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Friday, January 7, 2005

LEXUS/HYBRID LANES:

An interesting comment I received on my hybrid cars post struck me as something to think about. Economists generally advocate the use of tolls and toll lanes to reduce traffic congestion, as opposed to HOV requirements. Often these toll lanes are criticized under the sobriquet of so-called "Lexus Lanes" and it is said to be "unfair" to allow drivers to buy their way out of traffic. But if that is so, why do we allow people to "buy" their way out of traffic and HOV requirements just by purchasing a hybrid car. Moreover, my understanding is that hybrids are more expensive than other cars, made moreso by the high public demand for them (which is one reason for the tax break for them).

Obviously there is thought to be some public benefit from greater hybrid use that might be thought to offset the perception that it is unfair to "buy" one's way into the HOV lane. But the more general observation is that nobody thinks of it as "unfair" to buy your way into the HOV lane by buying a hybrid, yet they do for "Lexus Lanes." In fact, I hadn't thought of it that way until the reader asked me the question.

I suspect that the answer is (extrapolating from the second volume of Hayek's Law, Legislation, and Liberty) "fairness" is a pretty slippery concept once you get beyond small, intimate relations and start trying to apply it to larger legal and policy questions.

I Like My Company Car, Boss,

I THINK I'LL TAKE IT HOME AND SELL IT. Reader Christopher Rohrbacher points to this AP story:

[Red Sox] first baseman Doug Mientkiewicz, [who made the last out in the Red Sox World Series championship,] still hasn't let go of the [game-ending] ball. . . .

Carmine Tiso, spokesman for MLB, told the Globe that Mientkiewicz owns the baseball, though Joe Januszewski, Red Sox director of corporate partnerships, said he thinks the team owns it. . . .

Of course the team owns it. Possession is sometimes 9/10 of the law, but not when an employee possesses something that the employer gave him to use as the tools of the trade. Just because an employer lets you drive a company car doesn't mean its yours. Likewise with a baseball; the employer may have surrendered possession of it, but not ownership.

Of course, if the contract provided that employees get to keep some property, that would be enforceable. Likewise, there might be implicit terms of the contract that flow from industry custom. (If I recall correctly, there's been some debate about whether fans are entitled to keep balls that they catch; the theory there would be this sort of custom.) But I highly doubt that there's anything like that here — I think the Major League Baseball spokesman was mistaken or misquoted.

Naturally, if property law scholars or baseball convention experts think I'm mistaken on this, I welcome their corrections. But I'm pretty sure that the team is in the right here, and Mientkiewicz in the wrong.

UPDATE: Reader Peter Sessions writes:

Doesn't the ball belong to the St. Louis Cardinals, not the Red Sox? After all, because the final game of the World Series was played in St. Louis, I assume the Cardinals were the ones who provided the balls according to MLB Official Rule 3.01(c).
I'm embarrassed that I didn't think of this (until I read the news story today, I doubt I could have told you who played in the World Series, much less where it was played, so I didn't focus on the home vs. away question).

Indeed, if the Cardinals provided the balls, the balls were their property at the outset. The question is whether their handing the balls to the Red Sox to be pitched surrendered ownership or not; I'm not sure whether it did, because that also depends on industry custom, if there is one here. But my basic point remains — the balls surely aren't property of the players, unless there's some contrary custom, which I find quite unlikely.

FURTHER UPDATE: Some people claim that Major League Baseball provides the balls for playoffs and the Series, in which case it would presumably still have title — and then if it wants to, it can give them away to Mientkiewicz. But I doubt that MLB has decided to do this, even if the ball was indeed its own, unless there's some custom that it's following here. (I suppose that if the MLB spokesman had the authority to transfer ownership, and was indeed intending to do so by his statement, that might be fine; I just doubt that this is what he was trying to do, since I don't see much of a reason for him to do it.)

YET ANOTHER UPDATE: Reader Todd Kincannon writes:

There is an extremely well established custom in Major League Baseball that players get to keep significant baseballs unless they end up in the stands. Umpires will stop games so that a player can retrieve a significant ball, such as the one he just got his 3000th hit with, or his very first hit, or was the ball he just made an unassisted triple play with, etc...

One potentially important distinction here is that this ball is not particularly symbolic of a personal achievement by Mientkiewicz (he gets a put-out on the play; not a huge statistical deal), but instead is symbolic of a Red Sox team victory.

So I don't think the outcome is quite as clear cut as you do.

Well, as I mentioned, the issue does turn on custom, which sometimes can be treated as an implied term of a contract, if it's clear-cut enough (and, as the second paragraph suggests, it may not clearly apply here). I still doubt that there would be such a custom, especially as to balls where the person who happened to end up with it didn't do anything that remarkable; but perhaps I'm mistaken.

Reader Joshua Turner points me to this law review article, but a quick skim suggests that it focuses on whether a fan owns a home run ball (or a foul ball). This is a different matter, because there's no reason to think that the customs are the same.

Related Posts (on one page):

  1. More on the World Series-Ending Ball and Property Law:
  2. I Like My Company Car, Boss,
The OLC Torture Memos: Former OLC attorney Marty Lederman compares the new and old OLC torture memos in an analysis over at ACSBlog. Thanks to Michael Cernovich for the link.

  UPDATE: Turns out that the post linked to above is only part one of a four-part series. You can get the whole thing over at Balkinization.
More ScrappleFace:

 

Al Qaeda chief executive Usama bin Laden today requested a formal ruling from the U.N. Human Rights Commission on how to conduct beheadings of civilian and military prisoners in ways that comply with the Geneva Conventions.

"Al Qaeda seeks the global credibility that comes only from adherence to the Geneva Conventions," Mr. Bin Laden wrote. "Specifically we want to know what kind of cutlery is permissible [and] guidelines for videotaping the beheading . . . ." . . .

HYBRID CARS:

Awhile back I noted an article in the Washington Post that observed that a major reason why many people bought hybrid cars was the same reason that many other people buy a Corvette or Mercedes--because of the image the car projects to the world. "The Prius and Civic have similar new technologies, so it's not just fuel efficiency that's causing drivers to flock to Toyota's hybrid. 'The Prius is a fashion statement,' said Art Spinella, a consultant with CNW Marketing Research who surveys car-buying trends. 'It looks different. Other people know the driver is driving a hybrid vehicle. It clearly makes a bigger statement about the person than does the Civic, which basically looks like a Civic.'"

But that only explains why people buy a Prius hybrid instead of a Civic hybrid. An article in today's Washington Post explores the larger question why do people buy a hybrid car in the first place. I don't doubt that some people do so because they believe that it is better for the environment. But the Post observes that, at least in the DC area, the primary impetus for rapid sales of hybrid cars is that they are allowed to use HOV lanes during rush hour. From the article: "'I'd say 95 percent of the people who buy a Prius say it's to get into HOV,'" said Jay Taye, sales manager at Ourisman Fairfax Toyota. "'They talk about the tax break and the HOV, and once in a while they say they prefer it for the gas mileage as well.'"

In fact, single-occupant hybrids are becoming so commonplace that they are clogging the HOV lanes. "'For every two cars, there's one hybrid,'" said Cora Seballos, who carpools daily from Springfield to the District. "'Since September, usually the regular lanes have less traffic'" than the carpool lanes. Seballos said she has to leave home a half-hour earlier because of the increased congestion."

As for the "environmentally friendly" effect of hybrids, note that in the Post story the hybrid exception is for HOV-3 lanes on I-95. To justify the exception, therefore, a hybrid would have to be three times more environmentally friendly than a standard car to justify the exception. So leaving aside questions that have been raised about whether hybrid cars even are more environmentally-friendly than standard cars, I am not aware of any argument that they are three times more efficient.

An interesting test of the economic hypothesis would be the prevalence of hybrid cars on I-66 (HOV-2) versus I-95 (HOV-3). If the environmentalist hypothesis is correct, then people will have an economic "taste" for hybrid cars, meaning that the decision to buy a hybrid car should be largely independent of the practical benefit that a driver derives from ownership. If the economic theory is correct, then there should be a greater prevalence of hybrid cars on I-95 than I-66 because of the greater tangible benefit in terms of HOV travel. To the best of my knowledge, no one has tested this proposition, but I have my own hunch as to which would likely fare better.

Update:

I should add, in my book, The Onion's famous story still remains perhaps the most accurate assessment of public opinion toward these sorts of issues--"Report: 98 Percent of Commuters Favor Public Transportation For Others"

Update:

THREE TIMES BENEFITS: To clarify, in response, to a question, I'm using three times benefits as a rule of thumb here. Variables push in different directions, so I am using as a rule of thumb those who used to carpool in HOV-3 becoming single occupant hybrid drivers. But there could be many variables pushing in many directions. Some people could switch from single-passenger traditional cars that they drive in non-HOV lanes to hybrids, in which case it is a net benefit. For instance, one possibility is that some of those who used to take Metro public transit might switch to driving a hybrid if it was perceived as more environmentally-friendly than a traditional car, but more convenient (but still less environmentally friendly) than being an additional rider on the Metro. In that case there is a net detriment. To the extent that the effect is to increase the number of cars and thereby increase congestion (and increase travel times), then this would be weighed on the other side. The Post story (which is, of course, nothing like a serious study, so everything should be taken with a grain of salt) suggests that the overall impact has been to increase the number of cars on the road.

For an argument that the correct ratio should be "about one-and-a-half times" see here. The argument there is that people don't just drive their hybrids to work, so there is some benefit to be accrued from people driving hybrids instead of regular cars during non-commute time. Of course, both of our calculations are pretty arbitrary, but I think the larger point is that in order to justify an HOV exception, I think the benefits would have to be some multiple of the difference between the two types of cars to make up for the loss of HOV drivers, whether that is 1-1/2 times or 3 times. Also, this excludes other psychic and other benefits or detriments that might accrue.

Thursday, January 6, 2005

Senator Graham on Torture and the Geneva Convention: One of the interesting parts of today's hearing on the nomination of Alberto Gonzales to be Attorney General was the opening statement of conservative Republican Senator Lindsey Graham. Graham has been sharply critical of the Administration on Abu Graib before, and his opening statement ran the gamut from Abu Graib and Gitmo to torture and the Geneva Convention. Here is the bulk of it [it's rather long, but I think worth reading]:
  I think we've dramatically undermined the war effort by getting on a slippery slope in terms of playing cute with the law, because it's come back to bite us.
  Abu Ghraib has hurt us in many ways. I travel throughout the world like the rest of the members of Senate, and I can tell you it is a club that our enemies use, and we need to take that club out of their hands.
  Guantanamo Bay — the way it's been run has hurt the war effort.
  So if we're going to win this war, Judge Gonzales, we need friends and we need to recapture the moral high ground. And my questions are long that line.
  To those who think that you can't win a war without — with the Geneva Convention applying — I have another role in life, I'm a judge advocate, I'm a reserve judge in the Air Force. . . . Part of my job for the last 20 years, along with other judge advocates, is to advise commanders about the law of armed conflict.
  And I've never had a more willing group of people to listen to the law. Because every Air Force wing commander lives in fear of an air crew being shot down and falling into enemy hands. And we instill in our people as much as possible that, "You're to follow the law of armed conflict, because that's what your nation stands for, that's what you're fighting for, and you're to follow it because it's there to protect you."
  Now, to Secretary Powell. He took a position that I disagree with legally, but in hindsight might have been right.
  I agree with you, Judge Gonzales, to give Geneva Convention protection to Al Qaida and other people like Al Qaida would in the long run undermine the purpose of the Geneva Convention. You would be giving a status in the law to people who do not deserve it, which would erode the convention.
  But Secretary Powell had another role in life, too. He was a four-star general, chairman of the Joint Chiefs. And to those who think that the Geneva Convention is a nicety, or that taking torture off the table is naive and a sign of weakness, my answer to them is the following: that Secretary Powell has been in combat. And I think you weaken yourself as a nation when you try to play cute and become more like your enemy instead of like who you want to be.
  So I want to publicly say that the lawyers in the secretary of state's office, while I may disagree with them, and while I may disagree with Secretary Powell, was advocating the best sense of who we are as people.
  Now, having said that, the Department of Justice memo that we're all talking about now was, in my opinion, Judge Gonzales, not a little bit wrong, but entirely wrong in its focus, because it excluded another body of law called the Uniform Code of Military Justice.
  And, Mr. Chairman, I have asked since October for memos from the working group by judge advocate general representatives that commented on this Department of Justice policy, and I have yet to get those memos.
  I have read those memos. They're classified for some bizarre reason.
  But generally speaking, those memos talk about that if you go the road suggested, you're making a U-turn as a nation; that you're going to lose the moral high ground, but more importantly, that some of the techniques and legal reasoning being employed into what torture is — which is an honest thing to talk about, it's OK to ask for legal advice. You should ask for legal advice.
  But this legal memo, I think, put our troops at jeopardy because the Uniform Code of Military Justice specifically makes it a crime for a member of our uniform forces to abuse a detainee. It is a specific article of the Uniform Code of Military Justice for a purpose: Because we want to show our troops not just in words but in deeds that you have an obligation to follow the law.
  And I would like for you to comment if you could. And I would like you to reject, if you would, the reasoning in that memo when it came time to give a torturous view of torture.
  Will you be willing to do that here today?
I have enabled comments — as always, civil and respectful comments only.

44 Comments
Liberal federalism:

Stanford lawprof Rich Ford has a nice piece in Slate explaining why liberals should like federalism. I have a few disagreements with some of the specific points that Rich makes, but all in all it strikes me as a very nice piece.

Free the Law Reviews: Dan Hunter makes a persuasive case that law reviews should allow authors to make their articles available for free online via sites like SSRN — and that it is the commercial database companies, not the journals, that are the major forces trying to keep free copies off the web. Thanks to Larry Solum for the link.

Related Posts (on one page):

  1. A Different Take on 'Free the Law Reviews':
  2. Free the Law Reviews:
Why Thomas Won't Be The Next Chief Justice: Edward Lazarus offers his take at findlaw.com. The core of the argument:
  Bush will . . . pass over Thomas. Why? Because, I believe, he and his advisors will ultimately decide that, ironically, appointing Thomas to be the next Chief Justice would probably disserve their goal of advancing a more conservative agenda at the Court.
  . . .
  The most influential Chief Justices - the John Marshalls and Earl Warrens - have mixed a wise use of [the Chief Justice's] powers with a keen sense of diplomacy to move the Court in their preferred direction. But a key ingredient has always been the Chief's willingness to compromise his own views at times. This willingness is crucial, for it allows the Chief to create majorities that would not otherwise exist, and to prevent other justices from taking the court too far in the wrong direction.
  . . . .
  Such strategic compromise would hardly seem to be Thomas's strong suit. To the contrary, the evidence suggests that, unlike the most effective Chief Justices, Thomas may refuse to ever vote against his own sincerely-held views. To him, it seems, his vote must express his view completely and totally; it is not also sometimes a form of leverage to achieve the best long-term outcome.
  As Chief, Thomas would frequently face the unpalatable choice of either compromising his own views, or letting the real lawmaking at the Court fall to other justices. Either way, his influence would be muted. A Chief Justice who frequently writes alone - as Thomas seems bent on doing - and whose view of the law is idiosyncratic - as Thomas's plainly is - may be Chief in name only.
  In short, from the conservative perspective, it would be far more effective to keep Thomas as an associate justice.

Related Posts (on one page):

  1. Why Thomas Won't Be The Next Chief Justice:
  2. Justice Thomas Smackdown:
  3. Justice Thomas Explained:
Columbia Academic Freedom Website:

You can follow the continuing saga over the alleged inappropriate behavior by Middle Eastern Studies professors at Columbia at a new website, Columbiaacademicfreedom.org. I find it especially interesting, and disturbing, that two of the professors appointed to a university committee investigating the charges are members of a department of which one of the accused is the chair.

UPDATE: Interesting and disturbing if true, but untrue. The Columbia website authors were apparently a bit confused. A reader explains:

Dabashi is head of something called the "Center of Comparative Literature and Society," different the Department of English and Comparative Literature, which is where Profs. Griffin and Howard have positions. If you go to the page that lists the faculty associated with Dabashi's center (http://www.columbia.edu/cu/ccls/lists/dir/faculty-alpha.html), you'll see that neither Griffin nor Howard are listed as being associated with the center.

Thanks for the correction!

Harvard Law Review Seeks Faculty Feedback: A month or two after the blogosphere debated the merits of student-edited law reviews (see here, here, and here), the Harvard Law Review has posted an online survey for law professors:
The Harvard Law Review is launching a brief online survey to solicit faculty perspectives on what law reviews can do better. We believe deeply in the value of legal scholarship, and hope that increased dialogue will strengthen the role that law reviews can play. To that end, we are conducting a nationwide survey of law faculty, the results of which we intend to share with law reviews across the country.
You can see the survey — and, if you're a law prof, participate in it — here.
Classic ScrappleFace:

 

Alberto Gonzales, President Bush's Attorney General nominee, told the Senate Judiciary Committee today that he would state only his name, rank, date of birth and Air Force serial number, which is all that is required under the terms of the Geneva Conventions. . . .

Mr. Gonzales' refusal to answer Senators' questions did not affect the committee's inquiry, which consists primarily of speeches to a gathering of journalists.

Half the Story:

Slate's new "Human Nature" column (on "Science, culture, and politics") reports:

SEX

Item: Morning-after pills don't lull women into risking unprotected sex.

Source: Center for Reproductive Health Research and Policy

Outlet: Washington Post, Jan. 5

Gist: Last year the Food and Drug Administration refused to allow nonprescription sales of Plan B, a morning-after pill, on the grounds that its easy availability might lull young women into having more unprotected sex. A study by CRHRP finds no such effect.

Liberal spin: This cuts the scientific legs out from under what was really a political decision. Now give us the pill.

Now of course this is a short item, which necessarily omits some of the story. Here's an excerpt from the longer story, in the Washington Post:

Providing women with easy access to the emergency contraceptive Plan B [the "morning-after pill"] did not lead them to engage in more risky sexual behavior, a study of more than 2,000 California women has concluded.

The study did find that women given a supply to keep at home were more than 1 1/2 times as likely to use the drug after unprotected sex as those who had to pick it up at a clinic or pharmacy. The findings led the study authors to conclude that easy access to Plan B, also called the morning-after pill, could reduce the number of unwanted pregnancies while posing no apparent risk to women.

The study contradicts a key claim made by opponents of easier access to Plan B at a time when the Food and Drug Administration is preparing to decide on a second application to allow nonprescription sales of the drug. . . .

"Our findings were that women don't change their sexual behavior when the drug is easily available, but rather that they're more likely to use it if access is easier," said lead author Tina R. Raine of the Center for Reproductive Health Research and Policy at the University of California at San Francisco.

The study looked at the experiences of 2,117 San Francisco-area women ages 15 to 24 who were randomly put into one of three groups — one was given the drug to take home, the second could pick it up without a prescription at a clinic, and the third could get it without a prescription at a pharmacy.

The study found that about the same percentage of each group had unprotected sex over a six-month period, that incidence of sexually transmitted disease was equal, and that about the same percentage became pregnant.

Nonetheless, about 37 percent of women in the group given Plan B to take home used it at least once during the six months, compared with 21 percent in the clinic-access group and 24 percent in the pharmacy-access group. . . .

The new study, being published today in the Journal of the American Medical Association, supports the position taken by much of the FDA review staff and 23 of 27 members of the FDA advisory panel that the drug could be safely and properly used without a prescription. . . .

So what's missing from the Slate item, and buried in the Post story? While the study didn't find an increase in unprotected sexual behavior when distribution constraints on the pill were relaxed (i.e., when the pill was just given to women, or was available without a clinic visit at a pharmacy), it also didn't find a decrease in pregnancy. As the study abstract says, "compared with controls, women in the pharmacy access and advance provision groups did not experience a significant reduction in pregnancy rate (pharmacy access group: adjusted odds ratio [OR], 0.98; 95% confidence interval [CI], 0.58-1.64; P = .93; advance provision group: OR, 1.10; 95% CI, 0.66-1.84, P = .71)." The study's text, which my library got for me, says the same.

The Post story, as I mentioned, does note this in the 8th paragraph — but the 2nd paragraph says "The findings led the study authors to conclude that easy access to Plan B, also called the morning-after pill, could reduce the number of unwanted pregnancies while posing no apparent risk to women." Say, wouldn't it have made sense to mention, in the same paragraph, that the study failed to find that easy access to plan B actually reduced the number of unwanted pregnancies?

Also, note that the research doesn't precisely lead to the "conclu[sion]" that "Providing women with easy access to [the morning-after pill] did not lead them to engage in more risky sexual behavior." Rather, it fails to support the contrary conclusion: It finds no statistically significant evidence that providing women with easy access does lead them to engage in more risky sexual behavior. As they say, absence of evidence (here, lack of a statistically significant correlation between access and risky behavior) isn't evidence of absence (a statistically significant showing of no correlation). If enough studies fail to find a correlation, we may become fairly confident that the correlation, if there is one, is very weak. But when one study fails to find a statistically significant link, that's hardly dispositive.

But that's a fairly small quibble compared to the broader point — sure, easier distribution of the pill that aims to reduce unwanted pregnancies doesn't seem to have some kinds of harmful side effects, but it doesn't seem to have much of an effect in reducing unwanted pregnancies, either. Seems to me that both points should be noted prominently.

I should stress, by the way, that I have nothing against morning-after pills, and I think that women should have access to them. Even if easier access to the pills doesn't do much good overall, it may help some women in some circumstances, and I think women should have convenient access to this choice. (I don't take the view that a day-old unimplanted zygote has rights; and, no, I'm not going to take the time to debate this point, which is in any event tangential to the heart of this post.) I thus support the bottom-line policy conclusion that the Post article and the Slate item point to. I'm just not wild about how the study is being described.

As always, please correct me if I'm misreading either the study or the stories.

UPDATE: Just to be clear, the study wasn't measure the side effects or effectiveness of the morning-after pill as such; it was measuring the side effects or effectiveness of easier distribution of the morning-after pill. My original post made this clear, but in some parts of it I used "pill" as shorthand for "easier distribution of the pill," and that was confusing; I've updated the post to remove the confusion.

Wednesday, January 5, 2005

Justice Thomas Smackdown:

In a more serious vein than my last post, what started as a debate over whether Clarence Thomas should be elevated to Chief Justice has become a rip-roaring exchange over originalism, stare decisis, the role of the courts, and then some.

Does 911 Work? No one Knows:

A major new report by the National Academies of Science declares that there is no persuasive proof that gun control works, or that gun ownership reduces crime. The study calls for more data collection on gun violence. In a Tech Central Station article today, my co-authors and I argue for collection of another type of nearly non-existent data: how often crimes are interrupted as a result of a 911 call. If the percentage is not very high (and the small amount of research suggests that the figure is no higher than 35% under optimal assumptions), then the government would seem to have no plausible claim to have moral authority to prevent people from protecting themselves.

Moreover, since 43 state constitutions clearly guarantee an individual right to arms (as I've detailed in a law review article), and since the Department of Justice has affirmed its traditional position that the Second Amendment protects an individual right, then the social presumption should clearly be against new anti-gun laws, and in favor of repeal of many such existing laws. After all, constitutional rights are supposed to be restricted only when there is an important need to do so--not when social scientists can find no evidence that such restrictions accomplish any good.

My Heart Bleeds for This Fellow,

who is suing NBC over a Fear Factor episode. Reuters reports (thanks to How Appealing for the pointer) that

In a handwritten four-page lawsuit filed in federal court in Cleveland on Tuesday [demanding $2.5 million in damages], paralegal Austin Aitken said, "To have the individuals on the show eat (yes) and drink dead rats was crazy and from a viewer's point of view made me throw-up as well an another in the house at the same time."

His suit added, "NBC is sending the wrong message to its TV watchers that cash can make or have people do just about anything beyond reasoning (sic) and in most cases against their will."

He said the show caused his blood pressure to rise so high that he became dizzy and light-headed, and when he ran away to his room, he bumped his head into the doorway.

Apparently cash can make a paralegal publicly embarrass himself. Oh, and here's my favorite part of the story: "In a brief telephone interview with Reuters, Aitken said, 'I am not at liberty to discuss the complaint unless it is a paid-interview situation.'" Must be some weird nondisclosure agreement he signed that constricts his liberty. Or maybe his religion, or a hitherto unknown section of the Patriot Act.

Pi as Music.

Thanks to David Chichka for the pointer.

Is the Supreme Court Conservative?: Writing in the Washington Monthly, Stephen Pomper offers this assessment of the Rehnquist Court:
  To the surprise of the legal left, the Rehnquist Court has refused to overturn Roe v. Wade and has broken new ground in protecting the civil rights of homosexuals. It has endorsed some forms of affirmative action. In last Spring's highly charged enemy detainee cases, it refused to write the executive branch a blank check for wartime detention powers. And even in its hypertechnical (and therefore less controversial) federalism cases, which concern the powers of Congress over the states, the Court has feasted less aggressively on Congress' legislative authority than might have been anticipated, contenting itself to snack on bits and pieces. In retrospect, liberal anxieties (including my own—see "The Gipper's Constitution," December 1999) about how far this Court would go in implementing the Reagan revolution are looking somewhat misplaced if not, on occasion, hysterical.
I think the picture is particularly interesting if we focus only on the Court's decisions since Bush v. Gore. Terms like "liberal" and "conservative" are tricky, especially when you're talking about the judiciary. But my tentative sense is that, on balance, the Supreme Court's decisions post-Bush v. Gore have tended to have the overall effect of nudging the law slightly in a liberal direction. If you scroll down a list of all of the Court's decided cases from the last three Terms, see here, here, and here, that seems to be the overall trend.

  Do you agree? I have enabled comments. As always, civil and respectful comments only.

18 Comments
Confrontation Blog:

University of Michigan law professor Richard Friedman announces:

Beginning with the decision of Crawford v. Washington, 541 U.S. 36, on March 8, there have been many significant and interesting developments with respect to the Confrontation Clause of the Sixth Amendment. This is a matter of great interest to me, and so I have just set up The Confrontation Blog, at http://confrontationright.blogspot.com/

I am hoping that practitioners, as well as academics, will learn of this blog and consult it.

Rich is the leading authority on the Confrontation Clause, and played a key role as counsel in Crawford. Early blog entries are very interesting, so visit and satisfy all of your Confrontation Clause needs.

The Sex and Money Study Is Misleading.--

Todd Zywicki mentioned the release of a study of sex, money, and happiness by economists David Blanchflower and Andrew Oswald. When I followed the SSRN link he gave, it required $25 to download it. Instead, I went through my university's online library card catalog, which directed me to a free link for university subscribers, so others at universities might try to get the paper for free that way. The Blanchflower/Oswald article was first posted online last May as a working paper on SSRN and the National Bureau of Economic Research .

In June, the study caused a flurry of comments, from the Wall Street Journal to the Jay Leno show. The main finding discussed in public was not the one that Todd noted (that sex leads to happiness), but rather that those with higher incomes did not have sex more often than those with lower incomes. But it appears that actually people with higher incomes do have more frequent sex, as I discovered when I reran some of their analyses using the same database they used, the General Social Survey.

Unfortunately, in their May working paper Blanchflower and Oswald had misunderstood the database they were using and all their data analysis needed to be redone (as they agreed when I pointed this out to them). Let me explain. In their working paper, Blanchflower and Oswald were under the impression that the General Social Survey (GSS), which they used, was a random sample of individuals. But the GSS, like nearly all large surveys of the general public, is a multi-stage probability sample, not a random sample. More seriously, the GSS is a household survey, not an individual survey. They interview only one person in each household. If you don't weight their results by the number of adults in the household, then households with only one adult are oversampled compared to married couples or larger households. For example, in their working paper Blanchflower and Oswald reported that 22% of subjects reported no sexual partners in the last year. Once one properly weights for household size, the real numbers for people in their database, the 1989-2002 GSS, is 17.6% having no sexual partners in the last year. People who live alone have less frequent sex, so it is important not to overweight those who live alone.

In the article they just published, Blanchflower and Oswald corrected this error as well as a minor one that I also pointed out in an email to them. They reran their data accounting for the number of adults in each household, and acknowledged my help in recommending the weighting protocol that they used to do this.

Last summer I raised one other concern that they did not substantially deal with in the final paper. And as I rerun numbers tonight using the same database they used, I think this third concern is even more of a problem than I thought when I corresponded with them last summer. That is the finding that was most trumpeted by the press in June, that money does not buy sex. In their published paper, they write:

What is the connection between income and frequency of sex? Interestingly, Table 5 finds that it is zero for both men and women. We know from these equations that money does seem to buy greater happiness. But it does not buy more sex. In both columns 5 and 6 of Table 5, family income enters with rather weak t statistics.

But the simple correlation in the GSS database that they used between family income and the frequency of sex is .12, which is statistically significant. (Also significant are measures more commonly used for ordinal variables, such as Somer's d, gamma, Spearman's rho, and Kendall's tau.) So, contrary to their paper, there is a "connection between income and frequency of sex." Why didn't they find any in their Table 5? The answer is that Blanchflower and Oswald did regression equations that computed the effect of family income on sexual activity, net of other predictors, such as marital status and full-time employment.

The Blanchflower/Oswald study finds that married people have much more frequent sex. And the GSS shows that married people have much higher family incomes, in part because they often have two incomes to pool. Thus, it is not surprising that the relationship between family income and sexual frequency is primarily through the path of marital status. So net of marriage and some other variables, family income has no additional effect on sexual frequency. Another way of telling a story consistent with the data is:

1. Adults with higher family incomes have somewhat more frequent sex.
2. This is mostly because married people have much more sex, and adults who are married tend to have much higher family incomes.

Thus, people should recognize that there is a positive relationship between income and sexual frequency, but this relationship appears to occur through other variables (such as marriage) that are related both to sexual frequency and to family income.

UPDATE: Ann Althouse thoughtfully raises a point that I had intended to discuss but my post was already long--the causal order of all this. Are people with money (or expectations to earn money) more attractive to the opposite sex, or is it simply that when two people marry, their family income tends to go up because their family is more likely to have 2 incomes? Does expected income cause marriage or does marriage cause higher family income--or both?

Related Posts (on one page):

  1. The Sex and Money Study Is Misleading.--
  2. WATER RUNS DOWNHILL?

Tuesday, January 4, 2005

T.V. Appearances:

I'm scheduled to be on CNN tonight between 6:00 and 7:00 p.m. EST to discuss how the U.S. civil justice system differs from the rest of the world's systems.

I'm also currently scheduled to be on the O'Reilly Factor tomorrow night to discuss You Can't Say That!

WATER RUNS DOWNHILL?

It has been said that good economics consists of proving that water runs downhill. I herewith present the abstract for a new economics article by David Blanchflower and Andrew Oswald that came out on the SSRN abstracting service today, entitled "Money, Sex and Happiness: An Empirical Study" (I have bolded the key sentence):

ABSTRACT: The links between income, sexual behavior and reported happiness are studied using recent data on a sample of 16,000 adult Americans. The paper finds that sexual activity enters strongly positively in happiness equations. Higher income does not buy more sex or more sexual partners. Married people have more sex than those who are single, divorced, widowed or separated. The happiness-maximizing number of sexual partners in the previous year is calculated to be 1. Highly educated females tend to have fewer sexual partners. Homosexuality has no statistically significant effect on happiness.

Related Posts (on one page):

  1. The Sex and Money Study Is Misleading.--
  2. WATER RUNS DOWNHILL?
Senate Minority Leader Makes False Allegation

related to Justice Thomas's supposedly poor judicial skills: OpinionJournal's Best of the Web (James Taranto) has the story on this. A month ago, Harry Reid, the Senate Minority Leader said on NBC's Meet the Press,

I think that [Clarence Thomas] has been an embarrassment to the Supreme Court. I think that his opinions are poorly written. I don't--I just don't think that he's done a good job as a Supreme Court justice.

Many people criticized Sen. Reid's claim (for instance, see here), but it was hard to evaluate it partly because the Senator gave no examples. It turns out that on a December 26 CNN program, Reid did give an example:

HENRY: Let's take a look at what you said. When you were asked on NBC's "Meet the Press" whether or not you could support Justice Thomas to be chief justice you said quote, "I think that he has been an embarrassment to the Supreme Court. I think that his opinions are poorly written."

Could you name one of those opinions that you think is poorly written?

REID: Oh sure, that's easy to do. You take the Hillside Diary case. In that case you had a [dissent] written by Scalia and a [dissent] written by Thomas. There — it's like looking at an 8th grade dissertation compared to somebody who just graduated from Harvard.

Scalia's is well reasoned. He doesn't want to turn [stare decisis] on its head. That's what Thomas wants to do. So yes, I think he has written a very poor opinion there and he's written other opinions that are not very good.

Except that Justice Scalia didn't write an opinion in the Hillside Dairy case, and the entirety of Justice Thomas's opinion was this:

Justice Thomas, concurring in part and dissenting in part.

I join Parts I and III of the Court's opinion and respectfully dissent from Part II, which holds that §144 of the Federal Agriculture Improvement and Reform Act of 1996, 7 U. S. C. §7254, "does not clearly express an intent to insulate California's pricing and pooling laws from a Commerce Clause challenge." Ante, at 6-7. Although I agree that the Court of Appeals erred in its statutory analysis, I nevertheless would affirm its judgment on this claim because "[t]he negative Commerce Clause has no basis in the text of the Constitution, makes little sense, and has proved virtually unworkable in application," Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 610 (1997) (Thomas, J., dissenting), and, consequently, cannot serve as a basis for striking down a state statute.

I have no idea what's supposedly badly written about this paragraph. What's more, as James Taranto points out:

Reid's substantive criticism of Thomas--if it can be dignified with such a description--turns out to be equally empty. According to Reid, Scalia "doesn't want to turn stare decisis precedent on its head," while Thomas does. Presumably this refers to Thomas's rejection of the court's "negative Commerce Clause" jurisprudence. In his Hillside Dairy opinion, as we've seen, Thomas does not elaborate on this, instead pointing the reader to his lengthy dissent in the earlier Newfound/Owatonna case--a dissent Scalia joined. In other words, Thomas and Scalia both would overturn Supreme Court precedent in this area; the only point of disagreement in Hillside Dairy was whether to address the question in this particular case.

I've called the Senator's press office to see if they have much of an explanation for what seems like a pretty significant error.

Related Posts (on one page):

  1. Sen. Reid Again Makes a False Statement While Slamming Justice Thomas:
  2. Senate Minority Leader Makes False Allegation
Craigslist:

A nice article by William Taylor in this Sunday's NYTimes about ING Direct Bank and about the phenomenon that is "Craigslist." I had never heard of Craigslist till this past summer, when my daughter was moving to New York and looking for an apartment or a share; I asked a bunch of friends for advice on what she should do, and a good half-dozen said: craigslist. While I wasn't looking, it had apparently become the site of choice for just about everything, for just about everybody. Excerpts:

"Craigslist has a simple, unadorned Web site. But that is part of a forward-looking business strategy. Mr. Buckmaster said he reveled in what he called "the ironies of unbranding, demonetizing and noncompeting." Together, they represent sharp departures from the commercialism on so much of the Web."

"Craigslist has an unconventional approach to investing in its "brand": it doesn't do anything. "We never even use that word internally," Mr. Buckmaster said. "We do zero advertising. We don't have a logo. Now we're told we have the strongest brand ever for a company our size."

"The company also has a fresh approach to competition: it doesn't compete. "We have no interest in competing with anyone," Mr. Buckmaster said. "We're just trying to create something as useful as possible. Yet we keep reading that we're one of the newspaper industry's deadliest competitors" for classified ads.

"Above all, Craigslist has a distinctive approach to economics: it keeps finding reasons not to charge customers. It imposes modest fees on companies that post job listings in Los Angeles, San Francisco and New York, and there is talk of charging real estate agents to list apartments in New York. Other than that, the site is free. Yet the company has generated healthy profits on revenue approaching $10 million a year, and eBay recently bought a minority stake.

Justice Thomas Explained:

"Clarence Thomas is a 'Black Power' Mole!" "reports" the Weekly World News. Apparently, if Justice Thomas becomes the next Chief Justice he will order reparations for slavery, ban white rappers from radio airplay, and require the NHL to recruit more black hockey players. (LvHB)

David Kravitz on Justice Thomas:

A very good post by a liberal former Supreme Court clerk and current appellate lawyer; here are a few excerpts (go to the whole post for the full story):

Dems need to clean up their act on Clarence Thomas . . .

Unfortunately, there is an ugly undercurrent in the debate over Justice Thomas, fueled by the ill-advised comment by Senate minority leader-elect Harry Reid (D-Nev.) that Thomas is an "embarrassment to the Supreme Court" and that his opinions are "poorly written" (see our earlier post here for more on Reid). Frankly, I don't see what Reid is talking about — Thomas's opinions seem to me no better or worse written than anyone else's on the Court, and calling him an "embarrassment" without further explanation is just, well, embarrassing. A group of conservative African-Americans has called upon Reid to apologize for his "racially-insensitive" remarks, and the conservative commentariat has been having a field day proffering Reid's comments as evidence of pervasive "liberal racism." . . .

[L]et's be clear: Thomas is a smart, creative thinker — he is not a "Scalia clone" — and he has staked out reasonably clear and consistent positions on many important legal issues. Democrats, particularly those in the Senate, need to get that through their sometimes frustratingly thick skulls and deal with it.

Make no mistake: I am no fan of Justice Thomas's jurisprudence, and the only reason I'd want to see him as Chief is because I think he'd be less effective (for reasons already stated) than some of the other candidates out there. . . . But to demean him with terms like "an embarrassment to the Supreme Court" (especially while simultaneously praising Scalia as a "smart guy" who might make a good Chief) plays right into the hands of those who think that all Democrats are hypocrites. Democrats should know better. It is neither morally acceptable nor smart politics to treat Justice Thomas with anything other than the respect that any other serious contender for Chief Justice would receive.

My Review of "From Jim Crow to Civil Rights":

The Yale Law Journal has posted the full text of my rather lengthy review (co-authored with my colleague Ilya Somin) of U. Va.'s Michael Klarman's intriguing From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality.

Here's the abstract:

Michael Klarman's From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality is an important contribution to the scholarly literature on both the history of the civil rights struggle and judicial power more generally. Klarman argues that for much of the twentieth century, the Supreme Court was very reluctant to rule in favor of African-American civil rights claimants and had little impact when it did. Klarman is right to reject traditional accounts that greatly exaggerated the Supreme Court's willingness and ability to protect minorities. However, he overstates his case. The Court's views on the proper scope of African Americans' rights periodically diverged from those of the political branches of government. The Justices' relative insulation from political pressure, their membership in a different generational cohort than the median voter, the idiosyncrasies of presidential selection of Justices, and the Justices' nationalist inclinations all help explain this result. Moreover, in at least three types of situations, judicial invalidation of Jim Crow legislation significantly aided African Americans: (1) when such legislation had solved collective action problems among racist whites, (2) when legislation had enabled white actors to externalize the costs of Jim Crow onto society as a whole, and (3) when laws lowered the overall costs of maintaining Jim Crow. This Review supports these conclusions by closely examining relevant Supreme Court decisions, especially Progressive Era cases and Brown v. Board of Education.

Monday, January 3, 2005

A Matter of Principle -- Or Whining?

Is it just me, or is this Complaint a bit undignified? (Thanks to How Appealing for the pointer.)

On the Oklahoma court, the Chief Justiceship is a rotating position; the current Vice-Chief (Marian Opala) was Chief Justice once, and was hoping to be that again, but a rule change promulgated by his colleagues will likely keep that from happening. He's now suing, in federal court, claiming that this violates his federal constitutional rights.

One of his claims is that the rule change was an attempt to keep him out of the Chiefship because of his age (he's 83), and that this violates the Equal Protection Clause. One problem: The Equal Protection Clause generally allows government officials to discriminate based on age, unless the discrimination is entirely irrational (which seems unlikely here, even if the Vice-Chief is right that he "enjoys good health and has sound mental acuity and a commitment to the duties and responsibilities of a Supreme Court Justice). He also claims that the rule change deprives him of a "property interest" in his opportunity to become Chief, and thus violates the Due Process Clause. But while the Court has at times recognized a property interest in some government jobs, it seems to me highly unlikely that the Court would recognize it here, for many reasons (one of which is that the plaintiff never had the job, nor any assurance of getting it, since his colleagues would have been entirely free not to vote for him).

But even setting aside the weakness of the Vice-Chief's claim on the merits, isn't there something undignified here? First, the holder of a high judicial office is taking his colleagues to court over a relatively minor slight: The Chief Justiceship carries some extra power, chiefly the power to assign opinions to other Justices, some administerial duties, some extra pay, and some prestige, but no extra vote.

Second, he's going to another court system to do it, I'd have thought that Oklahoma Supreme Court Justices wouldn't want a federal trial judge to order them around. I guess Vice-Chief Opala takes a different view.

Columbia Journalism Review on CBS and the forged documents.

The Columbia Journalism Review (CJR) has a story by Corey Pein on Rathergate that seems to leave out quite a lot that might seem relevant to his argument.

CJR came under early criticism for sticking its head in the sand when the story was breaking, thus missing one of the biggest stories of the year about the media and its coverage--what would seem to be CJR's beat. Now CJR is dismissing those who got the story essentially right.

Among the more amazing passages is its attempt to resurrect David Hailey and his discredited report. Kevin Aylward of Wizbang, who first exposed David Hailey's report, has comments on the new CJR story, calling it "spectacularly inept." You can follow some of Wizbang's other stories on Hailey's study by doing a search on their site here.

CJR tells us that the key to Rathergate is Haileygate:

In order to understand "Memogate," you need to understand "Haileygate." David Hailey, a Ph.D. who teaches tech writing at Utah State University — not a professional document examiner, but a former Army illustrator — studied the CBS memos. His typographic analysis found that, contrary to widespread assumptions, the document may have been typed. (He points out, meanwhile, that because the documents are typed does not necessarily mean they are genuine.) Someone found a draft of his work on a publicly accessible university Web site, and it wound up on a conservative blog, Wizbang. The blog, citing "evidence" that it had misinterpreted, called Hailey a "liar, fraud, and charlatan." [Aylward says that Wizbang retracted the three quoted words-JL] Soon Hailey's e-mail box was flooded. Anonymous callers demanded his dismissal.

Hailey is more restrained in his comments than other document examiners more widely quoted in the press. Of course, cautious voices tend to be quieter than confident ones.

On Saturday morning, Oct. 2, I also criticized the tone of many of the criticisms of Hailey, a concern that seemed to contribute to an almost immediate change in tone in the debate. Indeed, Hailey said that his hostile emails "ended abruptly on Saturday afternoon," Oct. 2.

Unfortunately, Hailey himself ended up engaging in intemperate attacks on Wizbang's site. Here is part of Hailey's apology to Wizbang:

Instead, I produced an incoherent diatribe. I apologize to you and your community for defacing your site with my postings.

Worse, I woke still drunk and wrote you a letter hoping to deceive you. Actually, at that point I should have simply apologized. And so now I apologize to you for attempting to deceive you.

My behavior was inexcusable. My only excuse is I had (am still having) a complete emotional breakdown. I am still not in control of my emotions. [Hailey authorized public posting of his apology-JL]

While Hailey's earlier report was certainly appropriately temperate, it was not (as CJR characterizes it) cautious. I agree with CJR that Haileygate is indeed helpful for understanding Rathergate. Understanding Haileygate is also important for understanding just how deficient CJR's reporting is. My earlier analysis of the Hailey memo is here. Hailey asserts that he is confident that the memos were typed, but he has not been able to locate any typewriter that could have done it, nor has he been able to identify a computer font that could have done it. None of the computer font candidates he suggests, including particularly his favored font, ITC American Typewriter Condensed, comes even close to matching the forged memos. Times New Roman in MS Word does.

UPDATE: Meryl Yourish has an excellent post on typesetting and the CJR story (tip to Instapundit). As she nicely points out, it is virtually impossible that a typed document could be matched by a computer font on the first try. As I've said, it's partly a generational thing; those too young to have used typewriters much do not realize that the forged Killian memos looked nothing like typed documents, including other documents in the Bush TANG files.

2D UPDATE: Charles Johnson points out just how cavalier or willfully obtuse Pein is in this passage from the CJR article. Pein is discussing part of Joseph Newcomer's expert report:

The accompanying analysis was long and technical, discouraging close examination. Still, his method was simple to replicate, and the results were easy to understand:

Based on the fact that I was able, in less than five minutes . . . to type in the text of the 01-August-1972 memo into Microsoft Word and get a document so close that you can hold my document in front of the `authentic' document and see virtually no errors, I can assert without any doubt (as have many others) that this document is a modern forgery. Any other position is indefensible.

Red flags wave here, or should have. Newcomer begins with the presumption that the documents are forgeries, and as evidence submits that he can create a very similar document on his computer. This proves nothing — you could make a replica of almost any document using Word. Yet Newcomer's aggressive conclusion is based on this logical error.

As Yourish and Johnson make clear, Pein doesn't understand just how devastating this is to the authenticity of the forged memos. Pein makes fun of the fact that it took Newcomer (and everyone else) only 5 minutes in MS Word to duplicate the spacing and typeface of the forged memos. Pein says, "This proves nothing — you could make a replica of almost any document using Word." And with this Pein claims to have found a "logical error."

Johnson says to Pein: Prove it. Take a real Bush TANG memo and duplicate it in a few minutes using MS Word. Johnson tried for about an hour and he didn't get very close. With a full day, one might get sort of close, but in a few minutes, I don't think that Pein could do it. (Note that Pein doesn't actually say that it can be done in 5 minutes, but he implies that it can be done easily; otherwise, even Pein would have recognized that it would be relevant that it took Newcomer only 5 minutes.) Further, Johnson previously posted his own attempt to duplicate a real memo in MS Word:

[Click to enlarge]

The above picture is from Little Green Footballs.

Go to LGF for the original, as well as this failed attempt to do what Mr. Pein seems to think anyone could do. With the original memo on LGF, it should be easy for Pein to back up his claim and quickly do what he says can be done.

Warning to Delawareans:

Delaware Code title 11, § 770 sets the age of consent at 16, but at 18 if the perpetrator is over age 30. Now I see some sense in "Romeo and Juliet" statutes that legalize (for instance) sex between 16-year-olds and 17-year-olds, or even 16-year-olds and 19-year-olds, but bar sex between 16-year-olds and 24-year-olds. I suppose the theory there would be that when people are closer in age, the relationship is less likely to be exploitative or casual; I'm not sure whether this is right, but it's at least plausible.

Still, does it make sense to have the cutoff be age 30? I can understand people concluding that once a girl reaches 16, she ought to be able to make her own decisions. I can understand them concluding that girls aren't mature enough to make decisions until they're 18. I can understand them saying that sex when the age gap is four or fewer years is different than when the age gap is twelve years. But if you let 28-year-olds have sex with 16-year-olds, what's the point of barring 30-year-olds from doing the same?

I realize the "he could be old enough to be her father" situation may seem icky to some people, but I don't see that as reason enough to draw a legal distinction here. (Incidentally, the statute has a separate provision outlawing sex with 16- or 17-year-olds by a person who "stands in a position of trust, authority or supervision over the child, or is an invitee or designee of a person who stands in a position of trust, authority or supervision over the child.")

Cass Sunstein Responds to "Constitution in Exile" Post: Last week I wrote a post "Is the 'Constitution in Exile' A Myth?," questioning claims that an influential block of conservatives have an agenda for the courts that they themselves describe as restoring the "Constitution in Exile." I noted that I could only find one use of the phrase "Constitution in Exile" by a conservative — a single comment buried in a 1995 book review by Judge Douglas Ginsburg. I asked whether the phrase "Constitution in Exile" was something that conservatives actually used, or rather was merely a phrase that critics (most notably Cass Sunstein) have used to describe what they contend is a growing conservative legal movement.

  Cass Sunstein e-mailed me a response, which he has graciously agreed to let me post:
  As you say, the phrase comes from Chief Judge Ginsburg of the DC Circuit, in a piece in Regulation magazine. Without using the phrase, he also spells out his argument in some detail in a remarkable piece on constitutionalism in the Supreme Court Economic Review, from the Cato Institute. This piece has been given as a lecture at several places, including the University of Chicago Law School, where a packed room gave it respectful attention.
  A glimpse of the argument: Judge Ginsburg writes that judges were faithful to the Constitution for most of the nation's history - from the founding, in fact, through the first third of the twentieth century. But sometime in the 1930s, "the wheels began to come off." His strongest complaint is about the Supreme Court's decision, in 1937, to uphold the National Labor Relations Act. Judge Ginsburg objects that this is "loose reasoning" and "a stark break from the Court's precedent." In his view, the Court's acceptance of the National Labor Relations Act is not merely "extreme"; it is also "illustrative."
  Randy Barnett's powerful book, Restoring the Lost Constitution, is definitely in the same general vein (consider the title!); so too is some of the work of my colleague Richard Epstein, especially but not only on the commerce power. So too for much conservative writing on the nondelegation doctrine. Justice Thomas writes significant opinions that support the general goal (restoring the lost constitution, or what Judge Ginsburg calls the Constitution in Exile), as of course you know; and Scalia is often with him.
  The idea of the lost Constitution, or the Constitution in Exile, or the original constitution, is very prominent in the conservative community. In fact the idea of originalism goes hand-in-hand, for many people, with the idea of a Constitution in Exile, whether or not that phrase is used. I think the Constitution in Exile phrase is especially evocative, and I admire Judge Ginsburg a great deal (despite major disagreements on this point). But the goal is what's important, not the specific term, and it seems to me that we've all witnessed the rise of that goal, especially in the last decade or so, with the increasing assertion of a certain form of originalism.
  I have two responses, one narrow and the other broader. The narrow point is that I understand Sunstein to agree with my first post that there is no evidence that a conservative has used the phrase "Constitution in Exile" outside of a single reference in a 1995 book review. On this point, my apologies to Professor Sunstein if I simply misread his prior writings; I had understood Sunstein to be claiming that conservatives are themselves using the phrase "the Constitution in Exile" to describe their legal goals. To the extent that we are in agreement that the term is primarily Sunstein's, and has not been used by conservatives outside of a 1995 book review — and even then, apparently only as a descriptive matter, not as a normative one — then that addresses the topic of my prior post. This is an important point of consensus, I think: we can all agree that there is no evidence that conservatives refer to their agenda for the courts as restoring a Constitution in Exile.

  Now, let's turn to the broader question, one that I did not address in my first post: terminology aside, is there a conservative movement to restore a pre-New Deal constitution? Unfortunately, I am not the best person to answer this: I am not a constitutional theorist, don't really follow the literature, and don't teach constitutional law. Nor do I know how you measure when a certain amount of writing or scholarship amounts to a "movement." If there is a conservative movement to restore a constitution in exile, however, it is news to me. I can think of a handful of conservative law professors who have some pretty far-out views about how to reshape constitutional law, but I tend to think that this says more about constitutional theory in legal academia today than it does about any "movement" in conservative legal circles. Nor do I see how their claims amount to wanting wholesale restoration of the pre-New Deal constitution. Perhaps part of the problem is that I don't see the direct connection between originalism and restoring a constitution in exile. I see the former as a mode of constitutional interpretation, and one that leaves open a reconciliation with stare decisis. The latter apparently would dismiss stare decisis and attempt to reconstruct a very particular constitutional order.

  Some readers will agree with Sunstein that there is in fact a conservative constitution-in-exile movement. But if you take this position, don't you have to agree that there is a liberal constitution-in-exile movement, too? Here's a thought experiment to show you what I mean. Let's imagine Cass Sunstein has a cousin who is identical to Sunstein in every way except one: he is a conservative. This conservative version of Sunstein - let's call him Moonstein - could write something like this:
  There is increasing talk among liberals of what is being called "the Constitution in Exile" — the Constitution of the 1960s, Justice Brennan's Constitution. Their target is Ronald Reagan and the Bushes, who they claim pushed a false Constitutional vision designed to strip the Bill of Rights of its essential guarantees and emphasize property rights over human rights. They have set as their goal the restoration of the progressive Constitution forced into exile by by a string of Republican presidencies starting in 1968.
  The organizing strategy behind the liberal Constitution in Exile movement was explained by Professor Mark Graber in a 2002 law review article, Rethinking Equal Protection in Dark Times, 4 U. Pa. J. Const. L. 314 (2002). Graber urged his fellow liberals to plot for the return of the progressive "constitution in exile." He wrote: "Progressive arguments . . . are best understood as constructing shadow constitutions or constitutions-in-exile. Parties out of power in many nations form shadow cabinets. These bodies consist of the persons who might hold various executive offices when that coalition gains control of the government. The American equivalent apparently is the shadow constitution. Scholars out of power in the United States author various shadow constitutions that detail the constitutional meanings that might become the fundamental law of the land should the author's preferred coalition gain control of the federal government."
  Restoring the liberal Constutitution in Exile has become an increasingly dominant theme of progressive legal thinkers. For example, a collection of some of the nation's most prominent progressive legal minds (including Cass Sunstein) will be meeting at Yale Law School in the spring to develop "a shared vision of what, at least broadly speaking, that Constitution in Exile is, so that we can support and work for its realization." A website and blog set up for the conference reveals the agenda. For example, Bruce Ackerman sets as one of the more modest items on the agenda to "[r]oot out the federalism decisions since Lopez, and return to the status quo, circa 1994. Root all of them out, not some of them." His more "transformative" agenda would include "overrul[ing the] Slaughterhouse [cases] and mak[ing] the [Privileges and Immunities] Clause the basis for fundamental positive rights of citizenship." Other scholars at the conference urge a new Constitution entirely. One scholar urges that the Constitution must be reconceived to serve "a basic purpose: the protection of human dignity." Another contends that the law must "revisit both the 14/19th amendments and the general welfare clauses so as to take on the deep inequalities of the contemporary social order inside the United States, to reconceive the meaning of equality."
  A fair response to Moonstein might note that Moonstein is cherry-picking a few comments and imagining that these professors have real influence in order to create the impression of a major movement afoot. The fact that a few law professors are arguing in favor of major constitutional change shouldn't be terribly surprising: that's what constitutional law professors do, right? My sense is that the same criticism applies to Sunstein and claims of a conservative constitution-in-exile movement.

  I have enabled comments. Please, civil and respectful comments only.

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Cathy Seipp's Media Moments 2004

is much worth reading. My favorite:

May: I go to a Media Bistro party here in L.A. and get into a conversation about blogs with some guy from KPFK, the lefty Pacifica Radio station. A recent Blogads survey indicates that 80 percent of blog readers are men. "More women should write blogs!" the KPFK guy exclaims. "Then more women would read them."

"Should we make women read blogs even if they don't want to?" I asked. "Should we limit the amount of male blog readers...or prevent more men from starting blogs, since there are already so many?"

"Well...yes."

"How?"

His argument sort of fizzled out there, as I guess even a loyal KPFK-er isn't quite willing to enforce Stalinist methods for making All Blogs Equal In a Non-Sexist Blog Paradise.

Another Trojan Doctrine Example:

Reader Sydney Henderson points to the Will Rogers World Airport and the Wiley Post Airport, both in Oklahoma City. Post was an aviation pioneer; Post and Rogers -- both Oklahomans (though Post wasn't one by birth) -- died when Post's plane crashed in Alaska.

Diplomad with More UN Posing.--

Diplomad continues its string of reports on UN tsunami efforts in Asia. It seems that the UN is trying to take credit for US and Australian efforts:

A colleague came back from a meeting held by the local UN representative yesterday and reported that the UN rep had said that while it was a good thing that the Australians and Americans were running the air ops into tsunami-wrecked Aceh, for cultural and political reasons, those Australians and Americans really "should go blue." In other words, they should switch into UN uniforms and give up their national ones.

Now you all know that The Diplomad is not a cynical or suspicious being, but there is something funny going on here . . . what could it be? Could it be a genuine concern for local "cultural and political sensitivities" that would be offended by the presence of Aussies and Yanks in their own military uniforms saving thousands of lives? Maybe . . . or, might it not be an odd coincidence that just after the infamous Mr. Anan (see prior posts) says the UN will be setting up air traffic control in Aceh, the UN wants to show that it has an ATC system operating? What better way than to continue in the UN tradition of taking credit for others' work? And this just before Mr. Anan arrives in Indonesia on January 6.

More today:

Day 9 of the tsunami crisis. . . .

In this part of the tsunami-wrecked Far Abroad, the UN is still nowhere to be seen where it counts, i.e., feeding and helping victims. The relief effort continues to be a US-Australia effort, with Singapore now in and coordinating closely with the US and Australia. Other countries are also signing up to be part of the US-Australia effort. Nobody wants to be "coordinated" by the UN. The local UN reps are getting desperate. They're calling for yet another meeting this afternoon; they've flown in more UN big shots to lecture us all on "coordination" and the need to work together, i.e., let the UN take credit. With Kofi about to arrive for a big conference, the UNocrats are scrambling to show something, anything as a UN accomplishment. Don't be surprised if they claim that the USS Abraham Lincoln is under UN control and that President Lincoln was a strong supporter of the UN. . . .

More on "The UNcredibles": WFP (World Food Program) has "arrived" in the capital with an "assessment and coordination team." The following is no joke; no Diplomad attempt to be funny or clever: The [UN] team has spent the day and will likely spend a few more setting up their "coordination and opcenter" at a local five-star hotel. And their number one concern, even before phones, fax and copy machines? Arranging for the hotel to provide 24hr catering service. USAID folks already are cracking jokes about "The UN Sheraton." Meanwhile, our military and civilians, working with the super Aussies, continue to keep the C-130 air bridge of supplies flowing and the choppers flying, and keep on saving lives — and without 24hr catering services from any five-star hotel . . . . The contrast grows more stark every minute.

Imagine if lives really depended on what the UN does. Oh, they do.

Garry Wills on Bellesiles on CSPAN2: People get taken by very good con men.--

Garry Wills was on the three-hour In Depth program on Sunday, Jan. 2 on CSPAN2. Jerome Sternstein, an historian and VC reader who saw the noon (ET) broadcast, tipped me off and I watched the midnight (ET) rebroadcast. Wills was in good form--thoughtful, interesting, impressive.

What might be of interest to some Volokh Conspiracy readers, given Eugene's many posts on the topic, is a couple of questions that Wills was asked about the Michael Bellesiles controversy over Arming America (2000). Wills had written a rave review in the New York Times when the book came out. In April 2002, I asked Wills after a lecture at Northwestern what he thought of the book then. He replied, "I was took. The book is a fraud."

During the CSPAN2 interview, the first part of Wills's statement to me was mentioned to him and he was asked for a comment. Wills responded that "a lot us were" taken, including the Bancroft Prize judges. Wills said that Bellesiles was "very convincing," but "he went a step too far"; Bellesiles "claimed to have consulted archives he didn't and he misrepresented those archives." Wills said that there was "a lot of good, solid evidence" in the book, and Bellesiles didn't have to do that. Then Wills said: "People get taken by very good con men." Of course, this is stronger language than the sort I try to use about Bellesiles myself.

Wills was asked in effect if he should have responded sooner to criticisms of Arming America (the discussion wrongly attributed Wills's review to the New York Review of Books rather than the New York Times). Wills said that he had wanted to wait until the challenges were verified, which they were in the Emory investigation, saying about the investigative report, "Clearly, I agreed with it." He said there wasn't a general problem in book reviewing, just "a massive breakdown in this one case."

The only thing that I thought might have been significantly mistaken was when Wills said that the probate records in the archives were checked by "people who defend guns." I assume he means pro-gun advocates. It is perhaps not surprising that Bellesiles's false claim on this point is still believed. But it is false.

It was Justin Heather and I who went to the probate archives, and I have long been known as a pro-gun control scholar, having co-authored with one of my mentors, Frank Zimring. Others who looked at probate records in this case include Randy Roth, who favors gun control, and Gloria Main, who I believe probably does as well. Thus, I think it is fair to say that at least a majority of those scholars who looked at probate records to check Arming America favor substantial gun control.

UPDATE: I deleted the last paragraph from my original post on my note-taking of the show, now that the interview is online. You may listen to the In Depth program here. The three Arming America questions start at 2 hours and 5 minutes into the interview. I updated quotes and descriptions in the original post without indicating so (just as I said I would in my original post).

2D UPDATE: At the History News Network, Ralph Luker has a thoughtful review of 3 new books on historians' scandals.

Sunday, January 2, 2005

Inside the World of Software Piracy: Wired has a fascinating article on how movie and other software files first appear on peer-to-peer networks.
  It's a commonly held belief that P2P is about sharing files. It's an appealing, democratic notion: Consumers rip the movies and music they buy and post them online. But that's not quite how it works.
  In reality, the number of files on the Net ripped from store-bought CDs, DVDs, and videogames is statistically negligible. People don't share what they buy; they share what is already being shared - the countless descendants of a single "Adam and Eve" file. Even this is probably stolen; pirates have infiltrated the entertainment industry and usually obtain and rip content long before the public ever has a chance to buy it.
  The whole shebang - the topsites, the pyramid, and the P2P networks girding it all together - is not about trading or sharing at all. It's a broadcast system. It takes a signal, the new U2 single, say, and broadcasts it around the world. The pirate pyramid is a perfect amplifier. The signal becomes more robust at every descending level, until it gets down to the P2P networks, by which time it can be received by anyone capable of typing "U2" into a search engine.
  This should be good news for law enforcement. Lop off the head (the topsites), and the body (the worldwide trade in unlicensed media) falls lifeless to the ground. Sounds easy, but what if you can't find the head? As in any criminal conspiracy, it takes years of undercover work to get inside. An interview subject warned me against even mentioning Anathema in this article: "You do not need some 350-pound hit man with a Glock at your front door."
  I have enabled comments, but there's a slight catch: please do not comment unless you first read the article. Thanks to Michael Cernovich for the link.
48 Comments
Brief Review of "The Plot Against America":

I recently read the bestselling The Plot Against America on long plane rides during my honeymoon. I'm a huge Philip Roth fan, but while the book is worth reading, it's one of Roth's weaker efforts. Usually, when I read a Roth novel, every several pages I feel compelled to interrupt my traveling companion, and read aloud some brilliant prose I've just come across. This happened not once with the The Plot Against America.

Perhaps the most interesting aspect of The Plot Against America is what it says about the political sympathies and paranoias of many Jews of Roth's generation. The basic plot of the book involves a gradual fascist takeover of the United States around 1940, with the looming threat of deportation of urban Jews to the American hinterlands.

The hero of the book is Franklin Roosevelt, still a tremendous icon to most Jews over sixty. Roth seems completely unaware of the irony that the presumed savior of the Jews (and democracy) is the only president who ever actually consigned an American ethnic group to concentration camps in the hinterlands; the Japanese are never mentioned in the book. And of course (with the collaboration of Congress), Roosevelt's immigration/refugee policy was far worse than that of most nations generally thought of as far more anti-Semitic than the U.S. The refugees of the St. Louis, for example, eventually managed to find temporary asylum in Western European nations.

The heavies of the book are Charles Lindbergh, who becomes the Republican president in 1940, along with other "fascist" Republicans. I've blogged previously about irrational Jewish hatred of Republicans, and how it dates back to the Roosevelt era. It's already been noted on this blog that Republicans were less anti-Semitic than Democrats in the late 1930s. Was it really the case that fascism was more likely to emerge from the Republican Party? Wasn't Huey Long a Democrat? And Father Coughlin (who appears in the book only as a "right-winger," even though he was a radical leftist), too?

I've heard that some readers of The Plot Against America see it as some sort of prescient warning about our current political situation. I guess this appeals to the Bush=Hitler crowd, but I honestly didn't see any reasonable parallels between the plot of the book and America today, with one possible exception: just as the right-wing anti-interventionists of the late 1930s blamed the Jews for being warmongers to protect their own interests, left-wing anti-interventionists (along with the Pat Buchanan crowd, too) are doing the same today.

(UPDATE: A VC reader sent me a Weekly Standard review by Stephen Schwartz making the latter point: "Perhaps Roth intended--though probably he didn't, for books do have a life of their own--that his book should shame all those who in the past two years have referred to "the neoconservative cabal in the Pentagon" as a respectable euphemism for Jews allegedly dedicated to warmongering.")

Is the United Nations trying to take credit for US and Australian tsunami missions?--

Diplomad says so:

Well, we're heading into Day 7 of the Asian quake/tsunami crisis. And the UN relief effort? Nowhere to be seen except at some meetings and on CNN and BBC as talking heads. In this corner of the Far Abroad, it's Yanks and Aussies doing the hard, sweaty work of saving lives.

Check out this interview (on the UN's official website) with SecGen Annan and Under SecGen Egeland . . .:

Mr. Egeland: Our main problems now are in northern Sumatra and Aceh. <...> In Aceh, today 50 trucks of relief supplies are arriving. <...> Tomorrow, we will have eight full airplanes arriving. I discussed today with Washington whether we can draw on some assets on their side, after consultations with the Indonesian Government, to set up what we call an "air-freight handling centre" in Aceh.

Tomorrow, we will have to set up a camp for relief workers - 90 of them - which is fully self-contained, with kitchen, food, lodging, everything, because they have nowhere to stay and we don't want them to be an additional burden on the people there.

I provided this to some USAID colleagues working in Indonesia and their heads nearly exploded. The first paragraph is quite simply a lie. The UN is taking credit for things that hard-working, street savvy USAID folks have done. It was USAID working with their amazing network of local contacts who scrounged up trucks, drivers, and fuel; organized the convoy and sent it off to deliver critical supplies. A UN "air-freight handling centre" in Aceh? Bull! It's the Aussies and the Yanks who are running the air ops into Aceh. We have people working and sleeping on the tarmac in Aceh, surrounded by bugs, mud, stench and death, who every day bring in the US and Aussie C-130s and the US choppers; unload, load, send them off. We have no fancy aid workers' retreat -- notice the priorities of the UN? People are dying and what's the first thing the UN wants to do? Set up "a camp for relief workers" one that would be "fully self-contained, with kitchen, food, lodging, everything."

The UN is a sham.

Saturday, January 1, 2005

Does Bush Need a Secretary of Symbolism?--


1. The criticisms against Bush for not speaking sooner and for the US's announcing too little at first were mostly premature, given that the admittedly small US governmental sum first committed for aid was not the final word. But some of the milder criticisms were partly merited, primarily because a quicker statement would have been more politic.

2. Bush is not "Big Daddy." I've noticed that George W. Bush, while his ego is certainly oversized, doesn't always try to make everything about him. There is no doubt that Bill Clinton enjoyed the Bully Pulpit more than George W. There have been several moments when I noticed that Bush was content not to score political points when other Presidents would probably have made themselves a bigger part of the story (e.g. Jessica Lynch's homecoming after being held in an Iraqi hospital). Bush sometimes thinks that the president doesn't need to be in front of the parade. That has both advantages and disadvantages.

When I lived in New Haven and watched the New York TV news, I was struck by the different assumptions about city problems in NY compared to Chicago. In Chicago, the mayor takes the credit and blame for everything, and the news media assume that the mayor should stop every major strike, even private sector ones. In Chicago, the mayor is "Big Daddy." While one, of course, sees some of the same in New York, there is still a significant difference of degree. New York being less provincial than Chicago, sometimes the news media actually assume that New York City departmental personnel are responsible [or treat major local events as being outside the local government's scope of responsibilty].

3. Duane Delacourt, Secretary of Symbolism. This brings me to my main point: a larger first promise of money and a quicker expression of concern by Bush himself would have been politically wise for Bush (and the US)--if not in substance for the afflicted, then at least as symbolism for the rest of the world. Thus, I am proposing that Bush bring back Duane Delacourt, President Jimmy Carter's Secretary of Symbolism, whose exploits were covered in a series of Doonesbury strips that started on March 21, 1977 (go to this site, select March 21, 1977, and then page forward through them). [I revised this post to omit the Donnesbury strips themselves, which came from between March 24, 1977 and April 18, 1977.]

Note to VC readers under 40: Yes, Doonesbury was once funny, or at least genuinely clever and insightful.

4. Scrappleface makes a related point (tip to Betsy).

UPDATE: My daughter Katie informed me that Doonesbury has been running a recent series of strips about a Bush Administration Secretary of Toady Affairs. For example, see this Dec. 2004 strip. [I also added a bracketed clause above.]