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Friday, January 14, 2005

Potential History Myth Alert:

I haven't closely followed the debate about whether Lincoln was gay, but this Slate piece suggests that people should view the claim with a grain of salt.


Community College Bars R-Rated Movies,

INCLUDING "THE PASSION OF THE CHRIST": The Foundation for Individual Rights in Education has the story.

The college's justification is that apparently some high school students also go to the college part-time, but that seems a pretty poor reason to limit student groups from showing movies on-campus to adult students -- likely the great majority of the audience. (If necessary, the college could insist that the groups card all attendees to make sure they're 17 or over.) Check out the response of the college's lawyer, which disagrees with some of FIRE's allegation but concedes that the college has a no-R-rated-movie policy.

I suspect the policy is constitutional: The college may limit student groups' use of its facilities in viewpoint-neutral ways and the ban on R-rated movies would probably be treated as viewpoint-neutral (though I realize that one could argue the contrary). The ratings aren't legally binding; a theater that lets kids in to R-rated movies couldn't be prosecuted for that. But a college may choose not to open up its classrooms after class hours to such movies.

Also, that the school allowed a seemingly sexually related skit to be performed at a college theater doesn't really undermine the policy's validity. A school can legitimately conclude that R-rated movies are going to be more appealing to underage kids than skits would be, plus the college may feel that it's cost-effective to rely on movie ratings, but too difficult (and too prone to viewpoint discrimination) for the college to make its own judgments about unrated material such as skits.

But that doesn't make the policy sensible or proper for an educational institution. The college may not have aspirations to being a Harvard, but it is a college, in which most of the students are adults.

Community colleges and not just Ivy League schools ought to want to broaden their students' intellectual lives, and to treat their students as grown-ups rather than children. The college's lawyer complains that if the college allowed a broader range of speech, "[o]ne could only imagine the bizarre clubs and activities that would be formed." Heaven forbid that bizarre clubs and bizarre speech be present on college campuses.

Related Posts (on one page):

  1. OK to Show "The Passion of the Christ" at Community College:
  2. Community College Bars R-Rated Movies,

Driving Directions:

Check out the directions that Microsoft's MapPoint gives for going from Haugesund, Norway to Trondheim, Norway. The "quickest" option yields the most amusing result, but "shortest" is good, too.

Thanks to James Tyre (who credits David Flint) for the catch.


IHS Writing Competition:

The Institute for Humane Studies — which both Sasha and I have been involved in, and which I much like — passes this along:

The Institute for Humane Studies is sponsoring its first essay contest this spring with $5,000 in prizes. . . . The contest is open to all full-time students or anyone 25 years old or younger. Essays must be submitted online by March 1, 2005 and address the following question:

In "The Creative Powers of a Free Civilization," Nobel Prize winner F.A. Hayek posits that only in a truly free society can the creative powers of individuals be maximized. In an essay of 2,500 words or less, please answer the following question:

To what degree are the creative powers of individuals influenced by the structure of the society in which they live? What legal, social, cultural, or educational conditions would be needed to fully realize their creative powers?

Visit www.TheIHS.org/essays for more information and to submit an essay. . . .


Interesting Quote from Justice Robert Jackson,

who was Attorney General under FDR and whom Roosevelt appointed to the U.S. Supreme Court:

I . . . have been highly desirous of preserving the federalist form and keeping vitality in it. . . . [A]t Nuremberg, it became apparent that until Hitler had broken down the powers of the separate German states and established a completely centralized police administration, he wasn't able to bring about the dictatorship. I think that the philosophy of the Tenth Amendment reserving the undelegated powers to the people or the states ought to be regarded as an essential part of our Bill of Rights, in the sense that our rights are secured and made not merely by the separation of pwoers in the federal government, but by a division of powers between state and federal government.

The decided drift is in favor of a strengthened federal government. I think we should draw a line between the necessity for central regulation of commerce, in the sense of finance and trade, and the necessity for diffused control of such things as affect civil liberties. Because while the federal government occasionally may make a great advance in the direction of civil liberties that the state governments would not make -- at least in some states -- for many years to come, they can also make a very disastrous reversal and do more harm to civil liberties in one administration than a state government could do in a generation . . . . I think the potentialities of a federal, centralized police system for ultimate subversion of our system of free government is very great.

Philip B. Kurland, Robert H. Jackson, in 4 The Justices of the Supreme Court of the United States, 1789-1969 (L. Friedman and F. Israel eds. 1969), at 2543, 2565 (quoting taped interviews with Jackson prepared for Columbia University's Oral History Project). Many thanks to George Liebmann, who quoted these in an American Conservative Union newsletter, for the pointer.

That Justice Jackson said this, of course, hardly makes it right. Moreover, many modern supporters of constitutional restraints on the federal government may disagree with some of what he said (for instance, his support for "central regulation of commerce," if that phrase is understood broadly). Still, it seems noteworthy that even in the heyday of federal power after the New Deal, one highly prominent New Dealer thought that federalism -- in the sense of constitutional constraints on federal power -- was still very important.

Justice Jackson also wrote, in a majority opinion for the Supreme Court (Eisentrager v. Johnson (1950), overruled on other grounds by Rasul v. Bush (2004)) that the Constitution didn't apply to aliens overseas, reasoning that

If the Fifth Amendment confers its rights on all the world . . ., the same must be true of the companion civil-rights Amendments, for none of them is limited by its express terms, territorially or as to persons. Such a construction would mean that during military occupation irreconcilable enemy elements, guerrilla fighters, and "werewolves" could require the American Judiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against "unreasonable" searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments. . . .

It thus seems pretty clear that he took an individual-rights view of the Second Amendment (albeit, of course, in an offhanded aside); if he had seen the Second Amendment as securing only the right of states, or the right of members of state-run National Guard units, then his argument as to the right to bear arms, and his analogy to the First, Fourth, Fifth, and Sixth Amendments, would have been absurd: The Second Amendment would simply be a radically different provision than those, and even if the Constitution did apply to aliens overseas, the Second Amendment would have still been inapplicable by its own nature.


Thursday, January 13, 2005

Excommunicating Condoleeza Rice.--

Eugene comments on these snarky assertions of a newly minted Harvard Ph.D. at AlexandraSamuel.com:

shouldn't political science have its equivalent to disbarment or excommunication? After all, if we want the term "political scientist" to mean something, then a doctorate shouldn't be a one-way ticket. When political scientists promulgate ideas or institute policies that violate even the most generous interpretations of our collective wisdom, they are not only disregarding their own academic training, but devaluing the intellectual authority and standards of our field. So shouldn't there be some threshold - it can be a generous one - beyond which one loses the right to practice political science?

After spending the last few years at Harvard, Ms. Samuel (I presume that it is she who is posting at AlexandraSamuel.com) seems to be confused about how academics is supposed to work. To my mind, she is doing what she decries: "promulgat[ing] ideas . . . that violate even the most generous interpretations of our collective wisdom, . . . not only disregarding [her] own academic training, but devaluing the intellectual authority and standards of our field." I hope that no one at Harvard tries to implement Ms. Samuel's authoritarian policies, or they might just demand Samuel's Ph.D. back.

Science (and social science) proceeds by free inquiry, not by consensus, as Michael Crichton, a Harvard MD from a different generation so eloquently put it two years ago:

I want to pause here and talk about this notion of consensus, and the rise of what has been called consensus science. I regard consensus science as an extremely pernicious development that ought to be stopped cold in its tracks. Historically, the claim of consensus has been the first refuge of scoundrels; it is a way to avoid debate by claiming that the matter is already settled. Whenever you hear the consensus of scientists agrees on something or other, reach for your wallet, because you're being had.

Let's be clear: the work of science has nothing whatever to do with consensus. Consensus is the business of politics. Science, on the contrary, requires only one investigator who happens to be right, which means that he or she has results that are verifiable by reference to the real world. In science consensus is irrelevant. What is relevant is reproducible results. The greatest scientists in history are great precisely because they broke with the consensus.

There is no such thing as consensus science. If it's consensus, it isn't science. If it's science, it isn't consensus. Period.

Crichton then describes scientific consensuses that turned out to be wrong. I don't think that there is anything wrong with talking about the consensus of scientists or social scientists (and I certainly do so myself), but one must remember that it is the quality of the evidence that makes the work persuasive, not the consensus.

But what about examples of social science consensus?

The Case of James Coleman. As part of my Ph.D. work at the University of Chicago, I was fortunate enough to be among James Coleman's last students. At one time or another in his long career, Coleman had been the leading practitioner of several subfields in Sociology: educational sociology, mathematical sociology, and rational choice sociology. In the 1960s Coleman did some of the first large-scale, well designed educational studies. When his early results seemed to find positive effects for school integration, he was lionized by the profession. But just a few years later, when his data started showing problems with the educational effects of busing, he was vilified. Although I never heard exactly what was done to him, Chicago faculty members told me that he was "basically thrown out" of the American Sociological Association (ASA), perhaps analogous to what Ms. Samuel has proposed for Condoleeza Rice. I don't take the claims that Coleman was thrown out literally; probably nothing more was done than open insults, shunning, and expressions that he was not welcome anymore.

When eventually Coleman's work was mostly validated by other researchers, the leaders of the profession were ashamed of their prior actions. I was told by faculty members at Chicago and elsewhere (I have no personal knowledge of these events) that an effort was made to make amends for their shoddy treatment. Twenty years after being excluded, the ASA made him President of the organization. (I apologize in advance to those readers who have personal knowledge of these events; my knowledge is secondhand and thus likely to be in error on some details. Coleman never spoke to me about any of this.)

Welfare Reform. The greatest success of the Clinton Administration--and one that will continue to generate benefits for years to come--is welfare reform. It was a Republican idea, but it took real courage on Clinton's part to get it past the Democratic establishment, both academic and political. I take it that its chief proponents in the Clinton White House were Clinton himself, Gore, and Dick Morris. All sorts of horror stories were told about the scale of human disaster that would come about if even a modest workfare system was imposed. Even less alarmist academics thought that it had to worsen things, but as soon as it passed (even before it took effect), more poor people began looking for and getting jobs. Poverty went down, not up. Now a generation of the poor and the borderline poor are being raised in households with many more employed breadwinners, with positive effects of many sorts.

Arming America. After it was publicly exposed that in Arming America Michael Bellesiles had described the contents of over a hundred documents that never existed, the American Historical Association passed a resolution that specifically expressed support for both Michael Bellesiles AND HIS BOOK! With some of the country's leading historians praising the book, the consensus was so strong that most historians just did not think that they should spend an afternoon in a good library checking criticisms before going public with expressions of support. Later, some of those same leading historians wrote or told me that they were wrong. For several reasons, including because the AHA was embarrassed over having been taken in by Bellesiles, the AHA decided to end its practice of conducting ethical investigations.


Bloggers' Privilege:

Newsday reports:

. . . The Electronic Frontier Foundation said yesterday it would defend bloggers' right to protect anonymous sources who disclosed that Apple would release a product code-named "Asteroid."

A lawyer for the group said it's one of the first cases nationwide, if not the first case, that would address whether Web loggers, or bloggers, can protect confidential sources. Apple filed the suit last week in California.

The conflict began after two bloggers disclosed on their Web sites in November that Apple would release the so-called "Asteroid," an add-on that would supposedly allow musicians to hook up analog musical instruments to Macintosh computers. Apple then sued the "John Does" for violating trade secret laws by disclosing the information to the bloggers, and the computer maker issued subpoenas to the bloggers to find out the identities of the John Does.

The bloggers shouldn't have to disclose the anonymous sources, said Kurt Opsahl, staff attorney for the foundation.

"In this case, they're very clearly journalists," he said. . . .

EFF, I suspect, will be claiming a privilege under the First Amendment, but such a privilege is "qualified" rather than absolute -- it's unavailable if a judge finds that the information is really necessary to an important case, and there are no other ways of getting it. Also, whether such a privilege even exists under the First Amendment is hotly disputed. I think the Supreme Court rejected it in 1972. Since then, though, many federal court of appeals decisions, including some in the Ninth Circuit, have accepted it (based on what I think is a misreading of the Court's opinion), and the Court hasn't stepped in to overrule them; on the other hand, two other federal courts of appeals have rejected the privilege, as has one decision in the Ninth Circuit. So the federal privilege claim has problems.

But EFF will also be claiming a privilege under article 1, section 2(b) of the California Constitution, which is quite explicit:

b) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, shall not be adjudged in contempt by a judicial, legislative, or administrative body, or any other body having the power to issue subpoenas, for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication . . . .

So if a blog is considered a "periodical publication" -- which most blogs are (the exact "period" in the sense of interval between posts isn't fixed, as it is for a newspaper, but they are "periodical" in the sense that they publish repeatedly, and are usually expected to have new material at least as often as many standard periodicals) -- then it sounds like they have an open-and-shut case. We don't even have to ask whether bloggers are "journalists"; so long as they are "person[s] connected with . . . [a] periodical publication," they are entitled to disregard subpoenas that call on them "to disclose the source of any information procured while so connected . . . for publication in . . . [a] periodical publication."


Excommunicating Scientists:

Kim Scarborough points to this post from a newly minted Political Science Ph.D. (the poster had just gotten the Ph.D. in the mail the day before):

I don't think there is a tent big enough to hold me and one of the chief architects of the present war in Iraq [Condoleezza Rice]. And I have to wonder about our collective pretensions to positive social science when someone can hold onto her political science credentials while acting as one of the most persistent defenders of that "weapons of mass destruction" trope.

So I've been thinking: shouldn't political science have its equivalent to disbarment or excommunication? After all, if we want the term "political scientist" to mean something, then a doctorate shouldn't be a one-way ticket. When political scientists promulgate ideas or institute policies that violate even the most generous interpretations of our collective wisdom, they are not only disregarding their own academic training, but devaluing the intellectual authority and standards of our field. So shouldn't there be some threshold — it can be a generous one — beyond which one loses the right to practice political science?

Ah well. Any field that still claims Henry Kissinger as one of its own can certainly survive Condoleeza Rice.

A few questions: (1) What exactly does it mean to "lose[] the right to practice political science"? You lose the right to do the things that political scientists do — publish papers, teach classes, and so on? You lose the right to cite as a credential (since, after all, the whole point is so that you wouldn't be allowed to "hold onto [your] political science credentials") the Ph.D. you hold, the jobs you've had, and the field you're knowledgeable in?

(2) Say the political science profession indeed isn't a big enough tent to hold both a newly minted Ph.D. and the incoming U.S. Secretary of State (who also happens to be the former Provost at Stanford). Which is more likely (not just today, given the current political makeup of the academy, but in the future) — that (A) junior Ph.D.s will get to push out high government officials for "promulgat[ing] ideas" that depart too far from "conventional wisdom," or (B) vice versa? The poster is apparently "an expert on electronic democracy and electronic government"; what does our knowledge about democracy and government suggest as the answer to the previous question?

(3) I had thought that academics had a pretty standard response for dealing with people who promulgate ideas that academics think are unwise: It's called "criticism" via "persuasion." Why isn't that good enough for the good Doctor?

Yes, I know that I'm probably taking the poster's arguments a bit too literally here. My guess is that this is just hyperbole and fulmination on her part. Presumably, the poster is just using exaggerated language simply to suggest that lots of political scientists should condemn Dr. Rice.

Still, isn't an exaggerated post that, on its face, runs against basic principles of academic freedom — I assume those principles are similar in Canada, where the poster is from, as they are here — and that operates through hyperbole rather than reasoned substantive argument, an inauspicious way to begin one's life as a Ph.D.? Let's hope it's not characteristic of this person's future commentary.

Finally, what one says in moments of rhetorical excess might not fully reflect what one thinks most of the time — but then again it might. In Vino Veritas; perhaps In Hyperbole Veritas. And, as Scarborough writes about the poster,

She undoubtedly has a bright future ahead of her. Won't it be nice when she's not just dreaming of banishing the powerful from her exclusive club and actually grading papers and judging dissertations of talented students whom she may not agree with? It sure is encouraging that her gut instinct upon encountering disagreeable opinions is banishment. Certainly the attitude I like to see in higher ed, how about you?


-Based:

A Slate article by Jesse Sheidlower, editor-at-large of the Oxford English Dictionary reports this about a meeting of linguists:

The suffix -based, as in faith-based or reality-based, was widely disliked. "It's its own opposite," said Bill Kretzschmar, editor of the Linguistic Atlas of America. "If it's reality-based, it's not real."
But that doesn't seem quite right to me.

A. As I understand it, "faith-based" is most commonly used to discuss "faith-based initiatives" which really refer to faith-based social service programs and groups. A faith-based program for recovering alcoholics is something that's aimed at using religion to help people overcome alcoholism: The technique is based on faith, though its goal is to achieve a good result (and a result that has important secular effects). Likewise for faith-based programs for fighting unwed pregnancy and the like. We might also talk of "faith-based decisionmaking," which would be decisionmaking that's based in important ways on your religious commitments.

We wouldn't say "If it's faith-based, it's not faith," partly because "faith-based" is an adjective and "faith" is a noun. We wouldn't say "If it's faith-based, it's not about faith," because that would be wrong. And we wouldn't say "If it's faith-based, it's not religious worship," because that's beside the point: Faith-based programs aren't supposed to be religious worship for its own sake, but programs that use participants' faith as a means to achieve goals that are also the goals of other secular programs.

B. "Reality-based," as I understand it, has three meanings. Meaning 1 is in the phrase "reality-based [television] programming" or "reality-based shows," such as Survivor and the like. Here, it's true that "reality-based" isn't quite "real," but it's also beside the point. "Reality-based" conveys well the fact that these shows are unscripted and involve participants' own real reactions to certain stimuli (not just what the writers told actors to say); but at the same time the stimuli are indeed crafted by the producers of the show, so the program really isn't real.

Meaning 2, which emerged in late 2004, is exemplified by the term "reality-based community," which people usually (though not always) use to refer to themselves and their allies as people whose thinking is rooted in reality (usually as opposed to faith, or to folly); and meaning 3, which emerged at the same time, means "based on an unimaginative, static view of reality."

Here are the earliest uses of these meanings that I could find on NEXIS, both from Ron Suskind, author of The Price of Loyalty: George W. Bush, the White House and the Education of Paul O'Neill.:

  1. CNN, Oct. 15, 2004: "What we found, and what I found over, really, years of investigating and reporting on George Bush, is a steady progression. He has retreated step by step from the kind of critical analysis upon which presidents have always relied, and ever more embraced faith at the core of his decision-making process. This is something that--I talked to Republicans in this story, and some of them are quite mightily concerned about: Is the president dealing with reality-based issues or is he ever more guided by the faith-based certainties? . . . [T]here will be a civil war in the Republican Party on November 3rd if George Bush wins between the reality-based community and the faith-based community."
  2. N.Y. Times, Oct. 17, 2004: "In the summer of 2002, after I had written an article in Esquire that the White House didn't like about Bush's former communications director, Karen Hughes, I had a meeting with a senior adviser to Bush. He expressed the White House's displeasure, and then he told me something that at the time I didn't fully comprehend — but which I now believe gets to the very heart of the Bush presidency.

    "The aide said that guys like me were 'in what we call the reality-based community,' which he defined as people who 'believe that solutions emerge from your judicious study of discernible reality.' I nodded and murmured something about enlightenment principles and empiricism. He cut me off. 'That's not the way the world really works anymore,' he continued. 'We're an empire now, and when we act, we create our own reality. And while you're studying that reality — judiciously, as you will — we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors . . . and you, all of you, will be left to just study what we do.'"

Note, of course, that the term is used differently in these quotes: In the former, it's used as a normatively positive antonym to "faith-based" (meaning 2). In the latter, it's used as a pejorative for "tied too much to current reality, and lacking an understanding of how the reality can and will be transformed" (meaning 3) But my sense from looking at subsequent uses is that the subtler, negative meaning 3 (which did mean "not real" in the sense of "not the way the world really works anymore") has been swamped by the simpler, positive meaning 2. And in this positive usage, "reality-based" is close to "real"; it does mean "based on what we see as reality, not based on your unproven, unprovable faith / myth."

Now maybe I'm missing something here — but if I'm right, then this suggests that the criticism of "faith-based" is certainly misplaced, and of "reality-based" is mostly misplaced. Thanks to InstaPundit for the pointer.


John Lott Responds

to some posts (linked to at the end of this one) that criticize his work in light of the National Academy of Science report on gun control laws:

Last month, the National Academy of Sciences issued a 328-page report on gun control laws. The big news that has been ignored on all the blog sites is that the academy's panel couldn't identify any benefits of the decades-long effort to reduce crime and injury by restricting gun ownership. The only conclusion it could draw was: Let's study the question some more.

The panel has left us with two choices: Either academia and the government have wasted tens of millions of dollars and countless man-hours on useless research (and the panel would like us to spend more in the same worthless pursuit), or the National Academy is so completely unable to separate politics from its analyses that it simply can't accept the results for what they are.

Based on 253 journal articles, 99 books, 43 government publications, and some of its own empirical work, the panel couldn't identify a single gun control regulation that reduced violent crime, suicide or accidents.

From the assault weapons ban to the Brady Act to one-gun-a-month restrictions to gun locks, nothing worked. (Something that I have been the first person to investigate empirically for many of these laws, and I also had been unable to find evidence that they reduced violent crime.)

The study was not the work of gun-control opponents. The panel was set up during the Clinton administration, and of its members whose views on guns were publicly known before their appointments all but one had favored gun control. Something that I wrote up about the panel three years ago is still relevant.

While the panel dealt with a broad range of gun control issues, only one issue has received attention on different blogs: right-to-carry laws. In fact, the panel apparently originated with the desire from some to respond to the debate on that issue and to respond specifically to my research that concludes that allowing law abiding citizens to carry concealed weapons reduces crime. I originally overheard Phil Cook and Dan Nagin discussing the need for a panel to "deal with" me in the same way that an earlier panel had "dealt with Isaac" Ehrlich's work showing that the death penalty deterred murder. They agreed and Nagin said that he would talk to Al Blumstein about setting up such a panel. Needless to say, that is what ended up happening.

1) James Q. Wilson's very unusual dissent is very interesting (only two out of the last 236 reports over the last 10 years have carried a dissent). Wilson states that all the research provided "confirmation of the findings that shall-issue laws drive down the murder rate . . . " Wilson has been on four of these panels and never previously thought that it was necessary to write a dissent, including the previous panel that attacked Isaac Ehrlich's work showing that the death penalty represented a deterrent.

Wilson said that that panel's conclusion raises concerns given that "virtually every reanalysis done by the committee" confirmed right-to-carry laws reduced crime. He found the committee's only results that didn't confirm the drop in crime "quite puzzling." They accounted for "no control variables" - nothing on any of the social, demographic, and public policies that might affect crime. Furthermore, he didn't understand how evidence that was not publishabled in a peer-reviewed journal would be given such weight.

The non-results are basically due to dropping all the control variables (particularly the arrest rate which is not defined when the crime rate is zero). When that happens a lot of observations with zero crime rates are introduced. The problem with using OLS when you have all these zero crime rates is that if a crime rate is already zero, no matter how good the law is, it can't lower the crime rate any further. There is thus a positive bias in these results. Plassmann's two papers (his piece in the Journal of Law and Economics with Nic Tideman and his paper with Whitley in the Stanford Law Review) show how you can address this as a count data problem. Although his research consistently shows statistically significant results that shall issue laws reduce crime, the National Academy report ignores the research.

The panel's discussion of Duggan's results focuses on the regressions without any control variables and that use the OLS estimates when they have a large number of zero values for the crime rates.

2) As an interesting aside, there are a number of factual mistakes in the NAS report and those mistakes work against my findings. For example, Figure 6.1 makes a mistake where it shows the increase in violent crime of 7 percent in year one, when the amount is 5 percent (7-2, where 2 is from the trend). (Of course, the overall problem with the hybrid approach is discussed below.) There are significant drops in crime in Table 6-3 that are statistically significant, but they are not properly marked to indicate that is so. Even something trivial as the number of states currently with right-to-carry laws is wrong, 36 (not 34) (and if Minnesota is included the number is 37).

3) Last year there was a debate over the use of clustering between Ayres and Donohue and me, but the statements of the NAS panel corresponds extremely closely to what was written in my original paper with David Mustard.

4) p. 127: "We focus on the conflicting results . . ." No attempt is made to give readers an idea of the frequency or importance of unusual results. Take the results in Table 6-3. For Plassmann and Whitley, the panel doesn't mention that Plassmann and Whitley say that there are "major problems" with the particular regressions that the panel decides to report and more importantly that the effects in those regressions are biased towards zero (see point 2 above). For Moody's results, they show only two specifications of all the results that he reports and don't mention that the one weird result that he got was from a specification that he flagged as problematic and not controlling for other factors.

Even with the very selective sample of regressions that they pick, there is not one statistically significant bad effect of right-to-carry laws on murder. Only one case for robbery and that is one problematic specification from Ayres and Donohue.

5) Hybrid model. The so-called hybrid model used by Ayres and Donohue finds that the law dummy variable is positive while the trend variable indicates that crime rates decline over time. While Plassmann and Whitley do a good job explaining why the "hybrid" model produces misleading results and the panel never discusses their critique (looking at the crime rates on a year by year basis show no initial increase in crime), it still would have been useful for the panel to at least say whether the "hybrid" results produced a statistically significant temporary bad effect. The problem with determining statistical significance is that when both the dummy and trend variables are on at the same time, we are concerned about the net effect not just the dummy variable by itself as Ayres and Donohue argue. The answer for all those results in the panel's Table 6-4 is "no."

6) Reset tests. Professor Horowitz's discussion of the reset tests seem too strong since I provided the panel with the reset tests done for a wide range of estimates. Even accepting that the Reset test is appropriate (and no one else on the panel also uses this test in their work), there are many estimates where the results pass this test and he should thus conclude that those indicate a drop in violent crime.

7) Using too many control variables. Bartley and Cohen and I report all possible combinations of the control variables and show a great deal of consistency in the results. The only difference between these and those discussed in the NAS report is that these regressions included the arrest rate because of the zero crime rate problem.

8) Process. While the NAS is in name an academic organization, the process was hardly an academic one. Members of the panel were forbidden to talk to me about the issues being examined by the panel. Despite promises to get my input on the panels' review as it went forward, that never occurred. In particular, Charles Wellford promised me that I would be able to look at the tables and figures in the report. If I had been involved, I could have helped catch some of their mistakes. When the report was finally released to the public, I was promised that I would get a copy at the beginning of the presentation and that I would be allowed to ask questions. I was told that they preferred that I not attend the presentation, but there would be no problem with me asking questions. Instead even though the presentation ended a half hour earlier than scheduled because there were supposedly no more questions, my questions were never asked. (I had one main question: Professor Wellford mentions all the research that has been done on right-to-carry laws, but if he is correct that right-to-carry laws are just as likely to increase as decrease crime, can he point to one refereed journal article that claims to find a bad effect from the law?) Despite promises to the contrary, I did not receive a copy of the study until well into the afternoon and then only after a reporter from USA Today sent me a copy.

Minor notes: Despite claims to the contrary, I responded to the Ayres and Donohue study in January of 2004. (Simultaneously, it goes unnoticed that Ayres and Donohue themselves ignored virtually all of Plassmann and Whitley's points.)

In commenting on the report, others have raised additional issues that the NAS study did not find relevant. As to the claims raised again in these posts reguarding Jim Lindgren's investigation of the "phantom survey," many are apparently unaware that David Gross, David Mustard, and I have said that Lindgren has grossly mischaracterized what we said to him. For comments by Gross and Mustard, please see statements 3 and 4 in this link.

For a general response to the charges on the survey and other issues you raise see this link. False claims have been made with regard to these issues and the pseudonym.

Claims have also been made by Jim Lindgren regarding the demographic control variables, but he fails to note that it is only for the state level regressions and not the county level regressions where some of the significant results are affected. Given all the combinations of control variables that have been examined, even in that case, one wants some theory for why you selectively include what appears to be a weird combination of demographic controls. I think that Lindgren is a biased observer. He was upset after a critical piece that I published on his work in 2003 and his attacks started shortly after that. Further his attacks are untrue.

Final comments.

It is hard to look through the NAS panel's tables on right-to-carry laws and not find overwhelming evidence that right-to-carry laws reduce violent crime. The results that don't are based upon the inclusion of zero values noted in point 1 above. Overall, the panel's own evidence from the latest data up through 2000 shows significant benefits and no costs from these laws.

My impression is that Gary Kleck also has a very similar reaction to the panels' findings regarding surveys on self defense.

I express no opinion on this debate, but I thought I'd pass along John Lott's reactions.


More on the World Series-Ending Ball and Property Law:

Reader Marco Parillo passes along a pointer to this op-ed (registration required).

Related Posts (on one page):

  1. More on the World Series-Ending Ball and Property Law:
  2. I Like My Company Car, Boss,

Paging Hollywood:

A few months after I published my short story (The Love Charm) in Legal Affairs, a screenwriter who had been reading the magazine bought a one-year option, thinking he might turn it into a screenplay (or, more likely, a treatment) that he could try to sell. The option has expired -- that's Hollywood for you -- and I thought that I'd just note this in case any readers might be interested in taking the baton. I was pleasantly surprised by the writer's call a year ago; I thought that perhaps I might get pleasantly surprised again.

Also, if you're interested, there's an alternate ending to the story here (it's the ending I originally wrote, but the editors preferred the one that was ultimately published).


The Blakely Revolution, Justice Scalia, and the Living Constitution: In his part of the majority opinion in United States v. Booker, Justice Stevens had what I think is the most honest explanation of the origins of the Blakely revolution. As sentencing guidelines schemes became increasingly popular in the 1980s and 1990s,
the Court was faced with the issue of preserving [the] ancient guarantee [of the Sixth Amendment] under a new set of circumstances. The new sentencing practice forced the Court to address the question how the right of jury trial could be preserved, in a meaningful way guaranteeing that the jury would still stand between the individual and the power of the government under the new sentencing regime. And it is the new circumstances, not a tradition or practice that the new circumstances have superseded, that have led us to the answer first considered in Jones and developed in Apprendi and subsequent cases culminating with this one. It is an answer not motivated by Sixth Amendment formalism but by the need to preserve Sixth Amendment substance.
  In the view of Blakely proponents, times had changed, and the Court needed to rethink Sixth Amendment rules "to preserve Sixth Amendment substance" in light of new sentencing guideline regimes.

  The obvious question is, how could Justice Scalia and Justice Thomas join in this example of what might plausibly be called "living constitutionalism"? My speculation is that there are two reasons.

  First, Justices Scalia and Thomas are open to creating new constitutional rules when they think that something new is needed to restore the function of an old doctrine. If changing technology or practice threaten the function of the old rule, Thomas and Scalia are willing to create new ones. An interesting example of this is Kyllo v. United States, in which Justice Scalia's opinion, with Justice Thomas on board, created a new Fourth Amendment rule to regulate thermal imaging devices. Changing technology threatened to eliminate the Fourth Amendment's traditional protection of the home, and so Scalia created a new rule to try to restore old protections.

  Second, Justices Scalia and Thomas much prefer rules to standards. That is, they like clear legal rules knowable ex ante instead of mushy balancing tests applied ex post. Apprendi/Blakely opponents never came up with a rule to protect the Sixth Amendment jury trial guarantee, while Apprendi/Blakely proponents did. Faced with a choice between a rule and a mushy balancing test, Justices Scalia and Thomas naturally gravitated to the new rule adopted by the Court in Blakely.

  I have enabled comments.

Related Posts (on one page):

  1. The Blakely Revolution, Justice Scalia, and the Living Constitution:
  2. Implementing Blakely and Remedies for Structural Rules:
  3. Initial Reaction to Booker/Fanfan Majority Opinions:
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Congress Drops Torture Provision: The New York Times reports that, at the urging of the Bush Administration, Congress has dropped an effort to regulate "the Central Intelligence Agency's secret detention and interrogation of top terror leaders like Khalid Sheikh Mohammed, the mastermind of the Sept. 11 attacks, and about three dozen other senior members of Al Qaeda and its offshoots." More thoughts here from Marty Lederman, who is quoted in the article.

Wednesday, January 12, 2005

For Law Geeks Only:

A friend of mine writes:

Consider the following quote from Pennsylvania State Police v. Suders, 124 S. Ct. 2342, 2356 (2004):

In contrast, in Robinson v. Sappington, 351 F.3d 317 (CA7 2003), after the plaintiff complained that she was sexually harassed by the judge for whom she worked, the presiding judge decided to transfer her to another judge, but told her that "her first six months [in the new post] probably would be 'hell,'" and that it was in her "'best interest to resign.'" Id., at 324.

One day, I will cite that case, or the 7th Circuit case, or something like it, remove the quotation marks around "hell," and add: "(infernal quotation marks omitted)."


Speech to a Courthouse Line:

Newsday reports:

The line leading into First District Court in Hempstead Monday morning was long and frustrating, but it was the punch line in a lawyer joke that got two rabble-rousing comedians arrested.

"How do you tell when a lawyer is lying?" Harvey Kash, 69, of Bethpage, said to Carl Lanzisera, 65, of Huntington, as the queue wound into the court. "His lips are moving," they said in unison, completing one of what may be thousands of standard lawyer jokes.

But while that rib and several others on barristers got some giggles from the crowd, the attorney standing in line about five people ahead wasn't laughing.

"'Shut up,' the man shouted," Lanzisera said. "'I'm a lawyer.'"

The attorney reported Kash and Lanzisera to court personnel, who arrested the men and charged them with engaging in disorderly conduct, a misdemeanor. . . .

Dan Bagnuola, a spokesman for the Nassau courts, said the men were causing a stir and that their exercise of their First Amendment rights to free speech was impeding the rights of others at the court.

"They were being abusive and they were causing a disturbance," Bagnuola said. "They were making general comments to the people on line, referring to them as 'peasants,' and they were causing a disturbance. And they were asked on several occasions to act in an orderly manner, not to interfere with the operation of the court." . . .

Kash said he and Lanzisera were merely saying out loud that the public was being treated like peons or peasants while attorneys, who wave their security passes to court officers and don't have to stand on line, are treated like kings. . . .

A courthouse is a "nonpublic forum," which is to say a piece of property that's owned by the government, and that hasn't been opened as a place for people to speak to the public. The government may restrict speech in such fora, but only if the restriction is reasonable and viewpoint-neutral.

Thus, the government can certainly ban picketing or demonstrations inside a courthouse. It may even ban all profanity, or impose other viewpoint-neutral restrictions. (Those who want to respond by citing Cohen v. California might want to read this page.) But it can't impose viewpoint-based restrictions, even on speech that offends people.

So if Kash and Lanzisera were just talking to each other at a normal tone of voice in line, and were punished because the stuff they were saying was critical of lawyers, the matter would be simple: The government action would be unconstitutionally viewpoint-based. If they were talking to the rest of the line -- standing nearby and orating to strangers, especially in a loud voice -- and there were a clear courthouse rule prohibiting such behavior, then their violation of this rule (even after having been told about it) would likely be constitutionally punishable as disorderly conduct. (It would interfere with the operation of the courthouse, because it's a political demonstration in the courthouse and not because of the particular viewpoint the demonstration expresses.)

This case is somewhere in between, I suspect: It sounds like Kash and Lanzisera were indeed trying to speak to a broad group of strangers, but at the same time it sounds like there probably isn't such a clear rule here.

If these factual assumptions are correct, then Kash and Lanzisera's argument wouldn't be open-and-shut. But I think it would still be pretty strong: Even if the government could restrict public orations in the courthouse, it couldn't do it through a general "disorderly conduct" rule that vests officials with unbridled discretion that the officials could easily use in viewpoint-discriminatory ways. The prohibition on unbridled discretion to restrict speech is at its strongest in traditional public fora, such as sidewalks and parks. But I suspect it would apply even in nonpublic fora, such as courthouses. Cf. Board of Airport Com'rs of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 576 (1987).

In any case, I expect that if Kash and Lanzisera are indeed prosecuted, they'll fight the case on First Amendment grounds, and we'll learn more both about the factual details and the applicable legal rule.


I Wonder How Many Grown Men spent their Christmas vacation assembling a Lego Star Destroyer? (Hat tip: The Baseball Crank)

Speaking at Hofstra Law School in Long Island, in Two Weeks:

Hofstra was kind nough to invite me to be a visiting scholar; I like to do these sorts of things, and I'll also be doing one at Creighton in Nebraska next month, and at Tulane in New Orleans in early March. I'll be giving several talks and guest-teaching a couple of classes, and one of the talks — on The Mechanisms of the Slippery Slope will be open to the public. I'm told that it's on Wednesday, January 26, at 11:10 am in the Siben & Siben Moot Courtroom, in the Law School on the Hofstra campus in Hempstead, New York. There's apparently no street address, but I'm sure our intelligent, tech-savvy readers can find it. Hope to see some of you there!

UPDATE: Reader David Torrente points to a Hofstra site containing directions and maps.


Implementing Blakely and Remedies for Structural Rules: Today's opinions in United States v. Booker provide an interesting example of the problem with judicial remedies for violations of structural rules — rules that require or forbid a particular relationship, but cannot compel a particular outcome. We see this most often in the context of the Equal Protection clause. The Equal Protection clause requires the structural rule of equal treatment; it blocks state actors from treating alike groups differently. But the Equal Protection clause can't make a legislature treat everyone well. A legislature generally is free to respond to a judicial decision finding an Equal Protection violation by lowering the bar and treating everybody poorly, instead of just one group. A court can impose a structural rule of equality, but it can't mandate a specific level of protection.

  What does this have to do with Booker? It seems to me that implementing Blakely at the federal level raised a similar problem. Blakely imposes a structural rule for how legislatures have to do sentencing, much like equal protection decisions impose structural rules on treating alike groups differently. If a sentencing scheme permits the imposition of greater punishments upon finding a set of facts, then a defendant has a jury trial right to the finding of those facts. Over the long term, this structural rule isn't a guarantee of good treatment. Much like equal protection doesn't necessarily mean strong protection, Blakely doesn't mean strong Sixth Amendment jury trial rights. It just means jury trial rights that follow the structural rule of Blakely: If a sentencing scheme permits the imposition of greater punishments upon finding a set of facts, then a defendant has a jury trial right to the finding of those facts.

  In Booker, the Court had to find the initial starting point for implementing the Blakely structural rule. It's important to realize that the issue was only the starting point; one way or another, it's the legislature that gets to implement the Court's structural rule, not the Court. But the various opinions of the Court reflect two basic short-term approaches to implementing a structural rule change. One is to force the legislature to raise the bar: in effect, to mandate a strong level of protection across the board. That was the approach favored by Stevens, Scalia, Thomas, and Souter: they would have compelled the current sentencing regime to add protections to defendants by keeping existing law intact but just adding jury trial guarantees to all sentencing enhancements. It's kind of like mandating that everyone be treated well in an equal protection case; the goal would have been to use the new structural rule to bolster protections.

  Justice Breyer's majority opinion followed a very different approach: it takes the starting point of opting out of the structural rule entirely, preserving as much of the status quo as possible. It says, in effect, that Congress would have never designed the system it did if it had known that the Court would later on impose the Blakely structural rule. Given that, the thinking goes, it's pretty unfair to impose Blakely's structural rule on the existing system. So rather than use Blakely to bolster protections, the Court opted to follow the Blakely structural rule by holding that the noncompliant guidelines are no longer binding in the first place. Recall the Blakely rule: If a sentencing scheme permits the imposition of greater punishments upon finding a set of facts, then a defendant has a jury trial right to the finding of those facts. Fine, Justice Breyer says: if we're going to impose that structural rule, then we can be most true to Congressional intent by holding that nothing in the guidelines requires the imposition of greater punishment. Ergo, no need to create all these new jury trial rights that we don't think Congress would have wanted had they been forced to implement Blakely's structural rule.

  Blakely enthusiasts will find the Breyer opinion unsatisfying. Breyer's opinion tries to minimize the judicially imposed revolution by finding a starting point that preserves the status quo as much as possible. If you don't like the status quo, you won't like what Breyer does. I suspect that is true for many Blakely enthusiasts: in my experience, many Blakely enthusiasts are more interested in Blakely as a mechanism to create stronger Sixth Amendment protections than as an asbtract structural rule. To them, reading Breyer's opinion may trigger a reaction akin to what you might feel if you convince a court that there's an equal protection violation, and then find yourself stuck with poor treatment all around. While the violation has been cured in a technical sense, it doesn't really bring you the end result you had in mind.

  On the other hand, the majority's approach seems to me a reasonable way to begin to implement a new structural rule. Breyer's opinion declines to hold Congress to a bargain it never struck. It implements Blakely's structural rule in a minimalist way that in the short term tries to preserve as much of the status quo as it can. In the long run, implementing Blakely is Congress's problem; Justice Stevens' opinion for the Court applying Blakely at the federal level means that Congress has its work cut out for it over the long term. But Justice Breyer's opinion gives Congress some breathing room in the short term before Congress figures out what to do next.

  UPDATE: I have made a few minor corrections to the post to clean it up a bit.


Data as Singular:

A correspondent faulted me for using "data" with a singular verb, as "the data suggests." I follow the view of Webster's Dictionary of English Usage and The American Heritage Dictionary that "data" can be used in either the plural and singular, and "[b]oth constructions are fully standard at any level of formality" (Webster's, p. 318).

In Latin, "data" may be the plural of "datum"; in English, it's often a singular term that's synonymous with "information." I usually use it as singular, because (1) I see it as a "mass noun" -- a noun that refers to a collective, but as a single item -- so that the singular strikes me as more logical, (2) the singular seems more colloquial and English, while the plural strikes me as more fusty and Latinate (in spirit, not just etymology), and (3) I grew up as a computer programmer, and "data" is routinely used as singular in that field. But that's just my preference; I don't fault those who use data as plural.

I should note that there is some controversy about this): The New Fowler's Modern English Usage (3d ed. 1996) -- a British source -- insists on the plural, except in "computing and allied disciplines"; Bryan Garner's A Dictionary of Modern English Usage also prefers the plural, though it acknowledges that the singular has been gaining ground. But I generally prefer the Webster's and Heritage approach.


Diversifying the Media; Fairness is Not a Special Sauce.--

At GlennReynolds.com, Glenn comments on recent stories on objectivity and the media:

Elsewhere on this site today, Howard Fineman announces the death of the mainstream media as a political entity. He calls it "The American Mainstream Media Party," and says it began when Walter Cronkite spoke out against the Vietnam War, and ended in 2004, when people quit trusting the mainstream media.

I think there's a connection, of course: Political parties aren't noted for their honesty or lack of bias, and when the media became a sort of political party (which it denied for years, but which is now so obvious that Fineman can pronounce its death) it became less honest, though it's not clear that the press was ever as disinterested as it sometimes pretended. That's why when Fineman writes, "Still, the notion of a neutral, non-partisan mainstream press was, to me at least, worth holding onto," I think he's wrong.

The reality of a neutral, non-partisan mainstream press would be worth holding onto — if it had ever existed. But it didn't. What Fineman identifies as a golden age of neutrality was really a sham, and an artifact of two short-lived phenomena: First, Democratic/liberal political dominance so widespread at the time, at least among politicians and the press, that there weren't a lot of things to fight about; and, second, the inability of people who noticed bias and dishonesty to get the word out.

Neither situation obtains today. And rather than talk about the demise of neutrality and objectivity in news reporting, it might be better to note that CBS's problems, and the problems with Big Media in general, stem from an obvious and heavy-handed lack of neutrality and objectivity, coupled with a dishonest — and increasingly lame and obvious — effort to pretend otherwise.

Earlier this month, "CBS News president Andrew Heyward, along with Washington bureau chief Janet Leissner, . . . met with White House communications director Dan Bartlett, in part to repair chilly relations with the Bush administration."

While as an interim strategy, bending over backwards to be fair to those one opposes politically is reasonable for CBS, the longterm solution is to have about as many conservative producers and executives as liberals. If I were a CBS executive, I would go to a young, connected journalist like James Taranto at the Wall Street Journal's Opinion Journal and hire him or get ideas from him on whom to hire.

There are interesting stories out there that just don't get covered much by the MSM. It may be too late for the MSM to begin covering UNSCAM vigorously or the successes in Afghanistan. But there are other, newer stories: In the last few weeks, Diplomad has been detailing UN efforts to take credit for US and Australian relief efforts in Asia, and the UN's remarkable ineffectiveness in Aceh. What a natural for a big 60 Minutes or other newsmagazine story, sorting out to what extent these charges are or are not true! The point of fair reporting is not for CBS or other organs of the MSM to blunt criticisms of Bush, but just to report the interesting true stories, many of which will be embarrassing to the President, some of which won't.

For example, if you report the ultimately unsubstantiated suggestions that Bush might have been AWOL 30-35 years ago, as CBS did repeatedly, then report the substantiated reports that Kerry did not spend Christmas in Cambodia 36 years ago. Or reject both stories as too old to be relevant.

If last spring you report a letter signed by former military people that Bush is unfit to be Commander in Chief, then report the similar letter available at roughly the same time signed by nearly every person in the chain of command above Kerry in Vietnam saying that he was unfit to be Commander in Chief. Or reject both stories as probably partisan political moves cooked up for an election.

My point is that, with a politically diverse staff, being roughly fair will be much easier and will be a normal outcome of the process of choosing, reporting, producing, and vetting the stories. And the TV news will be more interesting, more true, and more trusted.

Fairness is not a special sauce that you pour over a story while you are editing it for broadcast.

UPDATE: Betsy Newmark comments insightfully on the same Howad Fineman column, particularly on GW Bush's efforts to bypass the press. She concludes:

This is a new world. And like all people in a trade that is growing obsolete from blacksmiths to telephone operators, Fineman is fighting against the tide. As Dylan would say, "The times, they are a-changing." If he doesn't want to sink like a stone, he'll change his ways.

Every time I pick up the New York Times, I am reminded both why the MSM will not die any time soon (there is an awful lot of great reporting in it) and why the MSM is likely to weaken as internet alternatives get stronger.


Initial Reaction to Booker/Fanfan Majority Opinions: I have now worked my way through the majority opinions in Booker/Fanfan; while I'm sure I'll have a better picture after I read the rest of the opinions, in the interests of timeliness I thought a quick and tentative post now might be of interest.

  The basic picture is that the Apprendi Five held to apply Blakely to the guidelines, but that Justice Ginsburg balked at the idea of foisting all of Blakely's implications on Congress and either forcing Congress to stick with it (highly unlikely) or make them rewrite the law immediately. She was willing to take a softer approach: Blakely applies, rendering the entire Federal Sentencing Guidelines advisory and non-binding, with the caveat that the Feeney Amendment's de novo review of upward departures is gone and replaced with a general reasonableness appellate standard of review for sentencing decisions. The four Blakely dissenters were willing to go along with this softer view, at least in light of the Apprendi Five's decision to apply Blakely to the federal guidelines. Thus Justice Breyer writes the second half of Booker/Fanfan ruling that the Guidelines are now advisory, not binding law, and that sentencing decisions are to be reviewed by appellate courts under a reasonableness standard.

  What to make of this? In the end, Justice Ginsburg's switch led to the Justices imposing a soft revolution in sentencing law instead of an aggressive one. Blakely remains the law: the Court has adhered to its view that all sentencing schemes must comply with the Apprendi Five's preferred elements-analysis approach to the Sixth Amendment. But the Justices won't impose on Congress the vision driving at least some of the Apprendi Five (and embraced by many of Blakely's academic supporters) that the Court can force the system to bolster defendant's rights by simply tacking on a set of jury trial rights onto the existing guidelines system. The Blakely revolution is here to stay, but the Court isn't going to impose its specific substantive vision on an unwilling Congress.

  This is all just a very tentative reaction. More (and hopefully better) analysis later. In the meantime, I'll enable comments.
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Booker/Fanfan: SCOTUSblog reports:
The Supreme Court ruled today that the federal Sentencing Guidelines must satisfy the standards of the Sixth Amendment as applied in the Court's ruling in Blakely v. Washington. Justice Stevens wrote an opinion on that point, and Justice Breyer wrote a separate opinion saying that the Guidelines can no longer be mandatory, but can continue to operate "in a manner consistent with congressional intent."
I'll post more later in the day after I have a chance to read the opinions (which are not yet available online.)

"Deterring Speech: When Is It 'McCarthyism'? When Is It Proper?"

I've just finished an early draft of this new article of mine (forthcoming in the California Law Review), and promptly popped it up on the Web — I'd love to hear people's comments or corrections. Special appearances: Ashcroft's "aiding the enemy," Clinton's "safe house for terrorists," George Orwell's "objectively pro-Fascist," the Dixie Chicks, Susan Sarandon, Danny Glover, Anita Bryant, Bill Maher, Ted Rall, Jimmy "The Greek" Snyder, Michael Savage, John Rocker, Marge Schott, subpoenas of library and bookstore records, and more.


Tuesday, January 11, 2005

Happy Birthday, Judge Posner!

FIRE Releases Guide to Free Speech on Campus:

The Foundation for Individual Rights in Education, a group whose work I've much admired, has just released its new Guide to Free Speech on Campus. In FIRE's words, "the Guide provides students, professors, and parents with a summary of their First Amendment rights and provides real-world, practical advice for combating speech codes and other oppressive campus policies." Check it out here.


Scalia-Breyer Debate on Foreign Law in U.S. Courts:

There'll be a debate between Justices Scalia and Breyer on the use of foreign law in U.S. courts at American University Law School in Washington, D.C., this Thursday, Jan. 13, 4-5:30 pm EST. . . .

You should be able to find a button under videoconferencing here, which when the event begins will take you directly into CSPAN's live feed (CSPAN will be broadcasting the event).

The event will also be archived on video, and a transcript will be published in PDF, on the school's website. For more on the issues, see here.


Do-Over History:

A post on an election law discussion list by Richard Winger led me to this little historical tidbit:

The closest United States Senate election in history occurred in New Hampshire in 1974. A contest between John A. Durkin, Manchester and Louis C. Wyman, Manchester was recounted several times by the State of New Hampshire and by the US Senate with differing results. [In one of the recounts, Wyman won by 2 votes.] The Senate was unable to decide the election, and the seat was declared vacant as of August 8, 1975 so a special election was held on September 16, 1975. The final results were: Durkin.....140,778 votes, Wyman....113,007 votes. The turnout for that special election was greater than in the original election.

I did not know that.


Important Article on Torture Practices: Heather MacDonald has a fascinating article in City Journal about alleged torture practices and the war on terror. Her take is that there has been a big misunderstanding, and that the real story is how little interrogators can do, rather than how much. I've generally found MacDonald's work to be quite reliable and accurate in the past, which makes this article all the more interesting. An excerpt:
  It is worth scrutinizing the final 24 techniques Rumsfeld approved for terrorists at Gitmo in April 2003, since these are the techniques that the media presents as the source of "torture" at Abu Ghraib. The torture narrative holds that illegal methods used at Guantánamo migrated to Iraq and resulted in the abuse of prisoners there.
  So what were these cruel and degrading practices? For one, providing a detainee an incentive for cooperation—such as a cigarette or, especially favored in Cuba, a McDonald's Filet-O-Fish sandwich or a Twinkie unless specifically approved by the secretary of defense. In other words, if an interrogator had learned that Usama bin Ladin's accountant loved Cadbury chocolate, and intended to enter the interrogation booth armed with a Dairy Milk Wafer to extract the name of a Saudi financier, he needed to "specifically determine that military necessity requires" the use of the Dairy Milk Wafer and send an alert to Secretary Rumsfeld that chocolate was to be deployed against an al-Qaida operative.
  Similar restrictions—a specific finding of military necessity and notice to Rumsfeld—applied to other tried-and-true army psychological techniques. These included "Pride and Ego Down"—attacking a detainee's pride to goad him into revealing critical information—as well as "Mutt and Jeff," the classic good cop-bad cop routine of countless police shows. Isolating a detainee from other prisoners to prevent collaboration and to increase his need to talk required not just notice and a finding of military necessity but "detailed implementation instructions [and] medical and psychological review."
Marty Lederman offers a critical take on some of MacDonald's argument here.


Bushism of the Day at Slate:

Here's today's item:

"We need to apply 21st-century information technology to the health care field. We need to have our medical records put on the I.T."—Collinsville, Ill., Jan. 5, 2005

Here's the link that Slate provides to the President's full speech, so readers can get some context:

Oh, wait, Slate, one of the leading online journals, doesn't actually provide links to the full speech, even when it's on the Web, and even when curious readers might want to know how the quote looks in context. But we at the Conspiracy deliver what Slate doesn't; here's the link.

In any case, what exactly is "Bushistic" about the quote? "I.T." stands for "information technology," in this case presumably computers, networking, and the like — a subset of one definition of "technology," which is "Electronic or digital products and systems considered as a group." I can't say that "We need to have our medical records put on the [information technology]" is the most eloquent phrase in the English language. Maybe it's something of a slip — "put on the technology" is not quite idiomatic, though it's clearly understandable, and probably technically correct given the definition I quoted. And in context, it seems to be an ordinary, if bland, part of an ordinary if bland political speech:

To improve health care in America, we need to expand the use of health savings accounts. (Applause.) It's a product that lets you save tax-free for routine medical care while keeping affordable coverage against major illness. Small businesses must be allowed to join together, to pool risk, so they can buy insurance for their employees at the same discounts that big businesses are able to do. (Applause.)

To address the cost of medical care, we need to apply 21st century information technology to the health care field. We need to have our medical records put on the IT. We need to make sure that we speed up the delivery and arrival of cheaper generic drugs to help control costs. We want to make sure our Medicare system still allows seniors to have choice in the system.

Look, I've got to admit: Some Bushisms (e.g., "misunderestimated") are funny and somewhat unusual malapropisms. But "We need to apply 21st-century information technology to the health care field. We need to have our medical records put on the I.T."? Is that funny? To the extent that it's misspeaking, is it particularly uncommon and noteworthy? (As I've mentioned before, I hate to read transcripts of my own presentations, because they often have grammatical and word choice lapses — and I think that's true for the overwhelming majority of all people, including the educated and intelligent.)

And, to get back on my hobbyhorse, when Slate is trying to make a big deal out of a quote, why not include a link back to the quote so that readers can see it and its context for themselves?


Supreme Court's Refusal To Hear Florida Gay Adoption Case:

I don't have time to say much more about this, so I thought I'd repeat my original post on the subject:

Does Lawrence v. Texas recognize a fundamental constitutional right to sexual autonomy? There was a hot debate about this following the Lawrence decision; I argued here that it does.

Today's Eleventh Circuit decision upholding Florida's statutory ban on adoptions by practicing homosexuals shows the importance of this question. The Eleventh Circuit correctly points out that the right to adopt is a creature of statute; there's no constitutional right to adopt. But the Supreme Court has often held that even when the government is distributing a strictly optional benefit, the Constitution often (though not always) prohibits the government from discriminating based on the exercise of a constitutional right.

For instance, I suspect the law generally may not bar adoptions by people who have expressed certain political beliefs, who practice certain religions, or who own guns (either if the Second Amendment is interpreted as protecting an individual right, or if the state involved is one of the many states [including Florida] whose constitutions clearly secure an individual right). The government generally may not use a person's exercise of his First or Second Amendment rights as a justification for denying them the benefit of an adoption.

The government may have some power to consider a person's constitutionally protected conduct in making this decision — in government employment decisions, for instance, the Court has held that the government has consider power to consider an employee's speech when the speech risks interfering with the efficiency of the government employer. But courts demand more than just a bare "rational basis" for such government decisions; they generally require some pretty substantial evidence that the person's exercise of his constitutional rights is substantially relevant to the government's decision.

If Lawrence does recognize a constitutional right to sexual autonomy that's akin to the freedom of speech, the free exercise of religion, and the like — which is what "fundamental constitutional right" generally means — then the government would have to show that allowing adoptions by practicing homosexuals really would pose some pretty serious problems. But if it doesn't recognize such a right, but only holds that criminal prohibitions are illegitimate (perhaps because they fail even rational basis scrutiny), then it could defend its no-gays adoption policy under a simple rational basis test.

Note, incidentally, that the Florida Constitution specifically secures a right to privacy, and Florida courts have interpreted it as protecting sexual autonomy. Given this, I think the Florida courts' earlier decision upholding the no gay adoptions statute is unsound (Dep't of Health & Rehabilitative Servs. v. Cox, 627 So.2d 1210 (Fla. App. 1993), aff'd as to the right to privacy, 656 So.2d 902 (Fla. 1995)). The courts erroneously assumed that, just because an adoption is a government-provided benefit, the government is free to deny this benefit based on a person's exercise of his right to privacy. That, I think, is wrong, just as it's wrong to say "government employment is a benefit, so the government is free to deny it to pacifists / Catholics / gun owners."

UPDATE: Here's Larry Ribstein's different take on this case.


Rich Man, Poor Man: Having lots of $$$ doesn't make you happy, it seems.

World's Lights at Night:

A cool picture. Thanks to my former coworker Neil Reinhardt for the pointer.

UPDATE: Reader Eric McErlain suggests that people check out North Korea on the map. Compare it to South Korea or even to China.


Economic Liberty:

The Institute for Justice — a group that I like very much — does a lot of economic liberty cases; and though the cases are very hard to win, IJ wins them a surprising amount of the time.

Their most recent high-profile case is especially interesting; it deals with a state-backed casket cartel in Oklahoma. They lost at the court of appeals, but they're asking the Supreme Court to hear the case; their theory is that the statute is justified by nothing more than a desire to enrich one group (licensed funeral directors) at the expense of another, and consumers be damned. As IJ points out, "Oklahoma requires anyone selling a casket to become a State-licensed funeral director even though casket retailers do not handle dead bodies or arrange funeral service, but instead merely sell what one federal court aptly described as 'a glorified box.' Obtaining an Oklahoma funeral director's license requires at least two years of full-time college course work, a one-year apprenticeship that requires the embalming of 25 bodies, and two exams." Not the best way to help consumers.

In fact, the court of appeals held that, under its view of the Constitution, naked economic favoritism is quite permissible: "We also note, in passing, that while baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments." I'm surprised the issue hasn't gotten more attention. I'm not sure that the Constitution should be interpreted as providing broad economic liberty protections. I support economic liberty as a policy matter, but while the Constitution does clearly block some interferences with such liberty (consider the Takings Clause, the Contracts Clause, and the part of the Due Process Clause that prevents the deprivation of property without due process), it leaves the government with lots of room to regulate. I'm not sure how much room it leaves — I haven't done serious research on the subject — but I suspect that it leaves enough even for legislation that simply tries to favor one business group over another.

I know, though, that my friend and coblogger Randy Barnett takes a different view; and in any event, this is a very interesting subject. And even if it turns out that the Tenth Circuit is right and that naked economic favoritism for one industry is constitutional, it's still a pretty bad idea, and I wish that the media did more to cover how these laws harm consumers as well as competitors.

UPDATE: Todd Zywicki reminded me that he posted about this case as well several months ago; check out his thoughts.


B Is for Bear:

For his first birthday, my brother Sasha gave Ben a booklet of his (Sasha's) favorite poems (naturally, in five different languages). I was leafing through it a few days ago and ran across this gem that I'd always found very amusing, from Hilaire Belloc's Moral Alphabet:

B stands for Bear. When Bears are seen
Appproaching in the distance,
Make up your mind at once between
Retreat and Armed Resistance.

A Gentleman remained to fight.
With what result for him?
The Bear, with unconcealed delight,
Devoured him limb by limb.

Another Person turned and ran.
He ran extremely hard.
The Bear was faster than the Man,
And beat him by a yard.

MORAL

Decisive Action in the hour of need
Denotes the Hero (but does not succeed).

Granted, I'll probably save it for when Ben can appreciate satire.


Time to Bring in A Heavy Hitter: The newswires are reporting that President Bush will nominate Third Circuit Judge (and former head of the DOJ Criminal Division) Michael Chertoff to be the new head of the Department of Homeland Security. Assuming Chertoff will be confirmed -- and that seems a pretty safe bet, as he has been confirmed by the Senate twice before in the last four years -- it will be a big loss for the Third Circuit but a big gain for the Department of Homeland Security. Chertoff is the real deal, and was highly respected within DOJ and around Capitol Hill when he was the head of the Criminal Division.

"The Right Has the Wrong Legal Theory": Harvard lawprof Bill Stuntz makes the case that conservatives should embrace judicial minimalism instead of formalism and originalism :
Most constitutional law deals with questions that other institutions could answer as well as or better than the courts. Where that is so -- where there is room for reasonable doubts and disagreements, as is usually the case -- courts should leave issues in other hands.
Thanks to Instapundit for the link.

Profiles in Courage, the Social Security Files:

From the Washington Post: "Why stir up a political hornet's nest .... when there is no urgency?" said Rep. Rob Simmons (Conn.), who represents a competitive district. "When does the program go belly up? 2042. I will be dead by then."


Monday, January 10, 2005

MOSS MOON:

Interesting take by Tony Dungy on Randy Moss's "celebration" yesterday. I had never heard of this particular tradition before.


Comparing Blogger Political Agendas With CBS's Lack of an Agenda.--

The CBS Panel "does not believe that political motivations drove the September 8 Segment." Further, after mentioning political agendas and bias, the Report says: "the Panel will not level allegations for which it cannot offer adequate proof."

Given those sentiments, the Panel is pretty quick to charge those who exposed CBS's fraudulent documents as having a political agenda. The motivation to seek and expose the truth is a pretty powerful one by itself, and motivations are complex. As I have said many times before, first you determine if the facts that someone is asserting are true or not. Only if they are false do you begin to ask why they would be putting forward false information, whether pushing false information might be the result of political bias.

I can understand ignoring the probable political bias of people who are making substantive, rational arguments (even if mistaken), or I can understand attributing political motives to people who act recklessly, repeatedly making statements that they know to be false (such as that CBS's experts authenticated the documents or that they came from "an unimpeachable source"). What I can't understand is that the Report appears to use a double standard on whether someone has a political agenda.

Here are some of the Report's discussion of political bias:

(1)

At the same time, some people on the Internet, at first primarily supporters of President Bush with their own conservative political agenda, started to question the authenticity of the documents. By the next afternoon, however, it became clear that the criticisms were no longer simply partisan. Mainstream media, including ABC News, The Associated Press, The New York Times and The Washington Post, were investigating whether 60 Minutes Wednesday had used fake documents in the September 8 Segment. Thereafter, and continuing well after September 20, 2004, when CBS News issued its apology and stated that it could not vouch for the Killian documents' authenticity, CBS News and 60 Minutes Wednesday were under continuous attack by the media, political personalities and others. Indeed, CBS News advised the Panel that between September 8 and October 13, it received nearly 109,000 e-mails related to the September 8 Segment, most of them negative. ...

(2)

The attacks on the September 8 Segment began virtually immediately. One of the first came on freerepublic.com, a website:

[E]very single one of these memos to file is in a proportionally spaced font, probably Palatino or Times New Roman. In 1972 people used typewriters for this sort of thing, and typewriters used monospaced fonts. The use of proportionally spaced fonts did not come into common use for office memos until the introduction of laser printers, word processing software, and personal computers. They were not widespread until the mid to late 90's. Before then, you needed typesetting equipment, and that wasn't used for personal memos to file. Even the Wang systems that were dominant in the mid 80's used monospaced fonts. I am saying these documents are forgeries, run through a copier for 15 generations to make them look old.85

This was followed on the morning of September 9 by further attacks, mostly by bloggers with a conservative agenda, challenging the authenticity of the documents. These included stories on Powerlineblog.com86 and littlegreenfootballs.com.87 Finally, by about 3 p.m., Matt Drudge, the author of the widely read Drudge Report website, had joined the fray, and, thereafter, the onslaught of attacks on the authenticity of the Killian documents was unrelenting. . . .

(3)

H. Political Agenda

The Panel is aware that some have ascribed political motivations to 60 Minutes Wednesday's decision to air the September 8 Segment just two months before the presidential election, while others further found political bias in the program itself. The Panel reviewed this issue and found certain actions that could support such charges. However, the Panel cannot conclude that a political agenda at 60 Minutes Wednesday drove either the timing of the airing of the Segment or its content.

Given that the Panel does not believe that political motivations drove the September 8 Segment, questions likely will be raised as to why these massive breakdowns occurred on this story at an organization like CBS News with its heritage and stated commitment to the highest standards of journalism. The Panel heard from many that the Rather/Mapes team was a formidable force at 60 Minutes Wednesday. ...

(4)

X. WHETHER THERE WAS A POLITICAL AGENDA DRIVING THE SEPTEMBER 8 SEGMENT

There has been widespread speculation in the media that the September 8 Segment was motivated, in whole or in part, by an anti-Bush political agenda. Thus, after the Segment was aired, the following types of comments appeared in print media:

Rather has long been criticized by some conservatives as being emblematic of the liberal news media.116 Rather's involvement in the politically charged story has led some Bush allies to challenge the network's general credibility.117 "I'm really heartsick she made that call [to Lockhart]. It has the air of some kind of conspiracy behind it to help Kerry," said Sandy Socolow, a former executive producer of the CBS Evening News with Dan Rather and his predecessor, Walter Cronkite. "She was trying to manipulate the political process in some way that's not clear to me."118

The question of whether a political agenda played any role in the airing of the Segment is one of the most subjective, and most difficult, that the Panel has sought to answer. The political agenda question was posed by the Panel directly to Dan Rather and his producer, Mary Mapes, who appear to have drawn the greatest attention in terms of possible political agendas. Both strongly denied that they brought any political bias to the Segment. The Panel recognizes that those who saw bias at work in the Segment are likely to sweep such denials aside. However, the Panel will not level allegations for which it cannot offer adequate proof.

The Panel does not find a basis to accuse those who investigated, produced, vetted or aired the Segment of having a political bias. The Panel does note, however, that on such a politically charged story, coming in the midst of a presidential campaign in which military service records had become an issue, there was a need for meticulous care to avoid any suggestion of an agenda at work. The Panel does not believe that the appropriate level of care to avoid the appearance of political motivation was used in connection with this story.


Baby X (or Should It Be Baby XY)?

I'm pleased to say that my wife is pregnant again, with another boy who is due April 30 (Ben's first-a-half birthday, as it happens). I say this chiefly to set the background for a response I've been giving recently when people ask how many children I have. "That's a controversial political question," I say.


Better Copies of Forged Documents Now Available.--

The Appendices to the CBS Report release much better copies of the forged Killian memos than CBS previously released. It is strange that in September CBS would have put up such poor copies when it had better copies available.

The new copies are Appendices 2A-2F here. For example compare the earlier CBS version of the May 4, 1972 memo with the current CBS version in the report.

Looking at the better copies, the evidence for Times New Roman as the font becomes even stronger.


Interesting Font Analysis in Appendix to CBS Report.--

There are some interesting comments by Peter Tytell in Appendix 4 to the CBS Report. He concludes that Times New Roman was the font used, and does a careful analysis that tends to exclude the IBM Composer.

Other Appendices are here.


A Different Take on 'Free the Law Reviews': Over at Crooked Timber, Micah has penned a lengthy and thoughtful response to Dan Hunter's call for law reviews to make their articles available online via sites like SSRN.

Related Posts (on one page):

  1. A Different Take on 'Free the Law Reviews':
  2. Free the Law Reviews:

Blaming the Victims?

Here's what DeLay said at a congressional prayer breakfast that seemed to heavily focus on the tsunami; from what I've been told, this is pretty much all he said:

A reading of the Gospel, in Matthew 7:21 through 27.

Not every one who says to me, "Lord, Lord," will enter the kingdom of heaven; but only the one who does the will of my Father in heaven.

Many will say to me on that day, "Lord, Lord, did we not prophesy in your name? Did we not drive out demons in your name? Did we not do mighty deeds in your name?"

Then I will declare to them solemnly, "I never knew you: depart from me, you evil doers."

Everyone who listens to these words of mine, and acts on them, will be like a wise man, who built his house on a rock:

The rain fell, the floods came, and the winds blew, and buffeted the house, but it did not collapse; it has been set solidly on rock.

And everyone who listens to these words of mine, but does not act on them, will be like a fool who built his house on sand:

The rain fell, the floods came, and the winds blew, and buffeted the house, and it collapsed and was completely ruined.

Alan Colmes on Hannity & Colmes pointed this out last week, and the DemWatch blog did the same (thanks to Justin Sadowsky for the pointer).

I certainly have nothing against Congressmen quoting the Bible as such. Still, I wonder whether this verse was particularly suited to the occasion. It sounds to me — and perhaps I'm missing something — like blaming the innocent victims: If only they listened to Jesus's words, their house (literal and metaphorical) wouldn't have collapsed. In other contexts, quoting the verse (perhaps as an allegory, for instance when a person does suffer because of his own moral error) might make perfect sense. In this context, this seems quite troubling. Either DeLay's view is that indeed the tsunami victims were injured partly because they hadn't listened to Jesus's words; or if that's not his view, then he didn't seem to choose particularly apt words for the occasion.

Of course, DeLay might have been reminding his fellow Christians of the importance of listening to Jesus's words — let this event be a lesson to us, he might be saying, about the need to rely on God for protection. But wouldn't that still be blaming the victim? After all, if Christians can learn a lesson from this, the lesson presumably would be that they could avoid disaster by doing something that the disaster victims didn't do (accepting Jesus's words).

Now I realize that some people do sincerely believe either that (1) God exacts retribution against those who don't accept Jesus's words, or (2) the world is a dangerous place, and God gives special protection (including from natural disasters, though they are presumably at least indirectly God's doing) to those who accept Jesus's words. But people who don't share this view (like me) may look askance at political leaders who do blame the innocent victims of disasters this way.

UPDATE: Several readers suggested an alternative explanation; here's a good sample, from reader Mike McBride:

As someone who spent a good 10 years teaching bible study to students, and learning to interpret Biblical passages I don't think Delay was trying to blame the victims. The parable he quotes, as with many of the parables from the Gospels, is symbolic in nature. When Jesus talks about building a house on sand he's referring back to the first part of the quoted text. What he means is that trying to "work in His name" without knowing him and having faith in him is building your house on sand. Without that faith, it will not stand the test. But putting your faith in him, and following Him is building your house with a strong foundation. It is a metaphor He uses quite often, many parables include references to the foundation of your building and standing the test of the end-times. He is not speaking of a literal house or a literal flood.

I think DeLay's point was that we should have faith in God and nothing that happens on this Earth can take away the relationship we have with God, but he might have picked a better parable, that's for certain. :)

That surely is a plausible reading of the parable in many situations. Yet when it's said following an actual flood that actually destroyed people's houses, it sounds a bit more literal. After all, the problem of the tsunami victims -- and the breakfast was focused on the tsunami -- isn't that they were "trying to 'work in His name' without knowing him and having faith in him," and therefore failed in their works. They were just trying to live their lives, and along comes this flood that kills them or washes away their homes and livelihoods. And now DeLay seems to suggest that this is because they didn't listen to Jesus's words.

On the other hand, perhaps I wasn't paying enough attention to the introductory phrases. After all, the tsunami victims weren't prophesying in God's name, or driving out demons in His name, or doing mighty deeds in His name -- that introduction does seem to refer to people who are nominally believers in God as Jews and Christians understand him, but who do not actually heed God's words (unless there's some complex theological reference here to Muslims who claim to follow the God of the Old Testament but don't adhere to Christian teachings about how that is to be done). So perhaps in that context the material is indeed targeted to those who think of themselves as Christians but don't heed Jesus's words -- as reader Davis King suggests, using "a well-known passage frequently used in religious circles as a call to action and a condemnation of hypocrisy" -- rather than to those who aren't Christians and don't follow Jesus because of that.

Related Posts (on one page):

  1. Blaming the Victims?
  2. Stupid Tsunami Quotes,

A Testimonial:

Here's an e-mail I got not long ago:

Prof. Volokh,

I ordered Academic Legal Writing over the summer and, yes, it really did increase my penis length by 3 inches . . .

Uh, whoops, that's not right. Look, it didn't even increase my penis length, no matter how many times I re-proofread it. Ah, here's the right e-mail:

Prof. Volokh,

I ordered Academic Legal Writing over the summer and read it twice just before starting my 1L year at the University of South Carolina. Our legal writing grades were posted this morning; I received an A. There is absolutely no doubt in my mind that your book is what made the difference. Thanks!

Todd Kincannon

These are the e-mails authors love to see, and to brag about. Actually, I must confess that the book isn't aimed mainly at helping people with their first-year legal writing papers. The main value that it adds — the fields in which it's most novel and nonobvious, to borrow a couple of criteria from the book itself — comes in advising people how to write student articles, how to succeed in law review write-on competitions, and how to write seminar papers. The "Writing" chapter of my book applies to a wide range of legal writing, but quite a few other legal writing books have lots of good writing tips.

Nonetheless, it sounds like my correspondent — who is not tied to me by bonds of blood, preexisting affection, or kickback — did get something useful out of the book. He probably got similar advice from the book assigned for his first-year writing class, but sometimes reading something in two places, presented in two different ways, can open one's eyes in a way that reading it in one place won't. In any case, I'm delighted that he found it helpful, and I hope that others can, too. Again, the Second Edition of the book is now available from amazon.com and from me.

Incidentally, while all authors like royalties, these surely aren't a major source of income for me. Young Benjamin won't be going too college on the royalties from this book.

My main reason for relentlessly plugging this isn't the money, but the time: I spent many months writing the book, editing it, proofreading it, and thinking about it. I put in a lot of ideas that I hope are good and useful ones. I'd like to see as many people as possible read and use those ideas. Someone once asked me whether writing is hard. Not terribly hard, I said — the really hard part is getting people to read. That's why I figure I need to spend time promoting my works (whether sold for money or distributed for free) as well as producing them. Hope I haven't gotten on my readers' nerves too much . . . .


Sunday, January 9, 2005

Wheelchairing Under the Influence?: Although I can't imagine what he was thinking, it seems that a Florida prosecutor actually brought criminal charges against a woman confined to a wheelchair for driving under the influence — for the crime of using her wheelchair after having a few drinks. The trial judge dismissed the charges. (Link: CrimLaw)

  UDPATE: Several readers pointed out the supremely weird passage at the end of the story above:
With his departure from the bench, [Judge] Hyslop will not be around to hear Christensen's other pending case. She was charged with animal cruelty after she was accused of biting the head off a python last May.
What could that be about, you wonder? Well, this story suggests that the wheelchair-bound defendant above may be a bit less sympathetic than I had first thought:
  Cynthia Christensen, 46, rolled down a Spring Hill street in her motorized wheelchair to join a group of neighbors in conversation Sunday afternoon and innocently asked to hold her friend's pet python. No one expected the request to end with a reptile beheading.
  While holding the 11/2-foot python, Christensen blurted out that she was going to bite off its head, authorities said.
  When Jennie Smith, the snake's owner, turned around moments later, she saw the reptile dangling from Christensen's hand. Its head was missing.
  Neither Smith, who bought the python at a Spring Hill pet store for $26, nor her friend Kenneth Foss, 44, saw the decapitation.
  However, Smith's boyfriend, Charles Burge Jr., 23, told authorities he was looking out the window, and the next thing he knew, Christensen had bitten off the snake's head.
We report, you decide. Thanks to Eric Berlin for the link.

  FURTHER UDPATE: Harper's has an excerpt from the police report in the alleged python beheading. Also worth reading.

The Nelson Report: In his Friday column, Paul Krugman states that "[t]he Nelson Report, a respected newsletter, reports that Mr. Bush has made it clear to his subordinates that he doesn't want to hear bad news about Iraq." As best I can tell, the relevant excerpt from "the Nelson Report" has been reprinted here. I haven't heard any more about this claim in the MSM, and my googling couldn't uncover very much about "the Nelson Report." Does anyone know anything about the credibility of "the Nelson Report" generally, or of this particular story?

  I have enabled comments, although please limit comments to the credibility of the Nelson Report generally and this particular story (rather than the general set of issues the story raises, whether true or not).
pageok
Comments

Saturday, January 8, 2005

Gingrich for President?!?

Despite my conservative and libertarian leanings, this strikes me as a supremely bad idea. Can't he just stick to writing historical fiction?


Fight Malaria with DDT:

Nicholas Kristof writes in today's NYT that it is "Time to Spray DDT." This is not the first time the Times has celebrated the public health benefits of this controversial chemical. Last year I blogged on the NYT Sunday magazine article calling for more widespread DDT use in the developing world, and Ron Bailey's Reason DDT piece. See also my earlier posts here and here.


Stupid Tsunami Quotes,

collected by Arthur Chrenkoff (thanks to InstaPundit for the pointer). Some real doozies there.


Trust and Terrorism Investigations: Over at Left2Right, Don Herzog explains that he doesn't trust the government to investigate terrorism cases because terrorism investigations are run secretly — specifically, the investigations are run by "faceless assistant special agents and magistrates" via "ex parte proceedings," using "gag rules." As best I can tell, Herzog appears to see this state of affairs as the result of a naive trust many people have in "law and order." Herzog suggests that this is backwards: we should trust the government when it operates in the open, he suggests, but we shouldn't trust it to operate in secret.

  It seems to me that this very much misses the real debate, however. The secrecy of terrorism investigations ordinarily is not justified by naive faith in government, but rather by a realistic operational understanding of how terrorism investigations work and the serious practical problems with alternatives to secrecy. The norm is secrecy not because no one is worried about government abuse, but because the potential harm of government abuse is considered outweighed by the increased effectiveness of secret investigations. In other words, the issue isn't trust alone, it's effectiveness balanced against the risk of abuse.

  At the risk of belaboring the obvious, the basic problem is that "open to the American public" also means open to Al Qaeda. There is no way of letting 300 million Americans know about how investigations are going without letting the bad guys know, too. Of course, this doesn't mean that absolute secrecy is always required, or that existing law strikes the right balance. In the current system, only the identity of the judges on the FISA court and the overall number of FISA orders requested and obtained every year are public; DOJ must give classified briefings on how the system is working more generally, but those are closed to the public. Should the system be more open? Perhaps. I am certainly open to new ideas about how we can increase effective government oversight of terrorism investigations without impeding their effectiveness. (I have a few ideas myself, actually, that I have thought of proposing in a law review article.) But I don't think it helps to imagine that terrorism investigations are secret just because people are a blind to the risk of abuse.

  Every one agrees that there is a risk of abuse when the govermment acts secretly. Everyone is worried about that. The problem is that this risk isn't the only risk out there, and the risk has to be weighed in a very practical way with other competing objectives.

  UPDATE: An e-mail from Prof. Herzog suggests that I may have misunderstood his post, and for that I apologize. Here is Herzog's response:
I quite agree on everything you say. My post was motivated by an
endless series of comments saying that the right was properly skeptical of
the state and the left had boundless faith in its competence and
honesty. I'm a "trust and verify" kind of guy, and all I wanted to say
was, when we can't verify, because we can't have publicity, let's not kid
ourselves about the price we're paying.
Agreed.

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.