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Saturday, June 4, 2005

Missing Persons and Media Bias: Every missing persons report is a potential tragedy. You never know what happened to the person reported missing, and often missing persons investigations uncover terrible crimes. Given this, I think it is perfectly fair for the press to cover such reports as important stories. There is also a chance that press coverage can lead to the person being found, which creates a special role for press coverage.

  At the same time, I am often amazed at how brazen the MSM can be in selecting what types of missing persons reports it selects as leading stories, especially on websites and TV. The missing person is almost always young; always a woman; always white; and always attractive. Right now the CNN.com home page is leading with this missing persons story, featuring (of course) a photograph of the attractive young woman front and center:


  I can't stress enough that I am not saying this story isn't newsworthy. Every missing persons report is potentially newsworthy. Still, a person who followed the MSM uncritically might think that the only missing people in America are young attractive white women.

Germany, the Death Penalty, and the U.S. Constitution: Charles Lane has an interesting piece in today's Washington Post about the history of the death penalty in Germany. According to Lane, the German law abolishing the death penalty in 1949 was passed at a time when 77% of German citizens (according to one poll) were in favor of the death penalty for ordinary crimes. The law passed not out of a conviction that the death penalty was inhumane, but rather as an effort to prevent the execution of Nazi leaders by the American and British postwar authorities. According to Lane:
[The 1949 law] was in fact the brainchild of a right-wing politician who sympathized with convicted Nazi war criminals — and sought to prevent their execution by British and American occupation authorities. Far from intending to repudiate the barbarism of Hitler, the author of [the German anti-death penalty law] wanted to make a statement about the supposed excesses of Allied victors' justice.
  Lane's piece is a bit odd in that it overlooks public opinion in Germany today, which I understand is in fact strongly opposed to capital punishment. So path-dependency problems aside, it seems highly likely that German law would have abolished the death penalty eventually even if it hadn't done so in 1949.

  Still, I think Lane's story raises some interesting questions for those who believe that foreign law and practice is relevant to the proper interpretation of the United States Constitution. As far as I know — and please correct me if I'm wrong — those in favor of considering foreign law and practice generally do not advocate looking at the reason or circumstance of the forces that led to the foreign law's adoption. What matters is that the law is on the books, not how or why it got there. If I'm right about that, does that mean that the efforts by pro-Nazi sympathizers in Germany to stop U.S. authorities from executing Nazi war criminals could in theory shape the meaning of the U.S. Constitution?

  It's an interesting question, I think, because my sense is that proponents of citing or relying on foreign law in U.S. constitutional decisionmaking usually assume that foreign law reflects a resolution of the same issues the Supreme Court is confronting. Foreign law is a relevant testing ground because the issues and tensions are assumed to be similar. But what if foreign law is passed for a quite different reason, such as seems to be the case with Germany and the death penalty? Is it equally relevant? Less relevant? Is the U.S. Supreme Court supposed to look to the history of each country's law and determine whether it was enacted for reasons similar to those explored in the constitutional arguments before the Court before considering it as relevant or even just citing it? Or is the Court supposed to look not to why the law was passed, but rather to recent opinion polls in those foreign countries that might suggest why people in those foreign countries still support the law, or even if they do?

  I'd be very interested to hear from proponents of citing or relying on foreign law about the answers to these questions. I have enabled comments. As always, civil and respectful comments only.
35 Comments

Could College Students Know Something Bloggers Don't?

Bill Diamond (Huffington Post) asks:

But given all the talk about the possible reinstatement of the draft, why aren't we hearing more from the nation’s campuses? Is there resistance brewing and it's just not getting reported? Or is it, as I think Jim is suggesting, that college-aged students have become so narcotized by our entertainment-obsessed culture that they don’t see what may be headed their way?

I respond.


Geof Stone on Challenges Facing Liberalism:

An interesting and candid item at the Huffington Post.


Media Miscoverage of the Guantanamo Gulag, Gay Rights, and Iranian Nukes:

Those are topics of my latest media analysis column for the Rocky Mountain News. Once you're at the News website, check out the first article in a major five-part series on Ward Churchill, presenting extensive new evidence of academic fraud by Churchill.


Friday, June 3, 2005

Political Activist (Bad) or Journalist (Good)?

The Director of the Institute for Political Democracy & the Internet, "the research arm of the Graduate School of Political Management at George Washington University," filed a comment with the FEC, urging regulations of certain speech by bloggers. Here's part of what the comment said:

Some bloggers want it both ways . . . . They want to preserve their rights as political activists, donors and even fundraisers — activities regulated by campaign finance laws — yet at the same time enjoy the broad exemption from the campaign finance laws afforded to traditional journalists. . . . For thirty years the campaign finance laws have made a fundamental distinction between political activists and the news media, in order to protect a free press while at the same time limiting the influence of big money on federal elections.

Until recently, the distinction between the news media and rest of us was clear and uncontroversial. Bloggers blur that distinction. If anyone can publish a blog, and if bloggers are treated as journalists, then we can all become journalists. If millions of “citizen journalists,” as bloggers like to call themselves, are given the rights and privileges of the news media, two consequences will follow.

One is that a newly-expanded media exemption encompassing millions of bloggers will create a new loophole that will eviscerate the contribution and expenditure limits of the campaign finance law. The other consequence is that the privileged status the press [including the privilege to protect the anonymity of sources] currently enjoys will diminish . . . .

If the statute is to survive, two principles must emerge . First, the class of bloggers entitled to be treated as “news media” — and thus exempt from most campaign finance laws — must be limited. Secondly, the FEC must make clear that bloggers cannot wear two hats simultaneously: that of journalist and that of partisan activist. . . .

Digby (Hullabaloo) responds:

Dear FEC,

I write to you today to request your kind advisory as to whether this pamphlet defines me as an ACTIVIST or a JOURNALIST. . . .

Sincerely,

Thomas Paine

Read the post for Mr. Paine's entire letter.


Thoughts on Group Blogging: Gordon Smith offers some notable thoughts on the synergies of group blogs over at The Conglomerate. An excerpt of particular relevance to the VC:
  For me the most enjoyable group blogs (Volokh Conspiracy, Marginal Revolution, and Crooked Timber spring to mind) are blogs with a consistent voice. I do not intend to suggest that all of the bloggers must hold the same views on every topic, but rather that they are united in style (e.g., the blog doesn't have one blogger doing all goofy posts and another writing serious tome-posts) and issue-sympathetic (that is, they like to write about similar issues ... the blog has a theme).
  Going a bit beyond Gordon's point, I think the question of viewpoint consistency at a group blog is an interesting one. In my experience, many readers expect it. If co-blogger A expresses a view, and co-blogger B agrees, I think there is a tendency among at least some readers to assume co-blogger C has that same view even if he or she doesn't express an opinion.

  If I'm right about that, it can be a downside to group-blogging. Or at least a downside when you have views significantly different on some issues from those of your co-bloggers. Like all writers, bloggers work on establishing a voice. If how readers hear your voice is influenced by the posts of your co-bloggers, however, then either you have to express your disagreement with your co-bloggers on the blog, which is no fun, or else you will have your own posts construed in light of the views of your co-bloggers with whom you might strongly disagree. Either way, the considerable benefits of group-blogging are tempered a bit by a slight loss of control.

Zimbabwe Democide Facilitated by Victim Disarmament:

StrategyPage, the world's best public website for military analysis, warns that "Zimbabwe is about ready to explode in a nightmare mass murder." StrategyPage calls the killings "democide"--a word invented by University of Hawaii political scientist R.J. Rummel for mass killings. ("Genocide," a word invented during World War II, more narrowly refers to mass killings aimed a particular ethnic or religious group. Much of the Pol Pot killings in Cambodia would technically be "democide" rather than "genocide", since the Khmer Rouge killed many Cambodians without regard to their ethnicity.)

As with many previous democides, the democide in Zimbabwe is being perpetrated with a government-induced famine, in which food aid is directed only to government loyalists, and the "black market" in food is suppressed.

StrategyPage explains why the Mugabe tyranny is able to perpetrate democide: "There hasn’t been any revolution so far because the potential rebels cannot get guns. No one is willing to arm the dissatisfied majority....The government seems determined to starve its enemies to death, secure in the knowledge that the victims are unarmed, and the government forces have lots of guns."

Back in 2001, Paul Gallant, Joanne Eisen, and I warned that Zimbabwe was "ripe for genocide." We also detailed how the Mugabe tyranny has used gun licensing and registration laws, inherited from British colonial times, to disarm the people of Zimbabwe, leaving them helpless against government-controlled gangs of young thugs.

In a 2002 article in the Rocky Mountain News, I noted the American media's extremely inadequate coverage of Zimbabwe, including the failure to report on an explicit statement by the ruling party (Zanu-PF) about the advantage of getting rid of half of the country's population.

The international community's response to the highly visible democide in Zimbabwe has been even more ineffectual and tepid than the response to the highly visible genocide in Darfur, Sudan. One reason is that the Mugabe dictatorship retains the support of South African President Mbeki. Likewise, the dictators who run most of subsaharan Africa strongly oppose creating a precedent of international intervention against mass-murdering African tyrants.

But if the people of Zimbabwe had not been disarmed under the pretext of "gun safety", they would be able to help themselves. A revolution would not be guaranteed to succeed, but fighting to live is much better than passively starving to death.

After the Holocaust, the international community said "Never again." Yet in Zimbabwe, as in so many other nations in the last 60 years, the combination of citizen disarmament and international indifference has made democide a reality again and again and again.

An excellent daily news source about Zimbabwe is the ZWNews website, which also offers a free daily e-mail update. The courageous Zimbabwe Independent is still publishing a web edition.


Thursday, June 2, 2005

VC Happy Hour on June 9th at Karma Lounge: The First Official Volokh Conspiracy Happy Hour will be held next Thursday, June 9th, from 6:30 pm to 8:30 pm, and we now have a place: Karma Lounge, 1919 Eye Street, NW in DC, at the corner of 19th and I Street. Karma is a new place about a block from the Farragut West metro. I hope to see our DC-area readers there next week.

Technologies That Facilitate Copyright Infringement, the Sony Decision, and Justice Blackmun:

Bill Patry has a very interesting post about how the Sony case ended up the way it did, based on information in Justice Thurgood Marshall's papers; see also this follow-up.


Abusive Anti-gun Lawsuit Rejected by Florida Appeals Court:

Yesterday the Florida Fourth District Court of Appeals affirmed the trial court's entry of a judgement against the plaintiff in Grunow v. Valor. The case involved a lawsuit against the wholesaler of a small, old handgun which was stolen by a 13-year-old and used to murder a public school teacher. The plaintiff (the teacher's widow) had argued that the wholesaler was liable because the gun was defective, although, as I detailed in a 2002 article, the plaintiff's theory would mean that almost all handguns are "defective." After a jury found the wholesaler 5% liable for the homicide, the trial court entered a judgement n.o.v., because the jury verdict was inconsistent. The intermediate court of appeals ruled that the verdict was not inconsistent, but that judgement against the plaintiff was proper, because well-established Florida precedent made it clear that there was no theory of negligence by which the wholesaler was liable. The manufacturer, Raven Arms, was not sued, because it is out of business.


Lombardi and Sportsmanship:

In the midst of an otherwise insightful column on the demise of sportsmanship, Burt Prelutsky has this clunker:

Those days [of Bobby Jones and good sportsmanship] seem very long ago. Since then, we've seen the canonization of Vince Lombardi, whose inane comment that "Winning isn't everything, it's the only thing" has come to be regarded as being every bit as inspirational as the Sermon on the Mount.

No, no, no!!! What Lombardi meant is the exact opposite of what Prelutsky (and others) ususally take it to mean. Prelutsky implies that it means "anything goes" in the pursuit of victory, including cheating. Lombardi would be horrified to hear that his famous phrase was interpreted in this fashion. Lombardi clearly meant it to mean that "the struggle and work in pursuit of victory and trying to win was the only thing"--i.e., if you are going to play, you should play your hardest to win and challenge yourself to the maximum of your strength, character, and abilities, rather than dogging it. This means working hard every day and sacrificing for the team goal of winning. The phrase has since been transformed into the meaning that Prelutsky ascribes to it.

Here's the way that David Maraniss puts it in his wonderful biography of Lombardi, When Pride Still Mattered (strongly recommended):

What he said, or meant to say, [Lombardi's supporters have] claimed, was that winning isn't everything, it's the only thing worth striving for, or winning isn't everything, but making the effort to win is.

***

[T]here was a crucial distinction in his philosophy between paying the price to win and winning at any price. He did not bleive in cheating to win, and he whowed no interest in winning that wrong way, without heart, brains and sportsmanship. Although he never shied away from the violence of the game, insisting that football was "not a contact sport, but a colision sport," he did not encourage dirty play.... Winning in and of itself was not enough for him. His players knew taht he was more likely to drive them mercilessly after they ahd played sloppily but won than when they had played hard but lost.

The fact that Lombardi's words have been twisted over time says more about the generations that succeeded Lombardi than it does about Lombardi.

For what its worth, I have always been intrigued by Maraniss's decision to write a biography of Lombardi after his famous biography of President Clinton. I suspect that the explanation may lie in this discussion--I think Maraniss sees Lombardi as personifying his generation (God, country, family, duty, discipline) in the same way that he sees Clinton as the personification of generation (Baby Boom). So they are really generational studies told through the lens of particular individuals.

The transition between these two generations may also help to explain the change in the interpretation of Lombardi's famous expression over time. Incidentally, in the book Maraniss tells a fascinating story about how that famous phrase made it to Lombardi's lips.

Update:

Sorry, I forgot to link the article originally. It is now hyperlinked.


Public-Private Partnerships:

Insightful article in the Washington Times today about the agreement between the states and "Big Tobacco" to cartelize the cigarette industry, generate oligopoly rents for the big tobacco companies, and use the power of the government to stomp out competition by smaller companies that would otherwise underprice them.


Reforestation in Vermont:

My colleague Alex Tabarrok notes that since the 1870s, forestation in Vermont has risen from 20% to 85%. He correctly notes that part of this is tremendous increases in agricultural productivity, reducing the need for farm land.

Don't forget, however, the effect of the invention of cars, which dramatically reduced demand for horses--and the need to clear open pastures for horse grazing, thereby permitting reforestation. In addition, wood used to be a primary source of fuel, so the turn toward fossil fuels and away from wood reduced the demand for chopping down trees to burn them. Of course, the discovery that petroleum could be used to produce energy also saved the whales from extinction and eliminated the rivers of manure that used to flow through American cities.

There's always tradeoffs...

Update:

A reader reminds me that I forgot about the pastureland for hay:

I live in Wilton, Connecticut, which is about 55 miles from NYC. It's hilly, with houses on 2-acre lots (the minimum required for septic systems and wells) and lots and lots of trees and and forests and stone walls running through the forests. Pictures of Wilton from 1900 tell a different story - those stone walls border huge pastures. For miles and miles, both down in the Norwalk River valley and up in the hills, there were vast fields of hay and no trees. The hay, of course, was grown for the horses in New York City. You already know the rest of the story.


Judge Hatchett Overruled by Judge Joe Brown:

The Onion has the story.


The Art of the Scam, II

Helpful readers have responded to my posting and sent in some neat stuff from the world of Scam & Anti-Scam, including the remarkable 419eater.com "scambaiting" site [check out the photo gallery!] and a truly hilarious response sent in response to one of those WINNING NOTIFICATION!!! messages.


Illicit Market Economics:

Mark Kleiman, one of the country's leading drug policy experts, has a very interesting post related to the Justice Stevens-Randy Barnett exchange about what effect a decrease in demand has on prices. It turns out, Mark says, that where at least some illicit goods are concerned, lower demand may mean higher prices.


Wednesday, June 1, 2005

Pretty Clear Establishment Clause Violation

(if, of course, the press account is accurate). The AP reports:

A Kentucky judge has been offering some drug and alcohol offenders the option of attending worship services instead of going to jail or rehab . . . .

"I don't think there's a church-state issue, because it's not mandatory and I say worship services instead of church," he said. . . .

Seems pretty "mandatory" to me. Sure, the offender doesn't have to go to religious services; but if he says no, he'll have to go to jail or rehab. Whether the condition is phrased as "You must go to religious services, or else we'll send you to jail" or "You must go to jail, but we'll let you get out of it by going to religious services," the government is coercing people to go to religious services by threatening them with jail. Nor does it matter that he's not picking the denomination; he's still coercing people to engage in religious activity.

This issue has actually come up in the past, when the government has given prisoners special benefits if they go to Alcoholics Anonymous, a program that has a religious component; courts have generally — and in my view, rightly — held that such a program indeed violates the Establishment Clause, precisely because it coerces people to participate in religious activities.

The result would be different if the judge required people to do something, and there were both religious and nonreligious options. But here it sounds like the only option is to engage in religious practice — or go to jail or rehab. I'm not sure that going to worship services is an effective way of getting people to stop misbehaving. But whether or not it is, the government may not coerce people into religiosity, even as a tool in fighting drug and alcohol abuse.

Thanks to Sean Sirrine for the pointer.


AFL-CIO Brands Its Own Member Union's Position "Troubling and Extreme":

The AFL-CIO faults California Supreme Court Justice Janice Rogers Brown's willingness to protect offensive speech as being "troubling and extreme":

[I]n Aguilar v. Avis Rent-a-Car, 980 P.2d 846 (1999), Brown authored a dissenting opinion that would have struck down, on First Amendment grounds, an injunction that instructed a supervisor not to use racial epithets against Latino employees. The injunction was issued by a trial court judge after the employer was found liable by a jury for maintaining a discriminatory hostile work environment for Latino employees.

On the other hand, the National Writers Union — a member union of the AFL-CIO — proudly filed an amicus brief urging the same result that Justice Brown endorsed. Now of course the AFL-CIO need not agree with everything its member unions say. But if a member union takes a particular pro-free-speech view, it does seem odd that the AFL-CIO — which has long benefited from free speech protections, and has long fought for broadening such protections — would label that view "troubling and extreme."

Thanks to Hans Bader for pointing this out.


Willingness to Reconsider Religious Arguments:

Reader Cathy Fasano put the point so colorfully that I thought I'd quote it:

You can certainly disagree with . . . [any] conclusion[s] that moral theologians of whatever faith come up with in gazillions of particular cases. But . . . [f]orests worth of trees have been felled, herds of sheep slaughtered, great pits of clay have been quarried, all so that several millenia of humans can write down their reconsiderations of deific decrees. Up until a few hundred years ago, theology was more or less the only intellectual discipline out there. . . .

I'm not terribly interested in most theological arguments myself; they don't speak to me and my concerns. But I imagine that many deeply religious people feel the same way about utilitarianism or objectivism or a wide range of other secular moral philosophies. (Naturally, not all -- there are surely religious thinkers who are intellectually interested in secular philosophies, and vice versa, whether out of intellectual curiosity, a desire to borrow from other philosophies, or just a desire to better understand others' views.) One doesn't have to agree with theological debates, though, to recognize that religious people spend a lot of time trying to get others, both within their traditions and outside thos traditions, to reconsider their understandings of divine decrees -- and in many instances succeed.


The Art of the Scam:

I usually don't read these ridiculous scam notices before they get deleted from my inbox, but for some reason this one caught my eye as a particularly idiotic version of the great Mariam Abacha Ur-Scam, the Nigerian bank account transfer hoax.
I particularly like the way it is addressed to "USA inhabitant," and the reassuring tones of:

"Some people are afraid to give their financial information. We understand that - it's quite natural. We can ask you to transfer all your personal money out of the account, so you will not be afraid that your money are in the risk. We just need trust and cooperation, honest partners. From our side - we guarantee honesty and professionalism."

Does anybody respond to stuff like this??
Here it is, in its entirety:

"From: "Alex Moore/TIF Company"
To: "USA inhabitant"
Subject: New job positions for US, UK and CA citizens from TIF Company
Date: Wed, 1 Jun 2005 22:09:16 +0000

Hello, My name is Alex Moore. I'm the manager in TIF Company. We have open vacancy for US and UK citizens. First, let me tell you about our company. We are providing financial services worldwide. We have several offices in Europe, and need transfer processing service in US and UK. Our position is called Financial Manager. It is very important position for us now. We need trustable and honest people working with us like partners.

We have different tasks for Financial Managers, from receiving and redirecting deposits, to establishing LLCs and Corporations at our cost. You may visit our website at www.tif-company.com for more information.

Being Financial Manager in US or UK, you will need: First, you will need to provide us with your bank account. We have one condition, your bank account should be establisned at least 3 months ago. Why? Because we were victims of online scam, when we hired Transaction Managers, and after receiving first deposit they cashed money and disappeared. We had this bad experience, but since that time, we had a lot of consultings with bank authorities, police, etc. Now we have all methods to find scammers. But banks recommend us to use old accounts, so they will have history in the bank.

So, when you will provide us with your bank account, we will arrange transfer from our partners to you. You receive transfer, take your 5% commission. The rest you will transfer to us. We have 2 ways of transferring money from you to us. Regular wire transfer, or if we have some urgent needs - Western Union. All fees for transferring money to us will be paid from our part. We can also use just established bank accounts.

We have different options. We also have other offers for our Financial Managers. We need new Corporations very often. We can have you as our Representative in your country.
Some people are afraid to give their financial information. We understand that - it's quite natural. We can ask you to transfer all your personal money out of the account, so you will not be afraid that your money are in the risk. We just need trust and cooperation, honest partners. From our side - we guarantee honesty and professionalism.

We understand that it is quite difficult to get a good job over Internet. Please, take a look at our website at www.tif-company.com . We tried to explain our mission as detailed as we can. If you are interested in our proposition - please, go to our website at www.tif-company.com -> application form or just go to http://www.tif-company.com/apply.html . When we receive information from you - our managers will contact you, answer your questions, and if you are finally interested - we can start. You can also send us emails at info@tif-company.com.

Wishing you luck.
Alex Moore, TIF Company"


Serious or a Joke?

The Ninth Circuit, in United States v. Quaempts (thanks to How Appealing for the pointer) had to choose between two precedents: One held that a person standing in the doorway of his home could be arrested without an arrest warrant, because the doorway is public enough; another held that a person who was lying in bed and could be seen through the open door couldn't be arrested, because he was still in his private home. The question was which category someone who opened the door while lying in bed -- it was a very small trailer -- fit in, and the court said the latter.

I have nothing against that decision as such: Courts sometimes have to make some choices, and draw some mighty thin lines, especially when they have to work with precedents that aren't as crisply theorized as one might like. The process may seem silly to outsiders, but the decisions have to be made.

Still, I was puzzled by this argument:

Quaempts, however, was in his bed, the sanctuary of the right to privacy. See Lawrence v. Texas, 539 U.S. 558 (2003).

Really? I know people use "bed" as a reference to "sex," and I know lots of sex goes on in bed. But surely Lawrence isn't so limited -- presumably sex on the rug, the counter, the kitchen table, or even up against the door (granted, from the inside, with the door closed) is just as covered by Lawrence as sex in the bed. Is this just a little bit of absurdist legal humor, or did someone get carried away with analogies here?

Or perhaps this might add another answer to the old Why do Baptists not have sex standing up? joke -- because it's constitutionally unprotected.


Where Are They Now?

What ever happened to Cohen of Cohen v. California? Or O'Brien of United States v. O'Brien? I'd like to know about them, and about figures in other constitutional law cases, especially First Amendment cases. (They would make for good notes in the Teacher's Manual for my second edition.) If you have any information, please post it — with URLs or cites, if you'd be so good — in the comments. A few that I'm contributing myself:

  1. Biographies of the Tinkers and Christopher Eckhardt, of Tinker v. Des Moines Indep. School District, the leading student speech case, are here.

  2. Joe Roth, one of the kids whose parents successfully sued to strike down school prayer, in the Engel v. Vitale case, ended up being becoming chairman of Twentieth-Century Fox in 1989, eventually ran Disney Motion Pictures for six years, and in 2001 started a new studio, Revolution Studios. He also directed America’s Sweethearts (2001) and Revenge of the Nerds II (1987).

  3. Matt Fraser, of Bethel School District v. Fraser, went on to run the debate program at Stanford.

  4. Harry Connick, of Connick v. Myers, retired as D.A. in 2003, after a 30-year stint. He had been known as the "Singing D.A." during his tenure, and has done some professional singing since then. His son, Harry Connick, Jr., is a noted musician.

  5. The last of the Zacchini family (see Zacchini v. Scripps-Howard Broadcasting Co.) to do a human cannonball act was Edmondo Zacchini — apparently Hugo's nephew — who flew his last flight in 1991. In 1991, the Zacchini family was inducted into Barnum Ringling Brothers and Barnum & Bailey's Circus Ring of Fame in Sarasota, Fla.. Hugo Zacchini was in his mid-70s when he performed the act that formed the basis of the Supreme Court case; and by the time the Supreme Court case was decided, he was dead (not a barrier to a lawsuit for damages, which would be taken over by his estate, but oddly enough the court opinions don't even mention this).

  6. In Cantrell v. Forest City Publishing Co. (1974), a Cleveland Plain Dealer reporter named Joe Eszterhas apparently fictionalized a news story, which led to a false light invasion of privacy lawsuit against a newspaper:

    Most conspicuously, although Mrs. Cantrell was not present at any time during the reporter's visit to her home, Eszterhas wrote, 'Margaret Cantrell will talk neither about what happened nor about how they are doing. She wears the same mask of non-expression she wore at the funeral. She is a proud woman. Her world has changed. She says that after it happened, the people in town offered to help them out with money and they refused to take it.' Other significant misrepresentations were contained in details of Eszterhas' descriptions of the poverty in which the Cantrells were living and the dirty and dilapidated conditions of the Cantrell home.
    Eszterhas recognized that his flair for fiction made him better suited to a different career, and became a once-hot screenwriter (Flashdance, Jagged Edge, Basic Instinct).

So, more, more, please! The comments are ready for you to post.

UPDATE: Steve Kurtz points to a First Amendment Center page that also has follow-ups on Epperson (v. Arkansas), Goldman (v. Weinberger), Bates (v. Arizona), Lemon (v. Kurtzman), Kulhmeier (Hazelwood School Dist. v.), Maynard (Wooley v.), Pickering (v. Board of Ed.), Sindermann (Perry v.), Fraser, and Myers (Connick v.), as well as the Tinker kids, whom I mentioned above.

29 Comments

Religious Arguments and the Possibility of Changing Minds:

A reader writes:

The key step in explaining the difference between religiously and secularly-motivated moral claims is almost reached in the excerpt from your most recent correspondent, but he’s not quite there. After your counterpoint about, “My gut feeling says X” being on no firmer grounds than “My deity whom you don’t believe exists says X,” there is another point open to the side endorsing the principled difference between the religious and secular claims. This point is that Rawlsian (or another variety, but I think most are familiar with it from Rawls) reflective equilibrium is possible between the gut feeling and an overarching ethical principle, and may lead to the gut feeling changing (or to the principle being dismissed). Reflective equilibrium is not, as far as I can tell, possible between a deific decree and an overarching ethical principle, because the deific decree cannot be reconsidered.

It seems to me that there are two problems here.

1. I don't see why people's arguments for laws somehow become illegitimate -- or the laws enacted based on those arguments become unconstitutional, as some argue -- simply because the people refuse to reconsider their arguments. Many people are quite unwilling to reconsider certain fundamental moral principles, for instance their rejection of infanticide, slavery, rape, and the like.

Perhaps one can fault these people for not being sufficiently reflective; perhaps all of us should be willing to challenge even our deepest beliefs. But it seems to me that in a democracy, the obstinate and unreflective are just as much entitled to enact their views into law as those who are constantly reexamining their moral commitments (even if the unreflective people, religious or secular, may be properly faulted at times for being too self-confident about matters on which they should have more humility.)

2. As best I can tell many people's religious beliefs are indeed subject to reconsideration. Quite a few people change their religions, or at least their denominations. Many others drift from more literalist readings of their sacred texts to less literalist. Many change their understandings of divine decrees, which in many instances are quite ambiguous or incomplete. (As I understand it, Christian views on abortion come from interpretation and inference, since the Bible doesn't explicit focus on this.)

Many change their views about how much of their religious law should be enacted into secular law. They sometimes change these views as a result of deliberate reconsideration; and sometimes, as with secular people, they change them because their intuitions and outlooks are changed over time by new experiences. The process of reflective equilibrium that my correspondent describes -- the process of one's overarching philosophies affecting one's intuitions and vice versa -- psychologically operates for those religious people as well as for secular ones. And, conversely, there are many secularists who are quite rigid in their worldviews, uninterested in considering the possibility that their understanding may be mistaken or incomplete, and psychologically inclined to resist revising their views.

So this again reinforces my view that religious people are as entitled to enact their religious views into law as secular people are entitled to enact their secular moral views into law.


More on Religious Arguments:

A correspondent proposes to distinguish religious reasons for decisionmaking and secular reasons this way:

The difference between religious justifications and purely moral justifications is that moral questions are debatable. For instance, any person of any philosophical or religious persuasion can debate both the philosophical question of what duty we have to protect the earth to future generations, and the more specific question of whether protecting the snail darter is necessary to discharge any such duty. These questions cannot be resolved, but they can be debated with reasoned argument.

Similarly, one can debate whether aesthetic justifications are sufficient to prohibit the eating of a certain sort of meat, whether horses have a "higher consciousness" sufficient to justify a ban, to what extent customary practices should be considered, whether meat should be eaten at all, whether horses who are slaughtered feel pain, and all sorts of other questions.

But once someone says "a little man in the sky whom you don't think exists ordered humans not to do something", that ends the debate. I realize that I am being sarcastic, but to the nonbeliever, that is exactly what it means to say that God ordered something. To the nonbeliever, saying God ordered something is no different than someone saying that he was visited by an apparition who ordered him to do something, or that his palm or tarot card reader told him that the spirits have ordered it. To the nonbeliever, the justification that "God" ordered something is nothing more than a hallucination, a completely irrational justification to restrict his conduct. And even to the believer, the justification that someone else's God, that he doesn't believe in, ordered something, is precisely the same. To anyone other than an adherent of a religion, an argument that a religious text says something is simply not a reasoned argument and therefore does not provide any justification to bind the non-adherent. A contested moral claim, in contrast, is still a reasoned argument.

It seems to me that this misses the mark. One can make reasoned arguments, in the sense of an argument that adduces reasons for action, about religious beliefs as well as secular beliefs. People argue all the time about how to interpret contested provisions of religious texts, or how to resolve seeming tensions in the text, or whether there are implied exceptions to the text, or for that matter whether a religious commandment — even one that both parties to the argument agree is religiously binding — ought to be turned into secular law. They give reasons, they use syllogisms, they argue by suggesting counterexamples, they engage in all the hallmarks of reasoned argument.

Of course, at some point the capacity of reasoned argument to drive our judgment runs out, as people come up against their axioms. But that's true whether the people are religious or not. Secular people who want to ban others from eating horse don't say "a little man in the sky who you don't think exists ordered humans not to do something." Rather, if they're candid, they say "a little feeling in my belly that you don't think is morally obligatory ordered humans not to do something."

To those who don't agree with California voters' view about eating horsemeat, "the justification that [the majority's morality] ordered something is nothing more than a hallucination, a completely irrational justification to restrict [our] conduct." Yet in a democracy, the objectors aren't allowed to buy horsemeat, even though this means they're being governed by others' nonrational preferences (not irrational preferences, but nonrational preferences in the sense of being the axioms on which rational arguments rest rather than statements that can be proven rationally).

The same applies to abortion. I suspect that many secular people (or religious people who do not make this decision on religious grounds) believe that the right to life starts some time before birth — perhaps at viability, perhaps at the second trimester, perhaps when some specific developmental milestone is reached. They can adduce reasons for their decision, just as religious pro-life people can adduce reasons for theirs. But ultimately, when you get to the core of the argument, you have people's moral intuitions, gut feelings, axioms, or whatever else you want to call them. No logical argument can provide "proof" that one place and not another is where the right to life attaches.

These positions then get enacted into law; to the best of my knowledge, in most states abortions are not allowed very late in pregnancy, precisely because of these concerns. Whether the backers of such prohibitions support the prohibitions for religious reasons or secular moral reasons, the prohibitions interfere with some women's decision to abort a fetus late in the pregnancy. (We can say the same about infanticide, but I wanted to use a case that was somewhat more controversial.) "To the nonbeliever [in the secular life-begins-some-time-before-birth argument], the justification that [the fetus's right to life mandates] something is nothing more than a hallucination, a completely irrational justification to restrict [her] conduct." Yet such justifications do restrict our conduct. I don't see why religious people's justifications, based on their religious axioms, should be condemned as illegitimate, while nonreligious people's nonreligiously based justifications, based on their secular axioms, are somehow proper.


Pork and Horsemeat:

I've gotten a bunch of responses to my post about "Religion, Forcing Moral Views on Others, and Abortion"; and quite a few give as hypotheticals bans on eating pork, backed by devout Jews or Muslims, or bans on eating cow meat, backed by devout Hindus. Surely those laws are unconstitutional (that was actually Geof Stone's argument in the post that prompted by original response). In the words of one correspondent of mine, "A Christian should not be prohibited from eating meat because the Hindu gods that the Christian does not believe exist have decreed the cow sacred."

It turns out, though, that California voters in 1998 banned the sale of horsemeat for human consumption. (Georgia law bans the sale of dogmeat for human consumption; I'm sure some other states have similar laws.) I have no reason to think that this law was motivated by religion. Rather, I suspect that most voters supported it because of their gut feel that eating horse or dog is disgusting or, in the words of one critic, "morally perverse," "a perversion of the human-animal bond." The people probably didn't even think that horses had a right to life, or a right not to be eaten; the law banned only the sale of horsemeat for human consumption — the sale of horsemeat for animal consumption is, to my knowledge, still permitted.

Both the religiously motivated pork/cow bans and the gut-feel-motivated horsemeat bans burden people's liberty to eat what they please. Both of them do so because of the unproven and unprovable views of the majority. One can say that both are permissible, on democratic grounds; or that both are impermissible, on libertarian grounds. But it doesn't seem to me sound to say that (1) the pork/cow (religiously motivated) ban is impermissible, (2) the horsemeat (disgust-motivated) ban is permissible, and (3) if it turned out that in some state the supporters of the horsemeat ban were actually motivated by a belief that it was sacrilegious to eat horse, that horsemeat ban would become impermissible. In any event, supporters of such a distinction have some explaining to do, it seems to me.


Right-to-Know Statutes for Data Security Breaches: The Washington Post has an interesting piece on the possibility of new federal legislation on data security breaches:
  A legislative push by states to punish companies that maintain sensitive customer data when they hide a security breach could trigger congressional intervention to set a national standard on when people must be notified that their personal information may have fallen into the wrong hands.

Campus Free Speech:

Peter Berkowitz reviews the new book by Donald Alexander Downs, Restoring Free Speech and Liberty on Campus, in Policy Review.


Tuesday, May 31, 2005

The Sermon on Palestinian Authority Television

in which Sheik Ibrahim Mudeiris says the following is now available in video and audio, with English subtitles; readers who speak Arabic can then check the translation for themselves:

"With the establishment of the state of Israel, the entire Islamic nation was lost, because Israel is a cancer spreading through the body of the Islamic nation, and because the Jews are a virus resembling AIDS, from which the entire world suffers.

"You will find that the Jews were behind all the civil strife in this world. The Jews are behind the suffering of the nations. . . .

"We have ruled the world before, and by Allah, the day will come when we will rule the entire world again. The day will come when we will rule America. The day will come when we will rule Britain and the entire world -– except for the Jews. The Jews will not enjoy a life of tranquility under our rule, because they are treacherous by nature, as they have been throughout history. The day will come when everything will be relived [likely relieved -EV] of the Jews — even the stones and trees which were harmed by them. Listen to the Prophet Muhammad, who tells you about the evil end that awaits Jews. The stones and trees will want the Muslims to finish off every Jew."

From what I understand, this is not some open forum in which any speaker can speak; the Authority gave the speaker, and others like him, privileged access to Palestinian television. Thanks to Brian Ross for the pointer.

UPDATE: Reader Patrick McKenzie points out that the outrage over this sermon seems to have led the Palestinian Authority to promise to stop carrying such sermons in the future. Sounds good to me; let's hope they stick with it. (I should stress that I oppose governments' outlawing anti-Semitic speech -- but governments shouldn't give such speakers preferential access to the government's own propaganda organs.)


Oui the Just:

Some of what I hear about the likely causes of the non vote in the French referendum on the EU Constitution reminded me of the old story about the ostracism of Aristides the Just. Aristides the Just was indeed just, but was banished nonetheless by his fellow citizens. It is said that when the vote on his banishment was taking place, an illiterate farmer asked Aristides — not knowing whom he was asking — to mark the potsherd ballot for him.

"What name should I put down?," asked Aristides.

"Aristides," said the farmer.

"Why? What did he ever do to you?"

"Oh, nothing. I'm just tired of hearing him called Aristides the Just all the time."

The farmer's thinking, of course, is not sound. (As best I can tell from what I've read recently, the substantive arguments for the French "no" vote weren't very sound, either; and peevishness at the political classes' seeming arrogance doesn't strike me as a great reason to vote no.) But it does reflect a real trait in human nature, a trait that politicians are wise to remember.

UPDATE: The original title of the post, "Non the Just," was an error on my part, which lost the whole point of the analogy. D'oh! In any case, "Oui the Just" is now right.


Woodward, Bernstein, and Bradlee Confirm: It's official: Bob Woodward, Carl Bernstein, and Benjamin C. Bradlee have confirmed that W. Mark Felt is "Deep Throat." Bradlee has my favorite quote of the day:
"The thing that stuns me is that the goddamn secret has lasted this long."

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"Maybe Summers Was Right":

The daughter of Harvard's Math Department Chair throws down the gauntlet.

A response here.


Maureen Ohlhausen to Head FTC's Office of Policy Planning:

Congratulations to Maureen Ohlhausen, my former Deputy Director of the Office of Policy Planning at the FTC, and Acting Director since my departure last summer, who has just officially been named Director of OPP. FTC Chair Debbie Majoras had this to say about Maureen:

“Maureen is a champion of free markets and competition, and her work has enabled the Commission to make policy recommendations to help maintain the greatest choice, highest quality, and lowest prices for consumers,” Majoras said. “Her legal expertise and sound judgment make her a valuable part of the FTC.”

Congratulations to Maureen and it is good to know that the FTC remains in talented hands.


TPM Cafe: The TPM Cafe is up and running, and looks like a must-read (and must-bookmark). Link and background courtesy of The Decembrist.

Law and Society Association Conference: One of the heavy burdens of academia is having to attend expenses-paid trips to places like Las Vegas, where I will be on a panel this Thursday at the Law and Society Association's annual meeting. I will be speaking on a panel about the recent book The Digital Person authored by my friend, colleague, and PrawfsBlawg guestblogger Daniel Solove. You can find a description of the panel here, and of the book here. They say what happens in Vegas is supposed to stay in Vegas, but I hope to post substantive comments about the book and the panel at some point soon.

International Law and the First Amendment:

I blogged about this in 2003, but this struck me as worth reposting, given recent discussions of the Constitution and foreign law, and of speech restrictions in other Western countries (emphasis added):

SIGNING TREATIES MAY ERODE THE BILL OF RIGHTS: American decisions to sign on to international treaties may erode the protections of the Bill of Rights, for instance the First Amendment. Yes, the Supreme Court has supposedly said otherwise, in Reid v. Covert (1957): "[N]o agreement with a foreign nation can confer power on the [federal government] which is free from the restraints of the Constitution" (speaking of the Bill of Rights). But it turns out that this supremacy of the Bill of Rights really isn't that strong: The President and the Senate can, in the long run, "insinuat[e] international law" that would create "a partial displacement of constitutional hegemony" (for instance, with "an international norm against hate speech . . . supply[ing] a basis for prohibiting [hate speech], the First Amendment notwithstanding"). "In the short term," international norms would and should be "relevan[t] . . . in domestic constitutional interpretation." But "In the long run, it may point to the Constitution's more complete subordination."

These quotes are not from some anti-internationalist "The U.N. is coming to take away our liberties" conservatives. They are from a recent article by Prof. Peter Spiro, one of the leading American international law scholars; the article, called Treaties, International Law, and Constitutional Rights, was published in 2003 in the Stanford Law Review, which is generally seen as one of the top 3 legal journals in the country.

Prof. Spiro is both defending the notion that treaties should be able to trump constitutional rights — "If some constitutional norms are more appropriately set at the international level" (and he believes they are), "that should justify a treaty power that, in some cases, overcomes even the Bill of Rights" — and predicting that treaties will over time do so. Courts, he acknowledges, would try to "maintain[] the formal hegemony of the domestic constitution," but "this formal hegemony may disguise a loss of domestic constitutional autonomy over the long run." "Constitutional rights 'adjusted' by treaty norms are changed by them. The Constitution is read to conform with the treaty."

Of course, some people may be quite happy about this: They might well conclude that parts of the Bill of Rights should be superseded by "international" norms. They may think the international lawmaking community (mostly, I suspect, composed of European legal and political elites, plus of course those segments of American legal and political elites that are involved in this field) will indeed reach better results than those provided for by the current understanding of the U.S. Constitution.

But those of us who disagree should vigilantly watch for, and resist, the "displacement of constitutional hegemony" that the article welcomes. We should insist that the President and the Senate consistently stress in all the treaties they sign and ratify that our agreement to the treaty is constrained by our Constitution, and that the treaty should be read to conform to the Constitution, and not the other way around. We should criticize judges who rely on international norms in interpreting American constitutional provisions (in this respect, reading Prof. Spiro's article has led me to reconsider some of my earlier views on the subject, and to view with much more alarm reliance on international law in American constitutional interpretation). And we should assiduously publicize the ways in which international rules are, in our view, worse than ours, for instance to show that foreign bans on "hate speech" actually end up banning (as American First Amendment thinking would have suggested) a good deal of speech that deserves to be protected (see, for instance, this post by David Bernstein).

Our Constitution is far from perfect, both as written and as interpreted. I think courts should indeed change their views on many issues, and people should try to press courts to do so. But this should be our decision as Americans. We should not cede our control over our constitutional rights to international bodies, international professional elites, or even to our own President and Senate.


Mark Felt is Deep Throat: Several news services have just reported that in a forthcoming issue of Vanity Fair, former FBI Associate Director W. Mark Felt admits to being "Deep Throat" of Watergate fame. Felt was the #2 person at the FBI until June 1973. Felt is one of the people who has been on the list of possible names for a long time; more here, among other places.

  UPDATE: MSNBC reports that "Carl Bernstein, who with Bob Woodward broke the story as Washington Post reporters, issued a statement neither denying nor confirming Felt's claim. Bernstein stated he and Woodward would be keeping their pledge to reveal the source only once that person dies."

  ANOTHER UPDATE: The Vanity Fair article is here.

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  1. Woodward, Bernstein, and Bradlee Confirm:
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Religion, Forcing Moral Views on Others, and Abortion:

People often complain that others -- often others who oppose abortion or destruction of embryos in the lab -- are just trying to implement their own religious views into law, and how they are trying to force their moral views on others. The argument isn't that the particular view about when life begins, or about whether abortion is proper, is mistaken; I can respect such arguments, and I even agree with some of them. Rather, instead of confronting the pro-life position on the controversial and difficult to debate merits, the arguer claims that this position is somehow procedurally improper, because it rests on religious reasons or forces moral views on others.

But all judgments about when human beings acquire certain rights rest on unproven and unprovable moral calls. (I have made this argument more broadly before, but I think it's even clearer as to abortion.) Moreover, they all force one's moral views on others. If you think people acquire a right to life at birth, and you thus support infanticide bans, then you're forcing your moral view on others who want to kill babies. If you think that ninth-month abortions are wrong, because the baby acquires rights at viability, then you're forcing your moral view on others who want to abort fetuses that are eight months old.

Now of course these judgments may be informed by medical observations -- for instance, when the brain develops to a certain level, or when something will end up naturally growing into a born human without any further intervention -- or by pragmatic considerations, gut feel, opinion polls, tradition, views about how precise and clear legal lines should be, or whatever else. But ultimately these judgments rest not on the scientific or social facts as such, but on moral judgment calls about how one evaluates these facts.

Likewise with libertarian arguments about the rights of the woman; the scope of the woman's rights, the existence or not of the fetus's or baby's rights, and how one reconciles those rights ultimately rests on one's own axioms about morality. And whether one supports a law against all abortion, against late-term abortions, against infanticide, or against killing babies who are one year or older, one is forcing one's moral views on others.

Ah, but at least you're forcing moral views on others, not forcing religious views on them, some say. So what? How is (1) someone's gut feeling that an eight-month old fetus is so much like a baby that surely it shouldn't be killed a more legitimate basis to write laws than (2) someone's deduction from the Bible that any fetus can't be killed? For that matter, how is a secular moral axiom that born babies are as entitled to live as we are a more legitimate basis to write laws than a religious moral axiom to the same effect?

All of us draw lines in this field, whether at conception, viability, birth, or whenever else. None of us can prove the validity of those lines through science or through abstract logic.

Those of us (like me) who draw secular lines shouldn't feel superior to those who draw religious lines here -- and we certainly shouldn't think that the Constitution or political morality somehow makes our linedrawing more proper. We can and should debate, as best we can, where the lines should be drawn, but we should recognize that at some point it comes down to the unproven and unprovable, for the secular among us as well as for the religious. And we should realize that no attempt to protect children from killing -- wherever you draw the line about what constitutes a "child" -- can operate without forcing one's moral views on others.


Is A Psychological Test A Fourth Amendment "Search"?: I just came across a very interesting opinion by Judge Posner from earlier this year on the question of whether a government-administered psychological test is a Fourth Amendment "search," and if not, what it might be.

  In Greenawalt v. Indiana Dept of Corrections, a research analyst for the state prison system was required to submit to a psychological test for work. She later sued the state claiming that the test had "searched" her in violation of the Fourth Amendment. Judge Posner disagreed (most citations omitted, although for reasons that will become clear, not all of them):
  Almost any quest for information that involves a physical touching, which a test does not, is nowadays deemed a "search" within the meaning of the Fourth Amendment, which the Fourteenth Amendment has been interpreted as making fully applicable to state action. Drawing a tiny amount of blood from an unconscious person to determine the level of alcohol in his blood is a search, and so even is administering a breathalyzer test, where physical contact is at its minimum--the subject's lips merely touch the breathalyzer. And so finally is a urine test, Board of Education v. Earls, 536 U.S. 822 (2002), in which the subject is required merely to provide a urine sample, so that the test instrument does not touch the subject's body at all. The invasion of privacy caused by submitting to the kind of psychological test given to the plaintiff in this case may well have been more profound than the invasion caused by a blood test, a breathalyzer test, or a urine test, though we cannot say for sure; the test is *not in the record--all we know is that, according to the complaint, "the battery of psychological tests examined Ms. Greenawalt's personality traits, psychological adjustments and health-related issues." It is true that she consented to take the test, but had she not done so she would have lost her job, which, if she had a constitutional right not to take the test, would place a heavy burden on the exercise of her constitutional rights.
  Many cases say that the Fourth Amendment is intended to protect privacy. E.g., Kyllo v. United States, 533 U.S. 27, 32-33 (2001); Skinner v. Railway Labor Executives' Ass'n, supra, 489 U.S. at 617; Although this is historically inaccurate, Boyd v. United States, 116 U.S. 616, 624-3 (1886); Orin S. Kerr, "The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution," 102 Mich. L.Rev. 801 (2004); Raymond Shih Ray Ku, "The Founders' Privacy: The Fourth Amendment and the Power of Technological Surveillance," 86 Minn. L.Rev. 1325, 1333-38 (2002), it is not uncommon for constitutional provisions to be supplied with rationales that the framers and ratifiers of the provisions would not have recognized. Nor is the term "a searching inquiry" an oxymoron; wiretapping is deemed a search even when there is no trespass (the tap will usually be on a section of the phone line that is outside the premises on which the phone being tapped resides), though all that is taken is thoughts, often concerning private matters, expressed in conversation. Berger v. New York, 388 U.S. 41, 50-51 (1967); Katz v. United States, 389 U.S. 347, 353 (1967). Cases involving the rifling of an employee's desk, such as O'Connor v. Ortega, 480 U.S. 709, 725-26 (1987), are similar in this regard: the employee has no property or possessory interest in his desk, yet the invasion of his interest in privacy makes the rifling a search.
  Nevertheless we do not think that the Fourth Amendment should be interpreted to reach the putting of questions to a person, even when the questions are skillfully designed to elicit what most people would regard as highly personal private information. The cases we have cited show, it is true, that a Fourth Amendment claim does not depend on the claimant's being able to establish an invasion of such interests that tort law traditionally protects as the interest in bodily integrity (protected by the tort of battery), in freedom of movement (protected by the tort of false imprisonment), and in property (protected by the torts of trespass and of conversion). But that is all they show, so far as bears on the issue in this case. The implications of extending the doctrine of those cases to one involving mere questioning would be strange. In a case involving sex or some other private matter, a government trial lawyer might be required to obtain a search warrant before being allowed to conduct a cross-examination--or the judge before being allowed to ask a question of the witness. Police might have to obtain search warrants or waivers before conducting routine inquiries, even of the complaining witness in a rape case, since they would be inquiring about the witness's sexual behavior. Questioning in a police inquiry or a background investigation or even a credit check would be in peril of being deemed a search of the person about whom the questions were asked. Psychological tests, widely used in a variety of sensitive employments, would be deemed forbidden by the Constitution if a judge thought them "unreasonable."
  Although I would quibble with a few minor points, this is basically right. Being asked and having to answer questions is primarily a Fifth Amendment question, not a Fourth Amendment question. That's why subpoenas to testify before a grand jury raise few if any Fourth Amendment issues, and why the Supreme Court felt the need to create the Miranda doctrine to regulate custodial interrogations of suspects. If asking questions and getting answers were a Fourth Amendment search, the law of criminal procedure would look dramatically different than it does today.

  The opinion goes on to ponder whether the appellant might have state law claims or a Due Process claim instead of a Fourth Amendment claim. If you're interested in privacy law, it's worth a read.

It's Not You, It's My Caudate Nucleus: The New York Times reports:
  New love can look for all the world like mental illness, a blend of mania, dementia and obsession that cuts people off from friends and family and prompts out-of-character behavior - compulsive phone calling, serenades, yelling from rooftops - that could almost be mistaken for psychosis.
  Now for the first time, neuroscientists have produced brain scan images of this fevered activity, before it settles into the wine and roses phase of romance or the joint holiday card routines of long-term commitment.
  In an analysis of the images appearing today in The Journal of Neurophysiology, researchers in New York and New Jersey argue that romantic love is a biological urge distinct from sexual arousal.
  It is closer in its neural profile to drives like hunger, thirst or drug craving, the researchers assert, than to emotional states like excitement or affection. As a relationship deepens, the brain scans suggest, the neural activity associated with romantic love alters slightly, and in some cases primes areas deep in the primitive brain that are involved in long-term attachment.

I Was Pleased To See This:

Apropos the outrageous (if press reports are correct) court order barring Wiccan divorced parents from teaching their child their religion, the executive director of the American Family Association of Indiana -- essentially a conservative Christian group -- says: "The parents have the right to raise their child in that faith, just as I have the right to raise my child in the Christian faith." A very good response.

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Monday, May 30, 2005

Kieran Healy Doesn't Get It: Kieran Healy has authored a post about Memorial Day over at Crooked Timber that seems designed to get lots of people hopping mad. It no doubt will succeed. Here is the entire post, titled "Memorial Day":
For those of us in the U.S., today is Memorial Day. America has a fine tradition of military service and sacrifice. The best way to respect and honor it is to reflect on what it means to serve and perhaps die for your country, and to think about the value of the cause, the power of the reasons, and the strength of the evidence you would need before asking somone—someone like your brother, or friend, or neighbor—to take on that burden. That so many are willing to serve is a testament to the character of ordinary people in the United States. That these people have, in recent years, shouldered the burden of service for the sake of a badly planned war begun in the name of an ill-defined cause, on the thinnest of pretexts, and with the most flimsy sort of evidence, is an indictment of the country’s political class.
  It seems to me that this exactly what Memorial Day doesn't mean. Memorial Day is about honoring the sacrifice of those who gave up their lives fighting in the name of the United States. It is about the living honoring the dead, recognizing their passing and reaffirming our memory and appreciation for what they did. It is about the troops, the grunts, the front-line soliders who left home and did not return. Memorial Day is not a time to separate out which of the dead served and died for good reasons or bad; to second-guess which decisions to declare war, launch a campaign or charge a hill were justified or not; or to test your ability to invent a populist voice to make cheap shots against an Administration you despise. [Ed.- That was a cheap shot by me. Mea culpa.] I'm sure there are good times for that, but Memorial Day isn't one of them.

  UPDATE: Kieran has responded in an update here, and a bunch of us are carrying on the discussion in the comment section.

  ANOTHER UPDATE: Did President Bush make a similar misstep? Here is his speech today delivered at Arlington National Cemetary. Most of the speech is perfectly appropriate, but I do think there are a few sentences that can be fairly criticized. In particular, quoting from a letter written by a recently-deceased soldier to the effect that "I do wish America could see how awesome a job we're doing [in Iraq]" seems inappropriate on Memorial Day. In my view, Memorial Day is about honoring sacrifice, not about trying to suggest that the war in Iraq was a good idea (Bush) or a bad idea (Healy). I recognize that honoring sacrifice can be seen as bound up with the merits of the decision to go to war, but I think it's best to keep them apart.

History of Memorial Day: Today is of course Memorial Day, and I hope folks will take a bit of time off from enjoying their barbeques and picnics to recall why this day exists. Here is a bit about the history of Memorial Day:
  Originally called Decoration Day, Memorial Day is a day of remembrance for those who have died in service to our country. It began during the Civil War when organized women's groups in several towns throughout the South decorated the graves of the Confederate war dead with flowers, wreaths and flags. Memorial Day was officially proclaimed on May 5th, 1868 by General John Logan, national commander of the Grand Army of the Republic, in his General Order No. 11, and was first observed on May 30, 1868.
  Interestingly, the Civil War origins of Memorial Day still have an impact on its observance:
  By 1890 [Memorial Day] was recognized by all of the northern states. The South refused to acknowledge the day, honoring their dead on separate days until after World War I (when the holiday changed from honoring just those who died fighting in the Civil War to honoring Americans who died fighting in any war). It is now celebrated in almost every State on the last Monday in May (passed by Congress with the National Holiday Act of 1971 (P.L. 90 - 363) to ensure a three day weekend for Federal holidays), though several southern states have an additional separate day for honoring the Confederate war dead: January 19 in Texas, April 26 in Alabama, Florida, Georgia, and Mississippi; May 10 in South Carolina; and June 3 (Jefferson Davis' birthday) in Louisiana and Tennessee.

Torture and Prisoner Abuse: The QandO Blog is collecting the evidence and asking a number of very good questions. Thanks to Instapundit for the link.

Sunday, May 29, 2005

More on Why We Write: As promised, Eric Muller has weighed in with his answer to what motivates him to write. It's an interesting answer, I think, because it is honest about a gap that I think many youngish law professors feel: the difference between scholarship written for the purposes of career advancement and scholarship written because the writer feels he or she has something important to say. (Of course, that doesn't mean I don't have something really important to say in my latest article project, From Critical Theory to Abu Graib: Akhil Amar, Paris Hilton, and the Reconstruction of Due Process in Cyberspace.)

  While we're on the topic, don't miss this classic essay on Why I Write by George Orwell. Thanks to David McGowan for the link.

  UDPATE: In response to reader mail, I think it's probably wise to clarify that the bit about "my latest article project" was just a joke.

David Brooks flirts with being Marxist. Well, sort of.

Olin Winding Down:

After years of successful grant giving, one of the right's premier grant-giving entities, the John M. Olin Foundation, is closing its doors. Whereas some foundations only pay out interest, Olin has been drawing down its principal for years. In this way, Olin avoided the risk that future generations might have a different funding philosophy. A profile in today's New York Times labels Olin "part Medici, part venture-capitalist," and notes the foundation was instrumental in the launch of the Federalist Society, supported the growth of law and economics scholarship, and funded seminal work by the likes of Allan Bloom and Charles Murray.

While the Olin Foundation has achieved almost mythical status on the Left, it was never all that big a giver. Even at its height, Olin was never one of the biggest grantmakers, and didn't make the Foundation Center's list of the 100 biggest grantgivers. (Note: The F.W. Olin Foundation, listed at 25, is not related.) To this day, conservative and libertarian foundations give far less money to their pet causes than liberal foudnations such as Packard, Ford, Pew or MacArthur.

If the key to Olin's success wasn't out-spending its competitors, what was the trick? According to James Piereson, Olin was successful because it focused on funding ideas. Piereson explained his funding philosophy, in Commentary here. Of course, it also helps if some of the ideas are compelling in their own right.

[Disclosure: Several years ago I helped direct a small book project funded by the Olin Foundation.]


ID Film at Smithsonian:

The Discovery Institute is co-sponsoring the premiere of a film "intended to undercut evolution" at the Smithsonian's Museum of Natural History, the New York Times reports. The film, The Privileged Planet, argues that "the evidence we can uncover from our Earthly home points to a universe that is designed for life, designed for discovery." Does this mean the Smithsonian is lowering its scientific standards or going soft on intelligent design? Not necessarily, as the NYT story makes clear, the museum agrees to host such events in return for a substantial contribution. According to Discovery president Bruce Chapman, "They certainly didn't say, 'We're really warming up to intelligent design, and therefore we're going to sponsor this.'"

Related Posts (on one page):

  1. Smithsonian Returns Discovery Institute Check:
  2. ID Film at Smithsonian: