Saturday, November 20, 2004

Alan Sokal and the Social Text Parody: In 1996, physics professor Alan Sokal published a parody article on the social construction of physics in the journal Social Text. It turns out that Sokal's website has copies of the original article, the Lingua Franca article in which he came clean about his spoof, and other writings about the controversy both by Sokal and others.

  You can find the original article published in Social Text here: Transgressing the Boundaries: Towards a Transformative Hermeneutics of Quantum Gravity.
  Sokal's Lingua Franca piece coming clean about the parody is here: A Physicist Experiments With Cultural Studies.
  Sokal's follow-up story is here: Transgressing the Boundaries: An Afterword.

  (Hat tip: Steve Sanders)

Friday, November 19, 2004

In Case You Are Worried

that the VC's affiliation with will render us bland and colorless, here is a reminder that being part of the Conspiracy is all about taking on the Man. (Link: Howard)

Apologies for the formatting glitches,

such as the weird font for the links. We should have them fixed up by the end of the day.

Google scholar:

My colleague Gary Blasi helpfully pointed me to, which lets you search through "scholarly" sites. Looks potentially useful, though it's hard to tell how good (i.e., suitably broad yet suitably narrow) the search function is.

Special bonus for the sophomorically inclined (this is my idea, not Gary's): The search engine lets you engage in the always amusing prospect of searching scholarly databases for vulgar sexual terms and seeing the latest wisdom from the academy on the subject. (Avoid the Latinate terms, since scholarship that uses the Latinate form tends to be less interesting, though more useful.)

Just for a sample gem, one of my queries yielded, as the quote for the #1 result, "One could make an antinomian claim to validity on behalf of, say, a [you guess the sexual act] in a tearoom." Antinomian claims to validity; wow! I wonder if any acts my friends or I have ever engaged in, in tearooms or outside them, would have antinomian claims to validity. I doubt it — I just don't think we're that well-educated. Avoid the obvious query, incidentally, because poor Reinhardt Adolfo F... (apparently a fairly well-cited scholar) makes it less interesting than it otherwise might be.

UPDATE: D'oh! I forgot the best part of the antinomian item — it comes from an article titled Introduction: The Liberation of Intimacy: Consumer-Object Relations and (Hetero) Patriarchy. And, yes, I know that I'm quoting things out of context here.

FURTHER UPDATE: Samuel Chambers writes:

While the article that Google scholar gives you is, indeed, "Introduction: The Liberation of Intimacy: Consumer-Object Relations and (Hetero) Patriarchy" the quote it finds is actually from a different author and text. The source is Michael Warner's book, _The Trouble With Normal_ a very significant text in queer theory that happens to be making a very important argument -- about the politics of marriage -- in the chapter that contains that quote. Warner is one of the first and only queer theorists to challenge the mainstream gay movement's call for gay marriage. His critique is now widely-cited (hence its appearance on Google scholar, and in that oddly titled article) and important to the field.
Volokh Conspiracy Sells Out: I'm pleased to report that American Lawyer Media's has invited us to join the Blog Network, and we accepted. This means:
  1. You'll see an ad that they provide in the upper right hand corner of the blog, followed by headlines from other Blog Network blogs. We neither endorse nor denounce the contents of those ads, though I suppose that if they start selling "I Love Fidel" T-shirts, we might have a word or two with them.
  2. We'll see a small cut of the ad revenue, which we'll enjoy on our new Conspiracy jet in our old miserable hovels, since it really is a pretty small cut (though, hey, it's always nice to add to young Benjamin's education fund).
  3. We'll also see more eyeballs. Yum! Eyeballs! Really, we're into blogging for the eyeballs — as you might have gathered, we (mostly lawprofs) love to talk, and it's always more fun to talk when people are listening. And the people say that they'll promote the Blog Network blogs to their readers, thus drawing more of said delicacies our way.
  4. You'll see the same content as before. They aren't telling us what to write; the content is, as always, entirely of our own choice. I suppose that if they sufficiently dislike what we're writing, I suppose, they can tell us to take a hike, but then we'll tell them to take a hike. We can be bought, but not for the amount they're paying us.
  5. We cobloggers also promise to avoid fratricidal infighting over how to split the handsome revenue that will be rolling in.
  6. Just 'cause we think it's only fair, here's what our new robot overlords our corporate partners have to say: "'Through this innovative partnership, now has tapped into a forum where important voices are providing insights into developing events and issues,' said Stacey Artandi, vice president, online publishing for ALM. 'We're excited that these individuals, who are closely followed and deeply respected, are enhancing our daily legal coverage by joining our Network. will continue to add emerging thought leaders as we expand our presence in the legal community.'" Emerging thought leaders — I like that!
  7. Oh, yes, and "For Blog Network advertising information and assistance, please contact Michaela Apruzzese at 212-545-5901 or"
Likudnik, Part II:

Kevin Drum writes:

ANTI-SEMITISM....This is getting tiresome. It has long been a staple on the right that most criticism of Israel is really just thinly veiled anti-Semitism. Then after 9/11 we began hearing that criticism of neocons was just thinly veiled anti-Semitism. Now David Bernstein comes along to tell us that use of the term "Likudnik" is just thinly veiled anti-Semitism.

Here's what I actually wrote:

Folks on the Left have been throwing around the term "Likudnik" to refer to any non-left-wing Jew who differs with them on foreign policy, even when the relevant issue has nothing directly to do with Israel, Iraq being exhibit A.... Not surprisingly, the phrase "Likudnik" is gradually becoming a general anti-Semitic term for Jews whose opinions one doesn't like. Case in point, an email from one Matthew Hess...

To give Kevin the benefit of the doubt, I'll assume that this is somehow unclear, so I will explain: "throwing around the term" implies carelessness, and I don't say anything about this carelessness being anti-Semitism, nor to I ever state that "use of the term 'Likudnik' is just thinly veiled anti-Semitism." However, I do argue that because folks are throwing around the term "Likudnik" carelessly, it's "not surprising" that the term is "gradually becoming a general anti-Semitic term."

I then given an example, which Kevin imprecisely describes as "a dumb email [Bernstein] received that used the term both incorrectly and insultingly." Judging from the comments section to Kevin's blog, most of his readers apparently assumed that this "dumb email" had something to do with Israel. It did not; it had to do with a Cathy Young column that disputed the "Bush voters are dumb" line. The author of the email cut and pasted a critique of Young from another blog, and then commented re Eugene (who, btw, had not commented on the Young column) and me: "You are two dumb Likudnik monkeys." "Likudnik" "gradually becoming a general anti-Semitic term." Kevin says, "Let's leave charges of anti-Semitism for actual anti-Semitism." So, Kevin, was this anti-Semitism (or, the way I would prefer to phrase it, an example of prejudice against Jews), or not? Or does calling someone a "dumb Likudnik monkey" when the topic at hand has nothing to do with foreign policy, much less Israel, merely reflect Kevin's point that "it's hardly surprising that most Americans aren't familiar with the minutiae of right-wing Israeli politics"?

Kevn adds:

I have no doubt that some anti-Semites do indeed use these terms as ways of expressing their views in more socially acceptable ways. But what are the rest of us supposed to do? These groups and their supporters are all perfectly legitimate targets of criticism and I'm getting tired of the hyper-PC right suggesting otherwise. Using "Likudnik" as a synonym for "supporter of right-wing Israeli politics" isn't entirely correct, but it's not all that far off the mark, especially in casual usage.

I wrote in my post, "Let's start by having a moratorium on the term 'Likudnik' to refer to anyone but actual, declared supporters of Likud..., and only when they are supporting or justifying a policy on Israel-related affairs." I'll grant Kevin that "declared supporters of Likud" may be too narrow, and that "supporters of right-wing Israeli politics" is fine. However, I reiterate that Likudnik should be used when referring to policy on Israel, not because sloppier uses of the term are inherently anti-Semitic, but because sloppy use of the term not only theoretically can but actually has created an opening for abusive use of the term by people who are either generally prejudiced against Jews, or, who, in an odd form of prejudice common to Jews themselves, believe that Jews have some special obligation to be leftists, and therefore any non-leftist Jew can be tarred as a "Likudnik," whatever that means. And since these other, non-Israel related uses of Likudnik are, in fact, sloppy, and often have nothing to do with Likud (or "right-wing" Israeli) policies, as such, restricting the term to its literal and natural meaning will actually enhance discourse over any given underlying issue.

UPDATE: I wrote the following to a correspondent, which I like well enough to share with VC readers: Let's say during the Clinton Administration, the Washington Post had quoted an unnamed government official, discussing Clinton Administration policy in Africa, as stating, in a clearly derogatory but not very specific way, "the Pan Africanists are in charge here." The article, meanwhile, talked mostly about black officials in the defense department and state department, and quoted Randall Robinson as defending these individuals. Over time, conservatives began to use this phrase disparagingly in reference to Clinton Administration officials, usually black, who were sympathetic to, and friendly with, leftist elements in South Africa (such as the Pan Africa Congress). Also over time, conservatives began to refer to "Pan Africanists" when discussing other elements of Clinton Administration policy in Africa that had nothing to do with South African policy, except that it reflected what critics saw as a generally leftist bent to more general African policy. Thus, for example, criticism of foreign aid to Ethiopia, or military intervention in Somalia, as reflecting the "Pan Africanist" agenda. Meanwhile, one started to notice that right-wing hate sites began to refer to any black officials in the Clinton Administration, and even Clinton Administration supporters outside the Administration, as "Pan Africanists." And a black blogger, who wrote a post on how Clinton voters aren't mostly promiscuous, received an email calling him, on the basis of that post, a "dumb Pan Africanist monkey." The analogy is inexact (blacks are not usually charged with dual loyalties, and Pan African ideology would really affect policy on Africa, while Likud ideology is rather specific to Israel; on the other hand, except among Muslim extremists, Jews aren't usually called monkeys), but it will do. Would you really consider it inappropriate at that point for the blogger to note that right-wingers have been using the phrase loosely, and thus bear some responsiblity to tighten their usage to avoid its developing racist connotations? And would the Post not bear some responsibility for quoting an anonymous official, in a context that fails to make it clear whether the official in question simply making a very specific reference to very specific individuals in the context of actual South African policy or was engaging in a slur?

Condaleeza Rice and the Second Amendment:

Condoleeza Rice has described herself as "a Second Amendment absolutist." An article in the Montgomery Advertiser explains why. She grew up in Birmingham, Alabama, where her father, a Presbyterian minister, was a strong advocate of civil rights:
Rice has said memories of Birmingham's racial turmoil shaped some of her core values.

During the bombings of the summer of 1963, her father and other neighborhood men guarded the streets at night to keep white vigilantes at bay. Rice said her staunch defense of gun rights comes from those days. She has argued that if the guns her father and neighbors carried had been registered, they could have been confiscated by the authorities, leaving the black community defenseless.

Thursday, November 18, 2004

The Ivory Tower:

You know that a university is doing pretty well when the lead article in the latest issue of the school paper begins with following paragraph:

  The Kappa Kappa Gamma sorority will receive "harsh penalties" for allowing two unrecognized fraternities to participate in their kickball tournament, Panhellenic Association officials said earlier this week.

Phil Carter responds:

Phil Carter, who is a co-author of the Slate piece that I mentioned below, an expert on law-of-war questions, and my former student, responded:

You wrote: "But I don't see how the the Third Geneva Convention applies to insurgents who don't abide by the laws of war, see article 4. (I'm also not sure why 'prisoner' status would automatically flow from securing the building.)"

Interesting note, but you're basically making the same flawed argument as the DOJ and DOD lawyers with respect to the Gitmo detainees. The default position is that a combatant is entitled to Geneva protections, until such time as that combatant is adjudicated by a competent tribunal. (See Art. V) The official US policy is that Geneva III *does* apply to Iraq, unlike the the administration's position with respect to Afghanistan and Al Qaeda detainees generally. But regardless, the treaty contemplates the situation where a combatant does not qualify for status under Art. IV, and establishes a procedure for adjudicating this. Until that tribunal acts, prisoners are entitled to 3rd GC protection.

As for the question of when someone becomes a prisoner, that's a really thorny factual inquiry. I think the test was met here, because the Marines secured the building. But we'll see.

There's another interesting wrinkle here that we didn't even cover. The Marines were fighting under a Rules of Engagement document. Even if this shooting didn't violate the Geneva Conventions, it might have violated their ROE. And consequently, it may still be an unlawful killing. I don't have access to those ROE documents, but I imagine they're at the heart of the inquiry right now into this young Marine's actions.

This one's going to be studied at the JAG school for a long time.

Phil may be correct, and I can't even express an opinion about the Rules of Engagement. But I'm skeptical about the need for a tribunal. It seems to me that while tribunals make sense when the question is what to do with a prisoner who is safely detained, they obviously can't be used in a split-second decision in battle about who's a possible threat and who isn't. One could, I suppose, say that therefore soldiers must always err on the side of assuming that the person is protected by the Conventions; but that doesn't seem right, given the soldiers' need and entitlement to protect themselves against unlawful actions by unlawful combatants. If soldiers are entitled to deal harshly with wounded enemy soldiers who might be engaged in perfidious acts, surely that entitlement can't be contingent on holding a mini-trial right there to determine the matter.

Also, the provision is in the Third Geneva Convention, related to treatment of Prisoners of War, "Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." Again, this makes sense once the person has been taken prisoner (hence its presence in the Prisoners of War convention), but not when we're talking about wounded people on the battlefield, hence its absence in the Sick and Wounded convention — the one that I was discussing in my first post.

But beyond this, I don't see any doubt in some situations -- for instance, when the enemy combatant is captured while fighting in a mosque, which is per se a violation of the laws of war (again, see the first post in the chain), or fighting out of uniform, or otherwise not abiding by the laws of war.

Phil's follow-up responses, to points similar to those I raise above (though I didn't ask him about all of the points, so any incompleteness in his responses may flow from that):

[L]ook at the plain meaning of Art. V. In cases of doubt, you treat enemy belligerents as prisoners once captured, not as unlawful combatants or some other invented category. Only a competent tribunal can resolve this doubt. Now, you can still kill the enemy, and in fluid situations where someone may or may not be a prisoner, you can still act to defend yourself. The issues you raise have to deal with adjudicating someone's status once they're a prisoner — not what to do with them on the battlefield. I think you're conflating the issues here, between the determination as to whether someone is still a belligerent, and on the other hand, what status a prisoner should receive after capture.

Seeking shelter in a mosque is generally a violation of the law of war, as is perfidy. Nonetheless, I don't see any language about reasonable doubt or executive determinations in the GC. The language is very broad — "Should ***any*** doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal." [emphasis mine] It does not say "reasonable" doubt or anything of the sort, although that's the argument that DOD and DOJ has made. I think the plain meaning of this article contradicts their interpretation, and so do a number of federal judges.

In any event, that's not a job for the grunts to sort out. They're allowed to use force within the constraints of their ROE. If their ROE breaks the law of war, then they have a defense of superior orders available to them, and the officer who drafted the ROE and approved will be on the blame line. Only a competent tribunal can determine these things. The Army's even drafted regulations for what these should look like (see

In any event, those are my views, and Phil's — hope you folks find them interesting.

Former Ninth Circuit Clerks Respond: I received lots of mail from former Ninth Circuit clerks in response to my Friday post on the role that bench memos play in the Ninth Circuit. Some agreed with my pet theory that shared bench memos contribute to some of the Ninth Circuit's quirky decisions; others weren't convinced. I thought VC readers might be interested in a sampling of the responses.

  From a former clerk to one of the court's liberal judges:
  I think you're spot-on regarding the Circuit's unusual practice of having one judge's clerk write a bench memo for the entire panel. It probably does lead to quirkier opinions. I'd simply add that we scrutinized the bench memos of certain judges far more intensely than others. To some extent, the additional scrutiny was a function of politics — god forbid I'd accept tout court a bench memo written by the clerks [of particular conservative judges], because they would inevitably slant facts or ignore cases for partisan political reasons. By and large, though, the additional scrutiny would reflect the Judge's assessment of the legal abilities of the other judges on the panel, an assessment that in no way tracked their political ideologies. Simply put, the Judge thought some judges were better than others, a fact that invariably affected the quality of the clerks they hired. So we knew going into each panel the level of scrutiny we should give the bench memos from the other chambers.
  From a former clerk to a conservative-leaning judge on the Ninth Circuit:
  [When I was a Ninth Circuit clerk,] I thought some of its problems could be attributed to the sharing of bench memos as well. In fact, I proposed to my co-clerk that we write a law review article on the subject, but that never materialized.
  A former clerk to one of the Ninth Circuit's prominent conservative judges offered this perspective:
  I think you're right about the bench memoranda on the ninth circuit being partially responsible for the outlier decisions. Some judge's chambers were notorious for simply doing poor work, other judge's chambers notorious for doing politically motivated work, and you really had to check up on them. Problem was, bench memoranda were often circulated very close to oral argument, so there wasn't much time to do the necessary research, write a memorandum for the judge explaining how the case might more properly be viewed, etc. So having only one chamber do an initial memorandum might work if you provided enough time for review and comment, but the Ninth doesn't.
  A former clerk to one of the Ninth Circuit's leading liberal judges offered a somewhat different take:
  There may be something to what you say, but you miss an important psychological dynamic that cuts the other way. As a clerk, there's really nothing better than finding an error in a bench memo produced by another chambers. It makes you feel like a real smarty-pants. One of the best things in Ninth Circuit clerk life is being able to brag at the end of a case: "We came out this way, but actually the bench memo from ___ chambers recommended the other outcome. I wrote a memo disagreeing, and the panel came out my way."
  More generally — even accepting the factual premise that an unusually high number of Ninth Circuit cases are outliers (is there any real empirical support for such a claim?), the explanation is probably more straightforward. Ninth Circuit judges don't care much about disagreeing with other circuits, and perhaps they don't care much about being overturned. In my experience, when we were writing a case that might be considered an outlier, we knew what we were doing. When the Ninth Circuit produces "outlier cases," it's not because of poor legal work — it's just that it disagrees with everyone else.
  One significant problem with my theory is that, according to my correspondents, the Fifth Circuit and the Sixth Circuit also share bench memos. The Sixth Circuit is just about as dysfunctional as the Ninth Circuit, so I don't know which way that cuts, but it seems important to note that the Ninth isn't the only circuit that uses a common bench memo. That does cut against the theory.

  UPDATE: Sources have informed me that the Sixth Circuit does not routinely share bench memos. Some judges do, but most don't, and in any event it is not a circuit practice. Sorry for the confusion.
More on the Geneva Conventions and wounded combatants:

A colleague of mine suggested that the Fourth Geneva Convention may protect wounded insurgents even if their armed forces don't comply with the laws of war:

Article 3

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely . . . .

To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:

(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; . . .

2. The wounded and sick shall be collected and cared for.

This does seem to provide a stronger case than the other provisions I cited in the post below, because it doesn't directly require that the armed group to which the wounded person belongs comply with the laws of war; but even this provision doesn't strike me as applicable here.

The whole question is whether a wounded enemy soldier is now "taking no active part in the hostilities" -- though he had been fighting minutes ago -- and is "hors de combat," which is to say out of combat. If the enemy forces have indeed continued shooting when grievously wounded (which is not a violation of the laws of war), or have pretended to be out of combat and continued shooting (which is a violation), or have pretended to be friendly soldiers and then attacked (which is also a violation), or have hidden explosives under corpses (which likely is perfidious action, and thus a violation, though I'm not sure), then this might make it quite reasonable for our forces to doubt that the enemy soldier is indeed now "taking no active part in the hostilities."

Related Posts (on one page):

  1. Phil Carter responds:
  2. More on the Geneva Conventions and wounded combatants:
  3. Wounded soldiers and the Geneva Conventions:
Wounded soldiers and the Geneva Conventions:

I'm not up on the facts of the incident in which a marine is alleged to have killed a wounded and supposedly harmless enemy soldier. But let's assume the following situation: A wounded insurgent — not a member of a nation's armed forces or militias allied to a nation's armed forces — is no longer attacking you (naturally, it's quite permissible to kill wounded enemy soldiers who are still attacking you), but you are afraid that he might attack, might detonate some suicide bomb, or what have you. Is it a violation of the Geneva Convention to kill the person? (I can't speak to other legal rules, including any specifically promulgated by the U.S. military, since I'm not expert on the field, and have looked only at the Geneva Conventions touching on this.)

The answer appears to turn on whether the wounded person belongs to a group that has been following the laws of war. The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, art. 13, provides that:

The present Convention shall apply to the wounded and sick belonging to the following categories:

* (1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

* (2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfill the following conditions:

o (a) that of being commanded by a person responsible for his subordinates; o (b) that of having a fixed distinctive sign recognizable at a distance; o (c) that of carrying arms openly; o (d) that of conducting their operations in accordance with the laws and customs of war.

* (3) Members of regular armed forces who profess allegiance to a Government or an authority not recognized by the Detaining Power.

* (4) Persons who accompany the armed forces without actually being members thereof, such as civil members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization from the armed forces which they accompany.

* (5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions in international law.

* (6) Inhabitants of a non-occupied territory, who on the approach of the enemy, spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

It's not clear whether the Iraqi insurgents are covered by any of these categories. Item 3, for instance, pretty clearly doesn't apply, because militias such as the Iraqi insurgents are not "regular armed forces"; item 1 doesn't apply, because the militias aren't part of the Party's (i.e., Iraqi government's) armed forces.

But even if they somehow are covered by item 2 — I'm not sure they are, since "Party" refers to governments, and these forces don't seem to belong to the Party, but it's conceivable that the reference to "organized resistance movements" is intended to cover situations where people fight on after the government of the nation has been defeated and a new one has been put into place — they are covered only if they respect the laws and customs of war. Insurgents who are fighting out of uniform, or who are using places of worship for military purposes (see Protocol Relating to the Protection of Victims of International Armed Conflicts) are, to my knowledge, violating the laws of war, and thus are not covered. Likewise, "the feigning of an incapacitation by wounds or sickness" — which I take it would include a wounded person pretending to be incapable of hostile action, while he's preparing to attack or detonate a suicide bomb when enemy soldiers approach — and "the feigning of civilian, non-combatant status" would violate the laws of war. ("Acts inviting the confidence of an adversary to lead him to believe that he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy" and are thus forbidden.)

Thus, if insurgents have systematically shown unwillingness to comply with the laws of war, as best I can tell they are not protected by the Geneva Convention I mentioned above. And while that's harsh, it's understandable: Soldiers ought to help the enemy wounded, but not when doing so runs the risk of being killed by those who will keep attacking even though they're wounded and pretending to be incapacitated.

Again, I don't know the facts of the incident I mentioned above; nor have I followed closely the extent of the violations of the laws of war by Iraqi insurgents; and I'm not an expert on the laws of war, so I might be missing something important here. Nonetheless, it seems to me that before people assume that the Geneva Convention for the protection of the wounded applies, we'd have to investigate whether the Iraqi insurgents are entitled to such protection.

UPDATE: Owen West and Philip Carter deal with the same matter in Slate. The core of their view is that "The Third Geneva Convention makes it a war crime to kill or injure a prisoner or to deny medical care to a prisoner for wounds suffered in combat, among other things. If prosecutors charge the Marine with murder, they will argue that the Marines took these Iraqi men as prisoners the moment they secured the building. Moving or not, the wounded Iraqi was a prisoner, and therefore it was a crime to shoot him, even in the crazy kill-or-be-killed environment of Fallujah." But I don't see how the the Third Geneva Convention applies to insurgents who don't abide by the laws of war, see article 4. (I'm also not sure why "prisoner" status would automatically flow from securing the building.)

Among other things, this paragraph in the Slate piece is a catalog of the insurgents' violations of the laws of war, including "perfidy" of the sort that is both unlawful and understandably leads enemy soldiers to worry that even your wounded may be a serious threat:

In this unit's case, one early lesson in Fallujah was to avoid Iraqis altogether, dead or alive. Iraqis wearing National Guard uniforms had ambushed them, killing one of their own. Another Marine had been killed when an explosive detonated under an insurgent corpse. . . . [Other insurgents] tried to exploit the civil-military moral gap, acting as soldiers at 500 meters and as civilians when the Marines closed in. The Iraqis in the mosque may have been immobile, but to the Marines, they posed a threat.

All in all, the West & Carter piece is generally sympathetic to the accused Marine; but I don't see why it so quickly assumes that the Geneva Conventions apply here.

FURTHER UPDATE: Reader Seth Barrett Tillman points to this part of the Protocol:

Article 41.-Safeguard of an enemy hors de combat

1. A person who is recognized or who, in the circumstances, should be recognized to be hors de combat shall not be made the object of attack.

2. A person is hors de combat if:

(a) He is in the power of an adverse Party;

(b) He clearly expresses an intention to surrender; or

(c) He has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself; provided that in any of these cases he abstains from any hostile act and does not attempt to escape. . . .

I take it that the question is whether wounded enemy soldiers are in "the power of an adverse Party" when the Party's soldiers have reason to fear that they still retain the ability and willingness to kill (based on previous such actions by the wounded person's fellow soldiers).

Related Posts (on one page):

  1. Phil Carter responds:
  2. More on the Geneva Conventions and wounded combatants:
  3. Wounded soldiers and the Geneva Conventions:
Party affiliations of academics:

Today's New York Times reports on a recent study by Daniel Klein. Klein sampled over 1000 U.S. academics as to their party affiliations. Here are a few salient facts:

1. In the humanities and social sciences, Democrats outnumber Republicans by at least seven to one.

2. For nonacademic practitioners, the numbers are not nearly so skewed. Either there is bias against Republicans, or Republicans prefer other options over academia more than Democrats do. I am more inclined to the latter option, but this requires investigation.

3. Among anthropologists, the ratio of Democrats to Republicans is about thirty to one. For economists it is "only" three to one.

4. Stanford and Berkeley have especially high ratios of Democrats to Republicans, about nine to one; this is taken from voter registration records, rather than the questionnaires.

Here is a link to the original research, go to the bottom left of the page for the relevant leads.

The Man Who Set Himself on Fire

in front of the White House a few days ago turns out to be an important informant who had led U.S. investigators to lots of information in a number of terrorism cases. The New York Times offers this investigative report.

Organized Crime in Your In-Box:

Today's Washington Post offers this very good story on e-mail phishing scams.

No Anti-Semitism Here...: Folks on the Left have been throwing around the term "Likudnik" to refer to any non-left-wing Jew who differs with them on foreign policy [UPDATE: Case in point], even when the relevant issue has nothing directly to do with Israel, Iraq being exhibit A (to the extent the insinuation is that these Jews supported the Iraq war to promote right-wing Israeli policies, I will reiterate the point that the Israeli military, diplomatic, and political establishment all urged the Bush Administration to focus its attention on Iran, not Iraq; besides, to the extent the right-wing Likud was pleased with the Iraq invasion, the left-wing Labor Party and the moderate Shinnui were equally pleased--Saddam Hussein didn't exactly have a big fan club in Israel). [UPDATE: The same Jewish--and non-Jewish--neoconservatives who supported war in Iraq strongly supported military action in Bosnia, but I have yet to hear about the "Likudniks" pushing the Clinton Administration into that war.]

Not surprisingly, the phrase "Likudnik" is gradually becoming a general anti-Semitic term for Jews whose opinions one doesn't like. Case in point, an email from one Matthew Hess sent to Eugene and me, thoughtfully, albeit tendentiously, critiquing a Cathy Young column I cited earlier this week, arguing that Bush voters are not "dumb." UPDATE: It turns out that the "thoughtful critique" noted above comes from the blog "Lean Left," not from the email author. The author cut and pasted the "Lean Left" critique without identifying it.

Despite the fact that this particular controversy has exactly nothing to do with Israel, the email, which was otherwise polite, ended, "You are two dumb Likudnik monkeys." [UPDATE: To clarify, this was the email author's invention, and has nothing to do with "Lean Left."]

For all I know, Matthew Hess is himself Jewish, but it's irrelevant. "Likudnik" has become a term of disapprobium analogous to the term "Uncle Tom" for non-left-wing blacks. Just like it's assumed that moderate, conservative, and libertarian blacks must not be thinking for themselves, but instead serving "the Man," so moderate, conservative, and libertarian Jews must be serving the interests of right-wing Israelis (the obvious difference is that left-wing culture values African American self-interest and nationalism, while left-wing culture values Jews and Judaism only to the extent they are put in the service of internationalism and humanist causes.) "Authentic" Jews are Karl Marx (even though he was born and raised a Christian and was an anti-Semite), Emma Goldman, Schwerner and Goodman, et. al, while only "Likudniks," i.e., Jews who have been blinded to the right and the good by nationalism, could possibly not be left-wing.

Well, the Left (along with the Washington Post, which used the term in a major article attacking Bush Admnistration neonconservatives) has let this particular anti-Semitic genie out of the bottle, and it's their responsibility to put it back in. Let's start by having a moratorium on the term "Likudnik" to refer to anyone but actual, declared supporters of Likud (I'm actually a Shinuinik, if anything), and only when they are supporting or justifying a policy on Israel-related affairs.

UPDATE: Pejman, who agrees with me, eviscerates a critic in his comments section.

Wednesday, November 17, 2004

Scalia at Michigan:

University of Michigan law student Heidi Bond live-blogged Justice Scalia's Q and A session this afternoon at the law school; you can read her post here. (Link: Crescat.) Heidi also has a post up on a lecture Justice Scalia delivered yesterday. An excerpt:

About ten minutes into the class, people protesting Scalia's sexual preference jurisprudence walked through the auditorium, holding up signs. Scalia leaned over to Dean Caminker and said something like, "I suppose this is acceptable free speech." He waited for the protestors to complete a short circuit through the audience, and then continued.

Religious people trying to implement their religious views into law:

So far, I've gotten about 15 responses to the earlier posts, some very detailed -- I'm afraid that I won't be able to respond to most of them, though I hope to blog a few follow-ups responding to some. Many thanks for writing!

Related Posts (on one page):

  1. Religious people trying to implement their religious views into law:
  2. Reason and Law:
New Blog Following State Attorneys General:

Available here, hosted by James Tierney of the Columbia Law School program on state Attorneys General. Thanks to Susan Crawford for the link.

ScrappleFace on Bush on Arafat::

Very amusing.

Illinois Limits Gun Ban Enforcement:

Chicago and several of its suburbs ban the possession of handguns. A new law in Illinois prevents the conviction of a person for violating the handgun ban, if the person used the handgun for lawful self-defense on his property. The new law (720 ILCS 5/24-10) states:
It is an affirmative defense to a violation of a municipal ordinance that prohibits, regulates, or restricts the private ownership of firearms if the individual who is charged with the violation used the firearm in an act of self-defense or defense of another as defined in Sections 7-1 and 7-2 of this Code when on his or her land or in his or her abode or fixed place of business.
Although vehemently anti-gun Governor Rod Blagojevich vetoed the bill, the Senate over-rode the bill narrowly, and yesterday the House voted to 85-30 to over-ride. The reform was the result of the prosecution of a man who violated the Wilmette handgun gun, and whose violation was discovered after he shot a burglar during the burglar's second invasion of the man's home.

In my Arizona Law Review article "Lawyers, Guns, and Burglars", I argue that one reason the United States has a much lower rate of home invasion burglaries than do countries such as the United Kingdom is that American law allows crime victims to shoot home invaders. The new Illinois law is a good first step towards better gun control laws; in the minority of states (such as New York) where local governments are allowed to ban certain types of guns, an Illinois-style reform deserves careful consideration.
Edmund Burke on parenting:

I'm writing an article about the First Amendment and child custody; this led me to contemplate the difference between parents' formal powers over their children, and their actual abilities to control their children (I know, Benjamin will give me many more practical opportunities to contemplate this); and this in turn reminded me of this quote from a very different context, Edmund Burke's Speech on Conciliation with the Colonies:

Despotism itself is obliged to truck and huckster. The Sultan gets such obedience as he can.

Related Posts (on one page):

  1. Generals on Parenting:
  2. Edmund Burke on parenting:

Tuesday, November 16, 2004

Tax Guide for Professors:

For the professors in the VC audience, I highly recommend the Tax Guide for College Teachers. Over the years, this book, updated annually, has literally saved me thousands of dollars in taxes (mostly because I discovered throug h it that certain types of fellowship income are not subject to Social Security and Medicare tax). You can order it here.

Reason and Law:

Reader Michael Benson responds to my post below by saying:

Personally I hold the position that it's illegitimate (from an ethical, not a constitutional standpoint) to justify one's decisions about how society should be run based on assumptions one cannot defend reasonably. As I have yet to see any compelling defense made on evidence that for example 1) there is a god and 2) that god does not want me to be a homosexual, I find it unethical to try to legislate my choice to be or not be homosexual based on those propositions. My understanding is that a significant segment of the religious right makes their case exclusively on these grounds. I take this position not because of moral relativism, but because of the lack of a reasoned argument that can be presented for the case. To the extent that one desires to restrict another based on propositions one cannot defend reasonably, I believe that one is behaving unethically. I think that legislating me based on assumptions based on faith rather than reason disrespects me as a human being capable of thought.

This could cut against someone like Martin Luther King ONLY in the event that he was unwilling and/or unable to justify his program without resorting to indefensible references to god. IE, if he was incapable of making a case through reason he was behaving unethically.

With that said, I should note that I'd be unwilling to endorse any legislation that tried to enforce this rule because I think as a practical matter it would be liable to the worst kinds of abuses. But as a principle of right action, this is what makes me believe the religious right is behaving in a way that I not only disagree with, but find morally reprehensible.

I sympathize to some extent with the correspondent's point; for instance, if we don't hear a compelling reasoned justification for a proposed law, that certainly is reason for us to reject the proposal.

But the trouble with the correspondent's broader notion -- "that it's illegitimate . . . to justify one's decisions about how society should be run based on assumptions one cannot defend reasonably" -- is that ultimately most of the moral principles that each of us has can't be defended purely reasonably. Should people be barred from abusing animals? There's no purely reasonable answer to that; at some point, it comes to down to a moral axiom, such as "people shouldn't be allowed to pointlessly inflict pain, even on animals" or "people should be free to do whatever they please with their property." And if you think this claim isn't an axiom, but can be defended reasonably through some other principle, that just means there's some other moral axiom lurking in the background.

Likewise, should abortion be legal? Pro-life people say personhood, and entitlement to moral rights, begins at conception. Pro-choice people select some other line. There's no way of proving it using pure reason; even if one makes an argument such as "a woman should be free to do what she likes with her own body" (which would, incidentally, allow abortions even at 8 1/2 months), then that becomes the axiom that you may believe but can't prove.

Or what about protecting endangered species? Many people want to protect them purely on moral principles -- humans shouldn't exterminate other species. That too is a moral axiom, or at least rests on moral axioms. Others argue that there's a pragmatic reason for it, for instance that protecting endangered species is needed in case the species may yield some useful biotech products some time in the future, or in case they fill an important ecological niche. But even such pragmatic reasons rest on unprovable moral judgments, such as that a small and incalculable chance that the species might prove useful in the future justifies the real costs to real people that saving the species would involve. Now these judgments may well be right -- but they aren't reasonably provable. And ultimately, the same is true, I think, for moral judgments even about matters such as the wrongfulness of murder, rape, robbery, and so on, and certainly for more contested matters such as race discrimination, breach of contract, defamation, invasion of privacy, moral rights in published works, and so on. All these moral and legal claims rest on unprovable moral assertions.

Of course, these assertions may be supportable, though not provable -- one can come up with plausible arguments that might influence people to accept one or another (for instance, "dogs can feel pain and emotions just like humans do, it's bad to needlessly inflict pain on humans, and it's therefore bad to needlessly inflict pain on dogs"). But these are appeals to intuition, aesthetics, and emotion. They aren't reasoned proof.

In this respect they're similar to religious people's arguments that, for instance, homosexuality is wrong because it's unnatural, and because the normal uses of our various organs reveal that God intended us to use them one way and not another way. Now the former arguments may be more persuasive to you or me than the latter. (I find the unnaturalness argument quite unpersuasive, for reasons I mention here.) But it's not because the former involved reason proof and the latter don't. Neither involve pure logic; both involve attempts to appeal to intuitive senses of right and wrong, though intuitive senses that vary among people.

So we are certainly free to say that certain arguments, whether arguments from the text of the Bible, arguments from the perceived will of God as expressed in the way the world works, arguments from church teachings, or what have you, are unpersuasive. And then if someone uses those arguments to support a law that we think is immoral, we can criticize him on the grounds that the arguments are unpersuasive and yield immoral results.

But I don't think that we can argue that the only legitimate laws are ones that can be defended using pure reason -- most important judgments about what the law ought to be ultimately rest on some unprovable moral assumptions.

Imposing One's Religious Dogma on the Legal System:

I keep hearing evangelical Christian leaders criticized for "trying to impose their religious dogma on the legal system," for instance by trying to change the law to ban abortion, or by trying to keep the law from allowing gay marriage. I've blogged about this before, but I think it's worth mentioning again.

I like to ask these critics: What do you think about the abolitionist movement of the 1800s? As I understand it, many -- perhaps most or nearly all -- of its members were deeply religious people, who were trying to impose their religious dogma of liberty on the legal system that at the time legally protected slavery.

Or what do you think about the civil rights movement? The Reverend Martin Luther King, Jr., after all, was one of its main leaders, and he supported and defended civil rights legislation as a matter of God's will, often in overtly religious terms. He too tried to impose his religious dogma on the legal system, which at the time allowed private discrimination, and in practice allowed governmental discrimination as well.

Or how about religious opponents of the draft, opponents of the death penalty, supporters of labor unions, supporters of welfare programs, who were motivated by their religious beliefs -- because deeply religious people's moral beliefs are generally motivated by their religious beliefs -- in trying to repeal the draft, abolish the death penalty, protect labor, or better the lot of the poor? Perhaps their actions were wrong on the merits; for instance, maybe some anti-poverty problems caused more problems than they solved, or wrongly took money from some to give to others. But would you condemn these people on the grounds that it was simply wrong for them to try to impose their religious beliefs on the legal system?

My sense is that the critics of the Religious Right would very rarely levy the same charges at the Religious Left. Rather, they'd acknowledge that religious people are entitled to try to enact their moral views (which stem from their religious views) into law, just as secular people are entitled to try to enact their moral views (which stem from their secular, but generally equally unprovable, moral axioms) into law.

Now some particular legal proposals may well be wrong. Perhaps banning abortion, or setting up welfare programs, or abolishing the death penalty violates people's rights, or is bad social policy, or what have you. But if that's so, then these proposals would then be equally wrong whether they're suggested by religious people for religious reasons, or by secular people for secular reasons. And conversely, if particular legal proposals are morally and pragmatically right, then religious people are just as entitled as secular people to advocate them.

So people should certainly criticize the proposals of the Religious Right (or Religious Left or Secular Right or Secular Left) that they think are wrong on the merits. But they would be wrong to conclude that the proposals are illegitimate simply on the grounds that the proposals rest on religious dogma. Religious people are no less and no more entitled than secular people to enact laws based on their belief systems.

And they would be quite inconsistent to (1) say that religious people ought not enact law based on their religious views, and nonetheless (2) have no objection when religious people do precisely that as to abolition of slavery, enactment of antidiscrimination laws, abolition of the death penalty, repeal of the draft, and so on.

An Intolerant University of Chicago Faculty Member:

My colleague Peter Berkowitz, who witnessed the events in question first-hand, has the scoop.

The Amish vote:

John Fund writes, in the Political Diary, from

Some blocs that lean Republican but don't have a record of voting in large numbers were especially targeted [by the Bush-Cheney voter turnout effort]. Chief among them was the Amish.

It shouldn't surprise anyone that the Amish are conservative voters, but they also often don't vote. Many shy away from political involvement; others are busy with chores or work. But this year they came out in droves in two states where they congregate -- Ohio and Pennsylvania. Diane Marcella, the chair of the Bush-Cheney campaign in Lawrence County, Pennsylvania, reports that the Amish tipped the county to the Republicans for the first time since Richard Nixon's 1972 landslide, even though Lawrence has 10,000 more registered Democrats than Republicans.

The Bush-Cheney effort began in the spring when 23 volunteers fanned out to register Amish voters in Lawrence and Mercer counties. "It was like a mini-vacation. It's very pristine with no telephone lines, power lines and you see all white houses with beautiful flowers," she said in describing Amish country.

The Bush volunteers discussed several issues in gathering their registrations, with abortion being one that hit especially home. Whatever was used to motivate them certainly worked. In some heavily Amish precincts voter turnout reached 100%.

Pete Vessella, the head of Lawrence County Democrats, grouses that the Amish had the wrong priorities in voting: "The people who should have been concerned about insurance, low-cost prescription drugs, education, tax breaks for the rich had no concern whatsoever. The only issues they were concerned about were pro-life and the NRA."

Mr. Vessella sounds like he's been reading "What's Wrong With Kansas, Anyway?" -- the latest feel-good liberal political tract filled with puzzlement as to why people of modest means refuse to vote Democratic. In the case of the Amish, perhaps it's because more than almost anyone they do not live by bread alone.

Thanks to the Political Diary people for giving me permission to reprint this. (The Diary is subscription-only, with limits on reforwarding.)

Are Hybrid Cars Good For the Environment?:

This editorial offers an interesting take. I don't know much about the site or its author, but it sounds plausible. (Link: Jalopnik.)

Follow-up on Garrison Keillor:

(1) Peter Hsu and Matt Bower confirm that Keillor made a similar joke about stripping born-again Christians of citizenship on his Prairie Home Companion. Here's the audio file — it starts at about 3:30.

(2) Some people suggested that the criticisms of Keillor betray a lack of a sense of humor. I don't think so; I think one aspect of a sense of humor is a sense of what humor is mean-spirited and what isn't. One reader, for instance, pointed me to this post by Stephen Bainbridge and suggested it was similar to Keillor's gag:

[Post title:] The kind of multiculturalism I can get behind

I discovered that owning a dog easily accomplished what many diversity training programs have failed to do for years. Regardless of our race, color, religion, or country of origin, we were one community of civilized dog lovers. (Source: Slate)

Except for those unAmerican cat lovers, all of whom should be sent to Guantanamo forthwith.

But what makes Steve Bainbridge's post amusingly absurd, rather than mean-spirited, is that it's completely obvious that he and his audience don't really dislike cat lovers. It's not just that they don't want to send them to Guantanamo (of course they don't, just as Keillor wouldn't really endorse a proposal to strip born-again Christians of citizenship); it's that they don't really dislike them. On the other hand, I suspect that much of Keillor's audience does dislike born-again Christians, and that a considerable chunk even holds them in contempt. I also suspect Keillor also in some measure dislikes or disapproves of them: Check out the audio, which lists his various complaints about them — these are exaggerated for the sake of humor, but they seem to me to bespeak real disapproval and not just absurdist self-conscious magnification of trivial differences.

Suggesting the deportation of people with whom you obviously have no meaningful grievance is absurdist. Suggesting it as to people whom you do dislike, even if you suggest it facetiously, is mean-spirited. Or at least that's what my sense of humor tells me.

(3) Finally, if you'd like another analogy, imagine that a born-again Christian commentator, speaking to a mostly born-again Christian audience, said the same thing -- in jest, of course -- about non-Christians, or "secular humanists," or atheists. Just some innocent absurdist humor? Or something that seems mean-spirited enough that it's worth speaking out against (though of course not banning)?

Related Posts (on one page):

  1. Follow-up on Garrison Keillor:
  2. What a funny guy:
Blogging Got Her Fired:

The New York Times reports on the further travails of Ellen SImonetti, aka "Queen of Sky."

Related Posts (on one page):

  1. Blogging Got Her Fired:
  2. Fired for Blogging:
Councilman Merits Briefs: VC readers who have been following the ongoing First Circuit litigation in the important Internet wiretapping case of United States v. Councilman might be interested to know that the briefs for the en banc rehearing have now been filed. I am delighted to say that the coalition of privacy groups I am serving as lead counsel has expanded. At the petition for rehearing stage, the coalition consisted of the Center for Democracy and Technology, the Electronic Frontier Foundation, the Electronic Privacy Information Center, and the American Library Association. This time around, we have also been joined by the American Civil Liberties Union and the Center for National Security Studies.

  You can find the brief we filed on Friday for the en banc rehearing here. For other documents and information about the case, including additional amicus briefs, check out this page. Oral argument will be held in Boston on December 8.
Friends Sexual Harassment Case:

Interesting article in the L.A. Times about the Friends sexual harassment case, which is based on a claim that an assistant to the staff writers was subjected to a "hostile environment" because of the writers' sexually oriented banter. An underappreciated aspect of hostile environment law is the way it undermines the privacy interests of the alleged perpetrators; given that the plaintiff does not allege that any of the "offensive" remarks were directed at her, is it really right for the public to learn about one of the writers' alleged proclivity for "blonde cheerleaders," or that another writer allegedly dislikes foreplay and "is all about intercourse" (a remark, that he, not surprisingly, denies making)? For that matter, it's even more troubling that unflattering remarks that the writers allegedly made about the stars of Friends have been made public. What did Jennifer Aniston or Courtney Cox Arquette do to deserve having these remarks publicly aired?

"Bush Voters Are Stupid":

Cathy Young debunks the "Bush Voters are Stupid" Meme in the Boston Globe.

Monday, November 15, 2004

Emmett Till Case:

Interesting post on the Emmett Till case over at the History News Network.

What a funny guy:

(Note: This entire post relies on the accuracy of the press account, from the Chicago Maroon, the University of Chicago student newspaper. If this account is incorrect, then neither in the post, in which case I'd just quote Bugs Bunny and say "What a bunch of maroons.")

NPR humorist Garrison Keillor, in what was surely a joke, said:

Not one to shy away from speaking his mind, Keillor proposed a solution to what he deemed a fundamental problem with U.S. elections. "I'm trying to organize support for a constitutional amendment to deny voting rights to Jews," Keillor smirked. "I feel if your citizenship is in the Nation of Israel -- like a Jew's is -- you should give up your citizenship. Sorry, but this is my new cause. If Jews are allowed to vote in this country, then why not Canadians?"


What, you say you aren't amused? Even though Keillor was surely speaking in jest, you think it's a jest that's not in the best taste? Well, fortunately it turns out Keillor did not say the above. Here's what he did say:

Not one to shy away from speaking his mind, Keillor proposed a solution to what he deemed a fundamental problem with U.S. elections. "I'm trying to organize support for a constitutional amendment to deny voting rights to Catholics," Keillor smirked. "I feel if your loyalty is to a foreign political leader like the Pope -- like a Catholic's is -- you should give up your citizenship. Sorry, but this is my new cause. If Catholics are allowed to vote in this country, then why not Canadians?"

Now that's funny! No, wait, it's not really funny, and that's not what he said either, nor did he say it about, for instance, Muslims. Here's what he really, really did say (and this time it's true -- check out the newspaper article):

Not one to shy away from speaking his mind, Keillor proposed a solution to what he deemed a fundamental problem with U.S. elections. "I'm trying to organize support for a constitutional amendment to deny voting rights to born-again Christians," Keillor smirked. "I feel if your citizenship is in Heaven -- like a born again Christian's is -- you should give up your citizenship. Sorry, but this is my new cause. If born again Christians are allowed to vote in this country, then why not Canadians?"

Now if I'm right that the first two hypotheticals wouldn't be in the best of taste, even if it were quite clear that Keillor was just joking, then wouldn't we say the same about the real quote, which referred to born-again Christians?

Thanks to InstaPundit for the pointer.

Related Posts (on one page):

  1. Follow-up on Garrison Keillor:
  2. What a funny guy:
Math puzzle:

In the UCLA Math Department's basement, there are 100 lockers, numbered 1 to 100; the summer break also happens to be exactly 100 days long; and even the janitors are interested in numbers.

On the first day of summer, all the lockers are unlocked. The janitor then walks by and, for every locker, locks it if it was unlocked, and unlocks it if it was locked. (Since all the lockers were unlocked, that means he locks each one.)

On the second day, the janitor walks by and, for every 2nd locker starting with #2, locks it if it was unlocked, and unlocks it if it was locked. (Since all the lockers were locked after the first day, that means he unlocks each one.)

On the third day, he walks by and, for every 3rd locker starting with #3, locks it if it was unlocked, and unlocks it if it was locked. (Now, some lockers get locked and some unlocked.)

On the Nth day, of course, he walks by and, for every Nth locker starting with #N, locks it if it was unlocked, and unlocks it if it was locked.

After 100 days, how many lockers are locked?

(Click here for the answer.)


OpinionJournal's Best of the Web points out a remarkably silly letter to a newspaper editor:

Why They Hate Us

. . . [C]heck out this letter to the editor of the Portland (Maine) Press-Herald from one Florence White (last letter):

Am I the only one who finds the idea of sending candy to Iraqi children not only not brilliant but insensitive, offensive and stupid ("Kids offered sweet deal on candy," Oct. 29)?

The candy is not good for our children's teeth but OK for kids who probably have no access to dentistry?

Can you catch just a glimmer of why Americans are so hated in other parts of the world?

Maybe the Iraqis would like us if we forced them all to go to the dentist.

(See the OpinionJournal piece for the link.)

The spin begins early:

The Los Angeles Times has a long and interesting story about my colleague Rick Sander's work on how race preferences actually decrease the number of black lawyers (see the links below for Rick's posts summarizing his findings). But here's the headline:

Professor Assails Anti-Bias Program

The spin at the L.A. Times apparently begins with the headline, even in the news sections. After all, the whole debate is whether race-based preferences are "anti-bias," or whether they are themselves bias -- and Rick's thesis is that they don't just facially discriminate against whites, but end up hurting the blacks whom they're trying to help. Shouldn't an account about the debate have a slightly more neutral headline?

Incidentally, I realize that headline writers often find it hard to fit an objective and accurate summary into the short space that's available. But how about "Professor Assails Affirmative Action" or "Professor Assails Race Preferences"? (True, both labels have their own inherent political spin, but at least it's the minimum spin possible to describe the issue -- much less than "Professor Assails Anti-Bias Program.") Thanks to reader Tom Hynes for the message.

Posner and Kozel Debate Law Reviews:

Howard links to this week's debate over at Legal Affairs, which promises to be a good one: Judge Richard Posner and law clerk Randy Kozel debate, "Are Law Reviews Really Rubbish?" Kozel is Eugene's former student, and (in case Article III Groupie is reading) a future member of The Elect. Posner is Posner. Check it out.

The online video promo for Yiddish with Dick and Jane

-- quite amusing. Many thanks to David Lachmann for the pointer.

State IQs:

A couple of people have pointed me to the supposed list of IQs by state, which purportedly shows that nearly all the blue states have higher than average IQs, and most of the red states have lower. As one might have gathered, that's apparently a hoax, according to the Economist, which I believe was the first publication to have published this.

Thanks to this column by Steve Sailer for pointing me to the Economist retraction; the column also talks more broadly about likely estimates of Bush's and Kerry's IQs, and the mixed sentiments that people tend to have about such measures of intelligence. I can't speak with confidence about the accuracy of these latter points, but the article seems quite interesting.

Blog on Progressive Constitutionalism: The Yale Law School chapter of the American Constitution Society is hosting a symposium in April on what a progressive constitution should look like in the year 2020. (To fill in those outside of academia, "progressive" is more or less a synonym for liberal or politically left.) The symposium will feature many of the top lawprofs in constitutional law and theory, and, more importantly for now, has already a started a group blog run by the speakers at the symposium.

  You can check out the blog here. The blog already includes posts by a number of stars in the academic world; contributors include Bruce Ackerman, Cass Sunstein, Robert Post, Mark Tushnet, Bill Marshall, Judith Resnik, Jonathan Simon, Rachel Moran, and Paul Smith.

  While you're at it, check out the ACSBlog, which is also quite good.
Call for censoring speech at UC Irvine:

This time it's from the Zionist Organization of America:

The U.S. government's Office for Civil Rights has launched a formal investigation into the harassment and intimidation of Jewish students at the University of California at Irvine, following a complaint submitted by the Zionist Organization of America (ZOA)'s Center for Law and Justice.

The Office for Civil Rights, a division of the U.S. Department of Education, has officially notified the ZOA, in a letter dated October 28, 2004, that it "will proceed with an investigation of this complaint."

Title VI of the federal Civil Rights Act of 1964 prohibits discrimination based on race, color or national origin by recipients of federal funding, and since UC-Irvine receives such funding, it is obligated to provide students with an educational environment free from harassment, intimidation and discrimination

ZOA National President Morton A. Klein said: "It is appalling that the UC-Irvine administration has failed to take meaningful steps to protect the civil rights of its Jewish students. The UC-Irvine administration certainly safeguards the civil rights of other minorities on campus; why aren't Jews, as a minority group, afforded the same protection? We look forward to a timely investigation by the U.S. government's Office for Civil Rights, so that action will be taken against those who are fostering a climate of hostility to Jews, Israel, and Zionism on campus."

The original complaint, sent by the director of the ZOA's Center for Law and Justice, Susan B. Tuchman, Esq., pointed out that "for the past three years, the environment for Jewish students at UC-Irvine has been hostile, and at times, threatening." Among the many incidents cited:

* In February 2004, a Jewish student with an Israeli flag pin on his lapel was followed into the office of the Dean of Students by a group of Muslim students, who cursed at and threatened to kill him. The student filed a police report and reported the episode to the administration, but no action was taken.

* In January 2004, a rock was thrown at - and barely missed - a student with an identifiably Jewish t-shirt who was walking by the Muslim Student Union's table.

* Rallies by radical campus groups such as the Muslim Student Union, and articles in the Muslim student newspaper Alkalima, frequently equate Israel with the Nazis.

* In April 2003, a swastika was carved onto a table at the Jewish students' Holocaust Memorial ceremony.

* In May 2004, the Society of Arab Students sponsored an "anti-hate rally" to which it invited all student groups except the Jewish ones. Despite this discrimination, the Vice Chancellor of the university was one of the speakers at the event.

* Also in May 2004, Muslim students announced their intention to attend graduation ceremonies wearing green sashes bearing the "Shahada," the Islamic declaration of faith which is used by Hamas and other terrorist organizations to glorify suicide bombers. The administration disregarded Jewish students' concerns and permitted the wearing of the sashes.

Death threats, rock-throwing, and vandalism surely are constitutionally unprotected. On the other hand, equating Israel with the Nazis, organizing a rally that excludes Jewish student groups, and glorifying Hamas and suicide bombers (if that's what the green sash means -- some people argue that it's simply a symbol of Islam) is fully protected speech. It may be misguided and evil — it surely is if the ZOA's allegations are factually correct, though I can't speak to that. But the First Amendment protects the misguided and the evil as well as the righteous. (The university would have been within its rights not to send the Vice Chancellor to speak at the event, even if indeed Jewish groups were excluded, but it is under no obligation to do so.)

The OCR generally understands itself to have the obligation to investigate many charges, even if the charges seem to be in large part unfounded; and in any event, some of the charges do involve allegations of constitutionally unprotected conduct, so I don't fault the OCR for launching an investigation. But I think the ZOA is wrong in trying to use the government to suppress speech it dislikes. And I think it's short-sighted, since the same speech restrictions that it seeks may well be used against the causes that it favors as well as against those it opposes.

Capital Punishment Report: The annual Department of Justice report on capital punishment was released Sunday. The key findings:
* In 2003, 65 inmates were executed, 6 fewer than in 2002.
* 11 states had executions in 2003. 24 inmates were executed in Texas; 14 in Oklahoma, 7 in North Carolina; 3 each in Alabama, Florida, Georgia, and Ohio; 2 each in Indiana, Missouri, and Virginia; and 1 in Arkansas. One inmate was executed in the Federal system.
* Of persons executed in 2003:
  -- 41 were white
  -- 20 were black
  -- 3 were Hispanic (all white)
  -- 1 American Indian
* Of those executed in 2003, all 65 were men
* Lethal injection accounted for 64 of the executions; 1 was carried out by electrocution.

Sunday, November 14, 2004

Computer Forensics:

Pardon me for blogging what amounts to a classified advertisement, but I'm wondering if there are any VC readers who are computer forensics experts and might be willing to spend a bit of time explaining the forensics process to me. I am writing a law review article on how the Fourth Amendment should apply to the computer forensics process; the big question is, what steps should forensics investigators be allowed to take to find particular evidence stored on a hard drive? Before answering this, I need to make sure I understand the tech side of how the process works, what steps investigators (especially law enforcement investigators) take, how the different kinds of software work, and the like. If this is your field and you might have some time next week, please send me an e-mail at okerr [at sign] Thanks in advance — and for everyone else, my apologies for the off-topic post.