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Tuesday, September 21, 2004

Something for Everyone: It's hard to imagine a news story that combines sex, crime, elite law schools, civil liberties, and law school loans. But I think we may have a candidate in this story from yesterday's Oakland Tribune. Excerpts:
  Feds seeking $61K from alleged call girl
  No charges filed against Stanford Law graduate who lived in Oakland

  Federal prosecutors argue the government should keep $61,000 in cash seized from an Oakland woman who allegedly worked as a high-priced call girl to repay student loans from her time at Stanford Law School.
  Court documents detail how agents sifted through trash, conducted surveillance, interviewed clients and a colleague, pored over tax returns and surfed the Internet to build a case for keeping money seized from [Jane Doe], 31 — who they say used the name "Brazil" and charged $1,300 for two hours.
  But all jokes about the declining value of a Stanford law degree aside, [Doe] hasn't been charged with a federal crime.
  . . .
  [Doe]'s Web site remained active this week, registered in her name to her former address in Palo Alto; she moved to an apartment overlooking Oakland's Lake Merritt in September 2002, but a security guard at the building Friday said [Doe] no longer lives there.
  The Web site, depicting her in various lingerie-clad poses, describes her as a "Portuguese-speaking entertainer and physical model.
  "The quintessential Gemini, I am an unusual mix of well-educated good-girl and erotic-Bachian-sensualist, with some down-to-earth sweetness thrown in," it says. "I am sure you will never forget any time you spend with me and I look forward to meeting you soon.".
  . . . .
  The government's forfeiture complaint filed in July says [Doe] operated an interstate prostitution business since at least August 2001 — three months after earning her degree at Stanford Law School — by charging up to $1,300 for two hours, $5,000 for overnight and $15,000 for three days to serve clients in the Bay Area, Los Angeles, Washington, D.C., New York City, Chicago and Seattle..
  The complaint says investigators in September 2002 searched trash put out from [Doe]'s Palo Alto apartment, recovering items such as a law book containing $2,400 in $100 bills; bills and invoices from Washington, D.C., hotels; business cards in the name of "Brazil;" condoms; invoices for large cash purchases; tax records; an admission card for the July 2001 California Bar Exam; and a promotional postcard from a Southern California woman.

UPDATE, by Eugene Volokh: I deleted the name some years after the post went up, with Orin’s permission and based on a request from the woman involved and her new husband; now that years have passed and the story is no longer in the news, that seemed like the kind thing to do under these particular circumstances.

House Approves Penalties for False Web Records: Reuters reports:
 The U.S. House of Representatives on Tuesday approved a bill that would increase jail time for identity thieves and other fraudulent Web users who register sites under false identities.
 The bill, which passed by voice vote, would not directly outlaw the use of fraudulent registration information.
 Rather, it would increase by up to seven years the prison terms of those convicted of felonies.
 It must be approved by the Senate before it becomes law.
 Online investigators frequently find that suspects have filled out Web-site registration records with clearly fraudulent information — providing "555-555-5555" as a phone number or "Small Wok Way, Chopstick Town, WI" as a street address.
 As many as 10 percent of the Internet's 30 million domain names may be registered under false identities, according to a study released last year.
 "The government must play a greater role in detecting those who conceal their identities online," said Texas Republican Rep. Lamar Smith, a sponsor of the bill.
This is a potentially interesting development, although I haven't looked at the legislation myself to see whether the Reuters description is accurate. I'll have to check to see if this has a prayer on the Senate side, too.
Christianity Today weblog on Swaggart:

To its credit, Christianity Today magazine's weblog reports (thanks to Patrick Oden for the pointer):

Speaking of televangelists ...

Crouch [a figure from the preceding story] isn't the only TV preacher who needs help with his theology this week. In his September 12 broadcast, Jimmy Swaggart (remember him?) demonstrated exactly how not to oppose gay marriage. "I'm trying to find the correct name for it . . . this utter absolute, asinine, idiotic stupidity of men marrying men," he said. "I've never seen a man in my life I wanted to marry. And I'm gonna be blunt and plain; if one ever looks at me like that, I'm gonna kill him and tell God he died."

One might think that someone who has publicly experienced brokenness in his sexuality might be a bit more careful in his words. In this line of thinking, wouldn't the prostitute that Swaggart hired have been justified in killing him?

Homophobia might be a word thrown about too carelessly by the left, but remarks like Swaggart's are why the word exists in the first place. Let's be "blunt and plain": Biblically speaking, for a Christian minister to make such a comment is at least as sinful as it is for people to engage in homosexual activity.

The Canadian Radio Television Commission is investigating whether the broadcast, which aired on a Toronto station as well as several Christian stations in the U.S., constituted a criminal offense. The station that aired it apologized and called it "a serious breach" of Canadian broadcast regulations.

Jimmy Swaggart Ministries has removed the broadcast from its online archives.

One more related point: Leviticus 20:13 unfortunately does say "If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them." I am very glad that most, likely nearly all, American Christians — and even those who tend to endorse a literal approach to the Bible — do not to my knowledge take this as a literal suggestion to kill homosexuals. I'm sure there are good Biblical arguments for why this passage ought not be taken that way, and I certainly hope that people follow these arguments.

But it seems to me that Christian leaders, especially in those denominations that do often speak about the importance of literal adherence to the Bible — and particularly stress the literal force of the Bible when citing Leviticus 18:22 ("Thou shalt not lie with mankind, as with womankind: it is abomination") as their chief support for less militant opposition to homosexuality — be watchful for other Christian leaders who may have been unduly swayed by the isolated Leviticus 20:13 text, or who may in any event be reinforcing the tendency of some parishioners to focus on the isolated text.

Again, I stress that American Christians, including ones who are relatively literal in their Biblical interpretation, generally do not support killing homosexuals. Yet it seems to me that thoughtful Christians should be aware of the potential of Leviticus 20:13 to do harm (especially, as I said, when citing Leviticus 18:22), and should use those opportunities that arise to warn fellow Christians about it. The Swaggart outburst seems to me one such opportunity.

Anthrax Threat Case: Does sending cornstarch designed to look like anthrax through the mail with the intent to scare the recipient violate the federal threat statute? In a 2-1 decision, the Third Circuit has ruled that the answer is yes. Here's the relevant statute, 18 U.S.C. 876(c):
Whoever knowingly so deposits [in the U.S. mail] any communication . . . addressed to any other person and containing . . . any threat to injure the person of the addressee or of another, shall be fined under this title or imprisoned not more than five years, or both.
In an opinion by Judge Fuentes, the panel ruled that the cornstarch was a communication (because it was designed to communicate a message), and that it contained a threat (both because it would naturally induce fear and because it suggested that additional mailings may be on the way). Judge Stapleton dissented, agreeing that there was a communication but finding no threat:
  I cannot conclude that the message"I have just poisoned you" can constitute a "threat" within the meaning of § 876. Such a message bears no indication that any conduct will be forthcoming by the sender.
  In this case, I have no doubt that a reasonable recipient of Zavrel's envelopes would believe that his health, and even his life, was in danger. That belief, however, could only have arisen from an event that had already occurred, i.e., exposure to the white powdery substance, and not from any future conduct that was yet to be undertaken
My initial sense is that Judge Stapleton has the much stronger argument. Either way, it's an interesting case. Thanks to Howard for the link.
Murder at Harvard?:

An interesting story from today's Washington Post.

More (Deserved) Media-Bashing: It's well-known in the blogosphere that Reuters refuses to call terrorists "terrorists," preferring various euphemisms and evasions.Via Honest Reporting, we get a revealing perspective on Reuters' integrity.

The New York Times reports that Reuters is upset that the CanWest newspaper chain changed a Reuters story to describe the Al Asqa Martyrs' brigade, a Palestinian terrorist group, as "a terrorist group":
"Our editorial policy is that we don't use emotive words when labeling someone," said David A. Schlesinger, Reuters' global managing editor. "Any paper can change copy and do whatever they want. But if a paper wants to change our copy that way, we would be more comfortable if they remove the byline."
Mr. Schlesinger said he was concerned that changes like those made at CanWest could lead to "confusion" about what Reuters is reporting and possibly endanger its reporters in volatile areas or situations.
"My goal is to protect our reporters and protect our editorial integrity," he said.
So there you have it. Remember how CNN admitted that its reports from Iraq were constrained by fear for its reporters safety, as well as concern for access to the country? Now Reuters is admitting that its phraseology on arguably the most important issue of our times is dictated by fear of offending terrorists and their sympathizers. And if something as simple as use of the word "terrorist" is dictated by such fears, do we have any reason to trust that Reuters' coverage of the War on Terror, the Oslo War, and other terrorism-related stories is not being compromised by similar fears?
CBS and the media more broadly:

Mickey Kaus quotes a reader who makes an excellent point — last week, "Sandy Genelius, a network spokeswoman, said, 'We are confident about the chain of custody; we're confident in how we secured the documents'" (I'm quoting the Sept. 14 New York Times). But "[h]ow could they be confident of the chain of custody if, as appears, they never even spoke" to the National Guardsman from whom Burkett claims he got the documents (he now says he got them from some other source that he won't disclose)?

They might have had good reason to go with documents that they thought were properly authenticated (that's a strange thing to think here, but I still assume they did originally think it), even if the chain of custody — the evidence of how they got from the files to CBS — was bad. (I say "might.") But it seems just wrong, and knowingly wrong, to say that they "are confident about the chain of custody" in a situation like this.

On the other hand, who knows? Maybe the New York Times misquoted Genelius. What can one say after the failings of the media (perhaps the inevitable failings of any human institution) have been proven to one so often, at so many levels?

That's what's so sad: Surely the aggregate of Rathergate, the Jayson Blair scandal, the chronic misreporting about assault weapons, or any other individual incident, and everything else we've seen over the last several years — often thanks to the media criticism of blogging (a medium that thrives on media criticism) — has opened our eyes to just how little one can trust what one sees in the news media.

And yet no matter how skeptical one tries to be, one can't double-check everything. We have to trust outside sources. But the same sources that claim to be so trustworthy are, it turns out, often untrustworthy, sometimes in huge ways (falling for outright frauds) but also often in many small ways (media bias, whether political, social, or personal, that repeatedly leads to erroneous and misleading information).

I suspect this has been true all along — it's just that we can't ignore it any more. We have to learn to live with a world of extraordinarily imperfect information. And that's a lot more work than assuming that the media (or at least certain media) is highly accurate.

More on Swaggart:

I continue to feel strongly about the need for ideological movements (whether Christians, liberals, conservatives, and so on) to police their own, and publicly condemn them when they merit condemnation. Nonetheless, I've gotten two kinds of responses that, if factually well-founded, would undermine this as to Swaggart.

First, a couple of people suggested that "kill them and tell God they died" is a colloquial phrase in Texas and Louisiana that is a facetious way of saying "I'm really annoyed by this person" — often someone close to you — but with no real connotation of killing, or even of murderous anger (see, e.g., this book title). I'd never heard of this usage before some readers told me about it; and the context, "And I'm gonna be blunt and plain; if one ever looks at me like that, I'm gonna kill him and tell God he died," with accompanying talk of "abomination" and "utter absolute, asinine, idiotic stupidity," surely didn't seem like good-natured joking about being really annoyed about something. Swaggart's manner also didn't seem humorous, and I suspect that at least people in his Canadian audience (the program was broadcast in Canada as well as in Louisiana) didn't see it as a joke. But I do want to flag the possibility that this was pretty misplaced and callous humor rather than serious anger.

Second, some readers suggested that Swaggart is so marginal that he doesn't merit attention, even negative attention. As reader David Allen colorfully put it,

While I agree with you in general (policing your own, etc), at what point of silly "off the deep end" nutcase do we get to ignore people? I mean, I can ignore the guy on the corner who gets arrested regularly for flashing traffic, saying God told him to, right?

In my book (and a lot of others, I think), Swaggart is a pathetic and previously exposed con-man. How long do we need to pay attention to him?

I was struck by Swaggart's statement because Swaggart was very big in the 1980s; he has been described as "the most popular television preacher of his day", and even accounting for some hyperbole, he was surely near the very top. The prostitute scandals, which led to his being disgraced and apparently disciplined by his own denomination, surely brought him down. But my assumption is that, given his continuing ministry and continuing TV presence, coupled with his past fame, he still has some influence — while many Christians rightly ignore him, he has enough sway with some that he does deserve denunciation. My sense is that anyone who is on television (and not just the 3 am local public access cable) has some potential to do harm.

Still, if my impression based on his past fame is mistaken, and Swaggart today really is a laughingstock with next to no influence, even in the evangelical community (the natural place for him to have some lingering appeal), then I agree that this makes condemning him much less important. Still worth doing, I think, but considerably less imperative.

UPDATE: A couple of readers, in making the second point I was responding to above, suggested that Swaggart was to modern American Christians was like Michael Moore to liberals and Democrats or Pat Buchanan to conservatives and Republicans. If that's right, then it supports my point that Christians should disavow appalling things said by Swaggart. Moore and Buchanan may not be middle-of-the-road Democrats or Republicans, but they do have substantial followings, I believe, within those movements. (Moore more so than Buchanan, I suspect, since Buchanan is generally seen as yesterday's news, but even Buchanan does still seem to enjoy, to the best of my knowledge, some respect from one corner of conservatism.) If Moore says outrageous things speaking as a liberal or a Democrat, or if Buchanan says outrageous things speaking as a conservative or a Republican, then mainstream leaders of those movements should indeed denounce them -- both to help stop such outrageous sentiments from spreading, and to protect the good name of the ideological movement generally.

On the other hand, if Swaggart is a much more marginal figure, like Lyndon LaRouche -- an analogy another reader drew -- then denouncing him becomes less important.

Cell Phones:

Love'em or hate'em, cell phones have changed our daily experiences over the last decade. Christine Rosen has authored a thoughtful essay, Our Cell Phones, Ourselves, that considers some of those changes:

But if this ubiquitous technology is now a normal part of life, our adjustment to it has not been without consequences. Especially in the United States, where cell phone use still remains low compared to other countries, we are rapidly approaching a tipping point with this technology. How has it changed our behavior, and how might it continue to do so? What new rules ought we to impose on its use? Most importantly, how has the wireless telephone encouraged us to connect individually but disconnect socially, ceding, in the process, much that was civil and civilized about the use of public space?

Monday, September 20, 2004

Flip Side of Bush Protest Arrests:

While the recent case of Sue Niederer looks kind of bogus when put under the microscope, it is worth pointing out that other cases are not so bogus. In particular, this case from July looks like a legitimate case of a couple being arrested for their anti-Bush speech. The ACLU has recently brought a lawsuit in the case, complaint available here, so I suspect we will hear more about it.

Justice Scalia the Pragmatist?: Tonight I attended a lecture by Justice Antonin Scalia, entitled The Courts and Democracy, hosted by the Ethics and Public Policy Center here in Washington, DC. Scalia hit on a number of his usual themes: the dangers of a living Constitution, the tension between democracy and expansive judicial interpretations of the Constitution, etc. But I was interested in the degree to which his vision was essentially pragmatist, or to be more specific, formalism justified by pragmatism. Here's my best recollection of his basic argument, along with a few comments.

  Scalia began by discussing how in the late 19th and early 20th century, it was broadly believed that the problems of a complex industrial democracy needed to be resolved by "experts." If only you could have an "expert" resolve difficult questions, people figured, then you could get a neutral nonpolitical answer to difficult political questions. In time we have realized that this doesn't work, Scalia noted. Political questions often boil down to policy preferences, and experts have no greater insight into the "right" policy preferences than any one else. These are questions with no right answer, and experts have no advantage in resolving them.

  Scalia then suggested that our faith in judges today is similar to our faith in experts decades ago. We expect judges to have answers to the great moral questions of the day. The trouble is that judges are not moral experts; they are just lawyers. Judges can dress up moral judgments in a legal opinion in a way that seems very impressive. The form of a legal opinion can create an illusion of expertise in the question (this is my language, not Scalia's). But in fact judges have no greater insights into moral questions than anyone else. Scalia went on to discuss some of the provisions of the European Union human rights laws, which task judges with enforcing broad moral standards. The difficulty with this approach, Scalia suggested, is that it presupposes that judges have special insight into morality. Because judges do not have any special insights into such questions, it is better to leave them to the democratic process. Scalia then went on to discuss the benefits of an originalist approach to constitutional interpretation; among those benefits was that it did not embroil judges in all sorts of moral questions that they had no ability to answer.

  I haven't read all of Scalia's writings, but my sense is that his rationale for judicial restraint in the context of moral questions was more pragmatist than his usual approach. That is, Scalia didn't say that courts should defer to the democratic process in the context of moral questions because for better or worse the Constitution commands it. Primarily he argued that courts should defer because they are institutionally poorly equipped to resolve those types of questions. This may be my quirky and idiosyncratic reaction to Scalia's address — if any VC readers were present and think I am mispresenting Scalia's speech, please contact me — but I found his reliance on pragmatist themes a bit surprising.

  I don't think the lecture will be broadcast or published, but there were a number of journalists present who I gather will be filing reports shortly.

  UPDATE: Here is Hope Yen's Associated Press story on the speech. It doesn't mention legal theory. Go figure.
Jimmy Swaggart, unclear on the Ten Commandments:

Swaggart says this about homosexuals:

I'm trying to find the correct name for it . . . this utter absolute, asinine, idiotic stupidity of men marrying men. . . . I've never seen a man in my life I wanted to marry. And I'm gonna be blunt and plain; if one ever looks at me like that, I'm gonna kill him and tell God he died.

The audience laughs and cheers, though when Swaggart is saying the "I'm gonna kill him" part, he sure doesn't seem to be joking. Andrew Sullivan points to the program, available here; check out the material starting at around 36:00 — I watched it, and the transcript is right. Later, as Andrew says, "Swaggart also claims he has nothing against 'the poor homosexual,'" except that he seems to think it's fine to kill them.

There's apparently talk about the Canadian government trying to punish this, since it was broadcast in Canada. I don't support that, and I'm quite sure that the First Amendment wouldn't allow such speech to be punished in the U.S.

But it seems to me that decent Christians ought to condemn this defender of murder, who publicly says that he'd violate the Ten Commandments when someone "looks at [him]" the wrong way, while purporting to preach God's word and lead Christian congregations. Tell us, at least, that this supposed Christian — who was once one of the nation's leading evangelists, until he was tripped up by another of the Commandments — doesn't speak for you.

UPDATE: Sweeney A. (Res Ipsa Loquitur) writes:

Eugene is certainly right that ethical people should condemn [Swaggart's] words, but one wonder's about Eugene's implication that this moral stain is automatically conferred to other Christians until they renounce it. One might say that for a Christian who has heard this comment to consciously refuse to renounce it is a tacit endorsement. That may be true, but the very terms in which Volokh has couched the ultimatum is unfair.

Since advocating murder because a gay man looks at you wrong is an obvious violation of the Christian ethic, why should Christians, qua Christians, feel obligated to renounce the remarks any more than people who share the last name of Swaggart?

For the record, I condemn the remarks, but Volokh's post was an unfair example of guilt by association.

Christianity is a belief system — not just an involuntary status such as race or ethnicity, but a consciously chosen belief system that is based on certain writings and certain traditions. Historically, Christians have often stressed the importance of those writings, which supposedly provide something of an objective standard of behavior, and of a Christian community, which helps enforce this behavioral standard. In recent decades, many Christians have also tried to downplay denominational differences (say, between Protestants and Catholics), and to stress the common purpose of those who follow Jesus's teachings.

When someone who is a Christian minister, and still something of a Christian leader, makes a claim about what Christian scriptures mean, it seems to me that those Christians who condemn his views — and condemn them as deeply evil, rather than just subtly or slightly wrong — do have a responsibility to speak out. Though this man calls himself a Christian leader, they should say, his is not the Christianity that we endorse. That, I think, is needed for them (1) to better educate their own children (whom they've presumably raised to have at least some respect for Christian leaders), (2) to diminish the chance that their fellow parishioners will be seduced from the righteous path by this Christian leader's cachet, and (3) to make clearer to the non-Christian world that the Christian mainstream does not endorse this interpretation of Christian scriptures.

That's not guilt by association: I do not condemn people simply because those who share their religious affiliation advocate bad things. I do expect Christians (or, in analogous situations, Muslims or religious Jews), as people who care about the reputation of Christianity and of the Christian community of belief, to want to tell the world: "True Christianity, as I understand it, doesn't endorse such atrocities" (and, in particular, doesn't follow Leviticus 20:13, "If a man also lie with mankind, as he lieth with a woman, both of them have committed an abomination: they shall surely be put to death; their blood shall be upon them"). And when people don't object to what is done in the name of their religion by those who claim to share it — when they don't express any interest in the religion's being tainted by the views of those who speak on its behalf — then I do wonder whether those people might in fact agree (or at least not strongly disagree) with those who purport to speak on their religion's behalf.

As to Swaggart's actions being "an obvious violation of the Christian ethic" — well, since so little is obvious in religion and in scriptural interpretation, it seems to me that non-Christians would understandably like some assurance from other Christians that this is indeed so. And Christians should try to remind those, like Swaggart and apparently some of his congregation, that they are indeed obviously wrong, and are undermining Christianity's reputation.

FURTHER UPDATE: I've gotten a bunch more messages along the vein of the one I quote in the UPDATE above; but I'm still of the view that I expressed originally.

I'm not asking for anything much — I'm simply saying that Christians should be outraged at Swaggart's essentially slandering their religion, and should denounce his views, to make clear that his views (though purportedly Christian) are not mainstream Christian views. Swaggart calls himself a Christian; was once a very prominent minister; continues apparently to have some influence; and purports to interpret the Bible. His statements are representations of what Christianity is supposed to be about. I would think that Christians would want to denounce those representations, and the closer they are in denomination to him (e.g., Protestants, evangelical Protestants, etc.), the more they would want to do that.

This is the standard that I use for members of my ideological movement — when Republicans say outrageous things, it seems to me that we Republicans ought to condemn them, to try to redeem the movement's good name. Careful readers of this blog will notice that I have done this in the past, and that many other Republicans have done it as well. This is one of the responsibilities of being part of an ideological movement, of urging others to join your movement, and of praising the movement as good for society: You need to police your own, or those who purport to be your own. Not an onerous responsibility, or an unreasonable imposition, it seems to me.

FURTHEST UPDATE: See above.

"Speech as Conduct":

I'm glad to say that my Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances," and the Uncharted Zones is now off my desk and sent to the law reviews. Now I can move on to some new projects (the chief one likely being Freedom of Speech and Child Custody).

CBS statements:

Drudge was indeed right. Here's the official Rather statement:

Last week, amid increasing questions about the authenticity of documents used in support of a "60 Minutes Wednesday" story about President Bush's time in the Texas Air National Guard, CBS News vowed to re-examine the documents in question-and their source-vigorously. And we promised that we would let the American public know what this examination turned up, whatever the outcome.

Now, after extensive additional interviews, I no longer have the confidence in these documents that would allow us to continue vouching for them journalistically. I find we have been misled on the key question of how our source for the documents came into possession of these papers. That, combined with some of the questions that have been raised in public and in the press, leads me to a point where-if I knew then what I know now-I would not have gone ahead with the story as it was aired, and I certainly would not have used the documents in question.

But we did use the documents. We made a mistake in judgment, and for that I am sorry. It was an error that was made, however, in good faith and in the spirit of trying to carry on a CBS News tradition of investigative reporting without fear or favoritism.

Please know that nothing is more important to us than people's trust in our ability and our commitment to report fairly and truthfully.

Here's the CBS statement on Bill Burkett's role in all this:

Bill Burkett, in a weekend interview with CBS News Anchor and Correspondent Dan Rather, has acknowledged that he provided the now-disputed documents used in the Sept. 8 "60 Minutes Wednesday" report on President Bush's service in the Texas Air National Guard.

Burkett, a retired National Guard lieutenant colonel, also admits that he deliberately misled the CBS News producer working on the report, giving her a false account of the documents' origins to protect a promise of confidentiality to the actual source.

Burkett originally said he obtained the documents from another former Guardsman. Now he says he got them from a different source whose connection to the documents and identity CBS News has been unable to verify to this point. Burkett's interview will be featured in a full report on tonight's CBS Evening News with Dan Rather . . . .

And here's more from CBS.

Icky:

A reader writes, apropos the various posts on homosexuality:

I think the basic problem is simple: many people find anal sex to be gross. Unfortunately, in thinking so, people seem to very carefully overlook the reality that pretty much EVERY form of sex is pretty darn gross from the standpoint of "finer sensibilities." It's just that human lust seems to be in part designed to help overide such considerations and carefully change the subject from "hygine" to "hell yeah!" Some blinders seem built in to the human psyche, and, I guess, thankfuly so.

I've always thought that if people applied otherwise applicable standards of ickiness to sex or to food, no-one would ever enjoy either. (Do you know what's crawled all over that carrot? Do you know how many microscopic bugs there are on that sandwich?)

Drudge posts purported Rather statement:

The Drudge Report reports:

EXCLUSIVE // Mon Sep 20 2004 11:58:02 ET STATEMENT FROM DAN RATHER:

Last week, amid increasing questions about the authenticity of documents used in support of a 60 MINUTES WEDNESDAY story about President Bush's time in the Texas Air National Guard, CBS News vowed to re-examine the documents in question—and their source—vigorously. And we promised that we would let the American public know what this examination turned up, whatever the outcome.

Now, after extensive additional interviews, I no longer have the confidence in these documents that would allow us to continue vouching for them journalistically. I find we have been misled on the key question of how our source for the documents came into possession of these papers. That, combined with some of the questions that have been raised in public and in the press, leads me to a point where -- if I knew then what I know now -- I would not have gone ahead with the story as it was aired, and I certainly would not have used the documents in question.

But we did use the documents. We made a mistake in judgment, and for that I am sorry. It was an error that was made, however, in good faith and in the spirit of trying to carry on a CBS News tradition of investigative reporting without fear or favoritism.

Please know that nothing is more important to us than people's trust in our ability and our commitment to report fairly and truthfully.

I don't know whether this is authentic -- I guess we'll hear soon enough if it isn't.

Thanks to reader Stephen St. Onge for the pointer.

More on liberals and moral relativism:

Many thanks to all those who responded to my Friday post on moral relativism and liberals. I'm guest-blogging at GlennReynolds.com this week (though I'll still be posting more often here than there), and I've posted a much elaborated version of my post there. I hope the version responds to most of the objections that I've gotten, though I hope to blog some more responses here later today.

Kerry supporter vs. Bush supporter on medical malpractice reform,

at PointOfLaw.com. See the first pro-Kerry post (from Ron Chusid, Doctors for Kerry) and the first pro-Bush post (from Ted Frank, a lawyer and coblogger at OverLawyered.com).

Pleading guilty:

I got an e-mail from a blogger mentioning this post, which faults Mayor Bloomberg for urging arrested protesters to plead guilty. The newspaper article about Bloomberg's statements says:

Everyone arrested during the Republican convention "might as well just plead guilty and go on" rather than take their fight to court, Mayor Bloomberg said yesterday.

Hundreds of people who were arrested during the GOP convention last month claim they were wrongly detained, abused by cops and held longer than necessary in order to keep them off the streets.

But Bloomberg insisted that there's no proof that the NYPD did anything wrong. "There is absolutely no evidence whatsoever that there was any intent by any law-enforcement official to hold people any longer than was absolutely necessary to process them," he said before marching in the Mexican Day Parade on Madison Avenue.

Bloomberg pointed out that many protesters who were arrested have already pleaded guilty. "I suspect that most of them [did so] because they know they don't have a case," he said. "They broke the law . . . They might as well just plead guilty and go on."

The poster proceeds to call Bloomberg and his remarks, a "jackhole," an "unmitigated moron," an "idiot," an "impaired imbecile," "limitless[ly] stupid[]," a "buffoon," "clunkhead," "inane," and "plain dumb." Why? Here's the argument, shorn of the rhetoric. Because of the principle "Innocent until proven guilty," "the Fifth and Sixth Amendments," and "[t]he government['s being] required to prove its case beyond a reasonable doubt," it's somehow wrong for the mayor to even urge — not force, but just urge — people to plead guilty.

Not much of an argument, it seems to me. Certainly people who are guilty — recall that Bloomberg's assertion, which the poster does not criticize on the facts, is that the people are indeed guilty — are entitled to plead not guilty and demand a trial. But government officials are equally entitled to suggest that the cases against them are strong, and that it's better for them as well as for the city to admit their guilt.

What's more, presumably Mayor Bloomberg believes that the protesters are not only legally guilty, but also morally culpable. If so, then he is certainly free to argue that it's even morally better for them to admit their guilt, rather than to waste New York taxpayers' money and city officials' time and effort challenging the prosecution.

That one has a constitutional right to do something (whether it's to publish a racist manifesto, burn the American flag, get an abortion, have ten children that one can't afford, own a gun, or plead not guilty) doesn't mean that government officials are somehow "idiot[s]" for arguing to people that the better — better for the person, better for the City, and better morally — course of action is not to exercise that right. Naturally, one may disagree with them on the merits, by explaining why one thinks the person should indeed exercise the right; but simply saying that it's a constitutional right hardly resolves the question whether it's right, moral, or wise for the person to exercise it.

But beyond this, if I'm right and the poster is mistaken (and that the Mayor's position is at least defensible, whether or not one thinks it's clearly correct), wouldn't it have been a little more prudent for the poster to have made his objection more calmly? First, this might have made it easier for him to notice that while the post was long on rhetoric, it missed an important logical step — the explanation for why having a constitutional right to demand a trial should lead one to think that it's improper for government officials to urge people not to exercise that right. And, second, I know that I'd be less embarrassed to have made an error when the error led me to say "this is why I think the Mayor is mistaken" than when it led me to throw a bunch of personal insults.

CBS seems ready to admit at least partial error in Rathergate:

The New York Times reports that

After days of expressing confidence about the documents used in a "60 Minutes" report that raised new questions about President Bush's National Guard service, CBS News officials have grave doubts about the authenticity of the material, network officials said last night.

The officials, who asked not to be identified, said CBS News would most likely make an announcement as early as today that it had been deceived about the documents' origins. CBS News has already begun intensive reporting on where they came from, and people at the network said it was now possible that officials would open an internal inquiry into how it moved forward with the report. Officials say they are now beginning to believe the report was too flawed to have gone on the air.

But they cautioned that CBS News could still pull back from an announcement. . . . The developments last night marked a dramatic turn for CBS News, which for a week stood steadfastly by its Sept. 8 report as various document experts asserted that the typeface of the memos could have been produced only by a modern-day word processor, not Vietnam War-era typewriters. . . .

[O]fficials decided yesterday that they would most likely have to declare that they had been misled about the records' origin after Mr. Rather and a top network executive, Betsy West, met in Texas with a man who was said to have helped the news division obtain the memos, a former Guard officer named Bill Burkett.

Mr. Rather interviewed Mr. Burkett on camera this weekend, and several people close to the reporting process said his answers to Mr. Rather's questions led officials to conclude that their initial confidence that the memos had come from Mr. Killian's own files was not warranted. These people indicated that Mr. Burkett had previously led the producer of the piece, Mary Mapes, to have the utmost confidence in the material.

It was unclear last night if Mr. Burkett had told Mr. Rather that he had been misled about the documents' provenance or that he had been the one who did the misleading. . . .

Another Detail Maureen Dowd Missed: This is an update to yesterday's post on Maureen Dowd's Sunday New York Times column No Stars, Just Cuffs, about "Sue Niederer, 55, of Hopewell, N.J., [who] got handcuffed, arrested and charged with a crime for daring to challenge the Bush policy in Iraq." It turns out that the charges against Niederer were dismissed by the Mercer Country Prosecutor, who wisely exercised his prosecutorial discretion and declined to prosecute the case. In a published statement, the County prosecutor explained:
  It is our determination that the police officers had more than enough probable cause to arrest Ms. Sapir-Niederer and were justified in the their actions . . . Taking all factors into consideration, including the recent loss of her son while serving in the armed forces in Iraq, I believe that the continued prosecution of this matter would serve no useful purpose.
  Perhaps the most interesting part of this is the timing. Niederer interrupted the Laura Bush rally and was arrested on Thursday; the prosecutor declined to prosecute, had the charges dismissed, and released his statement explaining the decision on Friday. Maureen Dowd's column describing how Niederer was arrested and charged to "squelch" her speech appeared two days later, on Sunday, without any mention that the charges against her had been dismissed already.

  To be fair, Dowd does not say anything in her column about Niederer being prosecuted; she limited the description to Niederer's being handcuffed, arrested, and charged. That is factually true. So here, unlike with Dowd's statement that Niederer left voluntarily, my concern is with completeness, not inaccuracy. I realize that Dowd's column is an opinion column rather than a news article, but the fact that the charges against Niederer had been dismissed already seems worth pointing out in the story.

Sunday, September 19, 2004

What he said:

I just read Larry Solum's post on hypotheticals that Orin praised, and I agree: It's a great post that every incoming law student — and maybe even some who have been in school for a year or two — should read.

UPDATE: Or to really persuade you, following the lead of Larry's post itself, it's a great post. It's a great post. It's a great post. (And, no, I'm not going to explain this.)

Hypothetical Questions:

Over at Legal Theory Blog, Larry Solum has a terrific post on why law professors ask hypothetical questions. If you're a first-year law student, or just interested in legal education, be sure to check it out.

Forthcoming books about historian scandals:

Ralph Luker has notes on two recent books on the subject, which cover Ambrose, Bellesiles, Ellis, and more.

From the Grapevine's preliminary look at galleys, it appears that Hoffer [one author] finds larger patterns of plagiarism in the work of Ambrose and Goodwin than they were initially charged with. He does apparently find Bellesiles guilty of having committed fraud. And he does, apparently, find the personal deceptions of Joseph Ellis having crept into his otherwise distinguished published work. A more ominous note, suggesting that Hoffer has spread his net far beyond Ambrose, Bellesiles, Ellis, and Goodwin, makes me think that historians . . . will glance at the packaging, take it to our offices, close the door behind us, and check to see if our names appear in the index. . . .

Maureen Dowd's Police State: Maureen Dowd's latest New York Times column, "No Stars, Just Cuffs," describes what appears to be a terrible violation of the First Amendment:
  In World Wars I and II, gold star mothers were the queens of their neighborhoods, the stars in their windows ensuring that they would be treated with great respect for their sacrifice in sending sons overseas to fight and die against the Germans and Japanese.
  Instead of a gold star, Sue Niederer, 55, of Hopewell, N.J., got handcuffed, arrested and charged with a crime for daring to challenge the Bush policy in Iraq, where her son, Army First Lt. Seth Dvorin, 24, died in February while attempting to disarm a bomb.
  She came to a Laura Bush rally last week at a firehouse in Hamilton, N.J., wearing a T-shirt that blazed with her agony and anger: "President Bush You Killed My Son."
  Mrs. Niederer tried to shout while the first lady was delivering her standard ode to her husband's efforts to fight terrorism. She wanted to know why the Bush twins weren't serving in Iraq "if it's such a justified war," as she put it afterward. The Record of Hackensack, N.J., reported that the mother of the dead soldier was boxed in by Bush supporters yelling "Four more years!" and wielding "Bush/Cheney" signs. Though she eventually left voluntarily, she was charged with trespassing while talking to reporters.
  The moment was emblematic of how far the Bushies will go to squelch any voice that presents a view of Iraq that's different from the sunny party line, which they continue to dish out despite a torrent of alarming evidence to the contrary.
  Sounds bad, doesn't it? As Brian Leiter puts it in his understated way, "Sieg heil, American style"? It seems bad enough that I began to wonder if it could have been quite as bad as Dowd suggests. I know this will shock VC readers, but a bit of google and Westlaw research suggests it wasn't.

  To begin with, I am unsure how Dowd reaches the conclusion that Niederer "eventually left voluntarily." According to Niederer herself, as reported here, as soon as she started shouting "it became chaotic and I was pushed and shoved." "[Secret Service agents] engulfed me. It wasn't plain, ordinary folks, but people in suits with earphones." The Secret Service agents escorted her to the exit of the building. Once near the exit, Niederer "refused to leave," according to this CNN.com report:
  As the Hamilton police and Secret Service agents surrounded her and reporters pressed her with questions, she held her ground, claiming "I had my ticket" to attend the speech by the first lady.
  Police subsequently handcuffed her and she was led away to a nearby van. As she was escorted, she repeatedly shouted "Police brutality" and demanded to know her rights and the charges.
  Later, she was charged with defiant trespass and released.
  Hmm, so much for leaving voluntarily. Well, what about the basis for the trespass charge? Was Niederer's arrest a flimsy pretext for suppressing anti-Bush views, as Dowd suggests, or was there a solid basis for a trespass charge? We get a few more details of the facts from the New York Daily News, which reports Niederer's description of what happened as follows:
  "The police said I was trespassing because I was blocking an exit from the hall while I spoke to reporters," [Niederer] said.
  "I said how could I be trespassing when I had an entry card to be there? This is a democratic country. I should have the right to say what I want at all times, and not be arrested because my thoughts are different to the President's."
  . . . .
  "The police were very nice to me," she said. "I don't think they wanted to arrest me, but they did what they felt they had to do. I'm expecting the charge to be dismissed."
(This is an aside, but is anyone else struck by the fact that Niederer "repeatedly shouted 'police brutality'" while she was being arrested but soon afterwards volunteered that "the police were very nice to me"? Oh well, back to the story.) We get still more details about Neider's theory of why she was not trespassing from the Asbury Park Press:
  "I had a ticket to get in," said Niederer, adding that Hamilton police kept her ticket as evidence. "I was in there legitimately."
  Niederer said she obtained a ticket by going to Republican campaign headquarters Tuesday, as a local newspaper had advised readers to do. She said some campaign workers recognized her as an outspoken anti-war activist, but still gave her a ticket. No one stopped Niederer when she checked in by name at yesterday's event.
  Okay, those are the facts, let's now turn to the law. Niederer was charged under New Jersey's defiant trespasser statute, N.J.S.A. 2C:18-3(b), which prohibits leaving private property after the owner/operator of the property has told you to leave:
  Defiant trespasser. A person commits a petty disorderly persons offense if, knowing that he is not licensed or privileged to do so, he . . . remains in any place as to which notice against trespass is given by . . . [a]ctual communication to the actor.

  Defenses. It is an affirmative defense to prosecution under this section that . . . [t]he structure was at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the structure[.]
  Under New Jersey precedents, it seems likely that Niederer violated this provision. The fact that she had a ticket to enter the firehouse for the speech doesn't answer the question, as permission granted can also be revoked. For example, in State v. Brennan, 344 N.J.Super. 136, 780 A.2d 585 (N.J. App. Div. 2001), the defendant became disruptive at a public meeting and was told by the police to leave. The defendant refused, and was charged and convicted of defiant trespass. The Appellate Division affirmed the conviction, holding that refusal to obey a reasonable police order to leave violated the statute:
  Although defendant had been lawfully on the premises, when the police officers asked him to leave, that privilege was revoked.
Id. at 146. Similarly, in State v. Dargon, 165 N.J.Super. 500, 398 A.2d 891 (N.J. App. Div. 1978), union representatives were granted permission to come to a private hospital to represent the union prior to the opening of a unionization vote. When the polls opened, the representatives decided to stay to monitor the vote. After they were asked to leave and refused, the representatives were arrested and charged with defiant trespass. The Appellate Division affirmed the convictions:
  Although defendants entered the premises with the permission of the hospital for the limited purpose of the preliminary representation of the Association prior to the opening of the polls, the hospital authorities had the right to ask them to leave the building thereafter. And whether they were in the lobby or elsewhere in the building, their deliberate and persistent refusal to leave pursuant to the several requests rendered them wilful trespassers within the interdiction of the foregoing statute.
Id. at 503-04.

  Based on these precedents, it seems that the ticket Niederer received to attend the speech did not give her an inalienable right to stay on the premises. Although we don't know the facts with enough specificity to know for sure, it seems that once she was told to leave by officers acting reasonably within the scope of their duties, Niederer's permission to remain was revoked.

  But did Niederer actually know that she did not have permission to stay on the premises? The statute was not violated unless Niederer knew that she was "not licensed or privileged" to remain on the property. Niederer knew that she had been told to leave, but presumably will claim that she didn't know that being told to leave was enough to make her presence unauthorized. However, under New Jersey law what matters is her knowledge of the relevant facts, not Niederer's beliefs that the ticket trumped as a matter of law: "Neither knowledge nor recklessness nor negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense, unless the definition of the offense or the code so provides." N.J.S.A. 2C:2-2(d). Although I couldn't find any cases on point, my understanding is that this means that Niederer can be prosecuted if she knew she had been told to leave by the authorities, even if she had a good faith (but incorrect) belief that the ticket gave her a legal right to remain on the premises.

  Of course, this doesn't mean that Niederer should be prosecuted. I have tremendous sympathy for her situation; she has suffered a tragic loss. But at least on the facts that we know, Maureen Dowd's statement that Niederer was "handcuffed, arrested and charged with a crime for daring to challenge the Bush policy in Iraq" seems a bit hard to square with reality.

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.