Saturday, November 13, 2004

2004 election in New York City and suburbs:

The Galvin Opinion reports:

New York City 2000: 398,726
New York City 2004: 544,359
Difference: +145,633

NY Suburbs 2000: 607,224
NY Suburbs 2004: 720,719
Difference: +113,495

New York City 2000: 1,703,364
New York City 2004: 1,653,767
Difference: -49,597

NY Suburbs 2000: 865,926
NY Suburbs 2004: 815,412
Difference: -50,514

Thanks to InstaPundit for the pointer.

An Update

on the Chief. Thanks to Howard for the link.

Debunking the most common vote fraud rumors.--

As the New York Times indicated yesterday, internet rumors of vote fraud in Florida based on Democratic registration counties voting Republican were quickly spread and quickly debunked. Here is a nice summary by Howard Troxler (tip Instapundit) of some of the most common internet rumors about the election:

At any rate, here are some of the top claims, and the factual basis that lies beneath them. (A tease: A couple of them are actually true!)

CLAIM: Voting patterns in some Florida counties were suspicious because Bush got many more votes than the number of registered Republicans.

Several impressive-looking charts and graphs are flying around. MSNBC's Keith Olbermann singled out five Florida counties for what he called a "sudden" outbreak of "irregularities:" Baker, Dixie, Holmes, Lafayette and Liberty.

In those counties, Republicans make up only 7 to 24 percent of registered voters. But Bush won there with between 64 and 78 percent of the vote.

How can this be? Easy. They are northern "Dixiecrat" counties where being a registered Democrat but voting Republican is an old habit. The same counties voted overwhelmingly for Bush in 2000, and his father in 1988 - when registered Republicans made up as little as 2 percent of the electorate!

By the way, to make this claim, the conspiracy folks have had to contend that voting was more suspicious in counties without electronic machines.

CLAIM: Touch screen machines in Broward County started "counting backwards."

No, they didn't. The voting machines in the precincts worked fine.

Broward's central vote-counter was not programmed to expect more than 32,000 votes in any single precinct.

With the limit exceeded, the running totals in four races (all constitutional amendments) did, indeed, start declining.

Observers quickly noticed it. It got fixed. The accuracy of the individual voting machines was never in question. Nobody's vote was a "negative" that subtracted from the vote totals.

CLAIM: Palm Beach County reported getting more votes for president than the total turnout.

No, it didn't. The initial voter-turnout figure on the state's Web site didn't include absentees, that's all.

CLAIM: Several hundred ballots in Seminole County were "mysteriously" wet and could not be read.

Sort of. About half of 1,500 blank ballots in one precinct, at a church, got wet and nobody knows how. They got more ballots. Nobody was denied.

CLAIM: There was a suspicious difference between the exit polls and the final results.

My goodness! All of a sudden the art of polling, which my Democratic friends were insisting was unreliable right up until the election, is now is to be taken as gospel. Exit polls are "never wrong."

The exaggerations continue to grow. Kerry's lead in the exit polls keeps getting bigger. The polls' margin of error keeps getting smaller.

The Florida exit polls from Election Day are lined up on my desk. The biggest lead Kerry had was 51-49. The last update showed 50-50. The actual result was 52-47. Within the margin of error. Sorry.

CLAIM: In some precincts, voting machines started Election Day with "extra" votes already added.

This one actually was started by Republican poll watchers in Democratic precincts in Philadelphia. They even summoned the District Attorney's Office for a raid. They were entirely mistaken.

Here's the kicker: Over the past week, the Republican angle has been stripped away, and I have heard several Democrats complaining about machines starting out with extra votes.

CLAIM: A machine in Franklin County, Ohio, recorded an extra 3,893 votes for Bush.

This is perfectly true, and one of at least two serious machine mistakes around the country. When the results cartridge of an older-generation machine was plugged in to the counter, it reported almost 4,000 extra votes for Bush, when only 638 people had voted in the precinct.

At the risk of being labeled part of the plot, I want to point out that they caught this obvious mistake. You can't "stuff' the ballot box. There is a signed, independent record of how many people voted.

CLAIM: Kerry really won Ohio.

There are still 155,000 or so uncounted provisional and absentee ballots. If by some miracle Kerry got almost all of them, he would win. A miracle.

Furthermore, there also were 93,000 "spoiled" ballots in Ohio that, had they gone to Kerry by a miraculously large margin . . . uh, well, still wouldn't have been enough. By the way, there were fewer undervotes and overvotes than in 2000.

CLAIM: Electronic voting machines in Carteret County, N.C., mysteriously "lost" more than 4,500 votes - most of the votes cast in the county election!

This one is true, too, and disturbing. According to the Carteret County News-Times, the county's machines counted only the first 3,005 votes and didn't count the rest.

The Carteret screwup didn't change the presidential outcome, but a couple of state races were close enough to be affected. Besides, the standard of "no harm, no foul" is not good enough. But I would point out that even this mistake was obvious and immediately detected.

Prostitution vs. President Bush:

Reader Gerald Kanapathy writes:

Along similar lines to your item on Montana voting for medical marijuana but also for Bush, take a look at the Churchill County, Nevada election results:

The county had a vote on whether to continue to allow legalized prostitution, or to ban it. (In Nevada, outside of Vegas and Reno, the decision to regulate is made at the county level.)

It went Bush 72%, Kerry 26%. (First item on the page.) But it went 63% to keep prostitution legal. (Last item on the page.)

He also notes that "This was almost a purely symbolic/moral vote, with little economic value at stake, since there are currently no brothels operating in the county, nor have there been for several years."

Naturally, this doesn't mean that Republicans generally support medical marijuana or legalized prostitution; of course this will vary from region to region. But it does suggest that many Republicans, while not hard-core libertarians, are open to libertarian solutions to various problems.

And the same may even be true of those who are culturally conservative in many ways; I doubt that most Montanans are enthusiastic about marijuana generally, or that most residents of Churchill County would want their daughters to become prostitutes. My guess, though, is that they believe that marijuana is not an unalloyed evil, and that, given the cost and relative ineffectiveness of outlawing prostitution, it's better to keep it legal than to outlaw it.

Libertarian-leaning Republicans politicians can keep this vote Republican. Fiscally conservative libertarianish Democrats can peel it away. It's helpful for politicians in both parties to know that.

Related Posts (on one page):

  1. Prostitution vs. President Bush:
  2. Medical Marijuana vs. President Bush:

I wish more people knew this word, in part because then it could be used more effectively to admonish people (and especially lawyers and politicians who go on for paragraphs while saying nothing). According to, it means "To discourse at length in a pompous or boastful manner." And to my knowledge, there are no good and more familiar one-word synonyms.

UPDATE: Some people suggest "pontificate," which also refers to pompous talk; but I think "bloviating" suggests something more verbose than merely pontificating.

Medical Marijuana vs. President Bush:

M. Simon (Power and Control) points out that Montana voted for Bush 59-39, but for medical marijuana 62-38 (see CNN's Montana election results page).

Related Posts (on one page):

  1. Prostitution vs. President Bush:
  2. Medical Marijuana vs. President Bush:

Brannon Denning and I had a delightful conversation at AEI on the Supreme Court wine cases, followed by an terrific discussion of the medical marijuana cases as well. Or as the moderator put it, "For today's purposes, alcohol is just a gateway to marijuana." For interested readers, you can find my collected VC blogs collected into one document here, and Prof. Denning's contrary analysis here.

In that context, I wanted call interested readers attention to an excellent new article by Prof. Denning on the historical background to the dormant Commerce Clause which documents the presence of interstate discrimination during the Confederate era that underpins the nondiscrimination principle of the Commerce Clause. The historical research, synthesis, and analysis is exhaustive and persuasive.

Arafat. Godfather of Terror:

A new one-minute film from sums up the legacy of the founder of modern terrorism.

With one despot already gone, another Middle East despot may not survive much longer, according to a report from the indispensible "With its military falling apart and all its traditional sources of foreign aid drying up, the Syrian dictatorship is sliding closer to revolution, and disaster."

Friday, November 12, 2004

A new OAH Report on Academic Freedom.--

The Organization of American Historians (OAH) has issued a rather superficial report on academic freedom. Ralph Luker and KC Johnson have interesting comments.

UPDATE: David Beito at Liberty & Power agrees with Luker that the OAH makes much of the Patriot Act, but fails to mention campus speech codes, which result in almost daily restrictions on academic freedom. When most historians get around to figuring out that they can't even interview other historians, let alone any subjects of their research, without first getting approval from IRBs (human subjects committees), then they might begin to realize where the much more widespread government restrictions on academic freedom are coming from.

Great Slate series about the Marines in Iraq.
[Rick Sander (visiting), November 12, 2004 at 3:05pm] Trackbacks
Affirmative Action in Law Schools:

Entry Four: What Would the Black Bar Look Like With a Reduction or Elimination of Law School Racial Preferences?

Perhaps one of the reasons that few legal academics have delved very far into the issue of law school racial preferences is the widespread assumption that, whatever the other costs and benefits of the system, admissions preferences are the only way to racially integrate the bar. The claim that has been repeated many times - and which figured prominently in the Grutter briefs -- is that black enrollment in law school would drop 50-90% if preferences were abolished. Since a decline of that magnitude seems unimaginable, so does a serious questioning of admissions preferences.

In my research, I found that the usual method academics use to project admissions in a race-neutral world is seriously flawed. Most such projections assume that minority students will continue to apply to the same schools - and only those schools - if preferences disappear. But if preferences are large, and minorities (blacks in particular) take preferential policies into account in deciding where to apply, then it is necessarily the case that minority applications will overwhelmingly be rejected in a race-neutral world.

If one instead asks what proportion of the black applicant pool would be admitted to some law school under a race-blind system, one gets a much rosier result. A 2003 study by Dr. Linda Wightman (who headed LSAC's research operations for many years) found that 86% of blacks admitted to law school in 2001 would have qualified for some law school under a race-blind system. That number has risen sharply over the past decade, because of a steady rise in the number of black applicants and a gradual but steady narrowing of the black-white credentials gap.

Now, recall that in my research I found racial preferences tend to systematically lower black performance in law school, black graduation rates, and black rates of success on the bar exam. Only 45% of entering blacks under the current system graduate and pass the bar exam on their first attempt; another 12% pass the bar on some later attempt. I estimate that the 45% figure would rise to 74% under a race-blind regime. If the pool of entering black law students shrinks a little, but their survival rate rises sharply, it's not hard to see why we might well end up producing more, not fewer, black lawyers in a race-blind system. My best guess is that the total number of blacks passing the bar on their first attempt would rise about 22% in a race-blind system; the number passing after multiple attempts would rise 9%.

The emphasis here should be on the word "guess". Obviously, no one knows what would happen to black interest in attending law school in a world without preferences. There might be a surge of interest in a law school world where blacks perform much better, have much higher chances of success on the bar, and dispense with any stigma from affirmative action. There could be an erosion of interest if blacks are faced with attending less elite schools or if many blacks view the end of preferences as a signal that they are unwelcome. I would hope that my findings, and those of other researchers, would reassure black applicants that going to less elite schools is an excellent career move for them, but of course no one knows. My simulations make the neutral assumption that the total volume of black applications won't increase or decrease.

The stories I've read about my article almost invariably cite the "9% increase in black lawyers" projection and infuse it with an air of artificial precision. That's unfortunate, though perhaps inevitable given the exciting aura such a claim carries with it. I'm really trying to make two other points. First, the end of preferences clearly no longer implies a massive hit to the production of black lawyers. The claims of a 50-90% decline were misleading nonsense. (My most vocal critics are now suggesting a 25-35% decline.) I will defend my 9% increase as a much better guess, but the important point is that the range of debate has shifted.

Second, there can be no question that in a race-blind system, the black bar would be healthier in a number of ways. The proportion of practicing black attorneys who have failed the bar at least once would fall from 22% to less than 10%, and black scores on bar exams (even for those who pass the first time) would be dramatically higher. The median earnings of black attorneys (at least for the early career years I have measured) would be significantly higher, and blacks would be distributed across job sectors in a way much more similar to white patterns. And of course, many, many fewer black law students would spend years earning a degree that failed to gain them admission to the profession. With all this said, I am not at all convinced that a total elimination of preferences is the best way to go. It's certainly the cleanest solution, and perhaps the only one that policy-makers could legislate. But I think there are a variety of alternatives worth exploring. Consider, for example, what I call the "4% solution." Suppose that all law schools agreed that, if they use racial preferences for blacks, they would not apply those preferences to more than 4% of the class. Schools would of course continue to admit all blacks who qualified without preferences, so the 4% would be a floor, not a ceiling.

The beauty of the 4% approach is that it breaks the cascade effect. The top ten law schools would presumably fully use the 4%, and would thereby preserve more racial diversity at the top than we would have (at least initially) in a race-blind system. But the next tier of schools would now have many black applicants who formerly went to top-ten schools; they would be significantly less reliant on preferences. In the third tier and below, preferences would be nearly irrelevant. Enough blacks would have shifted down-market so that schools would have very substantial black enrollments (often larger than current black enrollments) with minimal or no preferences.

This approach has several advantages. It effectively confines the aggressive use of preferences to the top tier of schools, where the academic mismatch is most benign in its effects. It blunts the fear of those who believe that the most talented blacks will shift to other fields if they are unlikely to attend top-ten schools. It mitigates the diversity impact on the most elite classrooms, and provides some reassurance that pipelines of talented blacks into prestigious clerkships and legal academia remain open.

My hope is that, by developing some rough consensus on how to model the systemic effects of affirmative action, we can have a much richer dialog and can identify and test possible compromises, like the 4% solution, that break the ideological logjam.

***Thanks to readers who have sent me comments and questions. On Monday, I'll respond to a number of these.***

Happy News:

The faculty at my law school voted to recommend me for tenure this afternoon. It will take a few months for the recommendation to work its way through the university administration, but this was the major hurdle. Off to celebrate.

Bench Memos and the Ninth Circuit: Legal Affairs has hosted a debate this week about the pros and cons of splitting up the Ninth Circuit. The debate raises an interesting question: why is it that an unusually high number of Ninth Circuit decisions can be characterized as outliers? I am interested less in the occasional high-profile opinions than in the run-of-the-mill cases. In my experience, at least, it is not uncommon to research a legal issue and find cases from several circuits all holding one way, and then a Ninth Circuit decision going the other way. Why is that? Proponents of dividing the Ninth Circuit often point to the court's size, but I have a pet theory: the problem with the Ninth Circuit isn't so much its size as its bench memos.

  First, a bit of background. The usual practice on the Court of Appeals is for each of the three judges on an appellate panel to task one of his or her law clerks to author a bench memo for each case. (A bench memo is a memorandum from a clerk to a judge explaining the facts of the case, the lower court decision, and the relevant precedents, as well as recommending a rationale for resolving the appeal.) Some judges do not require formal bench memos, but most task their law clerks with taking an independent look at the record and the law of each case. Judges don't follow bench memos blindly, of course. But because many appellate cases are poorly briefed by the litigants, a law clerk's memo can have a significant influence on how a judge looks at the case. In most circuits, the practice of each judge assigning a clerk to write a bench memo means that by the time of oral argument, three different sets of judges and clerks have taken the case apart and put it back together.

  My understanding is that the Ninth Circuit works a bit differently. When a Ninth Circuit panel is scheduled to hear a case, one chambers is assigned the task of writing a single bench memo that is shared with the other two judges and their clerks. It's a time-saving device; a single clerk does the work, freeing up the other chambers to work on other matters. While the other judges on the panel are free to ignore the shared memo, or to require their clerks to write separate memos, in many cases that one bench memo sets the tone for what the panel is likely to do with the case.

  My pet theory is that the Ninth Circuit's bench memo practice explains some of its quirky opinions. When only one chambers takes a ground-up view of a particular case, the other two chambers are less likely to notice when the bench memo is missing something important. In a run-of-the-mill case, the common memo lets other chambers be a bit less careful about researching the case. Being a bit less careful, they are less well equipped to point out a flaw in the memo's reasoning or possible inconsistency with other cases. If nothing in the memo jumps out as clearly incorrect and the judges do not disagree sharply on the outcome of the case, no one on the panel will notice if the bench memo is a bit off. The judge whose chambers generated the memo is more likely than not to be assigned the opinion, and the resulting opinion is likely to reflect a good chunk of the initial bench memo.

  I don't want to overstate the case. The Ninth Circuit's bench memo practice is probably only one factor among several in explaining its tendency to generate somewhat quirky rulings. Many Ninth Circuit opinions are excellent, and I am sure many Ninth Circuit judges do not defer to memos from other chambers. At the same time, my guess is that the Ninth Circuit's bench memo practice has at least some role to play in generating some of the Circuit's more idiosyncratic rulings.
More on dejected Kerry voters going to psychotherapists:

The L.A. Times has a story (thanks to Cathy Seipp for the pointer, and for the amusing link to the movie The Grudge). My favorite line from the L.A. Times story comes from psychologist Alan Hilfer:

"They're allowed to be angry. They're allowed to be frustrated . . .," said Hilfer. "And they should talk about it. But they need now to move on."

That's the advice many liberals would likely give to conservative friends who were complaining about "feeling helpless and paralyzed and sad" -- or traumatized, depressed, and so on -- because of a Democratic victory (and, yes, such Democratic victories have been known to happen in the past, and I'm sure they'll happen again). It seems to me that it ought to work equally well for liberals.

Vote fraud claims and blogs:

The New York Times writes about how claims that the election result was affected by vote fraud were made on various blogs, and how they were then rebutted, also often on blogs.

Letter To John Perry Barlow From A Pot-Smoking Deadhead Bush Voter: This letter on Dean's World says it all. A few of the great quotes:

"A lot of us grew up being told to question authority, and a lot of that authority we now question is the left-wing orthodoxy of your generation..."

"In other words, I've experienced firsthand just how hateful, intolerant, and irrational you guys can be when someone dares to question your beliefs. You guys often come off exactly like the theocratic mullahs and the lock-step fascists you claim to hate (but which you, oddly enough, don't seem willing to use American power to try to overthrow)."

"You guys may have whipped a bunch of dumbass kids into a rage by feeding them Michael Moore style hate-propaganda, but you equally p----- off a bunch of other folks in the process who showed up to vote just to spite you guys for being such mean-spirited, reactionary, paint-by-numbers, bigoted, closed-minded jerks."

"It reached a point for a lot of us that on election day, we were doing more than just saying 'We want to re-elect George Bush.' When we pulled that lever for Bush, we were also just plain saying 'F--- YOU!'"

Were Deadheads who question the authority of the official Questioners of Authority among the micro-groups which Karl Rove targeted? Has the independent Question Authority voting bloc become a counterforce against the Politically Correct authority which proclaims its love for diversity and tolerance, but is more intolerant of intellectual diversity than any other large group in the United States?
Supreme Strategy: The New York Times has a story purporting to offer an inside scoop of the Administration's strategy for future Supreme Court nominations:
  Republicans close to the White House said on Thursday that the choice of Alberto R. Gonzales as attorney general was part of a political strategy to bolster Mr. Gonzales's credentials with conservatives and position him for a possible Supreme Court appointment.
  These Republicans said Mr. Gonzales had been widely viewed as one of President Bush's top choices for the court. But by first sending him to the Justice Department, they said, Mr. Bush could then nominate a conservative favored by his political base to fill the first vacancy that arises.
  . . .
  The strategy, which Republicans said was in large part the work of Karl Rove, the president's chief political adviser, would clear the way for Mr. Bush to make his first nomination to the Supreme Court a trusted conservative, thus showing gratitude to his political base for the large role they played in giving him a second term.

Thursday, November 11, 2004

Mark Bauerlein on "Liberal Groupthink" in the Chronicle of Higher Education.--

Mark Bauerlein, "a professor of English at Emory University and director of research at the National Endowment for the Arts," has a long essay on liberal dominance of the universities.

Elsewhere I have suggested a thought experiment. Imagine that law faculties were 80% Republican and leaning Republican and 10% Democrats and Democratic leaners. Would Democratic professors think it not worth doing something serious about? One senses in the extreme responses to the Republican victories in the 2004 election that Democratic law professors might be quite disturbed if Republicans were in the overwhelming control of their own workplaces.

Burlein's conclusion in the Chronicle is interesting:

Those reasons are, in brief: One, a wider spectrum of opinion accords with the claims of diversity. Two, facing real antagonists strengthens one's own position. Three, to earn a public role in American society, professors must engage the full range of public opinion.

Finally, to create a livelier climate on the campus, professors must end the routine setups that pass for dialogue. Panels on issues like Iraq, racism, imperialism, and terrorism that stack the dais provide lots of passion, but little excitement. Syllabi that include the same roster of voices make learning ever more desultory. Add a few rightists, and the debate picks up. Perhaps that is the most persuasive internal case for infusing conservatism into academic discourse and activities. Without genuine dissent in the classroom and the committee room, academic life is simply boring.


Stephen Bainbridge says that appointing Alberto Gonzales

the Attorney General would make him more, rather than less, likely to be appointed to the Supreme Court. I'm not so sure. But I do agree that the opposition to Gonzales would be muted for either position because he is more moderate than almost any other likely nominee. The brief clip that I saw from the press conference, however, didn't make him look too impressive, but maybe I didn't see the best parts of Gonzales's performance.

A few days ago, I floated Gonzales as a likely Supreme Court nominee, especially if teamed with a more conservative Justice. Bainbridge seems to agree.

>CNN photo:

Related Posts (on one page):

  1. Stephen Bainbridge says that appointing Alberto Gonzales
  2. Who is next for the Supreme Court?--
Zogby's Implausible Analysis of Catholic Voters:

Pax Christi, one of the leading organizations of the Catholic Religious Left, is touting a new Zogby poll which headlines "Catholic voters ultimately turned-off by single issue messaging of conservative Catholic leaders." Horsefeathers.

According to the Philadelphia Inquirer, Bush lost the Catholic vote 47-50 in 2000, and won the Catholic vote 52-47 in 2004, for a net Catholic gain of 3.3 million votes--a rather substantial contribution to Bush's 3.5 million margin of victory. Bush's strongest Catholic support came from Catholics who attended Mass weekly.

The Zogby/Pax Christi spin reminds me of the many polls which claim that there are more voters who will support a candidate because he is a strong gun control advocate than who will oppose him because they support gun rights. Many politicians, including Al Gore, have entered early retirement because they believed those polls. The actual behavior of voters is a much more reliable guide about how people vote.
[Rick Sander (visiting), November 11, 2004 at 2:13pm] Trackbacks
Affirmative Action in Law Schools

Entry Three: Black law graduates in the job market

(My apologies for posting my planned Wednesday post today)

Tuesday, I wrote about some of the perverse effects racial preferences have upon blacks in law school and on the bar. There was already some awareness that some of these problems existed, though most of my colleagues were surprised by their scale and by the tendency of preferences to exacerbate existing gaps. But it has been almost universally believed that an unmitigated blessing of racial preferences, from the perspective of black beneficiaries, is the entrée preferences give to good jobs. Since employers like to hire new attorneys with famous name-brands, giving blacks boosts into more elite schools is thought to enhance greatly their marketability and, eventually, their power and position in the legal hierarchy.

A new database that I describe in my article provides the first nationally representative data on young lawyers and their jobs. Although the data is not perfect, it makes it possible to weigh the effect of over a dozen background factors in shaping the types of jobs new lawyers get. Analyses of the data show, quite strikingly, that employers care — and care a lot — about how job-seekers did in law school. Law school prestige is important, but for law graduates as a whole, good grades are a much more powerful predictor of getting a higher-paying job than the eliteness of one's school.

What this implies about racial preferences is not completely obvious. One needs to estimate both how much of an "eliteness" boost the typical black applicant gets in the admissions process, and how much the average black student's law school GPA would go up if admissions were race-blind and the student went to a lower-ranked school. Both calculations are difficult, and subject to some debate. That said, I think the general pattern is fairly clear. Anywhere outside the most elite schools, new black lawyers are hurt by preferences more than they are helped. For a typical black graduating from a middle-ranked law school, the grades/prestige tradeoff that goes with affirmative action lowers her earnings by about twenty percent.

I found that at the most elite (top ten) law schools, blacks gain enough from the enhanced prestige of their school to roughly offset the grade disadvantage. This seems intuitively plausible, too. Yale, Harvard and Stanford are universally known as blue-chip schools, while many employers won't know what distinctions to draw between Fordham, Iowa and Case Western. And it is probably true that some very elite employers largely limit recruiting to the top ten schools. But even at the top, I was unable to find a clear net plus for blacks from preferences — just a wash.

One might suppose that some employers use grade cutoffs, in part, as a device to discriminate against minority job candidates. This may be true for some, but the general pattern is just the opposite: legal employers pay a premium to recruit junior black lawyers. In other words, when one controls for lots of background characteristics, new black lawyers earn seven to nine percent more than other lawyers with comparable backgrounds (I found no similar premium for Hispanic or Asian attorneys). Blacks with high GPAs do extremely well in the market regardless of where they went to school.

But there's the ironic rub. Law school preferences create a situation where high-GPA blacks are a rare commodity. Blacks with very low GPAs - or even worse, blacks who have failed a bar exam once or more - are very common, and they are penalized substantially in the job market.

One by-product of this state of affairs is the large concentration of black lawyers in government and in small firms. Part of this seems to reflect personal preferences; there's a variety of evidence that black lawyers, on average, do more pro bono and community service than the average white lawyer and are more inclined by personal philosophy to work in government. But the concentration is also partly due to the preferences/low grades connection. Black law graduates with grades at the middle of their class or higher have a pattern of early careers that more closely resembles the white pattern than the pattern of other blacks. Jobs with local government agencies or small firms are sometimes a last resort for students with poor grades - and this is a choice blacks face far more often than they would in the absence of large admissions preferences.

My findings about the job market tradeoff between school eliteness and grades have implications for all law students, not just blacks. The implication of my findings is that going to the best law school one gets into - a strategy almost everyone seems to follow - may not be a very good strategy at all. It is important for students to realistically assess how well they will do at the schools that will have them, and to pick a school where they are likely to be at least in the middle of their class. Middle- and low-tier law schools, under this view, deserve a lot more respect than the very hierarchical world of legal education tends to accord them.

One to Remember:

A very cool post by occasional VC-guest-blogger Eric Muller.

Federal Appellate Circuits:

Judge Kozinski sent me this, responding to Orin's post that in turn responded to Judge Kozinski's and Judge Thomas's anti-Ninth-Circuit-splitting op-ed:

Orin Kerr makes an excellent point about the desirability of merging circuits. Merging circuits would probably result in increased efficiency, and ensure the delivery of a variety of services that are now unavailable in smaller circuits — such as Bankruptcy Appellate Panels, appellate mediators and appellate commissioners. Any merger proposal would, however, face a series of political obstacles. The judges would be required to cover a larger territory than they're used to, and merger would inevitably cause some to lose seniority and possibly forego a chance at becoming chief judge. States, too, may feel reluctant to become part of a larger circuit, where they may hold hold less sway. We know that this is the likely reaction from the relatively modest proposal a few years ago to add Arizona to the Tenth Circuit. Doing so would have upset the Tenth Circuit's seniority structure and the judges there let it be known that they were opposed — and that killed the proposal.

Orin's point — whether genuine or ironical — does not address whether splitting the Ninth Circuit makes sense. Merger of other circuits might be a good idea or it might not be, but the fact that circuit merger is not under serious consideration reflects mainly political inertia.

Related Posts (on one page):

  1. Federal Appellate Circuits:
  2. Split the Ninth Circuit?

Wednesday, November 10, 2004

Arafat is finally declared dead.-- The MSM are reporting that Arafat was declared dead Wednesday night (in France before dawn on Thursday). According to Debka, it was earlier agreed that Arafat would be declared dead on Tuesday night or Wednesday, but there was a last-minute snag in the plans when a Muslim cleric (Sheikh Taissir Tamimi) declared that Arafat was still alive. It wasn't clear whether the cleric was telling the truth or was simply being obstructionist or if he was confused by the fact that Arafat's heart and lungs were kept working by the ventilator. In any event, the latest flap seems to have pushed the declaration of death to after midnight Wednesday night.

According to the uncanny but not always reliable Debka, here are some of the details (to be taken with a grain of salt). Here was part of Debka's Tuesday story:
The confusion surrounding Arafat's condition for eleven days - officially alive, unofficially dead - was to be sustained a little longer - mainly to save Mrs Arafat's face.

The settlement allowed a funeral to be arranged on "Orphan Friday" of Ramadan, November 12 (as DEBKAfile reported earlier) - unless a new crisis pops up. Our sources have seen some of the principle terms of the Palestinian accord with Suha Arafat.

1. This clause has already taken place. Before the Palestinian delegation which visited the hospital left Paris, foreign minister Nabil Shaath again assured the media that Arafat is still alive and "his brain, heart and lungs are still functioning." This was necessary to prove Suha Arafat had not lied when she appeared that morning live on Arabic TV Al Jazeera to accuse those same officials of conspiring to bury her husband alive. The deal provided for the announcement of Arafat's death to be held back for late Tuesday night or Wednesday, November 10.

2. The widow will attend the funeral. Abu Mazen insisted on her following the Palestinian leader's bier for the sake of appearances.

3. Last July, Arafat sent his wife $11 million to cover her living expenses and those of their daughter for six months - $1.8 million per month. The new accord guarantees her the same allowance from the Palestinian Authority as a regular annual remittance, i.e. $22 million per annum, for the rest of her life. Abu Mazen and prime minister Ahmed Qureia (Abu Ala) signed on the dotted line, although they have no notion how the penniless Palestinian Authority faced with a people in dire poverty can possibly stump up this kind of money.

DEBKAfile's Paris sources offer an exclusive peek at Suha Arafat's lifestyle in the French capital. She owns a smart villa on one of the most elegantly affluent streets in the world, Rue Fauborg St. Honore, while also maintaining a lavish private suite at the five-star Hotel Le Bristol, which after a multimillion dollar refurbishment claims to outclass the Paris Ritz, the Four Seasons and even George V. The upkeep of the Bristol suite she maintains for "business" was included in her widow's "pension."

After the Palestinian officials settled with Arafat's wife, Shaat went before the media to admit that Arafat had been in a deep coma since last Wednesday, November 3, meaning that all the Palestinian communiqués since then, describing him laughing with doctors, reading the Koran etc., were arrant falsehoods. He ruled out poisoning and cancer as the causes of Arafat's illness and laid the blame for his "digestive disorders" on - who else? Israel, whose army had besieged Arafat's quarters and forced the 75-year old leader to subsist on too little oxygen and in poor sanitary conditions.
Wednesday's Debka story:
Wednesday night [Israeli time], November 10, Yasser Arafat's grotesquely protracted demise had just about reached breaking point when two things happened.

The Fatah-Tanzim stirred up anti-Israeli riots in Jerusalem and West Bank under the slogan: "Arafat's heritage is the gun" and "the Jews Poisoned Mohammed, they killed Arafat."

Then followed an announcement by Palestinian foreign minister Nabil Shaath: Arafat's brain is functioning only partially. All his organs but for his heart and lungs have failed.

These events capped a day which saw another twist in the drawn-out cliffhanger of Yasser Arafat's demise which started 13 days ago. The senior Palestinian Muslim cleric Sheikh Taissir Tamimi who was dispatched to the Percy hospital in Paris to perform the last rites, took one look at Arafat in his hospital bed, and came out to tell the world media that he was alive. Shutting down life support system to which the Palestinian leader had been connected for 12 days is absolutely forbidden by Islam, he declared, and promised to stay by his side and pray for his recovery.

Adding to the disarray, Palestinian Paris envoy Leila Shahid announced Arafat was in the final stage of his life. ...

All the arrangements went forward Wednesday at a brisk pace - funeral invitations, procession route, burial ceremony, tomb, new leadership. The only thing missing as the tense hours ticked by in Ramallah was the death announcement and a body. ...

Until Tuesday, Mrs. Arafat was the obstacle to her husband's demise. Then, two senior Palestinian officials, Ahmed Qureia and Mahmoud Abbas, negotiated an outrageously exorbitant settlement for her future in return for her permission to disconnect the machines. Wednesday, the white-turbaned Palestinian sheikh turned the wheel back to the starting point.
The Politics of Corporate Crime Legislation:

If corporations are so powerful, why are there so many corporate crime laws on the books? Lawprof Vik Khanna offers his thoughts in a very short and readable article available here.

Happy Birthday

to the U.S. Marines.

"Kerry Supporters Seek Therapy in South Florida":

From the Boca Raton News (with thanks to Dan Gifford for the pointer):

More than a dozen traumatized John Kerry supporters have sought and received therapy from a licensed Florida psychologist since their candidate lost to President Bush, the Boca Raton News learned Monday.

Boca Raton trauma specialist Douglas Schooler said he has treated 15 clients and friends with "intense hypnotherapy" since the Democratic nominee conceded last Wednesday. "I had one friend tell me he's never been so depressed and angry in his life," Schooler said. "I observed patients threatening to leave the country or staring listlessly into space. They were emotionally paralyzed, shocked and devastated." . . .

Some mental health professionals in South Florida said Monday they have already developed a new category for the Kerry-related stress reactions. Because Palm Beach County voted heavily for Kerry, the therapists said, many residents hurt themselves by so anxiously expecting the Massachusetts senator to win -- especially those who maintained unrealistic recount hopes after their candidate's concession.

"We're calling it `post-election selection trauma' and we're working to develop a counseling program for it," said Rob Gordon, the Boca-based executive director of the American Health Association. "It's like post-traumatic stress syndrome, but it's a short-term shock rather than a childhood trauma."

Gordon, the first American Red Cross psychotherapist sent to Ground Zero after the 9/11 terror attacks, said therapists' main concern is to prevent the recurrence of Kerry-related suicides like the one in New York City. . . .

Also in Boca, at least one counseling center and an emotional support group were preparing for an influx of Kerry supporters at their first post-election meetings today. . . .

Schooler, practicing in Boca since 1984, said he treated his 15 patients last week with hypnosis-based rapid response trauma therapy. This week, he is charging a sliding fee to non-clients who feel they need the one-time "election therapy" session. South Floridians can contact him at 561-395-3033. . . .

I'd take this story with a grain of salt, though the phone number they gave for Dr. Schooler does seem to check out. In any event, I'm passing it along for whatever it's worth.

What about Tom Coburn? Several readers have pointed out that Milbank was probably referring to newly elected Senator Tom Coburn when he suggested Republicans would seek the imposition of the death penalty for abortion providers on the Diane Rehm show today. As I noted in my initial post, some pro-lifers do advocate this extreme position, and Coburn is among them. Nonetheless, I still believe Milbank's statement was inaccurate and quite misleading. (In fairness to Milbank, however, I should note that his statement was slightly different than what I quoted from memory in my prior post.)

Here is Milbank's comment in full, which I have transcribed from the streaming audio of the program (at 29:25 on the Realaudio stream):
In a way I think the Roe v Wade question is a bit of a red herring in that it's a long term issue. We have a whole lot of legislative issues on abortion, parental consent, fetal pain legislation, some favor the death penalty for abortion providers, efforts to stamp out all abortions in the second trimester. These are legislative issues that are much more near term than the eventual Roe v. Wade decision.
Some might argue that Milbank made an accurate statement, as Coburn does favor the death penalty for abortionists, and said so during the campaign. But this ignores the context. Milbank listed "the death penalty for abortion providers" as "much more near term" than the potential reversal of Roe . This is patently false - as Milbank almost certainly knows. It would be possible to impose any criminal punishment, capital or otherwise, on abortion providers until such time as Roe is overturned (if it ever is).

More broadly, it is highly misleading to suggest that every fringe position held by every member of a party's congressional delegation is an active "legislative issue." Would it be fair for Republicans to run ads claiming that a Democratic takeover of Congress would place every crazy idea embraced by Rep. Maxine Waters on the agenda? Could the GOP claim that reelecting Rep. Dennis Kucinich would mean there would be "near term" debate over creating a "Department of Peace"? Of course not. Milbank is a highly educated and quite experienced political reporter, and he should have known better than to make such a comment.

Related Posts (on one page):

  1. What about Tom Coburn?
  2. Executing Abortionists?
Jewish and Israeli Symbols Excluded from Anti-Racism March Marking Kristallnacht:

Quite troubling, if accurate. Jan Haugland (Secular Blasphemy) reports:

Norwegian anti-racists yesterday were marking the 66th Kristallnacht anniversary, in memory of the brutal beginning of official Nazi-Germany's genocidal murder of Europe's jews.

In our capital Oslo, the organisation SOS Rasisme refused Jews to participate in the march because they carried jewish symbols and Israeli flags. . . .

The "anti-racist" organisation insists it did the right thing despite widespread criticism, including from Norway's Justice Minister Odd Einar Dørum (Liberals) and Progress Party leader Carl I. Hagen.

Technically, it was the police that refused people carrying jewish symbols from participating. The police has come in for criticism, too, but argue they could not guarantee the security of jews among the leftist "anti-racists." Which probably says a lot. . . .

Go here for more.

I should say that private organizations ought to have a constitutional right to exclude symbols they disapprove of from their marches; but we have a right to condemn them for it.

Computer Crime Note Topics: Over at De Novo, PG points out that lots of second-year law students at law schools around the country are looking for law review note topics right now. Let me offer a self-interested suggestion: write something in the area of computer crime law. Computer crime law is a new and growing field, and the relatively small number of existing cases means that the courts haven't yet settled The Big Questions. It's a perfect area for a student note. There are lots of enormously important topics in the field that courts haven't resolved and no scholar has touched (or, if someone has touched on them, there isn't much yet); the issues can be a bit technical, meaning that judges often need help and look for outside scholarship to help them; and the field will likely grow more important over time.

  I'm writing a casebook on Computer Crime law for West right now, and I can attest to the need for scholarly input; anyone who writes something in the field can make an important contribution. What are some possible topics that you could write on? Here are a few possibilities:
(1) Is it possible to establish a Fourth Amendment "reasonable expectation of privacy" in remotely stored Internet files such as e-mail, or do you lose Fourth Amendment protection in e-mail when you send it? If you can retain protection, when? (No Article III court has answered this essential question yet, and it turns out to be a suprisingly difficult problem that has received very little scholarly attention.)

(2) Many computer crime laws prohibit unauthorized access to computers. But what does "access" mean? What does "authorization" mean? (I wrote an article on this last year with some ideas, but the issue is very much open.)

(3) What Fourth Amendment test should courts use to determine when a computer file is "seized"? The Supreme Court has held that seizing requires dispossession; does this mean that if you merely copy a computer file you are not seizing it, and that the FBI can copy your files without implicating the Fourth Amendment? (Almost no scholarhip on this, although I am working on a piece that will touch on it.)

(4) In the context of sentencing computer criminals, are cybercrime-specific rules needed? Is it fair to treat a virus-writer who inadvertently causes $100 million worth of damage the same as a con man who reaps $100 million of profit from his victims? For that matter, how do you calculate how much harm a computer virus causes? (Basically no scholarship on this yet.)

(5) Child pornography laws prohibit the "possession" of images of child pornography. But what does it mean to "possess" a computer file? If you view a file on your computer, are you possessing it? Does it depend on how much you understand how computers work? (Three of four cases on this so far, but no scholarship yet.)
  These are just five note topics off the top of my head; there are lots and lots more out there.

  If anyone does end up writing something in the field, please let me know; I am working on the casebook this winter and spring, and there is always room for discussions of helpful student scholarship in the "Notes and Questions."
Advice to Republicans: From John Tabin in the American Spectator:
As John Fund has noted, the dark spot on the GOP's election came in the state legislatures, where increasing polarization flipped the balance in the Democrats' very narrow favor. "Republicans shouldn't forget that their new dominance is tenuous and is unlikely to last if the party remains uncompetitive on both coasts," writes Fund, and he's right. Governors like Arnold Schwarzenegger in California, Linda Lingle in Hawaii, and Bob Ehrlich in Maryland are successful at sticking to Republican principles on economic issues even as they sit across the divide on cultural issues, but they all face solidly Democratic legislatures -- which this election has made even more solidly Democratic in the former two cases (Maryland did not elect state legislators last week). State Republican parties, it seems, are having trouble striking the balance necessary to win in Blue territory, particularly during a presidential election year.

Federalism lights the way out of this conundrum. The recognition of gay unions should be entirely a matter for the states, and state parties should be free to differ as to the proper political approach; if a constitutional amendment is necessary, it is to restrain the courts rather than to define marriage for the nation. (Senator Orrin Hatch was toying earlier this year with introducing an amendment that would be ideal.) Likewise, the overturning of Roe vs. Wade ought to be the end-point of the pro-life movement on the federal level; abortion after Roe should become -- as it was before Roe -- a state matter.

I'd better admit that I'll be on the opposite side of many conservatives in these state-level battles: I favor gay marriage, and though I'd love to see a judiciary that would overturn Roe, a proxy for so much judicial mischief, I'd prefer to see early-term abortion stay legal. But we'll remain bound on foreign policy and economic issues in a strong Republican coalition despite our differences. And that's the point, isn't it?

Forget About Splitting, Let's Talk About Merging:

In the article Eugene cites to below, Judges Kozinski and Thomas make the argument that bigger circuits are better; there is less bureacracy, less duplication of functions, more focus on delivering justice, and greater consistency of law across a larger number of states. If that's true, then the Ninth Circuit doesn't need to be split -- it's the other circuits that need to be merged! For example, Congress could merge the existing First, Second, and Third Circuits into a new First Circuit; the existing Fourth, Fifth, DC, Federal, and Eleventh Circuits into a new Second Circuit; and the existing Sixth, Seventh, Eighth, and Tenth Circuits into a new Third Circuit. If I read Kozinski and Thomas correctly, such a merger would lead to tremendous cost savings, help speed justice, and generate greater consistency in the law. And who could be opposed to that?

Election Irregularities:

There is no doubt that there were many election irregularities throughout the country. How serious were they? ABC News reports that some see these problems as evidence of a conspiracy to "steal" the presidency. Serious election experts do not take such claims seriously. Dan Tokaji addresses and debunks many of the conspiracy claims on his Equal Vote blog.

Executing Abortionists? Dana Milbank made quite a whopper on NPR's Dianne Rehm show earlier today. In a discussion of the politics of judicial nominations and abortion, Milbank made the point that Congress is likely to address many abortion-related issues in coming months beyond whether judges would support or overturn Roe v. Wade. Fair enough. But among the proposals Milbank said would be up for debate was "the death penalty for abortionists." Yes, you read that correctly. Milbank said there were serious legislative proposals to execute abortion providers. This is both fanciful and absurd -- fanciful because there is no such proposal under serious consideration, and absurd because it would be legally impossible to impose the death penalty for something that cannot be severely limited, let alone prohibited.

Milbank is hardly an uninformed commentator. He's covered politics for the Washington Post for some time, so he must know better than to suggest the Republican majority might seek to execute abortionists. Some conservative commentators have criticized Milbank for liberal "opinion journalism." Today he certainly earned that reputation.

Note: I am aware that some of the more extreme abortion opponents would support the death penalty for abortion, but that was not what Milbank said. Rather, he claimed this was among the specific abortion-related issues that Congress would soon debate. Note also that I missed the very end of the program, so if he later clarified the statement, I will be happy to make a note of it.

Related Posts (on one page):

  1. What about Tom Coburn?
  2. Executing Abortionists?
Hewitt v. The Corner on Specter: For those who have missed it (which I suspect are very few VC readers), Hugh Hewitt has been questioning the prudence of the campaign of some, especially those in The Corner on NRO, to deny Arlen Specter the chair of the Senate Judiciary Committee. As someone with no prior position on this tactical matter, I find myself gradually coming around to Hugh's side (as has Glenn Reynolds) simply on the basis of his mounting prudential arguments that seem more compelling than the responses.

Even if you are not persuaded, however, one reason to read Hugh is so you will be less frustrated should Specter assume the chairmanship as remains likely. Hugh's latest posts are here (scroll down) and here. The always thoughtful and reasonable Ramesh Ponnuru replies to an earlier post by Hugh here. All sides are remaining civil, which is a very good thing.

FULL DISCLOSURE: I have no personal interest in the outcome as I won't be nominated for a confirmable position by the administration despite sage recommendations like these by Glenn and Alex Knapp (scroll down for dissenting opinions like this one from Steve: "All I can say is that I hope `they' appoint someone a little less . . . whacko?" Ouch!).
The Information Age:

I wonder if it's time for a moratorium (or at least a bit of skepticism) on describing our time as "the Information Age." First, it seems unlikely to me that in the future we will think of the year 2004 as part of the Information Age. The Stone Age was marked by the introduction and use of stone tools; the Bronze Age was marked by the introduction and use of bronze tools. But it's not like suddenly in the late 20th and early 21st century people suddenly started using information. And if we continue to rely more and more on information over the next few centuries, today's uses of information will seem so primitive that few will think to describe it as part of the Information Age. The Automobile Age, perhaps, but probably not the Information Age. And what ever happened to the Space Age? I remember as a kid hearing a lot about how mankind had entered the Space Age. Today that looks like a gimmick, a rather dated self-reflection. I wouldn't be surprised if we feel a bit the same about "the Information Age" twenty years from now.

Split the Ninth Circuit?

Judges Kozinski and Thomas say no. Judge Kozinski, for whom I clerked, is a Reagan appointee, and Thomas is a Clinton appointee. Important reading for those who follow this debate.

Related Posts (on one page):

  1. Federal Appellate Circuits:
  2. Split the Ninth Circuit?

Tuesday, November 9, 2004

Bush, Kerry, and Wikipedia:

Apropos of our discussion awhile back on why Wikipedia doesn't do a very good job with politically charged entries, check out this story in today's New York Times about Wikipedia's entries on George Bush and John Kerry.

"What Brown Teaches Us About Constitutional Theory":

Jack Balkin has just posted his article by that name published in the most recent issue of the Virginia Law Review. Like everything by Balkin, it's a great read. One excerpt:

Judges are sort of like place kickers in football. Most place kickers are pretty bad at making an open-field tackle to stop a speedy running back returning a kickoff. But place kickers can help pile on after the other players have tackled or slowed down a runner. That is sometimes how I imagine courts and their relationship to social change: They see the running back lying on the ground, groaning under the weight of a huge pile of linebackers. The judges say to themselves, "It's time for us to do some justice!" and they throw themselves on the pile.

Bills of Rights:

I love reading those ridiculous "Riders' Bill of Rights" things posted in taxicabs throughout the country. You know the ones I mean: "You Have the Right To: A clean cab, a driver who speaks English and knows the location of major destinations in the city, a smoke-free environment, etc. etc. etc." [Someone should do a little comparative law study of riders' "rights" in different cities]. Why there's value in framing these as "rights" (as opposed to just saying something like "Drivers must speak English" has always escaped me). But today in Philadelphia I noticed that we've reached a new rights frontier. One of my rights as a cab rider is the right to have the driver "provide a reasonable amount of change." !! A reasonable amount of change? Not the exact change? Doesn't seem like much of a right, to me.


Frontiers of Freedom today posted a press release and letter addressed to Senator Frist and signed by several leaders of conservative think tanks and lobbying organizations opposing Sen. Specter's appointment to head the Senate Judiciary Committee.

Freedom of speech at Tulsa.--

I was struck by something in reading our blogfather Eugene's post on the flap at Tulsa. IF the dean's email is legitimate and IF it was in response to an email from the VP of the Republican Law Society, then the dean appears to be violating or encouraging violations of his or her own policy.

The Dean says that no one (or at least no student organization) should criticize the existence or programs of a student organization, but then appears to proceed to do just that--IF he or she is responding to the letter from the Republican VP. If the link is made, then the dean threatens to pull funding from the Republican student organization. Has the dean listened to any complaints from the Alliance for Justice students (or any other student organizations) complaining about the Republican group's funding or existence? If so, then any effort to discipline the Republican group must be visited on Alliance for Justice as well. Indeed, the Republican student merely criticized the failure to disclose the political orientation of the Alliance for Justice, the dean appears to be threatening the very existence of the Republican organization.

By the way, I think there is nothing wrong with the Alliance for Justice failing to disclose its political orientation on its posters (to that extent, I disagree with the Republican student email). Nor should it be wrong for an organization to point out the political orientation of the Alliance or criticize an Alliance program, so long as that is done without seriously abusive language.

If all is as it appears to be (and it may not be), then the dean should simply apologize to the community generally and to the Republican group particularly for trying to prohibit even non-abusive, informational complaints--whether fairly made or not. It would be a great educational experience for everyone involved--from the dean to the newest law student.

It is also a test to see if the Alliance for Justice is truly interested in justice and individual rights. If they are, they will join in defending the freedom of the Republicans to criticize the Alliance, even while disagreeing with the substance of their criticism.

Related Posts (on one page):

  1. Freedom of speech at Tulsa.--
  2. University of Tulsa:
  3. Do not question:
[Rick Sander (visiting), November 9, 2004 at 1:24pm] Trackbacks
Affirmative Action in Law Schools, Pt. 2

Entry Two: The Effects of Preferences on Grades, Graduation, and the Bar

As I discussed yesterday, a very large majority of American law schools essentially race-norm black and white academic credentials when they admit their classes. Since the black/white credentials gap in the applicant pool is quite large, this means a typical law school has very little overlap between the highest credentials of its black students and the lowest credentials of its white students. This wouldn't matter very much if, as critics have long argued, the LSAT and UGPA were poor predictors of law school performance. And it's true that, individual by individual, these credentials are only rough indicators of performance. But applied to groups they are extremely accurate.

Consequently, blacks as a group have academic trouble in law school in very consistent and predictable patterns. At American law schools that use large racial preferences, half of all black students end up in the bottom tenth of their first-year class. Put a little differently, the median black student performs in the first-year at about the 7th percentile of the median white student. The gap is statistically no different in legal writing classes than in classes with timed exams. And, when we adjust for dropouts, the black-white gap gets slightly wider over the second and third year of law school.

It's important to note that this performance gap has nothing to do with race per se; whites who attend law schools where their credentials are far below most of their peers have pretty much the same types of troubles. The performance gap is a function of preferences. (Now, it's true that the preferences come about in the first place because of the black/white credentials gap - but that is another story, which I'm happy to address later if readers are interested.) There is no credible evidence I've seen that, if schools used race-blind admissions, blacks would underperform whites at all. (I will discuss this issue further, and respond to some reader commentary, this Friday.)

The most obvious consequence of the grade gap in law school is that blacks are expelled, or drop out, at much higher rates than whites (19% of blacks don't complete law school compared to 8% of whites). Almost all of the attrition is among students with very low grades. The more serious consequence is that students at the bottom of the class apparently learn less than the same student would learn at a lower-tier school where the student was closer to the middle of the class. This is what's known as the "mismatch effect".

A number of studies of college students have found various types of mismatch effects. Black law students who go to schools where their credentials are far below most of their classmates are less likely to graduate, more likely to switch out of science majors, and more likely to abandon aspirations for an academic career than blacks who attend college where their credentials place them closer to the middle. These studies have been hampered, however, by the absence of any general test that college students take after graduation; no one could demonstrate that blacks actually learned less at more elite schools.

For my research, I was able to capitalize on a massive database compiled by the Law School Admissions Council in the 1990s, which tracked law graduates through up to five attempts to pass the bar. Bar exams vary state by state, but they have much in common and there are ways to control for the variations. I found that law school grades predicted bar passage rates far more powerfully than school eliteness did -- it was more important to be near or above the middle of the class than at a higher-ranked school -- and, again, this was equally true for blacks and whites. However, since the preferences system pushes most blacks to attend more elite schools, the tradeoff has devastating effects on black bar passage. Blacks are 50% to 100% more likely to fail the bar on their first attempt than are whites who started law school with identical credentials. Combined with the admission, at the bottom of the law school hierarchy, of blacks with very weak academic backgrounds, and one finds that nationally, blacks fail the bar at four times the white rate.

Taking the graduation effect and the bar effect together, and one finds that only 45% of blacks who started law school in 1991 graduated and passed the bar on their first attempt (compared to 80% of whites). Again, this is not a "racial" effect, but a preferences effect. I find in my analysies that the graduate-and-pass rate for blacks would rise to 74% in a preference-free system -- still a little lower than the white rate, but only because the distribution of black credentials is lower than the white distribution.

Tomorrow: Black law graduates in the job market

How Hillary Clinton Won the Presidential Elections of 2008 and 2012:

That's the title of my newly-published future history of the United States. Looking back on the United States from a French perspective in the year 2150, the story explains how Mrs. Clinton won, and how she governed so successfully. The keys to her first election, it turned out, were President Bush's victory in the War on Terror, and the Supreme Court decision over-ruling Roe v. Wade.

Characters who play a prominent--but often unexpected--role during the Rodham-Clinton administration include Michael Moore, Glenn Reynolds, Anita Hill, and Chief Justice Clarence Thomas.

The future history is tongue-in-cheek, but many a truth is said in jest.
University of Tulsa:

By the way, if any readers have first-hand knowledge of the background behind the University of Tulsa incident mentioned below, or of any further reactions by the administration or others, please do let me know. Certainly do let me know if you think I've gotten any of the facts wrong, but also if there are other facts that you think might illuminate the matter.

Do not question:

I quote below an e-mail that was apparently sent by one of the assistant deans at University of Tulsa College of Law. (I e-mailed the assistant dean to confirm its authenticity, but did not hear back; and when I called the author to provide an opportunity to challenge the authenticity and to provide the school's side of the story, the assistant dean declined to do so.)

The gist of the message is that student groups that "undertake[] to question the legitimacy of another student organization or deliberately question[] the programs of another student organiz[a]tion" will lose their funding from the student government (funding that I assume comes from the school), and "[i]nstitutionally, . . . may jeopardize their recognition as a legitimate law school organization." Certain viewpoints are apparently now subject to official discipline at the law school.

Just to get a sense of the potential scope of the policy, note that it doesn't simply aim at rudeness (e.g., profanity or even personal insults). It applies to anyone who expresses the viewpoint that some other group, or its speakers, are improper. If a racist group set up shop at school, other groups would risk defunding for "question[ing the racist group's] legitimacy." If a group invites a speaker who is a racist, Communist, Islamo-fascist, other groups would be barred from condemning such an invitation, since that would be "deliberately question[ing] the programs of another student organization." In fact, if the policy were applied evenhandedly, then any group would risk defunding for calling for another group's defunding, since that would literally be "question[ing the other group's] legitimacy" (since the argument would be that the other group is not legitimately entitled to funding).

The University of Tulsa is a private university, so this sort of attempt to squelch internal dissent against the actions of other groups does not violate the First Amendment. (If it were a public university, the policy probably would violate the First Amendment, see Rosenberger v. University of Virginia (1995).) Nonetheless, while private universities legally may restrict their student groups' freedom this way — may exclude them from equal funding and potentially equal access to school resources in order to deter student expression — they nonetheless ought not do it, as a matter of professional ethics and academic freedom. (The University of Tulsa Statement on Rights, Freedoms, and Responsibilities specifically acknowledges the importance of student freedom of expression.)

It's true that this is just a matter of funding and school recognition (I take it that school recognition would be needed for access to classrooms, bulletin boards, and the like). Presumably individual students who engage in such speech wouldn't be subject to discipline or expulsion.

But the school is using the threat of defunding and loss of recognition as a deliberate means to prevent the expression of viewpoints that it disapproves of. The school's goal is to reduce the range of viewpoints that are available, not through persuasion but through the threat of denying groups the sorts of benefits that are seen as necessary for the group to effectively operate at the school. This is not what an institution that values academic freedom or open debate, it seems to me, should do.

"The College of Law wants to insure that every student organization feels comfortable in carrying out its mission and conducting programs to enhance law school life," the message says. Actually, they don't seem that concerned about every student organization — those that want to criticize, however politely and reasonably, other groups are certainly not made to feel comfortable. But more broadly, it seems to me that law schools shouldn't be in the business of providing "comfort" for student organizations at the expense of freedom of debate. Even if there is some room for true civility codes at private universities, even those that claim to be devoted to academic freedom, there should be no room for such attempts to suppress student viewpoints.

Here's the e-mail (all name and address omissions are by me):

Date: Thu, 04 Nov 2004 09:15:56 -0600
From: [Name omitted]
Subject: [Tulaw-students] student organizations

Dear Students:

This is just a reminder that the purpose of our student organizations is to provide students the opportunity to hone their leadership skills, develop special interests, and provide a service to the community. We are very privileged here at the College of Law to have a very diverse group of student organizations. Not only do these varied groups add to the richness of our law school, but they also promote learning, understanding and tolerance. In addition, each student organization is a powerful ambassador in the community for the College of Law and an important admissions recruitment representative.

In this regard, we would like all organizations to reflect on their stated missions and encourage their members to support the existence of other student organizations whether they agree or disagree with their cause. Also, the SBA has made it clear that if any student organization undertakes to question the legitimacy of another student organization or deliberately questions the programs of another student organiztion, funding for that organization will be pulled. Institutionally, that organization also may jeopardize their recognition as a legitimate law school organization.

The College of Law wants to insure that every student organization feels comfortable in carrying out its mission and conducting programs to enhance law school life. If an organization at any time feels intimitated by other groups or is uncertain about the appropriateness of a program, I welcome you to contact me or [name omitted], SBA President. We wish to be as supportive to you as possible.

I hope this information is helpful. All of you are so important to the College of Law and we applaud your many successes!

Please feel free to contact me or [name omitted] should you have any concerns about your organization or other matters.


Dean [name omitted] and [name omitted], SBA President

Here also is the e-mail that may have prompted the new policy (though my source, who is not the author of the e-mail quoted below, is not positive); I wouldn't have quite written the message this way, but it seems to me to be well within the bounds of civil debate, as much as a similarly worded criticism of the Federalist Society, for instance, might be:

[Name omitted] on Thu Oct 21
Subject Line: [Tulaw-current-events] This is from the "Alliance for Justice" website...A left-wing partisan group? Judge for yourself.


Dear TU Students,

The group sponsoring the film "Just One Vote," The Alliance for Justice, is a fringe left-wing group. Unfortunately, the groups that have chosen to sponsor this event have failed to disclose this fact. Please visit the Alliance for Justice website and see that they have an openly partisan left-wing agenda for America — an agenda well outside the mainstream of political discourse. The excerpt below on the history of the judicial selection project is from the Alliance for Justice website. After reading this excerpt, and / or visiting their webiste, I urge you to judge for yourself where they stand. Thanks for your time. Full disclosure and fairness to both sides in this political season have prompted me to send this message.


[name omitted]
Vice President
Republican Law Society

History of the Judicial Selection Project:

[Text, which seems to be copied from is omitted by Volokh.]

Must a Justice First Be a Judge? Most (though by no means all) speculation about potential Supreme Court nominees focuses on currently sitting judges -- and federal judges at that. Given the current composition of the Court, this is be unsurprising. Seven of the nine justices were federal judges before they were nominated to the Court, and an eighth was a state court judge. Chief Justice Rehnquist is alone among the current justices in not having been a judge.

It was not always this way. Many justices never sat as judges until they arrived on the High Court, including Lewis Powell, Earl Warren, Byron White, Felix Frankfurter, and William Douglas. While there are many fine jurists on the federal bench -- and I would love to see a Chief Justice Roberts -- I hope that President Bush casts a wider net before he settles on his Supreme Court nominees.
O'Connor Bobblehead Going Once...:

Only a few more hours left to bid on a Justice O'Connor bobblehead on Ebay; my wife and I are sending the proceeds to the Israeli Red Magen David Adom, the brave folks who are first on the scene after terrorist attacks. UPDATE: Auction closed at $362.88.

Cool election maps.

Thanks to Hit & Run for the pointer.

Ever heard of conservative Southern Democrats? Yevgeny Vilensky (Yale Free Press) takes Keith Olbermann (MSNBC) to task for these voter fraud insinuations of Olbermann's:
[T]he majority of the media has yet to touch[, among other things, the story of] . . . huge margins for Bush in Florida counties in which registered Democrats outnumber registered Republicans 2-1, places where the optical scanning of precinct totals seems to have turned results from perfect matches for the pro-Kerry exit poll data, to Bush sweeps.
Vilensky points out:
I decided to go to the Florida Secretary of State's office webpage and look at the results for Lafayette, Baker, and Liberty, the three counties whose names I could catch [on Olbermann's MSNBC broadcast], and see how they voted in 2000 and in 1996. Well, quite a fascinating result:

Election of 2000
Baker voted 5610-2392 for Bush against Gore.
Lafayette voted 1670-789 for Bush against Gore.
Liberty voted 1317-1017 for Bush against Gore.

Election of 1996
Baker voted 3684-2273 for Dole against Clinton
Lafayette voted 1126-899 for Dole against Clinton
Liberty voted 913-868 for Dole against Clinton
Links and more, at Yale Free Press.

Monday, November 8, 2004

Chief Justice Roberts:

With a Rehnquist retirement looking increasingly likely, Court watchers are actively speculating about who the President might appoint. SCOTUSBLog's Tom Goldstein predicts the President could nominate Judge John Roberts of the D.C. Circuit for the post. I believe Judge Roberts would be an excellent choice. Roberts is eminently qualified, and legally "conservative" in the best sense of the word -- that is, he seriously values precedent and legal reasoning, and has given no indication that he resorts to result-oriented judging. He was approved 16-3 by the Senate Judiciary Committee. Moreover, as Goldstein notes here, nominating Judge Roberts to the High Court would open up a seat on the D.C. Circuit. This would allow the President to renominate Miguel Estrada, who might well get confirmed in the new Senate. Then, perhaps, one day Chief Justice Roberts would be joined by Jusitce Estrada.

My Colleague, Dan Solove,

has just come out with a very interesting book: The Digital Person: Technology and Privacy in the Information Age, published by the NYU Press. I just started reading it, and it's quite good. You can download the Table of Contents and Chapter 1 from this site.

Reasoned Discourse in Academia:

After the election, one of my colleagues placed a bumper sticker on his office door reading "Lobotomies for Republicans." I always suspected that if wealth resdistribution didn't work, the Left would seek other ways to level the playing field. [I'd put that on my office door, but I don't have tenure yet.]

A cool new present for lawyers:

I've long liked Stu Rees's legal cartoons, which I've posted here occasionally; he now offers a new web service that lets you personalize the cartoons — inserting a person's name or legal specialty into the caption — and then print them on T-shirts, coffee mugs, mouse pads, and ordinary prints. Check it out at

Exit polls:

Slate Press Box — subtitled "media criticisms" -- reports:

To hear [Joe] Lenski of Edison Media talk about it, the whole election brouhaha of 2004 can be blamed on the people who leaked the exit poll information and the outlets (Slate,,,,, et al.) that tossed the raw data out for consumption.

"I'm not designing polls for some blogger who doesn't even understand how to read the data," Lenski told the Los Angles Times yesterday. "It's like if you were graded by your readers on the first draft of your article."

Yet it is Lenski and the networks who are at fault for not telling viewers — and bloggers — the deeper meaning of exit poll data. The business of calling an election is as much an art as it is a science, and they've not been candid about that. . . .

That may well be right — but wouldn't one also say that "it is those who post exit poll results, including Slate and in particular Pressbox, who are at fault for not telling readers the deeper meaning of exit poll data," such as for instance

  1. the +/-4% announced mathematical margin of error (95% confidence interval, half that if you want 68% confidence) for state exit polls,

  2. the likelihood that the margin is higher earlier in the day, when the exit poll isn't complete, and

  3. the possibility that the true of margin of error is higher still, because of different response rates among different people, and other factors?

Even if item 3 is obvious — and I suspect that many readers don't find it obvious — the precise mathematical margin of error is generally not well-known to readers. Shouldn't media outlets that report polls have a responsibility to give their readers the relevant information needed to figure out the poll's limitations, just as the pollsters have a responsibility to give the media and the public the relevant information needed to figure out the poll's limitations?

UPDATE: My friend Gil Milbauer points out that, at the bottom of their exit poll item, Slate did write:

These early exit-poll numbers do not divine the name of the winner. Instead, regard these numbers as a sportswriter does the line scores from the fourth inning of a baseball game. The leading team might win the game, but then again it might not. But having the early data in front of him helps the sportswriter plot the story he thinks he'll need to write at game's end.

But the analogy to reporting the fourth inning scores only goes so far -- at least reports on the fourth inning scores are precise reports of the current score (though not the ultimate score), with no margin of error. Here, there are no precise results even as of the fourth inning; and 51-49% is not an accurate way of reporting even an intermediate result that's actually 51-49% plus or minus 6%.

Real Clear Politics rates the pollsters,--, the best of the poll sites this year, has rated the performance of the pollsters--both in the national race and at the state level. The state results differ slightly from the results I reported recently from Polipundit. RealClearPolitics reports in part:

At the national level the answer to the question is pretty straightforward. Ed Goeas's GW-Battleground Vote Projection and Pew Research got it exactly right. Goeas's final Battleground projection was Bush 51.2, Kerry 47.8, Nader 0.5 and Pew's final allocation was 51-48-1.

CBS News/NY Times also nailed the final spread in the race (Bush +3), though they didn't allocate undecideds which makes their final less impressive than Battleground's and Pew's.

Raghavan Mayur at TIPP also deserves a mention for outperforming almost all of the big media pollsters and coming in just a tick off the final results with their final Bush 50.1, Kerry 48.0, Nader 1.1 projection. Scott Rasmussen of Rasmussen Reports also had a solid final result with their Bush 50.2, Kerry 48.5 final projection.

USA Today/CNN/Gallup finished poorly this year. Ironically, Gallup would have finished at or near the top of the list had they allocated undecideds 50/50 like Pew, as opposed to giving what appears to be 100% of the undecideds to Kerry.

Related Posts (on one page):

  1. Real Clear Politics rates the pollsters,--
  2. Best State Poll Predictions were from Rasmussen and Survey USA.--
Don't be so eager to go to Canada:

I have nothing against Americans wanting to move to Canada following the election; there's a long tradition of people moving — even within the democratic world — to find a place where they feel more in sync with local values. I'm glad that some Canadians move here because they prefer our more enterpreneurial spirit; I certainly understand why those Americans who prefer the social programs and cultural attitudes of Canada can move there, and I hope the Canadians welcome them.

On the other hand, don't move there thinking the violent crime rate is vastly lower in Canada than in the U.S. — 10 times lower, according to the Spokane Spokesman-Review (Sept. 5, 2004) and a Slate article last Friday. It's always hard to do international comparisons, but it appears that the violent crime rate in both countries is quite similar, though the Canadian homicide rate is much lower (by about a factor of 3.8 to 4).

The best data we have on crime comes from victim surveys — these are flawed, but at least they try to measure the same thing (rather than relying on legal definitions that may differ from country to country), and they ask about actual crimes, not crimes reported to the police (since the reporting rate may vary from country to country).

According to the International Crime Victimization Survey (1999 data), the "contact crime" rate (robbery, sexual assault, and assault with force) is over 1.5 times higher in Canada than in the U.S.; 3.4% of all respondents were victimized once or more in Canada, 1.9% in the U.S. (fig. 5, p. 33). If one goes by respondent-reported seriousness (fig. 7, p. 48), the result is more favorable for Canada, though this category includes some nonviolent crimes that were felt to be serious, and excludes some violent ones that were felt not to be serious — from the graphic, it looks like Canada had about 11 or so "very serious" incidents per 100 inhabitants in 1999, while the U.S. had about 13 or so. If we combine "very serious" and "fairly serious," the result is a tie. So far, then, it seems that the U.S. and Canadian violent crime rates looks similar. (This excludes homicide, which the ICVS doesn't measure.)

The other possible source of data is crimes reported to the police, available from Statistics Canada in Canada and the DoJ's Uniform Crime Reports in the U.S. The 2003 robbery rate in Canada does seem lower than that in the U.S. (also 2003, see p. 31), by about a factor of 1.6 (89.6 per 100,000 in Canada and 142.2 per 100,000 in the U.S.).

The 2003 sexual assault rate in Canada seems higher than the 2003 forcible rape rate in the U.S. (which includes attempted forcible rape) in the U.S. (89.6 vs. 32.1, see p. 27), but of course sexual assault might be defined differently and more broadly in Canada, which is one reason that ICVS data, for all its possible flaws, is probably better than the Statistics Canada / UCR data.

As to aggravated assaults, unfortunately the Canada report that I found doesn't seem to separate serious assaults from less serious ones — the 2003 rate for all assaults in Canada is 746.5 per 100,000 in Canada, and the 2003 rate for aggravated assaults is 295.0 per 100,000 in the U.S. is 295.0 per 100,000, but I can't really tell how to compare these.

I suspect that in Canada, as in the U.S., the important questions are where in the country you live, and also what you do and who you are (for instance, the homicide rate for U.S. black males is over 7 times higher than for white males, and about 20 times greater than for white females). Among other things, I've heard that the homicide rate in Canada's largest city, Toronto, is considerably lower than the national norm, which may well make Toronto a much lower-crime city than the biggest cities in the U.S.

Nonetheless, there's no reason at all to think — as best I can tell from the data — that the violent crime rate in Canada is anywhere near 10 times lower than in the U.S.

Home Buying Update:

I've run into a bunch of acquaintances and VC readers lately, many of whom have asked me, remembering previous posts on the subject, whether my wife and I have bought a house yet. The answer is no. We made one offer in May on a four-bedroom house a mile from the Ballston metro with a swimming pool, but lost it to a family that was willing to waive the home inspection contingency. Since then, we've been looking off and on, hoping that the market calms down meanwhile. Fortunately, it seems to be doing that. We've noticed that houses are staying on the market longer, and that they are often selling for prices below asking. Agents have told us that the $800,000+ market in Arlington has slowed to a crawl, many more sellers than in the Spring are lowering their asking prices, and an agent yesterday told us that housing prices in Northern Virginia are falling, "I see it every day." Hopefully, this means some sanity is returning to the market.

As much as I would like to see a major price decline before I buy a house, I don't know that the economy could stand it, so I guess we'd all better hope for a "soft landing." Following the news about the real estate market over the last few months is worrisome, because media reports seem to make it clear that many paople are buying houses they can't really afford; indeed, the family we lost our house put no money down (a 100% mortgage), only had $2,000 in earnest money, and asked for $12K in closing cost help. Quite remarkable for someone in such apparent financial condition to be buying a house in the mid-six figures. Worst of all is that some people are buying houses with no money down, interest-only, adjustable rate mortgages. When the rate adjusts, some of these folks aren't going to be able to afford their payments. Media reports suggest that their plan under those circumstances is to simply "flip" their house and buy a new one with the "profits" serving as a down payment. But what if there aren't any profits? And even if the rate never adjusts up much, or the owners have a fixed rate mortgage, if prices go down say, 15%, who is going to stay in a house that has, e.g., a 90K loss when they put no money down and have paid no principal? Better to just declare bankruptcy and walk away from the loss.

Near as I can tell, banks and mortgage companies wouldn't be making these crazy loans but for the fact that they can immmediately resell them to Fannie Mae, which somehow has persuaded itself that its charter of increasing home ownership allows it the luxury of purchasing and holding loans that no one with common sense, much less a decent actuary, would ever make. As I said, we all better hope for a soft landing, because if interest rate go up too much, or prices fall significantly, there are going to foreclosures everywhere. Already, a record percentage of mortgage or in default or behind on payment, and that's in a low-interest environment with rising prices. Shudder.

What America? Thomas Friedman woke up after the election wondering what country he was living in:
what troubled me yesterday was my feeling that this election was tipped because of an outpouring of support for George Bush by people who don't just favor different policies than I do - they favor a whole different kind of America. We don't just disagree on what America should be doing; we disagree on what America is.

Is it a country that does not intrude into people's sexual preferences and the marriage unions they want to make? Is it a country that allows a woman to have control over her body? Is it a country where the line between church and state bequeathed to us by our Founding Fathers should be inviolate?
William Sjostrom places Friedman's comments in perspective:
Surely Friedman is right. Bush is the first president since James Polk to oppose gay marriage, a right Kerry swore to protect. And only last year, Bush and the Republican Congress overturned three centuries of legalized abortion, not to mention amending the Constitution so that the presidency was limited to Southern Baptists, Mormons, and Catholics who swore fealty to Cardinal Ratzinger.
(Link via Bainbridge)
District Court Blocks Gitmo Tribunal Proceedings:

Another defeat in the courts for the Bush Administration's legal strategy in the war on terror. A brief skim suggests that this is a pretty broad ruling, although unfortunately I don't think I'll have time to blog more on the details. An AP story on the decision is available here. Thanks to Howard for the links.

Clinton v. Schwarzenegger, 2008

So here's an idea: what if the Republicans and Democrats were to make the following trade: (a) repeal (or modification) of Amendment 22 (which provides that "no person shall be elected to the office of the President more than twice") for (b) repeal (or modification of) the provision of Article II of the Constitution (which provides that "No person except a natural born citizen . . . shall be eligible to the office of President"). The first would, of course, allow Clinton to run again; the second would allow Schwarzenegger to run. Neither Constitutional provision, in my opinion, is terribly useful in the first place; the country hardly suffered irreparable damage from Roosevelt's 4 terms, and whatever force the naturalization clause had in 1787 seems to be completely vitiated in today's world. So we could kill two birds with one stone, and (possibly) get a choice in 2008 that would be more interesting than the one we just suffered through. Just a thought ....

Successful law review write-ons:

I have a big favor I'd like to ask law review editors, on my behalf and on behalf of future law review staffers: Could you allow me to put on the Web a copy of some recent write-on competition packet of yours, and one or two papers that got the top score (or near to that) in a recent competition? I think such examples could be very helpful to law students who are competing in other law review write-on competitions.

Naturally, the papers would require both the law review's agreement and the competitor's, and both would get credit on the site. I'd link to these materials from my site, and indirectly from the second edition of my Academic Legal Writing book. The material would of course be made available for free to everyone, whether or not they buy my book.

Should the Election of 2004 Lessen the Sting of Bush v. Gore?:

Jack Balkin offers his thoughts here.

[Rick Sander (visiting), November 8, 2004 at 1:35pm] Trackbacks
Affirmative Action in Law Schools, Pt.1

Over the next few days, I'm going to be summarizing key findings from my article on law school racial preferences, and discussing the findings with readers. Today is:

Entry One: The General Operation of Racial Preferences

When law schools talk about race-based admissions preferences - something they generally discuss as little as possible -- they make three claims: (a) the preferences are small and not automatic, (b) race is one of a myriad of factors taken into account to create a diverse class, and (c) everyone admitted is fully qualified to do well at the school. These were the central messages advanced by the University of Michigan Law School in their defense of affirmative action before the Supreme Court. I found in my research that all three claims were substantially untrue, both for Michigan and for law schools generally. More interestingly, I found that each law school follows such a similar pattern that a powerful "cascade" effect sets in, creating interesting collective action problems for the system as a whole and for any school that wants to approach admissions less mechanically.

The problem every university faces is the gap in test scores and grades between whites and Asians on the one hand, and blacks and Hispanics on the other. On a 1000-point academic scale I use throughout my paper, the median black/white gap among law school applicants was about 170 points in the early 1990s and is about 135 points today. As you may recall, the Supreme Court issued two opinions in last year's affirmative action case. In Gratz, the Court found that undergraduate college at the University of Michigan violated the constitution by awarding a fixed number of points to black applications. The Law School's admissions passed muster, according to Justice O'Connor's decisive opinion, because race there was part of a complex individualized assessment of each applicant - the opposite of a mechanical award of points.

Many of O'Connor's colleagues hinted that she was elevating form over substance. With good reason. Using logistic regression and other techniques, I estimated the weight given to race and to academic numbers by the College and the Law School. The Law School's admissions were more dominated by numbers, and the implicit "boost" given black applicants was larger (and as mechanical) as the College's system. The only substantive difference between the two schools is that the College took more account of factors like socioeconomic background, writing samples, and extracurricular activities - differences that should have made it more constitutional in O'Connor's eyes, not less. What apparently saved the law school was the way they talked about their admissions system, and perhaps the plaintiff's failure to adequately demonstrate its actual workings.

The Michigan law school admissions cycles litigated in Grutter (mostly the 1995 through 1999 cycles) are highly representative of practices at law schools nationally. I gathered data from seven other public law schools through FOIA requests, and analyzed another database that has data on 27,000 law students from the Class of 1994. At every law school, at least 80% of admissions decisions (and usually more like 90%) could be predicted by knowing the LSAT, undergraduate GPA, and race of the applicant. Nearly every law school used the same metric for white and black students, but either added points to eliminate the black-white gap in credentials or simply segregated admissions files by race. Nearly every school admitted black and white applicants at rates that were statistically indistinguishable. And in the 1990s, a virtually identical 170-point gap could be found between the credentials of the median white matriculant and the median black - a gap that reached from the most elite schools to the smallest regional schools (ironically, only the historically black law schools were exempt from this pattern).

Herein lies the collective action problem. The preferences awarded by the top tier law schools absorb all the black applicants that would be admitted, in a race-blind system, to second-tier schools. These schools must therefore choose between having essentially no black students or duplicating the types of preferences pursued in the top-tier. Nearly all the second-tier schools choose the latter course, thus putting third-tier schools into the same bind, and so on. The net effect of this system is to move nearly all blacks up a tier (or two) in the law school hierarchy, thus placing nearly all blacks at an enormous academic disadvantage in the schools they attend. The only net addition of blacks to the system comes in the lowest-tier schools, and the black students they admit have such marginal academic credentials that they face long odds against every becoming attorneys.

Tomorrow: The effects of preferences on grades, graduation and the bar

Google and Abu Ghraib / Lynndie England images:

A Metafilter post complains that a Google Images search for "Lynndie England" comes up with nothing (even with SafeSearch off), and a search for "Abu Ghraib" comes up with little; on the other hand, Yahoo images search for "Lynndie England" and "Abu Ghraib" (thanks to reader Mark Cridland for the pointer). I checked it out, and the allegation seems accurate.

Any thoughts on why the Google search engine ("The most comprehensive image search on the web," according to the Google images search page) is failing to locate things that Yahoo is locating? Is it a technological failure on Google's part, or a deliberate decision to silently block those pages? Either answer might lead Google users to be skeptical of the results that it yields in other cases, too. Or am I mistaken on the facts?

UPDATE: Several readers pointed me to a discussion yesterday of this on Slashdot. (I composed my post Saturday, if I recall correctly, but saved it for today; that'll teach me to delay.) Here's an e-mail from one reader, Charles Chapman (David Price sent me similar information, and some other people sent me shorter versions):

Slashdot has covered this issue. See: Slashdot also has an official response from google: The reason is that the Google image index hasn't been updated recently. A Slashdot reader has verified this. Again see:
I haven't checked this yet, but it may well be so, even though it puzzles me that failure to recently update the index would cause hundreds of photos, some of them months old, to be invisible. In any event, according to reader accounts this seems to be indeed a technological glitch rather than deliberate exclusion — though a technological glitch that users should keep in mind, since who knows whether a similar glitch might lead their next query to likewise miss hundreds of items on many sites.

FURTHER UPDATE: A quick skim of the threads suggests that the "glitch" might be that google isn't fully updating its index for many months, likely for over half a year. That seems like a mighty odd design decision, for a company that's indexing a fast-moving medium such as the Internet. Or am I missing something?

"Quote of the Week," from the Mobile Register:
"Where are we going? And why am I in a handbasket?" -- From a Wednesday e-mail exchange of several Alabama Democratic Party activists.
Professor urges people to consciously spread falsehood:

InstaPundit links to this post on the DailyKos site:

[T]he biggest silver lining of this election is how the GOP's victory is thus far being claimed, framed and explained. To that I say, "Let us join that chorus." And we should do so now, because there is immediacy in the post-election window of opportunity.

Marching order #1, therefore, is this: No matter whom you talk to outside our circles, begin to perpetuate the (false, exaggerated) notion that George Bush's victory was built not merely on values issues, but gay marriage specifically. If you feel a need to broaden it slightly, try depicting the GOP as a majority party synonymous with gay-haters, warmongers and country-clubbers. Because I, for one, am tired of hearing whiny complaints from conservatives that, not only do I not have values, but that I fail to properly respect the values of people who are all too happy to buy into, no less perpetuate, inaccurate caricatures of the 54+ million Americans who voted Tuesday for John Kerry.

A public call urging people to consciously, deliberately spread falsehood; and it turns out that the author is Tom Schaller, "associate professor of political science at the University of Maryland, Baltimore County," who has written for "the Baltimore Sun, Boston Globe, Los Angeles Times, Washington Post and Salon."

Is it just me, or is there something especially troublesome in such a statement -- not just something you think is an error or even a lie, but an explicit call urging people to spread what the author expressly acknowledges is falsehood and exaggeration -- coming from an academic and a commentator for various leading newspapers?

Both professions, it seems to me, are supposed to be committed to the pursuit and dissemination of truth. Both academics and writers for newspapers can of course express opinions, or choose what truth to spread and what falsehood to expose based on their politics. But I would have thought that for both deliberately spreading falsehoods, and deliberately urging others to deliberately spread falsehoods, would be beyond the pale, not just in their professional work but also in their outside work (which naturally reflects on their professional temperament and credibility).

If you were a student of Prof. Schaller's, would you -- given the statement quoted above -- trust the accuracy of statements he makes in class? If you were a reader of one of his newspaper articles, or an editor selecting them, would you trust the assertions he makes in those articles?


For those who may have missed it, Robert Novak has an interesting and informative column on the Specter situation today.

Sunday, November 7, 2004

Guest-blogging at

This week I will be guest-blogging over at the on-line Wall Street Journal, The Journal page is usually gated, but for this week it is open to all visitors.

I am debating economist John Irons of The exchanges are on the Economy page; here is a direct link, which includes a comments board.

The first discussion concerns social security privatization; on Tuesday comes outsourcing and trade, followed by the future of Europe and China.

Who is next for the Supreme Court?--

Alberto Gonzales (CNN photo).

Senator Charles Schumer has released a letter to President Bush suggesting the candidates that he would favor for the Supreme Court (tip to the Corner).

Personally, my uninformed guess is that Bush will nominate Alberto Gonzales for the next vacancy on the Supreme Court, though this is far from certain. White House Counsel Gonzales has Bush's trust, has prior judicial experience, and is reputed to be competent. Gonzales would be as moderate an appointment as the Democrats are likely to see. Not only is Gonzales probably in favor of affirmative action, but he decided against parental notification for abortion in Texas. If there are two slots to fill at the same time, I would expect an attempt at a deal--Gonzales plus another much more conservative justice. Depending on whom they replace, that would leave the abortion split close to the same.

This would also seem to be consistent with Bush's practice of appointing minorities to more of the truly important positions of power than any prior President. Minorities are part of Bush's inner circle in a way that they never were for Clinton, Kerry, or Dean.

Here are Schumer's suggestions and his descriptions:

The Honorable Arlen Specter, Republican Senator from Pennsylvania.

The Honorable Ann Williams, Judge, Seventh Circuit Court of Appeals, nominated by President Ronald Reagan to the Northern District of Illinois.

The Honorable Edward Prado. Judge, Fifth Circuit Court of Appeals, nominated by you and unanimously confirmed by the 108th Senate.

The Honorable Michael Mukasey, Judge, Southern District of New York, nominated by President Ronald Reagan.

The Honorable Stanley Marcus, Judge, Eleventh Circuit Court of Appeals, nominated [for the District Court] by President Ronald Reagan.

Related Posts (on one page):

  1. Stephen Bainbridge says that appointing Alberto Gonzales
  2. Who is next for the Supreme Court?--

My colleague Ilya Somin notes that unlike the Jewish community as a whole, Jews from the former Soviet Union overwhelmingly supported President Bush. Ilya writes: "I'm still waiting for the political payoff for our loyal support. For example, instead of naming a Hispanic supreme court justice, why not name Eugene Volokh?" Sounds great to me.

Is Arafat nearly dead or still dead?--

Debka is reporting that Arafat died several days ago, which is contrary to what some Palestinian spokesmen are saying in other press stories. Who knows? I don't. But the fact that the doctors are not saying anything is highly suspicious.

Reuters reports that Arafat's wife is accusing Palestinian officials of trying to bury Arafat alive. That tends to lend some credence to the speculation that he is already brain-dead and she is refusing to allow pulling the plug. If this is true, in the US this would not be her decision beyond perhaps the brief time needed to harvest organs if that were contemplated. But who knows?

Here is Reuters (tip LGF):
Israeli media had reported the 75-year-old president would be taken off life-support equipment after Palestine Liberation Organization (news - web sites) Secretary General Mahmoud Abbas, Prime Minister Ahmed Qurie and Foreign Minister Nabil Shaath arrived in Paris.

"I appeal to you to be aware of the scope of the conspiracy," a screaming Suha Arafat said on Arabic Al Jazeera satellite television, monitored in the West Bank.

"They are trying to bury Abu Ammar (Arafat) alive," she said in comments that flew in the face of efforts by Arafat's lieutenants to project an image of unity and business as usual at a time when many Palestinians fear chaos if he dies.

"Abu Ammar [Arafat] is well and he is coming back to his homeland," she said without giving any details about Arafat's illness and accusing the three leaders of being desperate to succeed him.

It was not immediately clear whether Abbas, Qurie and Shaath would press ahead with their planned trip to Paris.

Palestinian officials have privately accused Mrs. Arafat, who prior to her husband being flown to a Paris military hospital on Oct. 29 had not seen him in three years, of limiting access to and information about the veteran leader.
Best State Poll Predictions were from Rasmussen and Survey USA.-- Polipundit has a nice review of which polls did better in predicting state results. Rasmussen comes in 2d of the 11 polling agencies that Polipundit reviews. Survey USA comes in first.

Here are some of the results:
#11 - The LA Times Poll. ... .

#10 - Fox News Poll. ...

#9 - Quinnipiac University Poll. ...

#8 - American Research Group. ...

#7 - Strategic Vision. ...

#6 - Zogby. Mr. "John Kerry Will Win" made predictions in 20 states, and in 13 Battleground States. Zogby got 16 calls right, and 4 wrong, and was off by an average of 6.10 points. Two of his final polls were the closest major poll, and another one of his final polls was off by more than 10 points. In the Battleground States, Zogby got 9 right, and 4 wrong, and was off by an average of 4.92 points. [I don't know whether this refers to Zogby's next to last predictions or the final ones released on Tuesday afternoon.--Jim]

#5 - Mason-Dixon. M-D made predictions in 24 states, and in 13 Battleground States. M-D got 23 calls right, and 1 wrong, and was off by an average of 5.75 points. None of their calls was the closest, but none of their polls was invalidated for being more than 10 points off. In the Battleground States, M-D got 12 right, 1 wrong, and was off by an average of 5.62 points.

#4 - CNN/USA Today/Gallup - CUG made predictions in 15 states, and in 12 Battleground States. CUG got 11 calls right and 4 wrong, and was off by an average of 5.33 points. Two of their final polls was the closest for that state (both in Battleground States), and none of their polls were invalidated for being more than 10 points off. In the Battleground States, CUG got 8 right and 4 wrong, and was off by an average of 5.33 points.

#3 - Research 2000 - R2K made predictions in 13 states, and in 7 Battleground States. R2K got 12 calls right, and 1 wrong, and was off by an average of 5.15 points. One of their final polls was the closest for that state ( in a Battleground State), and none of their polls were invalidated for being more than 10 points off. In the Battleground States, R2K got 6 right and 1 wrong, and was off by an average of 4.57 points.

#2 - A close finish, but number two is Rasmussen Reports. RR made predictions in 33 states, and in 13 Battleground States. RR got all their calls correct, without a single miss, and they were off by an average of 5.82 points. What hurt them was their wide variance of accuracy in support. Three of their final polls were the closest for their state, but another 3 of their final polls were off by more than 10 points. In the Battleground States, RR got all 13 right, and they were off by an average of 4.15 points.

#1 - (drum roll, please) Survey USA. SUSA made predictions in 30 states, and in 9 Battleground States. SUSA got 29 right and 1 wrong, and was off by an average of 3.70 points. So, why does SUSA win with 29/30, and beat RR take second with 33/33? It comes down to hitting the bullseye. EIGHTEEN of Survey USA's final polls were the closest for that state, almost twice as many as every other major poll PUT TOGETHER! Also, none of their polls were invalidated for being more than 10 points off. In the Battleground States, SUSA got 8 right and 1 wrong, and was off by an average of 3.44 points. Three of SUSA's final polls in Battleground States were the closest for that state, again the best of any poll.
At least nationally, Rasmussen was weighting by an assumption of equal numbers of Republicans and Democrats (which turned out to be true), while most advocates of weighting by party ID were urging weighting as a way to reduce the polling results for Republicans supposedly to correct for the higher percentages of Democrats (as determined by 2000 exit polling). Rasmussen's final national prediction was 50.2% for Bush and 48.5% for Kerry (which was off by less than 2% and got Kerry's share almost exactly).

So from this one election alone, the answer to weighting national polls would seem to be one of the following:

(1) do not weight by party, which allows you to catch a switch in party ID (as actually happened in 2004);
(2) weight by party according to exit polling in 2004 (equal numbers of Republicans and Democrats);
(3) to smooth out extreme swings in party ID in particular polls, weight by average party ID as revealed in polling done that current polling season;
(4) guess right about the weight to be used (as Rasmussen did this year nationally, perhaps with a good reason, perhaps not).

Related Posts (on one page):

  1. Real Clear Politics rates the pollsters,--
  2. Best State Poll Predictions were from Rasmussen and Survey USA.--
Mark Steyn

has a very funny and apt column in the Telegraph (UK) on European attitudes towards America. It naturally overgeneralizes to some extent, but I found it to be an incisive and amusing read. (Thanks to the newly-blogrolled Betsy Newmark for the pointer.)

Massad Defends Himself:

I've been reporting on the Professor Joseph Massad controversy at Columbia, which you can follow via the links below. I've reproduced, via Juan Cole, Massad's statement in his own defense, which I will mostly let speak for itself. My quick comments:

The difficulty with Massad seems less that he is anti-Israel, as such, and I've seen no evidence that he is anti-Semitic, but that he is an extreme left-wing ideologue who allows that ideology to interfere with scholarly judgment and to make broad statements about matters on which he is ignorant. Note that in statement reproduced below, while strongly objecting to being accused of anti-Semitism, he smears tens of millions of American Christians as anti-Semites, asserting that all evangelical Christians (whom he mischaracterizes as all being fundamentalists) (a) want to convert Jews, and (b) are therefore anti-Semitic. In fact, not all evangelical factions want to convert Jews; even fewer have active programs to do so (as opposed to seeking converts equally from all groups, including other Christians); and, as for the remaining groups who specifically target Jews for conversion, it's pretty hard to see as "anti-Semites" those who are eager to peacefully persuade Jews to join their religious community because they think that God has special love for the Jewish people.

Moreover--and this is truly absurd--Massad claims that evangelical Christians (and not, say, Islamic Jihadists) are the "most powerful anti-Semitic group worldwide." Besides the nonsensical notion of grouping all the disparate evangelical factions into one "group", the obvious questions arise: How many Jewish children in France have been beaten by evangelical Christians? How many evangelical ministers or newspapers have referred to Jews as the sons of pigs and monkeys? Beyond the tiny and definitely non-mainstream Christian Identity movement, which fundamentalist or evangelical terrorist groups have targeted Jews for violence? Which evangelical nations expropriated Jewish property and expelled their Jewish populations? Does a Jew wearing a yarmulke feel threatened walking through small-town Oklahoma, or am I confusing that with Cairo, Baghdad, Riyadh, etc.?

Massad also states that in his class, "One of the assigned readings by Israeli scholar and feminist Simona Sharoni spoke of how in Hebrew the word 'zayin' means both penis and weapon in a discussion of Israeli militarised masculinity." Again, this is an ideological construct with tenuous roots in reality. My Israeli wife--who served in the Israeli army and therefore heard plenty of discussions of weaponry--tells me that the modern Hebrew word for "weapon" is "neshek," and that she has absolutely never heard the word "zayin" used to mean weapon in modern Hebrew. She does recall that there is a biblical Hebrew word that has the same root as "zayin"--mizuyan--which means something like to be armed or wear armor (she can't recall which, which is a sign that she only encountered this in her Bible studies class, not in spoken modern Hebrew). If the word "zayin" or any derivatives is not used in modern Hebrew to mean weapon, how can this be an example of "Israeli militarised masculinity?" This makes me very suspicious of whether Prof. Massad, who styles himself an expert on Zionism and Israel, actually speaks Hebrew.

Anyway, here is Prof. Massad's statement (Note that the most troubling alleged incident involving Prof. Massad, is the one in which he refused to speak to an Israeli student at Columbia until the student revealed "how many Palestinians he had killed" while in the army; Prof. Massad denies that this incident ever took place, or that he ever met this student.):

The recent controversy elicited by the propaganda film Columbia Unbecoming, a film funded and produced by a Boston-based pro- Israel organisation, is the latest salvo in a campaign of intimidation of Jewish and non-Jewish professors who criticise Israel. This witch-hunt aims to stifle pluralism, academic freedom, and the freedom of expression on university campuses in order to ensure that only one opinion is permitted, that of uncritical support for the State of Israel.

Columbia University, the Department of Middle East and Asian Languages and Cultures, and I personally, have been the target of this intensified campaign for over three years. Pro-Israel groups are pressuring the university to abandon proper academic procedure in evaluating scholarship, and want to force the university to silence all critical opinions. Such silencing, the university has refused to do so far, despite mounting intimidation tactics by these anti- democratic and anti-academic forces.

The major strategy that these pro-Israel groups use is one that equates criticism of Israel with anti-Semitism. But the claim that criticism of Israel is an expression of anti-Semitism presupposes that Israeli actions are "Jewish" actions and that all Jews, whether Israelis or non-Israelis (and the majority of world Jews are not Israelis), are responsible for all Israeli actions and that they all have the same opinion of Israel.

But this is utter anti-Semitic nonsense. Jews, whether in America, Europe, Israel, Russia, or Argentina, are, like all other groups, not uniform in their political or social opinions. There are many Israeli Jews who are critical of Israel just as there are American Jews who criticise Israeli policy. I have always made a distinction between Jews, Israelis, and Zionists in my writings and my lectures. It is those who want to claim that Jews, Israelis, and Zionists are one group (and that they think exactly alike) who are the anti-Semites. Israel in fact has no legal, moral, or political basis to represent world Jews (ten million strong) who never elected it to that position and who refuse to move to that country.

Unlike the pro-Israel groups, I do not think that Israeli actions are "Jewish" actions or that they reflect the will of the Jewish people worldwide! All those pro-Israeli propagandists who want to reduce the Jewish people to the State of Israel are the anti-Semites who want to eliminate the existing pluralism among Jews. The majority of Israel's supporters in the United States are, in fact, not Jews but Christian fundamentalist anti-Semites who seek to convert Jews. They constitute a quarter of the American electorate and are the most powerful anti-Semitic group worldwide. The reason why the pro-Israel groups do not fight them is because these anti-Semites are pro-Israel. Therefore, it is not anti-Semitism that offends pro- Israel groups; what offends them is anti-Israel criticism. In fact, Israel and the US groups supporting it have long received financial and political support from numerous anti-Semites.

This is not to say that some anti-Zionists may not also be anti-Semitic. Some are, and I have denounced them in my writings and lectures. But the test of their anti-Semitism is not whether they like or hate Israel. The test of anti-Semitism is anti-Jewish hatred, not anti-Israel criticism. In my forthcoming book, The Persistence of the Palestinian Question, I link the Jewish Question to the Palestinian Question and conclude that both questions persist because anti-Semitism persists. To resolve the Palestinian and the Jewish questions, our task is to fight anti-Semitism in any guise, whether in its pro-Israel or anti-Israel guise, and not to defend the reprehensible policies of the racist Israeli government.

I am now being targeted because of my public writings and statements through the charge that I am allegedly intolerant in the classroom, a charge based on statements made by people who were never my students, except in one case which I will address momentarily. Let me first state that I have intimidated no one. In fact, Tomy Schoenfeld, the Israeli soldier who appears in the film and is cited by the New York Sun, has never been my student and has never taken a class with me, as he himself informed The Jewish Week. I have never met him.

As for Noah Liben, who appears in the film according to newspaper accounts (I have not seen the film), he was indeed a student in my Palestinian and Israeli Politics and Societies course in the spring of 2001. Noah seems to have forgotten the incident he cites. During a lecture about Israeli state racism against Asian and African Jews, Noah defended these practices on the basis that Asian and African Jews were underdeveloped and lacked Jewish culture, which the Ashkenazi State operatives were teaching them. When I explained to him that, as the assigned readings clarified, these were racist policies, he insisted that these Jews needed to be modernised and the Ashkenazim were helping them by civilising them.

Many students gasped. He asked me if I understood his point. I informed him that I did not. Noah seems not to have done his reading during the week on gender and Zionism. One of the assigned readings by Israeli scholar and feminist Simona Sharoni spoke of how in Hebrew the word "zayin" means both penis and weapon in a discussion of Israeli militarised masculinity. Noah, seemingly not having read the assigned material, mistook the pronunciation of "zayin" as "Zion", pronounced in Hebrew "tziyon". As for his spurious claim that I said that "Jews in Nazi Germany were not physically abused or harassed until Kristallnacht in November 1938", Noah must not have been listening carefully.

During the discussion of Nazi Germany, we addressed the racist ideology of Nazism, the Nuremberg Laws enacted in 1934, and the institutionalised racism and violence against all facets of Jewish life, all of which preceded the extermination of European Jews. This information was also available to Noah in his readings, had he chosen to consult them. Moreover, the lie that the film propagates claiming that I would equate Israel with Nazi Germany is abhorrent. I have never made such a reprehensible equation.

I remember having a friendly rapport with Noah (as I do with all my students). He would drop off newspaper articles in my mailbox, come to my office hours, and greet me on the street often. He never informed me or acted in a way that showed intimidation. Indeed, he would write me e-mails, even after he stopped being my student, to argue with me about Israel. I have kept our correspondence.

On 10 March, 2002, a year after he took a class with me, Noah wrote me an e-mail chastising me for having invited an Israeli speaker to class the year before when he was in attendance. It turned out that Noah's memory failed him again, as he mistook the speaker I had invited for another Israeli scholar. After a long diatribe, Noah excoriated me: "How can you bring such a phony to speak to your class??"

I am not sure if his misplaced reproach was indicative of an intimidated student or one who felt comfortable enough to rebuke his professor!

I am dedicated to all my students, many of whom are Jewish. Neither Columbia University nor I have ever received a complaint from any student claiming intimidation or any such nonsense. Students at Columbia have many venues of lodging complaints, whether with the student deans and assistant deans, school deans and assistant deans, department chairmen, departmental directors of undergraduate studies, the ombudsman's office, the provost, the president, and the professors themselves. No such complaint was ever filed.

Many of my Jewish and non-Jewish students (including my Arab students) differ with me in all sorts of ways, whether on politics or on philosophy or theory. This is exactly what teaching and learning are about, how to articulate differences and understand other perspectives while acquiring knowledge, how to analyse one's own perspective and those of others, how to interrogate the basis of an opinion.

Columbia University is home to the most prestigious centre for Israel and Jewish studies in the country. Columbia has six endowed chairs in Jewish studies (ranging from religion to Yiddish to Hebrew literature, among others). In addition, a seventh chair in Israel studies is now being established after pro-Israel groups launched a vicious campaign against the only chair in modern Arab studies that Columbia established two years ago, demanding "balance"!

Columbia does not have a centre for Arab studies, let alone a centre for Palestine studies. The Department of Middle East and Asian Languages and Cultures (MEALAC) encompasses the study of over one billion South Asians, over 300 million Arabs, tens of millions of Turks, of Iranians, of Kurds, of Armenians, and of six million Israelis, five million of whom are Jewish.

To study these varied populations and cultures, MEALAC has three full time professors who cover Israel and Hebrew, four full time professors to cover the Arab World, and two full-time professors who cover South Asia. One need not do complicated mathematics to see who is overrepresented and who is not, if the question is indeed a demographic one.

Moreover, the class that this propaganda machine is targeting, my "Palestinian and Israeli Politics and Societies" course, is one of a number of courses offered at Columbia that cover the Palestinian/Israel conflict. All the others have an Israel-friendly perspective, including Naomi Weinberger's "Conflict Resolution in the Middle East", Michael Stanislawski's "History of the State of Israel, 1948-Present" and a course offered in my own department by my colleague Dan Miron, "Zionism: A Cultural Perspective".

My course, which is critical of Zionism and Palestinian nationalism, is in fact an elective course which no student is forced to take.

Let us briefly review these claims of intimidation. Not only have the students (all but Noah have not even taken my courses) not used a single university venue to articulate their alleged grievances, they are now sponsored by a private political organisation with huge funds that produced and funded a film about them, screened it to the major US media and to the top brass of the Columbia administration.

Last Wednesday, the film was screened in Israel to a government minister and to participants at a conference on anti- Semitism. The film has still not been released to the public here and is used as a sort of secret evidence in a military trial.

The film has also been used to trump up a national campaign with the aid of a New York congressman to get me fired. All this power of intimidation is being exercised not by a professor against students, but by political organisations who use students against a junior non-tenured faculty member. A senior departmental colleague of mine, Dan Miron, who votes on my promotion and tenure, has recently expressed open support for this campaign of intimidation based on hearsay.

Indeed with this campaign against me going into its fourth year, I chose under the duress of coercion and intimidation not to teach my course this year. It is my academic freedom that has been circumscribed. But not only mine. The Columbia courses that remain are all taught from an Israel-friendly angle.

The aim of the David Project propaganda film is to undermine our academic freedom, our freedom of speech, and Columbia's tradition of openness and pluralism.

It is in reaction to this witch-hunt that 718 international scholars and students signed a letter defending me against intimidation and sent it to President Bollinger, with hundreds more sending separate letters, while over 1,300 people from all walks of life are signing an online petition supporting me and academic freedom. Academics and students from around the world recognise that the message of this propaganda film is to suppress pluralism at Columbia and at all American universities so that one and only one opinion be allowed on campuses, the opinion of defending Israel uncritically.

I need not remind anyone that this is a slippery slope, for the same pressures could be applied to faculty who have been critical of US foreign policy, in Iraq for example, on the grounds that such critiques are unpatriotic.

Surely we all agree that while the university can hardly defend any one political position on any current question, it must defend the need for debate and critical consideration of all such questions, whether in public fora or in the classroom. Anything less would be the beginning of the death of academic freedom."

UPDATE: A reader writes:

In the interest of complete accuracy, I am obliged to correct your impression of the non-use of the word "zayin" in modern Hebrew to refer to "weapon". It is accepted IDF parlance to refer to "armed forces" as "kokhot mezuyanim", the latter word deriving from the root "zayin". ("Kokhot" is the plural of "koakh", meaning "force"). "Klei zayin", or "instruments of weaponry" (i.e.,weapons), although somewhat antiquated, is also correct modern Hebrew, and not limited to Bible class usage.

The same root also occasionally means "fortified" - thus, "reinforced concrete" is "beton mezuyan". It should not need pointing out that this is not Biblical usage. You would, naturally, be perfectly justified in inquiring after my credentials in offering these remarks. To save you the trouble of asking for them - I am Israeli-born, a native speaker of Hebrew, a captain in the IDF, and still do regular reserve duty, where I am exposed to the most current Israeli military idiom.

I should also point out that these comments should under no circumstances be taken to indicate agreement with Sharoni's polemic, viz. her "discussion of Israeli militarised masculinity".

For what it's worth, my wife reiterates her point that "neshek," not zayin, is the Hebrew word for "weapon," and adds that it's very, very rare to hear any of the other terms the reader mentions in modern Hebrew.

Another reader writes:

The origin of the Israeli Hebrew slang word zayin meaning 'penis' is actually from the letter of the alphabet [zayin is the seventh letter of the Hebrew alphabet, and is the equivalent of "zee"], not from the biblical and rabbinic word meaning 'weapon'. The derivation I heard was that in early Israeli slang the word zanav, 'tail', was used for penis, and when that started to seem too improper, the first letter of the word, zayin, was euphemistically substituted for it, which in due course has become the only colloquial word for it (with no trace of this sense remaining in zanav).

UPDATE: Several reliable sources inform me that Massad does not know Hebrew. Isn't Columbia embarassed to have a non-Hebrew speaker teaching a course called "Palestinian and Israeli Politics and Societies"? How much can Massad know about Israeli society if he can't speak to Israelis in their native tongue, nor read Israeli books or periodicals in the original?

Bill Stuntz writes on the 1896, 1916, & 2004 election pattern.-- Bill Stuntz, who started as an assistant professor at UVA when I was a visiting professor there in the mid-1980s, is now a professor at the Harvard Law School. He wrote me an email on the voting patterns that I and many others have been noting:
There have been six elections with this basic pattern, South and West versus Northeast (more recently, the Pacific Coast joins the Northeast), with the Midwest divided. The first is 1896, and that's the only one the candidate of the Northeast wins. The others -- 1916, 1948, 1968, 2000, and now 2004 -- are all won by the candidate of the South and West, who always wins at least a couple of Midwestern states, always including Ohio and Missouri. The key is that the Midwest has never identified culturally with the Northeast. In a close election, it just isn't possible for a candidate like Kerry to sweep the region -- and he had to nearly sweep the region in order to win.

I did an article that was partly about this pattern (mostly about the similarities of 2004 to 1948) at before the election.
I had read his prescient article when it came out, but it had slipped my mind. It was enttitled: "Why Dewey Defeats Truman -- And Bush Beats Kerry?"