Friday, November 26, 2004

Good luck to Randy Barnett in fighting for drug rights.--

Our co-blogger Randy Barnett is arguing for the first time before the US Supreme Court on Monday in the marijuana cases, taking the liberal, libertarian pro-drug rights position. We all wish him luck. Not only does Randy have an able and much more experienced adversary arguing the case for the government, but Randy's case will be a difficult case to win.

First, as I may imperfectly recall, in cases it hears fully, the Supreme Court more often overturns decisions than affirms them. Second, the 9th Circuit has a reputation for being overturned at higher rates than typical circuits. Third, the federal government has been regulating and prohibiting marijuana for a long time and will almost certainly continue to regulate and prohibit most uses of marijuana even if Randy wins.

On the other hand, the plaintiffs in this medical marijuana case are well-suited for limiting the scope of the interstate commerce clause of the Constitution, and Randy certainly understands the scope of interstate commerce as well as anyone in the country.

It is one of those cases where, if the Court is intellectually honest and actually determines interstate commerce in any way that makes logical sense, Randy's side will win. Yet it would be awfully hard for the Court to strike down federal legislative control over marijuana regulation even where (as here) the marijuana is pretty clearly not in interstate commerce.

In their brief the Government argues:

Moreover, the record affirmatively shows that respondents' homegrown drug activities cannot be divorced from the overall drug market regulated by Congress. Both respondents Raich and Monson were consumers of lawful drugs listed on Schedules II through V, before turning to marijuana, and respondents' claims of medical necessity suggest that both would purchase marijuana illegally if necessary. Raich also admits to past marijuana purchases. Each of these facts confirms what Congress found: that activities such as respondents' displace market transactions and threaten to swell the illicit drug market. [citations omitted]

Yet every choice displaces another choice: If I buy and read a book, I am cutting back on my TV watching, thus affecting the market for TV. If a Justice is elevated from a Circuit Court position to the US Supreme Court, he or she is deciding not to enter into negotiations to become a cowboy (or a law firm partner).

As Barnett has pointed out, every decision is an economic one to an economist. Nobel economist Gary Becker analyzed the decision to have children in economic terms, and (as I recall) Judge Richard Posner once famously asserted that rape in effect cheats on the market for dating. Do we conclude that procreation and forcible rape are therefore always in interstate commerce, just because they are economic decisions to some of our best economists?

The Court is in a bind: if it follows inertia (which it usually does), it in effect reads the interstate commerce clause out of the Constitution and makes the government under it one effectively unlimited by enumerated powers. If the Court takes the commerce clause seriously, on the other hand, it drives a small, but significant wedge into the federal government's power to prohibit drugs.

When things get really tough (as this case will be for the Court), the best course is not to try to finesse the situation, but rather simply to follow the law as scrupulously as possible.

Tide may be turning against Allawi in efforts for January Iraqi elections.--

Pressures may be mounting for a 6-month postponement of the Iraqi elections. There are now sketchy and inconsistent reports coming out of Al Jazeera and Debka that major parties besides the Sunni ones mentioned in the MSM have joined in asking for a postponement. Debka reports in a headline without a story (no permalink): "Fifteen leading Iraqi parties, including PM Allawi's own faction, call for six-month postponement of January elections because of continuing violence."

According to China View, Al-Jazeera reported a similar story but said that Allawi's faction did not sign the call for a 6-month postponement. Here is part of China View's version of the Al-Jazeera story:

More than 15 leading Iraqi parties called on Friday to delay the scheduled January elections by atleast six months, the Qatar-based al-Jazeera TV reported.Leaders of the political parties, led by Adnan Pachachi's Independent Democratic Party, signed a joint petition after ameeting, urging to postpone the polls until mid-2005.Two major Kurdish parties, the Patriotic Union of Kurdistan(PUK) and Kurdistan Democratic Party (KDP), both signed the document, according to the report.

A representative from Prime Minister Iyad Allawi's Iraqi National Accord Party attended the meeting held in Pachachi's residence in Baghdad, but did not sign on the petition, said the channel without mentioning the source.

If these reports are true (and given their inconsistency they may well not be), then the addition of 2 major Kurdish parties in the call for a postponement may signal a turning point in the effort to postpone the Iraqi elections. I hope that in the next few days the MSM can confirm or refute the Debka and Al-Jazeera stories.

Postponement would represent a major setback for both Allawi and the Bush administration, since disrupting the elections is a major goal of the terrorists. Given that what is good for Bush or Allawi is not in itself the test here, what course might be better for the Iraqi people is hard to know. Just as the turnover of the government to the Iraqis on time proved to be an effective move (and apparently popular with Iraqis), an on-time election might have a similarly positive effect. And yet, if waiting 6 months leads to a safer election in more areas of Iraq, then postponement would be wise, however embarrassing it might be to the Bush Administration. Nonetheless, deciding to wait until the security situation is improved would not necessarily improve security and might worsen it if it emboldened the enemies of democracy.

Is democracy delayed democracy denied? Or is democracy delayed democracy ensured? I hope for wisdom and good fortune, but don't necessarily expect either in such a difficult situation.

UPDATE: Charles Krauthammer, making an analogy to the US elections of 1864 and 1868, argues that the Iraqi election would be legitimate even without Sunni areas (tip to Betsy).

Final Push for Monday's Argument: My preparation for Monday's Supreme Court argument in Ashcroft v. Raich continues this weekend. I learned a tremendous amount from moot courts at Georgetown, Oklahoma City University, and Harvard Law School. My thanks to all who served as judges for their invaluable feedback and to all those who attended for their support and encouragement.

Update:SCOTUS Blog reports that Acting Solicitor General Paul Clement will be arguing the case for the government. By all accounts, he is a brilliant attorney and most impressive oralist who had, at the time of his appointment in July, 18 previous arguments before the Court (and probably more since then)--as compared with my . . . none.

Update:Here is a detailed guide to Monday's argument with pictures and extensive links from Drug War Rant. (Hat tip to Kiwi Pundit)

Review of Restoring the Lost Constitution: Ronald Kahn of Oberlin College has written a thoughtful review of Restoring the Lost Constitution: The Presumption of Liberty for the Law and Politics Book review published by The Law and Courts Section of The American Political Science Association. The review can be found here.

Though of course I do not agree with his criticisms--which are pretty mild--it is a very nice and generally accurate chapter-by-chapter summary of the book's thesis. BTW, the Amazon price has been reduced to $26 which, combined with its free delivery for orders over $25, makes the book an excellent holiday gift.

Update:Here is another thoughtful, but critical, review you may have missed from last May by Ramesh Ponnuru in the print version of National Review, and available at National Review Online.

Lileks on Annie's Ice Cream Parlour and Best Rock Songs,--

In his Thursday Bleat, James Lileks makes fun of Rolling Stone's list of the greatest songs of all time and talks about taking his daughter Gnat to an old Minneapolis haunt after 15 years away--Annie's Ice Cream Parlour.

For me, there were even more resonating observations than is usual with Lileks' bleats.

First, Lileks on Annie's:

Originally, Annie's was called Greenstreets. Same owner as Annie's Parlour, which back then was a cramped & "funky" burger / malt shop on the West Bank. Then Greenstreets became Annie's. . . . This is important why? Because every date in college years always ended up Annie's, and because for most the early 80s I took my afternoon coffee at Greenstreets, after the lunch traffic thinned out. Smoked and read and wrote and played the jukebox and tried to look beguilingly literary. Hadn't been back in more tha[n] 15 years.

They haven't changed the tablecloths or the menu or the carpet. Or the view. (It looks out over the gates of the old Campus.) Walking in with Gnat felt marvelous. One of those moments where you realize that a certain place had an unclosed parenthesis. And now:

) Ahhh.

So I'm thankful for that;

Why is it that some cities have long had great ice cream (e.g., Boston) but lousy malteds, while some cities that are no better and probably a bit worse on ice cream have lots of places that make great malteds? In this latter category of great malted cities are Philadelphia--and particularly Minneapolis.

Annie's and its probably long-gone competitor, the Convention, have made ALL of the dozen best malteds I've had in my life. The hot fudge malted at Annie's is the best I've ever had (I usually ask for extra malt but it has plenty for most people just as it is). I don't make it to Minneapolis often, but when I do, I always go to Annie's. They have good burgers, too.

Second, Rolling Stone's list of the 500 best songs. Lileks attacks both the first and third choices: (1) Like a Rolling Stone (Dylan), and (3) Imagine (Lennon):

Anyway - "Like A Rolling Stone" is a rock song in the same sense that "Tommy" is an opera. A rock song rocks, and this is one instance where a tautology comes in handy. To name that tune a rock song, let alone the best, shows how much people have invested in the era, and why: because the music meant something, man. It was heavy, it was deep. Whatever. I remember when it came on the jukebox at the Valli, the air just left the room: oh great, six minutes of ORGAN music and nasally accusations. How did it feel? It felt boring, Bob.

"Satisfaction" is a good number two, and might even be a good number one; it has the simplest hook possible, and it rocks. Number three, "Imagine," is somnambulant tripe, and it does not rock. It nods off like a junkie and burns a hole on that nice white piano.

"Imagine" is an embarrassing song and a ridiculous choice. I remember my roommate in college being choked up by "Imagine" and I thought it was at best sappy, like bubble gum music ("Yummy, yummy, yummy, I have love in my tummy"). At worst, the world it imagined was depressingly totalitarian:

Imagine

Imagine there's no heaven, It's easy if you try, No hell below us, Above us only sky, Imagine all the people living for today...

Imagine there's no countries, It isnt hard to do, Nothing to kill or die for, No religion too, Imagine all the people living life in peace...

Imagine no possesions, I wonder if you can, No need for greed or hunger, A brotherhood of man, Imagine all the people Sharing all the world...

You may say Im a dreamer, but Im not the only one, I hope some day you'll join us, And the world will live as one.

Even in my George McGovern days, I knew that abolishing "possessions" was a recipe for totalitarianism, tyranny, poverty, and death. Just the collectivization of agriculture alone is modestly estimated to have killed 50 million people in the 20th century.

And abolishing countries sounded like a nice idea until you thought about what that one world society was likely to be in practice. Imagine a world with the morals of the United Nations and the economics of Africa and the Middle East, run by the all-powerful Kofi. After all, in the early 1970s a large portion of the world's population already lived in one world/country--China--and they weren't faring too well, despite having taken extreme steps to "Imagine [that there were] no possessions."

Third, Lileks' choice for number 1 song is pretty lame, but not nearly as lame as "Imagine."

Fourth, I loved the crude words to a rock song that Lileks' group sang: "F*** the Sixties." While I remember the 60s with some fondness, I also consider Randy Barnett's comment that our boomer generation is the most irresponsible, self-regarding generation ever. For those a bit younger than Barnett and me, such as Lileks, the attitude of his friend's song is quite healthy--and it continued rock's tradition of crude, angry defiance of the common wisdom.

Thursday, November 25, 2004

The First Thanksgiving (the original account). It is worth remembering the only specific contemporary account of the first Thanksgiving in Plymouth, that of Edward Winslow. His letter was dated December 13, 1621.

I include most of a paragraph about farming methods because it indicates some of the foods that they would have served:
We set the last spring some twenty acres of Indian corn, and sowed some six acres of barley and peas, and according to the manner of the Indians, we manured our ground with herrings or rather shads, which we have in great abundance, and take with great ease at our doors. Our corn [i.e., wheat] did prove well, and God be praised, we had a good increase of Indian corn, and our barley indifferent good, but our peas not worth the gathering, for we feared they were too late sown, they came up very well, and blossomed, but the sun parched them in the blossom.

Our harvest being gotten in, our governor sent four men on fowling, that so we might after have a special manner rejoice together after we had gathered the fruit of our labors; they four in one day killed as much fowl, as with a little help beside, served the company almost a week, at which time amongst other recreations, we exercised our arms, many of the Indians coming amongst us, and among the rest their greatest King Massasoit, with some ninety men, whom for three days we entertained and feasted, and they went out and killed five deer, which they brought to the plantation and bestowed on our governor, and upon the captain, and others. And although it be not always so plentiful as it was at this time with us, yet by the goodness of God, we are so far from want that we often wish you partakers of our plenty.
There are some interesting things and some ambiguities in this account. The only recreation mentioned besides feasting is exercising their arms (guns). Note also that four men in one day shot almost enough fowl to last a week. Both of these points would tend to undercut the claims in Arming America that guns were not accurate enough to be of much use and that people didn't care about guns.

This page speculates about the probable menu. There is also a more general account of the harvest time written decades later by William Bradford.

Actual color photograph of Pilgrim John Howland ---->



UPDATE: In a long, interesting post, Patrick Spero tells of a late 17th century account that omits the Indians as guests and places the date of the first formal Thanksgiving in the fall of 1622, not 1621. Yet there is little reason to doubt Winslow's 1621 account, since his letter was dated in December 1621 and is in sequence with other letters that place the events being described in 1621, not 1622. It would seem highly unlikely that the year on his letter is wrong. The various influences on Thanksgiving traditions and the revisionist tendencies of later reporters make a story in themselves.
Civil Liberties and the [French] War on Terror: According to today's New York Times,
  People . . . can be imprisoned [merely] for association with terrorists; a woman has been in jail for nearly a year awaiting trial on charges of knowing of a plot by her son, who is still under investigation.
  Haven't heard about this case? Thinking of calling your Congressman? Not so fast — turns out that this is happening over in France. And as the Washington Post reported earlier this month, such tactics aren't even controversial among the French citizenry:
  Armed with some of the strictest anti-terrorism laws and policies in Europe, the French government has aggressively targeted Islamic radicals and other people deemed a potential terrorist threat. While other Western countries debate the proper balance between security and individual rights, France has experienced scant public dissent over [its] tactics. . . .
  . . .
  France has embraced a law enforcement strategy that relies heavily on preemptive arrests, ethnic profiling and an efficient domestic intelligence-gathering network. French anti-terrorism prosecutors and investigators are among the most powerful in Europe, backed by laws that allow them to interrogate suspects for days without interference from defense attorneys.
  Public debates about the war on terrorism are filled with lots of delicious ironies. The fact that the French government has many powers that are orders of magnitude greater than anything in the Patriot Act surely ranks up as one of the better ones.

  Also ironic is the fact that the French government has had these powers since long before 9/11. Although the French government took advantage of the 9/11 attacks to expand the government's powers in a law passed within a week of the Patriot Act, my understanding is that most of its powers date back to a law passed in 1986.

  It's also worth noting that in the French system, judges don't serve as a check that can monitor potential abuses of the executive branch. Rather, French judges work closely with investigators and themselves are in charge of gathering the evidence:
  Over the past decade, [a single anti-terrorism judge in France] has ordered the arrests of more than 500 people on suspicion of "conspiracy in relation to terrorism," a broad charge that gives him leeway to lock up suspects while he carries out investigations.
  "There is no equivalent anywhere else in Europe. This provision is very, very efficient for judicial rule in tackling terrorist support networks," [the judge] said in an interview. "Fighting terrorism is like the weather. You have high pressure zones and low pressure zones. Countries that have low pressure zones" attract terrorism.
  On this Thanksgiving Day, let's all give thanks that we live in a country that respects civil liberties a lot more than that.

Wednesday, November 24, 2004

So far, the Ohio provisional ballots are trending for Bush.--

With about half of the Ohio provisional ballots counted, Bush has 29,285 additional votes to Kerry's 23,947. Most of the larger and more Democratic counties have yet to report, so expect the trend to move in Kerry's favor, but nothing close to the number of votes needed to undo Bush's substantial lead.

The numbers given in this post are current as of early on Thanksgiving morning (tip to Dirty Harry). The numbers on the linked page may change in the next few days.

The CBS Rathergate Report: Distribute a Draft First.--

If ever there were a situation for releasing a draft before releasing the final report, the CBS Rathergate investigation is it.

Given the rather Olympian duo chosen to investigate the affair--"Louis Boccardi, a former chief executive of the Associated Press, and Dick Thornburgh, a former U.S. attorney general"--it would be good if they released a tentative draft of the Report for comments.

Then bloggers, who know a lot about some angles in the affair, but very little about internal CBS angles, could comment on the Report, including asking questions that weren't answered. Certainly, one question I'd like to learn about is how closely CBS was working with the Kerry campaign or the 527s.

While the CBS investigative duo would not be able to respond to more than a handful of inquiries, the bloggers could identify the main problems, which could then be addressed by the investigators in the final report.

Rather posing with Castro, at the news desk, and at the Harvard Law School:

















***

UPDATE: Kevin at Wizbang quotes from the USA Today story on Rather, which quotes several bloggers.

WINE DIRECT SHIPMENT IN WSJ:

Article in today's Wall Street Journal discusses the wine cases, which will soon be argued in the Supreme Court. Not that much new in the article, except for the fact (which I hadn't seen previously) that former Christian Coalition executive director Ralph Reed is one of the paid lobbyists for the liquor wholesaler industry. The wholesalers, of course, are opposed to direct shipment because even though it is a trivial fraction of the market they still don't like any competition. Long ago, Bruce Yandle postulated the "Baptists and Bootleggers" theory of regulation, but until now it has been thought to be metaphorical, but with Ralph Reed on the wholesaler's payroll, it appears that it has become literal. Professor Yandle has written a recent restatement of the theory and it's application in the traditional metaphorical context in Regulation magazine. As Yandle writes:

The theory's name draws on colorful tales of states' efforts to regulate alcoholic beverages by banning Sunday sales at legal outlets. Baptists fervently endorsed such actions on moral grounds. Bootleggers tolerated the actions gleefully because their effect was to limit competition.

Little did Yandle probably recognize when he penned these words that he would soon see a partnership of Ralph Reed and the Wine & Spirits Wholesalers of America to prevent competition in wine sales!

The Wall Street Journal aritlce also mentions an unintentionally humorous website set up by the Wine & Spirits Wholesalers, at www.pointclickdrink.com which supposedly demonstrates the peril to America's youth from Internet access to expensive Merlot. A section of the website ironically labeled "Fact vs. Fiction" contains this whopper:

FICTION: Kids are not buying alcohol online and underage access to alcohol through the Internet is not a problem.

FACT: Ten percent of underage purchasers receive alcohol through the Internet or home deliveries and the increasing use of the Internet could increase that percentage, according to the National Academies of Sciences.

The "according to the National Academies of Sciences" they reference for this figure was a brief discussion in a large NAS report from a few years back. The NAS report does in fact mention one study of the effect of alcohol delivery on underage access to alcohol--a study of keg and alcohol delivery by traditional package stores. Unsurprisingly, the study found that underage youth stated that when package stores deliver beer kegs, this makes it easier for underage drinkers to get access to alcohol. The study mentions nothing about Internet delivery of wine, and if anything, would seem to be an indictment of the ease by which minors get access to alcohol through the traditional bricks and mortar alcohol system.

In contrast to this silly science, the FTC actually conducted real research, including asking alcohol enforcers in the states that have permitted direct shipping of wine whether underage access is a problem, and they generally said no. And, of course, even if the Wholesalers were correct, it still wouldn't explain why New York permits 190 in-state wineries to ship directly to consumers, but not out-of-state wineries.

I discuss the policy issues in more detail in my series of postings on the cases, which are collected into one document here.

Colin Powell condemns Ukraine election:

FoxNews reports that "[Powell said] the United States does not consider legitimate the results of elections in Ukraine, which the opposition says was marred by fraud." It quotes him as challenging Ukrainian leaders "to decide whether they are on the side of democracy or not," and saying that ""If the Ukrainian government does not act immediately and responsibly there will be consequences for our relationship, for Ukraine's hopes for a Euro-Atlantic integration and for individuals responsible for perpetrating fraud."

High Speed Tax Evader:

An amusing story about a tax protestor with a fast car, a cell phone, and no sense of perspective. (Link: the brand new Academically Taxing, hosted by lawprof Clarissa Potter)

My old country reverting to old ways?

Anne Applebaum, whose Slate articles on international issues I always much liked, has a piece in the Washington Post about the Ukraine elections. I haven't been following the situation closely -- I have little emotional bond to the place that I left when I was seven -- but it sounds pretty grim.

Al-Arian Terrorism Suppression Motions: In the Middle District of Florida, pre-trial motions are flying in the terrorism prosecution of former professor Sami Al-Arian. The AP has this report about some recent motions to suppress filed in the case, and Howard offers this helpful link to a site including lots of press coverage of the case.

  The Middle District of Florida has posted .pdfs of the public documents filed in the case, available here if you scroll down about 1/2 way down the page. The motions to suppress mentioned above are available here and here.
The First Amendment in high school:

The New York Times reports:

By the account of the [ACLU], . . . Brad Mathewson, a 16-year-old junior [at a Missouri high school], was sent to the principal's office at Webb City High School on Oct. 20 for wearing a T-shirt . . . [that] bore a pink triangle and the words "Make a Difference!"

Mr. Mathewson, the A.C.L.U. said, was told to turn the shirt inside out or go home and change. . . .

A week later, Mr. Mathewson was again admonished for wearing a gay pride T-shirt, this one featuring a rainbow and the inscription "I'm gay and I'm proud." Told once more to turn the shirt [inside] out or leave, he chose to go home and was eventually ordered not to return to school wearing clothing supporting gay rights.

School officials said yesterday that they could not comment on the situation, or confirm or deny the A.C.L.U. account. . . .

If the ACLU's factual claims is right, this is a pretty clear First Amendment violation. Under Tinker v. Des Moines Independent School District (1969), students in public schools remain free to express their poltiical views so long as there's no serious risk that the expression will substantially disrupt the school. The ACLU claims that there was no such risk here, since the student "had previously worn the Gay-Straight Alliance T-shirt to school several times without causing any disruption."

Maybe the school has some facts on its side that it isn't revealing. But from what I've seen, it sounds like they need to read up on their constitutional obligations.

Thanks to Mark Eckenwiler for the pointer.

UPDATE: How Appealing has links to many more newspaper articles about this case, to the ACLU's Complaint, and to the ACLU's brief in support of its motion for a preliminary injunction.

Questions for Readers:

I've got a few questions for readers.

(1) Fruit-in-the-middle yogurt: My wife likes yogurt with fruit in the middle (as opposed to at the bottom and drenched in syrup, or blended in), which is easily available in, for example, her native Israel, but is very difficult to find in the U.S. The only brand I've found with fruit in the middle is Yoplait light, but she doesn't like diet yogurt. Any suggestions (other than her buying fruit and sticking it in the yogurt herself?)

(2)Used DVDs: What's the best place to buy used DVDs, on-line or in the D.C. area? It seems surprising to me that even movies that sold millions of copies a couple of years ago are not easily available used for significantly less-than-new prices.

(3)Tokyo, Guam, Cairns, Hong Kong: That's my (belated) honeymoon itinerary. I would appreciate suggestions for things to do/places to eat/places to stay that are not covered in the standard guide books.

(4) Real estate agent: I need a hardworking buyer's agent (we know what we want at this point, but want someone who will actually go through the listings and narrow things down, rather than just email us listings every week), preferably someone either licensed in D.C., Maryland, and Virginia, or who is licensed in Maryland and D.C. but has a compatriot he works with who is licensed in Virginia. The agent need not be Jewish, but I'm looking for someone who is familiar with the locations, etc. of the synagogues, JCCs, kosher supermarkets and whatnot, especially in Maryland.

(5) Office chair: I'm looking for a good, ergonomic, good-for-my-back office chair, one made for someone who uses the computer all day. I'm not fond of the feel of the Aero, and I've tried the Healthy Back Store brand, which, ironically, feels great except on my back.

You can email suggestions to deliotb (at sign) aol.com. I'll post answers to questions one, two, and five. Thanks.

UPDATE: Received the following suggestions so far: (1) Yogurt: Nothing promising yet. Any yogurt entrepreneurs out there looking for a market to corner? (2) Used DVDs: Amazon Marketplace, Target or WalMart (to buy new), Blockbuster or other video rental stores, GameStop, CD and Video Exchange, Spun.com, amd Moviegallery.com (the latter of which I've just used, not a great selection, but very good prices). (5) Office Chair: Humanscale Freedom Chair, Grahl, BodyBilt.

FURTHER UPDATE: (1) Yogurt: Several readers recommended store brands, including Walmart's GV brand strawberry yogurt. Unfortunately, there is no Walmart with a supermarket near us. (2)Use DVDs: A reader recommended bestwebbuys.com, which scans various websites for the best prices on DVDs, among other products. I find it useful, but uneven. Another reader recommended www.gemm.com. Several readers recommended half.com, an Ebay subsidiary. I used to buy used VHS on half.com, and then sell them when I was done, but the DVD selection hasn't caught up yet. (5) Office chair: A couple of readers recommended Steelcase chairs.

"I Give In -- Reconstitute My Identity!"

Daniel Drezner demonstrates why policy wonks should stick to writing about policy -- and leave sex to the professionals.

Basketbrawl Litigation The NBA Players' Union is appealing the suspensions of Indian Pacers Ron Artest, Stephen Jackson, and Jermaine O'Neal. Under the rules, the appeal goes directly to David Stern, so they are asking that it be handled by an arbitrator. Once Stern refuses, can a lawsuit be far behind? Stern's already getting phone calls from Jesse Jackson.

Meanwhile, some Detroit fans have already filed lawsuits against these three players, the Indiana Pacers and the Palace. More suits — against the Detroit Pistons organization, and the NBA itself — could well follow. Those who want to make a little money without incurring legal fees can help the police track down the chair thrower. There's a $2,000 reward. Readers could use that money to buy the cup on E-bay.

Am I a Coward?

One reader e-mails re: my basketbrawl posts, "For you to call anyone a coward, while you hide behind a pseudonym, is a joke." Guilty as charged. I suppose I'm as wary about tenure as Stern is about alienating his fanbase.

Tuesday, November 23, 2004

Rep. Loretta Sanchez (D-Cal.) on the media and Democrats:

From a CNN transcript (thanks to InstaPundit for the pointer):

BLITZER: Welcome back. We're talking about the future of the Democratic Party with Texas Congressman Martin Frost, California Congresswoman Loretta Sanchez, Illinois Congressman Jesse Jackson, Jr., and radio talk show host Al Franken.

Jesse Jackson, Jr., is it the media's fault that the Democrats lost this time around?

[Jackson's response omitted. -EV]

BLITZER: What do you think? Loretta Sanchez, what do you think?

[LORETTA] SANCHEZ: . . . I believe that we made mistakes. The media certainly is not in our hands any longer, and, in particular, radio talk shows where that is completely in the opposition's hands, and they use it effectively against us.

BLITZER: But, Loretta, when you say the media -- when you say the media is not in your hands, are you saying that ABC, NBC, CBS, CNN are hostile to Democrats?

SANCHEZ: No, that's not what I said. I'm saying that -- if you would let me finish -- that the majority of people are now receiving a lot of their information out of radio. And the radio isn't in the hands of the Democrats anymore. . . .

Critical Christian Studies?

Chris Newman writes about devoutly Christian law schools, accreditation standards, Critical Race Theory, and more. A friend had e-mailed him:

I believe these schools are scary. Although it seems axiomatic that judges bring their personal moralities to bear on their decisions, and is likewise axiomatic that those morals shall often stem from religious precepts, I find quite disturbing the recent trend toward religious law schools. I can only hope they are never accredited. This is so because, it seems to me, their students are highly inclined to view the law through the prism of Christian dogma. Not only does this not make for a good attorney, I rue the possibility that such persons would, inevitably, be in positions to fill judcial posts. There can be no room in such positions for people who believe that "God's Law" is more important than "man's " law. Because, by their presence at these schools, these students are wedded to the principle of the superiority of God's Law over man's law, I do not believe that they can ever be really fit to serve in judicial roles. Because they are not fit to serve in such roles, the easiest way to keep them out of such roles is to refuse accreditation for their law schools.

To read Chris's response, go here.

Religious banners put up by coaches: OpinionJournal's Best of the Web, which I generally much like, contained the following item today:
Who's Intolerant?
"The Air Force Academy's longtime football coach has agreed to remove a Christian banner from the team's locker room after school administrators announced they would do more to fight religious intolerance," the Associated Press reports. If they're removing Christian banners, shouldn't that read "to fight for religious intolerance"?
This argument, it seems to me, fails to distinguish speech by individual students from speech by a coach -- in this case, a government employee. Here's how the story describes the situation:
Coach Fisher DeBerry agreed Friday to remove the banner, which displayed the "Competitor's Creed," including the lines "I am a Christian first and last . . . I am a member of Team Jesus Christ." DeBerry put the banner up Wednesday to encourage the team, which has experienced one of its worst seasons in recent years, academy spokesman Lt. Col. Laurent Fox said. A day earlier, academy Superintendent Lt. Gen. John W. Rosa announced the school would do more religious tolerance training after some nonreligious cadets reported on a survey that they felt ostracized. Others reported hearing religious slurs or jokes.
Unless there are some facts missing here, this doesn't seem to me to be good coaching or good manners. Some team members presumably aren't Christians, first, last, or at all. They would understandably feel more alienated from the team by this banner than encouraged by it. And even though most of the students are likely Christian, I suspect that any morale benefits for them are likely to be quite modest. Now tolerance is a complex matter here. People should also tolerate others' religious practices, even when they may create some sense of exclusion. Seeing a coach wearing a cross necklace might make some players feel alienated, by reminding them that they're in a religious minority; but the players should deal with this. Coaches' pre-game prayers with students are a somewhat closer case, because even though they can reasonably make non-Christian players feel excluded, prohibiting such prayers would interfere with the coach's ability to engage in a communal religious practice that may be pretty important to him. Again, this may counsel in favor of other players' (and supervisors') tolerating this, even if it might in some measure undermine team spirit as well as increasing it; though, as I mentioned, this is a close case. But the banner, it seems to me, is not just a personal religious observance by a coach, or even a communal religious observance that the coach is engaging in with his students. Rather, it's something that seems unnecessary to the coach's individual religious conscience, and that seems to pretty strongly suggest that to be on this team, players should also be on Team Jesus Christ. I think the coach's supervisors made the right call in having their employee take down this poster. On the other hand, I was troubled by this item later in the story:
Some cadets were admonished in March for using academy e-mail accounts to encourage other people to see "The Passion of the Christ," Mel Gibson's movie about the crucifixion.
While the e-mail system is the academy's property, I suspect that cadets are generally free to use it to express a pretty wide range of views (rather than, for instance, being limited just to school-related purposes). If that's so, then it seems to me that cadets ought to be similarly free to urge their classmates to see The Passion of the Christ; and if they were indeed admonished simply for this, then that would be a form of religious intolerance.
Discrimination based on lack of important job skills:

The Guardian reports (thanks to OpinionJournal's Best of the Web):

French employees will accuse a US multinational in court today of discrimination, claiming that they are being forced to speak English.

They say General Electric Medical Systems is sidelining the large proportion of its workforce who speak little or no English. It encourages them to work with company documents and instruction manuals written in English. . . .

Lawyers for the union CGT will argue that the company is in breach of the 1994 Toubon law, which says that all documents vital to an employee being able to work effectively must be in French. . . .

And it's Europeans who deride us Americans (with some justice) for not knowing foreign languages.

It's a miracle!

A Slate Explainer by Brendan Koerner, which discusses the miraculous Virgin Mary sandwich, also points to this item on ebay: A Cute Miracle! Hello Kitty Grilled Cheese Sandwich! Look particularly at the description, which is pretty funny.

And if you think that I'm endorsing mockery of some people's belief that the image of the Virgin Mary has appeared on a grilled cheese sandwich -- well, yes, that's exactly what I'm doing. Perhaps God moves in mysterious ways his wonders to perform, but somehow I don't think this is one of them.

Keylogging Devices And the Wiretap Act:

A district court judge in California recently held that installing a keylogging device on a personal computer connected to the Internet does not violate the Wiretap Act. For my explanation of the case, together with an explanation of why I think the opinion is incorrect, see this case summary.

Is David Stern A Coward? I've reveived lots of heated e-mails on my basketbrawl posts. Was I too harsh on David Stern? I don't think so. Stern acted quickly and forcefully against the offending players — as he should have — but did not condemn the fans' behavior in his prepared statement nor did he indicate his support for any sanction for the fans involved in the fracas. What message does that send? Of course it will take time to identify specific individuals, but it would have taken Stern no time to condemn assaults against players in unequivocal terms. Instead of addressing the fan misbehavior Stern talked about the need to "redefine" fans' obligations and sanction those who violate the new standard — as if it was ever okay to storm the court or throw stuff at players. He talked about reviewing the procedures at all NBA arenas, but that hardly contemplates any action directed at the Pistons organization for failing to keep things under control.

Many have asked what Stern could have done. He could have condemned the fan bahavior is unequivocal terms. He could have called for sanctions against offending fans by the Pistons organization. He could have stated his clear support for legal action against offending fans. Stern did none of those things. He did nothing that would risk offending the NBA fan base by reminding fans that they too have responsibilities. Again, what message does that send? (The folks at ArmchairGM have an idea.)

Meanwhile, it seems that local authorities and portions of the Pistons organization are doing their jobs. Authorities have identified the man they believe initially assaulted Ron Artest (Yes, dear readers who suggested otherwise, throwing a cup of beer at someone's head does constitute an assault, as local prosecutors noted) as well as the fan who allegedly threw a chair. (He could face a felony charge.) Pistons Tim Wilson said that offending individuals will be barred from the Palace permanently, and security has already increased. Local police also continue to gather evidence that will be turned over to prosecutors. According to news reports, legal charges will be filed -- most probably against fans and players alike — in about two weeks or so. I'm waiting for Stern to make a clear public statement in support of these actions. As yet, there's nothing of this sort on the NBA web site, nor have I seen anything equivalent in news reports.

A final note: I've had the privilege to sit front-row courtside at several NBA games. It is an amazing experience(even if the game today is not what it used to be). Basketball is the only professional sport left in which fans can get that close to the players. It is a privilege to have such an opportunity — and it comes with the responsibility not to act like an ass or a thug. Some Detroit Pistons fans did not get this, and they should bear the consequences — legal and otherwise.

Law Schools, Political Causes, and Exclusion: Should law schools take sides on what they perceive as questions of justice and morality? Will Baude considers the dangers of doing so in a post you can access here.

  In my view, there are interesting parallels between this debate and Eugene's recent posts on using religious views as the basis for political beliefs (see here, here, and, for an offshoot discussion, here and here). In both cases, the question is whether we should decide to exclude a set of views as illegitimate — simply beyond acceptable argument — and if so, when. I have no particular expertise on this question, but I wonder if attitudes here tend to reflect in-group, out-group identification more than the abstract principles they tend to trumpet.

  UPDATE: Will responds to my suggestion in an update to his post. To be a bit clearer, my guess is that those more willing to mark off sets of ideas as illegitimate would tend to have a strong sense of in-group/out-group identification. Exposure to ideological diversity tends to cut the other way, I think: my sense is that the more people you know well who think differently than you do, the likelier you are to recognize the legitimacy of a broader set of ideas.

Related Posts (on one page):

  1. Critical Christian Studies?
  2. Law Schools, Political Causes, and Exclusion:
  3. Religious Law Schools and Political Diversity.--
Religious Law Schools and Political Diversity.-- Adam Litvak has an article in the New York Times describing Jerry Falwell's Liberty Law School.

Excerpt:
The new law schools say they are a sort of counterweight to the views that dominate the legal academy.

"The prevailing orthodoxy at the elite law schools is an extreme rationalism that draws a strong distinction between faith and reason," said Bruce W. Green, Liberty's dean.

The claim that professors at the leading law schools tilt to the left is supported by statistics. According to a forthcoming study of 21 top law schools from 1991 to 2002 by John McGinnis, a law professor at Northwestern University, approximately 80 percent of the professors at those schools who made campaign contributions primarily supported Democrats, while 15 percent primarily supported Republicans.

Peter H. Schuck, a law professor at Yale, where 92 percent of faculty political contributions went to Democrats, said Dean Green was right to question whether religious perspectives are welcomed at mainstream law schools.

"There is a sort of soft tolerance of competing views," Professor Schuck, who described himself as a political moderate, said, "but no real interest in exposing students to seriously developed contrary points of view that proceed from a strong faith-based perspective. Fundamentalism is derided."
I was interviewed by Litvak for the story but said nothing worth quoting.

Related Posts (on one page):

  1. Critical Christian Studies?
  2. Law Schools, Political Causes, and Exclusion:
  3. Religious Law Schools and Political Diversity.--

Monday, November 22, 2004

Pejman Yousefzadeh

of http://pejmanesque.com is temporarily blogging at http://pejmanbackup.blogspot.com.

Police Officers and Gut Feelings:

Ken Lammers has an excellent post on the topic. In particular, it's a must-read for any criminal procedure students out there.

Affirmative Action For Men: The L.A. Times offers this fascinating article on colleges and universities that are lowering admissions standards for men to achieve equal numbers of men and women in the student body. (Hat Tip: Pejman.) Kevin Drum offers some pointed comments; I would only add that the reactions of stalwarts on both sides of this debate should be of interest. I find the statistics in the article particularly interesting. Among them:
National college enrollment--
Females: 56%
Males: 44%

U.S. high school students who... Maintained an A average--
Females: 62%
Males: 38%
The Riot Act:

Ever wanted to read someone the Riot Act? Apparently all you need to do is find a group of 12 or more people "tumultuously assembled" and declare the following (preferably with a British accent, of course):

  Our Sovereign Lord the King chargeth and commandeth all persons being assembled immediately to disperse themselves, and peaceably to depart to their habitations or to their lawful business, upon the pains contained in the act made in the first year of King George for preventing tumultuous and riotous assemblies. God save the King.

More information here and here. Thanks to Ken Lammers for the original link. (A bit of Westlaw research suggests that this isn't the entire act as passed in 1715, but it's the part that had to be read to disperse the crowd; anyone who hadn't dispersed in one hour after this was read was guilty of "felony riot." Oh, and no relation to Quiet Riot, at least as far as I can tell.)

The World Series

will now be the championship of two leagues in which exactly one team is outside the United States. Say what you will about those darned Europeans (and other soccer-loving countries), at least when they hold the World Cup they invite the rest of the world.

(And, no, apparently the World Series wasn't named after a newspaper called the World, so that excuse won't wash.)

Related Posts (on one page):

  1. The World Series
  2. The Nationals:
The Nationals:

It's official; the Montreal Expos are going to be renamed the Washington Nationals.

Related Posts (on one page):

  1. The World Series
  2. The Nationals:
Punishing Journalists For Not Revealing Sources: New York Times reporter Judith Miller has been held in contempt of court for her refusal to identify to a grand jury the source of who leaked the identity of Valerie Plame, an undercover CIA agent. Press coverage of the story has focused heavily on the prospect that punishing Miller might have the unfortunate effect of deterring future leaks:
  The case has caused shudders among some First Amendment experts who fear the ruling by federal district Judge Thomas Hogan in Washington could shut down the flow of information from government whistle-blowers and other confidential sources who risk losing their jobs if identified.
  If allowed to stand, the contempt citations "would dramatically affect the ability of the public to get information through reporters," said Jack Doppelt, an associate professor at Northwestern University's Medill School of Journalism. "It's terrible."
  I can certainly understand this fear — and why it would seem particularly important to reporters — but I find it hard to assess without knowing the particulars. In particular, is the alleged problem more the substantive criminal law, or the apparent absence (at least in the grand jury context) of a reporter's privilege? Proponents of the argument may believe that the federal law making it a crime to disclose classified information is a bad idea, at least when that disclosure is made to a reporter. Judge Hogan's decision helps enforce the existing law; it deters federal officials from committing the crime of disclosing classified information. If that law is a good law, then deterring people from violating it would seem to be a strength of Judge Hogan's ruling, not a weakness.

  Alternatively, critics may believe that, even assuming the law against disclosing classified information is a good law, Judge Hogan's ruling might deter societally useful disclosures when disclosures would not violate that law. I have chosen to remain rationally ignorant about the details of Judge Hogan's ruling, but it may be that its rationale would apply more broadly than criminal investigations. Or perhaps there is reason to fear that prosecutors will abuse their powers to bring reporters before the grand jury, forcing reporters to disclose their sources even when no crime has been committed. (I don't know how likely that is; I'm just mentioning it as a possibility.)

  It's probably too much to expect reporters to go into these details in the course of reporting new stories. Still, it would be good to know whether critics object primarily to the scope of the substantive criminal law, the scope of Hogan's ruling against a reporter's privilege, or something else.
A (Very) Unintentionally Funny Question by Juan Cole:

Cole:

I received a very weird phone call from a prominent Jewish-American investigative journalist the other night. He kept muttering about bias against Sharon and how the Israeli security wall is no different from the wall near the Rio Grande (which isn't true: did the US annex Mexican land to build that?)

I guess Juan's never heard of the Mexican-American War.

Of course, there are pertinent differences: the U.S. action against Mexico was an agressive action taken against a sovereign state and largely motivated by "Slave Power" interests. By contrast, in 1967 Egypt had engaged in acts of war against Israel (closing the Suez Canal the Gulf of Aqaba, and sending U.N peacekeepers in Sinai packing) and boldly threatened to annihilate Israel, and hence was preemptively attacked by Israel, resulting in Israel's occupation of Gaza. Israel achieved control of the West Bank areas of Judea and Samaria because Jordan attacked Israel in 1967, after Israel specifically invited Jordan to state out of the war.

To say these are "Palestinian lands," as I hear so often, is thus something of a misnomer, equivalent to saying that the lands that the U.S. conquered in the Mexican-American war were "Indian lands." When Israel went to war in 1967, the "Occupied Territories" belonged to Egypt and Jordan, respectively, neither of which showed any inclination to treat these territories as the home of a future Palestinian state. Jordan, in particular, had grave conflicts with Yasser Arafat and the emerging Palestinian leadership, resulting in the Black September War of 1970, and didn't give up its claim to the West Bank areas until the 1980s. Israel made a grave mistake in not reaching a deal with the relatively reasonable Jordanians, and found themselves instead having to deal with the incredibly corrupt and mendacious Arafat instead.

In any event, Israel won these lands in a war of self-defense, and certainly has no moral obligation to do anything in particular with them, unless it serves Israel's own interests, as a stable peace deal certainly would. But commentators like Cole, who distort Israeli history as easily as they remain ignorant of American history, hardly shed any light on the subject.

Sunday, November 21, 2004

David Stern Is a Coward. I know of no other way to describe the NBA Commissioner's complete failure to impose any sanction designed to redress the actions of unruly fans in Detroit. Today David Stern announced severe, and warranted, suspensions of the NBA players involved in the Friday's courtside riot in Detroit. Yet Stern announced no measures -- indeed, could not even bring himself to directly condemn the actions of the fans -- addressed at the misbehavior of the guilty fans. No penalties were assessed on the Detroit Pistons organization for insufficient security; season-ticket holders who assaulted players did not have their tickets revoked, nor were any such measures recommended by the Commissioner in his statement. All David Stern offered was empty platitudes about how tyhe league must "redefine the bounds of acceptable conduct" for fans and players alike.

Note to David Stern: If fans get to assault players without any penalty, the league is not "defining the bounds of acceptable conduct." Rather, the message of Sterns actions is that wealthy folks who spend lots of money on courtside seats can act like juvenile thugs because they are the NBA's "customers" without fear of penalty -- while players who act to defend themselves merit no mercy.

Again, I believe the player suspensions were warranted, but Stern's failure to act more even handedly was cowardly. I hope Stern realizes this and takes measures to address fan behavior and player safety forthwith. After today's announcement, I am not betting on it.
Blame the Fans Too: I have little patience for spoiled-rotten professional athletes, especially in the NBA. Yet after this weekend's fiasco in Detroit, I have even less patience for unruly sports fans.

In this column, the Miami Herald's Dan Le Batard nails it:
It was ugly and awful and historically staining, and now, it will get worse as the media machine cranks up, and the wailing begins about how our millionaire athletes are spoiled, entitled and out of control.

But the fans are more to blame for the riot in Detroit than those players are. Not to make this too playground childish, but, Mommy, they started it.

Ron Artest doesn't lose what little is left of his mind and charge into those stands if some dope doesn't hurl a cup and hit him in the head first.

It is lazy to say it is the responsibility of the athletes to remain rational, calm and professional in these instances. But you might not remain so rational, calm and professional if someone came into your emotion-and-intensity-soaked workplace and hit you in the head with something. And you might not remain so rational, calm and professional if you saw an angry mob surrounding your scared friend in a fight, either.

Don't make the rules different for the athletes than you would make them for yourself.
The athletes involved, including Ron Artest, will all receive substantial penalties -- as well they should -- but the thuggish Detroit fans involved should suffer too. Any fan who threw a beer or rushed the court should lose their season or package tickets. Marc Stein of ESPN.com also suggests the NBA learn from Europe's experience in dealing with unruly soccer fans:
In soccer-playing countries, the natural response to the deplorable behavior of Detroit's unruliest fans would be to lock out every single fan on March 25, when the Pacers make their next visit to the Palace.

Just last week, selected members of England's national soccer team were racially abused by Spanish fans in what amounted to an exhibition game. FIFA, the sport's international ruling body, is threatening to force Spain to play its next home international match -- a real World Cup qualifier -- behind closed doors, with only members of the media allowed in as witnesses.

It has already happened in this season's Champions League. The opening group match for Italy's AS Roma, against the Ukraine's Dynamo Kiev in September, was abandoned early after Swedish referee Anders Frisk was injured by a coin thrown from the stands. AS Roma's next home match, against Germany's Bayer Leverkusen, was played without fans in the stands.

Such measures have never been taken Stateside, but the Pistons would never forget the message. Not only would its home-court advantage be wiped out in a late-season matchup with its fiercest rivals, but Detroit would also lose the six to seven figures of revenue it generates from every home game.
Professional athletes who lost control should be punished with fines and suspensions. But when spoiled fans instigate and provoke athlete reactions, they should be punished too.