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Saturday, September 18, 2004

SOTW - 4 days.

My local Borders confirmed it.

When you're e-mailing us a link to one of your posts,

please include the entire text of the post as well as the particular post's URL: This makes it much easier for us to read the post -- and thus much more likely that we will read it and consider linking to it.

Friday, September 17, 2004

Hard Time: Reuters reports from India about a man who was denied an unusual bail request:
  Court Denies 'Sex Bail' for Prisoner

  AHMEDABAD, India (Reuters) - An Indian court has refused to release a Muslim, charged over the train torching that triggered Gujarat's Hindu-Muslim rioting two years ago, so he could go home to have sex with his wife.
  The special court in Gujarat's main city, Ahmedabad, said if it granted bail in this case, many other prisoners would ask for the same thing, officials said on Tuesday.
  Firozkhan Zafarkhan sought bail last month, saying he and his wife suffered mental trauma because they had not had sex for a long time.
Thanks to CrimLaw for the link.
Absence of gender gap:

A CBS News poll reports that women favor Bush 49-42; since the total margin for Bush is 50-41, this suggests that the margin for men must be around 51-40 or thereabouts, which means there's really no gender gap. A Newsweek poll from Sept. 9-10 showed likewise showed no gender gap (there, the gap was 0%, but the 2% gap is statistically indistinguishable from 0%).

On the other hand, a July 29-30 Newsweek poll showed a 10% gender gap (48-37 vs. 43-53); a July 8-9 Newsweek poll showed a 5% gender gap. I don't know why the results are different now, and I'm not sure whether it's a fluke or part of a trend. Still, it seems worth noting.

Thanks to InstaPundit for the pointer.

Moral relativism:

Conservatives often accuse liberals of "moral relativism." Now I surely disagree with most liberals on many specific moral issues. But I'm puzzled about exactly what the commonly heard charge of moral relativism in general, as opposed to a charge of moral error on a particular issue, means.

I take it that it can't be that liberals don't believe in moral principles. They surely do: Most liberals, for instance, believe that race discrimination is wrong, rape is wrong, murder is wrong, legal interference with a woman's right to get an abortion (at least until a certain gestational age) is wrong, and so on.

Now it's true that, to liberals, some of these principles admit of exceptions — but surely this is true of conservatives, too. Liberals, conservatives, and libertarians all agree, for instance, that killing is generally bad, but the definition of when killing is evil and when it's permissible (or even laudable) necessarily has to be pretty nuanced, so that it properly treats killing in self-defense, killing in war, and the like. In fact, some liberals of the pacifist stripe may employ a more nearly absolute prohibition on killing (at least of born humans) than conservatives do — in my view, that's their moral error, but it's not an error of moral relativism.

Likewise, liberals, conservatives, and libertarians endorse what one might call "situational ethics" at least in the banal sense that the morality of certain actions turns not just on the simple three-word summary of the act ("X killed Y") but also on aspects of the situation: Did X have moral justification to kill Y? Did X have some excuse, for instance that he sincerely believed that Y was about to kill him, though he was regrettably mistaken? Are there other reasons why we would say that X's actions aren't as evil as some other similar actions, for instance because X is a 5-year-old who couldn't really understand what he was doing? (Many liberals might set the threshold for when a child is too young to be fully tasked with the moral weight of his actions differently than conservatives, but I take it that all of us would have some such threshold.) Or might there be something significant about X's motives that diminishes, even if it doesn't eliminate, his moral culpability, for instance because X beat someone up because of a genuine provocation (e.g., the beating victim had insulted X's daughter) as opposed to for money or because of a cold-blooded desire to inflict pain?

It's true that some people do employ a sort of cultural relativism, in which actions are made right or wrong by the country or culture in which they happen. This is far from a purely liberal principle, though; in fact, sometimes it's liberals who are most universalist in their calls for human rights. Moreover, while I'm generally not wild about this approach, it seems to me that at least as to some things it does make sense: Separation of church and state is a good principle (at least in some interpretations) for the U.S., but I'm not sure that it should necessarily be equally applied to other countries (for instance, to require England to entirely disestablish Anglicanism). But in any event, this is too tangential a matter, and a matter too divorced from the liberal/conservative divide, to be what the "moral relativism" claims are all about.

So is there anything to this charge about liberals being "moral relativists," or at least being so materially more often than conservatives? (I'm not asking whether isolated liberals have at times made truly moral relativist arguments, whatever they may be, but rather whether liberals generally are more likely to endorse such views.)

Or is this just a neutral-sounding allegation that really masks disagreement on specific contested moral issues? And if it's the latter, wouldn't it be more candid and more helpful to specifically say "I think liberals make this moral error on this subject for this reason," rather than levying empty accusations of "moral relativism"?

Ballot Access: Should Ralph Nader be on the ballot? Should other third party candidates? I think so. I have a hard time identifying a principled reason for making it so difficult for independent candidates to get on the ballot. Of course there have to be rules and thresholds, but the thresholds need not be so high and I am unsure why it should be so easy for major parties to gum up the works. In short, reasonable rules for how one gets a name on the ballot need not result in the sort of legal wrangling we see in the current campaign. Democratic principles would seem to counsel giving voters more choices rather than fewer.

While I think ballot access should be less difficult, I find it hard to fault either major party for their handling of Nader's candidacy. Each is seeking to use existing election laws to their maximum advantage -- and I expect nothing less in the heat of the campaign. So Republicans try to help Nader get on the ballot, and Democrats do all they can to keep him off. Neither seems a particuarly cynical move given the rules of the game.

My interest is in the proper resolution of the question whether Nader -- or some other candidate with equivalent support -- should be allowed on the ballot. Going forward, should it be easier for the Naders of the future to offer voters more choices? I think the answer is clearly "yes," but would be interested if others have principled reasons for concluding otherwise.
Watch HBO's "The Wire" This Sunday: My favorite cop show, The Wire, premiers this Sunday on HBO. The first season of this series was simply the best cop show I had ever seen on television. The second season slipped a tiny bit as it expanded its focus from the Baltimore projects--where real "POL-ice" spend much of their time--to the docks where cops almost never venture. With the exception of a whopper of a plot flaw in the penultimate episode, however, the second season was still terrific.

As a former criminal prosecutor in Chicago, I normally cannot watch either cop or lawyer shows, primarily because the dialogue between characters on such shows rings so false to me. There is a way that people in law enforcement talk, which reflects how they think, and TV writers historically do not get this. For one thing, no one makes speeches. Also what the characters do on these shows often seems either incredibly stupid or uncharacteristically brilliant.

The first cop show to come close to capturing how cops really talk and think was NYPD Blue (now in its final season). I liked NYPD for the interaction it captures among cops and for its emphasis on interrogations--however much I find the standard interrogation technique it depicts of offering suspects a promise of benefits if they give an incriminating version of events that minimizes their involvement not only improper but highly unusual in real life (though I am not claiming it never happens). And far more effort is placed in real life on developing other forms of proof besides interrogations. (ABC's NYPD 24/7 mini-series documentary this summer showed this side of police work to great effect. For an insightful review of the show by a former cop click here.) Many many defendants get charged and prosecuted successfully without having made an incriminating statement. Also there are not enough false leads and bad theories pursued on the show, making cops look far more omniscient than they really are. (Again NYPD 24/7 was superb on this.) Still, despite these and other shortcomings, because the interpersonal interactions ring true to me, I can enjoy NYPD Blue.

The Wire is even better, both at showing interactions among police and prosecutors and their investigative techniques. In addition, it emphasizes the internal and external political and bureaucratic dimension of police work in a way previously unseen on television. Finally, it runs a parallel plot from the perspectives of the criminals that shows how they think and what they do without generating undue sympathy for their misdeeds. (The fact that the primary plot from the first season concerned enforcement of drug laws does shift some sympathy to the gang members--at least for me--but also realistically depicts the sordid and brutal means used by drug distributors in the government-created world of legal prohibition.)

And did I mention this is all very entertaining and suspenseful? If you missed the first two seasons, don't let that stop you from watching the third season from the beginning, beginning on Sunday night.
Striking Iran?: From the Financial Times, an article on the possibility that the Bush Administration may be considering military strikes against Iran:
US debates military strikes on 'nuclear Iran'

The Bush administration's warnings that it will not "tolerate" a nuclear-armed Iran have opened up a lively policy debate in Washington over the merits of military strikes against the Islamic republic's nuclear programme.

Analysts close to the administration say military options are under consideration, but have not reached a level of seriousness that indicate the US is preparing actual action.
When asked, senior officials repeat that President George W. Bush is removing no option from the table - but that he believes the issue can be solved by diplomatic means.
The US and its European allies on the board of the International Atomic Energy Agency continued to wrangle over the wording of a resolution on Iran which insists it has no intention of using its advanced civilian programme to make a bomb.
Gary Schmitt, executive director of the Project for the New American Century (PNAC), a neo-conservative think-tank, says that with "enough intelligence and spadework", the US could "do a good job" of slowing Iran's programme for a while.
Over at Intel Dump, Phil Carter comments:
Hopefully, these reports are being greatly exaggerated by overzealous think-tankers and policy wonks who have had their head in the sand for the past two years. Fortunately, there are no concrete developments (such as the redeployment of airpower) to indicate that the Pentagon is seriously preparing for an assault on Iran. Nonetheless, the rhetoric is enough to worry me — especially that from Mr. Schmitt at PNAC. How exactly does he think we could do this? What exactly is he prepared to do? And on what intelligence is he basing this proposed course of action? We've been down this road before. This is the kind of talk we heard before Iraq too — doomsdayesque estimates of the threat, dire predictions of the consequences if we did not attack, minimal consideration of the aftermath, et cetera. I'm more than a little reticent to rush down this tunnel again without one heck of a flashlight to see where all the pitfalls lie.
I'm no expert on these matters, but I wonder if it's part of an overall deterrent strategy; have the executive director of a "neoconservative think tank" make some agressive noises, hoping that the Iranians will see that as a real threat while no one in the United States takes it very seriously. But who knows. Either way, I hope this story doesn't distract us from the really important questions for the future of our democracy — namely, those CBS memos.

Thursday, September 16, 2004

An e-mail exchange:

A couple of days ago I posted something responding to a Les Kinsolving column that criticized Cheney's support for his lesbian daughter. My post, which was just a titch sarcastic, explained that though Mr. Kinsolving was suggesting that this sort of thing could lead to sadomasochists having the right to get married, too, it turns out that sadomasochists are already entirely free to get married. So are people who want to engage in sodomy (a term that Mr. Kinsolving used pejoratively, but which can include oral and anal sex, and sex within opposite-sex couples as well as same-sex couples).

I then got into this interesting e-mail exchange:

[A reader:] Sexual depravity is ruining America morally. Why are you supporting that?

[Me:] What kind of sexual depravity? Husbands and wives having oral sex (which is indeed part of the definition of sodomy)? Can you give me any evidence that this is ruining America morally? . . .

[The reader:] Sodomy as commonly understood by probably over 95% of native English speakers: "anal sex between two men". You may be right in saying the current definition includes other sexual acts, but those are not what Sodom was famous for, and the act it gave its name to. Homosexuality is debasing to all who take part in that perversion. The finer sensibilities that distinguish humans from animals, these are partly benumbed by this debasing act. All society suffers proportionately.

[Me:] (1) Well, Mr. Kinsolving doesn't seem to take this view, since he seems to oppose lesbianism, too. [Recall that the Kinsolving column began with a criticism of Cheney's lesbian daughter, not of male homosexuals.]

(2) You make assertion after assertion, but you give no support for them. Why is it exactly that I suffer because two friends of mine decide to have sex in a particular way in the privacy of their own home? Why does it even debase them? Why does it erode the finer sensibilities that distinguish humans from animals? Again, you just say these things — why should I believe them?

[The reader:] The fact that you cannot determine that sexual perversions such as sodomy are debasing is in itself evidence that you are unable to determine what the truth is at this time. When you begin to search for truth with the aim to live the truth, you will find it.

God made us for a reason.

Well, that's logic for you! God made us for a reason. That reason (isn't it obvious?) must be "to avoid having anal sex." The people who seem to have a pretty strong urge to have anal sex with each other — what about them? Well, God obviously made them for the same reason, which is that they should avoid having anal sex. (Whatever you may think about whether homosexuality is genetic, it does seem that there are some people who do have a pretty strong desire to engage in homosexual conduct, about as strong as heterosexuals' presumably God-given desire to have genital sex.)

What's more, you don't even need quotations from the Bible any more to prove this: The very fact that the listener doesn't agree is just evidence of how foolish he is. QED. Hey, I'm persuaded — how can one resist the force of an argument like that?

Are nearly all handguns "assault weapons"?

Slate's Explainer has a pretty good explanation of what assault weapons are and they aren't (for instance, it turns out that they aren't fully automatic -- have I ever mentioned that?). One flaw, though, comes in the perennial attempt to explain how "assault weapons" are different from the tens of millions of other semiautomatic guns out there (other than, for instance, in having bayonet lugs):

The law's authors had to be as precise as possible in crafting the ban, since the phrase "assault weapon" isn't really part of the gun-making vocabulary. Rather, it's a catchall term that gun-control advocates define as covering any firearm designed for rapidly firing at human targets from close range.

The trouble is that nearly all handguns are designed for rapidly firing at human targets from close range. They're mostly intended for self-defense, not hunting (hence human targets). They're relatively short-range weapons, as opposed to rifles. And they're designed for rapidly firing, since if someone is attacking you, you'd like to shoot at him several times before he shoots you (or knifes you or clubs you).

If I recall correctly, about half the 80 million or so handguns in civilian hands in the U.S. are semiautomatics. To my knowledge, "assault weapons" don't fire materially faster than semiautomatic handguns; certainly rate of fire isn't part of the definition of "assault weapon." Most of the other half are revolvers, which to my knowledge have a theoretical rate of fire that's less than that of semiautomatics. But all of them can easily fire a round every second or two; and the main constraint is the time it takes to aim again, which means that practically speaking semiautomatics and revolvers have a comparable effective rate of fire.

So if the definition Slate gives is accurate, then virtually all handguns (except the few single-shot pistols that have to be reloaded after every round, and that thus aren't very effective for self-defense) would be "assault weapons" to gun control advocates. I don't know whether most gun control advocates do think so. But if they do, then that's further reason for gun rights advocates to worry about calls for banning assault weapons.

Crime-Facilitating Speech:

I'm pleased to report that this article will be published in the Stanford Law Review, volume 57, issue 4, next February.

Ministers have free speech rights, too:

Reader John Griffin asks:

I though the Internal Revenue Code prohibited political endorsements by religious institutions and religious organizations. Yet, here is a link to an article in The Philadelphia Inquirer about competing endorsements from two religious organizations concerning the US Senate race in Pennsylvania. Curious that they chose opposite candidates, but problematic, are they not?

It's hard to tell for sure without knowing more details, but it might well be entirely unproblematic — and rightly so.

There's nothing illegal about religious institutions or organizations as such endorsing political candidates. In fact, if religious organizations were specially banned, because of their religiosity, from endorsing candidates, that would violate both the Free Speech Clause and the Free Exercise Clause (the latter because it would constitute impermissible discrimination against religion).

Organizations, religious or not, that receive tax-deductible charitable contributions may not engage in electioneering using those funds. There are accounting requirements aimed at making sure that tax-deductible funds aren't used for such purposes, and that endorsements are indeed done only using non-tax-deductible funds. (That's why many organizations have a 501(c)(3) branch that collects tax-deductible contributions and doesn't engage in direct electioneering, and a 501(c)(4) branch that collects non-tax-deductible contributions and does engage in direct electioneering.) Sometimes people have charged that various religious groups have violated those rules.

But this story suggests simply that a bunch of ministers have come together into a couple of groups, and then used those groups make whatever endorsements they like. So long as the groups don't take tax-deductible funds — and there's no reason why they should, since they probably don't need much money to fulfill their very narrow role — the groups are free to express their members' views.

More on Wars, Memos, and the Blogosphere: I received a flood of mail about my earlier post on the blogosphere's coverage of the CBS memos. Almost all of it said the same thing: the blogosphere's coverage of the CBS memos is extremely important. The CBS memos raise the question of whether we can ever trust the mainstream press; they raise fundamental questions about the role of the press in a democracy. It is vitally important that the blogosphere agressively pursues this story to act as a check on the mainstream media.

   Here's my response: All of these are great reasons to cover the CBS memo story. But they don't provide very good reasons to cover the story as if it were the only thing going on in the world right now. The CBS memos deserve front page coverage- for a day, maybe two. They deserve some blog posts — maybe two, maybe three. But my sense is that something different is happening. My sense is that bloggers are embracing Memogate to the exclusion of other things, as if it were an enormous relief to be able to lose ourselves in the story. The story lets the right half of the blogosphere feast on some of its favorite themes: damn that liberal media, blogosphere to the rescue, etc. Don't get me wrong, those are good themes. But at some point the hearty appetite begins to look like escapism. And I think we've reached that point, if not passed it long ago.

Wednesday, September 15, 2004

The Word paper clip guy

offers help with writing a certain kind of document.

"A word of encouragement": After posting my words of encouragement, I opened up my First Amendment textbook to look at today's materials. They are on false statements of fact, and I included an epigraph — coincidentally called A Word of Encouragement, by J.R. Pope. It reads (in one of the several forms that I've seen):
Oh, what a tangled web we weave When first we practice to deceive But when we've practiced quite a while How vastly we impove our style.
For obvious reasons, of course, this has nothing to do with the alleged forgeries, but I thought it was amusing enough to pass along in any event.
Words of encouragement:

I just learned that Randy Kozel, who was a student in my Thorny Problems of Free Speech Law seminar last Fall at Harvard, has accepted an offer to publish his seminar paper (on government employee speech) in the Northwestern Law Review. He had circulated it a few weeks ago, three months after he graduated, and got offers not just from Northwestern but also from another Top 20 law review.

I mention this to encourage other students who are afraid that they can't get their pieces published anywhere, or at least anywhere good. Yes, there is some prejudice against non-lawprof submissions (and even more against submissions from people who are still law students). But this shows that even Top 20 journals take such papers seriously, of course if they're good (and Randy's is very good).

Moreover, as I've mentioned before, other people I know have had pieces published even while they were still law students -- with one exception not in the Top 20 main journals, but still in Top 50 main journals or specialty journals at the Top 10 schools. (Sasha had his n Guilty Men piece published in the University of Pennsylvania Law Review before he even started law school, but oddly enough there might be a little less discrimination against non-lawyers than against current law students. And, besides, he's Sasha.)

Incidentally, I should also mention that many lower-ranked journals are as professional, diligent, and helpful as the higher-ranked journals; and publishing in those journals will still provide a very good credential. But, let's face it, the pecking order is out there, whether you like it or not, and it's good to know that quality work can find a place in journals near the top of that order.

Aaron Director: In Memoriam:

I am sorry to report that Aaron Director recently passed away, after having achieved the distinction of being a centenarian. (He was born in the Ukraine in 1901.) Director was one of the most important economists of the twentieth century.

He founded the Journal of Law and Economics, perhaps the most influential economics journal of the last fifty years. He also was a teacher of Robert Bork and Richard Posner, and led the application of law and economics to antitrust. Most generally, he was one of the critical oral sources of the Chicago school microeconomics tradition. Many in the know give Director a leading role in building up the economics, and law and economics traditions, at the University of Chicago. Director also was the brother of Rose Friedman, Milton Friedman's wife.

The University of Chicago web site relates the following:

Kenneth Scott, an emeritus professor of law at Stanford University, recalls Director as a man of gentleness but also a rapier intellect.

"His comments in workshops were few but invariably penetrating," Scott said. "They reminded me of a Thurber cartoon in which one fencer slices through the neck of the other (who seems not to realize what has just happened), saying merely `Touche.'"

Maurice Rosenfield, a retired Chicago lawyer who earned his J.D. degree at the University of Chicago, recalls Director as "an incredibly influential member of the faculty, among both students and also his colleagues. He was also the most interesting man you could imagine. He was always available to anyone with a question, and so wise and eloquent, and with such unique insights. Yet he carried no pretension—he was always gracious."

The Washington Post writes:

Mr. Director was so adamant in his beliefs that he wrote to his sister, Rose, shortly before her marriage to Friedman in 1938, "Tell him I shall not hold his very strong New Deal leanings — authoritarian to use an abusive term — against him."

Later Friedman, who became an icon of conservative economic thought, jokingly introduced Mr. Director as "my radical brother-in-law."

Alex Tabarrok has linked to some tributes.

Update:

Wars, Memos, and the Blogosphere: The right half of the blogosphere is focused right now on the apparently forged CBS memos about W.'s military service; Instapundit is covering it from every angle. I can see why it's an appealing story: if you have a choice between blogging on Iraq and poking fun at Dan Rather, the latter is much more entertaining.

  But let me see if I understand things correctly. A presidential election is less than two months away, and there is a war going on right now in Iraq. The war in Iraq raises profound questions about United States policy with regard to the Muslim world for decades to come. But instead of debating the war that is going on right now, we're debating the war records of the two candidates from more than three decades ago. Wait, no, that's too direct: we're debating one network's story about one candidate's war record from three decades ago. Wait, maybe that's too direct, too: we're debating the fonts on different typewriters that may or may not have been used to write a memo that led to a story about one candidate's war record from three decades ago. Yeah, that's pretty much it.

  C'mon, folks: don't we have more important things to blog about?
Jacob, We Hardly Knew Ye!: Farewell, hopefully temporarily, to my co-blogger Jacob Levy. I will miss his posts, but can understand his motivations expressed here. I too have not been blogging much lately both because of other demands on my time and a lack of topics I cared to blog about. Perhaps my posts today evidence that I am getting back into the swing of things, but we shall see. In the meantime, Jacob's contributions to the Conspiracy will be missed.
More from Northwestern lawprof Jim Lindgren: Jim writes:
The Selectric computer museum shows in pictures part of what I said in words yesterday.  People forget what even proportional spacing looked like ca. 1972.

This Selectric typewriter museum has put up examples of both IBM Selectric and IBM Executive typing, the latter with proportional spacing.  Retyping one line from the forged memos, they quite dramatically show the differences between modern computer fonts and even proportional spacing in the 1960s and early 1970s.

Although the examples don't show the Times New Roman font, they do illustrate that, even with proportional spacing, these typewriters looked NOTHING like MS Word.  In particular, proportional spacing then had discrete, non-overlapping characters, not the "pseudo-kerning" present in the forgeries and MS Word.    In the lines typed at the museum, note particularly the "fr" in "from," where (unlike modern versions of MS Word) the "r" is not tucked under the "f." Also, note the point I made yesterday that proportional spacing then left a full two spaces between sentences, unlike Times New Roman in MS Word and the forgeries.

This illustrates that Mr. Glennon, the former IBM typewriter repairman now relied on by CBS, is not remembering things accurately (assuming that he is trying to be truthful).  Not all versions of "proportional spacing" are created equal, the version available in 1972 was so crude that no one who sees it could mistake it for the MS Word version apparently used in the forgeries.

As Adobe font expert Mr. Phinney reported yesterday in the Washington Post, none of the possible 1972 era office machines (including presumably the IBM Selectric, Executive, and Composer), which he fairly extensively tested, could have produced the CBS forgeries, in part because of the different character widths that are shown in the Selectric museum's examples and their lack of "pseudo-kerning."
"Unique visitors" yesterday:

Over 24,000 according to eXTReMe Tracking, over 31,000 according to SiteMeter, with pageviews about 30% above that.

Reply Article:

A few weeks ago I posted a link to a new article of mine available on SSRN, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, forthcoming in the Michigan Law Review. My very brief reply article is now available on SSRN, as well: Techology, Privacy, and the Courts: A Reply to Colb and Swire. It responds to comments on the main article written by Peter Swire of Ohio State and Sherry Colb of Rutgers-Newark.

The New Fake Bush Memo Genre: Rathergate has spawned a new genre of fake Bush memos. Though this form of humor will undoubtedly get very old very rapidly, I thought I would post a few here and add other links as people send them to me--provided they make me at least smile.

Memo on Bush Being A-Wall

Bush Bribed Officials With $3 Bills

Memorandum For Me

Update: Authentic Document Proves Kerry in Cambodia

True Separation of Powers: Over on Catallarchy, Jonathon Wilde has a very thoughtful discussion of how a polycentric legal order provides genuine checks and balances to prevent abuses of power. Here is how it begins and ends:
I have nothing but the highest respect for most of the Founders. They were learned men who integrated the cumulative available knowledge of political philosophy of their times and created the greatest political experiment in history. Yet, like Jim states, they were spectacularly wrong about the whole "separation-of-powers" thing. If the three branches provided the same or similar function, competition between them could arise. But they do not, and their separate complementary powers act synergistically, not competitively. . . .

Polycentric law is simply federalism taken to its logical conclusion. I don't envision such a society emerging anytime soon, let alone in my lifetime. As Hayek wrote, societies and ideas evolve slowly over time. There is no magic button to push. But if I could use a wayback machine to go back to the late 18th century and sit down and have a drink with with Patrick Henry and Thomas Paine, tell them how right their fears were, give them more ammunition for their battles with Jay and Hamilton in the form of knowledge of economics we have today, and beseech them to try even harder to assure a true separation of powers, without a doubt, I would. Market anarchism and polycentric law would surely be more in line with what spirit of 1776 was about than the document written a decade later.
You should read the substance of the argument in between these two quotes. (I discuss the advantages of a polycentric legal order in The Structure of Liberty: Justice and the Rule of Law, Chapters 12 -14)
Wow: From the New York Times, an article entitled "C.I.A. Unit on bin Laden Is Understaffed, a Senior Official Tells Lawmakers":
  Three years after the Sept. 11 attacks on New York and the Pentagon, the Central Intelligence Agency has fewer experienced case officers assigned to its headquarters unit dealing with Osama bin Laden than it did at the time of the attacks, despite repeated pleas from the unit's leaders for reinforcements, a senior C.I.A. officer with extensive counterterrorism experience has told Congress.
  The bin Laden unit is stretched so thin that it relies on inexperienced officers rotated in and out every 60 to 90 days, and they leave before they know enough to be able to perform any meaningful work, according to a letter the C.I.A. officer has written to the House and Senate Intelligence Committees.
Better living through recycling:

Yesterday Slate posted this item, with the front-page teaser "Sorry, Hoss: You Have No Right To Bear Arms":

Wake Up, Little Uzi Is there an individual right to carry a gun? Posted Monday, Sept. 13, 2004, at 10:44 AM PT

With the 10-year-old ban on assault weapons set to expire tonight, debate rages yet again about the rights of gun owners under the Second Amendment of the Constitution. Three years ago, this "Explainer" attempted to answer this narrow legal question: Does the Second Amendment confer a personal right to bear arms upon American citizens?

The earlier Explainer, dated July 10, 2001, reported that, though there's a hot academic and public debate about the meaning of the Second Amendment, "virtually every lower court has accepted the state militia/collective rights test as a settled point of law" — fair enough as of July 10.

But in October 2001, the Fifth Circuit court of appeals held that there is indeed an individual right to keep and bear arms (though far from an unlimited one), see United States v. Emerson. This still leaves a lopsided split against the Fifth Circuit's position: There are probably seven or eight circuits on the states' right side, all dating back from the era where the states' right side was largely unchallenged orthodoxy in the courts of appeals (though the Ninth Circuit's Silveira v. Lockyer decision did provide a spirited and detailed defense of the states' right view, though over spirited and detailed dissent).

Still, it seems pretty clear that something has changed — the issue is now clearly a matter of judicial debate as well as academic and popular debate, and in fact quite a few judges on other circuits have also spoken up in favor of the individual rights position. The law has shifted from settled to at least somewhat unsettled. Judges on other circuits are debating the matter anew. It seems to me a mistake for Slate to recycle pre-Emerson summaries as if nothing at all had happened.

Tuesday, September 14, 2004

Craftsmen, Bureaucrats & Plagiarists: In response to my post below on Professor Ogletree's plagiarism, Fabio Rojas writes:
During grad school, I discovered there were two modes of "legitimate" academic work: craftsman and bureaucrat. The craftsman worked alone, or with one or two colleagues, to carefully write papers and books. This is the "classic" scholar approach. When you think of a philosopher mulling over every turn of phrase or a historian carefully citing ancience documents, you are thinking "craftsman."

Much to my surprise, I also learned that a lot of scholars are "Bureaucrats": they have grants, research assistants and a large network of co-authors. This kind of scholar is more like an architect - he designs the overall project, but an army of helpers puts together the final project.

At first I was horrified, but I came to realize that some research has to be conducted in this fashion. You simply can't conduct national surveys all by yourself. At the Chicago Soc dept (where I got my Ph.D.) you had a lot of both. Sociology (and political science as well) produces research that requires huge team efforts as well finely crafted individual work. Lot of mass surveys/experiments as well as carefully argued social/political theory.

I also realized that big name scholars get their reputation by being brilliant craftsmen or by being extremely competent academic entrepreneurs. I grew up worshipping the craftsmen - Ron Coase is a great example - infrequent, but outstanding publications. But now I realize a lot of famous names only produce their quantity because they rely to heavily on assistants.

I was shocked to find out that a legal scholar whose work I respect writes a fairly small amount of his later work. He often hires brilliant grad/law students to do most of the leg work and then he assembles the products into his larger manuscripts. It's simply impossible to write a book every other year, fly around the world, teach classes, be a consultant and satisfy your university service requirements without a lot of help.

Given that's a path to success, I'm not surprised that the work becomes sloppy very quickly. Scholars barley have time to closely monitor every product they produce. Not every highly productive scholar is that way, but more of them operate that way than we'd admit.

Update: Dan Drezner adds to more categories of academics: Recyclers and Importers.

Things are even worse than you could have imagined:

Jonathan Rowe points to this column by Les Kinsolving (WorldNetDaily), complaining about Vice President Cheney's support for his lesbian daughter:

[W]hat if Mr. One-Heartbeat-Away in the White House had a daughter who was a masochist who fell in love with a sadist? (And she loved being beaten, as much as her lover enjoyed beating her.)

Would Mr. Cheney have announced in Davenport his support of weddings with leather dresses, whips and chains?

A later Kinsolving column elaborated:

If sodomists and sadomasochists should be allowed to obtain marriage licenses, what other happiness-pursuers should be denied? . . .

[Gay rights advocate Franklin] Kameny concludes his e-mail by affirming:

"No persuasive or credible justification or proof has been presented for limiting or forbidding marriages between sadists and masochists, or between two men or two women. Therefore such couples have the right to have their marriages formally and legally recognized by what are THEIR governments also."

Marriage licenses for sadomasochists.

It's interesting, however appalling, to see what's next on the agenda of the Sodomy Lobby.

Sounds pretty shocking, no? Well, I'll tell you something worse: Doubtless due to the sinister machinations of the Sodomy Lobby, sadomachosists are already allowed to obtain marriage licenses. Celebrating weddings with leather dresses, whips and chains has already been legalized. In every state in the union. Ever since the Sodomy Lobby took over the nation, in the 1990s, if I recall correctly.

Oh, whoops, it turns out I didn't recall correctly — such depraved weddings have, to my knowledge, always been legal. I'm unaware of any law, past or present, regulating the amount of leather or metal at weddings. (Social norms, sure, but somehow no laws.)

No Marriage Police monitor couples' bedrooms so they can swoop down and strip husbands and wives of their marriage licenses for consensual sadomasochism. What's more, if a man and a woman walked down to their local courthouse and asked for a marriage license while proudly announcing their sadomasochistic preferences, I doubt they'd be denied such a license. And if they would be, I suspect such a denial would itself be illegal, since to the best of my knowledge clerks have a legal obligation to issue licenses once certain objective prerequisites are met, and lack of intent to engage in sadomasochism isn't one of those prerequisites.

But wait, it gets still more depraved. There are probably tens of millions of married couples in which the parties regularly practice sodomy. Sodomy is sometimes defined only as anal sex, but sometimes also as oral sex, which is surely the definition Mr. Kinsolving must be using, since his objection was prompted by Dick Cheney's lesbian daughter, who presumably wasn't having much anal sex. It's also sometimes defined as purely homosexual, but generally as either heterosexual or homosexual; and since Mr. Kinsolving condemns sadomasochistic marriages without any mention of the sex of their partners, I take it he'd likewise disapprove of marriages of any sort that include that hideous crime of sodomy.

Yet no-one does a thing about these marriages. No marriage licenses are revoked. None are denied. Shameful. Shameless. A shame. Why don't people realize that we all have to make sure that none of our fellow married couples are having sex the wrong way?

MORE ON SMART PEOPLE AND KERRY: In the spirit of debate (and further data), I post a spirited riposte that I received from Jeremy Bloom of "It is Written" on Jim Lingren's comments (which I passed along earlier):

But there's a fallacy here. Do we really care what the average education level is? Of course not - it's no more relevant than the 'average' tax break. Why? Because large numbers at the bottom of the scale can throw off an average - if you have a lot of working class and poor people in the party, the average education is going to be lowered.

What really counts: within the cohort of the most educated, who votes for whom?

According to the CNN/Gallup poll of August 23-25 (sorry, I couldn't get more recent), the answer to that was straightforward:

Education

Post-graduate
Kerry 54
Bush 41
Other 3

College graduate
Kerry 53
Bush 41
Other 2

Some college
Kerry 42
Bush 50
Other 4

High school or less
Kerry 43
Bush 47
Other 5

Surprised? You shouldn't be - the Republican party is as much the party of poor, rural southern whites as the Democratics are the party of poor urban blacks. And it appears that for every 4 highly-educated voters who somehow believe that 'voting their pocketbook' includes voting for the party that has presided over the most profligate spending and the worst economic performance in the history of the country, there are 5 highly educated people that have looked into the facts and view things differently.

It may be that Jim and Jeremy's data can be reconciled if Bush-Kerry is anomalous and does not track long-term trends--Jim's data is on long-term party affiliation and Jeremy's is on this election. If that is true, that may be an even more interesting question--which is why the traditional pattern doesn't apply here (perhaps there is something about the national security and war issues that skew the issue?).

I also thought I recalled reading in prior polls that that Republican affiliation generally rises steadily with education level until it reaches post-graduate degrees, at which point it falls off, so that PhD's and high school graduates were the two most Democratic groups. I confess that I may be wrong and I cannot find where I read that, so if anyone knows (or knows that I am wrong), please let me know where I can find it.
A different sort of forgery:

Geitner Simmons (Regions of Mind) remembers some Cold War-era forgeries.

Forgeries or not?

 I've generally avoided the substantive question of whether the CBS documents were forged, because I have no special expertise on it, and because others already have it well in hand. But I do want to pass along something that Jim Lindgren, a lawprof at Northwestern whom I very highly respect, sent to me. These are his views, not mine, but they seem to me to be much worth listening to:

The CBS forgeries are in part a generational thing.

While we may never know who forged the documents, it is highly likely that the forger was not an adult in the early 1970s. The forgers, the younger producers at CBS, and some of the younger bloggers who still aren't sure about the documents' authenticity are too young to remember what non-typeset documents looked like in 1972. I remember marveling at how beautiful documents typed on IBM Selectrics looked in the 1970s, but their typefaces and spacing did not come close to approaching traditional typesetting, modern computer fonts, or the forged documents in the flow and spacing of the letters. Many of us can remember when two spaces between sentences were usually typed as two spaces, before computers compressed them (as in MS Word and the forgeries).

The "pseudo-kerning" that is present in MS Word and the forged documents was not available in any IBM machine in the early 1970s. As font expert Joseph Newcomer explains, MS Word Times New Roman tucks some letters under parts of other letters. For example, open MS Word in Times New Roman and type "fr" (go ahead, try it). According to Newcomer, no IBM typewriter or office machine of any brand could do that in 1972. If Newcomer is right about this fact alone (and it certainly fits with my lay recollections of the era), then the documents are "proved" to be forgeries. End of story--CBS has the proof it says it wants. CBS needs only the additional time necessary to establish Newcomer's factual assertion (unless they can find such a nonexistent pseudo-kerning typewriter) before they retract their story and abjectly apologize to Bush and its viewers. And this is only one item in the now extensive evidence of forgery.

In response, there are the statements of new CBS expert Bill Glennon, "an information technology consultant" who repaired IBM typewriters from 1973 through 1985. In its devastating critique of CBS's position, the Washington Post evaluates Glennon's argument:

He [Glennon] said that IBM electric typewriters in use in 1972 could produce superscripts and proportional spacing similar to those used in the disputed documents. . . . Thomas Phinney, program manager for fonts for the Adobe company in Seattle, which helped to develop the modern Times New Roman font, disputed Glennon's statement to CBS. He said "fairly extensive testing" had convinced him that the fonts and formatting used in the CBS documents could not have been produced by the most sophisticated IBM typewriters in use in 1972, including the Selectric and the Executive. He said the two systems used fonts of different widths.

This makes a point that younger commentators in particular have underappreciated. Some have argued that it is not surprising that the purported 1972-73 memos would match modern MS Word pretty closely because both use Times New Roman. Yet as Mr. Phinney explains, he has tested the 1972 machines in question and the spacing is different. Proportional spacing, even with expensive machines in the 1970s, was not the same as the fluid versions in MS Word, as I well remember from working with fancy proportional spacing machines while practicing law in 1979 (machines that were not available in 1972).

It almost goes without saying, as the Washington Post points out, that none of the dozens of other authentic documents that have surfaced from the Texas Air National Guard generally and from Killian himself used proportional spacing of any kind, let alone the kind found in MS Word.

If you doubt that two fonts with the same name line up differently, try this experiment: type and print out a paragraph from one of the CBS forgeries in Times New Roman font in both MS Word and WordPerfect 10 (2002). The CBS forgeries match the MS Word version but not the WordPerfect version. The lines in WordPerfect, using supposedly the exact same font as in MS Word--Times New Roman--do not line up with the lines in the forgeries, not even close. WordPerfect 10 could not have been used to put together the forgeries, but MS Word could have.

Even if Joseph Newcomer were wrong and there were office machines that did pseudo-kerning in 1972, the chances are astronomical that the proportional spacing, superscripts, curved apostrophes, and letter widths would match almost exactly a font that was refined to its present form two decades later.

I think that it was the forger's youth that made him think that he could get away with not even bothering to buy a 1970s era typewriter to do the forging. Imagine what would have happened if CBS hadn't had the decency to post the documents online. Yet if in the next day or two CBS can't admit that they were scammed, then the problems at CBS go much higher up the corporate ladder and much deeper in the news division than we know.

Possible criminal violations by the memo forger

(if the memos were indeed forged): As I'd mentioned a few days ago, it's surprisingly hard to find laws that prohibit this sort of forgery. Using false statements, including forgeries, to get money or many other valuable things is surely illegal. But the law generally does not criminalize lies as such, when what you're trying to get using the lies is a change in another's political opinion, or for that matter likely vote. Maybe that's right and maybe it's wrong, but there it is. I noted a couple of state misdemeanor statutes that bar certain false statements during election campaigns, but they seem like the exception rather than the rule (though perhaps they could be used against this very forger).

Matt (Stop the Bleating!) points to one possible alternative, 18 U.S.C. sec. 912, which says that "Whoever falsely assumes or pretends to be an officer or employee acting under the authority of the United States or any department, agency or officer thereof, and acts as such, or in such pretended character demands or obtains any money . . . or thing of value, shall be [punished]." But this requires not just impersonation but also "act[ing]" as the officer, and lower court decisions, the Justice Department's interpretation, and an inference from the text of the statute (the "demands or obtains" clause, which would be superfluous if any impersonation was per se punishable as "act[ing]") suggest that impersonation isn't enough. (Matt talks more about this, and also explains why the statute covers more than just in-person impersonation.)

Troy Hinrichs points to Texas Penal Code sec. 32.21, which forbids "forg[ing] a writing with intent to defraud or harm another" (emphasis added); Texas Penal Code sec. 1.07 defines "harm" to mean "anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested." Reputational harm would probably qualify, but harm in the sense of becoming deluded about some historical fact and voting the wrong way might not. I doubt therefore that if the writing were forged outside Texas, the forgery would be a crime in Texas, even if Bush (the harmed party) is still a Texas citizen.

Markham Pyle and Simon Stevens point to Texas Penal Code sec. 37.10, which seems to be more clearly on point, since it criminalizes (among other things) "mak[ing], present[ing], or us[ing] any record, document, or thing with knowledge of its falsity and with intent that it be taken as a genuine governmental record." That probably covers things, so long as the memos are treated as "governmental record[s]," though again it's not clear whether Texas would have jurisdiction simply because the records purport to be Texas records (probably, but I'm not sure).

Another reader pointed to this OpinionJournal story, which discusses a seemingly similar incident:

In 1997 ["60 Minutes"] broadcast a report alleging that U.S. Customs Service inspectors looked the other way as drugs crossed the Mexican border at San Diego. The story's prize exhibit was a memo from Rudy Comacho, head of the San Diego customs office, ordering that vehicles belonging to one trucking company should be given special leniency in crossing the border. The memo was given to "60 Minutes" by Mike Horner, a former customs inspector who had left the service five years earlier. When asked by CBS for additional proof, he sent another copy with an official stamp on it.

CBS did not interview Mr. Camacho for its story. "It was horrible for him," says Bill Anthony, at the time head of public affairs for the Customs Service. "For 18 months, internal affairs and the Secret Service had him under a cloud while they established that Horner had forged the document out of bitterness over how he'd been treated." In 2000, Mr. Horner admitted he forged the memo "for media exposure" and was sentenced to 10 months in federal prison. . . .

Sounds on point, but a 2000 news story reports that Horner "pleaded guilty to conspiracy to obstruct a U.S. Senate investigation and to lying to the FBI agents who investigated the memorandum's origin" — what got him wasn't the forgery itself, but the interference with a particular government investigation.

So forgery for purposes of a political hoax (rather than to get money) seems safer than one might have at first thought, though, kids, don't try it at home . . . .

DO "SMART PEOPLE" SUPPORT KERRY? Jim Lindgren writes in with this comment and question on the article I referenced yesterday, which contained the priceless assertion by a Princeton University Professor that he is not surprised that most "smart people" support Kerry.

Jim comments:

Actually, it should be far from obvious that smart people would so overwhelmingly support Kerry, since Republicans have traditionally been better educated than Democrats. In NORC General Social Surveys since 1972, overall Republicans average a full year more of education than Democrats.

But Democrats are catching up. Before 1988, Democrats almost always displayed at least a year less education than Republicans. Between 1988 and 2000, the Democratic educational disadvantage was .55-.86 years of education. Only in the most recent GSS (2002) was the Democratic disadvantage (of .41 years) so small as to be statistically insignificant, yet even in 2002 Republicans were significantly better educated than non-Republicans (both Democrats and Independents combined). Compared to most groups, conservative Republicans are particularly well educated, as are liberal Democrats (who in 2002 report insignificantly more years of education than conservative Republicans). It's moderate and conservative Democrats who have tended to be particularly poorly educated.

If one looks at scores on a short analogical reasoning test or a short vocabulary test, again Republicans in the general public usually score higher than Democrats.

So one question is why are smart people in universities so different from smart people in the real world? And why is there so little political diversity in academia compared to business or government?

So Much for Full Disclosure:

The White House claimed to have all the records relevant to Bush's National Guard service last February (see my prior post on documents here). Now we know that wasn't true (and some were right to suggest the White House was still hiding stuff). At the same time, here's additional evidence that Senator Kerry has not released all of his records either. Enough is enough. Each should simply sign the Form 180 and be done with it.

Update: Several readers have e-mailed in suggesting President Bush has laready signed a Form 180. I had thought so too, but I couldn't find anything on the White House web site or in news stories saying that he had. Rather, all I've found is that Bush ordered that various government agencies release all relevant documents last Feburary. As I understand it, this order was not as all-encompassing as a Form 180 — and the latest disclosures suggest this would be the case. If a reader can provide a citation for the claim that Bush has signed the form, I'll post it. As for Kerry, there is no question he has not signed a Form 180, and there is no question that approximately 100 pages of material (if note more) relating to his military record have yet to be released.

Update: Another reader e-mails:

as a person who has been in the Army Reserves for 30 years, I can tell you that there's always the chance that things are misplaced, especially from the days before computers. Not usually a result of nefarious activity. I'd be hard pressed to put together a complete file of all my stuff, and I have no idea what various document holding facilities might have that I don't, even though one of the first things that was drummed into our heads was to keep copies of all of our records.

Monday, September 13, 2004

"Public Interest and Human Issues":

An interesting category used by a law school to classify its professors (alongside more traditional ones such as "Criminal Law," "Family Law," and "Litigation/Dispute Resolution"). I'd have thought that all law (yes, even animal law) involved, at bottom, human issues . . . .

"DOES IT SURPRISE ME THAT SMART PEOPLE SHOULD BE SUPPORTING KERRY? NO." The words of Princeton computer science professor Andrew Appel, in an article in the Daily Princetonian regarding the heavy pro-Kerry tilt in giving by Princeton faculty and employees. The sole donor to the Bush campaign isn't even a professor, but an employee of the government relations office. Perhaps even more astounding, donations to "Other" (Nader, presumably) amounted to $12,850, outpacing both Bush (a paltry $250) and the RNC ($500) by a substantial margin.

Update:

Sorry, an alert Princeton student pointed out to me that I misread the chart--the "other" line refers to other Republican groups (such as 527's), not other parties or candidates. So the comparison is solely between Kerry, the DNC, and other Democratic groups vs. Bush, the RNC, and other Republican groups--which remains heavily lopsided.
Multilateralism:

Lee Smith (Slate) has an interesting piece on the subject.

Josh Marshall Offers His Thoughts

on the election and the war in Iraq here.

Gun buybacks:

Glen Whitman has a very good post on this, going into considerably more depth than the item below does.

Bye for now.

I've been putting off writing this post, thinking that I was going to have one last burst of blogging-- about the Red Sox or APSA, most likely, since I've certainly got nothing useful and original to say about either the current, unpleasant, stage of the presidential election or the current, worse than unpleasant, state of things in Iraq. But I think it's time to bite the bullet:

I'm taking a leave of absence from blogging, to correspond to my academic leave of absence over the next year. I'm very excited about the fellowship I've been given for the next year; but it increases rather than decreases my workload in my final year before tenure. I want to focus energies on the fellowship and on my ongoing research projects. They have to be my priorities, but they're also what I want to be spending my time on. Accordingly-- no more blogging, no more New Republic.

Some of you will notice that there's little to notice here, because I've blogged so little over the past three months anyways. I guess that's been due to four things. One, I've really thrown myself into the history of political thought part of my research. Unlike when I'm writing about multiculturalism or constitutionalism, that material doesn't generate spillover bloggable ideas. Two, the world in general and politics in particular has been preoccupied with things I had no specialized knowledge about and no real desire to spend my days thinking about. Three, I got tired of hearing myself talk (or whatever the electronic equivalent is)-- I'd gotten into the habit of blogging about lots of stuff whether I had anything original to add or not, something that I'd told myself I would avoid when I first started blogging. And, four, the blogosphere has seemed like a less pleasant place than it used to be, with a pre-election rallying around partisan flags, the growth of venomous comments sections, and the entry or increasing prominence of some bloggers who disdain civility and reasoned exchange.

But anyway, that's why I've been quiet, not why I'm going on leave. The leave of absence is to keep myself focused on the two tracks of academic work I've got going for the next year. 'bye for now...

"Going well":

The BBC reports:

Brazil's federal police force says a government campaign to cut gun crime by offering to buy back weapons is going twice as well as expected.

Police said they had met their target of collecting 80,000 guns in under three months, rather than six months. . . .

Actually, that means that a "government campaign to . . . buy back weapons is going twice as well as expected." In the absence of other data (and the story gives no data), it doesn't remotely prove anything about how the "government campaign to cut gun crime by offering to buy back weapons" is going, no?

Shareholder liability for CBS:

Say that the memos are indeed a hoax. Could CBS be civilly liable in various ways? A bunch of readers asked me this, so I'll try to answer, in several posts. (Please note that I'm getting even more than the usual amount of e-mail on these issues, so some will end up being discarded, or put on the back burner where it will cogneal into a grimy mental mush that I'll eventually throw in the sink rather than trying to rescue and turn into something edible.)

First, as to shareholder lawsuits, I can free ride off the work of others who are much more knowledgeable than I am. My friend and colleague Professor Bainbridge, who is a leading corporate law expert, has all about this. Short answer: CBS will win on this, and it should win on it — do you really want to have huge lawsuits every time someone claims (rightly or wrongly) that some media outlet botched a story?

[NOTE: After posting this post and the three that now appear below, I reordered them so they make more sense when read from top to bottom.]

Loss of FCC license:

A reader writes: "Is it in the public interest for a television station owner to use forged documents to try to remove a sitting politician? . . . Personally, I'd think that if CBS knew or should have known that the documents were forged, license forfeiture for the CBS owned and operated stations would be appropriate."

Yow! Do we really want political bodies, appointed by politicians, stripping broadcasters of licenses because the broadcasters were supposedly negligent (the "should have known" test is a negligence test) in distributing supposedly false documents? If you're a Republican, let me put it this way: Would you have wanted, in the late 1990s, to have an FCC dominated by Clinton appointees stripping TV stations of licenses because they supposedly negligently spread inaccurate information about Clinton?

I think the answer has to be no: This would deter even serious, responsible broadcast news reporting, because broadcasters would be afraid that the FCC would strip their licenses if the FCC concluded that the allegations were false and ngeligent.

That's the logic of New York Times v. Sullivan as to libel lawsuits, which are much more historically established than any such FCC power, and are less likely (though by no means entirely unlikely) to be politically abused. It should certainly apply to license revocations, too. I'm pretty sure that the FCC wouldn't act this way (it may have the statutory authority, under the vague "public interest" standard, but I'm pretty certain they don't exercise this authority this way), and shouldn't act this way.

Libel lawsuits against CBS:

What about libel lawsuits against CBS, some ask — for instance, by Bush himself, by Killian's heirs, or by General Staudt, who was accused in one of those memos of leaning on Killian?

The Killian lawsuit is easy to dispose of: Dead people can't sue for libel; that's the libel rule in all 50 states, to my knowledge (though a few have long-unused criminal libel statutes that cover libels of the dead). Also, it's not clear that the falsehoods (if they are falsehoods) about Killian are defamatory or constitute false light invasion of privacy (an alternate tort), but in any event it doesn't much matter because he's dead.

Bush is obviously a public official. Staudt was once a high-level military officer, which made him a public official and thus a public figure. There's some suggestion in the cases that public figure status might dissipitate after enough time; but the cases that I've seen all point towards the conclusion that former public officials remain public figures indefinitely as to things they allegedly did while public figures. (I think this would apply even if the alleged pressure by Staudt allegedly took place at a time when Staudt had already retired — that goes to the likely falsehood of the statement, but the statement is still an allegation of misconduct while in office.)

So as to both Bush and Staudt, CBS is not liable unless they knew the statements were false, or were aware that the statements were likely false and proceeded in any event (the misnamed "actual malice" standard). I find that extremely unlikely. Even setting aside the moral questions, journalists and news executives must know how horrific for their careers and reputations this sort of scandal might be; and if they knew the statements were likely false, surely they would have been a bit more self-conscious about how suspicious the memos' formatting would look.

That's why, if the memos are forgeries, I strongly suspect that everyone at CBS (or conceivably everyone except one or two highly reckless low-level people who were in on the forgery) simply screwed up. It's a screw-up that might well have been abetted by their political predilections or by a tunnel-vision chase for a hot story. But it was likely an honest, even if unreasonable, error, and that doesn't suffice for liability in a case involving public officials or public figures and matters of public concern.

What about General Hodges, as Eric Rasmusen asks?

The Washington Times says

One retired Guard official, who was Mr. Killian's immediate supervisor, Maj. Gen. Bobby Hodges, was offered up by Mr. Rather as one who would substantiate that the memos were real. But yesterday Gen. Hodges told the Los Angeles Times he thought the memos were fake. One CBS executive said the general, a known Bush supporter, had changed his story.

. . . CBS is saying that the General verified forged documents. Moreover, he is a known Bush supporter, which makes him look pretty stupid and treacherous if he validated documents that were forged to hurt Bush. The General says he didn't do it, though. . . .

The allegation that the General verified the documents, even if false, is likely not defamatory; the allegation that he had changed his story, though, likely is defamatory. They wouldn't be the strongest claims of defamation, since he'd probably have to persuade the jury that he suffered some specific damage as a result of the statements.

But more broadly, even if the General is no longer a public figure (the statements being made about him are not statements about his alleged conduct when he was still serving), he's likely a limited purpose public figure. If he talked to CBS News about the documents, he injected himself into this controversy. Even if he was later misquoted by CBS News itself, he'd still be a public figure for purposes of this debate, so that to recover he would have to prove the CBS knew its statements about him were false (or at least knew the statements were quite likely false). Maybe he could prove such knowing falsehood (e.g., they knew that I hadn't changed my story, so they lied when they said I did change it) plus damages; but that's what he would indeed have to prove, and showing negligence isn't enough.

UPDATE: Someone asked what the chances are of getting an emergency injunction in a libel lawsuit against CBS, to make them stop spreading the alleged libel. The answer is that the probability is much zero -- see the discussion on prior restraints in this article.

But what if someone is lying in a public debate?

The posts above all assume that the people at CBS were at worst negligent (again, assuming they were wrong, which has not been proven but which I'm just assuming for purposes of the legal analysis). But what if someone -- for instance, the forger, or even someone in the media -- does lie in a public debate? What would and should happen then, legally?

As I've mentioned above, some states do criminalize certain kinds of knowingly false statements in public debate. Also, libel law does allow recovery, including punitive damages, for knowingly or recklessly false defamatory statements about public figures on matters of public concern. ("Recklessness" here refers not to being grossly negligent, but to knowing that the statements are likely false and proceeding in any event without adequate checking -- it's closer to knowledge than to negligence.)

Nonetheless, I think we should be wary of prosecution and even litigation even in such situations. Unfortunately, the judicial process is a highly imperfect means of getting at the truth, especially on politically charged questions. Historical matters are best decided, I think, in public debate (for all its flaws) rather than in a courtroom.

Obviously, false statements in political campaigns are harmful to the voters and to our political system. But prosecution seems to me to be a remedy that's worse than the disease -- especially since of course it won't just be the obvious liars who are prosecuted, but potentially anyone who a prosecutor (who often himself has political alliances and political ambitions) thinks is a liar. We all know how often charges of lying are batted about over what ends up being an honest disagreement. And if such prosecutions became routine, lots of people would understandably be deterred from saying even things that are true (or that are opinions).

In some limited situations, where there's a smoking gun -- and there may be classes of cases like that, for instance when people misdescribe their own military record, see, e.g., Pittsburgh Post-Gazette, Dec. 17, 1996, at A10 (discussing prosecution of former Rep. Wes Cooley for supposedly lying to Oregon voters in a ballet pamphlet about his Korean War experience), or when someone forges a document -- the arguments against criminal prosecution might be weaker. Perhaps one could come up with a crisp legal principle, or a crisp political norm for prosecutorial behavior, that would limit prosecutions to such open-and-shut cases. But I'm not sure that this is so, and I wouldn't like the norms to evolve towards using prosecutions as a routine tool whenever prosecutors think that some candidate is lying.

The case for allowing libel lawsuits is stronger, because in addition to the harm to the voters and the political process, there could also be harm to a particular person's reputation and livelihood. Moreover, such lawsuits are certainly firmly historically rooted, and New York Times v. Sullivan, for all its concern about protecting speech both against wrongful punishment and against deterrence by the fear of wrongful punishment, nonetheless preserved such lawsuits in cases where the plaintiff has evidence that the defendant was knowingly lying. (Three dissenters, Justices Black, Douglas, and Goldberg would have completely eliminated libel lawsuits over statements related to matters of public concern, precisely because of a fear that the judicial process will often err in such cases; but the majority, including Justice Brennan and Chief Justice Warren, disagreed.) I can't say that such lawsuits are, or even should be, unconstitutional. Still, I'm not wild about them, because I don't have great confidence in the abilities of juries to decide historical questions.

Finally, note that historically sitting government officials (especially high officials) don't file libel lawsuits even when they think someone has been lying about them. It's often seen as beneath the person's dignity. It's likely to focus the public's attention on the false charges. It's likely to waste a lot of the official's time and attention. And while it may let the official get access to the defendant news organization's internal documents, and force the reporters and managers to testify about what they knew when -- something that might well be quite embarrassing to the news organization, and that might strengthen the official's case -- it also lets the news organization get discovery against the official. The organization might, for instance, require the official to give depositions about other matters related to the controversy (since that would be relevant to whether the charges were substantially accurate even if some aspects of them were clearly literally false), a prospect that many officials might not relish.

So the bottom line: For all these reasons, I think that public criticism, for all its flaws, is a much better remedy for media negligence and even for media, candidate, or commentator lies than is either civil litigation or criminal prosecution.

Breaking News-- Blogging Is Not a Cash Cow:

Thanks to the wizards at the Associated Press for the insight.

Bhagwati on Kerry's Trade Stance: Trade guru Jagdish Bhagwati has a powerful op-ed in today's WSJ (print edition) dissecting Senator Kerry's trade stance, and suggesting that Kerry is not likely to be a free trade president if elected.
How does one forgive him his pronouncements on outsourcing, and his strange silences on the Doha Round of multilateral trade negotiations? Indeed, Sen. Kerry, whose views and voting record were almost impeccable on trade, has allowed himself to be forced into such muddled and maddening positions on trade policy that, if one were an honest intellectual as against a party hack, one could only describe them as the voodoo economics of our time.
Bhagwati notes several reasons to be suspicious of Kerry on trade: 1) his "surrender to the hysteria over 'outsourcing'"; 2) his insistence on the inclusion of enforceable labor and environmental provisions in all future trade agreements; 3) his campaign pledge to review all existing trade agreements (presumably including NAFTA and the WTO) to consider US withdrawal; and 4) his reliance on protectionist and anti-trade constituencies, such as labor unions and environmental groups, that will "insist on their reward" if Kerry is elected. In other words, it may be nice to think that a President Kerry would be a free trader, but the odds are against it. In Bhagwati's words:
In the end, Sen. Kerry cannot totally jilt his constituencies. He will have to claw his way to freer trade, making him a greater hero in a war more bloody than Vietnam. The unions, in particular, are going to insist on their reward. This is forgotten by the many pro-trade policy advisers and op-ed columnists who argue privately that we should not worry -- because Sen. Kerry is a free trader who has merely mounted the protectionist Trojan Horse to get into the White House. The irony of this last position is that it is, in fact, too simplistic. Besides, it suggests that when President Bush does the same thing, he's lying, but that when Sen. Kerry does it, it's strategic behavior! Is it not better, instead, for us to tell Sen. Kerry that his trade policy positions are the pits -- before he digs himself deeper into a pit from which there is no dignified exit?
Bhagwati is harshly critical of Kerry, but he does not celebrate President Bush's trade credentials -- and with good reason. For its first three years, the Bush Administration was rather pathetic on trade. Only recently, most notably with Bush's strong support of the WTO Doha Round negotiations, has the administration done much of anything to advance trade liberalization. If reelected, it is reasonable to wonder whether Bush's trade policy will stay its current course, or revert back to the "fair trade" foolishness of 2001-2003.

If I had to make a prediction, I would say that Bush is more likely to stay true to his current pro-trade liberalization posture in a second term. As I see it, most of the Bush Administration's missteps in this area were motivated by crass political calculations, not a belief that trade restrictions are good policy. Not only did these political moves largely fail -- raising steel tariffs hardly won Bush substantial political support and did little to reduce protectionist opposition to new trade agreements -- they also had deleterious economic effects. In a second term, however, there would be little reason to pander for votes, so there should be less pressure within the administration for protectionist policies. Moreover, traditional Republican constituencies -- while hardly uniform on the issue -- are, as a whole, more supportive of trade liberalization than Democratic constituencies.

For these reasons, I believe that the Bush Administration would be significantly more free trade in a second term than a Kerry Administration. Yet I would also hasten to add that I doubt either administration will satisfy free traders. The current political discourse is simply too hostile to trade liberalization.

Finally, I would note one interesting counter-argument. Many of Senator Kerry's supporters believe US-European relationships would improve under a Kerry Administration. This raises the possibility that a Kerry Administration might be more successful in trade negotiations than the Bush Administration in a second term. It's also possible that this difference could outweigh the extent to which a Kerry Administration would be less free trade. I find this scenario unlikely, but I thought it worth mentioning nonetheless.
Matthew Yglesias on the assault weapons ban:

"[B]ad policy, bad politics, and extraordinarily trivial as a substantive matter." Thanks to InstaPundit for the pointer.

Ogletree Plagiarism Case: The Harvard Crimson reports that noted Harvard law professor Charles Ogletree will be disciplined for plagiarizing the work of Yale law professor Jack Balkin in a recent book. (Hat tip: How Appealing) Professor Ogletree claims the plagiarism was inadvertent, and there is no reason to suspect otherwise. The Crimson story nonetheless suggests that Professor Ogletree did plan to publish the work of others — in this case, his student research assistants — under his own name:
"I made a serious mistake during the editorial process of completing this book, and delegated too much responsibility to others during the final editing process," he said. "I was negligent in not overseeing more carefully the final product that carries my name." . . .

Ogletree told The Crimson that he had not read the passage of Balkin's book that appears in his own work. An assistant inserted the material into a manuscript and intended for another assistant to summarize the passage, according to Ogletree's statement. The first assistant inadvertently dropped the end quote, and the second assistant accidentally deleted the attribution to Balkin before sending a draft to the publisher.

When the draft returned, Ogletree did not realize that it was not his material, he said in the statement.
Prof Ogletree "did not realize it was not his material"? Does this mean he did not realize the words were not his own — in which case his research assistants were taking liberties with his manuscript — or did he simply not realize it was the work of someone other than his research assistants. If the latter, which I believe is the more likely reading of the above, then Ogletree did plan to publish the words of others under his own name.

Of course it is common for prominent figures to use ghostwriters in preparing manuscripts, and many authors include material prepared by — and perhaps even drafted by — research assistants and others. In this Professor Ogletree would hardly be alone. But is this the appropriate standard of scholarship for a tenured law professor? At Harvard? Perhaps I have an old fashioned perspective on these sorts of things, but I am disturbed by the idea of tenured professors at prestigious institutions using research assistants to draft portions of their scholarly work. It this a reasonable view? Or do I have an outmoted view of legal scholarship? After all, attorneys regularly sign documents draftd by others, so why shouldn't law professors do the same?

The Weekly Standard's Joseph Bottum is also troubled by the standard of scholarship suggested by this case. He also notes that the Harvard Law School explicitly warns its students that inadvertence and the press of time are not acceptable excuses for plagiarism.
"Clarification" about machine guns:

Several days ago, the Chicago Sun-Times ran an editorial that begin with this paragraph:

How ridiculous is the notion that private citizens should be able to tote machine guns? It takes someone with extreme positions like Alan Keyes to righteously argue that cause. Most Americans — Democrats and Republicans — are against claiming Second Amendment protections for these guns and support the federal assault weapons ban. . . .

I wrote that this was a pretty serious error: By its explicit terms, the assault weapons ban doesn't cover machine guns, but covers certain kinds of semiautomatic guns -- guns that are actually closer to the typical semiautomatic gun that tens of millions of people own, rather than to machine guns. The argument with which the editorial begins is thus based on an error (the implied claim that the assault weapons ban is about machine guns).

I called and e-mail the Sun-Times about this; they at first told me they'd run my point as a letter to the editor, but I suggested that, if I was right, the situation called for a correction and not just a response. They told me they'd run a clarification, and here it is, from the bottom of the Sunday letters to the editor page:

Clarification

An editorial in the Sept. 7 editions about the need to extend the assault weapons ban included a reference to machineguns. The assault weapons ban covers semiautomatic weapons.

I leave it to readers to decide how apt the Sun-Times' response is.

Thanks to Michael Demmons and the Spoons Experience for the pointer. Note that their response might have well been prompted also by other people's letters -- I refer to my correspondence with them simply because that's all I know about.

Sunday, September 12, 2004

How Wise People Respond to Aggression: Guestblogging over at The Leiter Reports, Jessica Wilson offers advice to Palestinians and supporters of Al Qaeda on how to respond to the military aggression of the Israelis and the United States. She writes:
I am not a wise person, though I aspire to be. But I know how a wise person responds to aggression. When a wise person faces aggression, they do not immediately and blindly strike back, thus potentially initiating a cycle of endless violence and retribution. Rather, they consider why they have been struck. Have they, perhaps, done something to offend the aggressor? If so, muses the wise person, perhaps they might avoid future aggression by removing the source of the offense.
   This seems greatly oversimplified, but surely there is some wisdom there.

   UPDATE: Oops, my mistake! I just realized that Wilson intended this advice for Israel and the United States for how to respond to aggression from the Palestinians and Al-Qaeda, not the other way around. I apologize for the confusion.
Sunday Song Lyric: The Kerry campaign pounced on a new round of charges about President Bush's National Guard service. It even began playing John Fogerty's classic Vietnam protest song, "Fortunate Son." In hindsight, this may have been a questionable move. The song may remind some of Kerry's own anti-Vietnam excesses, while others note John Fogerty himself served in the National Guard. Of course, if the memos at the center of this week's revelations turn out to be politically motivated forgeries — as appears increasingly likely — Kerry may take the blame in the public's eye.

None of this should take away anything from the song, which is one of Fogerty's many classics. It's been misused before, and likely will again. But since it's in the news, it makes for this week's Sunday Song Lyric.
Some folks are born made to wave the flag,
Ooh, they're red, white and blue.
And when the band plays "Hail to the chief",
Ooh, they point the cannon at you, Lord,

It ain't me, it ain't me, I ain't no senator's son, son.
It ain't me, it ain't me; I ain't no fortunate one, no,

Yeah!
Some folks are born silver spoon in hand,
Lord, don't they help themselves, oh.
But when the taxman comes to the door,
Lord, the house looks like a rummage sale, yes,

It ain't me, it ain't me, I ain't no millionaire's son, no.
It ain't me, it ain't me; I ain't no fortunate one, no.

Some folks inherit star spangled eyes,
Ooh, they send you down to war, Lord,
And when you ask them, "How much should we give?"
Ooh, they only answer More! more! more! yoh,

It ain't me, it ain't me, I ain't no military son, son.
It ain't me, it ain't me; I ain't no fortunate one, one.

It ain't me, it ain't me, I ain't no fortunate one, no no no,
It ain't me, it ain't me, I ain't no fortunate son, no no no,

Update: His own National Guard service notwithstanding, Fogerty may be happy with the Kerry campaign's use of the song, as Fogerty signed up with the anti-Bush "Vote for Change" tour and has a new song lamenting the Iraq war. (Thanks to various readers for the tips.)