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Saturday, July 31, 2004

FDR's Folly: Jim Powell's FDR's Folly is a good but flawed book. He does a very good job at showing the economic irrationality of a wide range New Deal policies, and of bringing the latest economic research to bear on the effects of those policies. On the other hand, the book is written in a polemical, over-the-top style that virtually ensures that historians won't take it seriously. This is really too bad, because most historians (of the New Deal and otherwise) are economically ignorant, and their work would be improved by exposure to economically sound explorations of past American economic policy. A couple of examples of the problems with the book, on issues on which I have particular knowledge/expertise: (1) Powell cites my book for proposition that 500,000 blacks put out of work by NIRA. This was one New Dealer's estimate, and I point out that many historians think is exaggerated. Why state a disputed figure as a fact? Why not just say, "as many as" or "some estimate that"? (2)Powell states that Supreme Court Justice James McReynolds, an arch-foe of the New Deal, "didn't like" Jewish Justices Brandeis and Cardozo. Actually, McReynolds was a raving anti-Semite, and a racist, too. Powell didn't have to raise the issue at all. Or, he could have simply stated the truth, which I think effects not at all whether McReynolds was right to think the New Deal largely unconstitutional. Instead, an objective reader might conclude that Powell intentionally downplaying McReynolds' anti-Semitism to buttress the anti-New Deal case. In short, the book makes a lot of good points, but does so in a way that is unlikely to persuade many readers who were not already inclined to be anti-New Deal.

Friday, July 30, 2004

Is Rep. Istook trying to overrule Marbury v. Madison?

Rep. Istook (R-Okla.), joined by 34 other Representatives, has proposed the following bill, HR 4892:

(a) IN GENERAL- Marriage in the United States shall consist only of the union of a man and a woman.

(b) JURISDICTION-

(1) U.S. SUPREME COURT- The Supreme Court of the United States shall have original jurisdiction to hear and determine a claim arising under this section.

(2) OTHER COURTS- Except as provided in paragraph (1), no Federal or State court shall have jurisdiction to hear or determine a claim arising under this section.

But how can the Supreme Court be given "original jurisdiction" to hear these cases? Article III, section 2 provides that the Court shall have original jurisdiction only in "Cases affecting Ambassadors, other public Ministers and Consults, and those in which a State shall be Party." The last category covers only (here I'm merging article III, section 2 and the Eleventh Amendment) "Controversies between two or more States," and where a State sues citizens of another State or citizens of a foreign country. It's hard to imagine how a "claim arising under" the Istook bill would practically fit into any of these jurisdictional headings.

So the bill must be an attempt to add to the Court's original jurisdiction — but that's a direct violation of Marbury v. Madison itself. Marbury's broad holding is that courts have the power and duty to refuse to enforce unconstitutional laws — but its narrower holding is that a statute purporting to give the U.S. Supreme Court original jurisdiction over suits not explicitly mentioned in the Constitution's Original Jurisdiction Clause is unconstitutional. Hence the somewhat facetious title of this post; while Rep. Istook may not be trying to overrule Marbury's more famous holding, his bill seems to run squarely in the face of Marbury's other holding (though I suspect that this is an error on the drafters' part rather than an intentional attempt to undo that narrow holding, which most people don't know).

Of course, there's also the question of what the law is trying to do. If "claim arising" means "legal right or constraint arising," then the law won't have any effect on any normal federal or state litigation, since subsection (b) would take away what subsection (a) creates: Subsection (a) might be saying to courts "don't recognize same-sex marriages," but subsection (b) would be saying "but you don't have the jurisdiction to hear a claim arising under subsection (a)." So if such a law existed at the time of the Massachusetts Goodridge litigation, and Massachusetts officials said "Stop! Under subsection (a), we can't recognize same-sex marriage," the Massachusetts Supreme Judicial Court would presumably have just said "Well, but under subsection (b) we lack the jurisdiction to hear your subsection (a), so the Istook law will have no effect on our decision."

Alternatively, "claim arising" might mean "affirmative claim to relief arising," so that it covers only a lawsuit saying "Based on subsection (a), I the plaintiff want some same-sex marriage invalidated" rather than a defense saying "Based on subsection (a), we defendants need not recognize same-sex marriages." But then subsection (b) seems pointless: After all, the only practical applications of subsection (a) are as defenses, not as affirmative claims to relief (unless the whole point of the statute is simply to empower someone to sue, in the U.S. Supreme Court, to have someone else's same-sex marriage invalidated — and who would have standing to challenge someone else's marriage that way?).

Finally, if the bill is trying to keep state courts from recognizing same-sex marriages (though as I argue above that's not what the bill says), I don't see where Congress would get the enumerated power to do that. But that constitutional problem is so banal compared to the much more interesting constitutional and interpretive problems I raise that it's not even worth discussing . . . .

If this sounds confusing, I think that's just because the statute is so awfully drafted. Or am I missing something?

Thanks to reader Josh Rosenbluth for the pointer.

Restrictions on demonstrations outside the Democratic Convention:

The First Circuit has just published a detailed and thoughtful opinion on the subject, which I think is probably right given the serious security risks involved, though I share the judges' caution about the matter, and suggestion that the result might have been quite different had the facts been somewhat different. (Note also that this has to do with content-neutral restrictions -- the decision doesn't justify content-based ones.)

Thanks to How Appealing for the pointer.

JibJab and covers:

Reader Margaret Schoen writes:

An issue I don't think I've seen covered in your discussion of the JibJab debate. Could the JibJab song possibly be construed as a cover of the original song, as opposed to a parody of it? I believe copyright holders are required to issue compulsory or mechanical licenses for covers of songs, even though they may charge for them. . . .

Aha — a question on which I have a definite answer! The definite answer is "no." Though 17 U.S.C. sec. 115 does give people the right to cover others' songs without permission, it's subject to several limitations: Among others,

  1. The right extends only to the making and distribution of phonorecords to the public, but specifically excluded (see sec. 101) the distribution of sounds that accompany an audiovisual work.
  2. The new arrangement may not change the fundamental character of the original work (which JibJab's work definitely does, though the question is whether it does so in just the right way to make it a fair use).
  3. The user must have given the owner timely notice of the intention to make the works, which I'm sure JibJab didn't do.
Cult of Cryptonomicon Riddle:

Which character in Cryptonomicon is likely a descendant of Eliza, the Quicksilver/The Confusion character?

UPDATE: Paul Stancil sends in the answer, and adds: "Having said [the answer] to myself approximately 4 nanoseconds after reading your post, I can only conclude that I'm in as much trouble as you. What's worse, I sent my youngest brother both Cryptonomicon and Quicksilver for his birthday. I'm not just a junkie -- I'm a pusher." I guess I am, too . . . .

More for Russophones:

I also much enjoyed Alexander Bystrisky's very witty "Doctor of Deep Thoughts" CD.My favorite song is the one serious one, "Na Nedel'u"; my second favorite is "Ballada o Pam'at'i" (for those who know Russian but not recent Russian history, note that Pam'at' is the name of a Russian anti-Semitic nationalist movement, as well as of course the Russian word for "memory," a dual definition that the song mercilessly exploits).

For Russophone readers:

Just heard and read an Okudzhava poem (one of his war poems) that I hadn't known about before, and liked it very much; check it out both the lyrics and a recording here.

Democrats and Sharpton:

Am I really supposed to take seriously a party that not only gives dangerous loathsome ex(?)-anti-Semitic demagogue (and Tawana Brawley hoaxer) Al Sharpton a prominent forum at its convention, but then rewards him with a standing ovation at the end of his speech? If there was anyone at the Democratic convention whose moral compass led them to protest this circus, I applaud you.

Update:More on Sharpton here:"In giving this charlatan a national platform and then cheering him wildly, Democrats advertised an atrocious lack of moral clarity."

Learned Hand:

I'd always thought Judge Learned Hand's name was mighty cool -- and apt, given his high reputation -- but I've wondered what parents would have the chutzpah to give a boy a name like that.

It turns out that they didn't; he was born Billings Learned Hand -- which of course would also have been a really apt name, though more for a practicing lawyer . . . . Learned was apparently a name that ran in the family; his mother was named Lydia Coit Learned Hand.

Learned's cousin Augustus Hand, who was also a Second Circuit judge, was actually Augustus Noble Hand, but he decided to stick with the first name.

Kleiman's Question/Quiggin's Comments: Earlier, I linked to and quoted Mark ("Fair and Balanced") Kleiman's challenge to Libertarians to reconcile their concern for individual rights with warfare. Mark's question (found here and here) presupposes that there is a unique Libertarian "doctrine" on these sorts of issues, when the very point of MY initial blog challenge was to provoke a debate AMONG Libertarians on the issue of warfare and foreign policy.

Here in Gummersbach, I showed Mark's post to my colleague in the seminar, English historian Stephen Davies. Steve offered the following thoughts, which I asked him to write up for the benefit of Volokh readers. [Notice that Steve does not capitalize "libertarian" and "libertarianism," a practice to which I may return.]

Thanks for the interesting comments you passed on to me regarding the question of the implications of libertarian thinking for the question of whether war can ever be legitimate. (I think making a distinction between modern and pre-modern war is irrelevant and otiose here btw). I was struck most by this passage, the core of the response to you:

There are two possible conclusions here: either (1) war is always wrong, or (2) Libertarianism as a moral philosophy (as opposed to the libertarian tendency in politics) is not merely false but transparently silly, since no actual group of people could live under Libertarian principles unless some other group of people did the dirty work of collective self-defense for them.
I'd make the following points.

1. Because things are done by the state that doesn't make the activity itself illegitimate (e.g. health care, education) the activity in this case being self-defense (I think all libertarians are opposed to wars of conquest.)

2. However that doesn't address the question of what to do if the activity in question necessarily involves large scale and systematic rights violations for third parties such as non-combatants, particularly those such as children who cannot even be counted as "indirectly combatant" by virtue of being involved in the productive process in the combatant nation. (I should make it clear that I think that this particular justification for total war is bogus.)

3. There are indeed libertarians who, adopting a position of strict individualism, argue that libertarianism does preclude war (other than perhaps a very strictly defensive one fought on one's own real estate). Wendy McElroy and Neill Smith would be examples of this. This doesn't mean pacifism since this position does not entail rejection of the use of defensive force per se, just the organised use of force that must inevitably impact on innocent third parties.

4. This does raise the question of whether there is some alternative to the large scale organised use of force (i.e. war) to defend against aggression, whether direct or indirect, and to assist others in resisting oppression or aggression. There are a number of possibilities that have classically been floated or even used such as a Swiss style militia, the use of organised passive resistance, assasination of targeted rights violators, sabotage and subversion by various means. This all draws on notions such as Gene Sharp's idea of "social power" derived from voluntaristic action.

5. Alternatively many libertarians believe that because of public goods problems there has to be provision of the good of collective defense by a limited state and that this will inevitably involve some kind of rights violation in the process of collective self defense due to externality problems. This then comes under the heading of regrettable necessity. The justification would be consequentialist or involve the argument that such violations are needed to prevent even greater violations in the long run. This would mean however applying a very strict set of "just war" arguments, meaning that for libertarians who took this position a war to be justified would have to pass very high barriers and could only be fought in a certain way. It would IMHO certainly preclude such tactics as blockade and aerial bombing. I strongly reject the idea that such tactics are an inevitable feature of modern warfare, I think they're a product rather of modern military doctrine and the current political economy of warfare which are not fixed or inevitable. The current shift to "fourth generation warfare" will have a big impact on this argument.

6. The third position one could take would be a pragmatic one. Here the argument would be that in an ideal world one of the other two positions would apply (probably 3 above) but in the actual world we inhabit we have to perform a cost-benefit analysis and follow the course that we judge will maximise liberty in the long run. This does not mean that there is a fixed, permanent gap between the real and the ideal (i.e. that libertarianism is an inconsequential fantasy that cannot be realised). The aim must be to act in such a way as to reduce the gap and to make the actual ever more coincident with the ideal. One can than argue that in some circumstances, such as a clear and profound physical and ideological threat to liberty on a large scale, the use of military force is sadly justified, although other options should be explored first. The question for libertarians is then one of prudence or practical judgement about the effects and implications of a particular policy choice. This was broadly J. S. Mill's position for example.

7. I certainly agree with you that libertarianism does not imply a particular take on international relations. Apart from the fact that not all libertarianism is derived from rights theory (there's also consequentialist and human flourishing derivations) it seems to me that libertarianism only leads to clear conclusions about international relations and particular policy choices if it is also combined with other judgements or assumptions, such as whether all public goods problems are soluble without coercion or whether one should hew always to the theory or take notice of real historical conditions. This is true for any political philosophy that has a strongly normative element, socialism being a case in point.
What Mark seems not to realize, perhaps due to his relucant imaginings that Libertarians are closet racists, is that because Libertarians are seriously concerned with the individual rights of all, they struggle more with these difficult moral questions than those statists (whether of the left or right) whose instincts are simply to support any state "policy" that the intelligensia currently thinks will lead to better results for "society."

A much much more respectful and nuanced critique is provided by John Quiggin over at Crooked Timber in his post, Libertarians and War. John's post and most of the comments that follow, some of which are are quite insightful, display the tone I have come to expect from that blog. Commentators there also provide some useful links to other posts on the subject.
Ilana Responds (and more): Always thoughtful and provocative, Ilana Mercer takes up the challenge of how Libertarianism does have foreign policy implications in her column, Return to Reason, on WorldNetDaily. (In the process she both ridicules antiwar Libertarians and the war in Iraq at the same time.)

Along the way, I learn that she had previously made the argument I advanced in my article, Constitutional Legitimacy in the Columbia Law Review and in Restoring the Lost Constitution;

From the fact that many libertarians believe ... that the state has no legitimacy, [they] arrive at the position that anything the state does is illegitimate ... Consider the murderer who, while fleeing the law, happens on a scene of a rape, [and] saves the woman ... Is this good deed illegitimate because a murderer has performed it?
Jeffrey Utech at A Stranger in a Strange Land replies to The Vindicated Cynic's critique of Libertarianism's alleged immorality.

PS: I have no firm view of whether "Libertarianism" should be capitalized or not (it recently was by one of my editors and I did not object), but I certainly do not use the term to refer in any way to the Libertarian Party.

Thursday, July 29, 2004

This Song Is Whose Song?

EFF's Deep Links reports:

Turns out Woody Guthrie lifted the melody of "This Land is Your Land" essentially note-for-note from "When the World's on Fire," a song recorded by country/bluegrass legends, The Carter Family, ten years before Guthrie wrote his classic song. Here's a short snippet (380k mp3) of the song (the song can be found on the box set, The Carter Family: 1927-34). You don't need to be a musicologist to hear what we're talking about.

Now we've got nothing against Woody's borrowing. In fact, it's a part of the "folk process" that Woody himself championed. I can't imagine that The Carter Family minded.

But in the letter threatening copyright litigation over JibJab's animated political parody, "This Land," Ludlow's lawyer goes out of his way to attack JibJab for copying "the entire melody, harmony, rhythm and structure of the [sic] Mr. Guthrie's song."

Er, sorry there Ludlow, but actually, the entire melody, harmony, rhythm, and structure of "This Land is Your Land" doesn't belong to you. And I'd like to think Mr. Guthrie would never have claimed credit for them, if he were still alive to ask.

It sure sounds similar to me, though I have a notoriously tin ear (and though I haven't personally confirmed the MP3 file's provenance). If that's so, then the copyright owners can't object to the taking of the melody (unless JibJab took some melody components that were in Guthrie's version but not the Carters').

On top of that, JibJab only took a few lines from the song -- "This land is your land" / " this land is my land" / "this land . . . me" (from "this land was made for you and me"). Copyright law doesn't protect short phrases, and these thirteen words are close to the short phrases boundary. I suspect that the words used in this combination and this order are indeed copyrightable -- thirteen is probably enough (a few cases suggest that even a few words might be enough, though that's not clear). But that the taking is only of thirteen words, albeit important words, and not the lyrics -- if indeed the theory about the tune coming from the Carters is correct -- would definitely strengthen JibJab's fair use defense.

Cryptonomicon excerpt:

I'm reading Cryptonomicon for the fourth time now -- yes, I know I should be reading something new instead, but I can't just help myself -- and enjoying it almost as much as the first time. (It's particularly nice to reread it after having read Quicksilver and The Confusion, since I can then notice some cute references that I had entirely missed before; but that's for the serious geeks cultists fans.) Here's one excerpt that made me laugh, and that I think well captures Stephenson's style, though I can't vouch for its effects on you:

After they've been out to sea for a day, the captain (Commander Eden -- the same poor son of a bitch who got the job of ramming his previous command into Norway) staggers out of his cabin, making use of every railing or other handhold that comes within flailing distance. He announces in a slurred voice that from here on out, according to orders from On High, anyone going abovedecks must wear black turtle necks, black gloves, and black ski masks underneath their other clothes. These articles are duly issued to the men. Shaftoe gets the skipper really pissed off by asking him three times whether he's sure he has the order worded correctly. One of the reasons Shaftoe is so highly regarded by the enlisted men is that he knows how to ask these kinds of questions without technically violating the rules of military etiquette. The skipper, to his credit, doesn't just pull rank and yell at him. He takes Shaftoe back to his cabin and shows him a khaki-covered Army manual, printed in black block letters:

TACTICAL NEGRO IMPERSONATION

VOLUME III: NEGROES OF THE CARIBBEAN

Cryptonomicon:

A friend of mine just wrote:

Vacation not quite over, but just finished Cryptonomicon (moments ago). You were exactly right: fantastic! I enjoyed it immensely. Thanks for the recommendation!

A few weeks ago, my wife mentioned that a friend of hers, to whom I had recommended Cryptonomicon, told her the same thing. Both he and his wife liked it so much that they now buy two hardbacks of any new Stephenson book, since they don't want to fight about it (though I have to acknowledge that Quicksilver and The Confusion, while good and very good, respectively, aren't as good as Cryptonomicon).

No, I get no kickbacks.

UPDATE: Lawprof Larry Ribstein is also part of the cult, and has some interesting thoughts about the book.

WWWD?

What would Woody do? Jesse Walker (Reason) suggests that Woody wasn't that big on private property. Creative Commons also reports the following, though I haven't checked the facts myself:

Joel Blain recently wrote in with an interesting observation:

"I've been reading a bio on Woody Guthrie. It's pretty interesting. The book reprints one of the "Copyright Warnings" he included on his recordings in the ealry 40's

"This song is Copyrighted in U.S., under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin it without our permission, will be mighty good friends of ourn, cause we don't give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that's all we wanted to do."

Such a notation may have in fact explicitly licensed people to reproduce and perform the song or songs to which it's attached. (Academics sometimes add similar notations to their articles.) It would help if Guthrie actually owned the copyright in the song at the time he published the notation; but even if he didn't, his actions might bind the then-copyright-owner, if the notation was indeed published by the copyright owner on the recordings.

To the best of my knowledge, though -- and I'm not an expert on the old pre-1976-Act rules related to renewals -- any such license would have disappeared with the end of the original 28-year-term of protection. Under the 1909 Copyright Act, copyrights endured only for 28 years, but the author or his heirs could renew them after the end of the original term; the new term would also last for 28 years, though that has been extended several times by Congress to the point that pre-1976 copyrights last for 95 years from publication. And the new term would be a fresh, clean copyright, free of any licenses or transfers that the author originally did as to the original term. (The whole point of the renewal was to give the author of a work that had proven its long-term value a chance to recapture some of the value, even if he sold his rights for cheap when he first wrote it, before the value of the work was clear.)

This Land Is Your Land was written and, I infer, published in 1940; presumably the copyright was renewed in 1968 by Guthrie's heirs (Guthrie died in 1967); and this renewed copyright would, I think, not be governed by any licenses that Guthrie had originally granted (though perhaps if the heirs also republished Guthrie's notation, that might be seen as a new license).

Also, note that the original notation seems ambiguous on the scope of the rights granted -- it could be read as disclaiming any copyright rights ("We wrote it, that's all we wanted to do"), but it could be read as allowing only republication and performance in more or less the original form ("Publish it. Write it. Sing it. Swing to it. Yodel it.") rather than in a distorted or satirical form. Many creators (I don't know about Guthrie) are indeed quite happy for others to reproduce or perform their works in the original form, but get really annoyed at any serious modifications.

Thus, while this sort of notation can indeed grant a legally valid license, it's not clear what the scope of the license would have been. And I suspect that the license would in any event not have survived past 1968.

But of course all this is just the legal analysis; perhaps people's stressing Guthrie's views (to the extent that they do indeed show a "This Song Isn't My Song" preference) might persuade the copyright owners to take it easy here.

What happens if the Inauguration gets bombed?

Say Kerry is elected, but on Jan. 20, the Inauguration gets bombed, and Kerry and Edwards are both killed. Even if the Speaker of the House or the President Pro Tem of the Senate step aside (perhaps because they're of the opposite party, and conclude they have no mandate to govern), the rest of the chain of succession consists entirely of Cabinet secretaries -- who are all still holdovers from the old Administration.

There's thus no way for the Presidency to quickly pass into the hands of anyone who has the late President-elect's, and thus indirectly the people's, imprimatur. The best that can be done, unless I'm mistaken, is for one of the Republicans in the line of succession to get sworn in, propose a Democrat as Vice-President -- preferably one who's approved by the Democratic leadership -- and then resign in the Vice-President's favor. But this could involve quite a bit of time and acrimony, at a time when the country can't afford the distraction.

Sen. John Cornyn (R-Tex.), the chair of the Senate Judiciary Subcommittee on the Constitution, proposed an interesting Senate resolution: A nonbinding agreement (it probably can't be made binding, given the President's and the Senate's broad constitutional powers in this area) that the outgoing President appoint, and the Senate confirm, some of the incoming President's Cabinet picks before Inauguration Day. This would of course work best with a revision of the Presidential Succession Act (at least to remove the Congressional officials from the line of succession), which Sen. Cornyn would also favor; and it would surely still leave lots of other problems in any event. Still, I'm glad some people are thinking about this, and that a Republican Senator is willing to suggest it even when the immediately forthcoming transition -- if there will be a transition -- would be from a Republican to a Democrat.

What happens if the Inauguration gets bombed?

Say Kerry is elected, but on Jan. 20, the Inauguration gets bombed, and Kerry and Edwards are both killed. Even if the Speaker of the House or the President Pro Tem of the Senate step aside (perhaps because they're of the opposite party, and conclude they have no mandate to govern), the rest of the chain of succession consists entirely of Cabinet secretaries -- who are all still holdovers from the old Administration.

There's thus no way for the Presidency to quickly pass into the hands of anyone who has the late President-elect's, and thus indirectly the people's, imprimatur. The best that can be done, unless I'm mistaken, is for one of the Republicans in the line of succession to get sworn in, propose a Democrat as Vice-President -- preferably one who's approved by the Democratic leadership -- and then resign in the Vice-President's favor. But this could involve quite a bit of time and acrimony, at a time when the country can't afford the distraction.

Sen. John Cornyn (R-Tex.), the chair of the Senate Judiciary Subcommittee on the Constitution, proposed an interesting Senate resolution: A nonbinding agreement (it probably can't be made binding, given the President's and the Senate's broad constitutional powers in this area) that the outgoing President appoint, and the Senate confirm, some of the incoming President's Cabinet picks before Inauguration Day. This would of course work best with a revision of the Presidential Succession Act (at least to remove the Congressional officials from the line of succession), which Sen. Cornyn would also favor; and it would surely still leave lots of other problems in any event. Still, I'm glad some people are thinking about this, and that a Republican Senator is willing to suggest it even when the immediately forthcoming transition -- if there will be a transition -- would be from a Republican to a Democrat.

Copyright remedies:

Beldar asks:

Am I correct in assuming that even if Jibjab violated the rights of the owners of the original song copyright, they still would have to prove damages -- presumably, lost sales, licensing revenues, etc. -- to prevail? Wouldn't that require a witness who could come in and say, "I was on the brink of paying $___ for licensing rights to this song, until I saw that jingle on the internet?" And isn't that rather unlikely?

Since I like to stay on the good side of people with ominous sounding names like Beldar (I'll bet he's got a whole fleet of Viking raiders behind him), here's a quick answer to the first question: "No."

OK, maybe that's too quick. The less quick answer: Copyright owners who have registered their copyright (which I suspect the This Land Is Your Land people have) can get at least four kinds of remedies:

  1. Actual damages plus profits. If that's what the owners ask for, they'll probably get little on the damages, for the reasons Beldar mentions, though they would probably get at least the customary license fee for this sort of use (which may be hard to determine, but I'm sure lots of expert witnesses would be happy to estimate it), on the theory that this is what they would have gotten if the defendant had acted legally (though query whether this is available if the copyright owners' theory is that they would never have licensed such a use). But if JibJab made a profit on the work, the owners could get a fraction of the profit (the fraction to be determined by the judge or jury, based on how significant the original work is as a part of the new work).

  2. Statutory damages. But because actual damages are often so speculative (and profits so small), the Copyright Act lets plaintiffs elect to instead get statutory damages -- $750 to $30,000 per work infringed, with the amount to be set by the judge or jury based on a grab bag of factors. If the defendants can show that they acted innocently (which probably means that they reasonably thought their actions were legal, even if the court concludes otherwise), the range gets lowered to $200 to $30,000. If the plaintiffs can show that the defendants acted willfully (which probably means that they knew their actions were illegal or at least likely illegal, as opposed to merely being negligent about that), the range gets raised to $750 to $150,000. What number within the range will be selected? No-one knows, though judges and juries are supposed to consider various factors, including their best guess about the harm to the plaintiff, and their sense of how willful or innocent (see below) defendant's conduct was. The customary license fee for this sort of use will likely play a role in this calculation.

  3. Injunction. The plaintiffs can also get a preliminary injunction and ultimately a permanent injunction, which won't require them to show damages (though to defeat a fair use defense, it would help them to show that such a use, if it became widespread, would cause them and others like them harm). In some cases, the threat of an injunction is a huge bargaining chip, which can often yield a settlement far in excess of damages -- if a movie studio is enjoined from distributing a movie, it may well pay a lot to get the case settled. But there has been some talk by courts that injunctions should be issued less often when the new work really transforms the original; if a court adopts that view, it can find infringement, award damages, but decline to issue an injunction.

  4. Court costs and attorney fees. A prevailing plaintiff or defendant may (in the judge's discretion) get his court costs and attorney fees reimbursed by the other side. But this is pretty much entirely up to the judge, just as the statutory damages amount is pretty much up to the judge or jury (depending on whether the parties elect a bench trial or a jury trial).

So the bottom line is that copyright plaintiffs can get some pretty substantial remedies even if they can't prove any damages -- though it does help to be able to make a good case about damages, either if they ask for actual damages or if they ask for statutory damages and want the judge or jury to award the damages at the high end.

"Effect on market" in fair use:

How could JibJab's use of This Land Is Your Land be anything but fair?, some have asked. After all, probably the most important aspect of the fair use analysis is whether the new work harms the market for the old work (for instance, by competing with it). Surely there's no such effect here, when the two works (the JibJab cartoon with a song that's based on This Land Is Your Land, and the original song itself) are so different.

Well, not quite. It's true that the Court made clear that even "satire" rather than parody might still be fair use, if there's very little effect on the market:

A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives . . ., it is more incumbent on one claiming fair use to establish the extent of transformation and the parody's critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work's minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required.

As you can see, this mostly focused on works that do comment on the original, though only loosely; but it does say (as other Court decisions also suggest) that pure satire, with no commentary on the original, may be fair use.

But the effect on the market includes an effect on the market for licensed derivatives -- which means one possible "loss" for the plaintiff is the loss of the opportunity to make money by licensing the song to such uses:

The fourth fair use factor is "the effect of the use upon the potential market for or value of the copyrighted work." It requires courts to consider not only the extent of market harm caused by the particular actions of the alleged infringer, but also "whether unrestricted and widespread conduct of the sort engaged in by the defendant . . . would result in a substantially adverse impact on the potential market" for the original. The enquiry "must take account not only of harm to the original, but also of harm to the market for derivative works."

(The copyright owner's public statements suggests that it would refuse to license such works, because of its own esthetic or business judgment, but my sense is that the analysis would look more to the effect on the market for works such as the plaintiff's, rather than on the idiosyncratic preferences of this particular plaintiff.)

Consider an analogy: I make a movie based on your book. The movie may not hurt the market for your book -- in fact, it might even increase sales of your book, since it will be free publicity for the book. But this doesn't mean that I can just make the movie without getting a license, on the theory that my use is fair (it's transformative, since it's not a literal copy, and it doesn't hurt your book sales).

Rather, my use is seen as affecting your market to sell movie rights (the "market for derivative works"). If I make a movie based on your book for free, you aren't getting payment for the movie rights. That's the "loss" to you (though loss measured relative to what you'd get if you sold movie rights, not out-of-pcoket loss).

Likewise, a song owner's property right includes the right not just to sell copies of the song, but to license the song in soundtracks, license the song in cartoons, and even license the song in humorous cartoons. It doesn't include the right to license the song in cartoons that poke fun at the song:

The market for potential derivative uses includes only those that creators of original works would in general develop or license others to develop. Yet the unlikelihood that creators of imaginative works will license critical reviews or lampoons of their own productions removes such uses from the very notion of a potential licensing market. . . . Thus, to the extent that the opinion below may be read to have considered harm to the market for parodies of "Oh, Pretty Woman," the court erred.

But given that, to my knowledge, there is a market for selling licenses for humorous recastings of a song (I'm told, for instance, that Weird Al Yankovic pays licenses for many of the songs that he uses), and that such a market for recastings that don't poke fun at the original is at least not unlikely, the Court likely would find an effect on the market: JibJab's s use, if it became widespread (and, again, if it's satire rather than parody), would strip copyright owners of their marketable derivate work rights. (It might also interfere with owners' rights to license nonhumorous derivative works, to the extent that the public would come to associate the song with the humorous version, so that producers of other derivative works would thus not want to use the song any more.)

Some people criticize such arguments as "circular" or "bootstrapping." But whatever one may call them, they are certainly well accepted by courts as to derivative uses such as movies based on books; and Campbell suggests that they would equally apply to humorous works based on serious ones, so long as the humorous work doesn't poke fun at the original. Like it or not, that's what the law seems to be (though there's enough uncertainty here that I have to keep stressing the "seems").

Mocking the original vs. using original to mock others: Several people e-mailed me about the This Song Is My Song complaint. Some weren't wild about the distinction between using a song to mock or comment on it, as opposed to using a song to mock or comment on something else. Well, maybe that isn't that great a distinction, but it's what the Supreme Court set forth. Here's the heart of the Court's argument:
The germ of parody lies in the definition of the Greek parodeia . . . as "a song sung alongside another." Modern dictionaries accordingly describe a parody as a "literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule," or as a "composition in prose or verse in which the characteristic turns of thought and phrase in an author or class of authors are imitated in such a way as to make them appear ridiculous." For the purposes of copyright law, the nub of the definitions, and the heart of any parodist's claim to quote from existing material, is the use of some elements of a prior author's composition to create a new one that, at least in part, comments on that author's works. If, on the contrary, the commentary has no critical bearing on the substance or style of the original composition, which the alleged infringer merely uses to get attention or to avoid the drudgery in working up something fresh, the claim to fairness in borrowing from another's work diminishes accordingly (if it does not vanish), and other factors, like the extent of its commerciality, loom larger. Parody needs to mimic an original to make its point, and so has some claim to use the creation of its victim's (or collective victims') imagination, whereas satire can stand on its own two feet and so requires justification for the very act of borrowing. [footnote: Satire has been defined as a work "in which prevalent follies or vices are assailed with ridicule," or are "attacked through irony, derision, or wit."]
So, rightly or wrongly, if the JibJab item is seen as commenting entirely on Bush and Kerry, and not on This Land Is Your Land, the fair use argument will probably be weaker than the argument (which basically won) in Harper & Row. Ah, but does the item comment on This Land Is Your Land? The Court said that the test here is "whether a parodic character may reasonably be perceived" -- and again remember that to the Court, "parodic" meant commenting on the borrowed work. The Court reasoned that
While we might not assign a high rank to the parodic element here, we think it fair to say that 2 Live Crew's song reasonably could be perceived as commenting on the original or criticizing it, to some degree. 2 Live Crew juxtaposes the romantic musings of a man whose fantasy comes true with degrading taunts, a bawdy demand for sex, and a sigh of relief from paternal responsibility. The later words can be taken as a comment on the naivete of the original of an earlier day, as a rejection of its sentiment that ignores the ugliness of street life and the debasement that it signifies. . . .
Nick Morgan argues that something similar is present in the JibJab use of This Land Is Your Land:
It lampoons the idealistic notions of American unity in the original song, throws in a comic, but scolding, reminder that "this land" isn't really the land of Native American's anymore, and contrasts the silly geographical themes of the song with our childishly divisive political climate.
That's certainly the argument that I'd make if I were JibJab's lawyer, but I doubt that it would fly. It seems to me that very few people would understand the cartoon as even partly "lampoon[ing]" Woody Guthrie's work; I think nearly all of them would see it as entirely a lampoon of Bush and Kerry. The joke isn't that there's something naively idealistic about what Guthrie sang -- it's that there's something amusing (and perhaps amusingly unidealistic) about modern politics. Now of course figuring out the True Meaning -- or even a Reasonably Perceptible Meaning, since the Court's analysis acknowledges that a song may have multiple meanings -- of comedy is a questionable proposition. Perhaps the Court was wrong in calling on judges (in the first instance, and in the first and last instance in preliminary injunction hearings, where there's no jury) and perhaps juries (if the judge concludes that there's a genuine issue of fact as to whether the meaning is reasonably perceptible, and the case comes to trial) to draw such distinctions. But that's what the test calls for; and my sense is that most judges and juries would treat the JibJab item as a "satire" of Bush and Kerry, and not a "parody" of This Land Is Your Land. Note, though, that I've tried throughout (see here and here) to speak in terms of probabilities, not certainties -- for better or worse, that's what the often extremely vague fair use inquiry requires us to do. I stick by my original analysis, which is that the copyright owner probably has the better of this case. But I even more firmly stick by my tentativeness. The one thing you can be pretty sure of here is that anyone who says "JibJab's use is obviously fair" or "JibJab's use is clearly unfair" isn't quite right.
Copyright in government records:

An interesting article by Virginia journalist Becky Dale. Federal government works are public domain (17 U.S.C. sec. 105), but at least in theory state and local government works may be protected by copyright. I'm pretty sure that's not a good idea, at least in most situations, and perhaps courts will find very broad fair use as to such work. But it's still an open question.

More on the Moral Foundations of Libertarianism: In his essay, Understanding Political Libertarianism, on Tech Central Station, Will Wilkinson offers his reply to Edward Feser's The Trouble with Libertarianism. Will's approach is quite similar to that which I defend in my new paper, The Moral Foundations of Modern Libertarianism (which he generously cites). As I was trying to capture and defend how many Libertarians are thinking these days, rather than identify a new position, I am not at all surprised that he adopts a similar stance. Here is a taste:

[L]ibertarianism, construed as a practical political theory, does not require a "deep" metaphysical justificatory theory. We needn't wait until the last libertarian utilitarian or natural rights theorist dies in the last ditch in order to say what libertarianism really is. The content of political libertarianism is to be found in the overlap between these different comprehensive libertarianisms. Something like: a relatively small state governed by a rule of law that protects rights to personal autonomy, contract, and private property from within the context of a robust and free market economy.

One of the points of liberalism, and hence libertarianism, is to provide for a social order within which a plurality of different philosophies and worldviews may coexist and flourish, and within which debates over fundamentals may peacefully proceed. A liberal polity is one in which rights theorists and utilitarians, Mormons and wiccans, Aggies and Longhorns can lie down together in a peaceable kingdom of ends. The political libertarian argues that the sparse libertarian framework can be affirmed from a multiplicity of different points of view, because it is sparse, and because its principles are not bogged down with assumptions unique to any one particular point of view. It is a cosmopolitan, pluralistic theory designed for a cosmopolitan, pluralistic world.
What amazes me is not that others would disagree with this position, but that they would misunderstand it to assert that Libertarians are somehow amoral, or even against morality, or that Libertarians adopt a political philosophy that permits them to gratify their every whim. To reiterate, separating the political (how society should be structured) from the moral (how people should live their lives) is not to deny existence or importance of the moral.

Update: Case in point: Libertarianism is fraudulent

Some Responses to Libertarianism & Foreign Policy: As usual I have received some thoughtful comments on my post, Libertarianism and Foreign Policy--not all of which I have had the time to acknowledge personally given that I am still squeezing blogging in between lectures and other activities here in Gummersbach. Thomas at Liberty Corner blogged about this both before and after I did here and here. Hervé Duray writes:

I'm a blogger (in France, Le monde à l'envers) and consider myself "libertarian". Just like you, I happen to know many libertarians opposed to the Iraq war (I prefer to use the term "liberation"), and we argued a lot about foreign policy and libertarian principles.

I'd like to add that many hardcore libertarians have no consideration for states, yet they are the same advocating non-interventionism which is a tacit acknowledgement of state borders. If libertarians only care about individual rights, why would they care about abstract things like
borders?
A similar point was made at greater length by Jack Diederich:

As you suggest, libertarianism doesn't require the isolationist stance on war & war waging. In fact libertarianism doesn't have anything to say on the matter so people just take what they know and extrapolate it to a strange conclusion:

Nations are People.
Once you make this jump from the micro to the macro the isolationist view makes sense. You can think about Mr. France and Mr. USA arguing over punching Mr Iraq in the nose. But nations aren't people, so this fails.
He then sends this along from his now defunct blog:

Nations are not people. For the slow, Nations are NOT people. There is just so little overlap between inter-country and inter-personal relations it is silly. NANP.

"Oh" you say, "Isn't that why we have the UN, to be a nation to its members/people?" Because the members are nations, we treat them like nations. Bill Gates wets his pants at the thought of going to jail, Saddam Hussein couldn't give a shit when served his 17th search warrant by the UN. NANP.

"Well," you prattle on, "couldn't we just have one world government and then we wouldn't have to worry about the NANP problem?" The problem is there really are things called nations. Groups of people really do believe in very different philosophies and identities. This is good because we haven't perfected government yet; we're still trying out different stuff.

In your Star Trek future time they'll all agree on government and can create the Federation (right after they abolish scarcity and money). Until then we will have nations, we will have people, and we still won't be able to treat them the same.
Some wrote to defend "defenseism" as following from Libertarian principles (I did not get permission to use their names):

Compulsory taxation for governmental services should only be justified for protection of taxpayers from bodily harm and theft and destruction of property. Therefore, police and fire departments are justifiable (put aside for a moment the case to be made for private contracting of such services).

Taxation can be supported for a military as long as it provides similar protections against foreign threats. While humanitarian missions to Sudan are nice, they can no more be justified by Libertarians can could compulsory taxation for welfare payments supporting domestic humanitrian missions.
Another writes:

It seems to me that there is a significant difference between a situation where a government is defending its own citizens and where a government is defending citizens of another country. In the first case, the citizens have a say in the decision; in the second, they don't. A government acting in accordance with Libertarian principles will have processes in place giving its own citizens at least indirect control of its policies, including defense. The citizens of another country may not want intervention; as individuals, some may be in distress, and some not. Often, the intervener is in the position of separating hostile factions intent on killing each other (as in the former Yugoslavia) while all factions would prefer to have the intervener stay away.

Libertarianism puts a premium on individual liberties, and with liberties comes responsibility. The individual citizens of a given country are the ones primarily responsible for sorting out its problems. They can't do so if another country steps in, pretending to have divine knowledge of what is right for them. I suppose that if the various factions could unanimously ask for help, then Libertarianism would not prevent intervention. But, if the factions could get unanimous agreement, they could probably work out their own problems without help.

So, I think that "defenseism" does follow from Libertarianism.
Finally (for now at least), the always generous-of-spirit Mark Kleiman poses this challenge to all nonpacifist Libertarians on his A Fair and Balanced Weblog:

I can imagine a defensive war, fought on national territory, that didn't violate anyone's rights, as Libertarians conceive them. (Other, that is, than the right not to be taxed or conscripted. A Libertarian war would have to be fought by a volunteer army in the fullest sense of that term: not only not conscripted, but unpaid.) But how could one conceivably invade and occupy another country without violating people's rights?

The fact that a power plant, for example, is a legitimate military target doesn't make it any less someone's property. The owner of the power plant is hardly responsible for whatever actions of his country's government justified the war; still less so the workers there. But when the power plant is bombed, the owner's property will be destroyed and some of the workers killed.

Therefore, if human beings have rights not to be killed or have their goods destroyed, then it's impossible to fight modern wars without violating those rights. And even that assumes that modern war can be waged without "collateral damage," which is obviously not the case; some of the innocent people killed when a city is bombed were doing nothing more aggressive than sleeping in their own beds.

There are two possible conclusions here: either (1) war is always wrong, or (2) Libertarianism as a moral philosophy (as opposed to the libertarian tendency in politics) is not merely false but transparently silly, since no actual group of people could live under Libertarian principles unless some other group of people did the dirty work of collective self-defense for them.

Now this isn't a hard one for me; I have other strong reasons for thinking that (2) is correct. But presumably Barnett has convinced himself that it's possible to wage war without violating rights, and I'd really like to know how that miracle is supposed to be performed.
Sadly, he cannot resist closing with a gratutous innuendo:

I'd hate to imagine that Libertarians don't mind violating rights as long as the people whose rights are violated don't look like them.
I take some solace from the fact that he is "fair and balanced" enough that he hates to imagine such things.

Wednesday, July 28, 2004

Obama vs the rest

A number of commentators have linked this passage from Barack Obama's speech:

t's what allows us to pursue our individual dreams, yet still come together as a single American family. "E pluribus unum." Out of many, one.

Now even as we speak, there are those who are preparing to divide us, the spin masters and negative ad peddlers who embrace the politics of anything goes. Well, I say to them tonight, there's not a liberal America and a conservative America — there is the United States of America. There's not a black America and white America and Latino America and Asian America — there is the United States of America.

The pundits, the pundits like to slice and dice our country into red states and blue states; red states for Republicans, blue states for Democrats. But I've got news for them, too. We worship an awesome God in the blue states, and we don't like federal agents poking around our libraries in the red states. We coach Little League in the blue states and have gay friends in the red states. There are patriots who opposed the war in Iraq and patriots who supported it. We are one people, all of us pledging allegiance to the stars and stripes, all of us defending the United States of America.

with a number of other themes from the convention: Bill Clinton saying that Republicans "need" Americans to be divided and Democrats don't; Howard Dean's call to "take back" America; John Edwards' claim that there are now two Americas but there can be one; and Kerry's "Let America Be America Again."

I don't see it. Obama's statements seem to me different in kind.

First, and most importantly, this portion of Obama's speech was symmetrical with respect to partisan, cultural, and religious divides. It's "pundits" who seek to describe us as divided. But in fact, we're all red and we're all blue. Supporting the war, worshipping God, and playing Little League are symmetrical with not liking the Patriot Act, opposing the war, and having gay friends. That's very different from the "Those nasty conservatives are divisive, unlike us nice inclusive liberals" theme that's kept popping up.

Relatedly, there's something offensive in the "Take America back"/ "Let America be America again" stuff. It's something I fully expect to keep hearing; it's something I remember loathing about the first Clinton inauguration. It's the necessary implication that Republicans, and Republican government, aren't really American, that Democratic rule is not only preferable (of course Democrats think that) but the natural order of things, an order that must be restored (notice the restoration theme in both "take back" and "be America again"). Obama didn't imply any of that, either.

Finally, unlike Edwards, Obama's not imagining one America as some future state of affairs to be accomplished with a Democratic victory. It's a present state of affairs-- we are, already, genuinely united.

A fair criticism of Obama's speech might be that it's too nice, too apple-pie, to really stake out much of a position on anything. But you can't criticize it, the way you can the rest, for communicating the message that "we'd all be united, if it weren't for those nasty un-American Republicans." And I find there to be something genuinely touching in his version, and something really grating in theirs.

[disclosure: Obama is, of course, my faculty colleague at the University of Chicago in addition to being my district's State Senator.]

Don't blame the lawyers:

Someone e-mailed me about the This Song Is My Song controversy, pointing to this as the latest example of unethical lawyers undermining American creativity (and, more broadly, economic development) through excessive litigation.

I don't think that's so. As I mentioned in my original post, the This Land Is My Land copyright owners have a decent case against the JibJab people -- in fact, I think they probably have the better legal argument, though it's hard to tell for sure. There's nothing unethical about a property owner asserting his property rights, or the property owner's lawyer advising the owner to do so. There are certainly some lawyers who do some genuinely unethical things; this just isn't it.

If you want someone to blame, blame the law, not the lawyer. The law may be too broad; or it may be so vague that it ends up effectively quite broad, since lots of speakers can be plausibly threatened with litigation. But it's not the copyright owner's fault, or the copyright owner's lawyers' fault.

Ah, some say, but the law is so broad because the lawyers made it that way. And, yes, it's true that the law is generally made by lawyers -- by judges, by legislators (who are disproportionately lawyers), by legislators' assistants (who are probably lawyers), and by lawyer-lobbyists. Yes, and what of it?

First, this is a tiny fraction of all lawyers, so don't blame the whole profession for what some of them do. Second, these people are also just doing the jobs they're assigned to do in our legal system, and often doing them quite honorably. Lobbyists may quite ethically urge their proposed legal rules to legislators. The legislators' assistants are probably following their bosses' instructions, and to the extent they have some flexibility, they're likely using it to implement what they think is sound public policy. Likewise, judges are either interpreting the statute, or creating what they think are good rules. (It is indeed often judges' job to create what they think are good rules, either as a matter of developing the common law, or of interpreting a vague statute -- the fair use doctrine was largely developed by judges, and the current statutory fair use provision, 17 U.S.C. sec. 107, specifically authorizes judges to develop fair use law further.)

Now I do think that this particular subset of lawyers often get things wrong. In particular, I think they often reject bright-line rules because those rules are overinclusive in some situations and underinclusive in others; but in their quest for theoretically perfect justice, they end up enacting or adopting vague rules that leave people with little practical guidance about what is or is not safe to do.

But at most what we have here is a few special lawyers-by-training -- many of whom are no longer even lawyers in private service, but are lawmakers of one sort or another -- making unsound decisions. We do not have some general ethical failing on the part of the legal profession as a whole.

And the remedy to the problem isn't to try to make lawyers more ethical -- it's to try to make the laws better (hard as that may be).

Lithwick on Democrats and Judges: Dahlia Lithwick has an article up on Slate asking why Democratic candidates are not talking more about the importance of who appoints judges. Lithwick seems genuinely puzzled. She reports on various theories floated at a recent American Constitution Society panel that included several distinguished legal scholars. The theories ranged from the observation that most people just don't care about judges to the idea that Republicans have done a better job creating a coherent set of jurisprudential principles.

  I am far from my area of expertise here, but I wonder if Lithwick and the panelists have missed a more obvious reason. It seems to me that in the majority of hot-button cases decided by the Supreme Court after Bush v. Gore, the Court has ruled in ways that a majority of Democratic voters prefer. Most notably, the Court has allowed affirmative action, invalidated sodomy laws, rejected the Bush Administration's views on detention in terrorism cases, and found jurisdiction over Guantanamo. Given these decisions, most Democratic politicians probably see it as a challenge to run against the courts.
How I Learned to Stop Worrying and Love GM Food:

The National Academy of Sciences has issued yet another report reaffirming the basic scientific consensus about genetically engineered food: It's safe. The NAS has (once again) concluded that what matters is the product, not how it was produced. This means that for regulatory purposes it should be irrelevant whether a given food product was produced through "traditional" cross-breeding of the sort practiced for centuries or through the advanced rDNA techniques recently developed in scientific labs. All such techniques involve genetic modification of the underlying plant or animal, and there is no scientific basis for deeming one "less safe" than any other. What matters are the resulting characteristics (e.g., whether the food product contains proteins that are likely to provoke allergic reactions, etc.). Of note, to date there is not a single documented and verified case of an individual getting sick or otherwise suffering harm from a genetically engineered food product. About products produced by "traditional" cross-breeding techniques, however, we can say no such thing.

"First 'black' drug nears approval":

A heart drug being tested in black patients is on course to become the first medicine approved for use in a specific ethnic group, challenging those scientists who believe that race is a bad basis for prescriptions. . . .

[The drug] revives controversy about whether, and how, race should be used to prescribe medicines. In the clinic, for example, doctors will have to work out who is classed as African American in a racially mixed population. "It really becomes problematic," says Sandra Soo-Jin Lee, an anthropologist who studies race in science at Stanford University, California. . . .

Doctors have long known that different ethnic populations can have different susceptibility to diseases or react differently to drugs. Drug labels for the common heart drugs called ACE inhibitors note that they may be less effective in black people. . . .

I like the dueling quotes (though I have no idea how fair they are): (1) "I still think skin pigment is a lousy predictor of heart function." (2) "We hold the trump card: it works."

Thanks to GeekPress for the pointer, which also includes Paul Hsieh's commentary on the issue (Paul is a physician).

New Article of Mine Up on SSRN: I have a new law review article up on SSRN, entitled The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution. It is forthcoming in the Michigan Law Review, and likely will be published in September or October. (I have had an early version of the abstract up for some time, but now you can download the draft.) Here's the new abstract:
This article argues that courts should approach the Fourth Amendment with caution when technology is in flux. When a technology is new or developing rapidly, courts should adopt modest formulations of Fourth Amendment protections that recognize the effectiveness and institutional advantages of statutory privacy protections.

The cautious approach is justified on three grounds. First, caution is consistent with existing judicial practice. The reasonable expectation of privacy test generally has been used by the courts as a term of art that remains closely tied to property law concepts. When a technology implicates privacy but not property, current judicial practice tends to avoid broad interpretations of the Fourth Amendment.

Second, legislative privacy protections are significantly stronger than most commentators appreciate. The case of wiretapping is instructive. While Fourth Amendment scholars often view wiretapping as a constitutional field under Katz v. United States and Berger v. New York, wiretapping has long been a primarily statutory field. Even today, wiretapping practice is governed by statutory commands, not constitutional ones. More broadly, Congress has created a wide range of statutory privacy laws that protect privacy in developing technologies where the courts have declined to offer protection.

Third, legislatures have considerable institutional advantages that enable the legislative privacy rules regulating new technologies to be more balanced, comprehensive, and effective than judicially created rules. Rapid technological change makes it difficult for courts to clarify the law. Courts also lack the institutional capacity to readily appreciate existing technology and the impact of different legal rules. In contrast, courts are well equipped to respond to technological change in the context of criminal procedure rules.
  As always, I would be delighted to hear any thoughts or comments. The article will be published along with responses to it from Peter Swire of Ohio State law and Sherry Colb of Rutgers-Newark law; a draft of Peter's response has been up on SSRN for a while and can be found here. I have also authored a brief reply to Swire and Colb that will be published along with the responses and the lead article.
The Patriot Act and Criminal Law: Alex Tabarrok responds to my analysis of his Patriot Act criticism. Alex concludes that I have committed "the lawyer's vice," namely, "to miss the forest for trees." He writes:
The point is that laws passed for one purpose are often used for other purposes not originally intended (RICO, anyone?). . . . In this case, the Patriot Act and the general increased willingness to defer to law enforcement have not to my knowledge led to many arrests of terrorists but have been used for all manner of other purposes.
I think this response sets up a bit of a straw man: the idea that the Patriot Act was designed solely to arrest terrorists, with the apparent implication being that any use of the Patriot Act in criminal cases is somehow illegitimate or abusive. I'm not sure if any supporter of the Patriot Act has ever claimed that the Patriot Act has no application in the field of criminal law. If they have, they were wrong. As I have written elsewhere, many of the provisions enacted into law in the Patriot Act were proposals relating to criminal law that had been considered and debated in Congress since the Clinton Administration. Many of the criminal law provisions are dual-use: they can be used in terrorism investigations, but can also be used in routine criminal investigations. Because there are lots more criminals than terrorists, and criminal cases tend to be much more public than terrorism investigations, it shouldn't be suprising that we hear more about the Patriot Act in criminal cases than in terrorism cases.

  Supporters of the Patriot Act have not tried to hide the fact that many of the sections relate to criminal law. Indeed, in the DOJ's recent report on cases in which the Patriot Act authorities were used, some related to terrorism but many did not. I happen to think that many of the sections of the Patriot Act are good ideas, when addressed on the merits. A few may have gone too far and should be tweaked, but most were good ideas that are neutral on civil liberties. (In this assessment I believe I am joined by Anthony Romero of the ACLU, who has stated that "much of the Patriot Act is neutral legislation for civil liberties," but that "it contains about a dozen provisions that simply go too far." ) But to the extent that provisions of the Patriot Act are being used in criminal investigations, that's not only true but quite by design.
Trade news

A very reassuring post from Matthew Yglesias on Laura Tyson's convention discussion of Kerry on trade. Relatedly, see his post at the Prospect's convention blog ("We still need to know which advisors will have Kerry's ear if he gets into the White House. So far, most indications I've seen indicate that the free traders have the upper hand.") and Ryan Lizza's "Rubinomics Redux" post at the TNR blog. All sounds like pretty strikingly good news. (No, I don't expect Kerry to be perfect on trade. But he does, at the moment, seem to get that Clinton's way is better than Gephardt's-- or Bush's.)

JibJab SoSue:

The pretty funny Bush/Kerry parody with the "This Land Is Your Land"-based lyrics (from JibJab.com) has drawn a complaint from the owners of the "This Land Is Your Land" copyright.

The copyright owners have a pretty good case. If JibJab were making fun of the song, then the cartoon would likely be a fair use. But JibJab seems to be just using the song to make fun of Bush and Kerry, rather than making much of a comment about the song itself -- that makes the fair use defense much weaker. (See Campbell v. Acuff-Rose (1994), the "Oh, Pretty Woman" case; see also Dr. Seuss Enterprises v. Penguin Books USA, the Seuss-rhymes-about-O.J. case from the Ninth Circuit several years ago.) I realize one could argue that JibJab is partly commenting on the song, and, even if courts reject that argument, JibJab's fair use case isn't a clear loser. But on balance, the copyright owner's s argument is likely stronger than the defendant's.

Week in the Life of a Defense Attorney:

If you're a law student interested in practicing criminal law, you should be reading Ken Lammers' CrimLaw blog. In particular, read the regular "Week in the Life of a Criminal Defense Attorney" posts, where Ken goes day-by-day through his week. There's a new one up today; check it out.

Tuesday, July 27, 2004

Deconstructing claims about the Patriot Act:

Over at Marginal Revolution, Alex Tabarrok has a post suggesting that the Patriot Act is a bad law because it has been used to do some dumb things. Here is the post, which was recently Instalinked:

Yeah, I feel much safer now
The USA Patriot Act has so far been used to fine PayPal $10 million dollars in an effort to crack down on internet gambling, it's been used to intimidate a New York artist's collective, and most recently to shut down a Stargate fan site.

  As an occasional Patriot Act rumor debunker — tough work, but someone's got to do it — I thought I would check out Tabarrok's claims and see which if any of the claims held up. The result: 1 out of 3, at least by my standards. Unless I'm missing something, only one of the three claims is a fair statement supported by the facts.

   Let's start with the first claim, that the Patriot Act was used "to fine PayPal $10 million dollars in an effort to crack down on internet gambling." This is true, as detailed in this story. Specifically, the Patriot Act rewrote a criminal statute codified at 18 U.S.C. 1960, primarily in an effort to disrupt terrorist financing schemes. The new version of the law makes it a crime to operate a "money transmitting businesses," when the "transmission of funds . . . are known to the defendant to have been . . . intended to be used . . to promote or support unlawful activity." Because some kinds of online gambling are illegal, and PayPal apparently did business with certain illegal gambling sites, PayPal was fined. (Why fine PayPal, you ask? From the perspective of law enforcement, because the sites themselves are offshore and therefore out of reach. Basically, the government used the amended law to block PayPal from aiding illegal conduct.)

   Let's turn to the next claim, that the Patriot Act "has been used to intimidate a New York artist's collective." This one is a stretch. According to the story that Alex links to, the FBI opened a bioterrism investigation after an investigation of a person who fell unconscious led to the discovery of lots of biology equipment in an art professor's home. Evidently, the FBI suspected that the equipment might be part of a biological weapons lab, and opened an investigation. I gather that the alleged "intimidation" is that the grand jury issued subpoenas ordering three artists to testify, and the artists reported that they were very intimidated by the subpoenas (understandably, I might add). What's the connection to the Patriot Act? The Patriot Act expanded the bioliogical weapons statute; if the biology equipment had been a bioweapons lab and not an art project, possession of the bioweapons lab would have violated the Patriot Act. Was the Patriot Act "used to intimidate" anyone here? I don't think that's a fair conclusion. First, it seems that the law enforcement officers opened an investigation in good faith; second, the officers could have used another criminal statute as the predicate offense to open an investigation if the Patriot Act had not been passed.

   Alex's third claim is that the Patriot Act was used "to shut down a Stargate fan site." As best I can tell, this is simply false. Alex links to this story, but the story tells us that a defendant who ran a website was charged with criminal copyright violations. These charges have nothing to do with the Patriot Act; nothing in the Patriot Act was used to shut anything down. As best I can tell, the only alleged connection to the Patriot Act is investigative. The site claims that in the course of investigating the defendant for copyright violations, "the FBI invoked a provision of the USA Patriot Act to obtain financial records from his ISP." It's not clear what this means, but it may refer to amendments to a 1986 law, 18 U.S.C. 2703, that clarified existing law on the scope of what information government officials can subpoena from ISPs. It's hard to tell. Either way, however, the power to obtain financial records from an ISP is as old as ISPs; it isn't a power created by the Patriot Act.

   So, at least as I see it: (1) it is true that a provision in the Patriot Act was used to crack down on Internet gambling, leading to a civil settlement; (2) it is not fair to say that the Patriot Act was used to intimidate a group of artists; and (3) the Patriot Act was not used to shut down a fan site.
Jurisdiction-stripping:

Several people e-mailed me to ask whether HR 3133, which was just passed by the House, is constitutional. The bill would provide that:

No court created by Act of Congress shall have any jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation of, or the validity under the Constitution of, section 1738C or this section.

Legal scholars have spent decades and volumes discussing the question of when Congress may strip federal courts of jurisdiction over certain matters. I'm not an expert on the subject, so I was reluctant to weigh in; and a brief conversation with my colleague Gary Rowe, who does know the literature, reinforced my reluctance. So I can offer only a few observations:

  1. As I noted here, such a bill may do more harm than good even from its proponents' viewpoint:

    Even if federal courts lose jurisdiction over objections to some statute, state courts would still be able to entertain them -- state courts must enforce the U.S. Constitution just as much as federal courts do (that's in art. VI, sec. 2). If people are worried that the U.S. Supreme Court may strike down the Defense of Marriage Act, then they should be worried that state supreme courts may do the same; and even those state supreme courts that might not take this view on their own might feel moved by precedents from other states, since courts throughout the country tend to try to interpret the U.S. Constitution consistently with the decisions of other courts.

    What's more, if a state supreme court does hold DOMA unconstitutional under the U.S. Constitution, then there'll be no remedy (short of impeaching the state supreme court Justices). Amending the state constitution, which is a remedy for state supreme court decisions based on the state constitution -- such as the Goodridge gay marriage decision in the Massachusetts -- will do nothing to change the state court's interpretation of the U.S. constitution. And an appeal to the U.S. Supreme Court won't be possible, because the Court has been stripped of jurisdiction to hear the case. (I suppose one could strip the Court of jurisdiction to hear appeals from decisions upholding DOMA but not from decisions invalidating DOMA, but then if the Court upholds a decision invalidating DOMA, DOMA will be invalid throughout the country.)

    True, the jurisdiction-stripping would at least confine the DOMA invalidations to those states where the supreme courts rendered such decisions; that's something DOMA supporters might appreciate. But my sense is that they won't be wild even about this result, especially since the alternative might be the Supreme Court's upholding DOMA on a nationwide basis. It seems to me that if you really want to make sure a statute isn't invalidated, a narrowly tailored constitutional amendment (not the currently talked-about Musgrave draft Federal Marriage Amendment, which would go far beyond protecting DOMA) is indeed the first-best alternative, especially when it seems like it could well be politically plausible.

  2. Such a jurisdiction-stripping statute would nonetheless probably be constitutional, because of article III, section 2, clause 2 of the Constitution (emphasis added):

    In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

    (The "state shall be party" original jurisdiction proviso won't help, because under another provision of article III, coupled with the Eleventh Amendment and certain longstanding court interpretations, lawsuits by individuals against states basically aren't covered under the Court's original jurisdiction.)

    People would still be able to assert their federal constitutional rights -- just in state courts, which are also required to follow the U.S. Constitution, rather than in federal courts. (Recall that the Constitution doesn't even require Congress to create subordinate federal courts at all, and, as the quote above shows, specifically authorizes Congress to limit even the Supreme Court's appellate authority.) My understanding, from what Gary said, is that this is the majority view among leading federal courts scholars.

  3. However, as I mentioned, some highly respected scholars argue otherwise; and Gary very kindly let me put on the Web his summary of the debate that he distributes to his students. It's aimed at law students, and refers to other readings that they were assigned, so it will likely be quite cryptic; but I pass it along in case some of you find it interesting.

Please note that Gary is doing me a favor by letting me distribute this; please don't bother him with any questions, counterarguments, or corrections. Please also note that, as I said, I myself am not an expert on the subject, and my view in item 2 above is based on a casual analysis, not any serious learning on the matter. I don't expect to blog much more on the subject, but I thought I'd pass along what I had.

Extortion and the Internet:

Newsweek has an interesting story about extortionists threatening to knock down online gambling web sites unless they pay the extortionists a fee to "fix the problem." (Hat Tip: Vice Squad)

This is a small part of a bigger trend; Internet extortion is an international growth business. Thanks to the Internet, anyone located anywhere in the world can hack into or threaten to take down an Internet site. It is generally quite difficult to trace back the trail of electronic bread crumbs back to find the bad guy. For a private company, it is nearly impossible. There are even fewer options if the bad guy is located in a country without a functioning legal system. The Internet knows no borders, but the legal system does. From the perspective of law enforcement, an extortionist located in a country where the local police will not cooperate with them and won't comply with extradition requests may as well be on Mars. All of which means that an extortionist with some basic computer skills and an Internet connection can cause a lot of havoc.

   UPDATE: Reader Eric Rescorla points out that these days you can even buy a DDOS attack online from Russian hackers. And who says that Russia hasn't embraced the free market?

Canada firearms registry story:

This isn't really news, but I just ran across a seemingly pretty impartial article on this in an impartial magazine (Baseline, which appears to be a business magazine) about this. The subhead (available in the PDF version, which requires registration):

A national computerized firearm registry in Canada was supposed to cost taxpayers $2 million. Instead, it has held them up for more than $1 billion.

The article explains some of the things that went wrong; it doesn't take a stand on whether the registry has helped reduce crime. It does note that gun deaths and gun murders have fallen since 1989, but for many reasons that says little about the effectiveness of the firearms registry (one reason of the many is that the registry only got going in the late 1990s). But it should be a warning that, regardless of whether we think that this sort of project might in principle be valuable, there are huge potential costs with it — and the costs in the U.S., which has probably 25 times the guns that Canada has, would likely be even greater.

Spam is annoying,

but so is Spam-blocking software that saves hassle for the recipient at the expense of burdening the sender -- especially when the recipient has asked the sender to do him a favor. I just tried to reply to a message that someone at a prominent foundation sent me, asking me for free advice related to one of their projects; the message got bounced as supposed Spam, and I had to call the person by phone (spending the California taxpayer's money, as well as my time) to get a hotmail address to which I could send it. I understand why people set up such software. I just think they should take into account the costs they're imposing on others, which is why I try to be polite but noticeably annoyed when I call the person about it (hoping that this will lead to an internal complaint by the person to the technical people who're in charge of this stuff).

And if you're going to send me a message asking for a reply, and my reply gets bounced by your spam-blocking software, please don't expect me to take steps to get it through (even relatively simple ones).

NPR's Scott Simon on Michael Moore:

Michael Moore has won the Palme d'Or at the Cannes Film Festival, and may win an Oscar for the kind of work that got Stephen Glass, Jayson Blair, and Jack [Kelley] fired. . . .

Some journalists and critics have acted as if his wrenching of facts is no more serious than a movie continuity problem, like showing a 1963 Chevy in 1956 Santa Monica. . . .

In the New York Times, Paul Krugman wrote that, "Viewers may come away from Moore's movie believing some things that probably aren't true," and that he "uses association and innuendo to create false impressions." Try to imagine those phrases on a marquee. But that is his rave review! He lauds "Fahrenheit 9/11" for its "appeal to working-class Americans." Do we really want to believe that only innuendo, untruths, and conspiracy theories can reach working-class Americans? . . .

Read the whole thing. Thanks to Dan Gifford for the pointer.

UPDATE: Krugman's piece is available for free here.

Max Boot on the CIA:

I'm not sure whether his point is right, but it seems quite plausible, and worth passing along. The whole piece is here, but here's the opening paragraph:

If you want to know what's wrong with the CIA -- and these days who doesn't? -- start with the fact that it's almost 60 years old. How many 60-year-olds do you know who take insane risks, rethink cherished shibboleths and produce brilliant flashes of insight? That is what's required to win the war on Islamist terror.

But, like many other prosperous geezers, the CIA would prefer to hit the links and avoid uncouth places where nobody has heard of Metamucil.

Don't get me wrong. There are plenty of bright, energetic people at the CIA (I've met some of them), but, as the reports of the 9/11 commission and the Senate Intelligence Committee attest, they work in a sclerotic institution. . . .

Prediction:

Ramesh Ponnuru e-mails, referring to Slate's Kerryisms:

What will Slate's take on the speech Thursday night be? "I accept your nomination. Vote for me for president."

Sounds like par for the course for that column . . . . And, yes, that is what a politician should say if his only goal were to say the minimum possible, rather than do superfluous things like articulating his positions or winning votes.

Libertarianism and Foreign Policy (long): In my post Libertartarians on War, I raise the question of what Libertarianism as a political philosophy tells us, if anything, about foreign policy apart from the side constraint that individual rights should be respected when pursuing any foreign policy. I noted that my intent was not to debate the war in Iraq but to consider whether there were any Libertarian principles to apply to this or any decision to wage war. David Beito writes in response:

I may not have expressed myself adequately in my earlier response to you. As I stated, I am a "defenseist" (to steal a word used by Douglas Rasmussen) in foreign policy, a doctrine that flows, in my view, logically from libertarian ideals. In other words, I believe that intervention is justified *if* the U.S. is responding to an attack or an imminent threat can be shown. An imminent threat would include deployment of troops by an enemy for an attack.

For this reason, I supported the Afghan war since it was a response to a direct attack. I tried to get your views on the Iraq war because I do not believe that it qualifies under either of these standards e.g. Saddam did not attack us nor did he present an imminent threat (Dubya appears to agree with me!). It was only in this sense that I was trying to draw you into an Iraq debate.

I agree that it is important for us to nail down better guidelines on foreign policy that are consistent with libertarian principles. Otherwise, we will [have] no good way to judge politicians who take us to war for any and all reasons. I believe that defenseism best approximates the proper standard.
This is very helpful. I could view myself as a "defenseist" in foreign policy, which would explain why I opposed and still oppose U.S. military action in Haiti, Panama, Somalia, Bosnia and would oppose it in the Sudan. A humanitarian crisis is not enough by itself, in my view, to warrant the use of the US military as a matter of foreign policy—including the awful slaughter and repression of Saddam's people.

My first question, though, is WHY defenseism is a Libertarian principle of foreign policy? The most obvious possible reason is that this policy is consistent with the natural right of personal self defense (a fundamental right I defend in The Structure of Liberty: Justice and the Rule of Law). By this argument, none of the individuals who would be engaged initiating such a war would be violating the rights of others (by this decision) because they were acting to protect the rights of themselves and the citizenry of their country. So far so good.

But would the U.S. Army been acting unjustly on Libertarian grounds it it goes to the aid of innocent civilians in Somalia, the Sudan, or Iraq? I do not see why. If these people are indeed the victim of horrible rights violations a solder regardless of whether his uniform is American or Iraqi would be justified in going to the defense of the victim according to Libertarian first principles. So if "defensism" is a proper principle of foreign policy, it does not appear to follow from Libertarian first principle, since either going to the assistance of the innocent and not going to her assistance is an equally justified act. (This is apart, of course, from the moral duty one may have to help the innocent.)

Whence comes the intuition that defenseism is "a doctrine that flows, in [David's] view, logically from libertarian ideals"? It comes, I think from equating governments or states with individuals. Just as individuals may only act in self defense, then so should governments, whether or not this claim is true, it does not flow automatically from a Libertarian theory of individual rights. In the example I gave, the U.S. soldier would not be defending the US, but he would be defending a foreign victim of a rights violation and would not, on libertarian grounds be acting unjustly. If defenseism is a good principle of foreign policy, therefore, it must be for reasons other than Libertarian political theory. For example, it could be justified on prudential grounds or on constitutional grounds.

But this is just the first problem with claiming a defenseist foreign policy is entailed by libertarian political theory. The second problem is David's invocation of the criterion of "imminent threat." David contends that military action is justified only "when the U.S. is responding to an attack or an imminent threat can be shown. An imminent threat would include deployment of troops by an enemy for an attack." The obvious source of this intuition is that requirement of "imminence" is normally a part of the rule of law governing the natural right of self-defense by individuals. But this doctrinal requirement arises, I think, because of problems of knowledge.

A threat is a communication of a intent or willingness and ability to violate the right of another. When this information is communicated, a victim need not wait until the blow is struck or the bullet is fired. Threatening a rights violation is itself a rights violation that justifies not only self-defense but also restitution. We adopt a rule of law requiring, for example, an overt act representing an imminent use of force both because we otherwise lack knowledge of a person's hidden intentions and because intentions alone are not enough to justify self-defense. We all have intentions, some of which are illicit, we never act upon. For this reason, and because we cannot ordinarily know what is in the minds of other people, mal-intent does not violated the rights of others the way a communicated threat does. And to be sufficiently sure that a rights violation is being threatened, ordinarily a threat requires that we wait until an overt threatening act is performed.

But this rule of law doctrine of "imminent threat" is not a necessary prerequisite of justified self defense in all cases. As I discuss in The Structure of Liberty, what is needed to justify self-defense in principle is a communication of intent to invade rights in a context that suggests its seriousness. A communication constitutes a threat that violates the rights of another if it puts him in reasonable fear of being the victim of a battery or worse.

The example I give in SOL is of someone, let's say it is me, who takes a full page advertisement in The New York Times announcing my intention to murder, say, David Beito at some time within the next 7 days. Assuming it is not obviously a joke, and that I apparently have the means to carry out my threat, would David have to wait until I came around to his house and made an overt threatening act, which ordinarily is required by the law of self defense? Given the nature of this "standing threat," need there also be a showing of imminence?

I think under these special circumstances, David should not have to wait until I chose a time and place convenient for my attack but could seek me out to preemptively defend himself against me at a time and place of his convenience. In SOL I call this "extended self-defense." What makes this hypothetical unusual and unrealistic is the unambiguously objective manifestation of intent in the advertisement. The advertisement is what constitutes the threat that is the necessary condition of self defense and no further overt act is required. Under these circumstances David is entitled, in my view, to "preempt" my attack before I ever perform an act that can be deemed "imminent" (like produce a weapon and point it in his direction). But this is so abnormal a hypothetical (criminals do not normally advertise their intentions) that it does not undermine the normal importance of imminence or to the law of self defense.

But advertisements and imminent acts (like massing armies on borders) are not the only ways to communicate a threat. So would speeches coupled with less normally obvious behavior. If the content of these other communications are sufficiently clear, then self defense would be warranted even in the absence of an overt act that constitutes an imminent threat. So "imminence" may not be a requirement of even a defenseist foreign policy (assuming that a defensivist foreign policy is logically entailed by libertarianism, which I doubt). What is required is a threat.

In the case of the government of nation states, however, there is another principle that has long governed the justificiation of war, and that is when nongovernmental organizations (NGOs) are operating within the borders of a nation state, and these NGOs, but not the host state, constitute a threat to others. Upon fair warning, if a nation state does not stop these NGOs from engaging in their activities, the government of the threatened people, or another asked to aid them, would be justified in taking military action against the NGO within the borders of another, and even against the host government itself if it gets in the way. Of course, if the host government is affirmatively aiding these NGOs (as opposed to passively acquescing to its presence) it may be targeted even if its armies do not themselves constitute an imminent threat--as in Afghanistan which David finds to have been a just war on defenseist grounds.

It is no violation of the "sovereignty" of the host country because sovereignty presupposes physical control over its territory and, it matters not whether its lack of control is on purpose or because the host government is too weak. By failing to effectively use its sovereign powers to eliminate the danger to others, these others may act defensively to fight and defeat the NGO within the host's border. This is entirely justified defense, though the host government may not itself pose any threat whatsoever to the people of the other state.

None of this however, is to argue that a military invasion is always (or ever) a good foreign policy. Many libertarians are "noninterventionists" who seem to oppose almost any military invasion outside the territory of the US on the ground that the unintended consequences of such actions are likely to be terrible, as indeed they often are.

My original point was simply that this type of noninterventionism, whether right or wrong, does not follow from Libertarian principles as some of its adherents apparently assume. It is more a pragmatic judgment of the sorts of rightful actions that will or will not yield good consequences. This judgment could lead to certain principles of foreign policy, but these should not be confused with Libertarian first principles. In addition, while I respect those who hold to this position, it tends to ignore the unintended consequences of nonaction, which can be just as harmful. Unintended consequences is a concept that, logically, runs in both directions.

Whether the war in Iraq was justified is again a subject I am trying to avoid. Assessing this issue would require, in addition, analysis of the status of American-Iraq relations in the wake of the cease fire after the first Gulf War that was a response to an Iraqi invasion, and whether the repeated violation of that cease fire by the Iraqi goverment warranted a resumption of hostilities if the US so chose. Iraq may or may not have harbored Al Qaeda the way Afghanistan was. Invasion may have been justified on entirely different grounds, but even if shown to exist, these grounds do not establish whether the policy of war in Iraq, even if justified, was a good strategy or prudent all things considered. I think it was, but I know other Libertarians whose judgment I respect who strongly disagree. My point is that Libertarian principles have little, if anything, to offer on this question. If defensism is to be warranted on any sort of Libertarian grounds, it must be prudentially as a doctrine that indirectly leads better to the protection of rights than alternative policies (for example, by reducing the chances that the rights of Americans will be oppressed by military establishment or the restrictions on liberty that often accompany a war).

Finally let me hasten to add that, though I have thought a lot about Iraq as a citizen, with these posts I have only just begun to think about the relationship of Libertarianism with foreign policy. I am completely open to being persuaded that this analysis is cpmpletely wrong (as well as to encouragement that I am on the right track). Indeed, I had hoped that, by raising the issue, someone else would to the heavily lifting and save me the trouble. So comments and responses are appreciated. I will post them as I am able (given my travels) and if they seem to be useful contributions.

[I am composing this using a German keyboard, so please forgive any strange spelling typos, or more than normal for me.]
Man raised by chickens?

Thanks to GeekPress for the pointer.

Death and DVDs:

GeekPress reports:

Prosecutors in Alaska have filed the first-ever charge of second-degree murder because the suspect was allegedly watching a DVD while driving his vehicle instead of watching the road, which then led to his striking and killing the driver of another vehicle. The movie he is accused of watching is "Road Trip".

The post contains a link to the newspaper article. The most plausible theory for the prosecution is that watching a DVD while driving is "knowingly engag[ing] in conduct showing extreme indifference to human life."

It's a fearsome weapon of war against the capitalists and a valuable trademark:

There really should be nothing inherently odd or amusing about this (hey, business is business) -- and yet somehow there is:

"We see a great number of products which are named after Kalashnikov, my name," said Mikhail Kalashnikov, the weapon's original designer. "They are buying Kalashnikovs from other countries."

Thanks to Dan Gifford for the pointer.

Fun Tax Court opinion:

Yes, such a thing is possible, even from a non-tax-lawyer's perspective -- see Calarco v. Commissioner, written by my friend and fellow Kozinski clerk (though he clerked in the mid-80s) Judge Mark Holmes. My favorite item was an excerpt from Gulliver's Travels, which I read many years ago but had long forgotten:

The highest tax was upon men who are the greatest favourites of the other sex, and the assessment according to the number and natures of the favours they have received; for which they are allowed to be their own vouchers. . . . The women were proposed to be taxed according to their beauty, and skill in dressing; wherein they had the same privilege with the men, to be determined by their

own judgment.

More on Spiderman and Jews:

Todd Seavey writes:

Spider-Man 2 co-writer (and Pulitzer winner) Michael Chabon has certainly written about Jew/superhero parallels before, in The Amazing Adventures of Kavalier and Clay, while director/plotter for the films Sam Raimi was raised Orthodox Jewish . . . .

Jesse Lansner also adds (though naturally a superhero's being created by a Jew doesn't mean that the superhero is himself Jewish):

[M]any [comic book superheroes] were created by Jewish writers. Superman was created by Jerry Siegel and Joe Shuster; Batman by Bob Kane (nee Kahn). All three were Jewish. Almost every Marvel Comics hero was created by Stan Lee and Jack Kirby, who were born Stanley Lieber and Jacob Kurtzburg.

It's a conspiracy, I tell ya . . . .

Justice Breyer in the Kobe Bryant gag order case:

Marty Lederman (SCOTUSBlog) summarizes yesterday's order.

Copyright and forwarding of messages posted to discussion lists:

Someone asked me -- is it a copyright infringement to forward off-list (say, to some friends, or to another discussion list) a message that has been posted to a large (say, 200-member) and open-for-subscription discussion list? Here's a quick analysis.

  1. E-mail, like nearly all writing (including things written on a blackboard or a cocktail napkin, if they're more than just a few words), is automatically copyrighted. You don't need to put a copyright notice on it, and you don't need to register it anywhere. If someone asks you "What do I need to do copyright this?" (where "this" is something of even modest complexity, beyond just a few squiggles or several words), the answer is "Write it down."

  2. But there are two ways in which forwarding or other copying of a messages may nonetheless not be infringement. First is if the writer conveys an implied license to make copies -- if the writer acts in a way that a reasonable reader would interpret as voluntarily permitting others to copy.

    A classic example from the real world is if someone sends a letter to the editor of a newspaper that starts with "Dear Editor:." Is the letter protected by copyright? Sure, it's written down. Would publishing it be copying? You bet. But a reasonable publisher would interpret the writer's conduct as authorizing (here, even requesting) that the letter be copied. Likewise, copying a sender's message when replying to the whole list is almost certainly implicitly licensed; the same is true of copying the message to a separate folder on your computer, or printing it out for your physical files.

    I suspect that forwarding off-list is generally not implicitly licensed, because there's not the same kind of well-established understanding that this is fine -- but it's impossible to tell for sure, since this doctrine is quite vague, and since to my knowledge there've been no published court opinions applying it in this context (nearly no-one sues over such things).

    Note that implied licenses can always be disclaimed by a prominent notation on the writer's part. A letter to an editor that says "Dear Editor: This is not for publication, but I wanted to tell you that . . ." does not implicitly license the editor to publish the letter, since a reasonable editor wouldn't think that the author agrees to have the letter be published. Likewise with an e-mail that starts with "NOT FOR FORWARDING." (Fair use claims, see below, can still be made despite such a notation, but not implied license claims).

  3. Second, forwarding (to an off-list friend or to another list) a message posted on a discussion list may well be a fair use. This is especially so if the purpose of the copying is commentary or criticism of the message ("Look what a horrible argument I saw being made on a list I'm on : . . . Here's why it's horrible [point-by-point rebuttal follows]."), but it's probably even so if the purpose is simply to pass along something that's interesting.

    The forwarding is noncommercial; the item has probably been published, because it has been distributed to a large group of people; the item is probably mostly factual rather than creative writing (unless it's a list for posting one's short stories or some such); and, most importantly, there's virtually no effect on the value of or market for the work, since there's no market for the work in the first place. If one is forwarding the entire e-mail, that cuts against fair use; but on balance, I think there'd be a credible fair use claim in any event. Again, though, since there've been no reported cases on the subject, it's impossible to tell whether such off-list forwarding would be fair use.

  4. Note, though, that if you change the facts slightly, both these analyses may end up being different. If the list is small, then the post might be seen as unpublished, and the fair use claim would be much weaker. If the item is reprinted or reposted in a commercial place (such as a newspaper), then the fair use claim would again be weaker. My analysis above is limited to a specific scenario: Noncommercial forwarding of a message posted to a fairly large and open list.

Thoughts on Day 1 of the Convention:

1) Y'know, a speech isn't any less negative just because the convention organizers leak the information that they're not allowing any negative speeches-- or, for that matter, because the speaker tells us that it's not negative.

2) ... but man, can Bill Clinton make you believe that it does. His speech was hardly if at all less of an attack than Carter's; it was more of an attack than Gore's or Hillary's. (See Ramesh Ponnuru, David Kusnet.) But it didn't feel that way. He's simply a brilliant, masterful speaker. I can't offhand think of a particular speech he's given that's memorable and enduring, like Kennedy's inaugural or Reagan at Westminster or the Berlin Wall. His speeches are in important ways banal, of the moment, and always nakedly partisan and political. But he's so damn good at them, and he's gotten better over the years. (He's outgrown the singling out of token audience members, for example.) He's the only currently active political speaker I'd rather watch give his speech than read the transcript later.

3) Still, I'm curious to see whether the mainstream press actually buys the claim that last night wasn't loaded with Bush-bashing. Even Clinton's wasn't hidden; it was just coated in his honeyed voice. Carter's would have been astonishingly nasty, if I still had the capacity to be astonished by Carter. (Much of the bashing was effective. Some of it was right. And bashing the incumbent is what a challenger's party does. But I dislike the sanctimonious pretense that "As long as we don't repeat Michael Moore's theories, we're running a positive, 'choice of visions' campaign.")

4) It seems like the pure-play bloggers were too busy getting interviewed yesterday to do much actual blogging. The magazine group-blogs are, so far, the sites to be reading: The New Republic, The American Prospect, Reason. Slate's Will Saletan has a good blog going. NRO's Corner hasn't set up a special blog for the contributos who are in Boston, the way the other three have, and so far it hasn't shone-- because it's only posting bite-sized bits of snark, and leaving the two-paragraph-or-more contributions as separate NRO stories. So far I prefer the convention-only blogs that include a mix of long and short posts.

5) Go read all Andrew Sullivan's post-midnight posts. On-site, Josh Marshall's got some good stuff up.

Update:

Patrick Belton was saving up all his posts for one long mega-post in the morning.

Monday, July 26, 2004

If You Are a Minor,

taking nude pictures of yourself and e-mailing them to your boyfriend is a really really bad idea. (Thanks to The Curmudgeonly Clerk for the link.) Unfortunately, I don't have time to get into the very interesting legal questions raised by the prosecution, but the Clerk has some thoughts on this that are worth checking out.

Nudity on drive-in movie screens

is constitutionally protected — signs containing dead fetuses are forbidden. Yup, that's the First Amendment rule that seems to apply in the Eighth Circuit (Missouri, Minnesota, and some neighboring states).

The first part of the rule (that nudity on drive-in movie screens is constitutionally protected) has been well-established since 1975, when the Supreme Court struck down a ban on such nude displays in Erznoznik v. City of Jacksonville. The Court concluded that

  1. the offensiveness of the speech to some viewers generally can't justify restricting it,

  2. the presence of children who can view the material can't justify restricting it either, unless it's "obscene as to minors" (which requires it to be not mere nudity, but rather sexually explicit), and

  3. the risk of traffic accidents caused by drivers being distracted by the nudity can't justify a selective ban: "By singling out movies containing even the most fleeting and innocent glimpses of nudity the legislative classification is strikingly underinclusive. There is no reason to think that a wide variety of other scenes in the customary screen diet, ranging from soap opera to violence, would be any less distracting to the passing motorist."

So that's the law, set forth by the Supreme Court. Agree with it or not, there it is.

But just today, the Eighth Circuit held that police officers may require anti-abortion protesters to put down their three-by-five-foot signs containing color photographs of aborted fetuses. Why? Well, because they supposedly distract drivers, and perhaps also because they are "frightening" to "very young children." What about Erzoznik? The majority says nothing about it (except for one indirect citations that doesn't even begin to explain how this case is different from that one).

The one possible distinction between this case and Erznoznik is that here some drivers did specifically complain that they were distracted. One can imagine that the police might have therefore thought that this speech was unusually distracting, much more so than any other kind of sign or billboard that drivers might see.

But I'm extremely skeptical about rules that give the police the discretion to make such decisions (and the Court has been skeptical about such discretionary rules, too, where speech restrictions are concerned). There's no objective metric for deciding which images are more distracting than others. Nor is the frequency of driver complaints much of a neutral metric — we're all much more likely to complain about things that are distracting and ideologically offensive to us than we are about things that are distracting but appealing. Moreover, once people learn that "Officer, I find those signs distracting" is a good way to get the signs taken down, people will be much more likely to make that sort of claim.

And of course these sorts of distraction claims can be made against any speech that some people find offensive enough. I'm sure that some people are offended to the point of distraction by flagburning, by Confederate flags, by anti-veteran messages, or by a wide range of other speech. Under the Eighth Circuit's reasoning, whenever a few drivers make such an objection, and police officers decide to credit the objection — something that's almost entirely up to the officers' own judgment — the speech can be suppressed.

This is a really bad decision, one that I hope either the Eighth Circuit sitting en banc or the Supreme Court will quickly reverse. I've been somewhat skeptical of some Justices' claims that the Court has been treating anti-abortion speech worse than other speech. But here the Eighth Circuit is indeed allowing restrictions on anti-abortion speech that are flatly inconsistent with the rule for speech generally. (The same, I think, was true for the Nuremberg Files case from the Ninth Circuit a couple of years ago, which I'm sorry the Court refused to hear.)

I'm glad I don't live on "Skunk Misery Road," in Higganum, Connecticut. (Thanks to the here Hartford Courant; and see here for some more Connecticut road names.) UPDATE: Mark Eckenwiler also points to Toad Suck, Arkansas.
Can the Supreme Court correct its own decisions?

Reader Steve Sturm writes, about the Blakely decision, which is leading many lower courts to strike down the Sentencing Guidelines on constitutional grounds:

Today's WaPo editorial calls for the Supreme Court to interupt their vacation and fix the Blakely mess (their characterization).

Can the Court issue rulings without a case on which to rule (I thought they didn't like to/couldn't issue advisory rulings)? Are there such things as a legal 'do-over'?

Well, the Court couldn't just decide on its own today, "whoops, we got it wrong in Roe v. Wade, we'll just issue an order adopting the contrary rule." But the losing party can file a petition for rehearing -- there's one due in Blakely August 18 -- and the Supreme Court could revise its decision in response to that petition. I think the Court can also just unilaterally correct the decision at any time before the so-called "mandate" issues; in this case, I suspect that the extension of time to file a petition for rehearing will be seen as suspending the issuance of the mandate.

Now the Supreme Court almost never does either of those things, but courts of appeals sometimes do, and I think it would be within the Supreme Court's power to do it. Also, the Court has before it the Second Circuit's certified questions about the impact of Blakely on the Guidelines. The case, U.S. v. Penaranda, is now docketed, and the Court can in theory accept the certificate and give an answer -- one that might clarify Blakely's scope, or even reverse that decision -- very soon.

But in practice, I think the Court (1) will likely agree to hear the case very soon, since there is already a circuit split on an important issue, (2) might possibly make the decision to hear it in the next few weeks, rather than waiting until the late September / early October conference, so that the parties could start briefing the issue quickly, but (3) would likely not make a definitive decision until it gets briefs and hears oral arguments. Though the Justices could decide the matter without full briefing, or even any briefing (for instance, if they recall the mandate and amend the decision on their own), I think they don't want to do that -- briefing on important and difficult questions such as this really is valuable.

Government requires restrictions on Al-Jazeera:

The Canadian government that is, apparently under the same anti-hate-speech laws that some on the Left have urged as good examples for the U.S. Here's what the Washington Post reports:

Last week, the Canadian Radio-Television and Telecommunications Commission announced that it had approved al-Jazeera, but required cable and satellite distributors to monitor its programs 24 hours a day. The agency also took an unprecedented step in allowing cable companies to alter or delete "abusive comments" from al-Jazeera programs. Currently, it is illegal for distributors to delete programming, but in this case, the commission made an exception. . . .

[D]uring the application process, a number of groups raised concerns about the content of previous broadcasts. Canadian officials said they could not bar the station, which had never violated Canadian regulations because it had never been allowed to air legally in Canada. Instead, the agency decided to require that cable distributors be responsible for the channel's content. The agency mandated that the distributors keep tapes of the program but left it largely up to cable companies to decide how they would regulate the broadcasts. . . .

Elie Kawkabani, president of Reach Media, a Los Angeles-based media marketing and distribution company, which holds the rights to distribute al-Jazeera, said the channel has been marketed in the United States since 1998 with no such restrictions. . . . "They've given us approval but made it difficult for cable companies and satellite companies to carry it. They are not set up to monitor and decide what is appropriate or not appropriate. Their role is not censorship . . . . They should not be concerned or involved in the content they deliver. The CRTC has made it impossible for us to find distribution in Canada." . . .

But the Canadian Jewish Congress argued to the commission that al-Jazeera has disseminated anti-Semitic hate speech, providing a platform for "hatemongers" and broadcasting "stereotypical characterizations of Jews that resort to classic Judeophobic themes such as the image of the Jews an alien, evil, world-dominating conspiratorial force," according to commission records. "Moreover, the CJC argued that al-Jazeera has gone further by broadcasting threats to the physical security of Jews and engaging in Holocaust denial." . . .

I'm not positive, because I'm not an expert on Canadian law, but it seems from context that the Canadian government isn't just allowing cable companies to edit Al-Jazeera -- it's essentially requiring them to do this, by threatening to hold them "responsible for the channel's content," presumably meaning any anti-Semitic viewpoints that the channel expresses. I'm sure that I'd find much that's carried on Al-Jazeera to be offensive and repugnant. But that's not a sufficient reason to deny listeners -- both those who may agree with Al-Jazeera and those who just want to know what this internationally important broadcaster is saying, including especially what sort of anti-Semitic propaganda it might be spreading -- the ability to hear those viewpoints.

Incidentally, such a restriction would be quite clearly unconstitutional in the U.S. In FCC v. Pacifica Foundation, the Supreme Court did uphold -- in my view incorrectly -- restrictions on profanity in over-the-air broadcasts, but made clear that restrictions based on the broadcast's offensive viewpoint are not allowed.

Daniel Okrent on Liberal Bias at the NYT: This is not exactly news, but it's interesting coming from the paper's own Public Editor. Some excerpts:
  Is the New York Times a liberal newspaper? Of course it is.
  . . .
  I'll get to the politics-and-policy issues this fall (I want to watch the campaign coverage before I conclude anything), but for now my concern is the flammable stuff that ignites the right. These are the social issues: gay rights, gun control, abortion and environmental regulation, among others. And if you think The Times plays it down the middle on any of them, you've been reading the paper with your eyes closed.
  . . .
  Start with the editorial page, so thoroughly saturated in liberal theology that when it occasionally strays from that point of view the shocked yelps from the left overwhelm even the ceaseless rumble of disapproval from the right.
Waiving Waiver:

Can you waive an argument that your oppponent waived an argument? Apparently so, according to this decision of the U.S. Court of Appeals for the D.C. Circuit. In U.S. v. Delgado-Garcia, the court found that the defendants, who were charged with conspiring and attempting to bring illegal aliens into the country, waived most of the grounds for their appeal by entering unconditional pleas after trial. Yet on one issue, whether the relevant statute applies extraterritorially, the court held that the government waived the argument that the defendants waived their defense. The government's waiver did not matter, however, as a divided panel found the relevant statute does apply extraterritorially, and the convictions were upheld.

No Democracy for Workers:

I will admit to not being the biggest fan of organized labor. (Threats against one's life and one's family as a child will do that to a guy.) Even setting aside my visceral hostility to unions, I was schocked to come across this report (third item) that John Kerry is now opposed to secret ballots for votes on union representation. Without a doubt, organized labor believes that allowing union organizers to collect cards from workers makes it easier to certify a union -- but it also facilitates coercion and fraud. If a company's workers support unionization, then the union will win a secret certification vote. This looks like a sop to Big Labor, pure and simple -- and one that comes at the expense of workers. Is there any other plausible basis can one defend Senator Kerry's position?

Do you have the time?

When someone asks the author of Slate's Kerryisms "Do you have the time?," does he just say "Yes" and walk on? If someone else says "Yes, it's five thirty," does the author condemn the "it's five thirty" as a "caveat" or "embellishment"?

That's what it looks like if you read the most recent Kerryism. Larry King asked John Kerry, "Is abortion a great moral issue to you?" Do you think that this was a question that called for a literal yes-or-no answer? Or do you think that the way normal people speak, such a question is usually an invitation for the candidate to explain his moral views about abortion? John Kerry apparently chose the latter interpretation:

Sure it is. Absolutely. And I think it's far more complicated than public life allows the discussion for. I mean, being for choice does not mean you are for abortion. Neither Teresa nor I are for abortion. Abortion should be rare, but safe and legal, as President Clinton said so often, and I think appropriately.

I think that it's really a question of who should make this decision, and how do arrive at it. But there is morality. Of course there's morality involved. And we should be talking to people in America about responsibility, about adoption, about other choices. And I want to have a better conversation than I think we've had on it. But it doesn't change my position on who chooses. And I will protect that right of choice.

This may have been more verbose than necessary, but it was a sensible thing for a politician to say.

On the other hand, this is what Kerryisms gave as Kerry's answer without "caveats and embellishments":

Sure it is. Absolutely.

If Kerry had said that, he would have been seen either as a fool (someone who thought the question called for a yes-or-no answer) or as evasive (someone who knew the question called for an explanation of his moral stand, but who chose to duck it by pretending that the interviewer was looking for a yes-or-no answer). And if Bush had given such an answer, it would doubtless appear in Slate's Bushisms.

Now I'm not at all sure that the rest of Kerry's answer could correctly be called "caveats and embellishments." But even if it is, then this example just shows that there's nothing funny, worthy of derision, or even particularly noteworthy about "caveats and embellishments." In this case, they turn a nonresponsive answer into a responsive one; an answer that's worthless to the voters into one that's useful; an answer that's bad politics into one that may be good politics; an answer that would seem surreal into one that expresses a plausible moral position (whether or not one thinks it's the right one). Why then is Slate condemning them? If it wants to fault Kerry, that's great -- but fault him for something that deserves faulting. If it wants to make jokes, that's fine, too; but where's the joke here?

I've criticized Kerryisms many times in the past; maybe I've reached the point of diminishing returns. But it just galls me to see this sort of stuff -- not substantive, not funny, just empty snideness descending into self-parody -- in a magazine of Slate's prominence and quality.

It was actually Parkerstein, until they made him change it:

So Peter Parker is explaining to MJ that he's just like everyone else after all — she doesn't yet know he's Spiderman, but he does — and the line he uses is . . . "Punch me, and I bleed."

Where have we heard that before? Are the writers trying to tell us something? Well, probably not, but in the long tradition of Jews claiming to find Jewish connections everywhere, I thought I'd bring this up. Plus, hey, we need a superhero, and Arthur, The Tick's sidekick just doesn't qualify.

UPDATE: Jacob Levy passes along this list of Jewish superheroes, and The Spoons Experience e-mails me a couple -- but if you check the list, you see that it proves my point. We need a serious superhero, not just Colossal Boy. (Please, no need to e-mail me about Colossal Boy's or the others' relative merits, or about the supposed inaccuracy of the list I link to.)

But Spoons points out something more important:

I think you should be able to claim Spiderman. After all, it sounds like a Jewish name, doesn't it? Can you hear it? Federman, Goldman, Grossman, Leiberman, Friedman...
Wow -- how could I have missed that? Maybe that means that all the big -man superheroes are Jewish.

The Presumption of Liberty In Action?: The Valley Morning Star in Harlington Texas ran this editorial on July 17th, in which they employed the Presumption of Liberty. (They appear not to have an archive so I cannot provide a direct link)
EDITORIAL

Gay marriage: The debate disappoints


Advocates on all sides assure us that the failure of the Senate, by a 50-48 margin, to get even a majority in favor of a constitutional amendment to ban gay marriage is not the end of the process, but only the beginning. We suspect they are right, but we fervently wish that it were not so.

The presence of so much heat and so little light in the Senate should give us all reason to regret the tendency to want to decide such personal, intimate issues through the political process. And, while there are practical reasons having to do with consultation during illness, property rights, inheritance and the like to want to continue to do so, it should raise the larger question of whether the state should be in the business of licensing marriage — which predates the modern state by several millennia at least — at all.

The vote Wednesday, far from being a sober consideration of the grave issue of amending a basic document of governance, was a circus of partisan opportunism. President Bush, seeking to firm up his base of conservative support, made marriage between a man and a woman the only topic of his radio address last week. Then the Democrats, having counted votes, agreed to a vote on one proposed amendment (several are floating around), but only one. That one failed.

Both parties hope to use the issue to advantage in the November election.

The issue is rich with ironies. Conservatives — though not all of them — who as a general rule like to keep power at the most local possible level and resist tinkering with the nation's fundamental charter, seek a constitutional amendment to define a single national standard on marriage. Liberals, who have no qualms about interfering with freedom of association when it comes to the hiring practices of Boy Scouts or churches, want the state to bless the freedom of gay people to associate in marriage.

Thus, we have an argument over which wrong way to regulate the most intimate of relationships. Should it be done by legislatures or votes of the people, or by courts finding new rights?

How about neither? What is missing in the debate is the subtitle of Boston University law professor Randy Barnett's recent book, "Restoring the Lost Constitution — The Presumption of Liberty."

As University of Chicago law professor Richard Epstein put it in a recent Wall Street Journal article, "Constitutional libertarians hold that the state must always put forward some strong justification to limit the freedom of association of ordinary individuals." The state may intervene to protect people from harm, like assault or pollution, but not from actions seen as offensive but not unambiguously harmful.

A presumption of liberty would suggest that this delicate issue is best handled by the gradual, subtle interplay of voluntary decisions by free people.

Most churches probably will decline to bless gay marriages, for example, but some might. Some homosexuals will want to call their relationship a marriage while others will not. Everybody else will be free to recognize such unions as valid or not. Men and women, meanwhile, still will be free to marry and raise children — or not — however this issue plays out.

The impulse to make every issue a political one, to be decided for everybody by a state institution, is needlessly divisive. Why not take a deep breath, let people make their own decisions, and decide on an individual basis how to treat people who make troubling decisions?

Too confusing? Hardly less confusing than politicizing the personal.
I myself am not convinced that state marriage is a liberty question of the same type as cohabitation or sex is. Marriage, however, can be viewed as a type of contract. If so, then there is no reason why gays should be prevented from entering into this form of legally binding agreement. This IS a liberty question, to which a Presumption of Liberty would be relevant.

Everything that is legal, however, is not necessarily approved. If marriage is instead viewed as a state imprimatur or sanction of some relationships over others, then the state need not give out its approval unless it actually approves. The obvious solution here is to separate the contract aspect of marriage into one institution called "civil unions"--providing a form contract for such unions--reserving the approval or disapproval of some civil unions to organized religions, which were once the sole regulator of marriage long before the rise of nation states. This, I take it, is the recommendation of the editorial in the Valley Morning Star, to which I am very sympathetic.

Or you can have goverment-created "civil marriage" status over and above "civil unions" contracts, which would convey governmental approval in the form of extra financial subsidies and benefits conveyed on these particular unions--much as there are subsidies for many other types of activities, like research and development, the government deems productive. While I am generally unsympathetic to such social welfare schemes, this one would not, I don't think, be restricting liberty and, therefore, would not implicate the constitutional Presumption of Liberty I favor in my book.

In short, I think it pays to separate the contractual aspects of marriage from that of social or religious approval. When one does, the constitutional issues become somewhat clearer, at least to me.

Sunday, July 25, 2004

The Boss of Malcolm, Dirk, Monica, and Others

I also got a lot of reader responses to my post on "You're not the boss of me!" Most of them wrote to tell me that if I had not been so quick to filter the They Might Be Giants song "Boss of Me" out of my Google search, I would have learned that it is the theme song for Malcolm in the Middle, and has been for all five or six seasons of the show. That, they pointed out, probably had a lot to do with the phrase's increasing popularity.

A good number of respondents also mentioned the movie Boogie Nights, in which porn star Dirk Diggler tells off his producer, saying, "You're not the boss of me, Jack! You're not the king of Dirk! I'm the boss of me! I'm the king of me. I'm Dirk Diggler!" (Thanks to Mike Miller and D.G. Judy for the exact quotation.) I actually did see Boogie Nights, and I'm surprised I didn't notice that line, especially since it seems to have made an impression on so many others. Maybe it even inspired TMBG; Boogie Nights came out in 1997, and "Boss of Me" in 2000, so it's possible.

Though these two pop culture appearances may have helped popularize boss of me, the strange syntax predates them. A few readers noted that Monica Lewinsky had been widely quoted as saying it. VC reader Michael Gebert notes that Bob and Ray often used the phrase for a couple of recurring characters in their racio show from the 50s to the 70s. And several readers told me about hearing it in their childhood, the earliest being the 1960s.

As for how the phrasing actually came about, there were a couple of hypotheses that a number of readers proposed. Some said they thought it was supposed to imitate the syntax of a child, being as how kids are more apt to say "You're not the boss of me" than (most) adults are. I don't buy this one. It leaves unaddressed the question of why this should sound like childish syntax. After all, how many kids have you heard saying things like friend of me, doctor of me, mother of me, etc.? In other words, most kids seem to have possessives with relational nouns other than boss well in hand, so the question is still: What is so special about boss? And anyway, I think you sound equally childish whether you say, "You're not the boss of me!" or "You're not my boss!"

Other readers guessed that boss of me was formed on analogy with phrases such as king of England, mayor of the town, chair of the committee, etc. At first I didn't put much stock in this hypothesis, either, since the of-phrases in these examples are geographic areas, or collective nouns, not singular individuals. However, one reader (whom I'd be happy to credit, but who wishes to remain anonymous) pointed me to the 1979 movie Norma Rae, in which the title character tells an antagonist something like this:

you may be the boss of this town, you may be the boss of this factory, you may be the boss of this shop, but you ain't the boss of me.

This speaker goes from town to factory to shop until she gets to the smallest location of all, consisting of just one person, herself. If she'd switched from boss of to my boss at the end, it would have ruined the flow, so I can actually see a reason for saying boss of me here, and an actual instance of it being formed by analogy with more natural boss of constructions. So my favorite hypothesis at this point is that the originators of the phrase were drawing a contrast between having authority over some area or group of individuals (family, classroom, etc.) and having authority over them personally; and once coined, the phrase was imitated by other speakers.

Thanks to all the VC readers who took the trouble to send me their comments, on this topic, on "doing the best" , and also on Nuh-uh/(y)uh-huh. I'll be doing a followup on that last one, too, but it'll have to be back on my own blog, and after I can get an International Phonetic Alphabet font to display there. And finally, thank you for inviting me back, Eugene; I hope you had as much fun on your vacation as I did here.

Update: Do Your Best at What You Do the Best Several VC readers responded to my post about the hook
Everybody does what they do best the best
in a children's song ("The Mighty Worm," on Ralph's World: Peggy's Pie Parlor). Maestro and Russ Petti noted the existence of a reasonable, non-tautologous, fifth reading of the line. It's that whatever activity is your personal best, that's the one that you tend to work hardest and most enthusiastically at, and do to the best of your abilities. If this reading is available in Ralph Covert's mental grammar, then I'd agree that it's probably the meaning he intended. However, I can't get that meaning from the way the line is phrased. For me to get that reading, such that when you're doing your personal-best activity, you always do a full-assed job and not a half-assed one, the line would have to be phrased like this:
Everybody does THEIR best at what they do THE best.
Meanwhile, VC reader Barry Jacobs has a slightly different take on Maestro's and Petti's interpretation. He says:
Apropos your post ... referencing Ralph's World: it seems to me that Ralph has slyly been teaching your kids basic economic theory. To wit, the theory of comparative advantage states that optimal productive effeciency (call this "Efficiency Best" or EB) is attained when everyone engages in the activity in which he has a comparative advantage (call this "Comparative Best" or CB). As David Ricardo illustrated in his famous (to economists) mathematical example, a person's CB activity need not be one in which he is Better Than Everyone Else ("BTEE" in your terms), but rather, is simply that activity that maximizes the value of his time.

Indeed, it is entirely possible that a person who has a choice between a low-value activity that's his PB and maybe even his BTEE (say, for example, sending emails to Conspirators) and a high-value activity that he's only mediocre at (like studying for his bar exam) might well "best" do what he personally does worst, but comparatively does best. To give another example, my doctor told me the other day that he won the "employee of the month" award seven months running at the McDonald's he worked at in high school. I'll be he still flips a mean burger.... But face it, our economy can get by better without a super-keen fry cook than it can without even a mediocre doctor.

So, an appropriate exegesis of Ralph's song should go something like this:

Everybody does most efficiently what they [sic] have the greatest comparative advantage in doing.

It loses something in the translation, though, doesn't it?

The only flaw I see is that the only two ways I personally can interpret the phrase the best after a verb is the Personal Best and BTEE readings I discussed before, and I think just about all other English speakers are the same way. Is there anyone out there who gets the PB, BTEE and CB readings? BTW, if you like hearing about economic principles applied to strange topics like the lyrics in kids' songs, you'll probably get a kick out of the kind of stuff my brother talks about here and here.
Bourne Again: I saw "The Bourne Supremacy" this weekend, the sequel to the spy-thriller hit "The Bourne Identity." I enjoyed the film, especially the frenetic car chase, even if it had even less to do with the Robert Ludlum book upon which it was based than the first one. (For the record, Ludlum's "The Bourne Identity" is unquestionably one of the best spy novels of all time.)

One bit of political background in the movie struck a discordant note. In general terms (so as not to spoil the plot), a Russian politican who is assassinated is identified as both a "liberal reformer" and an opponent of oil privatization (the latter of which may have gotten him killed). Maybe I don't know enough about Russian politics (in fact, I'm sure I don't), but aren't the "liberal reformers" in Russia typically classical liberals and quite free market? If this impression is correct, wouldn't a "liberal reformer" support privatization, even if he criticized potential corruption? Or is my sense of Russian politics just off base?Update: "Non-Muhammed Volokh," Russian emigrant, economist, and former blogger e-mails with the following observation, suggesting the filmakers were not so off-base after all:

Lots of liberal reformers in Russia aren't so hot about privatization-as-actually-practiced, which was a highly corrupt affair. To the extent that privatization is seen as Yeltsin and Putin enriching their buddies (and, by extension, entrench themselves in power), a liberal reformer trying to position himself against the Putin crowd can support the free market in theory but in practice favor delaying privatization of certain enterprises until there's greater transparency in the process and better corporate governance law.

Sunday Song Lyric: I've been listening to Everlast's "Whitey Ford Sings the Blues" a fair amount of late. This album was Everlast's reemergence as a solo artist after his tour with the hard-edged Irish rap group, House of Pain. (In his first incarnation he was an '80s b-boy, and part of Ice-T's Rhyme Syndicate.) Although I hadn't listened to it in a while before this summer, ". . . Sings the Blues" has not gotten old in the least. Best described as blues-influenced and acoustic guitar-laden hip-hop, I think it has a unique and affecting sound — perhaps, in part, due to the life-threatening heart attack and subsequent open-heart surgery he went through while recording it. Powered by singles like "Ends" and (this week's lyric) "What It's Like," the album went double-platinum and prompted a collaboration with Santana that won a grammy. (Think about it — a former Ice-T sidekick and House of Pain frontman winning a Grammy with Santana.) I haven't heard Everlast's new album yet, but if it has tracks as affecting as this one, it will be worth a listen.
We've all seen a man at the liquor store beggin' for your change
The hair on his face is dirty, dread-locked, and full of mange
He asks a man for what he could spare, with shame in his eyes
"Get a job you fucking slob," is all he replies
God forbid you ever had to walk a mile in his shoes
'Cause then you really might know what it's like to sing the blues

Then you really might know what it's like... (4x)

Mary got pregnant from a kid named Tom that said he was in love
He said, "Don't worry about a thing, baby doll
I'm the man you've been dreaming of."
But 3 months later he say he won't date her or return her calls
And she swear, "God damn, if I find that man I'm cuttin' off his balls."
And then she heads for the clinic and
she gets some static walking through the door
They call her a killer, and they call her a sinner
and they call her a whore
God forbid you ever had to walk a mile in her shoes
'cause then you really might know what it's like to have to choose

Then you might know what its like(4x)

I've seen a rich man beg
I've seen a good man sin
I've seen a tough man cry
I've seen a loser win
And a sad man grin
I heard an honest man lie
I've seen the good side of bad
And the downside of up
And everything between
I licked the silver spoon
Drank from the golden cup
And smoked the finest green
I stroked the fattest dimes at least a couple of times
before I broke their heart
You know where it ends, yo, it usually depends on where you start

I knew this kid named Max
He used to get fat stacks out on the corner with drugs
He liked to hang out late
he liked to get shit-faced and keep the pace with thugs
Until late one night there was a big gun fight and Max lost his head
He pulled out his chrome .45, talked some shit, and wound up dead
Now his wife and his kids are caught in the midst of all of this pain
You know it crumbles that way
at least that's what they say when you play the game
God forbid you ever had to wake up to hear the news
'Cause then you really might know what it's like to have to lose

Then you really might know what it's like...
Then you really might know what it's like...
Then you really might know what it's like...to have to lose