Saturday, January 29, 2005

Iraqi Election News Clearinghouse,

from the Foundation for the Defense of Democracies.


I can't beat InstaPundit's summary of this story. And they'll pay to see even non-porn pictures of high-status monkeys, too. (I was about to say "nude pictures," but I guess most pictures of monkeys are nude. Or maybe they're just naked.)

New National Archives:

I had the opportunity recently to visit the renovated National Archives here in DC which recently reopened. In addition to the hall with the great documents, the Archives now has a terrific permanenent exhibit featuring the "National Archives Experience." The idea is that the archives aren't just the old documents, but rather is a trove of valuable research information, and so the purpose of the exhibit is to provide sort of a virtual research experience for tourists. So the exhibit features many of the different sorts of cool and weird things that someone could find in the archives, from video and audio of Presidents, to old Supreme Court briefs, to piles of immigration records. All very well presented. I recommend it highly the next time you are in town on a tourist trip.

I was especially pleased to see the high quality of museum because many of the same architects and designers have been retained for the museum project that I (and Eugene) are working on, through the McCormick Museum Foundation. Our museum, which will focus on American Freedoms and the First Amendment, is scheduled to open next Spring (Spring 2006).

Juan Cole, not an anti-Semite:

Just someone whose hatred of Israel in general, and more hawkish elements in Israel in particular, have driven him close to the edge of Lyndon Larouche territory. Check out this dishonest and dishonorable hatchet job* on Douglas Feith, the outgoing (Jewish) high-level Pentagon official:

Having a Likudnik as the number three man in the Pentagon is a nightmare for American national security, since Feith could never be trusted to put US interests over those of Ariel Sharon.

Feith does seem to be sympathetic to the Likud's positions, so I won't object to this use of the term "Likudnik." But "could never be trusted to put US interests over those of Ariel Sharon?" On what basis does Cole make what is essentially a charge of treason?

One is tempted to think that it's simply because Feith is Jewish, and that Cole is an anti-Semite. But Cole explicitly disclaims anti-Semitism later in his rant, and I'm inclined to believe him, or at least give him the benefit of the doubt.

Instead, reading between the lines, it seems that Cole's problem is that he thinks Ariel Sharon and associated political elements in Israel so evil, and sympathy with them so transparently immoral and stupid, that the only plausible explanation for a bright man like Feith to sympathize with Likud is out of a misguided ethnic loyalty. The very idea that a reasonable person could think that the Likud had a more realistic and practical view of the Palestinian Authority under Arafat than did more dovish forces (as the vast majority of Israelis, who have had to live with the consequences of Oslo, do), gets Cole unhinged.

Thus, Cole concludes his piece:

It is also important to underline that only a small minority of American Jews support the Likud Party or its policies, and that a majority of Jewish Americans opposed the Iraq war.* In short, the problematic nature of Feith's tenure at the Department of Defense must not be made an excuse for any kind of bigotry.

In other words, it's not Jews, or even Jewish supporters of Israel (as Cole also makes clear) that are the problem, but Jewish supporters of Likud, because the only plausible explanation for a Jew's support of Likud policies is ethnic loyalty.

Not that there is much sense to Cole's position:

It is important to note that what is objectionable about Feith is a) his playing fast and loose with the truth, producing poor intelligence analysis that has been shown to be completely false and b) his doing so on behalf of not only American nationalist aspirations but also on behalf of a non-American political party, the Likud coalition of Israel, which desired to destroy the Oslo peace process initiated by Prime Minister Yitzhak Rabin (and which was therefore on the same side of this issue as the fanatic who assassinated Rabin).

It's not at all clear to me how the U.S. invasion of Iraq, which was supported by all Jewish political parties in Israel (which all also would have much preferred the U.S. worry more about Iran's nuclear capacities and less about Iraq), has anything to do with helping the Likud per se. And think about this reasoning: Rabin's assassin was against Oslo; Likud was against Oslo; therefore, there is some sort of moral equivalency between Likud and Rabin's assassin!

To get a further idea of what unhinges Professor Cole, he states, again in reference to Feith:

There is no objection to Americans having multiple identities or love for more than one country. Someone of Serbian heritage would make a perfectly good Pentagon administrator. But you wouldn't want a vehement supporter of Slobodon Milosevic as the number three man in the Pentagon.

So, in Cole's mind, there is a direct analogy between the democratically elected leader of Israel, who, in possession of one of the mightiest armies in the world, has, at his worst, destroyed a few square blocks of Jenin while hunting down suicide murderers who were acting with impunity from that city, killing a grand total of 46 people, mostly armed gunmen, and Serbian dictator Milosevic, responsible for widescale ethnic cleansing and the deaths of hundreds of thousands.

What I'm sure gets Cole especially agitated is how successful Ariel Sharon has been. Suicide bombs in Israel are now a rarity; Yasser Arafat is gone, and his successor, who has far less political support than Arafat had, is cracking down on terrorism, belying the view expressed by the Coles of the world that Arafat was (a) not involved in promoting terrorism; and (b) couldn't stop it if he wanted to. And Israel has committed itself both to the notion of a Palestinian state, and to beginning a withdrawal from the territories.

My question: when will NPR and other outlets that treat Cole as a respected Middle Eastern commentators consign him to the lunatic fringe where he belongs? I've enabled comments[they don't seem to be working]

*E.g., "Feith has been questioned by the FBI in relation to the passing by one of his employees of confidential Pentagon documents to the American Israel Public Affairs Committee, which in turn passed them to the Israeli embassy"; first, no one has claimed Feith was involved in, or even knew about, the incident in question; second, no one has been indicted or otherwise charged in the incident, which is still under investigation; third, the investigation strikes many, including me, as politically motivated and trumped up; and fourth, do you think uber-leftist Cole would have such faith in an FBI investigation if it was undertaken against, say, an Arab American or peacenik group?

**Cole adopts the loony-left view that Israel somehow pushed the U.S. into war with Iraq, apparently through a Likud/Jewish neocon conspiracy. Again, he seems to think that the policy was so stupid and evil that there must be a conspiracy behind it (neglecting the obvious fact that, even if one accepts his view of the Iraq war, governments around the world do stupid and evil things all the time without any provocation from "Likudniks" or other nefarious conspirators). The only evidence he cites to support this outlandish view is this article, which is not only a dubious source, but doesn't actually support his point.

More Cowbell:

"I got a FE-ver, and the only prescription . . . is more cowbell!" Blue Oyster Cult was in town last night (I did not attend, I went to a disappointing Jane Monheit performance at the Kennedy Center instead) and there is a hilarious article in today's Washington Post about the great Saturday Night Live skit a few years ago about a fictional recording session of "Don't Fear the Reaper." The article has a link to the SNL website where you can watch the skit itself. If you want to go straight to the skit it is at


I got a FE-ver and the only more links!

For those who can't get enough cowbell, herewith a smattering of related links from a reader:

You know what was missing from your "more cowbell" post?

More Links!

For example, and

Rawk On, [Name]

Neither seems to have anything to do with Blue Oyster Cult or SNL (in fact, they are both a bit random), but consider this a public service for those who just can't get enough cowbell!


Yes-still more cowbell.

Friday, January 28, 2005

Tasty Universities:

My former student Kevan Choset, who's a puzzle buff, sent along this item:

What common food item is composed of two words, each the name of a very prominent University?

No need to e-mail me; the answer is below.

(Click here for the answer.)

Law Review Lara -- Little People in the Big Journals:

A reader writes, responding to Law Review Lara's offer of advice about all things law review:

I'm an aspiring law professor and hoping to publish another article this Spring and be at the "meatmarket" next Fall. I'm currently a clerk for a federal appellate court judge and have a few published works under my belt. My last article was published in a general law review, but one that is in the lower portion of the top 100 (using the [U.S. News & World Report] rankings). I'm hoping to do a bit better this time around, but am wondering if that is even realistic. So, these are my questions for you:

How high up the law journal ladder can a non-Supreme Court clerk really expect to publish?

Well, the answer is "depends on how appealing the article is." A quick search revealed that in 2003, the Yale Law Journal published an article by someone who wasn't a professor, Judge, or other legal celebrity: Daniel J. Sharfstein's The Secret History of Race in the United States, an article that seems to be about defamation lawsuits over allegations that someone is black. A few months ago, the NYU Law Review likewise published Camille Gear Rich's Performing Racial and Ethnic Identity: Discrimination by Proxy and the Future of Title VII.

Randy Kozel is having a piece on free speech and government employment published in the Northwestern Law Review; Nick Rosenkranz recently had a second piece accepted by the Harvard Law Review (this one on constitutional law and treaties), after having published another piece in the Harvard Law Review on statutory interpretation a couple of years ago. Kozel and Rosenkranz are Supreme Court clerks (future in one case, past in the other), but that probably doesn't make that huge a difference to law review editorial boards, though it might make some difference; and Sharfstein and Rich aren't Supreme Court clerks. And these are just the pieces Lara found with a few quick searches, plus her own knowledge.

Now this having been said, it's of course not easy to get a piece placed at a top journal if you aren't a professor -- but it's not easy to get a piece placed there even if you are a professor, either. The trick is to make your piece as appealing as possible, and not to give up hope (for instance, not to shortchange yourself by failing to submit to the top journals).

Which brings up the reader's next question:

What can an author do to appeal to, or even get the attention of, some of the more well-regarded journals (beyond playing the expedited review game)? For my last article, I was unsure if any of the top 50 journals were even giving my my piece a look after having over ten offers from lower ranked journals and requesting expedited review.

One top journal sent me a rejection letter seemingly before the piece could have even arrived at their door.

Lara's advice, which by sheer coincidence also appears in her friend Eugene Volokh's Academic Legal Writing:
  1. Include a cover letter that briefly pitches the article, and tries to persuade law review editors that this is an important, novel, and useful piece that will get lots of citations.

  2. Polish your article carefully before sending it out; even if law review editors don't know the subject matter well enough to spot the doctrinal flaws, they'll quickly spot the writing flaws.
  3. Especially polish the Introduction, which is the most important part of any article.
  4. Send the article as broadly as possible -- 100 journals, not 15 -- and shop it up aggressively.
And, most importantly, don't sweat the rankings too much. Most articles by most serious scholars aren't published in Top 20 general-interest journals, especially if the articles are on important but unsexy topics such as tax law, insurance law, corporate law, and so on. Law schools won't expect you to have Top 20 publications; and they'll pay much more attention to the quality and quantity of your work than to placement, which they realize depends on the fads and fancies gripping law review editors.

Related Posts (on one page):

  1. Law Review Lara Poses a Question to You:
  2. Law Review Lara Hears from Yale:
  3. Law Review Lara -- Little People in the Big Journals:
  4. Ask Law Review Lara:
Courage at Dartmouth:

A few days ago I commented on a very thoughtful article by a Dartmouth student commenting on the lack of intellectual diversity at Dartmouth and his view of the negative effect that has on his educational experience. I have received several interesting follow-up emails from current students and recent grads making similar observations (although a few have disagreed).

Nick Desai, a current Dartmouth undergrad sent me the transcript of a remarkable set of remarks given by Professor Meir Kohn of the Economics Department, introducing Daniel Pipes as an on-campus speaker at Dartmouth earlier this week. I was going to try to pluck out a few tidbits to whet your appetite, but every sentence and paragraph is powerful. So I just encourage you to read it for yourself on Nick's blog which you can find here.

OK, I will give you one little bit from the beginning:

Today, I have the honor to welcome Daniel Pipes to Dartmouth.

Before I tell you a little of his background, I would like to say a few words about the greater significance of Dr Pipes's visit here.

Because this is indeed a significant event-- a triumph over the intellectually deadening effects of political correctness.

Whether you agree or disagree with Pipes's views, I encourage to read Professor Kohn's brief remarks introducing him and his criticism. I once heard John McGinnis refer to political correctness as "shackles of the mind"--a sentiment that is reflected in Professor Kohn's thoughtful remarks.

A Few Thoughts on First-Year Law School Grades: 'Tis the season in which law school grades are announced, which means that tens of thousands of law students around the country are trying to figure out what their grades mean. The VC has a lot of law student readers, so I thought some comments about grades from the other side of the podium might be helpful. In particular, I wanted to address two questions that I suspect are on the minds of lots of law students: First, how important are first-year grades, and second, are law school grades random? Both are big topics that are hard to cover well in a blog post, but I'll at least try to touch on a few ideas and hope an incomplete answer is better than no answer at all.

  I'll start with a few thoughts on the importance of law school grades. Yes, 1L grades are important in the short term. There are so many law students and so many employers out there that employers tend to rely on proxies to to determine which law students will make the best attorneys. The most obvious proxies are an applicant's school and GPA, in part because there isn't much else to go on when the applicant is only a student. The basic problem is limited information: employers need an easy way to screen candidates down to a small enough group to interview, and the school/GPA combo is a quick and easy screen. Different employers look for different combos: some employers favor school A over school B, others B over A (generally depending on whether big shots at the firm went to school A or B). And some employers focus more on grades than others. In general, though, the school/GPA combo is used as a sorting mechanism by many legal employers hiring people out of law school.

  With that said, fall 1L exam grades are less important than most people think. This is true for a couple of reasons. First, lots of people find that their first-semester grades are pretty different from their later semester grades. It takes some students more time than others to get "the game" of how to answer a law school exam question, and when they do their grades go way up. Second, your law school GPA is much less important — and in many cases, completely irrelevant — after your first job. Once you're out of school for a bit, people care whether you are a good attorney, not your law school GPA. Third, the fact that a) judges are hiring clerks later, and b) law review at most schools is becoming less grade-based and more write-on based is tending to make 1L fall grades less important than they used to be. If law review at your school is based on a write-on competition, your grades don't matter for it; and if judges are hiring clerks based on more than their 1L grades, your 1L grades are comparatively less important than they used to be.

  Finally, it's important not to let lower-than-expected grades become a self-fulfilling prophecy. Recognize the psychological game going on here: many students expect their fall 1L grades to give them a lightning bolt of insight about their future in the legal profession. Grades don't do that, though: all they can do is measure how well you did relative to your classmates on a few 3-hour exams taken at a particular place at a particular time. Too many students think that grades are destiny, and begin to take steps to readjust their expectations to what they think is their destiny. Some students react to the sting of lower-than-expected grades by tuning out, by deciding law is dumb, and by concluding that they just aren't good at it. The problem is that it's just this kind of attitude that makes it less likely your grades will improve; by tuning out, you'll only make it more likely that you won't do as well as you should next time. My advice is to stick with it: get your old exams back, review them, and make sure you know what you did wrong. Then have faith in yourself and your smarts that you can improve your grades in the spring.

  Okay, on to the next question: Are law school grades random? Many students think so. They usually reach this conclusion after getting back their grades, and finding that they had better grades in the classes they hated and expected to fail than in the classes they loved and expected to ace. There's no rhyme or reason to these silly letters, the thinking goes; the profs must just throw them down the stairs and see where they land.

  Not quite. To be sure, different professors have different approaches when they grade. Some pore over exams for hours, others read them pretty quickly. Some use a point system that gives you credit for mentioning an argument, others focus more on how skillfully you make the arguments. Some take off points for incorrect answers, others just don't add any. Some care about how well you write, others don't. Given these differences, and the great difficulty (if not impossibility) of turning essay exams into a reliable and precise numerical score, some amount of the process will seem and in some cases be a bit random. The process requires judgment, judgment brings discretion, and discretion can be unpredictable.

  But there are two important reasons why grades may seem random when they are not. First, in law it's hard to know how much or how little you know. It's surprisingly easy to have a false sense of security, or a false sense of insecurity, about a course or an exam. Consider exams. Most law school exam questions are "issue spotters," and it's quite hard to gauge how well you answered an issue-spotter. If you miss all of the big difficult issues, you will think that the problem is easy for you and that you aced it. If you see all of the big issues, you will think that the problem is impossibly hard and consider yourself a failure for being unable to know for sure how to resolve all of the difficult questions. The more you know, the more you see the difficulties of the problem and the more you know how little you know. The same goes for courses, too: the more you understand an area of law, the harder it seems to be. Of course, the student who sees all of the hard issues in a course and on an exam and grapples with those difficulties gets a high grade; the student who misses the issues and wrongly thinks the hard questions are easy does not.

  The second reason grades may seem random when they are not is that grades are almost always curved. You are graded not on how well you did in an absolute sense, but rather on how well you did relative to everyone else in your class. This means that your grade won't necessarily correlate to how much you knew, or how well you answered the questions on the exam. If you totally clicked with crim law, but hated and never understood civ pro, you may get a higher grade in civ pro than crim because lots of other people in the class felt the same way and spent way more time mastering crim law than studying civ pro. (And as a crim law prof, I have to say, who can blame them?) Similarly, if the exam in a particular class was unusually hard, you may end up with a top grade in the course simply because you were less lost on the exam than most of your classmates. Again, perceptions of your performance won't always match the curve-induced reality.

  Anyway, I hope this helps. I have enabled comments, in case others have additional thoughts.


Thursday, January 27, 2005

Dirty War: Just watched the HBO Film Dirty War. As is to be expected with a BBC production, it is very well done. British actors are capable of conveying a sense of realism in their dramatic performances that is usually unmatched--at least in the productions that make it over here. Here is the description:
In a post-9/11 world, how do you prepare for the unthinkable? This alarming HBO Films thriller chronicles the hypothetical story of how a terrorist "dirty bomb" attack might be planned and executed in London despite the best efforts of law enforcement--as well as how devastating such a strike would be. Warned of the possibility of a radioactive-weapons attack, members of Scotland Yard--including an Islamic undercover detective and several high-ranking terrorism experts--desperately try to find the perpetrators before they can construct and detonate their dirty work. But when the worst happens in the financial heart of London, the city's inadequate emergency-services are put to an immediate test...with disturbing results.
Highly recommended. Check out future show times here (enter "Dirty War" into the search box).

And speaking of highly recommended, HBO is nearly half way through rerunning the first season of Deadwood, the best western drama ever televised. For my original review of the show click here. If you can stand the profanities, the dialogue, plot, and performances are riveting. Check out show times here.

Update: A reader writes:

For those of us without HBO, PBS is scheduled to air Dirty War on Wednesday, Feb. 23 at 9:00 p.m. (check local listings). The PBS presentation will be followed by a half-hour panel discussion with experts in homeland security, emergency preparedness, nuclear weapons and terrorism. BTW, I understand they will be editing a nude scene that appears in the original.
(The brief nude scene is of women being decontaminated in a shower.)

Related Posts (on one page):

  1. Dirty War:
  2. Deadwood:
Speaking of Johnny Carson . . .

as I was a while back, there's a wonderful little essay by Tim Whitaker in the Philadelphia Weekly that hits the nail on the head:

"Today everybody tries to be a hipster, which is why there aren't any. . . . It's become a designation without import. Trying to be a hipster today requires acts of exclusion, which may be why the line to get in is so short.

"Carson didn't exclude--not ever--which is why millions watched, and why we liked him, literati and mill workers alike. We didn't know or care if he believed in God or Darwin, voted with the red-state views he was born into or the blue-state beliefs he was surrounded by, liked Scotch when chilling at his Malibu house or preferred to blow a joint watching the waves crash against the rocks from his perch on the bluff. That was his business. It was a pact we'd bought into long ago."


Software as Snoop:

In the news today:

"MPAA FILES NEW FILM SHARE SUITS, RELEASES DETECTION SOFTWARE: The MPAA has filed a second round of lawsuits against online movie-swappers. The MPAA also made available a new free software tool so parents can scan their computers for file-swapping programs and for movie or music files, which may be copyrighted."

That's an interesting new development, I think: Giving away software that "parents" can use to scan for music files . . . Watch out, MPAA! If some of those parents use this software not to snoop on their kids but to identify those files they want to copy, the MPAA might be liable for contributory copyright infringement!

Profanity on Bumper Stickers:

The Rocky Mountain News reports:

Denver police Sgt. Michael Karasek will be disciplined for threatening to arrest a woman [Shasta Bates] for displaying on her truck a ["Fuck Bush" bumper sticker] . . . .

Bates, three UPS employees and a Rocky Mountain News reporter who happened to be there all say that the officer threatened to arrest the woman if she didn't remove the bumper sticker from her truck.

It turns out that there's no applicable state law prohibiting profanity on bumper stickers. Even if there was such a law, though, it would be unconstitutional. In 1971, the Supreme Court held in Cohen v. California that public profanity -- at least not addressed to a particular listener or viewer -- was constitutionally protected; that case involved a "Fuck the Draft" jacket, but a bumper sticker is the same. And in fact the Georgia Supreme Court and, I'm told, an Arkansas court, have specifically applied Cohen to bumper stickers.

Juan Cole on C-Span: Blogger Juan Cole is on C-Span's Washington Journal right now talking about Iraqi elections, and to a lesser extent, his blog. You can view his appearance live here, and later today it will be available here.

Wednesday, January 26, 2005

Institute for Justice: Tony Mauro has written this interesting article on the Institute for Justice in the latest issue of The American Lawyer.

I was forwarded a remarkable column written by Dan Knecht, a senior at my alma mater Dartmouth and a columnist for The Dartmouth, the traditional campus newspaper. Entitled "The Monolith on the Hill," Knecht observes:

In my almost four years at Dartmouth, I have encountered more than a handful of dyed-in-the-wool liberals. I have yet to meet one conservative professor.

I don't know Knecht or his politics, but I think the valuable point of the column is simply to illustrate the harm to students and the educational process from a lack of diversity of intellectual opinion on campus.

When I was a Dartmouth students, conservatives were on the threatened species list. There were a few, including notables such as Roger Masters, Vincent Starzinger, Colin Campbell, and Jeffrey Hart. This is an eclectic group--Straussian, Traditionalist, Libertarian, Paleocon. And there weren't many of them, but at least you knew where you could go to get some ideas that might be different from everything else on campus. But every one of these guys is now retired, and from a review of Dartmouth's faculty today it appears that conservatives are now on the endangered species list. There are a few, but if Knecht is right, they remain pretty well undercover in dealing with the students.

Casual observation about Dartmouth thus seems consistent with Dan Klein's findings about academia in general and elite universities specifically (Berkeley and Stanford). Klein finds that not only are conservatives and libertarians dramatically outnumbered in academia, but that among younger professors, conservative thinkers are virtually nonexistent. Like Dartmouth, the handful of conservatives on the faculty continue to retire, never to be replaced by like-minded successors.

Let me make very clear--I am not calling for affirmative action for conservative professors or some such thing (so save your emails about what a hypocrite I am). All I am observing is that students such as Dan Knecht are increasingly becoming aware that they are being cheated by spending tens of thousands dollars per year and not getting a true liberal education.


A number of students and alumin of various schools have written me this morning to remind me that Dartmouth and "elite" schools are not unique in lacking intellectual diversity, which seems readily apparent to me from Dan Klein's study of the public policy views of academics nationwide. This particular column just caught my eye because it came from my alma mater.

Related Posts (on one page):

  1. Roll Tide!
  2. Intellectual Orthodoxy at Berkeley and Stanford:
  3. Courage at Dartmouth:

Funny that just last week I was talking to a student about the peculiar little case of Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983). The caption tells the story: a portable toilet company was selling "Here's Johnny" toilets (advertising slogan: "The World's Foremost Commodian." I guess Carson didn't think that was funny, though I do). Carson sued (and ultimately prevailed) on grounds that this violated his "right to publicity."

I was a big Carson fan in my day. I'd come home from elementary school and watch "Who Do You Trust?," his first network show (ABC, if I remember correctly), pretty much every afternoon; I had a serious game show addiction as a child, from which, fortunately, I've recovered. And in high school, I'd watch the first half hour or so of the Tonight Show pretty much every night. He was an odd kind of genius; he was rarely hysterically funny, hardly in the same league belly-laugh-wise as the great comics; but somehow he was the most watchable of all. As a friend of mine put it: forget "Here's Johnny," what he should've trademarked was his smile. It was, I think, an important part of his magic it was without question one of the great smiles ever, totally lighting up his face, seemingly genuine, and it just made you feel good. RIP.


This month's issue of the journal Regulation, also contains another article by yours trule (co-authored with Jerry Ellig and Asheesh Agarwal) on the policy considerations involved in the Supreme Court cases involving the direct shipment of wine. The article draws on empirical and other evidence to describe the benefits to consumers from direct wine shipment and the weakness of the policy arguments for protectionism. (It also has a funny graphic that the editor's added in). The article can be found on the web in the "Mercatus Reports" Section of Regulation, as one of my co-authors is a Senior Research Fellow at Mercatus. You can find the article , then scroll down to pages 10-11 of the magazine (pages 7-8 of the pdf file) to find our short article.

We also point out in our conclusion, this case has serious implications for e-commerce in all products, from to LLBean, in that either of the two routes to affirmance by the Supreme Court are plagued with difficulties.

First, the court could hold that the laws are nondiscriminatory because of the availability of a "physical presence" requirement. This would be most disastrous of all, as it would imply that a state could require, for instance, to establish a physical presence in the state in order to sell books there so that the state could effectively enforce its consumer protection laws.

Second, the court could hold that these laws are discriminatory, but nevertheless saved by the 21st Amendment. Thought perhaps not disastrous on the same scale, this justification would be troubling as well, in that it would signal a retreat from the Court's traditional commitment to the internal free flow of goods. Perhaps equally troubling, if the Court were to uphold this discrimination, in this case it would be doing so on the basis of a virtual absence of any evidence to justify the discrimination. From the beginning, the Court has insisted that discriminatory bans to commerce be permitted only after a strong evidentiary showing that the discrimination is the only way to address the claimed problem and that it is the least-restrictive means of doing so. Here, there is simply no evidence to support the discriminatory ban, our article describes the evidence on the other side.

Tuesday, January 25, 2005


will be forthcoming in the Green Bag. Co-authored by myself and my former colleague Asheesh Agarwal, "The Original Meaning of the 21st Amendment." For those who just can't wait, you can get it online at the Green Bag website. This is a shorter and more formal article version of some of the points I made this fall in my "Wine Wars" series of posts. I want to express sincere thanks to my George Mason colleague Ross Davies and the remarkable editors at the Green Bag for their wonderful editing process.

Although Justice O'Connor is a pivotal player in the Supreme Court wine direct shipment cases, it is nonetheless presumably just a coincidence that "the annotated Justice O'Connor bobblehead doll" is also featured in this issues of the Green Bag.

Ask Law Review Lara:

Over the years, I've thought and written quite a bit about law reviews, from the perspective of academic authors, student authors, editors, cite-checkers, would-be members, and more. So I thought it might be helpful to revive the Ask Law Review Lara column.

If you have questions — again, whether you're a student, a lawyer, or professor, whether you're on law review or want to get on law review, or whatever else — just pass them along to me at volokh at I can't be sure that I can answer all your questions, but I'd like to give them a shot.

I hope to answer most questions on-blog, though I'll be happy to exclude your name and the name of your school or journal. (That will be the default, unless you ask me otherwise.) I may also post some of the answers on the support page for my Academic Legal Writing book.

Rumsfeld Arrested?

Apparently this prospect prompted the Secretary of Defense to cancel a planned trip to Germany, according to this ACSBlog post. Apparently the Center for Constitutional Rights filed a complaint against Rumsfeld and other DoD officials over the abuse of detainees at Abu Gharib and elsewhere. The Left Coaster has more here.

Koufax Awards: Eric Muller's series of posts questioning Michelle Malkin's "In Defense of Internment" — many of which appeared here at the VC when Eric was guest-blogging — has been nominated for a Koufax award. Michael Froomkin has also been nominated for his series of posts on torture memos. Congrats to both Eric and Michael for the nominations. You can vote here.

Monday, January 24, 2005

Nightline on Extreme Associates: Unless a major news story breaks that pushes it off the schedule, I will be on ABC's Nightline tonight discussing the reasoning and implications of last Friday's decision in United States v. Extreme Associates, which I blogged about here on Friday. I may only be on for a few seconds — you never really know with TV — but it sounds like they are planning an interesting show.

  UDPATE: Yup, I was on for only a few seconds. I thought the intro segment explaining the legal issues was pretty well done. The interview segment was a bit unusual, though, as the defendant himself (rather than his attorney) was one of the two guests. I suppose the defense team's thinking here was that putting the defendant in front of the camera humanizes him; viewers see that the government indicted a real person, and someone who doesn't feel he has anything to hide. Still, it's a bit odd to hear a pornographer try to explain Justice Scalia's dissent in Lawrence v. Texas.

  ANOTHER UDPATE: Chris Geidner has thoughts on the show, too.

I thought readers might be interested in some correspondence that has followed up on my earlier post on Project Implicit. One person wrote (edited):

Perhaps your knee-jerk reaction was not to the Implicit Association Test but to the possibility that you are not always consciously in control of your beliefs and behaviors. If that is the case, then I am sorry to inform you that decades of research in neuroscience and psychology demonstrates that you are, in fact, in control of very little of your mental life. In fact, you're not even aware of most of it, and that includes your goals, motivations, and attitudes.

Now if this an accurate statement of the importance of subconscious reasoning (other correspondents did not state the position so strongly but made the same general points), it would seem to raise some pretty thorny questions. In particular, if this is true, it seems to necessarily imply that the primary reason why a person believes in the finding of the Implicit Association Test and the overwhelming importance of subconscious reasoning is primarily because there is something in that particular person's subconscious that makes them believe this theory as opposed to other competing theories. And, it would seem to follow, the reason why I am skeptical of some of the theory's more extravagant claims about what it can explain regarding personal beliefs and behaviors (such as my preference for Bill versus Hillary Clinton) is primarily because of something in my subconscious as well. In short, if the theory itself is correct, then one's belief about the validity of the theory itself must be the result of the same subconscious reasoning processes that it purports to explain. And if it is the case that our views on the usefulness of Project Implicit are little more than a reflection of our subconscious, wouldn't it be pointless to have a conversation trying to persuade me to use my conscious mind to revise my supposed subconsciously-biased negative opinion of Project Implicit itself? The fact that the correspondent took the time to write to me (which I always appreciate, by the way, although I would prefer if you would refrain from ad hominem attacks in your emails) suggests that she (subconsciously perhaps?) recognizes the limitations of her own theory.

As I said earlier, it seems much more plausible to me that there are some of our views and opinions that are a reflection of subconscious and others that overwhelmingly reflect the influence of our conscious minds and that we don't want to try to claim too much for either. Bill versus Hillary and Church versus State (the two tests I took) seem to me to fall much more on the conscious side of the line, and one suspects that the reason those modules are in there is so that Project Implicit can try to demonstrate just how broad its claims can reach. And to try get from subconscious attitudes to an explanation of many aspects of behavior and eventually large-scale social policy recommendations (as implied by the article in the Washington Post) seems like an extraordinary stretch to me.

Perhaps the architects of the Implicit Association Test should develop a new module that would be able to predict individual's views on the usefulness of the Implicit Association Test. If they find that individual's beliefs about the usefulness and explanatory power of the test itself are primarily a reflection of individual subconscious attitudes, then that would be some excellent supportive evidence for their theory. On the other hand, I wouldn't expect to see this test being run anytime soon.


Replies to this post and my original update can be found here and here for anyone who is interested. agrees with me and concludes: "If the Implicit Project can be called science, then it is junk science. Not only is the methodology ridiculous, but the underlying premise behind each test I took was filled with biases that cannot be empirically proven." Another interesting question dealing with the falsifiability of the hypothesis is posed here.

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Cato Supreme Court Review: This is old news for some, but it was new to me: the Cato Supreme Court Review has posted essays by leading scholars analyzing key cases from the October 2003 Term available on the Cato website. I just read a few of the essays, and they were quite good. The same page has the essays from the last two Term-in-review issues, too. Check it out here.
Dog Sniff Precedent Reaffirmed: This morning the Supreme Court reaffirmed 6-2 its 1983 precedent, United States v. Place, which had held that a dog sniff for narcotics is not a Fourth Amendment "search." The mercifully short opinion for the Court by Justice Stevens relied heavily on Stevens' own 1984 opinion, United States v. Jacobsen, which had held that the police do not conduct a "search" when they perform narcotics tests because narcotics are illegal contraband; interfering with a person's drugs does not violate their Fourth Amendment rights because Fourth Amendment rights in illegal narcotics cannot be constitutionally "reasonable." While this may seem a bit odd at first, it actually has substantial roots in existing law: as I argued in a recent article, a "reasonable expectation of privacy" is not the same as the expectation of privacy of a reasonable person, but rather is a term of art keyed heavily to property law. Because a person cannot have a property right in narcotics, the thinking goes (whether rightly or wrongly), interfering with his drugs does not infringe a property right and therefore does not constitute a search.

  One interesting aspect of today's opinion is that Justice Stevens had to distinguish the Court's 2001 thermal imaging case, Kyllo v. United States, in which Stevens had dissented. Kyllo held (more or less) that it is a search for the police to point an infrared thermal imaging device at the exterior wall of a private home. To reconcile the holding of Place with Kyllo, Stevens reasoned that the key was the nature of the information that surveillance method yielded. The thermal imaging device was used to obtain intimate details in the home, whereas the drug-sniffing dog only indicated the presence or non-presence of illegal narcotics. Based on Stevens' dissent in Kyllo, I wonder if Stevens would have preferred in a perfect world to base the opinion not on the nature of the information obtained, but rather on the details of how the information was collected. In particular, dogs can sniff narcotics from the exterior of a car because the bags holding the narcotics are not perfectly sealed; some of the drugs leak out into the open, and the dogs can smell that. In the language of Stevens' Kyllo dissent, this was "off the wall" surveillance, not "through the wall" surveillance. But Stevens had no room to make this argument after Kyllo, so he had to focus on the nature of the information obtained rather than the way the search was conducted. This was more or less the rationale of Place, an O'Connor opinion Stevens joined, but the Place analysis was so brief and unilluminating that it was sort of a result in search of a rationale. The opinion today more fully reconciles the existing cases on use of technologies to detect what the human senses cannot (if you can consider Fido a technology), further cementing the idea of focusing on the nature of the information obtained rather than the way the surveillance works.

  In my view, this is a potentially troubling development. The Fourth Amendment traditionally has focused on how the surveillance occurred, rather than the nature of the information obtained. Under the traditional approach, the government could not invade your property without a warrant no matter what information it wished to obtain. Under the rationale followed by the Court today, the government may be free to invade your property so long as they only obtain "non private" information. This is particularly troubling in the context of computer searches and seizures. Can the police send a computer virus to your computer that searches your computer for obscene images, or images of child pornography, and then reports back to the police whether such images are on your computer — all without probable cause, or even any suspicion at all? The traditional answer would have been no: the police cannot enter your private property to search even for non-private stuff. But thanks to the increasing focus on the nature of the information rather than how the information is obtained, it's no longer so clear.

  Today's opinion is Illinios v. Caballes, No. 03-923.

Sunday, January 23, 2005

Gender and Brain Function: The New York Times has an interesting report on what scentists who study gender and brain function have to say about the differences between the brains of men and women:
  When Lawrence H. Summers, the president of Harvard, suggested this month that one factor in women's lagging progress in science and mathematics might be innate differences between the sexes, he slapped a bit of brimstone into a debate that has simmered for decades. And though his comments elicited so many fierce reactions that he quickly apologized, many were left to wonder: Did he have a point?
  Has science found compelling evidence of inherent sex disparities in the relevant skills, or perhaps in the drive to succeed at all costs, that could help account for the persistent paucity of women in science generally, and at the upper tiers of the profession in particular?
  Researchers who have explored the subject of sex differences from every conceivable angle and organ say that yes, there are a host of discrepancies between men and women - in their average scores on tests of quantitative skills, in their attitudes toward math and science, in the architecture of their brains, in the way they metabolize medications, including those that affect the brain.
On an unrelated note, all this talk of brains reminds me of the greatest comic movie ever made.

I was born in Pittsburgh and I am a lifelong Steelers fan. Now my wife thinks I'm insane, just because I've started calling my two dogs "Bus" and "Duce." My older, larger yellow laborador retriever is the Bus (Jerome Bettis), of course, because his size and because he is yellow like a school bus. My chocolate lab puppy is "Duce" because in addition to being smaller in size and younger, she is also the "Number 2" dog (get it, "Duce" like "deuce" or #2). Seems perfectly logical to me, so I don't know why my wife thinks it is so crazy. I get the impression that she thinks I might be a bit overexcited about the game.

In a similar vein, I have been looking everywhere on line to try find the hilarious NFL "Time to Get Your Story Straight" commercial. This is the one that starts off with the text "Four Months Ago..." and then has all the guys making their various bad predictions (my favorite--"Ricky Williams has only one thing on his mind, and that's winning football games"). I couldn't find it on when I looked recently and haven't been able to find it anywhere, so if anyone else has found it, please shoot me the link if you would. All I could find on is its lame upcoming Super Bowl commercial with various guys singing "Tomorrow," which I didn't find very amusing.

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  1. Go Swanny!

A lot of stupid academic research goes on every day. Today's Washington Post magazine features one of the dumbest I have come across in some time--Project Implicit. According to the Project Implicit website its purpose is as follows:

It is well known that people don't always 'speak their minds', and it is suspected that people don't always 'know their minds'. Understanding such divergences is important to scientific psychology.

This web site presents a method that demonstrates the conscious-unconscious divergences much more convincingly than has been possible with previous methods. This new method is called the Implicit Association Test, or IAT for short.

I took the test a few times. The first asked me to identify whether I preferred "Bill Clinton" or "Hillary Clinton", the second asked me whether I preferred "Church" or "State". I told the test that I didn't really like Bill or Hillary very much, but that I had a slight preference for Bill; and the same with Church versus State. It then led me through 10 minutes of various rapid association responses at which point it told me--drumroll--that I had a slight preference for Bill over Hillary and Church over State. The questions were focused on such things as whether I liked structure, rules, and predictability in my life. From what I can tell, these implicit associations supposedly drive my conclusions about public policy issues.

Is it really plausible that my impression of Bill and Hillary is driven more by whether I have a messy desk than my personal perception that Bill Clinton is a liar and Hillary Clinton is a megalomaniac and opportunist? Or, that my perception is that Bill's ideological views are only somewhat liberal, and Hillary's are very liberal, and therefore Bill's views are closer to mine than Hillary's? From what I can tell, this is about as scientific and insightful as a horoscope or palm reading. Needless to say, the Washington Post loves the research because it purports to demonstrate that deep down inside we are all racists. This may or may not be true, but I certainly didn't find anything in Project Implicit that would shed meaningful light on that question.

And, of course, none of this says anything at all about whether it actually explains how people act, or the extent to which our overall behavior and attitudes are shaped by these factors versus learned and conscious behaviors. I have little question that Project Implicit could demonstrate that I have a preference for cheesecake versus green beans, yet I eat green beans with dinner twice a week and cheesecake once a month.

Incidentally, for all our libertarian readers out there, you will be happy to know that I had to cancel one round of tests because it insisted that the "correct" association for "anarchy" was "chaos" rather than "order" and since I refused to give in it wouldn't let me proceed.


It appears that some commentators have misunderstood my criticism of project implicit (others share my assessment). Some have said that I am denying that part of our cognition occurs at a subconscious level that we cannot control (see here and here). That is not a correct interpretation of what I said in my original post. In fact, I agree that much of our cognition goes on beneath our subconscious awareness, so I am certainly not mocking that idea. Rather, I am in fact criticizing Project Implicit as a methodology for distilling unconscious attitudes--a concern which, ironically, my critics share. Second, while again I agree with the proposition that much of our thinking goes on at a subconscious level, it is a heckuva a long way from that observation to suggesting that may be the reason why I don't dislike Bill Clinton as much as I dislike Hillary Clinton. Like evolutionary psychology (which I have endorsed as being potentially very useful, see also my comments on Lawrence Summers here), I think the study of cognition and unconscious reasoning is very useful and explains much. I just think that it is important in studying this, as with everything else, that we remain aware of the limitations of the work and, in particular, make sure that the conclusions and implications we draw are actually supported by what the experiments are actually calibrated to test. Clearly many of my beliefs and actions are motivated primarily by my subconscious, equally clearly to me many of my other beliefs and actions are motivated primarily by my conscious, and most is in-between. I recognize that my love for my family or the Pittsburgh Steelers is heavily rooted in my subconscious mind; but I also find it much more likely that my slight preference for Bill versus Hillary Clinton has a lot more to do with my conscious. Similarly, I believe that evolutionary psychology can tell us a lot about why we prefer candy to broccoli, but tells us little about why we may prefer Coke to Pepsi.

More fundamentally, I think the point here is that at some level all of us have an obligation to use our critical thinking and common sense to determine whether given research makes sense and whether it can support the conclusions that some will want to attribute to it. I have recently commented on some of the problems that behavioral law & economics has run into, for instance, by failing to meet this test. And given that funding for university research is a scarce economic good, and that we all support it with our tax dollars and tuition payments, it behooves us to direct societal resources to useful research rather than the opposite. Indeed, there are American university faculty who are still blieve in a Marxian "scientific" view of history, who will insist that all of our views are shaped at a subconscious level by class bias and that there is a scientific unfolding of history and will be happy to provide you with "evidence" of both. Prior to that, social Darwinists purported to demonstrate that Darwinian evolution described and justified a particular social order. Do you have to be an expert to reject the hypothesis that there is a Marxian science to history or social Darwinism? Do I have to be an expert in the "science" of horoscope reading in order to reject the proposition that "the stars" are in control of my life? I think not. I think that the lesson is that we should draw as citizens and taxpayers is that we all would have all been better off if we had had raised questions about these arguments and their limits from the outset, rather than tenuring these theorists and inviting them to teach their theories to generations of college undergraduates.

So the bottom line is that I encourage each of you to visit the Project Implicit web site and take the test and make up your own mind. As "In the Agora" states commenting on my original post, "My point ... is to highlight how important it is to cast a discerning eye on everything you find in the news, even if it comes from professors working under the auspices of 'academic research.'" I couldn't say it better.