Saturday, July 16, 2005

Leiter on American Legal Thought: Over at Legal Theory Blog, Larry Solum recommends as his pick of the week a 1997 book review by Brian Leiter on strands of American legal thought: Is There an American Jurisprudence? The 31-page review was just posted to SSRN a few days ago, and it's a pretty good read if you're interested in jurisprudence.
Stu's Views Lets Bloggers Post Cartoons: My law school classmate Stuart Rees, the "Stu" of the legal cartoons Stu's Views, is offering bloggers free use of his cartoons for blog posts. Stu writes:
  I offer two types of cartoons at : (1) general law cartoons about various legal topics and industry participants and (2) cartoons about specific cases. The 60 case cartoons I've just added are an initial sample of the 500+ I've done this year for West. I'll be adding more soon, as well as coverage of current events.
  Bloggers may use my cartoons on their blogs (but not elsewhere) for free under two conditions: (1) the blogger sends me a one time email with his/her name and blog address and (2) they include with each post a hyperlink to or a relevant sub-page of their choice. There are no restrictions except that the cartoon may not be modified or otherwise presented out of context.
  Bloggers may pull the image directly from my server by remote gif link, or can download it by right-click-save onto their server. If they use my server (which is hosted by Yahoo!), I am not liable for any server downtime.
  Free use is permitted in archives in perpetuity, and for new posts until I notify otherwise (which I doubt will be ever).

Friday, July 15, 2005

Two Scottish Gifts: Golf and Harry Potter.--

I am having a strange, but pleasant day, dedicated to two leading gifts of Scotland to popular culture: Golf and Harry Potter.

Golf x 2.

I got up at 6:30am to watch TV coverage of the Open Championship at St. Andrews. The Old Course is a fascinating links. I played it about two weeks after Woods won the 2000 Open. The course was in great shape that day, and the ball waa rolling just as fast and far as it does on TV. I was playing well, but failed to break 80 because of a ball out of bounds on #16 (I had 37 on the front nine, but 44 on the back).

My brother Scott and I were playing a match against two other Americans we were paired up with. We were down one hole with two to play. Then I won 17th by parring the famous (and famously difficult) Road Hole (#17). Then on 18, my brother sank a 35 foot birdie putt so that we won our match. When his putt dived into the hole, the 100 or so people around the green broke out in applause. Returning from shopping, my daughter had joined me on the walk down the 18th hole--all in all, something we'll never forget.

Golf is one of the few sports where ordinary people can play on many of the historic courses where the pros play (though getting on most of them is far easier in the UK than in the US). After playing a course, it is a treat to watch a tournament played on it.

After watching a few hours of British golf, I went to play in the 101st Chicago City Amateur golf tournament. Last Sunday I had just barely qualified by scoring in the top 40% of those trying to qualify. Today (the first day of the tournament) I shot a 79; the leader shot a 65. I would need to shoot one of my best rounds on Saturday just to make the cut and be allowed to play on Sunday. (Jack Nicklaus missed the cut today at St. Andrews.)

Harry Potter.

Although we ordered a copy of the latest Harry Potter book on Amazon (scheduled to arrive on Saturday), my 18-year-old daughter and I just decided to go to the Harry Potter party at Reynolds Club at the University of Chicago. The party, which benefits from taking place in a large gothic hall, is sponsored (or co-sponsored) by an offshoot of the great Seminary Coop Bookstore. There should be some fun costumes and lots of small children excited by a publishing event. The one time we briefly met JK Rowling (at an assembly line book signing), she couldn't have been more gracious to my daughter.

In our household, the arrival of a new Potter book is not the event it once was when my daughter was younger. But we will probably still want to pick up a copy at midnight.

UPDATE: Back from the book party. There were hundreds of people there. The only other law professor I saw was Bernard Harcourt (U. Chicago), and he was in costume (mostly a black cape).

2D UPDATE (Saturday): I got up Saturday morning at about 9am. My daughter Katie had already finished the 6th Harry Potter book at 6:45am and finally gone to bed. She started reading the 652 page book about 12:20am, so it took her less than 6 1/2 hours. She has been able to read faster than her two parents (both professors) since she was 7 years old. Katie liked it better than the 5th book; she said that "the angst-ridden Harry Potter of the 5th book is no more."

I then went off to play golf in the Chicago City Amateur. I shot another 79 and, as expected, missed the cut (the leader shot 66 for a 2-day total of 134).

Trinidad & Tobago: In light of the overwhelming response in the comment thread below in favor of eclectic posts, I'm inspired to post this odd one for any readers in Trinidad & Tobago.

  An old friend of mine contacted me recently to ask what it was like to defend police officers against bribery charges in Trinidad. He provided a link to this story from the Trinidad & Tobago Express, which indeed says that "Orin Kerr" is on the defense team of a bribery case there:
  State attorneys George Busby and Nirana Parsan are prosecuting while attorneys Mario Merritt and Orin Kerr are defending the accused.
  I've never heard of this case, or been to Trinidad. So I wonder, is there another criminal lawyer named Orin Kerr who happens to practice in Trinidad? Possible, but it seems somewhat unlikely. Does anyone have any insight into the story? I hope our readers have better things to do with their time than ponder this random and useless question, but in case anyone knows, I'm a little curious. (FWIW, I googled the reporter to try to find an e-mail address but came up empty; I e-mailed the newspaper last week but did not receive a response; and lots of googling has confirmed that other lawyers mentioned have had other cases in Trinidad, but not "orin kerr".)
A Question for Readers: As you have probably noticed, we Volokh Conspirators tend to blog on a pretty eclectic set of topics. On Wednesday, for example, we blogged about sex discrimination and same-sex marriage; terminology used in news reports about terror attacks; civil lawsuits; word puzzles; retiring sports announcers; supreme court nominations; restaurants near Toledo; legal brief formattting; and a couple of other topics.

  Here's my question: Do you like the mix? Or would you prefer if we divided the VC — either within the blog or by starting new spin-off blogs — so that there is more subject matter uniformity? This is an issue that comes up with a lot of blogs, and particularly with group blogs. Without editors to pass on whether a particular post topic is appropriate, bloggers tend to write about whatever they feel like writing about. Sometimes bloggers split up their work into two distinct blogs; for example, Stephen Bainbridge has his general blog and his wine blog. Analogously, we could split the VC into a "law and legal academia" blog and an "everything else" blog. Alternatively, perhaps we could just classify different posts by topic in a way that you could view topic-by-topic.

  I'm curious whether readers have strong thoughts about seeing something like this at the VC. Should we keep it 'as is,' or try for a structure with more subject matter uniformity? As always, civil and respectful comments only. (Oh, and to be clear, this is just a question I have, not something that I have discussed with any of my co-bloggers. So even if you want it, I don't know whether it would happen.)
Best Business Books for Law Students:

Last week Conglomerate tossed up the question of what should be recommended reading for incoming law students.

I'll toss up one now that is sure to be right up Conglomerate's alley (as well as Bainbridge and Ribstein)--what business books would you recommend to law students who want to learn more about business and the "deals" that we see in corporations, securities, and bankruptcy classes.

Many students come to law school as majors in fields such as History or English but become fascinated with corporate and commercial law. I often am asked whether I can recommend reading for these students that will give them some of the flavor and texture of a deal, or a merger, or a large bankruptcy, that lies behind the cases we read.

I usually recommend Barbarians at the Gate, which I think remains the most entertaining and informative description of the logic of agency costs, takeovers, etc. (Make sure you read the book rather than seeing the movie.)

And, of course, we bankruptcy lawyers retain a soft spot in our hearts for the famous workout scene in Tom Wolfe's A Man in Full. But I haven't ever found a really good book that takes the reader through the texture of a large bankruptcy case in the way that Barbarians at the Gate does for understanding the dynamics of a takeover.

I liked the documentary from a few years back also, which was a nice look inside the business side of venture capital and the boom.

Recommended books can be either fiction or nonfiction--I'm looking for books tha will give the flavor and texture of business transactions for those who are trying to get the intuition, rather than a textbook presentation.

Guantanamo Cases Can Go Forward: The DC Circuit has issued its ruling in the Hamdan case about military tribunals at Gitmo. My very quick skim of the opinion suggests the use of several alternative rationales for the holding, which would seem to make Supreme Court review less likely. But I'll need to take a closer look later today to offer anything more concrete.
Latest SCOTUS Odds:

Sean Sirrine rounds-up the latest SCOTUS appointment odds from the various gambling houses around the world.

As others have noted, these markets seem to be quite unreliable and thinly traded. BetUS, for instance, has Miguel Estrada at 3 to 1, which seems somewhat implausible.


Sean Sirrine says that these markets work good enough for him. For current purposes, he does make a good point in his response--if there is only one seat open, what matters is whether the markets correctly pick the top choice, not whether the odds on the second, third, or tenth-place choices are relevant. If the value in the market is the one-zero prediction of who gets the nomination, this may require a different set of information than that suggested by Bainbridge.

New York Legalizes Interstate Direct Shipment of Wine:

In response to the Supreme Court's decision striking down New York's discriminatory ban on interstate direct-shipment of wine, Governor George Pataki this week signed a new law legalizing interstate direct shipment of wine. The law takes effect in 30 days.

The AP story is here. The story reports that Michigan, the other state involved in the Supreme Court case, is considering similar legislation that would move in the opposite direction, by banning all direct shipment, whether from in-state or out-of-state wineries.

Advertising and Children's Obesity:

In response to a rapid increase in childrens' obesity rates over the past two decades, some politicians and interest groups have called for a ban on food advertising directed at children on the argument that such advertising has contributed to the children's obesity problem.

A new study by Federal Trade Commission staff reported yesterday, however, finds that over the past 28 years there has been a significant drop in the number of food product ads viewed by children. As the Washington Post reports:

Children see significantly fewer television ads promoting food products today than they did 28 years ago, according to a new study by the staff of the Federal Trade Commission.

Today, children watch about 13 food advertisements a day on television, down from more than 18 in 1977, the agency staff said. The staff study did not address how many other food ads kids see through other kinds of promotions, including online gaming, package promotions and in-school marketing.

Overall, the drop in food ads on shows watched predominantly by children aged 2-11 was on the magnitude of approximatley 30-50%, depending on the measurement of what proportion of the audience was children. There were very large drops in children's advertising for cereal and candy products and small increases in ads for restaurants, movies, video games, dvd's, and other kinds of food such as yogurt.

The large drop in food advertising may be explained in part by the fact that much more of the television ad time today is being given over to promotional ads for other programs, as well as an increase in advertisements for products such as dvd's and video games, which either didn't exist 28 years ago or did so on a much smaller scale than today.

Moroever, my earlier research finds, somewhat surprisingly, that there has been a substantial downward trend in commercial television viewing by children during this same period, from about 4 hours a day, to a little under 3 hours, which probably explains some of the decline in viewing of ads. As parents will quickly realize, however, this drop in television viewing has been offset by a larger rise in "screen time" such as computers, video games, and dvd's and videos, such that even though kids are watching less television (and seeing fewer paid ads) they are probably engaging in more sedentary activity. This also doesn't count the important introduction of commercial-free or largely commercial-free premium cable tv such as HBO Family or the Disney Channel. There is no good evidence on the prevalence of food ads on those media.

This is the most comprehensive reseach on the question of the relationship between the purported link between food advertising and the rise in children's obesity to date. It is consistent with what some of us predicted previously that further research would likely find.

The findings were reported at a joint FTC-HHS workshop on Marketing, Self-Regulation, and Childhood Obesity. The workshop concludes today. There are call-in numbers for those who are interested in listening in to the proceedings, but cannot make it to Washington.

FTC Chair Deborah Majoras also reiterated in her remarks opening the workshop that there remains no plan for the FTC to ban food advertising on children's television, a policy decision that is reinforced by the findings reported yesterday:

In opening the workshop, FTC Chairman Deborah Platt Majoras said it would be unwise and not viable for the agency to ban children's food advertising. However, she warned, it would also be "unwise for industry to maintain the status quo. Not only is downplaying the concerns of consumers bad business, but if industry fails to demonstrate a good-faith commitment to this issue and take positive steps, others may step in and act in its stead."

Less Support for Terrorism in Muslim Nations: From the USA Today:
  Support for suicide bombings has dropped significantly in several predominantly Muslim nations, a worldwide public-opinion survey has found — a positive note at a time concerns have been heightened by terrorist attacks in London, Iraq and Israel.
  The report by the Pew Global Attitudes Project, released Thursday, also found substantial concern about Islamic extremism not only among Westerners but also in Muslim nations. Three-quarters of those in Morocco and roughly half of those in Pakistan, Turkey and Indonesia said Islamic extremism posed a threat to their countries.
  A chasm continues to exist between the Muslim world and the West in attitudes toward the appropriate role of Islam in government and the roots of Islamic radicalism. But the survey showed ebbing support among Muslims for the terrorism that has defined global relations since the Sept. 11 attacks on New York and Washington nearly four years ago.
Also interesting, from the end of the story:
  In nine Western nations polled, fears about radical Islam were tied to perceptions of Muslim communities within those countries. Resident Muslims were seen as having a strong and growing sense of Islamic identity, a situation most of those surveyed saw as a bad thing.
  Even so, in the United States and most Western nations majorities said they had favorable views of Muslims. Those in predominantly Muslim countries had mixed views of Christians and very negative views of Jews.
  The report itself is available here.
Humor in Times of Crisis:

I've Tivo'ed a number of recent programs on Winston Churchill recently, and have noted that he had a remarkable gift of showing leadership and building solidarity through the use of humor in times of crisis, i.e., WWII. He would often sort of poke fun at Hitler and the Nazi and thereby cut them down to a size where the British felt that the Germans were beatable as well as bolstering British morale that they must eventually prevail. Reagan too, was able to do this during the Cold War by poking fun at the Soviet economy (like the old jokes about the giant nail or the electrician appointment ten years hence "in the afternoon"). These were both deadly serious times, but somehow both Churchill and Reagan could use humor to unite their countries and humanize the enemy by bringing them down to size.

My impression is that the humor has gone out of politics, especially on serious subjects. If so, why is that? One explanation could be that politicians these days are essentially humorless--they are so heavily stage-managed and scripted that there is no room for humor. Or second, could this be another casualty of partisanship and the 24-hour news cycle? My impression is that attempts to use humor today, especially about serious subjects, run the risk of being pounced upon and brandished as evidence of a lack of "seriousness" or "concern" about the subject matter. Third, perhaps there is something about the type of threats we face today (terrorism, for instance), that mean that they are simply are not amenable to humor in the same way as WWII or the Cold War.

I don't know the answer, but watching Churchill, it is amazing how he could use humor to deflate very tense discussions--you simply feel a deep relief when you smile and laugh along with him. For many reasons, it seems like we could use that sort of influence today in politics.

If anyone has any thoughts on this, I would be interested in hearing them.

The Perils of Blogging:

I've been meaning to post on this article from the Chronicle of Higher Education by the pseudnymous(!) Ivan Tribble, "a humanities professor at a small liberal-arts college in the Midwest," about how blogging can hurt folks in the academic job market. Titled "Bloggers Need Not Apply," the essay suggests that blogging has more costs than benefits for academic job seekers.

Ann Althouse notes that the article conspicuously avoids "the one really serious danger that a responsible, high-quality blogger faces: revealing your politics." Daniel Drezner has some additional thoughts here that are also well worth the read. I don't have much to add to what they've already said, so go read their posts.

Infinite Loop of Leak Investigations?: The Associated Press is reporting an interesting development in the Plame investigation:
  Presidential confidant Karl Rove testified to a grand jury that he learned the identity of a CIA operative originally from journalists, then informally discussed the information with a Time magazine reporter days before the story broke, according to a person briefed on the testimony.
  The person, who works in the legal profession and spoke only on condition of anonymity because of the secrecy of grand jury proceedings, told The Associated Press that Rove testified last year that he remembers specifically being told by columnist Robert Novak that Valerie Plame, the wife of a harsh Iraq war critic, worked for the CIA.
  I wonder if the Plame story will now play out in an infinite loop of leak investigations. The Plame investigation is looking into the leak of Plame's identity; Rove testified about the leak; and now someone is leaking Rove's testimony, perhaps in violation of the grand jury secrecy rules. This clearly calls for a new investigation of who is leaking Rove's grand jury testimony. The prosecutor can them empanel a grand jury and call in witnesses to see who leaked the Rove testimony, which presumably will lead to more grand jury testimony, and then someone will leak some goodies from that new testimony. Then a new prosecutor can investigate the new leaks, opening an investigation to see who leaked about the leak about the leak about the leak. Could be a long summer.

Thursday, July 14, 2005

Out of E-Mail Touch:

I'll be almost entirely away from my e-mail until Monday the 25th; and when I return on the 25th, I'll probably have several hundred messages (despite this post), and will likely quickly delete most of them without responding.

If you want to let me know about something time-sensitive, I probably won't be able to do anything about it. If you want to let me know about something that's not time-sensitive, it would probably be best to do that after Monday the 25th.

I will probably be checking my voice-mail, though, in case something urgent comes up.

News From The Chief: Big news — Chief Justice Rehnquist announced tonight that he is planning on sticking around. SCOTUSBlog has the text of the statement Rehnquist released today:
I want to put to rest the speculation and unfounded rumors of my imminent retirement. I am not about to announce my retirement. I will continue to perform my duties as Chief Justice as long as my health permits.
FAIR v. Rumsfeld:

An amicus brief is being prepared to be filed in the Supreme Court on behalf of law students and law professors urging the reversal of the Third Circuit's opinion in FAIR v. Rumsfeld. The brief will be filed in support of the constitutionality of the Solomon Amendment. The brief is authored by my colleagues Nelson Lund, Dan Polsby, and Joseph Zengerle of George Mason Law School and several lawyers from the law firm of from Wiley, Rein and Fielding in Washington, DC.

If you are law professor and you think you may be interested in signing onto the brief, you can download a copy of the brief here. Instructions for how to go about affixing your name to the brief are provided there as well as well as who to contact for further info.

Please note that if you would like to sign your name to the brief, you must do so by NOON, Friday, July 15, 2005.

Please do not direct any questions or anything else to me--follow the contact info indicated in the link. I am signing the brief, but am not a primary author on it, so I can provide no answers about details or logistics.

The Golden Age:

Andrew Sullivan writes (emphasis added):

Emails are running overwhelmingly in favor of the "abusive and degrading" treatment of detainees, as cited in the Schmidt report. And they are in favor of narrowing the definition of torture to the extremes that the Bush administration has done. Here's a typical email:

"McCain is right -- it's our reputation that matters here.

And, if you're fighting fanatical terrorists, it's good to have a reputation for aggressive interrogation techniques. As long as it's within the law, JUST DO IT. That's what the Administration has done, and more power to them. Degrading treatment and aggressive interrogation techniques designed to open hearts and minds are all admissible under the law, as long as it's not torture, and that's as it should be.

Welcome to America, Andrew. I think you'll find that a vast majority of the American people want our lawyers to tell us the limits of the law. Americans don't want the French or the Swedes or the Germans to define the limits for our interrogation techniques during GWOT. Nor do they want those limits to be defined by the liberal salons in NYC and San Francisco, or their silly liberal op-ed writers. And torture has a legal definition which should not be allowed to be dumbed down by the sensitivities of talking heads, bloggers, literati, and glitterati. That's American, and it's good.

Short of torture, I'm glad that they're doing what they can and should to break these awful men. That's a good reputation to have in the Arab world -- screw the cultural sensitivities of the European softies. They're not with us in this war, so bother them all.

Soon, I think the Paki-bashers in merry old England will blow up a mosque or two. And they will do that because they don't have any faith in their authorities taking a hard line on English terrorists. I don't think that will happen in America, but it may if we get attacked too.

I fear this is the popular view. America is not the America it once was. But a couple of points: much of this is against the law, unless you believe that the president can change the law as he sees fit in wartime. Most do. As another emailer put it, "The Bush Administration will not be harmed by these reports of torture. The country has spoken and it does not mind. The pictures and actions are very American."

Is there really reason to think that once upon a time, Americans were less willing to support harsh treatment -- I haven't read the report, so I don't know how harsh, but let's interpolate from Sullivan's correspondent's message -- of suspected terrorists than they are now? When was this time, and how long did it last?

Perhaps it might have happened during World War II, when the issue involved German soldiers captured during normal operations, fighting in uniform, though I'm not even sure that this is so; but would it have happened as to enemy combatants who are suspected of being involved in clandestine, plain-clothes attacks (which as I understand it describes many and likely most of the Guantanamo detainees)?

My suspicion is that there was no such time, and that if anything the public condemnation of harsh treatment is greater than what we'd likely have seen in earlier eras. But I may well be wrong; I'd love to hear from people who have actually studied this matter.

Incidentally, none of this tells us what the right rule is, and whether Sullivan or his correspondent is right on the merits. My question here is solely related to whether America is worse, better, or the same as it always has been on this point.

Chicago Tribune on Nomination Politics:

Chicago Tribune has a story today about liberal Republicans joining with some Democrats to express their views on a proper Supreme Court nominee.

According to the story, as a result of opposition from liberal Republicans, Edith Jones is reported to be "no longer under serious" consideration for the vacancy.

As for the idea expressed in the article that the President should "appoint someone like O'Connor," I'm not sure that can actually be done. As one of my colleagues observed to me one day, "The problem with pragmatists is that every one is different," so it's not really clear that you can aim for someone "like O'Connor." Moreover, as Charles Krauthammer noted in his column on O'Connor, the problem with O'Connor's pragmatism was that you could never be quite sure what factors she would consider to be relevant or outcome-determinant in any given case. In other words, the next pragmatist could very well weigh every factor completely differently from O'Connor and have everything come out with a reverse result.

Sex Crime and Sex:

Slate's Explainer reports:

How do psychologists assess the risk that a sex offender will strike again?

Through a combination of clinical judgment and statistics. A forensic psychologist interviews the convict, speaks with his family, and reviews police reports and prison records. The psychologist combines this research with actuarial assessments designed to predict whether an offender will commit another crime.

These actuarial tools have become common only in the past 10 years; today, most forensic psychologists recognize their value in predicting recidivism. Researchers design the assessments by examining sex offender databases. They look for the variables that best correlate with repeated criminal activity, then whittle these down to the most important factors.

The simplest tool for evaluating sex offenders is the Rapid Risk Assessment for Sex Offense Recidivism. The RRASOR (pronounced "razor") includes just four items. A sex offender gets one point for being under the age of 25 at the time of his release from prison, another if any of his victims were male, and a third if he wasn't related to his victims. He gets up to three more points depending on how many sex crimes he's been charged with.

The most dangerous offenders, then, are young adults who have committed multiple sex crimes against boys they've never met before. According to the RRASOR's table of probabilities, these six-point cases have more than a 73 percent chance of committing another crime within 10 years. . . .

Let's say that the RRASOR test seems like an accurate predictor, and in particular sex criminals (overwhelmingly male ones) who attacked a boy are found to be substantially likelier to reoffend than those who attacked a girl. May parole boards and sentencing judges take the test's result into account? (1) Would this be sex discrimination, on the theory that it discriminates based on the sex of the victim, though not of the offender? (2) Would it therefore violate the Equal Protection Clause? (Note that the Equal Protection Clause has been interpreted as presumptively barring discrimination based on sex, though generally not discrimination based on sexual orientation.)

A Lesson for Law Reviews, and for Authors:

A friend of mine and I were e-mailing about various offers he had pending for a law review article he'd written, and in passing he mentioned this:

[One of the journals] forbid[s] web publication of their articles, which is an absolute deal-breaker . . . .

I was pleased to hear him say that, and I think more authors should take this view. We want more readers, and these days Web publication is critical to getting more readers. And I think law journals should take the same view, despite some possible (and I suspect quite minor) financial loss they'd get by not offering WESTLAW, LEXIS, and HeinOnline exclusivity.

Fortunately, he reported that the journal ultimately relented, "and sent me an e-mail offering to allow web publication. I've found that law reviews tend to offer very extreme form contracts, but are always willing to make reasonable concessions." That's quite right (except I'd say "almost always" rather than "always").

Turley on Court Fight:

Via Powerline, Professor Jonathan Turley comments on Supreme Court nomination politics and offers some advice to Senator Reid and the Democratic Party.

Budget Deficits and a Balanced Budget Amendment:

I received this email from a reader:


I have yet to encounter articles on the desirability of Fed budget deficits. Today's [Wednesday's] news states that due to increased tax revenue, the Fed deficit this year was reduced $100 B, but is still at $338 B. This in conjunction with a story I saw in Monday's WSJ (about corporate cash reserves being at an all-time high) had me thinking about the following: As corp debt is to some degree desirable, can gov't debt ever be?

Principally, corporations leverage themselves so that they can invest in what they are good at and make a considerably higher return than the interest rate on their debt. Could there ever be such an economic justification for gov'ts? Or is it just poor management, coupled with crisis spending, i.e., wars, hurricane relief, etc?

I would be interested to see you post on this topic on the VC.

This is something that I also haven't seen much commentary on and since this is something I have thought about a bit (its actually related to questions of household savings and that sort of thing that I work with all the time), so I'll give my thinking on it. I offer this to stimulate discussion and I hope other economists will offer their views too, especially if they have relevant empirical evidence that sheds light on the question.

The answer is yes, my view is that I think deficits could be ok but only under limited circumstances. In general, however, they are difficult to justify. Thus, it is likely that they are more defensible in theory than in practice. Whether the current budget deficits are defensible is an empirical question, I think, for reasons that I will elaborate, but that it is doubtful that much of recent budget deficits are justified.

First, as suggested in the email there is an analogy to corporate debt, if the government is making profitable investments in collective capital investment projects that the private sector would not undertake efficiently. So that if the government was building infrastructure, as local governments do when they go into debt to build schools or road. Or, arguably, investments in national defense or anti-terrorism could be these sorts of collective capital investments if they actually build a sort of anti-terror infrastructure. The federal government does not issue bonds in the same way that a municipal government does, but under this logic, they would be instrumentally similar.

There are, however, two qualifications to this. First, it must be that the investments are profitable investments, i.e., as mentioned in the email, where the rate of return exceeds the interest rate paid (which is actually the opportunity cost, as we will get to in a second). Unlike private businesses, however, there is no real accounting for the economic return on these projects, so it is pure speculation whether the return exceeds the interest rate. Given the amount of pork in infrastructure budgets (see the recent budget-busting highway bill) and the tendency to allocate these funds to political ends, rather than their highest-valued economic purpose, there is some doubt as to whether they recover their cost. As for investments in anti-terror and miliary expenditures, others have detailed the ways in which much of this money too has been diverted to other (pork) ends. So the WSJ definitely has a point in noting that the war against terror is certainly the sort of thing in which most people would agree it is appropriate to fund through deficit spending (just like wars are usually funded through deficits) and that this is probably a wise investment in theory, it also seems clear that in practice some of this money has been inappropriately diverted to nonproductive ends.

The second qualfication, of course, is that the money is actually being invested, not merely spent on consumption. To the extent that the deficit is caused by things like transfer payments (such as social security), etc., then it is difficult to see why this should be funded by deficits rather than taxes.

The second circumstance is what households do with the money. A "deficit" is nothing more than a deferred tax increase--either we pay today, or we pay in the future plus interest. So a deficit simply means that we have more money today, and less money whenever "we" have to repay the loan. There are three things that we can do with this "windfall." (1) We could simply save it in anticipation of higher taxes later--for instance, if we bought Treasury Bills then we would in theory perfectly break even vis a vis our future tax liability, or we could save the money and bequest it to our children to pay off our portion of the taxes. In this scenario (which is essentially similar to what is called "Ricardian Equivalence") deficits would be perfectly neutral. (2) We could spend our greater current income on current consumption, in which case this is a simple intergenerational wealth transfer, allowing us to consume today beyond our true wealth and trying to get someone else to pay for it.

Or, (3) We could invest it ourselves in some sort of individual investment and capital development. This is the most interesting arguemtn. It could be that if there are imperfections in certain capital markets for some reason, it might make sense for the government to borrow on our behalf and give us the money. For instance, the government essentially does this when it guarantees student loans--because of the riskiness of these sorts of investments in human capital, it is conceivable that such a private loan market might not work perfectly efficiently, and so a guaranteed student loan program might enable more efficient investments in human capital markets. So, if people are using their "extra" money, say, to quit working and go back to school to develop more valuable skills, and for some reason this is the most efficient way to enable them to do this, then it might make sense.

Again, however, the qualifications are substantial. My recollection from the Ricardian Equivalency literature (and any economists out there can set me straight on the current empirical state of the world on this question) is that people tend to save some of this and consume a substantial portion of this. Perhaps they invest some of it as well, but for most of those investments my guess is that the case for funding them through deficit spending is pretty week.

In the end, the case for budget deficits boils down to an empirical question about what the government and private individuals do with the money they get today, and the recognition that deficits today are just future taxes. In general, however, I am skeptical that capital markets are so incomplete that it makes sense to fund individual human capital investment through government deficit spending. And much of the deficit spending by the government today seems unrelated to true investment ends as well.

Two other arguments have also been made that I won't really discuss much, as they are more political and philosophical arguments, rather than economic arguments.

If the problem with deficits, roughly stated, is excessive government spending that funds current consumption (rather than investment), some have argued that deficits have the practical utility of constraining the overall size of the spending budget. This is Milton Friedman's famous justification for Reagan's budgets. This assumes, however, that there is some limit on public tolerance for budget deficits--it is no longer clear that this is the case. I had a long talk with James Buchanan a few weeks ago, and he strongly believes that this is the case, and that today, spending would be lower if we forced it to be financed by taxes rather than permitting deficits.

Some have also made a philosophical argument that even if there is an intergenerational wealth transfer, it is justifiable, because our children and grandchildren will almost certainly be wealthier than us, and (oversimplified) that they "wouldn't mind" lending us some money today, just as we leave money for them in our wills. This doesn't seem to be particularly persuasive to me, but it is one argument that is occasionally made to justify even deficits that fund current consumption.

As for a balanced budget amendment to the Constitution, the idea seems to be an idea that has disappeared as a political matter, nonethless I think that the intellectual argument is interesting. Leaving aside practical enforcement problems for a moment, I understand the strongest argument in favor of a balanced-budget amendment to be a public choice sort of argument, rather than an economic one. The idea would be that to the extent that a balanced budget amendment created some constraint on spending, it would be to create a sort of prisoners' dilemma game among politicians--i.e., I could only get more for my project if you got less. The logic of the argument would be that through this competition for limited funds, politicians would have the incentive to identify and plunder one anothers' pork projects, thereby increasing the public scrutiny on pork. Under the current system, by contrast, they can logroll each others' pork and shove the cost into the deficit. The argument would be, therefore, that the effect of a balanced-budget amendment would be to reduce expenditures on pork more than expenditures on public goods.

My sense of this argument for a balanced-budget amendment is that it too seems theoretically sound, but that the enforcement problems with a balanced-budget amendments, and the need for exceptions, would probably render it unenforceable in practice. In particular, it seems that any such BBA would probably put most entitlement spending off-budget, so it would not constrain exactly that which it would be intended to constrain in theory. Which is why I think the idea has fallen out of favor--in addition, of course, to changes in the political winds in Washington that no longer see it as, um, "necessary".


Professor Larry White notes in the Comments that he and Roger Garrison wrote a more extended discussion of this issue in the late-1990s in The Free Market, "Do Deficits Matter?" They also discuss Steven Landsburg's argument (also referenced in the Comments). I especially commend it for its discussion of Ricardian Equivalence, which I lacked the space to go into in the main post.

Short Overview of Search and Seizure Law: I have just uploaded an 11-page paper on the history, present, and future of Fourth Amendment law: Search and Seizure: Past, Present, and Future. It's a first draft of what should eventually be the Fourth Amendment entry in the forthcoming Oxford Encyclopedia of Legal History. Here is the Table of Contents:
I. Colonial Experience and the Enactment of the Fourth Amendment
II. The Fourth Amendment Before the Prohibition Era
III. The Prohibition Era to 1961
IV. The Criminal Procedure Revolution of the 1960s
V. The Modern Function and Framework of Fourth Amendment Doctrine
VI. The Future of the Fourth Amendment
The London Attacks and CCTV: The horrendous terrorist attacks in London last weeek will have many long-term effects, and one of them with interesting implications for civil liberties in the United States is the role of closed-circuit TV cameras, or CCTV. As U.S. readers may recall from Jeffrey Rosen's October 2001 essay in the New York Times Sunday Magazine, Britain has invested heavily in a comprehensive CCTV network as an anti-terrorism strategy. Most of what I know about Britain's CCTV network I know from Rosen's piece, but my understanding is that one of the key purposes of the system is help the authorities identify terrorists and expose their network in the event of an attack.

  I have conflicting views about the overall merits of this kind of approach. It's a very complicated question, and my sense is that the devil is in the details of how it is implemented. Nonetheless, it seems worth noting that the London CCTV network appears to have produced some helpful information about the London attacks, at least so far. The discovery of a CCTV picture of one of the terrorists, 18-year-old Hasib Hussain, is now the lead story at many news sites around the world. According to a story in This Is Local London, the authorities so far have used CCTV to identify Hussein and trace him from the time he entered the Luton train station at 7:20 am until his arrival at 8:26 at the Kings Cross station:
  The grainy image was captured by CCTV cameras at the station and discoverd by one of the hundreds of police officers scanning footage for clues.
  Hussain had previously travelled from West Yorkshire and police believe he arrived in London with three other men.
  Later he would board a No 30 bus bound for Hackney carrying a deadly rucksack containing a ten pound bomb.
  Police are still appealing for assistance in placing his movements between his 08.26am arrival at Kings Cross and the explosion on the bus at 09.47am, almost an hour after his accomplices detonated coordinated devices on Tube trains.
  Needless to say, none of this settles the question of whether CCTV cameras are a good idea, either in Britain, the United States, or anywhere else. But it will be interesting to see how much or how little information the CCTV camera records will provide as the authorities continue to scan the footage for clues of the attack.
More on Conservatives and Evolution:

A week or so ago, I posted on Ben Adler's New Republic story interviewing conservative pundits on various questions related to the theory of evolution, intelligent design theory, and the teaching of both. In that post, I took for granted that Adler had reported the answers accurately, but now I'm not so sure. Mike Rappaport at The Right Coast notes David Frum's objection that Adler's reporting may not have been fully accurate. As Rappaport writes:

I previously posted on the responses that conservatives gave concerning evolution. Now it appears that the New Republic may not have reported the answers fairly. David Frum, one of those interviewed, claims that Ben Adler played fast and loose with some ellipses. I had wondered about those ellipses. Sadly, you can't be too careful these days.

Frum adds:

Then he [Adler] asked me about whether I thought evolution should be taught in public schools. Here's the answer that he quotes in his survey:

"How evolution should be taught in public schools: 'I don't believe that anything that offends nine-tenths of the American public should be taught in public schools. ... Christianity is the faith of nine-tenths of the American public. ... I don't believe that public schools should embark on teaching anything that offends Christian principle.'"

Two ellipses in three sentences should stand as a warning to the reader that there's funny business going on here. Those are my words all right - but they are not words given in answer to the question in italics. They are answers to questions posed later in the interview, when Adler embarked on a very argumentative and tendentious line of queries about who should decide what gets taught.

I have no idea what proportion of Americans object to the teaching of evolution, but I very much doubt that it's 90% or even 50%. I was responding rather to a question about who should decide on public school curricula: parents or professionals. My sympathies are ever and always with the parents, in the full knowledge of how wrongheaded parents can be. At the same time, as I didn't go on to say, because I was losing patience with the argumentative Adler, I think that one of the great advantages of a system of private higher education is that it enables universities through their admissions criteria to influence the choices that parents make. I'm all for scientific education - achieved via market choice and democratic decision.

To my mind, that is certainly a very substantial difference in the interpretation of Frum's answers, in that he is plainly referring to the political question of who should set education policy, rather than questions of science.

Does anyone know whether other participants in the survey have come forward to object to how they were quoted?

(TZ: Added "have" to this sentence to fix the typo).

Bobby Jones:

I have long been interested in the great Bobby Jones and have wanted to learn more about him, especially after working at his old firm, Alston & Bird, out of law school (the firm was formed from the merger of Jones, Bird, & Howell and Alston, Miller & Gaines). Especially cool was the "Jones Conference Room", which had a bunch of pictures and Jones memorabilia, including a classic autographed picture of Bobby with President Eisenhower at Augusta (if I recall the details correctly). In particular, the veterans at the firm would speak in hushed and awed tones about what a remarkable man Jones was, and especially his depth of character and honor.

So I was very excited to get ahold of Mark Frost's book, The Grand Slam: Bobby Jones, America, and The Story of Golf. I had read great reviews of Frost's The Greatest Game Ever Played (I have this on my shelf to, but decided to read the Jones book first). I thought the book was ok, but not great. For my taste it gets bogged down in too much stroke-by-stroke description of tournaments on courses I've never seen, and insufficient insight into Jones and his personality. The ties to the events of the age (the Jazz Age and Great Depression) seem somewhat forced to me, unlike Laura Hillenbrand's glorious Seabiscuit. So while it is certainly a very readable and entertaining book, it may be of more interest as a book about golf than as a book about Jones.

I thought the best parts of the book were the early and beginning parts, which I thought had the best insights into how Jones grew into the hero he later became (learning the mental side of the game) and the later parts, describing Jones's retirement and dealing with his crippling medical condition (about the latter, Frost repeats Jones's great line to Al Laney, "You know, in golf we play the ball as it lies. Now, we will not speak of this again, ever."). Those were the times where I felt like I was getting to understand Jones and his persona a bit better.

I know that a slew of books and reprinted books have come out in the past years in honor of the 75th Anniversary of Jones's Slam (not to mention that the British Open is at St. Andrews again this year), so if anyone has any recommendations of books about Jones or his Grand Slam that you would recommend, especially as a complement to the Frost book, please recommend them in the Comments.

[Puzzleblogger Kevan Choset, July 14, 2005 at 10:58am] Trackbacks
Today's Times Crossword:

My puzzle challenge for you today comes in 76 parts and can be found in today's New York Times (p. E4 in the New York edition). I wrote it to coincide with Bastille Day. Enjoy!

"Makes you feel so, sort of, insignificant, doesn't it?"

To quote Monty Python. Tom Smith has the sad truth here. An excerpt:

A voice, crying in the wilderness, and then just crying

By Tom Smith

I just got some new data back from Lexis, with whom I am engaged in a massive citation study, but that's another story. This data concerns law review articles that are in their Shepard's database and how much they get cited. This data covers about 385,000 law review articles, notes, comments, etc. etc. that appear in 726 law reviews and journals, and looks at how often they are cited. Cited by other law reviews, or cases.

First of all, 43 percent of the articles are not cited . . . at all. Zero, nada, zilch. Almost 80 percent (i.e. 79 percent) of law review articles get ten or fewer citations. ...

Yoi and Double Yoi!


Now they're really
piling on. Does anyone else feel a midlife crisis coming on?

Joseph Wilson to appear Thursday morning on TODAY show.--

I see that Joseph Wilson is going to be interviewed on NBC’s TODAY show on Thursday morning. Given our adversarial press, this should be a wonderful opportunity for NBC reporters to get to the bottom of things. I would hope that they would ask Wilson questions about his complicity in his wife’s outing. If Wilson hadn’t lied to the press or the public about what he found in Niger, about how he was hired to go to Niger, and about the Italian forged document, then there would have been no reason for people to try to correct the misimpressions he created and the lies he told.

As the Washington Post reported:

[Wilson's reports to the CIA added to the evidence that Iraq may have tried to buy uranium in Niger, although officials at the State Department remained highly skeptical, the report said.

Wilson said that a former prime minister of Niger, Ibrahim Assane Mayaki, was unaware of any sales contract with Iraq, but said that in June 1999 a businessman approached him, insisting that he meet with an Iraqi delegation to discuss "expanding commercial relations" between Niger and Iraq — which Mayaki interpreted to mean they wanted to discuss yellowcake sales. A report CIA officials drafted after debriefing Wilson said that "although the meeting took place, Mayaki let the matter drop due to UN sanctions on Iraq.]

[[See 3D Update below for a sentence from the Washington Post that I deleted here because the Washington Post corrected it.]]

So[, although both Wilson and the CIA doubted it at the time,] Wilson had found [some] evidence that tended to confirm the substance of the sentence in Bush’s 2003 State of the Union address: “The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa.”

The bipartisan Senate Intelligence Committee 2004 report exposed Wilson’s lies on what he found and told the CIA, as well as the one about how Wilson was hired.

Wilson said that his wife Valerie Plame had nothing to do with his being hired: “Valerie had nothing to do with the matter." "She definitely had not proposed that I make the trip." But the 2004 Senate Intelligence report said that she first suggested him for the trip and then followed up with a memo touting his suitability for the mission.

It would be great if NBC TODAY would probe Wilson on these matters. The Wall Street Journal says that Wilson had started lying to the press and public about how he was hired before his wife was outed, in part by Rove. Correcting this lie (were Plame not a covert agent) not only would be a smart partisan thing to do, but it would be the right thing to do. Wilson was publicly lying about what he found in Niger, publicly lying about what he reported to the CIA, and (according to the WSJ) publicly lying about how he was hired. Except for the “covert agent” issue, it would be right to correct all these lies. Indeed, reporter Cooper’s email reveals that Rove was offering a “big warning” “not to get too far out on Wilson,” a warning that the press should have heeded but didn’t. They believed Wilson, only to find out that his account was untrue.

But it appears probable, though not certain, that Plame was a covert agent (the statutory definition turns on whether she was on undercover missions outside the US in the 5 years before the disclosure of her identity, a factual issue that for some reason few outside of Powerline have focused on). The other reason that Plame may not have been a covert agent is that, according to bloggers quoting Andrea Mitchell, who was involved in NBC’s early stories on Wilson, it was widely known that Wilson’s wife worked for the CIA. Yet if Plame was a “covert agent,” it would not be right or justified for Rove to expose Plame’s identity.

Here it would be good to ask Wilson whether he thought that by lying about what he found in Niger and what he told the CIA and how he was selected, he was gambling with his wife’s safety. How could he be sure that people would know that Plame was a covert agent, or that there was a law against revealing her identity? Perhaps someone might have reasonably believed that they were correcting misimpressions that Wilson himself had created. Did Wilson realize that he had put the Administration in something analogous to a Catch-22?: Wilson can lie about how he was hired but the Administration can’t correct his lie without outing his wife. Did Wilson consciously decide to gamble with his wife’s safety by lying in a way that would be hard for the Administration to correct? This is the line of questioning that I would most like NBC TODAY to explore (in a more respectful tone, of course).

One of the revelations of the Time Magazine Cooper email is that it gives the context of Rove’s disclosure that Wilson was suggested by his wife. The context strongly suggests that it wasn’t retaliation, but rather it was part of a discussion trying to correct any misimpressions of how Wilson was hired to do the mission. According to the Cooper email, Rove discussed whether the Director of the CIA or Vice President Cheney had authorized the trip.

So on the legal charge of intentional disclosure of Plame’s undercover identity, there is nothing in the Cooper email to suggest the sort of knowledge by Rove necessary to convict under the Intelligence Identities Protection Act of 1982 (50 U.S.C. 421 et seq.). It punishes one who “intentionally discloses any information identifying such covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such covert agent and that the United States is taking affirmative measures to conceal such covert agent's intelligence relationship to the United States . . .” It's not even clear (beyond a reasonable doubt, no less) that Rove knew Plame's name, knew that the information that he disclosed identified her, or knew that the US was taking affirmative steps to conceal her relationship to the intelligence community (if it was indeed doing so).

Of course, other evidence might be offered to show that Rove knew that he was contributing to the outing of an undercover CIA agent, rather than just explaining the context of the hiring of Wilson; but the Cooper email certainly doesn’t help the prosecutors in proving intent. The intent standard on this charge is particularly high, and will be hard for prosecutors to meet. For this reason, the country’s three leading newspapers—the Wall Street Journal, the NY Times, and the Washington Post—have concluded that, by leaking, no crime was committed or they seriously doubt that any crime was committed.

But that doesn’t let either Rove or Bush off the hook entirely. I won’t go into the other evidence in part because I don’t know much about it, but the question whether Rove lied to Bush or the White House press office is still an open question (Rove was quoted as having said that he wasn’t involved, which if he really said this, appears to be a lie). If Rove lied to investigators, then he might be prosecuted for obstruction of justice or related claims.

And President Bush promised to fire the leaker. Although Bush could argue that, at the time he promised this, he assumed that the leaker had committed a crime by leaking (and now it appears that the leaker did not), this is a very hard case to make to the public and the press. It would seem that Bush must either fire Rove or break his promise (even though Bush may have a plausible argument that his promise was based on a false premise—that the leaker committed a crime by leaking).

Powerline has been particularly good on the Wilson-Plame story and the press’s failure to deal with the fact that Wilson’s account of his Niger investigation was false. The WSJ has a strong editorial as well. Yet we must not lose sight that there may be other lies that Rove told about non-involvement in outing Plame, and that Bush must deal with his promise to fire the leaker.

UPDATE: Justin Levine at Calblog catches Howard Kurtz trying to pretend that Wilson was telling the truth, and someone at the Post editing out some of the evidence against Wilson in one version of Kurtz's story.

2D UPDATE: Well, something that looks like a Today Show transcript is up on MSNBC's website, and its dateline is "Today show[,] Updated: 8:24 a.m. ET July 14, 2005."

The interview, conducted by Jamie Gangel, is an embarrassment. The hardest question asked is: "Your critics have said that this is partisan on your part, that you are part of a Democratic attempt to discredit Iraq policy." Frankly, the question of bias is relevant only AFTER one determines if someone is telling the truth. If what Joe Wilson said were true, it wouldn't matter that he was a Kerry supporter. The question of bias is meaningful only in trying to figure out WHY Wilson was wrong, not WHETHER Wilson was wrong. People often have partisan motives for doing the right thing or exposing lies--among other motives, such as the desire to be decent and honest.

3D UPDATE: NOTE: Obsidianwings points out that the Washington Post story that I quoted from had been corrected to change "Iraq" to "Iran" in the following sentence: “According to the former Niger mining minister, Wilson told his CIA contacts, Iraq tried to buy 400 tons of uranium in 1998.” I have accordingly updated, replacing this sentence with the first bracketed material above. Any necessary additions are shown in brackets.

Round Numbers:

If square numbers are the areas of squares whose dimensions are integers (the origin of the term square, I think), then shouldn't round numbers be pi, pi*4, pi*9, and so on?


Wednesday, July 13, 2005

Would Recognition of Same-Sex Marriage Also Mean a Ban on Private Discrimination,

if the theory is that sexual orientation discrimination is a form of sex discrimnation?

Many proponents of same-sex marriage rely (at least in part) on this theory, and at least one judge has accepted it. If Jane is barred from marrying Kate but is allowed to marry Larry, the argument goes, that’s sex discrimination -- the law is considering Jane’s, Kate’s, and Larry’s sex in deciding whom they may marry. Under similar circumstances, bans on interracial marriage are treated as race discrimination; therefore, bans on same-sex marriage should be treated as sex discrimination. Let’s assume that this argument is indeed accepted, and courts hold that traditional marriage rules violate the Equal Protection Clause (or a state Equal Rights Amendment).

It seems to me that exactly the same argument would be available as to discrimination by private parties, under statutes that bar sex discrimination. If sexual orientation discrimination is logically sex discrimination under constitutional rules, then it would be sex discrimination under statutory rules.

After all, antidiscrimination law bars employers from firing people for dating outside their race. Under the logic of the Jane/Kate/Larry argument, the sex discrimination branch of that law would likewise bar employers from firing people for dating within their own sex. And the same would apply to housing, public accommodations, and any other places where sex discrimination is banned (though probably not scouting organizations, at least so long as the Girl Scouts can remain the Girl Scouts).

Nonetheless, I would think that quite a few people who are open to government recognition of same-sex marriage would be quite hesitant to create more restriction on private employers: For instance, the former would make lots of sense to many libertarians, but the latter would not. Moreover, some people who only mildly oppose same-sex marriage (for instance, because they recognize that the matter is largely symbolic, and that it makes little real difference to them whether same-sex couples are allowed to marry) might much more strongly oppose a new set of antidiscrimination laws, which would indeed restrict others' freedom of action. Yet while judges might conclude that sexual orientation discrimnation is sex discrimnation for Equal Protection Clause purposes but not for statutory purposes, others (perhaps enough to affect the result) may disagree.

Have you folks seen this being used as an argument, either for accepting this theory to justify a right to same-sex marriage (look, we can get bans on private discrimination this way, too!), or for rejecting this theory (if you accept it as to same-sex discrimination, then private discrimination will be banned, too!)? If you have, please post a pointer in the comments.

Please do not use the comments to discuss other arguments for or against same-sex marriage, or for or against antidiscrimination law, or for that matter the sexual orientation discrimination = sex discrimination argument on its own merits. I'd like to focus the discussion on the potential causal relationship between this argument and restrictions on nongovernmental discrimination. Many thanks.

FoxNews "Homicide Attack" Trope Criticized

by OpinionJournal's Best of the Web here (item 3).

"Bus Firm Takes Car Sharers to Court":

The Guardian (UK) reports:

[A] group of French cleaning ladies who organised a car-sharing scheme to get to work are being taken to court by a coach company which accuses them of "an act of unfair and parasitical competition".

The women, who live in Moselle and work five days a week at EU offices in Luxembourg, are being taken to court by Transports Schiocchet Excursions, which runs a service along the route. It wants the women to be fined and their cars confiscated.

Two years ago a business tribunal threw out the company's case. It is now pursuing the women in a higher court . . . ..

"Using our cars is quicker and at least twice as cheap. And on the bus we didn't have the right to eat or even to speak," said Martine Bourguignon. Odette Friedmann added: "In the evening instead of coming to get us at 9.30pm the bus would arrive at 10.30pm. If you made any comment to the driver you'd get a mouthful of abuse."

TSE is also suing the women's employer, Onet-Luxembourg. . . .

Thanks to John Chalmers for the pointer.


I'm delighted to say that I've just been officially given the Gary T. Schwartz Chair at UCLA law school. It was a great privilege to have Gary as a teacher when I was a student here -- he really was a superb teacher -- and then as a colleague for several years until his untimely death.

Regrettably, it turns out that there's actually no physical chair involved, though maybe I could just rename my chair the Gary T. Schwartz Chair. Gary was a torts scholar, so perhaps that will decrease my chance of having accidents in the chair -- or would it increase the chance?

[Puzzleblogger Kevan Choset, July 13, 2005 at 4:37pm] Trackbacks

Here's a gimme: There is a person who has been in the news lately whose initials are the same as the initials of his/her job. Who is that person? (Click below for the answer.)


If you can think of any other people who have this property (whether or not they've recently been in the news), list them in the comments. Try to avoid stretches.

Suicide Bombers as Cowards:

This trope is coming up again, yet it still seems to me quite mistaken. Suicide bombers are murderers, but there seems to me little logical reason (as opposed to the emotional gratification of insulting someone evil) to call them cowards.

The obvious point, of course, is that cowardice usually consists of fear of death or injury; the suicide bombers pretty clearly embrace their own deaths. (I set aside suicide bombers who are forced or tricked into being suicide bombers, for whom the analysis may be different.) Now it's true that attacking defenseless people is often seen as cowardice, but that's precisely because most attacks on defenseless people — as opposed to attacks on well-armed people — pose little immediate risk of death or injury for the attacker. Attacking defenseless people with a suicide bomb doesn't share that characteristic. Again, it's evil, but not cowardly.

Some have suggested that the cowardice here is in an unwillingness to confront punishment for their own crimes, much like some might fault a person who commits suicide rather than face a just trial as taking "the coward's way out." But I doubt that the typical suicide bomber is committing suicide to avoid the shame and humiliation of a trial. The crime is just easier to commit if he's willing to die. (A few people may in some situations commit suicide to prevent being taken prisoner and forced to divulge the names of their comrades; but while this may reflect their knowledge of their limited capacity to withstand various kinds of pressure, it generally isn't seen as cowardice. In any event I doubt that it's a big part of why suicide bombers choose that tactic, though it might be help their leaders choose it for them.)

Here's a thought experiment that I think helps put this into perspective: Imagine a just war in which a soldier volunteers for a "suicide mission," in the sense of a mission that is extremely likely to lead to his death. Say, for instance, that we need to knock out the place where the North Koreans keep their nuclear weapons, and the only way to do it is by sending in a force that's nearly certain to get killed (either because they use specific suicide tactics, or because they'll be so overwhelmingly outnumbered in such a tactically adverse situation that there's nearly no chance that they'll get out alive, even if there is a substantial chance that they'll accomplish their objective).

Naturally, our force will try to do what we can to make the target as defenseless as possible, for instance, by using extreme stealth. Though the guards are doubtless armed, our force will try to keep them from using their arms, sneak up behind them and cut their throats, use camouflage, and so on. Then it will destroy the installation, incidentally killing many people who are present; but in the process, our soldiers are sure to get killed.

The members of the force are willing to do that, because of love of country, desire for revenge (if, for instance, their families had been killed by the enemy), or even religious zeal. Some might even use their religious faith as consolation, thinking that their actions are righteous, and that they are trading off a life of emotional pain (again, assume their families had been killed) for heavenly bliss and reunion with their loved ones.

Surely this isn't cowardice: It's embracing danger and likely death, not evading it. To the extent the soldiers do try to evade capture, they're doing it to make the mission successful, not to decrease danger. The fact that they're avoiding trial or killing people who can't defend themselves (because they sneak up behind them) doesn't make them cowards — that's what they need to do to get their task done.

And their sense that their lives won't really be over, but that they'll instead go to a better place, doesn't make them cowards, either. One can, I suppose, say that it takes somewhat less courage to give up your life if you're 100% confident of life eternal than if you think your existence will just end, or if you're not sure. But this doesn't make the decision to give up your life when you're confident of the hereafter cowardly; at most, it makes it a bit less courageous.

Naturally, there's a huge difference between these people and Islamist suicide bombers: Our soldiers' actions are moral and even praiseworthy (because their ends are sound and because they are targeting a legitimate military target, and causing death to civilians only incidentally to that), while the Islamist suicide bombers' actions are immoral. But the difference has to do with morality, not with cowardice.

Again, I understand the emotional appeal of heaping all sorts of scorn on evil people: They're not just evil, but they're cowardly. And they're ugly, idiots, and probably lousy lovers. But it seems to me that this emotional relief comes at the price of logical error.

UPDATE: Chris Lansdown puts it well in the comments: "[T]argeting a group that's less able to defend itself to increase the likelihood of success rather than to decrease the likelihood of personal peril isn't cowardly, it's dastardly (which is worse, though a different sort of malfeasance)."

Rehnquist hospitalized overnight with a fever.--

Chief Justice Rehnquist was hospitalized overnight with a fever. He remains in the hospital.

Michael Chertoff is Trying to shake things up. Good for him.
A Retirement That Really Matters:

Yoi and Double Yoi! Forget O'Connor--how did I miss the news that the legendary Steelers announcer Myron Cope retired?

And I was looking forward to a few more years of him trying to pronounce "Roethlisberger."

Prior Judicial Experience and Supreme Court Nominations: I've seen lots of discussion recently about the merits of nominating someone to the Supreme Court who is not a career judge. Proponents generally argue that nominating someone who is not a judge already will help the Court by adding some real-life practical experience.

  I think there may be something to this; there can be pros and cons to nominating a person without prior judicial experience, and this may be a "pro" in some cases. At the same time, I'm not quite sure a significant difference exists between nominees with prior judicial experience and those without. There may be a difference, but it's helpful not to overstate it.

  Here's my thinking:

  1. Most judges considered for appointment to the Supreme Court have been judges only for a few years. Even if appointment to a federal appellate judgeship somehow ended their ability to gain "life experience," they would still have all that life experience from the time before their appointment.

  2. In recent years, many Supreme Court Justices have served for 20 or even 30 years. Even if they were not "career judges" at the time of their appointment, they became career judges after a few years at the Court.

  3. The effect of life experience can cut in lots of different ways. One example is Justice Douglas, who had some interesting life experience before he was appointed to the Court. While he was quite young when he was confirmed (40, I believe), Douglas had been head of the SEC in the middle of the New Deal. When he got to the Court, however, he found the work surprisingly boring. Douglas was more interested in life and its experiences than the intricate details of federal law, and his lack of interest led to some notably sloppy opinions over his 36 years at the Court.

  4. Sitting judges have life experience, too. Life experience often comes from life more than from a job.

  Of course, this doesn't mean that nominees who have never been judges before are worse nominees than those that have. Some of my favorite Justices had not served as judges prior to their appointment to the Supreme Court. And I think it's fair to be concerned that a nominee who was appointed to the bench at a very young age may be a little too cloistered from the rest of the world. But on the whole, trends are hard to identify. My guess is that prior judicial experience probably matters less than many people think.
Oak Harbor, Ohio:

I'll be there next week -- if anyone has any suggestions for unexpected treats there (e.g., good eateries and the like), please e-mail them at volokh at A longshot, I realize, but who knows: Maybe some of our readers have been there. Thanks!

"Cheat Sheet to Supreme Court Speak": I have an op-ed in the Los Angeles Times today poking fun at newspapers and talking heads for their predictable commentary on Supreme Court vacancies and the confirmation process. It's basically a reworked version of my blog post from last week, The Only Supreme Court Editorial You Need to Read. The formatting of the online version doesn't let you see it very well, but the "op-ed template" is supposed to begin in the third paragraph. I'm told that formatting makes it clear in the paper version, but who knows.
Guns, Germs, and Steel:

The reviews I have read of the PBS series Guns, Germs, and Steel have been fairly negative, especially regarding the entertainment value of the show. As a result, I was almost going to skip watching it on tv, but I liked the book so much when I read it, I thought I would go ahead and give the program a try. I'm glad I did. My wife and I watched the first episode last night (it will be three episodes total), and we both enjoyed it immensely. I especially thought some of the visual graphics and other production values were pretty neat. I recommend it.

In the end, of course, Diamond's basic thesis is probably incorrect. As he states it in the first episode program, his argument is that "the causes of inequality can be summed-up in one-word: 'geography.'" It is difficult to see how "geography" explains the differences in economic conditions between North and South Korea, or how Argentina went from rich to relatively poorer in a few years of Peronism, or, most notably, how Hong Kong has prospered despite having essentially no geographic endowments at all. China was the richest and most advanced civilization in the world at the first millenium, but the industrial revolution (which created the "inequality of cargo" problem that Diamond is studying) did not happen there. Institutions, and especially the rule of law and constitutionally-limited government, are plainly more important than geography in explaining why some countries have gotten rich and others have not. The funny thing is, Diamond has a pretty good chapter in the book on the role of economic and political institutions in promoting freedom and prosperity, but appears that this subtlety may drop out of the series (it was one of the later chapters in the book, though, so I hold out hope that they are going to get to it later in the series).

As my colleague Pete Boettke often asks about a claim such as Diamond's, "Where's the counterexamples?" I can think of many counterexamples where countries have grown rich notwithstanding poor geographic endowments and have remained poor notwithstanding ample geographic endowments. But show me the country that adopted freedom, the rule of law, free trade, and constitutionally-limited government, yet remained poor? And if geography and the latitudinal migration out of the Fertile Crescent into Western Europe was so important, why did it take so long for the countries of Western Europe to catch up to China, and they why did Western Europe then go roaring past?

Or, to put it another way, "There are many ways that people can choose to live. But there are relatively few ways that people can live in peace and prosperity."

Notwithstanding that I recommed the program (and the book as well, of course). Lots of very interesting things to think about here.

I have provided a summary of some of the extensive literature on the relationship between the rule of law, freedom, and prosperity in my article by that same title. The article was a foreword to a Symposium I organized a few years ago on this topic which was published as a special volume of the Supreme Court Economic Review. SSRN (which very well may hold the distinction as the world's least reliable website), has been "replacing a drive on [its] server" for a couple of days now," so I can't link you to that version of the article. So here's the Working Paper version that was included in the series at the International Centre for Economic Research (ICER) when I was a Research Fellow there.

More on Brief Readability and Formatting:

A reader sends this along:

Since you've blogged several times about font and layout standards for briefs, I thought you might be interested in (or maybe just interested in posting about) what I think is a very clear and informative article about how typography and layout affect readability in the context of legal documents. The article is Ruth Anne Robbins, "Painting with print: Incorporating concepts of typographic and layout design into the text of legal writing documents," 2 J. Assn. L. Writing Dirs. 108 (2004):

Seems like a potentially useful and practical article on a topic we probably don't think about as much as we should. As one person on an earlier comment board suggested, in the past brief formatting questions were resolved through specialization and the division of labor, so they knew the answers to all of these questions. But now we do it ourselves, and we may not think about some of these practical questions.

Related Posts (on one page):

  1. More on Brief Readability and Formatting:
  2. Supreme Court Briefing Rules:
  3. 7th Circuit Rules on Brief Formatting:

Tuesday, July 12, 2005

Fox Gets Confused By Its Own Stylistic Innovation:

Gabe (A Handful of Sand) writes (emphasis added, see the post for links):

I wanted to add a clear example of just how presposterous [Fox's "suicide bomber"-to-"homicide bomber" conversion] ends up being, especially when it seems like someone just went through and replaced the word "suicide" with "homicide":

New evidence suggests four bombers blew themselves up on the London transportation system last week, killing at least 52 in what could be the first homicide attacks in Western Europe, officials said Tuesday.

The first homicide attacks? Even if one limits this to the first homicide attacks by Islamist terrorists, that's surely false — consider the Madrid bombings. They may well be the first major suicide attacks by Islamist terrorists, though. People who use the clearer, less redundant, and more information-laden "suicide bomber" formulation wouldn't have made this mistake. But people who talk of "homicide bomber" when they mean "bomber who kills people and also commits suicide" did make the mistake.

UPDATE: Some readers correctly pointed out that Fox borrowed the term from others -- most proximately the Bush Administration, though it had been coined earlier. "Its own stylistic innovation" was thus imprecise; I was focusing on the fact that this is Fox's little crotchet, not shared by any of its competitors, and thus innovative within its field, but I should probably have said "its own stylistic idiosyncracy" or some such.

The first uses of this term that I could find in NEXIS, by the way, were in two letters to the editor (Sally Kannemeyer, Newsweek, Oct. 1, 2001 and Daniel Rosenfield, Wash. Post, Oct. 2, 2001) and in a piece by a David Mittman, in Clinician Review, dated Oct. 1, 2001. Then there was a lull, which suggests that it hadn't been used by anyone really famous, or else there probably would have been more reportage or other echoes; but the cluster of publications near Oct. 1 suggest a likely common source, though I don't know which one.

Then in late March 2002, the phrase is used by several Israeli sources, outraged by suicide bombers in Israel. The Bush Administration picked it up in mid-April 2002, and some news outlets followed suit; as best I can tell, Fox is the one that has really made it a part of its lexicon. A quickie search suggests that Administration officials (including Bush) have largely reverted to "suicide bomber," with a few exceptions.

Brutish Displays of Leisure:

Until today, I didn't even know such things existed, but now that I've been alerted to this shocking breach of good taste, I wonder -- isn't blogging the most brutish of the lot? Or is it just brutish display of stolen leisure (i.e., goofing off when you should be working) rather than of genuine leisure?

Related Posts (on one page):

  1. Brutish Displays of Leisure:
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The DMCA and the Wayback Machine:

Bill Patry has a fascinating post on a novel and seemingly quite troubling lawsuit; I haven't focused closely on this, and probably won't be able to for several days, but I thought I'd pass it along for those who are following this subject. Here's the opening paragraph:

On July 8th, a complaint was filed in the United States District Court for the Eastern District of Pennsylvania, Healthcare Advocates, Inc. v. Harding, Early, Follmer & Frailey, et al. . . . Those who decry the DMCA as an (attempted) tool of oppression will find more than ample support in this effort. Other laws are implicated too, including some I venture to guess most IP lawyers have never heard of at least in the IP context, for example, a Greta Garbo like claim for "Intrusion upon Seclusion." Others, such as the Computer Fraud & Abuse Act and trespass to chattels have become better known recently but are invoked here in a novel way, to say the least. In my opinion . . ., the Healthcare Advocates complaint represents a misuse of the legal process. . . .

More on Recommended Reading for Law Students: My own recommendation for the one book to read before law school is a very different type of book: Joseph W. Glannon, Civil Procedure: Examples and Explanations. I don't teach Civ Pro, and haven't looked at Glannon myself in a decade, but law students swear by it.
Why Mention the "Suicide" in Suicide Bomber At All,

some readers ask? Because it's very relevant to how we can fight this sort of killing.

It's much harder to deter suicide bombers than nonsuicide bombers. It's harder to watch for suspicious objects (it's one thing to watch for abandoned backpacks, another to watch for backpacks on people's backs). Techniques used for blocking nonsuicide bombers (for instance, preventing nonpassengers from getting bombs on the plane) won't work as well for suicide bombers.

More broadly, knowing that your enemy is willing to blow themselves up in order to kill you is also surely relevant for understanding the enemy -- not as a means of forgiving them, but as a means of better fighting them. That so many Islamist terrorists are willing to face not just the risk of death but the certainty of death tells us something about the nature of Islamist terrorism (though doubtless different people have different views about what exactly it tells us). That Islamist terrorism seems to be the one form of terrorism -- at least of the forms seen recently in the West -- that employs suicide bombing may itself be an important datum.

So the "suicide" in "suicide bomber" is actually important information. Omitting it strips away important information, and adding "homicide" adds very little: While bombings aimed only at destroying property are possible, I suspect few people think of them these days when they hear "bomber" on the news. And since it seems quite unlikely that someone would deliberately kill himself just to bomb property, I'm pretty sure that when people hear "suicide bomber," they almost always assume that he was trying to kill others.

Recommended Reading for Law Students:

Conglomerate asks, "If You Could Choose Only One Book For Prospective Law Students, What would it be?"

I would answer F.A. Hayek, Law, Legislation, and Liberty, Volume 1, Rules & Order. In this book, Hayek sets out the "spontaneous order" theory of the common law. I like it because it is implicitly a defense of traditional legal conceptualism, to understand the elegance and wisdom of the common law, and to help appreciate the importance of the common law and the rule of law as the foundation of freedom and prosperity in the Anglo-American world. The deep and tacit wisdom embedded in the common law is often lost in the modern legal realist perspective that dominates the academy today.

But then again, "Hayek" is my answer to every question like this, prospective law student or otherwise.

As a close second, and certainly more enjoyable than Hayek, I would recommend Thomas Sowell, A Conflict of Visions, which I have commented on previously. Sowell's book helps us to understand the fault lines in much of public debate today, and none moreso than disputes over differing approaches to law in society today, such as the role of economic analysis, the debate over originalism versus non-originalism in constitutional interpretation, and the importance of public choice theory in understanding law. I think that understanding these rough fault lines helps to recognize the unarticulated starting points that lie behind many modern legal debates.

Sales Below Cost Laws and Gas Prices:

Post Removed

More on Boutique Fuels and Gas Prices:

Great discussion by Lynne Kiesling analyzing the FTC Report and further info on the effect of boutique fuel requirements on gas prices.

Related Posts (on one page):

  1. More on Boutique Fuels and Gas Prices:
  2. More On Gas Prices:
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Ideologically-Motivated Science?

Ann Althouse asks, "Is science-hating a phenomenon of the left or the right?"

She has specially requested comments from readers on her site:

I would love to hear, in the comments, from readers who have found themselves in college courses where instructors taught about sexuality and pressured students to accept theories of culture and actively excluded biological science. (Please don't name individuals.)

P.S.: Technorati seems to be messed up over here too.

Professor Rick Garnett on SCOTUS and the CJ:

Thoughtful interview with Notre Dame Law Professor Rick Garnett, reflecting on clerking for Chief Justice Rehnquist and various issues surrounding the appointment of a new Justice.

Supreme Court Humor:

While we all sit waiting for an eventual nominee, I thought I would fill the time with a joke making the rounds in some conservative legal circles:

Q: Do you know the translation for "Gonzales"?

A: It's Spanish for "Souter."

(Insert rimshot).

LA Times Live Current Blog: Eugene recently mentioned his contribution to the Los Angeles Times Live Current blog, and I wanted to offer a broader plug for it. "Current" is the new name for the Sunday opinion section of the Los Angeles Times, and they have set up a blog on the Supreme Court and the confirmation process that will be open until the open seat(s) are filled.

  The LA Times Live Current blog is sort of half op-ed, half blog; invited contributors e-mail in responses to questions proposed by the editors, and the LA Times editors edit them, title them, and pop them on the Web. (Some of the posts might make their way into the Sunday LA Times, too.)

  I don't know the entire group that the LA Times has invited to participate, but it should be a very interesting bunch: Eugene and I are in on it, and other co-bloggers on the site that have posted so far include big names like Cass Sunstein, Erwin Chemerinsky, Douglas Kmiec, Richard Epstein, John Yoo, and Edward Lazarus.

  It's interesting to note that, as Todd points out below, the Washington Post has also set up a blog on the Supreme Court vacancy. Have other major newspapers done this, or only the WaPo and LAT?
Transcript of the Scotland Yard News Conference Now Up.--

Counterterrorism blog links to the transcript of the Scotland Yard press conference.

"Homicide Bomber" Revisited.--

I was interested to see Eugene's post on the use of the term "homicide bomber" instead of "suicide bomber"--a post that reprinted some of Juan Non-Volokh's criticisms of the term. I considered posting on it when I linked an article from Sky News/Fox News, and was happy to see that my colleagues had weighed in against it years ago. Certainly, the term is Orwellian in it makes conveying information difficult. But it is particularly bad in a situation like London bombing.

Let me explain. In the typical case, it is OBVIOUS that the bombing was a suicide bombing. Then by calling it a "homicide bombing," a news service tries to reflect the fact that the crucial lives lost are those of the (usually multiple) victims. But in London, where there is uncertainty whether it was a "suicide bombing" or instead a "homicide bombing" in which the bombers escaped, the term "homicide bombing" is not a synonym for "suicide bombing." We know it was a homicide bombing--50-80 people were killed. What is unclear is whether it was a suicide bombing, in which the terrorists intended to die with their bombs. Current evidence suggests Yes.

There is a counter-argument: that the term "suicide bomber" doesn't indicate whether anyone was killed other than the bomber, while "homicide bomber" does. But in the context in which bombings are generally discussed in the press, the death of victims is usually what triggers press coverage, so the term "suicide bomber" is more descriptive, as well as being conventional. Not only do I agree with my fellow conspirators, but I think that the London bombings illustrate just how unfortunate term "homicide bomber" is.

Scotland Yard Investigates Whether 4 Suicide Bombers Died in the London Attacks.--

Scotland Yard held a news conference today revealing some details suggesting that the London bombings might have been done by 4 suicide bombers. Indeed, besides the probable suicide bomber on the bus (who has been tentatively identified), documents with the names of two of his friends were found on the trains, which at least suggests that they did not survive.

The Guardian reports:

Police are investigating whether four attackers died in last week's London subway and bus bombings and have arrested one suspect after a series of raids Tuesday in Leeds, a northern city with a strong Muslim community.

At least three of the suspected bombers came from the West Yorkshire region, which includes Leeds, said Peter Clarke, head of the Metropolitan Police anti-terrorist branch.

Closed-circuit TV video showed that all four had arrived at King's Cross station by 8:30 a.m. on Thursday, about 20 minutes before the blasts began that killed at least 52 people, Clarke said.

In a Scotland Yard news conference, Clarke said police had ``strong forensic and other evidence'' that the man believed to have carried a bomb onto the subway train that exploded between the Aldgate and Liverpool Street stations died in the blast, and they were awaiting confirmation from the coroner. Police were trying to determine whether the other three also died in the explosions.

Police indicated that there had been a breakthrough in their inquiry.

``The investigation quite early led us to have concerns about the movements and activities of four men, three of whom came from the West Yorkshire area. We are trying to establish their movements in the run-up to last week's attacks, and specifically to establish if they all died in the explosions,'' Clarke said.

One of the suspects had been reported missing by his family at 10 a.m. Thursday, and some of his property was found on the double-decker bus in which 13 died, Clarke said. The family said the man had traveled to London with three other men.

Investigators also found personal documents bearing the names of two of the other men three near seats on the Aldgate and Edgware lines. Police did not identify the men.

Acting on six warrants stemming from those developments, British soldiers blasted their way into a modest Leeds row house Tuesday to search for explosives and computers. Streets were cordoned off and about 500 people were evacuated. Hours earlier, police searched five residences elsewhere in the city.

So it appears that may be right in its speculations about the terrorists being suicide bombers. Besides the forensic evidence that Scotland Yard refers to, Debka says that the small size of the bombs was more consistent with suicide bombers. Debka also claims that the bombs were detonated when other trains or buses were adjacent, a claim that I have not seen addressed elsewhere. It appears that Debka may have also been correct about the explosives used being the same as used in the Mike's Place bombing in 2003 in Tel Aviv, which was committed by British radical Islamicists. So far there is nothing to support other Debka speculations: that there were 6-8 suicide bombers and that the bombers wore vests.

Londoners are Buying bikes to get to work.--

The Guardian reports that Londoners are buying more bicycles:

Public transit officials said the number of passengers using London's vast bus and subway network, which handles 3 million people on a typical day, was back to normal Monday.

Sales of bicycles have climbed since the bombings as workers look for alternatives to public transport, the capital's biggest cycle retailer said.


A New York Times article faults posts on the We're Not Afraid site (created to "Show the world that we're not afraid of what happened to London today, and that the world is a better place without fear"):

But more and more, there's a brutish flaunting of wealth and leisure. Yesterday there were lots of pictures posted of smiling families at the beach and of people showing off their cars and vans. A picture from Italy shows a white sports car and comes with the caption: "Afraid? Why should we be afraid?"

A few days ago, We're Not Afraid might have been a comfort. Today, there's a hint of "What, me worry?" from Mad magazine days, but without the humor or the sarcasm. We're Not Afraid, set up to show solidarity with London, seems to be turning into a place where the haves of the world can show that they're not afraid of the have-nots.

Brutish flaunting of leisure? Photos of smiling families at the beach are somehow not suitably modest? Going to the beach is not exactly sailing your private yacht; even if you count all of Western Europe as "the haves of the world," smiling with your family at the beach is something that millions of poor people in poor countries can do, too. (Or is the fear that they're lording it over the Nepalese?)

And showing off cars and vans? Vans are rarely the sort of thing that people show off. Even the "white sports car" (apparently on this page, though it might scroll off; if it does scroll off, look for "Roberto and Paola, Italy") is hardly a Lamborghini. It looks like my old Ford Mustang convertible, which I bought partly because it was actually quite moderately priced. (Since it's supposedly in Italy, I doubt it's a Mustang, but I suspect that it's at the same relative price level.) Presumably people post photos of themselves with their cars because they like them, smile easily in them, and use them as symbols of the statement that "we'll just keep doing what we enjoy, and not let our lives be changed by fear." Hard to see much "brutish" here, or even "flaunting of wealth."

But here's my question: What do you think is more snobbish, more of an assertion of your own superior standing over the common folk — (1) posting a picture of your "smiling famil[y] at the beach," or yourself with your car, van, or even "a white sports car," or (2) writing a New York Times article that faults such behavior as "brutish flaunting of wealth and leisure"?

(Thanks to Ann Althouse for the pointer.)

UPDATE: Caliban writes, "Thanks to the Volokh Conspiracy for raising my blood pressure to unhealthy levels." We aim to please!

"Homicide Bomber":

The term has long annoyed me (well, as long as Fox and others have been using it, which I suppose hasn't been that long), so I thought I'd repost Juan Non-Volokh's post on this from two and a half years ago (one paragraph break added):

"HOMICIDE BOMBERS": I know that it has become fashionable in some circles to use the term "homicide bomber" in place of "suicide bomber." This is unfortunate. Even though I am generally sympathetic to the political views of those who use the term, I think that it represents a positively Orwellian misuse of the English language for political purposes of exactly the sort that many who use the term would otherwise condemn.

Would it make any sense to refer to a murderer as a "homicide killer"? Should we have called the D.C. snipers the "homicide snipers"? Of course not. Why not? Because it is redundant and the addition of the word "homicide" does not clarify or provide additional detail. If a killer took his own life after that of his victim(s), it would make no sense to refer to him as a "homicide killer." The same is true here.

Indeed, the only purpose of inserting the word "homicide" is to make a political statement. Unfortunately, it comes at the expense of the English language. Any terrorist bomber who kills is a "homicide bomber." What is unique in these situations is not that a terrorist is killing people -- terrorists do that as a matter of course -- but that the terrorist is taking his (or, in at least one case, her) own life in the process. This is what makes suicide bombings different from an "ordinary" terrorist bombing -- and what makes this sort of attack particuarly difficult to stop.

I know what some of you are thinking: Somehow, using the phrase "suicide bomber" unnecessarily validates the actions of these terrorists, and downplays the evil nature of their attacks, whereas the phrase "homicide bomber" makes clear how terrible they are. Sorry, but I don't buy it. The phrase "suicide bomber" is simply more descriptive and accurate.

UPDATE: Many readers disagree with me -- as I suspected some might. A few have suggested alternative appellations for these deranged murderers. One is "kamikaze bomber." I agree that this is very descriptive. My one question would be whether this phrase implies an elemnet of martyrdom.

Another alternative is "suicide killer," though I tend to think "suicide bomber" conveys the same message. While it is conceivable that someone could be a "suicide bomber" without trying to kill others, I can not think of an example of this ever happening. The closest thing I can recall are political protesters who lit themselves on fire, but such acts are far more contained act than bombing.

I'm not quite as troubled by this as Juan is -- I don't think there's much damage done to the language as a result -- but "bomber" is a pejorative enough term, adding "suicide" adds important information while doing nothing to soften the pejorative, and adding "homicide" does little to strengthen the pejorative (especially since "homicide" is a bit legalese) while stripping away the information that "suicide" added.

Tom Bell Proposes a Kelo Amendment:

In an earlier post, I noted Congresswoman Nancy Pelosi's argument that if people don't like Kelo, they should propose a constitutional amendment.

Here's one, proposed by Tom Bell.

(I express no opinion on whether this would work or would be politically feasible.)

Supreme Court Briefing Rules:

A reader asks in response to my post on the elaborate 7th Circuit brief formatting rules:

I still can't figure out why the Supreme Court is still caught up in the ridiculous 6x9 printed format for briefs when every single other court in the country accepts regular paper from a laser printer.

Does anyone know the answer to this? Why does the Supreme Court persist in this peculiarity? Is there some technological reason or is it pure tradition?

[Puzzleblogger Kevan Choset, July 12, 2005 at 10:56am] Trackbacks
Putting Accuracy in Jeopardy!

Last Wednesday's Final Jeopardy! category was "People in Government." The clue was (and this is verbatim):

Now in his job over 17 years, he's the longest-serving pres. appointee other than Supreme Court members

(Alex Trebek read "pres." as "presidential.") To see the "correct" response, which one contestant successfully provided, click below:


Unfortunately, this is gravely incorrect. Of course the President appoints all federal judges, not just Supreme Court Justices. A quick search turned up 138 sitting federal judges (not including Supreme Court members) who were appointed more than 17 years ago.

My questions (to which I don't know the answers) are as follows:

  1. Who is the longest-serving currently sitting federal judge?

  2. Can we be confident that this person is the longest-serving presidential appointee? If not, who is? Is there a reasonably compact list of all people (or positions) that are appointed by the President?

[While Jeopardy! has been known to bring back losing contestants because of an inaccurate clue, it happens that Final Jeopardy! did not matter in this game because the winner had more than twice the money of his nearest competitor. I emailed Jeopardy! about the mistake on Friday and have yet to hear back.]

7th Circuit Rules on Brief Formatting:

One of our intrepid Commenters on my earlier post on the "ruler incident" mentions the 7th Circuit's remarkable treatise on brief formatting rules. Quite a work to behold.

Related Posts (on one page):

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"Poor Sap":

The Washington Post has started a blog for the coming "Campaign for the Supreme Court." Here's an entry from this morning (from their subcategory "borkometer"):

Poor Sap

“It’s going to be awful. I really feel sorry for the poor sap who gets the nomination,” John Danforth, a former GOP senator from Missouri who shepherded Clarence Thomas through the confirmation process, tells Knight Ridder's Todd Gilman.

“I think the members of the Judiciary Committee would just as soon be left alone," says Danforth. "But there are these very well-organized, well-financed groups out there that are highly energetic and just exceedingly mean.”

The Post seems to be putting a lot of resources into covering this story from a variety of angles and I have found most of its coverage so far to be pretty informative and fair.

Bork's Shadow--Larger Than Recognized:

The Washington Post assesses Bork's shadow:

While conservatives still nurse grievances, liberals hold up the Block Bork campaign as a heroic moment in modern politics. "Keeping him off the Court ranks among the most important achievements of the progressive coalition over the past seven decades," Ralph G. Neas, who led the anti-Bork battle, wrote in an essay on the Web site of his group, People for the American Way.

Focusing just on the precise moment of the defeat of Bork and appointment of Justice Kennedy, however, understates the true shadow cast by the event. It also led to the counterstrategy by Republicans to nominate a "stealth" candidate (David Souter) in order to try to avoid having him "Borked." As subsequent history has shown the "stealth candidate" strategy has its own limitations for an appointing President.

So, in fact, it would probably be more accurate to give credit (in a realpolitic sense) to Ralph Neas and the others who led the fight against Bork not just for getting Kennedy instead of Bork, but for Justice Souter as well.

Bloggers and FEC Regulation:

An informative update on the current state of the question of FEC regulation of bloggers and the extension of the media exemption to bloggers in today's Washington Post here.

Were the London attacks suicide bombings?--

The question whether the London attacks were done by suicide bombers or instead by bombs on timers is an interesting one. The early suspicion that they were suicide bombings quickly changed to a tentative consensus that the bombings were on timers, the primary evidence being that the 3 bombs in the Underground were exploded within a minute of the others.

On the day after the bombing, took a different view on several points:

The bombing attacks on London’s Underground railway and a double-decker bus Thursday, July 7, were the work of a team of 6-8 terrorists wearing explosive vests.

This is the first conclusion drawn by DEBKA-Net-Weekly’s terror experts from the type and strength of the explosives used and they way the bombers, in three out of the four attacks, were able to deliberately spread the damage to secondary vehicles outside their primary targets.

The explosion on the trains at Kings Cross and Edgware Road stations--and the bomb that wrecked the bus at Tavistock Square--were also aimed at hitting passing trains and cars to maximize the casualty toll. To accomplish this, the bomber needed to watch out for moving vehicles and judge the exact moment for detonating the explosive with zero chances of surviving the blast.

The bombs were not large, smaller than the ones that were planted on the Madrid trains in March 2004, because they had to be worn on the terrorists’ bodies without arousing suspicion. In Madrid they were left in bags.

At the big Kings Cross station, two trains were caught in the blast; at Edgware Road station, three trains were hit.

As for the bus, two suicide bombers sat at the back of the bus well separated, ready to detonate their vests as soon as they saw a second bus came close through the rear window. They then both tripped the cords on their bombs. The bus’s upper deck was ripped off and hurled in the air. Had there been one bomber, only one side of the bus would have been wrecked. . . .

More than a few British Muslims have spent time in Arab countries studying at religious institutions whose curriculum includes military training and bomb-making instruction.

Two such British Muslim suicide killers, Asif Mohammed Hanif and Omar Khan Sherif, were dispatched to Tel Aviv to blow up the American embassy on April 30, 2003, When they saw the building was a fortress, they switched to an attack on the neighboring Mike’s Bar.

A joint British-Israeli probe traced the two bombers’ movements from London to Damascus where they studied and were recruited at a medressa run by al Qaeda’s adherents. The pair picked up their bomb vests from Hizballah agents in the Gaza Strip which they entered as British tourists supporting the Palestinian cause.

The London bombers’ modus operandi recalls that of Hanif and Sherif two years ago.

I considered blogging it at the time, but Debka’s version of events was so different from what most were saying (and the certainty with which some of their speculations were presented was so unjustified) that I thought that I’d wait to see if anything checked out. Now some of Debka’s more unusual ideas are being echoed in a few other stories, though there is still no evidence mentioned by others pointing to the bombings in the Underground being the work of suicide bombers. The bus bombing, however, may have been either a suicide bombing or an accidental detonation.

The Times (London):

It is understood that the examination of the No 30 bus at Tavistock Square has yielded vital fragments that have sharpened the focus of the police inquiry. Forensic pathologists have been paying particular attention to the remains of two bodies found in the mangled wreckage of the double-decker.

A senior police source said: “There are two bodies which have to be examined in great detail because they appear to have been holding the bomb or sitting on top of it. One of those might turn out to be the bomber.” A decapitated head was found at the bus scene which has been, in Israeli experience, the sign of a suicide bomber.

The Australian:

The revelation came as it emerged that the severed head of a man had been found near the bus torn apart at Tavistock Square in the London bombings, strengthening suspicions that a suicide bomber was behind the blast. Suicide attacks in Israel have shown that a head is often the only remnant of a suicide bomber, as an explosion close to the torso can force the head to fly up, remaining intact while the rest of the body disintegrates.

London's Daily Telegraph reported yesterday that the head found near the bus had almost certainly been blown out of the upper deck where a rucksack-sized bomb is believed to have been planted on a seat. The head may be that of an innocent passenger who picked the bomb up just before it exploded, but police have believed from the start that the bus could have been hit by a suicide bomber. . . .

One passenger who got off the bus just before the explosion had noticed a nervous young man behaving oddly on the bus and frequently dipping into a bag at his feet.

Investigators are convinced three other terrorists escaped after leaving bombs on three Underground trains about 47 minutes before the bus blast.

Arutz Sheva:

Israel police have revealed that the explosives used in the multi-pronged terrorist attack in London last week were materially identical to the explosives used by two British Muslim suicide bombers who struck in Tel Aviv more than a year ago.

It is unknown at this time if the apparent explosives link points to an Israel-based connection, or if it points to a common source of materiel outside both the UK and Israel.

One of the two bombers, who had entered Israel on authentic British passports, blew himself up in Mike's Place pub in the city, killing three people.

The Telegraph:

Police believe one bomber blew himself up, possibly accidentally, on the upper deck of the bus, in Tavistock Square, and are trying to establish whether a head found nearby was that of a suicide bomber. Decapitation is a classic effect in suicide bombing where explosives are packed close to the torso.


Richard Jones, who was travelling on the packed Number 30, said he is convinced he saw a bomber on board setting a device.

The 61-year-old told The Sun: "I noticed him as he looked nervous. He was continually diving into his bag, rummaging round and looking in it."

Seconds after Mr Jones stepped off the bus, it exploded with the "bomber" still on board. Terence Mutasa, 27, a staff nurse at University College hospital, told The Sun: "I treated two girls in their 20s who were involved in the bus bomb.

"They were saying some guy came and sat down and that he exploded."

He added: "They said the guy just sat down and the explosion happened. They thought it was a suicide bomber."

Israel Insider:

The terror attack in London last week may be tied to a suicide bombing on Tel Aviv's beachfront in April 2003, German newspaper Bild am Sonntag reported.

According to the paper, Mossad officials informed British security officials that the explosive material used in the Tel Aviv attack on Mike's Place pub was apparently also utilized to stage the bombings in London on Thursday.

Cape Times:

Authorities said a fresh analysis of data from eyewitnesses and the Underground's computer and electrical systems showed the three blasts occurred within 50 seconds of one another, starting at 8.50am.

Deputy Assistant Commissioner Brian Paddick said at a Metropolitan Police briefing that authorities had not ruled out the possibility of suicide bombers but now believed it was more likely the attackers had used timers.

Michael Oren of the Shalem Centre panel in Jerusalem agreed. "In Israel, we've had co-ordinated suicide bombings but they've never been that close," he said. "If they've got down to a minute that would be an all-time record."

Paddick said no timing devices or other detonators had yet been discovered in the wreckage. When they are found, they are "probably going to be in millions of pieces", he said.

He said early analysis suggested that each bomb consisted of a "device in a bag, rather than something that was strapped to the individual".

A string of stories are now saying that the explosives are of the same type as was used in the Mike’s Place bombing in Israel. Some of the stories tend to support there having been a suicide bomber on the bus, and one story even raises the possibility of two bombers on the bus, though the bombs are still believed to have been in bags rather than strapped to bodies. My conclusion is not that Debka is right about any of this, but rather that we should wait for evidence before jumping to conclusions on what happened. The conventional wisdom can change as new evidence is sifted through.

UPDATE (Tuesday): Several UK media outlets are now saying that the London bombings were the work of suicide bombers (tip to Instapundit).

ALL CAPS and Social Meaning: Every computer user knows that the use of "all caps," that is, text in all capital letters, is understood to mean text that the writer wants to be read as something yelled or screamed. So if I write you an e-mail telling you to "PLEASE CALL ME ON MY CELL PHONE INSTEAD OF MY HOME PHONE," to pick a random example, you're likely to think I'm very upset. If I write the same message in lower case letters, you won't naturally draw that conclusion.

  I wonder, where did this come from? Is it just a social convention? If so, where did it originate? Alternatively -- or additionally -- does a psychological explanation exist for it? Capital letters generally are larger than lower-case letters. Do we intuitively associate expanded size with increased emotion, as if letters mirrored the dilated pupils of the fight-or-flight reaction?

  Okay, so it's kind of a random question. But does anyone know the answer?

Monday, July 11, 2005

Opportunity Cost--What Harvard Could Do With $50 Million:

A good economist like Larry Summers always knows that the real cost of any expenditure is not the out-of-pocket expenditure, but the opportunity cost of what the money could otherwise be used for. In case Harvard alumni donors and tuition-paying parents were wondering what Harvard could have done with $50 million (other than, of course, save Larry Summers's neck)--one option, would be that (by my estimate) they could eliminate tuition for their entire incoming freshman class for a year and easily break even.

Andrew Samwick also does the math and concludes that the opportunity cost is that rather than hiring 8-10 distinguished chaired professors (which it otherwise could do with the same amount of money), the complementary head-count promise means that Harvard instead will hire 40 new junior untenured professors just to fill these slots. It is not clear the extent to which this will foreclose the opportunity to hire other professors who do not fit in these approved categories.

More on Summers Fallout:

Here's something that hadn't previously caught my eye about the fallout from the Summers episode (from the Harvard Crimson):

Part of the money will fund 40 new faculty appointments over the next five years “with priority given to the hiring of women and underrepresented minorities,” according to the report from the Task Force on Women Faculty.

Hmmm, if the problem was the remarks that Summers made referring to women, why would his indulgence offering also include underrepresented minorities?

More On Gas Prices:

Last week I discussed the important new FTC Report that was released studying the causes of high gas prices. One of the factors discussed at length there was that of wide variance in fuel standards across the country, which creates varying fuel reformulation mixtures for different regions of the country. These different fuel standards can thus increase the variability of gasoline prices by making it more difficult to redirect gasoline from one part of the country to another to in response to local supply and demand shocks. Thus, these differences in local environmental regulations can lead to higher local gas prices by reducing market flexibility.

Andrew Samwick of Vox Baby points to this nifty map supplied by economist James Hamilton that shows the many different standards in place across the country. Each of these subregions requires a different gasoline blend from each of the others, thereby chopping up the country into dozens of isolated mini-markets.

Note that the discussion that goes along with the map was posted on June 20, prior to the release of the FTC Report last week. In the post, Professor Hamilton directs a skeptical eyebrow at the GAO's conclusion that higher prices could be attributed in part to reduced competition from a supposedly overly-lax merger policy. As Professor Hamilton would not be surprised to learn, I'm sure, the FTC Report quite persuasively supports his raised eyebrow.

Legislative Responses to Kelo:

Donald Lambro reports on legislative responses to Kelo in Washington and around the country:

Fueled by mounting grass-roots anger over the high court's 5-4 decision last month in the Kelo v. New London eminent-domain case, several state legislatures are expected to act on some kind of statutory ban before year's end and more are expected to take action next year.

Legislation in the House and Senate already has drawn surprisingly strong support across the political spectrum -- from House Majority Leader Tom DeLay of Texas on the right to Michigan Rep. John Conyers Jr., the ranking Democrat on the House Judiciary Committee, on the left.

According to the article, several states have already introduced bills prohibiting transfers of property to private commercial interests.

The American Legislative Exchange Council (ALEC) is also drafting a model bill for the states that would declare that "the power of eminent domain shall be available only for public use," such as the development of roads and other public facilities.

Religion Lite --

the best explanation I could find for Justice Breyer's spelling "Deity" as "Diety" in his Van Orden v. Texas opinion (which, as you may recall, argued for upholding one Ten Commandments display on the grounds that, in context, it was less intensely religious than the one Justice Breyer voted to strike down).

See here for Juan Non-Volokh's original catch of the typo.

[Puzzleblogger Kevan Choset, July 11, 2005 at 1:29pm] Trackbacks
Justices' Names:

Name three Supreme Court Justices, each of whose name satisfies the following condition:

The Justice's first name and middle name are the same names as another Justice's first name and last name.

Arbitration Advantages:

As noted last week, I spent Thursday and Friday representing my father in an NASD arbitration. I won't comment on the substance, but I did find that arbitration has some real procedural advantages: (1) instead of jurors, you get triers of fact who actually have some expertise regarding the issues at hand; (2) the arbitrators interrupt and ask to clarify matters while you are still discussing them, instead of waiting for counsel to raise an important issue that may be overlooked; (3) the arbitrators are flexible about evidentiary matters. While this doesn't always work to one's advantage, I much prefer a common-sense standard for expert arbitrators to the need to keep evidence from the jury reflected in evidence codes and common law (oddly, opposing counsel didn't seem to know that the rules of evidence are only advisory, at best, in NASD arbitrations).

I'm going to open comments for a discussion of how attorneys (or litigants) who have participated in both feel about arbitrations versus jury trials.

Our New PuzzleBlogger, Kevan Choset:

I'm delighted to welcome Kevan Choset, our new puzzleblogger. I met Kevan when he was a student in my Harvard Law School free speech class, and quickly found out that we shared an interest in puzzles, and after posting quite a few of his creations myself, I decided to just ask him to join us. Here's the bio he passed along:

Kevan Choset is an associate at a large Manhattan law firm who has had a life-long obsession with puzzles. Before law school, he received an undergraduate degree in Applied Mathematics and Economics. He is a connoisseur of all things trivial and loves puzzles of both the word play and mathematical variety, including those given by Eugene at the start of his Free Speech classes. He is both an avid solver and constructor of the New York Times crossword puzzle; his latest construction can be seen in this Thursday's (7/14/05) Times.

And here's his e-mail address, should you want to reach him: choset at gmail dot com.

Note to Law Review Articles Editors:

Due to a miscommunication between my secretary and a temp, my manuscript "Lochner v. New York: A Centennial Retrospective" was sent out to twenty or so law reviews without a cover letter. The manuscript was ready, but I wasn't planning to send it out quite yet, and hadn't prepared the cover letter yet. As soon as I get the chance, I'm going to send out a copy of the cover letter to the law reviews in question with a request that it be put with the manuscript. In the meantime, my apologies if you received this cover-letterless manuscript and wondered "what's up"?

Profile of SCOTUS Prospects on Hot Button Issues:

The Legal Times has an informative story digging into some of the cases decided by several of the Circuit Judges thought to be on the "short list." (The link is in the newswire in the little box to the right under "Who Do Conservatives Want for the High Court?").

One More Oral Argument Meltdown:

Since I'm in the mood, one more good oral argument exchange in a different case. The case is on appeal because the plaintiff's case was dismissed because his lawyer failed to file his expert witness list by the deadline set by the court. As a result, the court refused to admit expert testimony on behalf of the plaintiff and dismissed the case.

Plaintiff appealed, arguing that the district court's deadline was unreasonable. But more than that, he claimed in his brief and oral argument that his failure to file the pleading in time was and act of civil disobedience against the high-handed practices of the district court judge, "like Ghandi, Martin Luther King, and the brave Americans who stood up to the tyranny of King George." (Coincidentally, the district court judge's first name was "George").

Which led to the following exchange:

JUDGE: Counsel, you say that your failure to meet the deadline was an act of civil disobedience, designed to demonstrate the injustice of the court's approach in this case? And that as a result, we should reverse the trial court's dismissal of the case and remand?

COUNSEL: Yes, your honor.

JUDGE: Now counsel, you do understand how "civil disobedience" works, don't you?

COUNSEL: I don't understand the question, your honor.

JUDGE: Well, the way that civil disobedience works is that you believe the law to be unjust, and so you are willing to be punished for violating it in order to demonstrate the injustice of the law. For this to be a true act of civil disobedience, therefore, you would have to be willing to accept the punishment, and through that willingness to accept the punishment, you demonstrate the injustice of the law. So, for instance, Martin Luther King's act of civil disobedience was his willingness to be arrested and go to jail in order to demonstrate the injustice of the laws. So, if this was a true act of civil disobedience on your part, aren't we obliged to affirm the ruling of the district court dismissing the case?

COUNSEL (after long pause): Um, your honor, I would like to amend my argument...

Oral Argument Meltdowns:

Eugene'sOrin's post on disastrous oral arguments (make sure you listen all the way to the end) reminds me of an oral argument that I observed while clerking:

JUDGE: Counsel, your brief does not comply with this Court's rule requiring one-inch page margins.

COUNSEL: Your honor, I believe it does.

JUDGE: I don't think so.

COUNSEL: Your honor, I'm pretty sure it does.

JUDGE (raising hand from bench): Here, I have a ruler--would you like me to measure?

COUNSEL: Um, no honor, that won't be necessary. Uh, could you please just sanction me, not my client?

Should Democrats Reconsider Their Position on Global Warming?

"Sunny days ahead for GOP as population shifts south."

But if it gets too hot in Georgia...

Oral Argument in United States v. Johnson: It is standard at law school moot court arguments for the appellate judges on the panel to thank the students for doing a terrific job, and to tell them that the students' performance was much better than that of many advocates before their court. Students generally don't believe this. But now, courtesy of the magic of the Internet and the Seventh Circuit's website, you can listen in on a three-and-a-half minute oral argument in United States v. Johnson that may set a new standard for disastrous appellate arguments (or, if you prefer, non-arguments).

  To get an idea of what was going on in the Johnson case, it helps to start with the Seventh Circuit's order affirming Johnson's conviction released just a few days after the argument. Here is the opinion:
United States Court of Appeals, Seventh Circuit.
UNITED STATES of America, Plaintiff-Appellee,
Robert Lee JOHNSON, Defendant-Appellant.
No. 04-2732.
Argued March 2, 2005.
Decided March 8, 2005.

  Before BAUER, EASTERBROOK, and SYKES, Circuit Judges.
  Robert Johnson was convicted after a jury trial of possession with intent to distribute in excess of 500 grams of cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii)(II), and sentenced to 130 months' imprisonment and 4 years' supervised release. On appeal Johnson challenges the district court's denial of his motion to suppress evidence obtained during a traffic stop where a dog alerted to the presence of drugs, arguing that his consent to allow the dog to walk around his van was involuntary.
  A recent Supreme Court case makes it irrelevant whether Johnson's consent for the dog sniff was voluntary. See Illinois v. Caballes, --- U.S. ----, 125 S.Ct. 834, 838, 160 L.Ed.2d 842 (2005) (holding that no legitimate privacy interest is implicated by allowing a drug-detection dog to sniff the exterior of a vehicle during a lawful traffic stop). The trooper at the scene had not finished writing the warning ticket when the officer walked the dog around Johnson's van, so Johnson's consent was irrelevant. Cf. Knowles v. Iowa, 525 U.S. 113, 117-118, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998). At argument, Johnson could not distinguish his case from Caballes, and neither can we.
  Listening to the oral argument makes me wonder why this case was given oral argument. I don't know the practice in the Seventh Circuit, but in many circuits they don't give argument time to open-and-shut cases such as this. And of course, with a lawyer performance like that you have to wonder what other issues there might have been that could have been argued but weren't raised.

  In any event, the entire 3 minutes and 42 seconds of the argument is worth listening to, especially near the end. Here's an excerpt from the argument to give you a flavor:
Judge Sykes: Any way to distinguish [Caballes]? I mean I understand that you object to the premise.
Lawyer: I hope you can find one.
Judge Bauer: Well, what you want us to do is overrule the Supreme Court.
Lawyer: I want you to help me distinguish it, Judge. I am very disturbed.
Judge Bauer: You can be disturbed on your own free time. Why are you intruding on mine?
  Ouch. Thanks to Qroncy at the GCB for the link.

  UPDATE: I had mixed views about posting this, as we don't know what the story was behind the case, what was going on with the lawyer's personal life at that time, or any other details about the case. Anyone can have a bad day. I decided to post about it only after I found out that this had "made the rounds" months earlier, and was already a well-known story in many legal circles. I also made a point not to name the lawyer. Some commenters didn't feel so bound, and I have deleted their comments. Anyone who tries to identify the lawyer in the comment section will have their comments deleted and their IP address blocked.
Is There a Right to Get Drunk?

This guy thinks so:

Eric Laverriere, 25, of Portland, Maine, was taken into protective custody by Waltham police and locked in a cell for nine hours until the effects of the alcohol wore off.

Legal experts said his lawsuit, filed this week in U.S. District Court in Boston, is the first to challenge a state law allowing police to lock up drunk people against their will for their own protection.

Laverriere argues that the Massachusetts Protective Custody Law was written to combat public drunkenness and that the police had no right to use it to take him from a private residence. He also says he had planned to spend the night at his friend's and wasn't going to be driving anywhere.

"One thing people should be able to do is drink in their own house," Laverriere told The Boston Globe. "That's the beauty of the land of the free."

If he wins his case, one thing seems certain--that is going to be one excellent celebration party.

Alice's Restaurant Revisited:

Remember how Arlo Guthrie advised that you could get out of the military by "singin a bar of Alice's Restaurant"?

He forgot to mention the more obvious approach to avoiding the military--eatin at the counter of Alice's Restaurant.

From Michael Fumento's column today:

Even national defense is threatened. With Iraq already straining enlistment efforts, nearly 20 percent of men and 40 percent of women of recruiting age are too fat to even be considered. "This is quickly becoming a national security issue for us," an Army nutrition expert recently told the AP.


Brad Smith and John McCain:

Law professor and FEC Chairman Brad Smith describes his fractious relationship with Sen. John McCain (from the Washington Times):

Smith and McCain

Bradley Smith is leaving Washington with a few words in regard to Sen. John McCain, the Arizona Republican who opposed Mr. Smith's appointment to the Federal Election Commission five years ago.

Mr. Smith, who is returning to Capital University in Columbus, Ohio, earned the enmity of Mr. McCain and other would-be campaign finance reformers by arguing that such legislation was hopelessly misguided.

"McCain has always refused to meet with me," Mr. Smith told National Review's Byron York for the July 18 issue of the magazine.

"I tried to meet him once at a public hearing. He was at the table, and I went up and I said, 'Senator,' and I held out my hand. And he instinctively took my hand, and then he looked up and realized who it was, and he yanked his hand away and said, 'I'm not going to shake your hand. You're a bully and a coward, and you have no regard for the Constitution. I don't have to talk to you. I'm not going to talk to you.' It was right in front of a large number of people."

When Mr. York asked whether the senator had really called him a bully and a coward, Mr. Smith replied: "Uh-huh. And corrupt, too. He always calls me corrupt. And my wife says, 'If you're corrupt, you're the worst corrupt person I've ever seen. Where are the fur coats? The watches? The cars? The fancy trips?'?"

Mr. Smith said he doesn't think Mr. McCain understands his own signature issue.

"He is woefully ill-informed on campaign finance issues," Mr. Smith said. "I have seen him repeatedly misstate what the law is, misstate what court decisions held, and I think that's one reason he gets so angry when he talks about it. It's because he doesn't really understand what a complex issue it is, what a difficult issue it is, he doesn't understand the court hearings, he doesn't understand how we've gotten where we are -- so he just gets mad."


Sunday, July 10, 2005

Finding Judicial Philosophy in Nonobvious Places:

Apropos of judicial confirmations and predicting future judicial philosophy (as well as my post the other day on Bruce Ackerman's characterization of Justice Souter as a "moderate conservative"), I received this email from a professor of property law:

I'm writing in connection with your post and your article about Justice Souter not being a "moderate conservative" you would be interested in his approach to what would be considered a somewhat obscure (hard to believe!) issue: whether blocking someone's light (and air) could be a nuisance. The very settled approach in the United States is to reject such claims (England has a doctrine of ancient lights which was firmly rejected here). To my knowledge only two cases have held that blocking light could be a nuisance. One is Prah v. Maretti, 321 N.W.2d 182 (Wis. 1982) and the other is Tenn v. 889 Associates, Ltd., 500 A.2d 366 (N.H. 1985), in an opinion penned by none other than then New Hampshire Justice David Souter. This is a *very* liberal opinion, couched in the ever-evolving-common-law guise. It pretty much encapsulates his approach, but I doubt anyone bothered to read this in the course of the nomination process. It very much supports your point.

Sometimes judicial philosophy is revealed in the most unlikely places.

I apologize in advance if I just gave my colleague Michael O'Neill, currently on-leave to serve as chief staffer to the Senate Judiciary Committee, a whole bunch of new homework!


Sorry, I should have been more clear about the context that prompted this post--it is responsive to not just my previous post that I link, but more importantly, an insightful discussion in the Comments to that post regarding the question of the similarities between Souter and Harlan's jurisprudence, and whether Souter's use of precedent could be truly described as Burkean, as Harlan often is. I should have made that context more clear when I posted this.

Related Posts (on one page):

  1. Finding Judicial Philosophy in Nonobvious Places:
  2. I Guess It Depends on Your Reference Point:
Questioning Supreme Court Nominees About Their Views on Specific Questions:

I have a post about this on the L.A. Times LiveCurrent blog, but I reproduce it below. The question posed was, "Is it appropriate to ask a Supreme Court nominee his/her views on specific issues that are likely to come before the court?" Here's my response:

Tough question -- good arguments on both sides. Right now, let me just air one.

Judges are obligated to think carefully about the parties’ arguments in every case, and be open to changing any preconceived views they may have. Naturally, they’ll often adhere to their earlier views -- but sometimes they do reconsider. (For some examples of how justices’ views have changed from one decision to another, see here; but they may also change their minds from their pre-confirmation views, when they first face a concrete case that requires them to seriously focus on the matter.)

Occasionally, a justice’s vote will deeply disappoint those who wanted to see him on the Supreme Court. It might even differ from views he stated in pre-appointment opinions or articles. But observers will generally just assume he changed his mind, though they might bemoan the change.

But imagine a justice testifies under oath before the Senate about his views on (say) abortion, and later reaches a contrary decision. “Perjury!” partisans on the relevant side will likely cry: They’ll assume the statement made with an eye towards confirmation was a lie, rather than that the justice has genuinely changed his mind. Even if no calls for impeachment follow, the rancor and contempt towards the justice would be much greater than if he had simply disappointed his backers’ expectations.

Faced with that danger, a justice may well feel pressured into deciding the way that he testified, and rejecting attempts at persuasion. Yet that would be a violation of the judge’s duty to sincerely consider the parties’ arguments.

Of course, there’d be little pressure of this sort in a political system in which people assume their adversaries are basically honest, disagreements represent honest differences, and changed positions represent honest changes of mind. When you find such a political system, please let me know.

Related Posts (on one page):

  1. LA Times Live Current Blog:
  2. Questioning Supreme Court Nominees About Their Views on Specific Questions:
Greenhouse on the Rehnquist Court: In today's New York Times, Linda Greenhouse points out that while many expected the last 11 years of the Rehnquist Court to produce conservative revolutions, in the end the state of the law ended up moving more to the left than to the right:
the period was dynamic, even tumultuous, but by the time it was over, the [conservative] revolutions had fizzled or run their course, and the fervor appeared to have died. To the extent that there was basic change, it was to the left rather than the right: a firmer foundation for affirmative action, a constitutional framework for gay rights.