveal as much about the personal frames of reference of the tale-teller as they do about anything else. Folklorists found the story fascinating: Norine Dresser wrote an article called "The Case of the Missing Gerbil" for the academic journal Western Folklore, which cited a piece I wrote about the story at the time for the gay magazine The Advocate.

"In my favorite version [Gere] went to Kaiser," Dresser told me. "And I just had to scream at the vision of him pulling out his Kaiser card."

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Too much:

Can we please not put all this weight onto the performance of Catwoman?

The first African-American to win an Oscar for best actress — for the 2001 film "Monster's Ball" — [Halle] Berry has now become the first African-American actress to headline an expensive, effects-laden production, this one about a meek graphic artist who turns into a vigilante with feline powers.

In the zero-sum calculations of the movie industry, Ms. Berry's bankability as a star will be judged largely on whether she can "open" "Catwoman," a Warner Brothers film — meaning whether she can make it a financial winner. If it succeeds, it will place her among a rarefied group of top-paid female stars, only a few of them established box office draws, and signify yet another achievement for African-American actors.

And so, if Catwoman flops, I guess that'll mean that either Berry in particular or black women in general can't be banked on to "open" a big-budget action movie, leading to both Hollywood decisions not to attempt such things and an indictment of the American moviegoing public.

But, of course, Catwoman might flop because it's going to suck. I don't know that for sure, of course; but it certainly looks unpromising. Cringe-inducing, actually. That has nothing to do with Berry's acting ability (cf Monster's Ball or Gothika) or her talent at action (cf Die Another Day). It has to do with the sort of dialogue that I'd hoped the Spider-Man and X-Men movies had cured superhero movies of. It has to do with the costume, and the impression that the movie's only purpose is to pour her into it.

The apparently-aborted Bond spinoff movie might have been a much better test for the "Halle Berry, summer action hero" hypothesis. So might a Storm-focused X3. So might a Catwoman movie that didn't have its natural base of supporters bracing themselves for a Dolph-Lundgren-as-the-Punisher level catastrophe. But this isn't going to be any better a test of her ability to headline than LXG was a test of Sean Connery's.

Update:

Roland Cooper e-mails a link to this review. I dunno how this reviewer got to see the movie early, but the review confirms all my prejudices about the movie.

Without pussyfooting around, I can state that Catwoman is a catastrophe. An amalgamation of bad clichés purr-loined from other, better superhero movies (not that there are many - if any - that can be considered worse), this motion picture is an embarrassment to all involved, from single-named director Pitof (whose moniker sounds like something often done to rice) to Halle Berry, who has by now thrown away all of the goodwill she gained from appearing in Monsters Ball. ...The Academy Award-winning actress is so awful in this film that words fail me. It's difficult to decide whether she's channeling Eartha Kitt or Pulp Fiction's The Gimp. And on those rare occasions when she attempts a one-liner, it is met with hoots of derision. (Part her delivery, and part the words she has to deliver.) Berry's performance might have been campy enough to enjoy on its own had the tone of Pitof's epic been less somber. The director seems to view himself as an auteur....As poorly written, ineptly directed, and hideously acted as Catwoman is, its biggest sin is that it's boring. This movie does not offer a single worthwhile, interesting, or exciting scene. The action is dull, predictable, and repetitive. Ever thought a catfight between Sharon Stone and Halle Berry could rival a dose of valium as an effective sleep-inducer? I suppose Pitof deserves a measure of respect for being able to achieve something I would have argued was not possible. Catwoman treads close to the so-bad-it's-enjoyable line, but, at least for me, it fails to cross over, despite a valiant attempt. As far as I'm concerned, it's just plain bad. Nothing redeeming here.

Square Root Camp:

This week's New Yorker has a mostly very good article by Burkhard Bilger about the summer residential academic camps run by Johns Hopkins' Center for Talented Youth-- "nerd camp," as he calls it in a move that would be cute two or three times but becomes kind of odd when he uses it every time. (The article's not online, but there's an online-only Q&A with Bilger about the article here.)

Unavoidably, I suppose, the article at least worries a bit about yuppie super-parents forcing their kids to become super-kids and try to get into CTY, and self-reinforcing social stratification. But Bilger has what seems to me the right attitude toward that worry.

I'm sure that some kids go to nerd camp just to please their parents. And for them the experience must be mind-numbingly boring: six hours a day in a classroom, in the glory days of summer, trying to cram a semester's worth of work into two weeks. But I didn't see many bored kids at Vanderbilt or Johns Hopkins. Most of them have what Ellen Winner, a psychologist at Boston College, calls a "rage to master." They were just naturally curious about the world and had an inner compulsion to use their minds. It's almost impossible to force that kind of focus and diligence on a kid—just try getting the average ten-year-old to practice piano for half an hour a day.

(From the Q&A, not the article, but the article expresses the same thought at greater length.)

In retrospect, my admission to and financial aid for CTY (math, 1984) provided a pretty tranformative experience for me, and one of the major mechanisms for my own social mobility. The other major mechanism was my scholarship to Exeter. CTY made me realize how desperately I wanted to go to an academically first-rate boarding school. Once I was through Exeter, my course was pretty well set; at that point there was effectively no chance of my not going on to a good college and beyond. Had I stayed in my medium-town New Hampshire public school system-- which was fine but nothing like the public-preps of wealthy suburbs-- I would have stayed pretty miserable and continued to get full-time negative reinforcement for intellectual excitement and curiosity. I wouldn't have understood the range of possibilities that were really open to me, and would have had my sights set much, much lower than they were ultimately set. And I do think I would have ended up internalizing (what I perceived to be) the hostility to nerdiness among my peers. It seems pretty unlikely that I would have ended up in nerd heaven, here at the University of Chicago. After CTY and Exeter excited me to possibilities I hadn't understood existed-- and that, it turns out, provide a path to significant social mobility.

But what I remember about it, rather than what I see in retrospect, has nothing to do with social mobility. It wasn't about what would come after education. It was the sheer joy and amazement at being around kids my own age who were not only not hostile to the desire to read and learn and think, but who shared it themselves. I didn't leave CTY thinking that continuing to go to places like that would earn me money someday; I left knowing that I'd been happier there than I'd ever been around kids my own age, and that it was possible for "smart kid" to mean something social other than "kid to get beaten up." (It wasn't an awful school system; really. I didn't get badly beaten up or get anything broken or turn into a Columbine Kid. But it was pretty consistently unpleasant.) There was geekiness as well as nerdiness to be had-- I played my first D&D at CTY-- but sharing cultural or recreational tastes wasn't as important as, well, the sharing a taste for spending one's summer learning algebra.

I never went back to CTY, though I seem to remember most kids going for multiple summers. Once I got into Exeter, all available funds had to go into the "family contribution" part of my tuition there, and my summer months were for grocery-bagging. (Neither the CTY nor the Exeter scholarship was 100%.) But once was enough to get a lot of other things moving in my mind and my sense of the world. I didn't end up in math or a particularly math-related field, either; a summer of algebra didn't provide me with any particular head start on my career. But, manohman, did it make a difference. I'm glad to see that CTY is still going strong, glad to read that its financial aid budget has been further bulked up, and glad to see some sympathetic, supportive coverage of it.

Appalling Aspects of Story on Terrorist Friends:

On Monday, the Washington Post carried this story about a group of seven friends from Jenin who had formed a theater troupe under the direction of an Israeli director in the early post-Oslo days. Only two of them didn't eventually become terrorists, and most are now dead.

The story has two especially galling aspects (beyond the fact that not a single one of the terrorists' victims is identified by name). First, one friend who stayed out of trouble, and now works as a stone mason, feels the need to apologize for not being a terrorist:

"I'm not different than them," Kaneri said, watching his 3-year-old daughter play with a kitten next to him on a living room sofa. "Resistance comes in many forms. Everybody chose to resist in his own way. Not everybody who resists becomes a martyr. It's not like the only condition is to carry a gun. Maybe helping your family is part of the resistance.

"I am the man of the house," he added. "I support the wife of my martyred brother, the wife of my wanted brother and their five kids, my mother, my younger brother, my wife, my two children. I built this house and moved them here. Don't you think that's part of the resistance?"

Second, the Israeli son of the director of the theater group is actually proud that he worked with the future terrorists:

"Some people ask me if my mother failed," Mer Khamis said on recent night, sitting at the kitchen table of his house in the Israeli port city of Haifa. "They say, 'She wanted to make actors of them and they became terrorists.' "From my perspective, it's a success that people stood up and fought for their rights," said Mer Khamis, who said he recently lost his contract to work in Israeli theaters because of his pro-Palestinian sympathies. "Arna told them to fight for their rights."

This is the sort of comment that makes one wonder whether post-Olso "peace" projects funded by European and American governments and philanthropists ultimately actually served to encourage Palestinian terrorism, by putting idealistic young Palestinians primarily in touch with Israelis whose ideological outlook was closer to Yasser Arafat's than to Yitzchak Rabin's.

I Hate the Boss of Me My Boss!

Here is something that my brother Glen never said to me while we were growing up:

You're not the boss of me!
However, he did say this on a number of occasions:
You're not my boss!
For the past few years, though, I've been hearing the first phrasing much more than the second one, and I don't know why. The of me makes it sound like the speaker is translating something from a language that doesn't have possessive pronouns. The primary place where I expect to see of-possessive in English is in partitive constructions, as in all/part/some/none/the rest of me. To indicate ordinary possession of some object, a possessive pronoun or 's possessive is the usual way to go, as in Neal's dog or our house.

Of course, my boss is not a case of ordinary possession, since only in the rarest cases does one own one's boss. It's a relational noun, which means that a possessive shows who the noun relates to. Even so, boss is the only relational noun I've seen where an of-possessive is OK (at least for some speakers). All the other relational nouns I know of show the relation with an ordinary possessive. For example:

  • the boss of me / my boss
  • *the doctor of me / my doctor
  • *the attorney of me / my attorney
  • *the father of me / my father (but: father of the bride)
  • *the wife of me / my wife
  • etc.
These examples hold good at least when the ordinary possessive is pretty short--I'd probably use an of-possessive instead of saying something like the a friend of a guy I used to work with's boss. (In fact, I'd have to, if I wanted to make it clear whether it was the friend's boss or the guy's boss.) So what is so different about boss that it deserves an of-possessive?

I did some Google searching on the phrase the boss of, and here's what I found out.

  1. They Might Be Giants did a song called "Boss of Me" that is mentioned in a lot of websites.
So I had to start over, adding "-giants" to my search. I found that there were hundreds of thousands of hits for my/you/his/her boss, there were at most only a few thousand hits of the corresponding boss of phrase; the most was near 7000, for the boss of me. Aside from that, obvious patterns didn't really jump out.

But I did notice one pattern after a little more searching: the boss of tends to occur in predicate nominatives--that is, in noun phrases after some form of be, as in You're not the boss of me. It can also appear as the subject of be, but I've seen that only in statements that are identifying who someone's boss is or isn't, as in The boss of me is me!

Outside of those two cases, I have yet to see the boss of X replace X's boss. For example, I got ~600 hits for I love my boss, ~2300 for I hate my boss, and ~290 for my boss is an idiot, but no hits at all for any of these strings when I replaced my boss with the boss of me. However, to really do this kind of search right, what you need is a corpus that's been annotated with parts of speech and at least a little bit parsed, so that you can ask for the boss of as the subject or direct object of any verb instead of just love or hate or some other specific verb. Since I don't have access to one of these, I tried the Linguist's Search Engine, which will annotate and shallowly parse customized Internet corpora, and then search them for you. So far, though, nothing has turned up.

Tuesday, July 20, 2004

Badnarik:

Speaking of Hit & Run, I notice a Badnarik for President blogad running there. (Right now it's the 3rd blogad down, in the right-hand column.)

The headline text is "A PLAN FOR PEACE." Superimposed on the image of Badnarik are the words "The Peace Candidate." And right below the image we get the words "Priority 1: Get the warmonger out of the White House. Priority 2: Don't put another one in."

"Well," thinks I, "this is interesting. If this is Badnarik's strategy, then we might for the first time see a Libertarian presidential candidate really running left rather than running right. I don't know how tactically sound that is, since it means he'll be competing with Nader for the Kucinich vote, whereas he's got the 'Bush is a big-spending protectionist' ideological space all to himself. On the other hand, Libertarians have been running the "Republicans are big spenders too" campaign since the year after I was born, to no great avail, so maybe this will pay off. Won't win my vote, but best of luck to 'em."

The ad made me wonder how Badnarik was going to describe his "Plan for Peace." So I clicked on thw ad to get transported to his campaign homepage... where the words "war," "peace," "Iraq," "terror," and so on are entirely missing from the site's front page. Instead, the first thing the enthusiastic Kucinich voter sees when clicking on the Peace Candidate's ad is "Today's Position Paper: Gun Control Means Being Able to Hit your Target."

This, um, might not be the best way to capitalize on those blogreaders who were attracted by the run-to-the-left PEACE message...

ACLU Summer Surveillance Campaign:

The ACLU has a pretty funny Flash movie up on its website about surveillance; the basic idea is to imagine what it would be like if you called up to order a pizza and the person on the other line knew lots and lots of information about you.

It's a clever idea, but there is something a bit fishy about the movie in the context of the ACLU's campaign: it seems that everything in the movie involves private-sector information gathering, and yet the "action" that the ACLU prompts you to take appears to be focused primarily on government datamining. Based on the ACLU website, it seems that the primary goal of the ACLU's campaign is to defund the MATRIX law enforcement database. Maybe I'm missing something, but it's not obvious to me what the connection is between MATRIX and what the pizza guy knows about you. Private-sector information gathering is quite different from government datamining: the former concerns restrictions on private parties obtaining information, and the latter concerns government agencies sharing and looking through the information that they have already obtained. I guess MATRIX didn't lend itself to a funny movie.

Thanks to Macondo Law for the link.

Around and about: Sports-writer extraordinaire Aaron Schatz has a new article up at TNR (registration required) about Kobe, Shaq, and class.

Liberty & Power bloggers David Beito and Charles Nickolls have an article at Reason that should (but of course won't) put the enduring infatuation of some libertarians with the Old South to rest once and for all. Hit & Run has set up a comments thread on the piece here, and while it's got some of the expected unpleasantness there are some very interesting posts as well.

Our guestblogger Neal has a very funny post up at his homeblog imagining Jeopardy if answers had to be in the form of the right question.

And Reason has posted a more complete version of the Julian Sanchez interview with my colleague Martha Nussbaum than appeared in print. Some very interesting bits and pieces for philosophy buffs got left out of the hard copy; Julian knows his stuff and knows the right questions to ask. (Contrast with this new piece in the Chicago Sun-Times about Nussbaum, or rather about how the reporter was in awe of her and couldn't manage to read any of her books. Unlike most articles about Nussbaum, Julian's (even the extended version) makes no mention of what she was wearing, and does press her on tensions among her various philosophical positions and commitments (see, e.g., the political liberalism question).
Interesting New Criminal Law Case:

Does tipping off a friend that he is going to be arrested constitute intentionally interfering with the official duties of an officer? A divided panel of the Ninth Circuit says yes, at least given the facts of the case before it and the language of the regulation in question. I'm not sure which side is right, but it's an interesting decision. Thanks to Howard for the link.

WHO'S SORRY NOW:

The twice-yearly Television Critics Association press tour (where I've been since July 8, and will be until Friday) is easy to mock: the occasionally oddball reporters with their bizarre questions; the endless network spin about new shows, most of which will be quickly cancelled; the "Lord of the Flies" atmosphere. But I find the TCA valuable and even sometimes fun. Seeing the network and cable presentations can be useful as attending a political stump speech; yes, they're dishing out what they want you to hear, but there's information to be gleaned from just that. Plus, execs, producers and stars are readily available for one-on-one chats. They may as well cooperate; they're stuck there with you anyway.

Still, some TCA-ers can be fantastically defensive about their twice-yearly confab. It's not a junket, they insist; it's not, it's not, it's not! Even though the three meals a day are all gratis, and the hotel rate ($115 a night at the Century Plaza) is artifically low and obviously indirectly subsidized by the TV networks, which bring millions of dollars in business to the hotel with their presentations. TCA awards night banquet is described by members as a "gift from the hotel," e.g., it's certainly not paid for by the TCA budget, which charges just $50 a year in dues. Actually, of course, it's a gift from the networks.

And yet what a kerfuffle is going on right now because of that awards night! The problem, as reported by Scott Collins in the L.A. Times yesterday, is that the TCA accepted -- even solicited! -- network ads for the awards night program. Which led to a rancorous, three-hour TCA meeting Saturday morning. As Collins wrote:

Many members were outraged, believing that accepting network ad money gave the group at least the appearance of a conflict of interest.

The fact that their own newspaper and magazine employers of course accept and solicit ad money from businesses the publications cover seems not to have occurred to these outraged members. So they want the TCA to apologize to the networks and refund the money paid for the program ads.

Journalism's a funny thing: we don't have to pass any tests to work as reporters, and we can't be disbarred. So maybe that's why we so often overshoot (or undershoot) target guidelines for ethical behavior.

And then we all have our own little rules. I, for instance, felt I needed to see for professional reasons "Fahrenheit 9/11," but giving Michael Moore one dollar of my money violated my own personal ethical code. So when Showtime offered TCA members a free screening as the evening's entertainment last night, I took it. Problem solved!

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Monday, July 19, 2004

Can he mean this?

"The best thing that could happen to the environment is free-market capitalism. In a true free-market economy, you can't make yourself rich without making your neighbors rich and without enriching your community. In a true free-market economy, you get efficiencies and efficiency means the elimination of waste. Waste is pollution. So in true free-market capitalism, you eliminate pollution and you properly value our natural resources so you won't cut them down. What polluters do is escape the discipline of the free market. You show me a polluter, I'll show you a subsidy — a fat cat who's using political clout to escape the discipline of the free market."

I'm impressed if you guessed that was Robert F. Kennedy Jr. Here is full interview. Kennedy also shows an understanding of the tragedy of the commons, but not everything in the interview is reasonable.

Nuh-Uh!

Imagine that you're back in elementary school, having a discussion on the playground with one of your classmates. It goes something like this:

You: My dad can beat up your dad!

Classmate: Nuh-uh!

What is the proper response here? For me, it is and has always been, "Uh-huh!" But in the past few years, I've been hearing "Yuh-huh!" At first it was just in a few TV shows (I think I've heard it in "Friends"), and then I saw it written in a comic strip or two. When I really started to take notice was when my son Doug got to be old enough to have these kinds of conversations, and always said "Yuh-huh," never "Uh-huh." That was interesting, because he certainly didn't acquire yuh-huh from me (any more than I acquired uh-huh from my parents). He must have gotten it from his peers, which meant that they were all saying yuh-huh, too. To make a hasty generalization out of it, there seems to be a generational shift from uh-huh to yuh-huh.

I asked some people about this a few years ago, and got some anecdotal support of the hypothesis. For example, here's what Glen said:

I've noticed the gradual emergence of "yuh-huh" as the response of choice. It's often been used in Buffy the Vampire Slayer by Dawn, Buffy's 15-year-old younger sister. The younger someone is, the more likely they are to say "yuh-huh" instead of "uh-huh." But I'm old enough that I still prefer "uh-huh."

And another guy told me that he used to say uh-huh, but picked up yuh-huh from his kids.

When I did an Internet search, I found:

  1. several attestations of nuh-uh and uh-huh close to each other

  2. many more attestations of nuh-uh and yuh-huh close to each other, the oldest of which seems to be a 2000 episode of The Simpsons (though there are a couple of scripts from Friends episodes that might be older).

  3. no cases in which a person uses both uh-huh and yuh-huh in response to nuh-uh

  4. several cases in which a person uses both uh-huh and yuh-huh, but in these cases, uh-huh is always the conversation-continuing particle, not an emphatic affirmation

  5. an entry for yuh-huh (but not uh-huh) in a listing of (I think) Pittsburgh English vocabulary

The last item was interesting, since it meant that maybe yuh-huh was more of a regional thing, which was now spreading.

But the most intriguing hypothesis on the origin of yuh-huh came from a comment from my parents: Although I've been using nuh-uh since I was a little kid, even it seems to have come on the scene within the last two generations or so. Before nuh-uh, there was uh-uh (also written unh-uh or unh-unh) If nuh-uh arose as a blending of uh-uh and no, then maybe yuh-huh is just a delayed analogical blending of uh-huh and yeah. Schematically:

uh-uh — merge with no --> nuh-uh

uh-huh — merge with yeah --> fill in the blank

Analogy is known to be a powerful force in language change (see for example my previous posts on backformation, here and here), but as for whether the scenario above is actually what happened, I don't know.

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NURSE THE VOTE:

Associated Press had a story last week about a toy creator named Ken Hakuta (known as "Dr. Fad" to kids), whose Adopt-a-Vote campaign aims to give the underage set a real voice in this election:

According to Hakuta... children and parents [could] enter into an agreement pledging that the parents will vote according to their children's preference as long as the children have done their homework.

Right, that's what we need in politics: more pandering. It's bad enough MTV's Rock-the-Vote campaign frantically urges 18-to-30-year-olds, no matter how ignorant, to get to the polls.

Look, voting is a privilege as well as a right and if you don't vote, you should be ashamed of yourself. But the reason you should be ashamed of yourself is that not voting is lazy and idiotic. Should the lazy idiot constituency be encouraged to influence society even more than it already does? Should contemporary parents fool children even more into thinking that the world revolves around them?

In his book "The Vanishing Voter" (based on the Vanishing Voter project at Harvard), Thomas E. Patterson admits tht "in most locations, it takes about as long to drive to the video store and rent a couple of movies" as it does to vote. Yet he agrees with the theory of increasing voter turnout by coddling. Taken to the logical extreme, his solutions -- making Election Day a national holiday; eliminating the Electoral College; keeping polls open even longer -- might include assigning government workers the task of physically carrying citizens to voting booths and then singing them to sleep that night with politically informed lullabies.

Many things in life are hard; voting is not one of them, and parents promising to vote the way their children want in return for finished homework sends a message about as useful as school principals who eat worms if a class improves its grades. In the eternal words of Marge on "The Simpsons," "One person can make a difference, but most of the time they probably shouldn't."

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Bobby Fischer on trial?

Surely you have heard by now that Bobby Fischer was arrested in Japan, for violating U.N. trade sanctions against Yugoslavia/Serbia in the early 1990s. Here is the most detailed scoop I have managed to find.

Here is just one bit of this sad story:

If the United States had been serious about keeping tabs on the ex-champ to account for his 1992 felony, they had a good opportunity to start doing so in 1997, when he successfully applied in person for an American passport at the U.S. Embassy in Bern. Switzerland was not then a U.N. member, so Fischer could not have been detained on the American arrest warrant. But for six years he traveled around the world without impediment on that passport. If there was indeed a "hunt" for Fischer, it wasn't very careful or vigorous.

Even without a valid passport, he was entitled to return to the United States to face the federal charges against him, but this obviously wasn't his intention last week. Fischer writes of himself in the third person, "Bobby Fischer does not wish to return to the Jew-controlled USA where he faces a kangaroo court and 10 years in Federal prison and a likely early demise or worse on trumped political charges. Nor does he wish to remain in a hostile brutal and corrupt U.S.-controlled Japan."

Fischer is not an admirable fellow, but there is much to the following:

The sad truth is that at 61, Fischer is right to question his own ability to survive a long stretch in prison. Most people with impairments like his don't live so long in the first place, and they certainly don't do well in jail. You can call him schizophrenic, or "bipolar," or whatever you like. Clearly some description of the sort is valid, whether or not these are illnesses or mere personality types.

Ten years is merely the maximum American penalty for his violation of U.N. sanctions, and a good defense lawyer would emphasize the absurdity of imprisoning a man for having aided and abetted a long-defeated regime in a country that, technically, no longer exists. Playing chess, after all, isn't quite the same thing as smuggling yellowcake.

Fischer was a boyhood idol of mine, now he has fallen so far. Thanks to Eric Crampton for the pointer.

Preneymoons:

I've coined a new word, "preneymoon." Nowadays, due to work schedules and other complications, many couples can't get away for their honeymoon right after their wedding. Some couples opt to delay their honeymoon until a more convenient time. Others take a nice romantic trip together within a month or two of the wedding, either to make up for a lack of a honeymoon, or because the actual honeymoon will be delayed for until many months after the wedding. I call this trip a "preneymoon." Feel free to use it!

Clarification:A "preneymoon" is a romantic trip taken by a couple before the wedding, in lieu of a traditional post-wedding honeymoon.

Sunday, July 18, 2004

Being the worst at what you do best I was listening to one of our many kids' CDs in the car the other day. That's (many (kids' CDs)), not ((many kids') CDs), BTW. Anyway, it was from the Ralph's World series, and the first track is a really catchy song that starts off like this:
Everybody does what they do best the best
I usually dwell on this line during the rest of the song, and end up thinking about it several times in the few days after I play the CD. No, it's not the plural they with the singular everybody antecedent that gets to me—I got over that grammar issue years and years ago. What I think about is the 4-way ambiguity in this line, with two readings that are tautologies and two that are probably not true, but are interesting to think about. Allow me to explain...

When you say, "Swimming is what I do best," you could mean that you are better at swimming than you are at any of the other activities you engage in. I'll call this the Personal Best (PB) reading. Or, you could mean that you swim better than all the other people who swim. I'll call this the Better Than Everyone Else (BTEE) reading. And now, when you say, "Everybody does what they do best the best," you're doubling the ambiguity, ending up with four readings.

First, there's the PB-PB reading: The activity that you do better than any other activity is, naturally, the activity that you do better than ay other activity. Then there's the BTEE-BTEE reading: The thing you do better than anyone else, you do better than anyone else. These are the boring readings, but maybe Ralph just wanted to emphasize one of these two undeniable facts. On the other hand...

Here's where it gets interesting. (Well, more interesting, at any rate.) We have the PB-BTEE reading: The activity you do better than any other activity is also the activity that you do better than anyone else. That's quite a claim. Just think, no matter how mediocre or even downright bad you are at the activities you engage in, if you can just find the one that you are least bad at, it will turn out to be something you can do better than anyone else! It would also mean that no two people can have the same activity as their personal best. If swimming is my personal best activity, then I'm better at it than anyone else; but if swimming is also my friend's personal best activity, then he'd have to be better at it than anyone else, too. One of us would have to go. I'm guessing Ralph probably didn't intend this reading.

Lastly, there's the BTEE-PB reading: First of all, it kind of assumes that for each person, there does exist some activity that they do better than anyone else, and claims furthermore that this activity will also be the one that they do better than any other activity they engage in. So if you swim better than anyone else, it must also be true that you swim better than you play chess, get dates, tell jokes, or anything else. This is probably true for a lot of people, but it seems to discount those people who are so irritatingly good at everything they do—so good that you figure that there has to be more than one activity that they can do better than anyone else.

So where does that leave us? I still don't know which meaning Ralph intended, though I guess it's probably one of the boring ones. I'm sure I'll find myself thinking about it again pretty soon, though, since the CD does have some great music on it.
Elsewhere...

I've said it before and I'll say it again: one of my greatest blogospheric joys has been the chance to get introduced to the witty, insightful, and stylish writing of John Holbo. Over at "John and Belle Have a Blog" he's got an epic post about epics, myths, and comic books that's very funny and very thoughtful. Readers who (like me) have spent fanboyish time either generating continuity patches, arguing about published continuity patches, or arguing about continuity altogether should go read it. So should the rest of you, of course, but if you've never heard of Alan Moore or Crisis it contains references you will find obscure.

Meanwhile, at Crooked Timber, he's answered Orin's call (below) for a name "for when advocates on both sides of an ongoing debate switch rhetorical positions, and yet they insist on decrying the inconsistency of their opponents while overlooking their own inconsistency." The name's clever and yet right, and he has useful reflections on the underlying phenomenon as well.

Sunday Song Lyric - Moore v. Townsend Edition: Michael Moore sought to use The Who's "Won't Get Fooled Again" in Fahrenheit 9/11. As Moore tells the story:
At the end of the film Bush says "Fool me once, shame on... me. I won't get fooled again." Clearly that moment demands that we hear Roger Daltrey scream, "Won't get fooled again!" That's how I had it cut. Pete Townsend blocked it, would not allow the song to be used. Word came to us that he is not a fan of Michael Moore's and in fact supports the war and supports Tony Blair and doesn't want the song used in any way that would make Blair look bad. Harvey [Weinstein] personally made an appeal to him to reconsider. And he wouldn't.
As with so much that comes from Moore, there is a kernel of truth, but ample reason to doubt the details.


Pete Townsend tells a quite different story. Moore was initially turned down by Townsend's publisher because Miramax offered substantially less for the rights to the song than is usually paid. At that point, Harvey Weinstein interceded in an effort to change Townsend's mind. According to Townsend, he was uneasy due to concerns about the accuracy of Moore's prior film, Bowling for Columbine. Nonetheless he said he would reconsider if he had a chance to see the film and how the song would be used, but he never heard back. Townsend says he has "nothing against Michael Moore," but he "greatly resent[s] being bullied and slurred" by him merely because Moore did not get to use the song.


Townsend also suggests that, despite its title, "Won't Get Fooled Again" might not have been the most appropriate song for the movie.

WGFA is not an unconditionally anti-war song, or a song for or against revolution. It actually questions the heart of democracy: we vote heartily for leaders who we subsequently always seem to find wanting. (WGFA is a song sung by a fictional character from my 1971 script called LIFEHOUSE. The character is someone who is frightened by the slick way in which truth can be twisted by clever politicians and revolutionaries alike).
Is "Won't Get Fooled Again" an anti-war song or not? It seems Conspiracy readers should make up their own mind, so here are the lyrics:
We'll be fighting in the streets
With our children at our feet
And the morals that they worship will be gone
And the men who spurred us on
Sit in judgement of all wrong
They decide and the shotgun sings the song

I'll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around
Pick up my guitar and play
Just like yesterday
Then I'll get on my knees and pray
We don't get fooled again

The change, it had to come
We knew it all along
We were liberated from the fold, that's all
And the world looks just the same
And history ain't changed
'Cause the banners, they are flown in the next war

I'll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around
Pick up my guitar and play
Just like yesterday
Then I'll get on my knees and pray
We don't get fooled again
No, no!

I'll move myself and my family aside
If we happen to be left half alive
I'll get all my papers and smile at the sky
Though I know that the hypnotized never lie
Do ya?

There's nothing in the streets
Looks any different to me
And the slogans are replaced, by-the-bye
And the parting on the left
Are now parting on the right
And the beards have all grown longer overnight

I'll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around
Pick up my guitar and play
Just like yesterday
Then I'll get on my knees and pray
We don't get fooled again
Don't get fooled again
No, no!

Yeaaaaaaaaaaaaaaaaaaaaaaaaah!

Meet the new boss
Same as the old boss

Saturday, July 17, 2004

SPEAK TO ME: My 15-year-old daughter is off studying Russian at a language camp in Minnesota for a month. To which people generally ask incredulously: "Why Russian?" Last year, when she took French at Pasadena Community College, we got the same reaction: "Why French? Why not Spanish? Isn't that more useful around here?"

Well, no. What's useful in Los Angeles, just like everywhere else in the country, is English. I suppose if I were a contractor rounding up day laborers every morning, and wanted my daughter to learn the family business, Spanish would be invaluable. But this is not the case.

I do speak enough Spanish to communicate with the cleaning lady, just from living in the Hispanic barrio of Echo Park for six years. This is sort of useful, but not vital.

Since 1066, educated English speakers have studied French. Even if we don't speak it (I certainly don't, although I took French for three years in high school), it gives us a deeper understanding of our own language, and prevents embarrassing gaffes like "I just love that Why-vees Saint Laurent!" Which some trophy wife actually said to me at a fashion show once.

Of course, studying any foreign language broadens the mind, which is why I've never understood people who keep demanding "Why Russian?" (The answer is that my daughter likes Russian literature and culture, and also has a Russian friend here in L.A. she can practice speaking Russian with.)

In Southern California, though, it's assumed that naturally most students should study Spanish as a foreign language, so that's all that many schools offer. The fact that in many schools the majority of students already speak Spanish at home, and therefore would find it far more useful to learn French (or another foreign language), never seems to have occurred to public school officials.

I can't access the horribly annoying L.A. Times archives via Google, but the paper ran an excellent July 2 story about all this titled Students Ask For More Foreign Language Choices, and you guys all have Lexis, right?

P.S. French can actually be handy, even here in Southern California. During the L.A. bus strike, I often gave one of my daughter's classmates from her community college French class, a 19-year-old girl from Guadalajara named Veronica, a lift home. Veronica works in the corner grocery on weekends, and told us she often gets into language trouble with customers.

"I was born here!" they'd say angrily, if she spoke to them in Spanish. "Speak English!"

So then she'd try English with the next customer, who'd snap, "Who are you trying to pretend to be? Speak Spanish!"

I suggested she start speaking to everyone in French. Then they can all feel equally offended.
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The Engligh Language Needs A Word

for when advocates on both sides of an ongoing debate switch rhetorical positions, and yet they insist on decrying the inconsistency of their opponents while overlooking their own inconsistency. You can see it in politics whenever there is a change in power. Advocates from the party that loses power switch to the standard what-you-say-when-you're-the-opposition arguments, and those from the party that is now in power switch to the standard what-you-say-when-you're-in-power arguments. You never have to wait very long before one side tries to outfox the other by trotting out what their opponents said back before the power switch: "Aha!" an advocate for one side will say, "But back in 199_, you took the opposite position!" Well, of course: back then, everyone took the opposite position. I don't know of a word for this particular phenomemon, but I think we need one.

Friday, July 16, 2004

Inside Base-ball

Noam Scheiber is clearly right that it's a bad sign for Bush that he's still struggling to shore up and rally the conservative base (posts here and here). I think his characterization of the political tactics and stakes are all just right. But there's something odd in his diagnosis of how relations between Bush and conservatives have come to this pass.

Rove's grand plan was to spend the first three years of Bush's term stroking conservatives' erogenous zones--lots of tax cuts, conservative judges, regulatory rollbacks, and religiously hued social policy (the administration's marriage initiative, its efforts to restrict access to abortion, its retrograde stem cell research policies, etc.). The idea behind this stuff was that it would give Bush the political capital to tack leftward during his re-election campaign. But a funny thing happened on the way to the center: Rove discovered that conservatives don't just want to win on some issues, they want to win on every issue. Conservatives went ballistic over last year's Medicare prescription drug bill, over additional money for the reconstruction of Iraq, over the deficit and the failure to control spending generally, and over the administration's perceived indifference to gay marriage. Equally maddening to conservatives were proposals like a manned mission to Mars and immigration reform.

I suppose that every committed activist "wants to win on every issue." But that doesn't mean that conservatives unreasonably expect to win on every issue.

Noam's a smart analyst of party politics; does he really think it's surprising that conservatives didn't say, "Well, yeah, we lost on the 400-billion dollar entitlement that was really a 550-billion dollar entitlement, but we won on rolling back the OSHA ergonomic workplace regulations, so we can't complain"? The marriage initiative is small potatoes. The anti-abortion efforts are (necessarily) restricted to marginal and overseas cases, as long as Roe remains good law, so it's no surprise that social conservatives don't feel much placated by them. (NB: I don't approve of those efforts, but the fact that I don't like them doesn't mean that pro-lifers have any reason to be satisfied with them.) The tax cuts seem a lot less appealing when combined with the farm bill, the Mars mission, the drug benefit, the costs of the wars, and the general explosion in spending and deficits; very few conservatives outside a small group of supply-siders think it makes sense to say "Well, we've lost big-time on spending and deficits, but we won on taxes, so that's OK."

Moreover, it's not as though Bush has vetoed some spending bills and conservatives are saying "more!" He's vetoed none.

Protectionism doesn't appear on Noam's list, but it matters, too.

As far as the convention goes:

House conservatives are demanding that a prominent pro-life speaker be given a prime-time slot. And this, mind you, is after the White House had spent much of the campaign reaching out to conservatives, as that Post article pointed out yesterday. The convention was really the one campaign event (albeit a big one) the Bushies wanted to put a moderate face on, and even that won't fly.

I want to emphasize: I'm strongly pro-choice. But, c'mon. Would it really be nuts for social conservatives to want one prime-time pro-life speaker? Does it necessarily make for an immoderate convention to have any social conservatives in evidence-- where "social conservative" is defined, not by a fringe position like supporting sodomy laws or stoning for adultery, but by a position that (depending on how the question is worded) between a third and nearly half of voters share?

(In fact, it's not the case that there are no pro-life speakers. Both John McCain and Zell Miller are pro-life, though one's a Democrat and one is little-loved by social conservatives. But Noam seems to endorse the thought that demanding even one pro-life speaker would mean that the convention couldn't have a "moderate face.")

Update:

Bruce Bartlett reminds me via e-mail that

Even we [supply-siders] aren't happy with Bush. His tax cuts conformed to supply-side principles only in a small way. Most of the revenue was wasted on give-away tax cuts, like tax rebates and child credits, with no supply-side effect.

With all the revenue that was used over the last 3 years on various tax cuts, we could have completely reformed the tax system and probably had money left over to reform Social Security, too. I think most supply-siders view the tax cuts as wasted opportunities. And what was good in them will

probably be reversed when, inevitably, taxes are raised to pay for all the spending Bush has initiated or acquiesced to.

Indeed. Serious tax-cutters want real tax cuts, not intertemporal shifts in the tax burden.

SMILE WHEN YOU SAY THAT:

Eugene's observation the other day that, contrary to current conventional p.c. wisdom, rape is a crime of sex as well as violence, reminded me of the last time I got into an argument about this. As Eugene pointed out, statistics show that rape is highest among girls and women in their late teens and early '20s — e.g., their years of prime sexual attractiveness. But for some reason, it's not considered polite to acknowledge this common sense reality. "Eight-month-old babies and 80-year-old women get raped," is the approved feminist line, which is true, they do; but these situations are freakishly horrible rather than horribly common.

A few months ago I found myself at lunch with a couple of women my age who kept insisting that (a) rape is purely a crime of violence, not sex, and (b) since I write for Penthouse sometimes, I'm part of the problem, because pornography contributes to a rape culture by sexually objectifying women. (Uh, I feel I should point out here that I've never written porn for Penthouse, just pristine articles about Hollywood topics that could run in any PG-rated publication.) The logical retort — that if rape is only a crime of violence, not sex, then what does sexually objectifying women have to do with rape? — only occurred to me once I was driving home.

In my anecdotal experience, if you get a group of women together trading sexual assault war stories, around one-third to one-half will have encountered some kind of violent and forced physical attention (although luckily most are interrupted before being completed) — an attack in the subway, in the parking lot, on the front porch, even in the living room when the door was foolishly opened to a stranger. In my case, it was an intruder who jumped out of the closet at 4 a.m. when I suddenly woke up and realized I'd better get out of the room. After a tussle and some screaming, he ran out, mission unaccomplished.

These were the tales told last time I talked about this, in a self-defense class I took just after Sept. 11 taught by a former Navy SEAL. (Actually, he disliked the term "self-defense" and called it assault training. It was fun and we learned a lot: we spent two nights acting out various scenarios in an underground parking garage from 9 p.m. to 5 a.m.) Sept. 11 was the reason most of us took the class, not our own personal histories, because we didn't like the thought of not knowing how to put up a fight if faced with boxcutter-armed terrorists. But here's the thing: All our sexual assault incidents had taken place years ago, when we were still in our 20s. No problems recently!

I don't think that all unwanted attention is a form of rape, but look, this stuff exists on a continuum, and just as hoots and catcalls taper off it makes sense that rape does too. I used to resent the unwritten law, made clear to me practically every time I left the house, that nubile young women are not allowed to walk down the street without displaying a cheerfully vapid, "And Wendy Has Wings To Fly" expression of sexual availability. "Smile!" men would demand if I dared to look lost in thought. "It can't be that bad!" I don't hear that anymore. I guess they figure it is that bad.

Cabinet-making:

Dan Drezner and Bruce Bartlett and Matthew Yglesias all enthuse about the idea of a Presidential challenger naming a shadow cabinet. Matt identifies some disadvantages:

The first is simply that the vetting and decision-making process would distract key campaign staff at a moment when they have the non-trivial task of running a presidential campaign. The other is that presumably anyone you would appoint would be expected to participate in the campaign, complete with harsh denunciations of the other guys, which could make the confirmation process much harder down the road.

and Dan others:

I can see downsides to this strategy — in particular, such an announcement increases the number of official mouthpieces — which increases the likelihood of one of them committing a gaffe that saps time and energy from Kerry.

The idea has always seemed like a nonstarter to me, for three major reasons, none of which Matt or Dan precisely touches on.

1) Naming a cabinet inevitably involves lots of disappointment among one's allies, supporters, and subordinates. There are many more people on a campaign advisory staff who imagine themselves getting cabinet positions, or at least imagine themselves in the running for one such a position, than there are actual cabinet positions. This is salutary, from the candidate's prspective. It provides a lot of very smart and/or politically important people with a spur to help the campaign as much as possible. Naming a shadow cabinet early dampens the enthusiasm of all those not selected who would otherwise have imagined themselves as possible choices, and might even dampen a certain competitive energy among those tapped. I think campaigns tend to benefit from a dynamic of advisors and supporters striving for future position by impressing the candidate and the voters. Of course, those tapped would then have a more-focused incentive to campaign all-out; they'd want their candidate to win in order to get their appointments. But there's no such countervailing influence for all those who weren't picked. The desire for recognition, status, prestige, and power is a very important motivator, and an especially important one for political animals. It's a desire that can create trouble in lots of circumstances. But, from the candidate's perspective, the campaign isn't really such a time. It's entirely in the candidate's interest to have all those possible future cabinet officials striving, and imagining their possible reward.

Relatedly, all those not chosen become possible sources for backbiting in the press. But probably even more important than the disappointed expectations of the possible cabinet officers themselves are the disappointed expectations of the factions they represent. Naming a cabinet is usually disappoints a lot more factions of one's base than it pleases-- again, because everyone can imagine their own preferred cabinet before it's announced, and there are a lot fewer actual positions than dreamed-of positions. It's one of the trickiest moments a president-elect or new president faces in terms of navigating among competing groups of his supporters-- and that's even after he's gained the prestige associated with being the President-elect or the President. Democrats have been willing to forgo factional fighting over the platform this year, but the platform doesn't mean anything anyways. Imagine the usual factional energy that gets channeled into platform fights applied to something that actually matters, personnel. If I were a candidate I'd want none of it.

2) The first worry is about the disadvantages of dealing with one's supporters and base after having gotten too specific. The second is about the disadvantages of dealing with the general voting public after having gotten too specific. Naming a cabinet puts a clear ideological or intellectual stamp on a candidate, and also says something specific about which interest groups the candidate considers priorities. None of that is to the advantage of a presidential challenger. The challenger wants to be the one who all the voters can project their hopes and wishes for change onto. The challenger's job is to keep the focus on the Need for Change, on the reasons why the incumbent should not survive our system's equivalent of a vote of confidence. Naming a shadow cabinet tends to distract from the referendum on the incumbent that a challenger has every incentive to insist upon.

3) Every shadow-cabinet nominee is a scandal in the making. This isn't just about gaffes. Cabinet-selection often turns up significant embarrassments and scandals (legitimate or otherwise): Zoe Baird, Kimba Wood, John Tower, Linda Chavez. The current schedule concentrates these in the December-March after a presidential election-- when the President-elect or new President is still mid-honeymoon, and when they'll all be safely forgotten about before the next election. The incumbent cabinet is made up of people who survived the running of the nomination gantlet. The major embarrassments have been found out and discarded three-and-a-half years before. They're safe. Putting a dozen new names up, however, makes a dozen new targets for oppo research and muckrakers-- a dozen new opportunities for major embarrassment, for shifting the story from the incumbent's performance to a scandal on the challenger's side. What's worse, any such scandal will become the kernel of a "look how inexperienced and amateurish the challenger and his team are"-- a story that always gets told in the early months of an administration, but that the challenger really needs to avoid in the summer and fall before the election.

There are very occasional, very special cases. It was clearly to W's advantage to de facto name Colin Powell as his Secretary of State nominee before the election. But that was partly because Powell was himself a blank slate that lots of people could project their wishes onto. (Tough military man! Reassuring pro-choice moderate! Figure for racial progress! Fought Clinton on gays in the military! Opposed the [first] Iraq War! Won the [first] Iraq War! etc, etc.) And that precedent is hardly a reassuring one anyways. If I were a candidate, I'd look at the Powell precedent and think, "I don't want to spend my term in office with a cabinet secretary who thinks he's got an electoral mandate all his own, who will spend his time glorifying himself to Bob Woodward instead of ever getting on an airplane to do his job, who will be convinced that he's more important than the administration as a whole." At the end of the day I think Powell's been a pretty mediocre Secretary of State on anyone's measure other than his own; neither the President nor his critics have any real reason to be glad Powell's been in office. Maybe Powell would have done a better job if he hadn't had the inflated sense of self-importance that came with being named in advance; or, maybe, in January of 2001 W would have had the freedom of maneuver to pick a better nominee. The cases when naming a shadow minister might be to a challenger's electoral advantage might also turn out the be precisely the cases in which it'd be to the disadvantage of the new president's ability to govern effectively. So I'd be wary even of the special cases. But the strategy of naming a whole bunch of personnel nominations seems to me obviously a mistake; it runs contrary to every incentive a challenger faces.

Family vacation:

I'm off on a family vacation from today until Sunday the 25th, and won't be regularly blogging or even checking my e-mail. Please hold any messages you want to send me until Monday the 26th; if they're sent before then, they're likely to get lost among all the other stuff that will pile up.

The blog, of course, will still be active -- the other bloggers are around, and, as I mentioned a few minutes ago, Cathy Seipp and Neal Whitman will also be visiting.

Guest-bloggers:

I'm very pleased to say that Cathy Seipp (Cathy's World) and Neal Whitman (Agoraphilia) have agreed to guest-blog here alongside the other Conspirators from today until Sunday the 25th. Cathy and Neal aren't lawyers, economists, or political scientists like the rest of the (nonanonymous) Conspirators -- Cathy is a journalist and Neal is a linguist -- so their posts may be somewhat different from our norm (if we have a norm); I hope you enjoy their work as much as I do.

"Terror in the Skies" and the Power of the Blogosphere:

Anyone want to place bets on whether the pressure of the blogosphere will shed light on the Terror in the Skies article I linked to earlier today?

Instapundit linked to it today at 5:22 pm, and it has now reached Andrew Sullivan, Little Green Footballs, Hugh Hewitt, here, and no doubt lots and lots of other blogs. As you might expect, there seems to be a lot of interest in the story. People are thinking: Is it true, in whole or in part? Why haven't major newspapers and TV picked up on it? My guess is that the blogosphere won't let up until there are some answers, and that the pressure will yield some answers sooner rather than later. Stay tuned.

UPDATE: Michelle Malkin has apparent confirmation of the basic outline of the story. Meanwhile, Jeff the Baptist wonders if the men were simply praying.

Thursday, July 15, 2004

Must Reading:

I'm very pleased that the Conspiracy has made it as one of the "Must Reading" blogs onto a new list of law-related Weblogs ("the EDDix 50"). Check out the other law blogs as well, especially if you're a lawyer — some of them seem to have specialty focuses that you might find useful.

"A dangerous time to be a Jew,"

in Britain at least — that's the title of a New Statesman article by Simon Sebag Montefiore (who is also the author of the recent Stalin: The Court of the Red Tsar. I can't speak to whether this is accurate, but a friend of mine whose judgment I trust passed it along, so I thought I'd pass it along further. And it's definitely quite readable.

Judge Wilkerson's anti-gay letter:

Daniel Strahan claims that the spelling errors in Judge Wilkerson's "gays and lesbians should be put in some type of a mental institute" letter were the fault of the newspaper. Mr. Strahan assures me that he saw the original letter, the text of which he put here, and those spelling errors (marked with "[sic]"'s in the Mississippi Supreme Court decision) were not in the original.

If that is indeed the case, I withdraw the aspersions I cast on his spelling. I reaffirm the aspersions I cast on the substance of the argument, as well as on the style (including the capitalization).

Precogs:

A reader says that suspending a driver's license because the driver told his doctor that he drank over a six-pack of beer a day "[s]ounds like the movie 'Minority Report.'" "[B]ecause you like to have a few beers, even a few too many beers, you're considered guilty of driving drunk before the fact?" I'm not sure the state is right to suspend the license in that situation, but I think it's important to keep a sense of perspective here.

What troubles most people about the "Minority Report" situation, in which people are prosecuted for murder because "precogs" (people with special powers of precognition) say that they're going to commit murder, is that someone is prosecuted because of what they were supposedly going to do, not because of what they actually did. Even that isn't necessarily troubling: I think we're quite right to prosecute someone for attempting to commit a crime, even if they don't take the final step (which, if I recall correctly, is what happened in at least one of the incidents depicted in the movie).

Sure, there's some uncertainty about whether the person was really going to go through with the crime. But if the police catch someone sitting at his window pointing a rifle at someone, with a finger on the trigger, and then an investigation shows that the person was almost certainly planning to kill the person, I think prosecuting the person for attempted murder is just fine. Some amount of "precognition" is a normal part of the legal system.

Likewise, say that someone goes to the doctor's office and says "I'm having these seizures every day or two; I just black out for a few seconds." It may be "precognition" that the person might well black out while driving, but it's a pretty sensible precognition. Similarly, if someone fails a driver's test, it's "precognition" that the person will likely be a bad driver, but it's again a pretty sensible precognition. Nor is it "consider[ing the person] guilty of driving [recklessly] before the fact." No-one is being found guilty, or sent to jail. Rather, the person is being judged to be the sort of driver who ought not be given a license.

If you think everyone should have a right to drive, at least until they commit a serious traffic offense, then you'd think that both of these people should be on the road until they're caught doing something dangerous. But if you think that driving on the public roads is something that should be licensed, and licenses should be given only to those who the licensing authorities think will be safe drivers (though with the authorities' discretion suitably cabined, so they can't just refuse licenses to people they don't like), then "precognition" is precisely what you're endorsing: You're calling for a judgment, before the person kills someone or does something else that seems likely to kill someone, that the person is likely an unsafe driver.

One could, of course, argue that having over a six-pack a day (as opposed to having daily seizures) might not make the person that dangerous a driver. Among other things, if a 175-lb. man drinks a beer every two hours, for a total of 9 hours in a 16-hour stretch, he will generally not be anywhere near drunk enough to be over the legal limit at any time during that stretch. Likewise, if he only drinks at home after work, and doesn't drive until he gets up in the morning, he may likewise be OK (though if he drinks enough right before bed, he might wake up drunk). So it's hard to tell how dangerous he will be.

But the principle of driver's licensing -- which is definitely not the principle of criminal punishments, quite a different matter from licensing schemes -- is precisely that the licensing authorities should exercise some "precognition" (albeit guided and not entirely discretionary) about who is likely to be a safe enough driver and who isn't. Maybe we should change principles, or maybe the principle should cut in favor of allowing the person to keep his license here. But analogizing to "Minority Report"'s use of precognition for criminal punishment is quite a stretch; and the analogy is just as apt when a license is denied when the person fails a test, or is found to be prone to frequent seizures.

Airplane Hijacking Dry Runs?:

I'm not sure what to make of this story, as I am unfamiliar with its source. Maybe it's bogus, or much ado about nothing. On the other hand, maybe it's not. Thanks to Instapundit for the link.

Defense of Marriage Act:

A reader points out that the federal DOMA does two things -- it essentially (1) says that states need not recognize out-of-state same-sex marriages, and (2) says that the federal government does not recognize out-of-state same-sex marriages. The first provision, of course, is said to be an exercise of Congress's power under the Full Faith and Credit Clause ("Full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.").

But, my reader asks, what's the Constitutional authorization for the second provision? Where does Congress get the power to say which marriages the federal government will recognize?

Well, recall that the federal government doesn't just recognize marriages for their own sake -- it recognizes marriages for specific purposes. Federal tax law is influenced by whether people are married. So is federal immigration law, social security law, and a wide range of other laws. (Copyright law, for instance, provides that an author's surviving spouse inherits the author's right to terminate certain copyright grants; this provision exists independently of state wills and trusts law.)

The income tax is authorized under the "lay taxes" portion of the General Welfare Clause (with the Sixteenth Amendment eliminating any Direct Taxes Clause constraints). This authorization includes the authorization to decide who is entitled to certain treatment under the tax laws (e.g., the right to file jointly). The immigration law is authorized by the Naturalization Clause; so is the provision that lets spouses immigrate; so is the definition of spouse that the federal government selects.

Historically, federal law has generally relied on state law definitions of various matters, such as marriage. But there's no constitutional mandate to do that, and to treat all marriages recognized by state law equally. The federal government might, for instance, choose to treat only marriages that have lasted longer than a year as marriages, or for that matter only first marriages and not remarriages following divorce (though I doubt the government would do that). If that's what the government is doing for tax or immigration or copyright purposes, it's within the government's tax, immigration, and copyright powers.

Now one could of course argue that not recognizing homosexual marriages violates homosexuals' individual rights (under the equal protection component of the Due Process Clause) -- that's the argument that carried the day in the Massachusetts Supreme Judicial Court's Goodridge case, as to state marriage law under the Massachusetts Constitution. And one could also argue that the first part of DOMA, which governs state recognition of out-of-state marriages, violates the Full Faith and Credit Clause. Those are separate arguments, which I won't confront in this post (nor in the next few days, since I'm about to leave on vacation, so please don't e-mail me about them).

But there is no problem finding federal powers authorizing a federal definition of marriage -- those would be the same federal powers that authorize the underlying federal law (tax law, immigration law, etc.) to which the definition of marriage would be relevant.

Law and literature query:

For my law and literature class I would like to use an autobiography of a lawyer, judge, or other prominent legal figure. The standards are the following: 1) It must be well written and broadly literary, 2) It cannot be longer than four or five hundred pages, 3)It must be at least moderately entertaining to read, and 4)It should somehow be insightful about the law. I also would prefer something with a slightly philosophical tinge, though we need not go overboard here.

Please send along any good ideas you have; I believe this is easier than finding a truly prominent Spanish scientist.

If you are curious, so far I am planning on using the following for the coming spring:

Henry James, The Aspern Papers; The Bible, selections; Victor Hugo, Les Miserables; Tim O'Brien, Going After Cacciato; Tolstoy's "Hadji Murad"; Franz Kafka, Assorted; Herman Melville, Assorted; Plato, dialogues concerning the trial of Socrates; Chinua Achebe, Things Fall Apart, and Salman Rushdie, Midnight's Children.

I may ask for some broader help suggestions later, but for now please send only autobiography suggestions.

Interesting story:

Read Tim Wise passes along this; I'm not sure what the legally right answer is (it turns a lot on administrative law and due process questions related to revocation of generally available licenses, which isn't exactly in my field), but it seems worth thinking about:

A man who told doctors at a hospital that he drinks more than a six-pack of beer per day is now fighting to get his driver's license back because the physicians apparently reported him to the state.

Keith Emerich, 44, said Tuesday he disclosed his drinking habit in February to doctors who were treating him for an irregular heartbeat.

"I told them it was over a six-pack a day. . . ." . . .

Emerich received a notice from the Pennsylvania Department of Transportation in April that his license was being recalled effective May 6 for medical reasons related to substance abuse. He has petitioned a judge to restore the license, and a hearing has been set for July 29.

A state law dating back to the 1960s requires doctors to report any physical or mental impairments in patients that could compromise their ability to drive safely, PennDOT spokeswoman Joan Nissley said. . . . The law requires an indefinite recall of the license until the driver can prove that he is competent enough to drive. . . .

Aside from a drunken-driving conviction when he was 21, Emerich, a pressman at a local print shop who lives alone, said he has a clean driving record and doesn't drink and drive. . . .

"They want me to go to counseling to prove that I'm OK," Emerich said. . . .

Pennsylvania's transportation agency receives about 40,000 medical reports and recalls 5,000 to 6,000 licenses a year, but does not keep any statistics on its reasons for doing so, Nissley said. . . . .

Pennsylvania is one of six states that require doctors to report motorists with medical conditions that could affect their driving ability to state licensing agencies, according to the American Association of Motor Vehicle Administrators.

The other states are California, Delaware, Oregon, Nevada, and New Jersey. All other states and the District of Columbia allow physicians to submit reports on a voluntary basis. . . .

Oh, boy.

Via Brian Doherty, Liberty Magazine's R.W. Bradford provides a detailed, morbidly fascinating, and ultimately depressing account of the Libertarian Party presidential nominating convention... and reassures me in my decision to look elsewhere than the LP for a presidential candidate this year.

"Militant" Militancy:

The New York Times: "In Israeli cities like Tel Aviv and Haifa, it is possible now to forget about the conflict, at least for a time. But on this side of the barrier, the conflict suffuses life. In June, Israeli forces regularly raided Jenin by night, arresting or killing young men the Army accused of being militants."

The Times, along with most media outlets, refuses to refer to any Palestinian, even a suicide murderer, as a "terrorist." That in itself is a highly questionable judgment. But the last sentence of the quoted paragraph, suggests that Israel also refuses to refer to Palestinians it arrests as being anything other than "militants," which is simply inaccurate. Israel doesn't accuse the young men it arrests of being militants, it accuses them of being terrorists. It hardly seems too much to ask that political correctness regarding Palestinian terrorism be suspended when a newspaper is reporting third parties' views.

Latest Illinois GOP Senate Rumor:

Ted Nugent. Yes, really.

Thief Apprehended:

Citizens of McLean, Virginia can relax. A local thief, who had stolen lawn ornaments from several properties in McLean and was captured in the act on video tape last week, has finally been caught. No charges are going to be filed against the bandit, who goes by the name "Magnum," presumably because Magnum is a Labrador retriever. Or maybe because no one should have a ceramic chipmunk on their lawn in the first place.

Cathy Young on the Texas Republicans' "Christian Nation" plank:

An excellent column. An excerpt, though there's a lot more good stuff there:

On Hannity & Colmes, Gallagher asserted that the plank was a simple statement of a numerical fact. "If a neighborhood had 82 percent of the population that was Italian or a town had 82 percent of the population that was Polish, we'd call those communities Italian or Polish towns. So why do liberals have such a knee-jerk reaction when anybody dares to suggest that with 82 percent of the population being Christian -- we are, in fact, a Christian nation?"

Well, for one, if a town council passed a resolution affirming that it was an Italian or Polish town, there'd be a strong reaction, too. Such a resolution would be perceived as a clear statement that members of other ethnic groups are not welcome.

If we're going by the numbers, why not have a party platform asserting that the United States is "a white nation"? After all, 77 percent of Americans are white.

Summer Reruns: Chris Isaak and the Silvertones (and more): Saw Chris Isaak and the Silvertones tonight in Boston at the Fleet Pavilion. It was a great concert, though the sound system for the vocals was pretty harsh. Anyhow, here is what I wrote about last summer's concert at Foxwoods:

When is Real Faux?

Which was actually a follow up to this previous post that you might want to read first:

When is Faux Real?

While I am rerunning old posts, searching for these two I ran across this reaction to seeing The Producers for the first time:

Springtime for Hitler:

Update: WE'RE NOT NAFF!: Normally I do not respond to ad hominem blog posts, but I found this one particularly amusing:

The Naffness of Randy Barnett and the Volokh Conspiracy

I have long been a reader of the Volokh Conspiracy, a blog writen [sic] by lawyers and political theorists. I have always found it a bit off-putting, although I could never exactly think why. Now I now [sic]. It is written by people--some of whom are friends of mine--who are incurably and unutterably "naff"--to use one of my favorite new British terms. Just consider the following entry:

Chris Isaak and the Silvertones (and more):

Saw Chris Isaak and the Silvertones tonight in Boston at the Fleet Pavilion...
Who could take seriously a person or indeed a blog with a comment like that. It calls to mind a guy sitting in his Honda Accord listening to the local AM station, whistling along to America's "Been to the desert with a horse with no name.
We here at the Volokh Conspiracy wear our naffness as a badge of honor (though I have not polled my fellow Conspirators on this), as I imagine do many of our readers. And we can guess that the politics of those who find the naffness of others "a bit off-putting" involves their superior concern for "the people."

Update: REVENGE OF THE NAFFS! I neglected yesterday to put a link to Dave Gwydion's A Man Abroad, the blog that posted the previous comment on "naffness." When I went to do so today, I discovered that The Naffness of Randy Barnett and the Volokh Conspiracy had been taken down. What do you suppose this means? Perhaps Gwydion--a self-described "American Academic on Sabbatical in London"--was embarrassed by his own display of anti-naff naffness. This naff business is very tricky, as it has always been uncool to proclaim how cool one is, including by deriding the uncoolness--I mean naffness--of others.

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 law.ucla.edu. 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)

12-15

4.3

16-19

10.4

20-24

5.4

25-34

1.1*

35-49

0.6*

50-64

0.1*

65 and over

0.2*

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.

Update:

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)

12-15

4.3

16-19

10.4

20-24

5.4

25-34

1.1*

35-49

0.6*

50-64

0.1*

65 and over

0.2*

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.":

Nostalgia

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
stone.
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).