Saturday, January 7, 2006

Fat Cats:

One-third of Britain's pets are overweight.

No word on whether Britain will ban dog and cat food commercials (as former FTC Chairman Tim Muris once joked).

Tom DeLay To Give Up Leadership Post: Details here.
Third Circuit Judges to Testify for Alito: Seven current and former Third Circuit colleagues of Judge Alito have been scheduled to testify on Alito's behalf to give the Senate an "insider's view" of how Alito decides cases. The list includes Judges Edward Becker, Maryanne Trump Barry, Ruggero Aldisert, Leonard I. Garth, John Gibbons and Timothy Lewis. From the Washington Post:
  [Judge] Becker is a longtime friend of Specter and Alito, and was key to assembling the group, Specter said. He said he asked Becker last year whether he "would feel comfortable testifying" for Alito. Becker eventually agreed, Specter said, and then recruited the others.
  Specter said the seven might not limit their remarks to Alito, but use the televised forum to explain judicial issues that get blurred in partisan fights over nominees. A judge takes an oath "to decide cases on the law and the facts," not on political beliefs, Specter said. "They can explain that."
  On a personal note, I am particularly eager to hear Judge Garth's testimony. I had the tremendous honor of clerking for Judge Garth in 1997-98, and he knows Judge Alito not only as a colleague for 15 years on the Third Circuit but also as one of his former law clerks (1976-1977, I think).
Dujack Dropped:

This morning's Washington Times reports that the Democrats have dropped Stephen Dujack as a witness for the Alito hearings.

Kelo Update:

Tom Blumer has a thorough update on the stalled the New London project. His summary:

This post contains:

Two relevant area maps, one from the New London Development Corporation and another from Google. Given the controversy, I’m surprised that I have yet to see a single map in any article I have seen about the controversy.

A long excerpt from a New London Day article about a new deal between the NLDC and the developer, Corcoran Jennison (CJ), which looks like a major makeover, and (to me) has a distinct underlying whiff of desperation.

A shorter excerpt from a different Day article about how a lot of parties are irritated with and disagree with Connecticut’s governor because she (gasp) seems to believe that whatever development occurs can and should be done without taking the remaining properties.

New Report on Race and College Admissions:

There is a new study out on "the increasing number of students falling into the 'race/ethnicity unknown' category of postsecondary demographic data. The study findings suggest that a sizeable portion of students in this category are white, in addition to multiracial students who may have selected white as one of their categories." The study reports that over the decade ending in 2001, the proportion of students identified as being of unknown race grew from 3.2 percent to 5.9 percent. Prior to this study, the authors report, it was thought by many that the rise in "none" reflected a rise in multiracial self-identification, such that old categories no longer applied.

The study finds otherwise. Instead, it finds that most of those who report no racial identity are actually white. Here's a stunning statistic: At one of the three colleges included in the study, the share of students classifying themselves as white rose to 70 percent after they were admitted, compared with 42 percent behforehand. The proportion of students of unkown race dropped to 4 percent from 32 percent. The report (page 11) speculates on the reluctance of some to elect a racial classification at the admissions stage: "It is possible that some increase in unknown students is due to an impression among white and AAPI [Asian-American/Pacific Islander]students that their race/ethnicity would work against them in the admissions process."

The report notes that these reporting biases pose serious problems for the bean-counters whose job it is keep track of these sorts of things. One proposal would be to essentially force students and institutions to elect racial classifications by taking away the "unnkown" category for institutions reporting. The report observes, "Requiring institutions to collapse groups of students into the 'unknown' category results in less accurate informaiton at the federal level. Perhaps more disconcerting, it reinforces this practice at the institutional level. As we hear an increasing call for institutional accountability for student learning outcomes, we should also demand to know precisely what groups of students are present in our learning environments."

Joe Malchow pointed me to the study, and he has some personal reflections of his own.

Creditors' Committee Beauty Pageant:

Peter Lattman captures the atmosphere at the outset of Chapter 11 bankruptcy case, as professionals vie for their piece of the action:

We just returned from the U.S. Trustee’s Calpine bankruptcy confab at New York’s Grand Hyatt hotel and were sorely disappointed. The California utility, which filed for bankruptcy at the end of December, only served ice water; last year’s Delta meeting featured coffee and soda (did Delta borrow from its airplane beverage carts?).

U.S. Trustee Diedre Martini organized the gathering to form the Calpine creditors’ committee, which will represent the unsecured creditors during the bankruptcy. By our estimate there were over 250 people filling the hotel’s ballroom.

You’d think that a get-together of people owed money by Calpine would be a solemn affair, but it felt more Kiwanis Club than Creditors Club. That’s because most of the people in the room weren’t creditors; they were the lawyers, bankers, and consultants who make their livings off the carcasses of bankrupt companies like Calpine.

And this is one tight-knit group. After Martini and CEO Bob May delivered 10 minutes of bland introductory remarks, they adjourned the meeting for two hours to select a committee. At that point a party broke out. The various advisors lingered, glad-handing and networking their way through the room. We even ran into a few hedge fund managers working the crowd, trying to handicap their investments.

I've always thought that there would be at least one good novel about Chapter 11, perhaps John Grisham with a touch of Tom Wolfe thrown in.

Lattman's WSJ Law Blog is definitely off to a great start--lots of interesting stuff over there. He also has a blawg roundup on business, bankruptcy, and white-collar crime issues.


Also from the WSJ, see this interesting article on the "Third-Year Dilemma" of law firms, describing the high frequency with which associates leave large law firms during their third year of practice and what some firms are doing about it.

Congressional Research Service Report on NSA Surveillance: The Congressional Research Service has published a report analyzing the DOJ letter sent to the Intelligence Committee on the NSA surveillance program. The CRS report is quite narrow. To condense its 44 pages into a sentence, it says that if you accept that the NSA program violated FISA, then the claims in DOJ's letter as to why the AUMF or Article II trump FISA are relatively weak. I agree; the CRS analysis is pretty similar to my initial post on the NSA program. The CRS report is appropriately cautious, too. It acknowledges that we don't have enough facts yet to analyze the legality of the program. I hope to post more on that, and some of my further ruminations on the NSA program, at some point over the next few days.

Friday, January 6, 2006

Marquette's Punishment of Dental Student for Things He Wrote on His Blog:

The Dean reaffirms it, though he reduces the punishment (from suspension to probation plus a mandated apology and 100 hours of community service). I stand by my initial criticism of the school's actions, though I'm glad that the punishment was at least reduced.

Thanks to reader Connie Conine for the pointer.

Related Posts (on one page):

  1. Marquette's Punishment of Dental Student for Things He Wrote on His Blog:
  2. Marquette Suspends Dental Student for Things He Wrote on His Blog,
Our Own Tyler Cowen

profiled by Norm Geras (normblog).

[Puzzleblogger Kevan Choset, January 6, 2006 at 12:16pm] Trackbacks
Word Categories:

By what rule have I divided these words into the four groups below?

  • Elephant, Benedict

  • Fiend, Hell, Child

  • Cat, Life, Child

  • Human, Lymph

Note: I adapted this from questions (answers?) on last night's Jeopardy!, so if you saw it, don't post the answer (question?).

Why People Are Skeptical of Judicial Discretion in Sentencing:

Here's the story:

Wednesday [Vermont trial court Judge Edward Cashman] sentenced child rapist Mark Hulett to 60 days in jail. Hulett admitted he raped a little girl countless times when she was between 7 and 10 years old.

Prosecutors said Hulett deserved at least 8 years in prison in part as punishment.

But Judge Cashman said the 60-day sentence guaranteed that Hulett would get into sex offender rehabilitation quickly or face a possible life sentence. He said he had no choice because the Corrections Department classified Hulett as a low risk offender meaning he can't get treatment until he's out of jail.

And more importantly the judge announced that after 25 years on the bench, he no longer believes in punishment. . . .

Republican lawmakers have scheduled a press conference for tomorrow to call for mandatory minimum sentences. That's a direct response to Judge Cashman's ruling. . . .

Some Republicans have started calls for Cashman's removal from the bench.

But they may have to until Judge Cashman's six-year retention hearings in March 2007. Legal experts say it is highly unlikely his sentencing decision would qualify as an impeachable offense. . . .

I understand the appeal of giving judges a great deal of sentencing flexibility: Different offenders are different, and sentencing guidelines schemes tend to omit some factors that might in some cases yield a juster result.

But flexibility means you sometimes get manifestly unjust results such as this -- and sometimes unjust results in the other direction, too. What's more, you get highly unequal treatment. First, this child molester lucked out because he got into Judge Cashman's court, while other criminals might be unlucky because they get into an unusually harsh judge's court. Second, discretionary black-box here's-how-I-feel-about-it judgments are especially likely to be influenced, in many instances, by impermissible factors, such as the offender's race, the offender's sex, the degree to which the judge feels social affinity for the offender, or the degree to which the judge feels social affinity for the victim. Our feelings of pity, mercy, and sympathy, as well as our feelings of outrage, are often colored (perhaps even subconsciously rather than deliberately) by such factors, especially when they bear on the connection we feel to the parties.

On balance, it seems to me that judicial sentencing discretion needs to be cabined, and sentences -- like the definitions of the offenses -- made more matters of the rule of law, rather than of rule by whatever penological theory each particular judge "believes in," or by whatever attitudes the judge has about a particular crime or a particular offender. And while of course the sentencing ranges can be misset (the federal guidelines were faulted for being too harsh in many instances, though I have no firm opinion on the subject), at least the guidelines provide an opportunity for deliberation, both democratic and bureaucratic, about what the right settings should be. Not so with "here's what I as the judge think you should be sentenced to."

(Note that across-the-board mandatory minimums lack many of the advantages of guidelines, since they usually turn on no or very few factors. Guidelines include their own minimums, but those minimums are more calibrated to the particulars of each offense, such as the offender's criminal history, the severity of this particular instance of the offense, and the like. There's also a separate debate over what sorts of escape hatches guidelines should have for the truly unusual cases; but it's much better to limit judges' discretion, subject to a rarely used escape hatch that will often be reviewable on appeal, than to leave the matter entirely to the judge.)

Questioning Alito: The Pocket Part, Yale Law Journal's new on-line forum, just posted a provocative essay by Yale law profs Robert Post and Riva Siegel entitled, Questioning Justice: Law and Politics in Judicial Confirmation Hearings. There they propose questioning Supreme Court nominees as to how they would decide the classic cases of constitutional law:
In . . . this Article we propose and defend a method of questioning that will enable the Senate to evaluate the constitutional commitments of nominees while preserving the independent integrity of the law. We argue, in brief, that senators can with confidence and authority ask nominees to explain the grounds on which they would have voted in past decisions of the Supreme Court. Such questions serve the democratic design of the confirmation process by revealing the operational content of nominees’ constitutional commitments. Asking nominees to disclose how they would have decided well-known Supreme Court cases prevents nominees from explaining their constitutional commitments in terms of abstract principles like “liberty” or “equality,” whose practical significance in particular cases and contested areas of constitutional law is unknown. The goal would be to sustain a colloquy capable of adequately informing a senatorial vote on whether to invest a nominee with the independent authority to interpret the Constitution.
This essay is accompanied by four responses by Laurence Tribe, Erwin Chemerinsky, Steve Lubet, and your own humble Volokh Conspiracy blogger.

In my contribution, Clauses Not Cases, I entirely agree with them that the Senate should scrutinize a candidate's constitutional philosophy.
A commitment to respect the Constitution is a matter of judicial character or virtue that goes beyond the credentials that measure pure ability. If senators are to assess judicial attitude as well as ability, then they must, as Post and Siegel correctly observe, “acquire [the] useful information about a nominee’s constitutional commitments” that is needed to make such an assessment. Hence, in an example of what Cass Sunstein has called an “incompletely theorized agreement,” we three agree, albeit for different underlying reasons, that the Senate ought “to evaluate the constitutional commitments of nominees, while preserving the independent integrity of the law.”

But I reject their proposal to ask nominees about classic cases for three reasons:
First, an inquiry into cases would risk turning hearings into a trial by ordeal or, if that metaphor seems exaggerated, then an oral examination. Unless there was a very limited set of canonical cases agreed upon in advance, it would leave candidates open for ambushes that expose their understandable lack of knowledge about any number of cases. While each senator need only ask about just one or two cases, the candidate would have to take all comers or look evasive or uninformed. I doubt whether many constitutional law professors would be able to pass this sort of oral exam, but I am certain that even a very able nominee would likely be unfairly tripped up by such a process.

Second, if we are to maintain our incompletely theorized agreement that such inquiries are proper, whatever method is adopted to ferret out constitutional philosophy should not favor any particular philosophy. Asking about a set of canonical cases is biased towards a “result-oriented jurisprudence” advocated by some, but rejected by others and perhaps even by most. Why? Because a catechism that singles out particular beloved or despised cases would effectively require candidates to pledge their fealty to the results of the approved cases and their abhorrence of the despised ones. Even grounding the “right result” on alternative grounds—the favorite pastime of con law professors—could easily be characterized unfairly as a lack of proper enthusiasm for the approved results, as was alleged about Robert Bork. Regardless of the proffered justification, such a “test” would rest largely, if not entirely, on reaching the results deemed correct, thereby effectively requiring a “just so” constitutional philosophy that somehow manages to reach all the right results.

This suggests a third problem. Such an inquiry privileges the status quo. It takes as normatively given what Jack Balkin has called “the canon” and “anti-canon.” But what makes “the canon” at any particular period a canon is solely prevailing attitudes for or against some cases.
A selection procedure that privileges the status quo is very bad, I maintain:
Because it is a constitution they are expounding—I have always wanted to say that—not a set of canonical results. If applied faithfully in the past, their procedure would likely have screened any nominee who questioned the Supreme Court’s extant interpretation of the Fugitive Slave Clause in Prigg v. Pennsylvania or its constitutional acceptance of Jim Crow in Plessy v. Ferguson. If you don’t like these examples, just think of any well-established precedent we now think was wrongly decided. At one time it was canonical.
I then offer an alternative procedure: Ask nominees about clauses, not cases:
Consider the Second Amendment. Does a nominee rely on its original meaning (and aware of controversies about its meaning) or does the nominee think its meaning evolves or has been superseded by modern developments? Is its meaning one of general principle or is it historically limited to particular practices in effect at the time of its enactment? Does the existence of an individual to right to keep and bear arms preclude all reasonable regulations? Does it apply to the states? Why or why not? Answers to these questions are likely to cohere with how a nominee evaluates other clauses. . . . Even if asking about clauses will not always get Post and Siegel all they want to know about a candidate’s constitutional philosophy, it would get what they need.
Of course, I say more than these excerpts, and so do Post and Siegel, so you may wish to read their post in its entirety along with mine.


Thursday, January 5, 2006

Interesting First Amendment Case:

Martin Wishnatsky had publicly criticized the University of North Dakota School of Law's law clinic, chiefly because it had helped a client challenge the display of a Ten Commandments monument on city property. Wishnatsky then asked the clinic for help challenging the courthouse's display of the goddess of Justice (Themis) on city property. The clinic's director rejected Wishnatsky's request, partly because Wishnatsky's "persistent and antagonistic actions against the [law clinic] and faculty involved would adversely affect our ability to establish an effective client-attorney relationship with you and would consequently impair our ability to provide legal representation."

Wishnatsky then sued the clinic, claimed that it improperly discriminated against him based on his viewpoint (not the viewpoint on which his lawsuit rests, but the viewpoint that he had publicly expressed outside about the clinic before). The clinic responded that it was entitled to discriminate based on viewpoint (though it argued that as a factual matter this wasn't the deciding factor); it could hire whomever it pleased, presumably subject to the rules barring race discrimination, sex discrimination, and the like.

Not so, U.S. Court of Appeals for the Eighth Circuit just held. If Wishnatsky's past critical speech was the deciding factor in the clinic's decision -- which is a matter that would have to be considered at trial -- the clinic's refusal to represent him would be presumptively unconstitutional viewpoint discrimination. "Taken to its logical conclusion, the Clinic's argument means that a public law school could announce that its clinical program will accept as clients only persons who belong to one political party or espouse particular views on controversial issues of the day. We reject that proposition as inconsistent with the First Amendment."

I'm not sure whether this is the right result. True, the government may not discriminate based on viewpoint in "designated public forum" programs that are open to all applicants who meet objective criteria (e.g., "all student publications are entitled to reimbursement for their printing expenses) and that are aimed at promoting a diversity of views. But I'm not sure that legal clinics, which necessarily use discretionary criteria in selecting clients, which are chiefly aimed at educating students, not promoting a diversity of views, and which involve personal services rendered in a fairly close working relationship fall in the same category. On the other hand, Legal Services Corp. v. Velazquez seems to suggest that legal aid programs are indeed a sort of designated public forum; and I sympathize with the court's view that the state ought not deny potential litigants benefits because they belong to disfavored groups or express disfavored opinions.

Finally, note that none of this suggests that Wishnatsky's lawsuit about Themis would win, or that the clinic had an obligation to represent him. The clinic, I'm pretty sure, would have had no trouble if it had rejected him because it thought his case was weak, or even just not interesting to its students or faculty. The claim is that it couldn't reject his case because of his past criticism of the clinic, not that it couldn't reject his case, period.

I Guess God Must Have Really Liked Say, Stalin,

at least long past the purges. Oh, and Arafat, too; God must have been a big fan. Pat Robertson seems to be telling us that Sharon's stroke -- and Rabin's assassination -- is God's punishment for "dividing God's land" (since it earned him God's "enmity"). Now if this is God's standard operating procedure, then I take it that the absence of divine punishment is something of an endorsement. God didn't send Stalin a stroke during the purges or the Ukraine famine, so Stalin must not have really earned God's enmity. God didn't get rid of Arafat for a very long time. Sharon must have been a much worse fellow than those worthies, in God's eyes.

Of course, even if one thinks that God intervenes in world affairs in such a direct way, one could say that God moves in mysterious ways, and that his failure to send Stalin a prompt stroke is no endorsement. (I'm sure many readers of this blog would take this view, and I have no quarrel with them.) But if God's ways in not killing Stalin and Arafat promptly are a mystery, then I take it that the Sharon stroke is hardly an obvious condemnation, either.

Yet Robertson doesn't seem to think that God's ways are so mysterious -- Sharon suffers a stroke, that's God's hand. So given that Arafat and Stalin lived long and apparently quite prosperous lives, way past the time that I had thought they'd earned God's "enmity," that must be God's hand, too, at least given Robertson's view. God is either a funny sort of God, or he's got a funny sort of servant.

Thanks to Shawn Wesson ( for the pointer.

A Sweet and Wise Blessing To Give Your Children,

which I heard from my friend Fred Bernstein, who says it to his three-year-old twins: "May you be who you are, and may you be blessed in all that you are."

Like many such blessings, this one's merits go to the attitude it instills in the speaker, at least as much as in what it conveys to the target.

Somewhere a Third-World Child Will Grow Up

thinking that USC won the Rose Bowl: Slate's Explainer reports:

After the [Rose Bowl], Longhorns players paraded around the field sporting freshly minted championship hats and T-shirts. But what happens to the merchandise that gets printed up for championship game losers? . . .

Two different sets of locker room memorabilia get printed only if a game is a one-shot deal — like the Rose Bowl or the Super Bowl — or if a series is down to the final game. . . .

The fate of the NCAA's locker-room merchandise depends on whether it is in the possession of the manufacturers or the Collegiate Licensing Company, which handles the clothing after it leaves the factory. If the shirts and hats haven't left the manufacturer's plant, they are professionally destroyed. If the CLC has them, they work with a variety of charities to donate them. When USC beat Oklahoma in last year's championship game, the shirts commemorating an OU victory were distributed in Haiti with the assistance of a local church. . . .

But what about the spread of misinformation about sports history? Shameful!

UPDATE: Commenter Ex-Fed writes: "It's heartbreaking to think that there are people out there -- the wretchedly poor, refugees, the dispossessed -- whose reality is even more terrible than one in which USC won."

Criticisms of Judge Alito on Abortion and the Spousal Notification Decision:

I thought I'd pass along a few of the arguments (paraphrased from memory) that I'd heard during the radio program that I was just on; they were about Judge Alito's views on abortion, and specifically about his vote to uphold spousal notification laws in Casey. To the extent the arguments were factually mistaken (as the arguments noted in items 1 and 2 below were), I'm sure they were honest mistakes, but they're the sort of mistake that we're likely to see often:

  1. Judge Alito voted to uphold spousal consent laws. No, he voted to uphold a spousal notification law.
  2. Though public surveys may have revealed that most Americans supported spousal notification laws, that was only before or around the time of the Casey decision. No, the survey I quoted on the air was from 2003, and revealed a 72%-26% margin in favor of such provisions, much the same as the early 1992 data; a 2005 survey that I just found from 2005 reveals a 64%-34% margin, somewhat less than in 2003 but still a landslide in favor of the restrictions. (See here for data from both surveys.)
  3. This vote by Judge Alito shows that he's not sensitive to women's issues. The most recent spousal notification survey results that I could find that broke down men's views and women's votes showed a small gender gap — 71-26 total, 75-23 male, 67-29 female (Gallup, July 26, 1996). Even if one makes an 8% adjustment to reflect the difference between the overall 2005 data and the overall 2005 data (i.e., assuming that the 2005 changes from 2003, 1996, and 1992 will persist and weren't just a blip), and assumes the same gender gap, that's still 58-37 support among women. One can, of course, say that these women aren't sensitive to women's issues, either; but it's important to realize that the person who says it, and not Judge Alito, is the one who's out of step with most American women.
  4. Judge Alito's views on this are out of the mainstream. Maybe they're out of what some think the mainstream view ought to be; but the views (assuming that we're right to even talk about this as his "views," as opposed to his interpretation of the relevant Supreme Court precedents in 1991) are majority views, by a wide margin.
  5. Judge Alito's opinion was wrong because spousal notification laws put the woman at risk of physical abuse. The law that Judge Alito voted to uphold actually had a specific exemption whenever the woman "has reason to believe that [notification] is likely to result in the infliction of bodily injury upon her by her spouse or by another individual." A sincere belief was apparently sufficient under the law; there was no requirement that the woman prove this with evidence other than her own sincere belief. One can still argue that, as implemented, the law would nonetheless put women at risk (as the person I was talking to did argue). But one would have to acknowledge the seemingly quite broad exception, and explain just why it's inadequate.
  6. Judge Alito's opinion is undercut by his argument that the spousal notification law is in any event unenforceable — in our legal system, we shouldn't endorse bad laws just because they're unenforceable. Actually, Judge Alito's opinion specifically said, in the footnote that discussed enforceability, that "In considering whether Section 3209 would impose an undue burden, I do not take into account a fact that seems glaringly apparent, i.e., that Section 3209 would be difficult to enforce and easy to evade" (emphasis by Judge Alito).

    Again, one could still fault him for even bringing this up, since one can say that his bringing it up suggests that he might rely on such reasoning in some future case, and that the closing point in his footnote, which is that "It seems likely, therefore, that Section 3209, if allowed to take effect, would be widely evaded and infrequently enforced and would consequently be less likely to produce either the good or bad effects that the opposing parties claim." But it seems important to recognize that he expressly rested his opinion on the law as it would operate if it were scrupulously followed, and expressly said that he was not relying on the law's being easy to evade.

None of this of course goes to what the constitutionally, morally, or pragmatically right view is on spousal notification; I'm speaking here only of the specific arguments that I'd heard deployed against Judge Alito's position.

Good Lord:

The Washington Post reports:

D.C. Council member and former mayor Marion Barry yesterday urged two young men who robbed him at gunpoint Monday night to turn themselves in to police, promising that he would urge authorities not to prosecute them.

"I have no animosities," Barry declared. "I don't even want you prosecuted, really. I love you. Give yourself up. Call the police. . . . I will do all I can to advocate non-prosecution."

Barry, 69, was held up in his kitchen about 9:30 p.m. Monday by two assailants who minutes earlier had helped him carry groceries from his car to his third-floor apartment in Southeast Washington. They pointed a gun at Barry's face and stole his wallet, which contained more than $200, his driver's license and two credit cards, police said.

The thieves apparently knew that Barry (D-Ward 8) was a longtime community leader, a fact that he said made the crime "kind of hurt" because he is well respected by so many people in the city. Barry was not injured in the holdup.

"There is a sort of an unwritten code in Washington, among the underworld and the hustlers and these other guys, that I am their friend," Barry said at an afternoon news conference in which he described the robbery in detail. "I don't advocate what they do. I advocate conditions to change what they do. I was a little hurt that this betrayal did happen." . . .

Words fail me. Thanks to OpinionJournal's Political Diary for the pointer.

UPDATE: Matt Rustler (Stop the Bleating) points out:

["]Barry vowed not to move from his home in the council district he represents. But he said he will push for tougher gun control laws. Last session he offered a bill mandating a 10-year sentence for those caught with a gun. So far, a hearing has not been scheduled, but Barry hopes to see action on it this year.["] [Link in Rustler's post.] . . .

Marion wants a ten-year mandatory sentence for possessing a gun, presumably in order to further deter possession of firearms in the District, but he doesn't want people who commit robberies using guns to be prosecuted. . . .

A Rare Football-Related Post:

Reader Matt Kita e-mails to say that "at the beginning of the UT-USC game last night, I predicted that it would be close and could have gone either way when Justice O'Connor did the coin toss."

About To Be on KQED Radio in San Francisco,

from 9:05 or so to 10 or so, talking about the Alito nomination. I'll be on with fellow lawprof Vik Amar and Deborah Rhode, and with reporter Bob Egelko.

BBC on Jesus's Parents: "In a broadcast just before Christmas, the BBC claimed that the historical trip from Nazareth to Bethlehem made by Jesus' parents, Joseph and Mary, would have been rendered impossible today, due to Israeli army restrictions." According to Gross, a reader of an Israeli newspaper had a response very similar to mine (and others) when I first heard this story: "What the BBC doesn't tell us is that Jesus' parents would have been murdered by Palestinian groups just like any Jews would have if they went into PA-occupied areas." It's rather bizarre that the BBC seems to think of Joseph and Mary as Palestinian Arabs (especially as there was neither any such geographical entity as Palestine nor any Arab residents of Judea at the time), not Jews.

It's also not clear what the BBC is talking about in a more general sense: though they claimed to follow an Israeli-Arab carpenter from Nazareth as he tried to get to Bethlehem, Israeli army restrictions keep Arabs from Bethlehem from coming into Israel to prevent suicide bombings, but Jews (and Arabs) from Israeli cities like Nazareth can travel to the West Bank (I was just driving on the road from Jerusalem to Bethlehem two weeks ago, though I got off several miles before Bethlehem), though it would be suicidal for an Israeli Jew to go to Bethlehem right now. Nor is Bethlehem enclosed by a security fence, though there is a barrier on the side facing Israel. And, in any event, thirty thousand tourists did make it to Bethlehem on Christmas.

Blue Book Abuse, the Colorado Governor's Race, and More:

My father, Jerry Kopel, is a columnist for the Colorado Statesman, Colorado's weekly political newspaper. Before that, he served for 22 years as a Democratic State Representative from Denver. Before that, he worked for several Colorado newspapers, including the Rocky Mountain News (for which I currently write a media column). Here's a sample of his recent columns, all of which are available on his website:

Analyzing the 2006 race for Governor, he suggests that Marc Holtzman (who formerly served in Bill Owens' cabinet) will beat Bob Beauprez in the Republican primary, because Holtzman is the candidate with "fire in his belly." On the Democratic side, he predicts that former Denver D.A. Bill Ritter will have trouble with the Democratic base, because of his anti-abortion stance.

The story of Blue Book abuse does not involve the manual of legal citation. "The Blue Book" is also the name of a state guide about ballot issues which is mailed to every voter before elections. The Colorado Constitution specifies that the text of the Blue Book--describing the ballot issues, and summarizing pro and con arguments--must be written by non-partisan legislative staff. Yet a recent decision of the Colorado Court of Appeals (the intermediate appellate court) allowed the legislature to get away with writing a statute that in effect nullified the state Constitution, by authorizing legislators to tamper with the Blue Book wording.

The shady financial dealings of the CU Foundation, which has provided enormous funding to various administrators and programs at the University of Colorado, has become a major controversy in Colorado. A December 19 column details how my father attempted to lead a legislative investigation of the CU Foundation's finances, but was stymied by legislative leadership which did not want to dig very deeply.

Colorado, like many states, has "Sunrise/Sunset" legislation, which requires that bills to impose new licensing on a profession must go through a special "sunrise" study process. All licensing regulations for professions are supposed to "sunset" on a regular schedule, unless the legislature chooses to renew them. (My dad sponsored the first such law in the United States, in 1974.) In the 2006 legislature, one faction of naturopaths (those with degrees from four-year naturopathic schools) will make their third try to attempt to outlaw the practice of naturopathy by anyone else.

Meanwhile, law enforcement lobbies will push for professional licensing for burglar alarm installers. The claim is that licensing will reduce the number of false alarms. Yet a study by Colorado's Department of Regulatory Agencies concluded that false alarms were the result of consumer behavior, and licensing of installers would not reduce false alarms.


Wednesday, January 4, 2006

Pregnancy and Communicable Disease -- A Thought Experiment:

Say that Mary Moe is pregnant, HIV positive, and planning to take her child to term. Assume also that medical treatment for the HIV during pregnancy can substantially decrease the risk of her communicating the HIV to the soon-to-be-born child. (As best I can tell, that's factually accurate.)

Say also that Mary Moe is infected with some other disease — call it German Measles 2 — that risks causing birth defects in the children of other pregnant women who come into contact with Moe. (The hypothetical disease would differ from traditional German measles in that it would be persistent but asymptomatic in the carrier; in this respect, imagine Moe as a Typhoid Mary for this disease.) Assume also that medical treatment for German Measles 2 can substantially decrease the risk of Moe's communicating German Measles 2 to other women's soon-to-be-born children.

I take it that, by analogy to the vaccination cases, the government may force Moe to take the medical treatment for German Measles 2 (am I right?), to minimize huge health dangers to the soon-to-be-born children of others. True, this is an intrusion into Moe's bodily integrity, but your right to bodily integrity must yield when your body is threatening the spread of disease to others.

If so, can it really be the case that the government nonetheless may not force Moe to take the medical treatment for the HIV, to minimize huge health dangers to her own soon-to-be-born child?

Is Moe's bodily integrity sufficient to justify the harm to the life and bodily integrity of her child — not just to a potential person (which is how the law conceptualizes the fetus before viability), but to a real person who will be born, and who may well be sentenced to a short life and painful death because of Moe's communicating the disease to him?

Say that Moe's child grows up to be, say, ten, but is clearly dying by then. She's not just a fetus or even an infant. She can talk, and ask questions. Here's how the conversation goes:

Child: "Why am I dying?"

You: "Because you got a deadly infection from your mother. Your mother could have taken steps that may well have saved your life, but because of her idiosyncratic view of medicine, she chose not to."

Child: "But wait, why didn't someone stop her from doing this to me?"

You: "Oh, we couldn't do that: She had a constitutional right to infect you with a deadly disease, with no interference from anyone else."

Child: "So if someone is walking around with a communicable disease that would cause birth defects in other people's children, he has a legal right to keep doing that."

You: "Of course not; we could mandate that he be vaccinated, or otherwise treated. But that's only when he's infecting other people's children. When a women is infecting her own child who's still in her womb, she has a constitutional right to do that."

Can that really be right?

[UPDATE: Correct a couple of errors in paragraph 2 -- thanks to the commenters for pointing them out.]

Related Posts (on one page):

  1. Pregnancy and Communicable Disease -- A Thought Experiment:
  2. Do HIV+ Pregnant Women Have a Constitutional Right To Refuse HIV Medication,
GW Law Panel on NSA Surveillance Program: Quick note for our DC-based readers: On Wednesday, January 11, 2006, from 4 to 5:30 pm, the George Washington University Law School will host a panel presentation titled "Secretly Listening: NSA Eavesdropping and the War on Terror." It will feature a diverse panel of faculty experts on the legal issues surrounding the NSA domestic surveillance program. The panelists will be Greg Maggs, Peter Raven-Hansen, and myself, and the panel will be moderated by Mary Cheh. The event will be held at the Faculty Conference Center at the 5th floor of Burns Hall on 20th Street between H and G Streets. The event is open to the public.

Sorry for the different look of the blog -- my error, which we hope to have corrected soon. The posts and the comments haven't been touched, though.

Supreme Court Allows Transfer of Padilla to Miami for Criminal Prosecution:

CNN reports:

The Supreme Court agreed Wednesday to allow the transfer of accused "enemy combatant" Jose Padilla to Miami to face criminal charges.

The justices overruled [the Fourth Circuit], which had attempted to block the transfer.

The high court said it would decide later whether to review Padilla's challenge to his military detention. It granted the Bush administration's request for a transfer in a terse, single page order. . . .

Do HIV+ Pregnant Women Have a Constitutional Right To Refuse HIV Medication,

if they plan on carrying their children to term? The babies may end up infected with HIV via the mother, and, as I understand it, their risk of infection would be considerably lower if the mother were treated during pregnancy.

A New Jersey trial court in New Jersey Division of Youth & Family Servs. v. L.V., 2005 WL 3527274 (N.J. Super. Ch. Aug. 3), seemed to suggest the women do have such a constitutional right. The court also rested its decision partly on statutory grounds and partly on factual grounds, but it did say that

The right to make that decision [as to what medications she will take during her pregnancy] is part of [the woman's] constitutional right of privacy, which includes her right to control her own body and destiny.

But I wonder whether the abortion right-to-privacy cases, to which the court referred, are quite the right analogy -- why isn't the better analogy the vaccination cases, which have consistently upheld the government's power to vaccinate? The government may demand that I get a vaccine for a communicable disease even when I likely don't yet have that disease. Presumably if I were known to be infected with a communicable disease, and treatment would diminish my chances of spreading it to others, the government would if anything have even more power.

Here, the mother is infected with a communicable disease; and though it's a disease that fortunately isn't spread by casual contact, it is often spread to unborn children. If the mother plans on carrying the child to term -- of producing a born, rights-bearing human being who might have a deadly disease because of exposure through the mother -- why isn't mandating treatment of the mother at least as constitutionally permissible as mandating vaccination?

(I realize that HIV medication may have more harmful side effects than the typical vaccine typically does, but I doubt that this is dispositive as a constitutional matter. Among other things, HIV medication generally also has a more direct positive effect on the recipient than does the typical vaccine. In any case, why isn't a risk of some harmful side effects to the woman justified by the goal of preventing the extraordinarily serious effects -- more or less a sentence to an early and painful death, though with luck modern HIV therapy might commute that in some cases -- to the child whom the woman may infect?)

Related Posts (on one page):

  1. Pregnancy and Communicable Disease -- A Thought Experiment:
  2. Do HIV+ Pregnant Women Have a Constitutional Right To Refuse HIV Medication,
Jewish National Leaders:

Which Prime Ministers / Presidents / dictators of countries other than Israel have been Jewish, either by religion or by birth, and either wholly or partly? Benjamin Disraeli is an obvious example; Leon Blum, French Prime Minister in the 1930s, is another example. Lenin is said to have a Jewish grandfather or great-grandfather who had converted to Christianity; I'm not sure how well-attested this is, but I thought it's worth noting it. (I know some anti-Semites have made much of it, but while I can't be positive whether it's right, I'm quite sure it's not only an anti-Semitic canard; a quick LEXIS search revealed a Jerusalem Post article that quotes this offhandedly.) I'm posting a likely more surprising item as the first comment.

But what others? Remember, I'm looking only for the Prime Ministers, Presidents, or dictators, not lower-rank government officials or failed contenders (e.g., Barry Goldwater). As you might gather from the reference to Lenin (or for that matter, Blum, who was a Socialist), the question isn't a matter of ethnic pride, just curiosity.

UPDATE: Mark Kleiman points out that Blum, though a Socialist, "was also the leader of the forces in France that wanted to oppose the Nazis. (See the first volume of Churchill's Second World War.) Politically, he was a failure, but morally he was a hero." I'm happy to defer to Mark's greater knowledge of the subject; I knew that Blum was an anti-fascist Popular Front leader, but hadn't known that he had distinguished himself enough in that capacity to get much credit. If Blum had shown particular courage, skill, or perspicacity in that context, I'm happy to give him plenty of credit for it (though I'm still not sure that I'd on balance derive ethnic pride, if I was prone to such things, from his being a fellow Jew).

Data-Mining, FISA, and the NSA Surveillance Program: I'm planning on spending the rest of today at the AALS Annual Conference across town, but I wanted to touch on a few more issues about the NSA surveillance program before I do:

  1. Based on what I have read from Risen's book, it seems less likely to me than it did before that this is a TIA-like data-mining program. It helps to note a distinction between two different methods that the press (and some commentators) often jumble together: packet-sniffing on a packet-switched network, and data mining. Packet sniffing refers to installing a monitoring device on a steam of traffic that looks for specific sequences of letters, numbers, or symbols. Here is how I explained packet sniffing for Internet traffic in my article, Internet Surveillance Law After the USA Patriot Act:
While the Internet uses packets to send and receive information, the packets are really just digital ones and zeroes that computers use to communicate with each other. The ones and zeroes can be reassembled into text to be read by a human, but computers do not need to do this and generally will not. A computer surveillance tool programmed to look for all emails to the Internet account "" does not actually look for the text "" To simplify a bit, the tool instead begins by looking for emails, and when it finds an email, it scans the right place in the email for the digital equivalent of "," which is 0110001001101111011000100100000001100001. If this exact sequence of ones and zeros appears in the right place, the surveillance tool knows that it has found an email to and will copy and record the block of ones and zeros that represent the email so that someone can later come back, convert the ones and zeros into text, and read the email. If the tool has an advanced filter and is configured properly, the billions of ones and zeros that do not relate to emails or to the exact sequence of 0s and 1s that represent the target account will pass through the device and be forgotten.
Based on what I have read from Risen's book, it sounds to me like that's what the NSA was doing. For those with criminal law experience, this was basically a large-scale pen regsister/trap-and-trace or wiretap, depending on how the filters are configured. (I'm not sure how different telephone traffic is these days, at least inside the provider switches.)

  This is different from a data-mining program. The term "data-mining" is usually used to mean taking an already-gathered database of information, and then performing analysis on the gathered database in lots of ways to identify patterns and characteristics. As best I can tell, the NSA program was not actually recording domestic Internet traffic, putting it in a database, and then "mining" it for key words and the like. Rather, this was a real-time surveillance program focusing on traffic associated with specific phone numbers and e-mail accounts. This is extra-tentative, of course; I'm basing this from snippets in Risen's book, and I'd be happy to change this analysis if we get new info. (Also, while it is true that Nancy Pelosi's letter expressed concern that the program was like TIA, keep in mind that she wrote that letter without any help from her staff; I don't think Pelosi has any background in this area, so I'm not sure her letter is particularly helpful evidence of the program at this stage.)

  2. I know it's going to annoy Armando, but I'm still not yet entirely sure of what to make of the legal issues. If I were confident that the DOJ letter represented a concession that the program violated FISA, I would be happy to bank on that and move on. As I have said before, I find the AUMF and Article II arguments unconvincing, so if that's the right issue to be focusing on, I'm with Armando. But something seems fishy here. For example, the leakers of the story seem focused on the Fourth Amendment instead of FISA. Further, given the extremely small number of people within the government who know the details of the program, it's not clear that DOJ's Office of Legislative Affairs (the office that sent the letter) was briefed on the details of the program. That is, the DOJ memo may have been written by people who knew less about the monitoring program than we now know thanks to Risen's book. (This may seem odd to you if you have never worked in the federal government; my guess is that it will seem less odd to those who have.) So Armando may be right, but I don't think we know enough to be sure of that.

  3. Finally, and relatedly, the details of the program from Risen's book arguably explains the national security interest in keeping the domestic surveillance program a secret. It's not that terrorists may suddenly realize that they may be monitored; that argument never made much sense, as every member of Al-Qaeda must know that they may be monitored. Rather, I suspect the security issue is twofold. In the short term, terrorist groups now know that they can stand a significantly better chance of hiding their communications from the NSA by chosing communications systems that don't happen to route through the U.S. And in the long term, some countries may react to the disclosures of the program by redesigning their telecommunications networks so less traffic goes through the United States. The more people abroad know that the NSA can easily watch their communications routed through the U.S., the less people will be willing to route their communications through the U.S. Cf. Bruce Hayden's comment. No doubt it was a long-term priority of the NSA to ensure that lots of international communications traffic was routed through the U.S., where the NSA could have much better access to it. Indeed, Risen's book more or less says this. The disclosure of the program presumably helps frustrate that objective.

  Anyway, that's it for now. My apologies to readers who want me to have a much more certain answer. My Internet surveillance antennae aren't yet giving me clear enough clues to know for sure where things are going to land.
So You're An Academic Who Wants To Be a Consultant to Hollywood?

Read Kate Coe's piece in the Chronicle of Higher Education.

New Risen Book Sheds Light on NSA Surveillance Program: In the many debates we've had here at the VC about the NSA's domestic surveillance program, we've been stymied by the lack of facts about how the program works. James Risen's new book, State of War: State of War : The Secret History of the C.I.A. and the Bush Administration, was released just today, and it has lots of juicy new facts to ponder. Risen's civil libertarian views are front and center, so the tone isn't exactly balanced, but the new facts make it an incredible read.

  Risen's book answers a bunch of our questions about why the program was started, and what it does differently than past NSA surveillance programs. We don't yet have definitive answers to the legal questions, but we have a much sharper picture of the issues. Further, I suspect these disclosures may have an impact on the public opinion; at first blush, at least to me, the new facts seem to present the program in a somewhat more sympathetic light than have some previous reports.

  According to Risen, the key to the new program is a shift in telecommunications technology in recent decades that has made U.S. networks the carriers of lots of international telephone and e-mail traffic.
  In addition to handling telephone calls from, say, Los Angeles to New York, the switches also act as gateways into and out of the United States for international telecommunications. A large volume of purely international telephone calls — calls that do not begin or end in America — also now travel through switches based in the United States. Telephone calls from Asia to Europe, for example, may go through the United States-based switches. This so-called transit traffic has dramatically increased in recent years as the telephone network has become increasingly globalized. Computerized systems determine the most efficient routes for digital "packets" of electronic communications depending on the speed and congestion on the networks, not necessarily on the shortest line between two points. Such random global route selection means that the switches carrying calls from Cleveland to Chicago, for example, may also be carrying calls from Islamabad to Jakarta. In fact, it is now difficult to tell where the domestic telephone system ends and the international network begins.
  In the years before 9/11, the NSA apparently recognized that the remarkable growth in transit traffic was becoming a major issue that had never been addressed by FISA or the other 1970s-era rules and regulations governing the U.S. intelligence community. Now that foreign calls were being routed through switches that were physically on American soil, eavesdropping on those calls might be a violation of the regulations and laws restricting the NSA from spying inside the United States.
  But transit traffic also presented a major opportunity. If the NSA could gain access to the American switches, it could easily monitor millions of foreign telephone calls, and do so much more consistently and effectively than it could overseas, where it had to rely on spy satellites and listening stations to try to vacuum up telecommunications signals as they bounced through the air.
  Reading over this part of Risen's book, it seems that most of the new surveillance program was not about domestic surveillance at all; most of it was about the surveillance of entirely international calls and e-mails that just happened to be routed through U.S. networks in the course of delivery. According to Risen, the program typically monitored about 7,000 individuals overseas at any given time, as compared to about about 500 people who were located in the United States. From an operational perspective, then, the big difference between prior NSA practices and the new program was that the NSA was using a back door into domestic privider switches in the U.S. to monitor communications that were mostly foreign to foreign.

  Okay, so now let's take a look at the legal questions again. Recall that FISA prohibits "electronic surveillance," defined in relevant part as follows by 50 U.S.C. 1801(f):
(1) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire or radio communication sent by or intended to be received by a particular, known United States person who is in the United States, if the contents are acquired by intentionally targeting that United States person, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes;
(2) the acquisition by an electronic, mechanical, or other surveillance device of the contents of any wire communication to or from a person in the United States, without the consent of any party thereto, if such acquisition occurs in the United States. . . .
  As I read this language, monitoring communications both sent to and received by individuals located outside the United States is not prohibited by FISA. This surveillance is technically domestic — it occurs within the United States — but it does not involve monitoring "a person in the United States." So if I'm understanding things correctly — always a big "if" when you post after 2 am — most of the program did not violate FISA.

  Now here's the part I can't quite figure out. If most of the program dealt with international calls, and didn't violate FISA, why would the program be designed so that it also tapped the calls of 500 or so people in the United States? If the communications tapped were wire communications, then tapping those communications inside the United States seems to clearly violate FISA under 1801(f)(2). So it seems like there are two possibilities: either the communications were wire communications and the designers of the program thought that the 500 people tapped in the U.S. were of sufficient importance (potential terrorists cells, etc.) that they didn't want to cabin the program to deal exclusively with foreign-to-foreign calls, or else the communications were electronic communications and perhaps the monitoring didn't violate FISA. (Can anyone else tell based on Risen's excerpt whether the communications were wire or radio? Maybe it's just late, but I'm not sure.)

  Here's another puzzle to ponder. A few passages in the Risen book suggest that the legal concerns offered by those who leaked this story may be different from the legal concerns that I've been focusing on in my posts. For example, according to the book, "[s]everal government officials who know about the NSA operation have come forward to talk about it because they are deeply troubled by it, . . . [t]hey strongly believe that the president's secret order is in violation of the Fourth Amendment of the Constitution, which prohibits unreasonable searches." Other parts of the book seem Fourth Amendment-focused, as well.

  That seems somewhat odd to me, because, as I've explained before, my primary legal concerns are statutory, not constitutional. This raises a couple of different possibilities. For example, it may be that the program doesn't violate FISA after all, and the debate within government has really been about the Fourth Amendment. The concern within some government officials may be that scanning traffic en masse for phone numbers or e-mail addresses of even foreign calls may violate the Fourth Amendment rights of domestic people whose communications are scanned (even only in the passing way that any Internet wiretap must scan all traffic). That is consistent with Risen's claim that "Now that [foreign to] foreign calls were being routed through switches that were physically on American soil, eavesdropping on those calls might be a violation of the regulations and laws restricting the NSA from spying inside the United States." The "regulations and laws" don't seem to be FISA, as I believe FISA is implicated only when the person monitored is in the United States; could those "laws" be the Fourth Amendment? Are there other "regulations" that govern the NSA that might be implicated here? It's hard to tell. Of course, it's also possible that the Fourth Amendment concerns are a bit of a red herring: the claim may be a cover for other motives. Who knows.

  In any event, it's way late, and I'm probably not being very coherent at this hour. More pondering tomorrow. Thanks to Lee Tien for the tip.

Tuesday, January 3, 2006

NSA Expanded Surveillance On Its Own -- But Connections to Later Program Doubtful: The New York Times is reporting that in the days following 9/11/01, the NSA stepped up its surveillance programs on its own without Presidential action:
  The National Security Agency acted on its own authority, without a formal directive from President Bush, to expand its domestic surveillance operations in the weeks after the Sept. 11 attacks, according to declassified documents released Tuesday.
  The N.S.A. operation prompted questions from a leading Democrat, Representative Nancy Pelosi of California, who said in an Oct. 11, 2001, letter to a top intelligence official that she was concerned about the agency's legal authority to expand its domestic operations, the documents showed. . . .
  The letter from Ms. Pelosi . . . suggested that the security agency, whose mission is to eavesdrop on foreign communications, moved immediately after the Sept. 11 attacks to identify terror suspects at home by loosening restrictions on domestic eavesdropping.
  The obvious question is, was this expansion directly related to the Bush Administration's warrantless surveillance program? I doubt it. It seems quite unlikely to me that the NSA would on its own accord engage in monitoring that needed the AUMF or rather novel Article II theories to justify it. Presumably the change was just some kind of expansion of monitoring or change in practice that the NSA thought fit within the bounds of FISA and the existing Executive Order. That's what this bit from the story suggests:
  Bush administration officials said on Tuesday that General Hayden, now the country's No. 2 intelligence official, had acted on the authority previously granted to the N.S.A., relying on an intelligence directive known as Executive Order 12333, issued by President Ronald Reagan in 1981. That order set guidelines for the collection of intelligence, including by the N.S.A.
  "He had authority under E.O. 12333 that had been given to him, and he briefed Congress on what he did under those authorities," said Judith A. Emmel, a spokeswoman for the Office of the Director of National Intelligence. "Beyond that, we can't get into details of what was done."
  We can't know for sure, but it seems like there probably isn't much of a story here. One would certainly hope that the NSA changed its surveillance practices somewhat in the days following 9/11. So long as the changes fit readily within the boundaries of preexisting law -- which seems to have been the case, as far as I can tell -- I don't see a problem here.

  Thanks to Eric Freedman for the link.
Denver University Bar Passage:

The University of Denver's Sturm College of Law recently concluded a study of the unacceptably high bar exam failure rate of many of its graduates. (Summary here.) The study found that students whose LSATs were in the bottom 20% of admitted students, and whose first-year grades were in the bottom 20%, were very unlikely to pass the bar. The administration has implemented a program to address the problem, but the professors who conducted the bar exam passage study are skeptical. Professor Sam Kamin writes:

The data that Professor Joyce Sterling and I have collected on more than 2,000 DU graduates indicate that curricular and extra-curricular choices that individual students make – whether to take bar classes, whether to do externships, whether to participate in the student law office, etc. – have little if any significant impact on their bar exam success. Thus, I am concerned that some of the proposed solutions – principally requiring more bar classes and in-class exams – will have no impact on bar passage and might mislead students into believing that this complex problem has a simple solution.

Professor Sterling and I found that the best predictors of poor bar exam performance are very low LSAT scores and low law school grades. Thus, the data indicate that instead of making broad curricular or pedagogical changes, the most likely path to improving our bar pass rate is to cease admitting students without a substantial likelihood of bar exam success, to identify at-risk students among those admitted, to help them develop the skills they need to succeed in law school, and to fail out those that we cannot find a way to help.

UPDATE: A commenter asks for DU's ranking. According to the latest U.S. News & World Report ranking, DU is in a tie for 95th place. Although it's not top tier, it is ahead of dozens of other law schools, many of which, I suspect, also have abysmal bar passage rates for the bottom 20% of their students.

2005 Year in Review: Second Amendment and Federal Law

For the Right to Keep and Bear Arms, the past year was an outstanding one, at the Congressional level. The most significant action, of course, was the passage of the Protection of Lawful Commerce in Firearms Act, designed to prohibit abusive lawsuits against gun manufacturers and gun stores. (Extended blog entry thereon is here.) The final version contained a few mild gun control items, none of them seriously dangerous.

Congress also enacted several other, less-noticed, laws to protect Second Amendment rights. These were:

An appropriations rider which ends a policy, begun by the Clinton State Department, of implenting an unratified 1997 treaty (the Organization of American States' "Convention Against The Illicit Manufacturing Of And Trafficking In Firearms, Ammunition, Explosives, And Other Related Materials") by requiring an export license for delivery to Canada of replacement parts for firearms repair. The exemption applies only to orders of less than $500, and only for some gun components.

An appropriations rider to end an administrative abuse, begun in the Clinton Presidency, by which the Bureau of Alcohol, Tobacco, Firearms & Explosives (BATFE) obstructed the re-importation of American-manufactured firearms on the BATFE's "curios" and "relics" list.

Strenghtening enforcement of federal law requirement that when local law enforcement receives a report of a multiple handgun purchase by an individual, and the individual is legally allowed to purchase such guns, the multiple sales report must be destroyed within 20 days.

Exemption of custom gunsmiths who produce less than 50 guns per year from paying the federal excise tax on firearms manufacturer. In most cases, the tax was already paid for the original gun which is being customized.

Strengthening the armed pilots program by ordering the Department of Homeland Security to consider changes in the pilot training program (which is currently run in a remote, inconvenient location, at inflexible times), requiring the DHS to issue badges to trained pilots, and requiring DHS to implement a pilot program allowing some pilots to carry their guns in places other than the cockpit.
Significant Second Amendment protection issues for Congress in 2006 will likely include repeal of the D.C. ban on handgun possession and on possession of long guns in a condition usable for home defense; prohibiting state or local governments from confiscating firearms from law-abiding citizens (as New Orleans and St. Tammany Parish did after Katrina), addressing BATFE abuses, and taking action against United Nations efforts to destroy American gun rights.

Except for the amendments on the Protection of Lawful Commerce bill, no anti-gun legislation was enacted by Congress in 2005.

PDA Blogging Advice Needed: I have been very happy with the service and pricing of T-Mobile over the past year, as well as with the functionality of my Treo 600. Nevertheless, I was considering moving to Verizon when Palm announced the Treo 700w (and here) that would access their 3G high-speed wireless data network. The problem with such a move was that the phone plan was more expensive ($70 vs $50 a month for 2 lines) and the data plan was much more expensive ($45 vs. $20 per month for unlimited data). And unlike T-Mobile which is GSM, Verizon does not work in many countries. I have used my Treo for email and web browsing extensively in Europe and recently in Singapore, so having a "world phone" comes in handy for me. And I have never had a practical problem with T-Mobile's national phone coverage.

A few weeks ago, however, I happened to discover that T-Mobile had already rolled out its EDGE network that renders much higher speed Internet than before. (While it does get between 100-150kbs, the bursts are sometimes interrupted, so the net speed is slower.) Though this is still slower than Verizon (which promises up to 300kbs), it seemed like it might be fast enough for me, but I needed an EDGE capable PDA. When I discovered that the Treo 650 GSM version was EDGE capable, I had an excellent reason finally to upgrade to what is a much refined PDA in several respects, e.g. better keyboard, much better screen resolution, and faster processor.

So far I am very happy with the Internet speed one gets from EDGE. It is great for surfing blogs. Where once I had to avoid any graphics intensive blogs, I can now go pretty much anywhere I like. I highly recommend this option. The only downside is the cost. T-Mobile does not sell subsidized Treo's and an unlocked one from Palm cost me $550. (I bought it at the Airport Wireless store in Logan.) On the other hand, T-Mobile is not charging any extra for access to its EDGE network so, at $20 per month for its Internet access, the service is cheap. And T-Mobile's national coverage for its EDGE network is far more extensive than Verizon's high speed data network, which is confined to major metropolitan areas.

I now want to start blogging from my Treo 650 but am not sure which client I should buy. This article reviews several clients (mo:Blog, HBlogger, Plogit, and Vagablog), but it is over a year old. Powerblogs uses the metaweblog API, so any client must be compatible. Does anyone have any recommendations? I know I can always download them and try them out for myself, but I thought I would see if any readers has working experience with these applications.
Murders of Atheists Because of Their Beliefs About Religion:

Last week brought two stories about such incidents, though the killings themselves were a year apart. Here's one from Michigan:

It was one of the five "most heinous" crimes Wayne County Circuit Judge Gregory Bill has ever seen.

Wayne County Assistant Prosecutor Christina Guirguis called it the "most gruesome" crime she's ever prosecuted.

On Dec. 20, Bill sentenced Arthur Eugene Shelton, 51, of Taylor to 25 to 45 years in prison for the Oct. 18, 2004, shotgun and revolver killing of Shelton's friend, Larry Hooper.

"He blew the guy's head off," said Shelton's attorney, Seymour Schwartz.

Following a three-day bench trial, Bill found Shelton guilty Nov. 30 of second-degree murder for killing Hooper in the living room of his Taylor home, where Hooper was staying. . . .

Shelton [had] called Taylor police and told a dispatcher that he'd just blasted a man with a revolver and a shotgun because the man said he didn't believe in God.

The dead man was "the devil himself," Shelton told the dispatcher. . . .

Before the shooting, Hooper had told Shelton that Shelton couldn't say anything to convince him to believe in God, according to police[.]

Shelton left the room, took off his shirt, shaved his face and tried again to convince Hooper there is a God. But at that point, Shelton had a 12-gauge shotgun.

"How long would it take you to believe in God?" Shelton said he asked Hooper.

"Not until I hear Gabriel blow his horn," replied Hooper.

Hooper tipped his hat and Shelton fired the shotgun at Hooper's head.

"I did it because he is evil; he was not a believer," Shelton said.

Later, Shelton told cops he might have second thoughts about the existence of God. "Maybe there's not" a God, he said. . . .

Bill found him guilty of second-degree murder but mentally ill, Guirguis said. . . .

Here's the second, from Kentucky; I quote the Paducah Sun, Dec. 28, 2005:

[Mike] Doublin, 53, has been charged with the murder of [his longtime friend Gale] Yarbrough. . . .

Yarbrough, Doublin and [witness Paul] Powell — who had all been drinking — were the only people inside the shop building at the time of the shooting, Cooper said. Powell said Yarbrough and Doublin had been drinking whiskey there for several hours, Cooper said. . . .

Powell said the two men started fighting after Yarbrough said he didn't believe in God, the Masons or church and then wouldn't leave Doublin's residence, Cooper said. . . .

Doublin had [an] . . . estimated his blood alcohol reading was about .20 at the time of the shooting. . . . .

I'm always hesitant to infer much from isolated incidents such as these ones. I didn't think, for instance, that the apparently gay-bashing murder of Matthew Shepard in Wyoming and the racist murder of James Byrd were particularly telling about the amount or intensity of anti-gay hatred or racist hatred in America. What we know about such hatred we know from other sources, not these particular incidents. (Aside: I don't want to get into the controversy which later surfaced about whether the murder was in fact motivated by Shepard's homosexuality; I haven't followed the matter that closely, and it's not particularly relevant to my basic point here.)

Nonetheless, such incidents are concrete reminders of the hostility that we know is present; and to the extent that they are covered because of this, it seems to me that these murders of those who don't believe in God should be covered as well. The levels of hostility to atheists cited in earlier posts on this blog here, here, and here provide abstract statistics (not of murderous hatred, of course, but of hostility nonetheless, just as surveys that show that many people view Jews unfavorably or would refuse to vote for Jewish candidates are evidence of hostility towards Jews). The two murders here provide the concrete examples. A quick search, incidentally, suggests that the cases received no coverage outside their local newspapers.

Finally, I agree that these cases are somewhat different than the Shepard and Byrd killings — they involve friends, and killers who were either mentally ill or drunk. But if one friend murdered another when drunk because the other was gay, or because the other was a Jew who refused to accept Jesus Christ, I think we'd still think that this is indicative of bigotry: The drunkenness, we'd suspect, likely didn't create the hostility, but rather removed the inhibitions against acting on that was already there.

Thanks to Neil Reinhardt for the pointer to the first of these incidents.

Chomsky's Grasp on Reality:

From Daniel Pipes's blog:

In an interview in the fall 2005 issue of Thought & Action, the National Education Association's journal, Noam Chomsky discusses the post-9/11 intellectual climate in the United States. He argues that political harassment on the nation's campuses "is massive" but, contrary to general opinion, it is directed against dissidents like him who question U.S. Middle East policy: "there has been extreme discrimination on campus, and very serious harassment, but it's of anyone who questions the orthodoxy, not against conservatives." As proof, he gives the examples of Edward Said and himself: "He had to have police protection at his office, at his home. He had to have a buzzer in his home so he could call the police station. [Hmm: Anything to do with his membership in the Palestine National Council, not known for settling internal disagreements--such as Said's frequent denunciations of Arafat and Oslo--peacefully?]That went on all the time. I've been under police protection when I gave a talk on college campuses about the Middle East." Chomsky then goes on to blame the powers-that-be: "The nation's intellectual leaders are intimidated. Did you ever hear of any protest because someone who raised questions about the dominant orthodox position on the Middle East had to be given police protection when they were giving talks on campus? I don't recall any protests about that."

Comment [by Pipes]: One has to admire the daring, if not the accuracy, of the single most favorite speaker on American campuses claiming the mantle of persecution for himself. My research finds no instances of Chomsky's campus talks having been the subject of demonstrations and heckling, of his having personal bodyguards the entire time he visits a campus, of his needing a hundred police to control potential protests, of his having to speak in a lock-downed gymnasium, of his speech being preceded by deans warning the audience against disruption, or his having suffered the indignity of having pies thrown at him. All but the last of these, by the way, have happened to me.

My comment: What in God's name is Chomsky talking about? I gather that just about any controversial well-known conservative speaker speaking on a typical major college campus--Pipes, Ann Coulter, Dinesh D'Souza--almost routinely requires police escort, faces hecklers, etc. A dozen police are apparently required to keep order on campus when liberal (but pro-Israel) Alan Dershowitz speaks via satellite. In general Chomsky and his allies will at worst face a hostile question or two within a sea of admirers.

UPDATE: And check out these remarks from leftist historian Paul Buhle, best know for his sympathetic portrayals of American Communists, regarding criticism of his work by other historians: "First let me note that most of the political attacks from the Right are actually intended, like the repressive atmosphere generally, not to threaten me but to intimidate graduate students and young professors who might speak their minds, or join protest movements." If that's not sufficiently over-the-top, Buhle adds: "There's another element in the attacks upon my writings: not Red Baiting but Goy-Bashing. The notion that a Gentile--even one who works in Yiddish and spends much time with Jewish audiences--could actually understand Jewish culture is annoying if not threatening." Apparently, some academics live in a such an ideological cocoon that any criticism of their views is interpreted as part of some broad plot.

Post a Comment, Be Cited by a Prominent Newspaper:

Congratulations to commenter Tony, whose comment to one of our posts was quoted last month by the Pittsburgh Tribune-Review.

Atheist Law Center Seemingly Continues to Support Larry Darby:

Darby is the ALC's cofounder and former president; he's now running for Alabama Attorney General. Last month, I noted on this blog that Darby had complained about America's "Zionist-Occupied Government," helped organize a talk by denier David Irving, and seemed oddly interested in whether his questioner on this (me) was Jewish. Here's a message from Carol Moore, the Center's new president, which was sent in response to my blog post (which I had cross-posted to a discussion list):

[Quoting me:] "On the other hand, his having been involved in the group, and the Center's having hosted David Irving while Mr. Darby was president, makes me concerned about the group more broadly. It seems to me very important that irreligious people participate in public debate, to defend the legitimacy of their views, and to protect themselves against religious discrimination and hostility. I don't agree with everything that all atheist activists urge; for instance, I don't think that the Establishment Clause is properly interpreted as banning religious speech by the government. Nonetheless, there are indeed some egregious forms of discrimination against the irreligious (or the less religious), for instance in child custody cases - these should be assiduously fought. I therefore have nothing at all against atheist political movements in general, nor do I have any reason to believe that atheists generally have any hostility towards Jews, or affection for David Duke. Yet this makes it all the more important, it seems to me, for atheists who are deciding whom to ally themselves with - or for that matter, for members of other groups, such as Scouting for All or any marijuana decriminalization groups - to know Mr. Darby's views that I describe above, views with which I hope most atheists much disagree."

[Moore:] I simply do not understand "concerns" about the ALC simply because of Larry Darby and David Irving. It is important that citizens participate in the public debate, but it is even more important that ALL citizens receive as much information as possible so they can make up their own minds. Both Darby and Irving provided such information from different perspectives. Listening to all sides of issues does not mean that atheists "ally" themselves with those who disseminate such information. It means we embrace free inquiry and discussion first, and then chose our own level of acceptance of that information. For the record, Irving's presentation in Alabama last summer was a discussion of the English legal system as it related to his case. Would you have us ignore this first hand account simply because of other's opinions? It that were true, how on earth would anyone get through law school?

[Quoting me:] "Likewise, Alabama Democrats should know who's running in their primary, and should keep in mind the views I note above, even if some of them are tempted to agree with him on marijuana decriminalization, juvenile justice, or even religion in public life. (I doubt there are that many Alabama Democrats who do agree with him on those latter issues, but I imagine there are some.)"

[Moore:] Yes, there are enough Alabama citizens who agree with Darby's views to make Darby a viable candidate for AG. We "know" about Darby...he's been a reputable, consistent representative of our frustration with our current state government. We are Democrats, Republicans, Libertarians, and Independents. We can see through the smoke screen of the current status quo, listen to all sides of the issues, and make up our own minds. Doubts do not deter us — they challenge us.

[Quoting me:] "And it's also important for Jews — even in America, the place in the world in which it is probably safest to be a Jew — to be reminded that these sorts of views do exist in America, and in what might to many seem like quite unlikely circles."

[Moore:] This comment perpetuates the myth that Atheists are the enemy. America doesn't promise safety, equality, or fairness. America doesn't promise that you won't be personally demonized for your opinions — as some on this service seem to relish. America does, however, promise via the First Amendment the opportunity and the potential for a rational life, by stating explicity that the Government will stay out of religion. There is no quote on the Statue of Liberty that says "I lift up my lamp for the religious only." America promises a forum for all ideas, even those we may personally abhor. We are all enriched and enlightened by the forum and the participants.

I think this should give people a pretty good sense of where the Atheist Law Center stands on Larry Darby and his views.

As I said in my original post, "It seems to me very important that irreligious people participate in public debate, to defend the legitimacy of their views, and to protect themselves against religious discrimination and hostility. . . . I . . . have nothing at all against atheist political movements in general, nor do I have any reason to believe that atheists generally have any hostility towards Jews, or affection for David Duke. Yet this makes it all the more important, it seems to me, for atheists who are deciding whom to ally themselves with — or for that matter, for members of other groups, such as Scouting for All or any marijuana decriminalization groups — to know Mr. Darby's views that I describe above, views with which I hope most atheists much disagree. . . ."

So, no, I don't think that atheists are the enemy of Jews (whether ethnic Jews, against whom atheists need have no animosity, or religious Jews, with whom atheists may simply have a disagreement). But it certainly seems to me that Jews, both ethnic and religious, should be pretty troubled by the Atheist Law Center.

UPDATE: Whoops -- originally wrote Larry Irving instead of David Irving (and not for the first time, sad to say). Larry Darby + David Irving somehow end up melding in my mind into Larry Irving, who as best I can tell is a perfectly fine fellow; my apologies to him. Thanks to commenter MM for the correction.

Jack Abramoff to Plead Guily, Cooperate With DOJ: The latest news is here. Now things get really interesting:
  Any such plea agreement likely would secure the Republican lobbyist's testimony against several members of Congress who received favors from him or his clients. The Justice Department is believed to be focusing on as many as 20 lawmakers and aides. . . .
  Abramoff's cooperation would be a boon to an ongoing Justice Department investigation of congressional corruption, possibly helping prosecutors build criminal cases against up to two-dozen lawmakers of both parties and their staff members.
Happy Birthday, Cicero:

Today is the anniversary of the birthday, in 106 B.C., of the great Roman orator Cicero. Cicero was well-known to many generations of Latin students for the text of his eloquent speech in favor of the natural law right to self-defense. In an article a few years ago in Chronicles, I looked at the political lessons which America's Founders drew from Cicero and other Romans. Among the conclusions: the Founders saw how Rome had degenerated from a Republic to a military dictatorship, and traced the degeneration to the moral decline of the Roman citizeny. One of the causes of the decline was the replacement of the militia by a professional standing army.

A3G as Wonkette?: The Wall Street Journal's new law blog -- yep, that's right, the WSJ has started a law blog -- reports on a rumor that David Lat, aka Article III Groupie, is going to be the new Dread Pirate Roberts Wonkette. From the story:
Here’s the latest buzz: Queen of the blogosphere Ana Marie Cox is said to be handing over the reins at her spicy political blog Wonkette. David Lat, the federal prosecutor who revealed himself to the New Yorker magazine in November as the author of the popular "Underneath Their Robes" judicial blog, is expected to start blogging for the site. Lockhart Steele, managing editor of Gawker Media, which owns Wonkette, declined to comment. We hear that Lat will have a co-editor.

Monday, January 2, 2006

Article on NSA Surveillance Law: Here is an interesting pre-Patriot Act student note on the law governing NSA surveillance: Lawrence D. Sloan, Note, ECHELON and the Legal Restraints on Signals Intelligence: A Need For Reevaluation, 50 Duke L.J. 1467 (2001). I gave it a quick skim, and it seems to present a decent background for some of the issues surrounding FISA and NSA surveillance. Thanks to reader Shawn Bjorklund for the link.
"Discriminatory" Mortgages in Israel:

An Arab couple is suing the Israeli government because they are eligible for a somewhat smaller mortgage than those who have served in the military. In Israel, military service in mandatory for Jews and Druze but voluntary for Arabs. Few Arabs, other than Bedouins, volunteer, but those who volunteer get the same benefits as Israeli Jews.

I have no doubt that there is a great deal of discrimination against Arabs in Israel; perhaps I'll express my views on the Arab situation in Israel some other time. However, I've never understood the argument that it's "discrimination" to deprive them of benefits that accrue to military veterans, given that Arabs are free to volunteer for the military; indeed, they could volunteer for other national service if serving in the military is too much to ask. Military veterans spent at least three years of their lives in the military, often in dangerous assignments. They then have to serve as reservists for a month every year for another two decades. Getting a slightly higher mortgage, among other perks, hardly seems like unfair compensation for bearing this burden. If the Arabs of Israel, and their Jewish supporters, want to successfully fight for equal rights, they should insist on not only getting equal benefits to Israeli Jews, but on bearing equal responsibilities. But it's a little too cute to argue that one should be eligible for the same state benefits as those who serve the state.

UPDATE: My colleague Ilya Somin writes in:

I just thought I'd point out that the Arab suit about housing preferences for veterans in Israel is structurally very similar to the Feeney case decided by the US Supreme Court in 1979 (upholding veterans preferences in the Massachusetts civil service against a challenge that they discriminated against women). I think, however, that the Israeli Arabs' argument is weaker than Feeney's because in 1979 (and even to a lesser degree today) women were legally barred from many military specialties, especially the ones most relevant for advancement in rank. By contrast, the IDF does not categorically bar Arabs from any branch of the service, though of course there is probably informal discrimination against them. Moreover, as you point out, Israeli Arabs can get the same benefits by doing civilian governmentt service, while the Massachusetts statute did not give any similar credit for civilian service.

Former Alito Clerks -- And A Current Colleague -- on C-SPAN: It's a slow news day here at the VC for some reason, so I thought I would fill in the void by pointing out that two of my friends were on C-Span's America and the Courts feature this weekend talking about their experiences clerking for Judge Alito. Jeff Wasserstein clerked for Judge Alito in 1997-98, the year I clerked for Judge Garth in the same courthouse complex. Hannah Smith clerked for Justice Thomas the year I was clerking for Justice Kennedy. I don't know Gary Rubman, who clerked for Alito in 2000-01, but I like him already because he graduated from GW Law; based on that fact alone, I can assure you that he is a man of outstanding character and judgment. (Based on last week's experience, some commenters will think this is just "propaganda"; I assure you that I'm just trying to embarrass my friends. Also, it would be really weird if that 3-line link to Marty's post were the only VC post on a Monday, wouldn't it?)

  Oh, and while you're at it, check out the interview with the always-interesting Judge Edward Becker, one of Judge Alito's colleagues on the Third Circuit. It begins at the 27 minute mark. Thanks to Howard for the link.
Article II and the McCain Amendment: Marty Lederman takes a look at the President's signing statement for the Defense Appropriations Bill signed on Friday, and finds evidence that the Administration is sticking with its claims of broad Article II authority.

Sunday, January 1, 2006

Grumbling About Kodak:

My dad gave me a Kodak LS 443 digital camera that he never used. I took about 150 pictures with it, and then it completely froze after receiving an "E45" error message. Checking the Internet, I discovered that this is a very common hardware error with this camera model, and was warned that (a) Kodak will no longer fix it; and (b) that they will offer a newer camera model instead.

Sure enough, a call to Kodak resulted in the following email:

Currently we are no longer repairing the LS443. We would like to make you aware of our new camera repair by replacement program. To reduce the need to store replacement parts that often went unused, Kodak has recently established a corporate policy of replacing out-of-warranty cameras with models of equal or better quality.

At this time, for what may be less than the cost to repair your LS443, we are able to offer you a refurbished Kodak EasyShare Z730 zoom digital camera (with Kodak EasyShare camera dock) for $150.00. You are upgrading to newer digital imaging technology and receiving a full one-year warranty.

Gee, thanks. Your crappy camera gave out after 150 pictures, you won't fix it even though it's apparently a widespread flaw, and you're offering me the opportunity to buy a reconditioned Kodak camera for $50 less than a could get a brand new one.

The really bad news is that there is such a bewildering array of digital cameras out there, I have no idea which one to buy. I'd like one that's reasonably priced, takes nice shots, and assumes that I know nothing about photography, and don't want to learn. PCWorld seemed like a good place to start, but I'm a bit puzzled over whether it's worth spending $100 or so more to get more megapixels.

UPDATE: I decided to go with the Canon PowerShot A520 Digital Camera, because it was highly recommended by CNET, PCWorld, and Consumer Reports, the only entry-level camera that won such unanimous accolades. Bought it from Dell, using a series of coupon codes I found at that brought the price to $204 including tax, shipping, and a 512 MB memory card.

[And here's another authority that recommends the A520.]

Interesting Comment Thread: Comment threads here at the VC have taken on a life of their own recently -- a great thing, I think, as lots of them are really interesting -- and in that spririt I wanted to point out that the comment thread for my latest post has a very interesting discussion of the legality of the NSA surveillance program (including a bunch of comments of my own), starting around the 7:30 mark.
Comey Tried to Limit NSA Surveillance Program: The New York Times has a fascinating article today about efforts by former Deputy Attorney General James Comey to limit or even block the NSA surveillance program back in 2004, when Comey was acting Attorney General:
  A top Justice Department official objected in 2004 to aspects of the National Security Agency's domestic surveillance program and refused to sign on to its continued use amid concerns about its legality and oversight, according to officials with knowledge of the tense internal debate. The concerns appear to have played a part in the temporary suspension of the secret program.
  The concerns prompted two of President Bush's most senior aides - Andrew H. Card Jr., his chief of staff, and Alberto R. Gonzales, then White House counsel and now attorney general - to make an emergency visit to a Washington hospital in March 2004 to discuss the program's future and try to win the needed approval from Attorney General John Ashcroft, who was hospitalized for gallbladder surgery, the officials said.
  The unusual meeting was prompted because Mr. Ashcroft's top deputy, James B. Comey, who was acting as attorney general in his absence, had indicated he was unwilling to give his approval to certifying central aspects of the program, as required under the White House procedures set up to oversee it.
  . . .
  . . . [I]n early 2004, about the time of the hospital visit, the White House suspended parts of the program for several months and moved ahead with more stringent requirements on the security agency on how the program was used, in part to guard against abuses.
  The concerns within the Justice Department appear to have led, at least in part, to the decision to suspend and revamp the program, officials said. The Justice Department then oversaw a secret audit of the surveillance program.
  I'm not surprised by this; I would imagine there was a great deal of internal disagreement among advisors as to the legality of the NSA program. I'm also not surprised that James Comey played an important role in objecting to the program. In October 2004, seven months after Comey's objection, a Legal Times story by Vanessa Blum disclosed the extent of the tension between Comey and the White House over the former's perceived "neutrality and independence." According to the Legal Times story, that independence took Comey out of the running for the Attorney General slot when Ashcroft stepped aside:
  There are a number of candidates who could be tapped to replace John Ashcroft as attorney general if President George W. Bush wins re-election. But perhaps the most obvious choice, Deputy AG James Comey, almost certainly will not be.
  Since his confirmation as the No. 2 Justice Department official in December 2003, sources close to the department say Comey has had a strained relationship with some of the president's top advisers . . . .
  . . .
  Earlier this year, after the disclosure of internal administration memos that seemed to condone the torture of suspected terrorists overseas, Comey pushed aggressively for the Justice Department's memos to be released to the media and for controversial legal analyses regarding the use of torture to be rewritten.
  In a deeply partisan administration that places a high premium on political loyalty, sources say Comey — a career prosecutor and a former U.S. Attorney for the Southern District of New York — is not viewed as a team player.
  "[Comey] has shown insufficient political savvy," says the former official. "The perception is that he has erred too much on the side of neutrality and independence."
  Instead of picking Comey to replace Ashcroft, the President selected Gonzales -- who as White House Counsel had already committed to the view that the NSA surveillance program was legal. (Of course, it's hard to say if the NSA program played an important role in the White House's thinking on the AG slot -- it may just be a reflection of broader dynamics and priorities rather than a cause of them. Still, it's interesting to speculate on how the pieces might fit together.)
Good News About Anti-Depressants:

I've heard first-hand stories of people scared off from anti-depressants by exaggerated fears about their alleged dangers (promoted by some serious scientists, but more by Scientologists and others with ideological, not scientific, objections), and other first-hand stories from those whose lives were miraculously turned around by them. So, I'm glad to see that there is good news about their safety and effectiveness:

The researchers found that the risk of attempted suicide was 60 percent lower in the month after treatment began and that it continued to decline. While the overall risk for suicide was higher for adolescents than adults, the reduction in risk was about the same for both groups. When the researchers specifically examined 10 of the newest antidepressants, such as Prozac -- the ones that have come under the most suspicion -- they found that the risk was even lower.

What the article doesn't say is how these results, and other positive results reported, diverge from placebo results. If anyone has access to the data, feel free to post it in comments.

Is the U.S. Planning to Strike Iran Soon?

Der Spiegel reports that "recent reports in the German media suggest that the United States may be preparing its allies for an imminent military strike against facilities that are part of Iran's suspected clandestine nuclear weapons program." It's hard to think of a greater strategic disaster for the U.S. than a nuclear Iran led by the most reactionary elements there. It's also hard to think of a greater strategic disaster for the new government of Iraq, for Saudi Arabia, or for Israel--and Turkey can't be very excited, either--so assumedly the U.S. is getting lots of intelligence help.