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Saturday, January 28, 2006

A Deflating Bubble Tale:

From Bankrate.com:

I have a contract to buy a new town home for $800,000, but recently I learned that since I signed, the builder has reduced the price of the same type of town home by $100,000. I have a closing coming up and will be sitting there with a house which has already depreciated before I move in. If I put it on the market, will I get $800,000? Should I stay for a while or rent it out? I am confused and frustrated!

The answers are pretty obvious here, but this is a great example of the complete craziness of the housing market over the last few years: someone is plunking down $800,000 for a townhouse, and now that the builder has cut prices to $700,000, thinks that he still might be able to get $800,000 if he puts it on the market. Are there people out there who really took all the cocktail party talk that real estate "never goes down" seriously? Are there people out there buying $800K townhouses so naive as to think that someone will pay them $800K because they paid that much, even if anyone can buy the house next door for $700K? Mindboggling.

UPDATE: This phenomenon explains why, for example, inventory can be absolutely exploding in a city like Phoenix, but prices have only gone down marginally. Sellers think they should be able to get as much as their neighbor got in July, when there was less than half as much inventory; flippers think they are entitled to at least break even on their speculation. So sellers ask unrealistic prices, buyers sit on their hands, and inventory grows. Eventually, reality will set in as some sellers will need to sell for whatever the market will bear, and prices in Phoenix will plummet.

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Did blogosphere influence vote?

Regarding the Canadian election, the answer in my latest media column is a "yes," with a big hat tip to Captain's Quarters for reporting on the biggest scandal of the century (so far) in Canada, while the mainstream media sat on the sidelines. The column also looks at the latest round of New York Times deceptions on Niger uranium, and at the media's failure to cover a major local rally about abortion.

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Where Were You?: My sense is that most people over a certain age remember where they were when they learned of the Challenger space shuttle disaster, 20 years ago today. I was in Mr. Tappan's eighth ninth grade science class. Where were you?
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Kerry & Kos:

Final thoughts on Kerry & Kos: I wonder if this gives us a preview of the Kerry '08 campaign strategy? Most would agree that Senator Kerry has one fundamental question to ask himself: "How do I beat Hillary Clinton?" One strategy would be to try to do to the front-runner (Clinton) what Howard Dean almost did to him when he was the front-runner. Call it "Howard Dean without the scream." How does blogging for Kos potentially fit into this strategy?

(1) Portrays Kerry as the outsider/anti-establishment candidate: Obstacle number 1 is the likelihood that the Democratic Party and MSM will annoint Clinton the front-runner early on. One way to contest this is to say he is the anti-establishment candidate and that he doesn't care what the establishment thinks of his chances. Obviously there is some difficulty to this--he seems about as anti-establishment as Bob Dole was in 1996 (and the Switzerland gaffe doesn't help much). Nonetheless, communing with the blogs helps him to cultivate an anti-establishment persona that distinguishes him from the front-runner.

(2) Portrays Kerry as the "fighting principled liberal": From this perspective it makes little difference whether the filibuster succeeds, what matters is his willingness to fight for it. In a year or two he can say that he fought for what was "right" even though it didn't succeed--i.e., he has the courage to be "right" rather than expedient. I suspect that we will be hearing about his leadership on the Alito filibuster effort down the road. Senator Clinton, of course, has been moving toward the center on a variety of issues in anticipation of positioning herself for the general election. This potentially opens up a space for a credible "principled liberal" on her left flank.

(3) Coopt the Kos: As the blogosphere grows, its influence undoubtedly will grow. With that, one can expect an increasing effort by politicians to coopt the blogosphere and even to gain endorsements from blogs. I have noticed, for instance, that a number of conservative blogs have been endorsing one candidate or another in the House Majority Leader's race. I don't recall blogs making these sorts of formal endorsements to the same degree in the past (maybe I just didn't notice). This positions Kerry for a possible Kos endorsement (and maybe other blogs) down the road, with all the PR and Internet fundraising advantages that may give him. At the very least, it makes it less likely that Kos will actively campaign against Kerry.

Obviously this is just speculation on my part, but I think this is really a pretty interesting and entrepreneurial move by Senator Kerry in light of his specific mission of trying to knock off Hillary Clinton. Moreover, it is not obvious to me what other strategy is available to any Democratic candidate seeking to challenge Senator Clinton. It will be interesting to see if this is a harbinger of things to come.

Update:

I see from the trackbacks to my earlier post this morning that Senator Clinton has announced that she too will be joining the filibuster and that Senator Kennedy is now blogging for Kos as well.

Update:

A Commenter points out that Senator Kennedy has posted a few times on Daily Kos in the past prior to the filibuster post.

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Blogs on the Left (and Right):

The Washington Post has a story this morning worth a read, "Blogs Attack From Left as Democrats Reach for Center."

I found particularly interesting the references to Senator (and presumably Presdential-aspirant) Kerry's efforts to reach out to bloggers, such as his post this week on Daily Kos announcing his decision to try to filibuster the Alito nomination (and before that his comments on Iraq). My initial thought is that it is quite a savvy way by him of trying to establish his bona fides with the Democratic grass-roots base so as to try to peel away some of this constituency that otherwise seems naturally inclined Senator Clinton. The use of blogs in this manner, it seems to me, may be important in two ways. First, it allows for unusually well-targeted messaging to particular audiences at low cost, with minimal spillover to other audiences. Second, at least for the current moment in time, it provides a useful symbolic shorthand for politicians to define themselves with a particular "team"--i.e., simply by acknowledging and talking to these guys it provides a symbolic reaching out beyond traditional party establishments, in the same way that conservative politicians have used talk radio to cultivate a similar image.

Which prompts a final speculation--given the apparent inability of liberal talk radio (e.g., Air America) to get traction, I wonder if this has anything to do with the way that liberal and conservative blogs have evolved into having different structures. Think of it this way--if John Kerry were a conservative, he would have probably phoned-in a filibuster to Rush Limbaugh rather than blogging on Daily Kos. This leads me to wonder whether one explanation for the apparent difference between conservative and liberal blogs is that in some sense conservative blogs and talk radio work in tandem with each other, whereas liberal blogs essentially have to perform simultaneously both of the functions served by two distinct outlets by conservative media (talk radio and blogs). My impression is that liberal blogs tend to be in some sense larger and more centralized (such as Daily Kos), whereas conservative blogs tend to be more plentiful, smaller, and more decentralized in structure.

I'm raising the question of whether perhaps this is because because whereas blogs and talk radio essentially function as complementary technologies for conservatives, liberal blogs are essentially forced by the market into performing both the narrowcasting functions of, say, Powerline as well as the broadcasting functions of Limbaugh. Perhaps others have made this observation previously, or perhaps I'm just all wet, but Senator Kerry's blogging appearances on Daily Kos framed the question in a new way for me, so I thought I'd throw it out there. Most commentary I have seen tends to lump conservative talk radio and blogs together as essentially redundant "new" forms of new political technology, but its not obvious to me that is necessarily true.

If this is true, then it would predict that more liberal politicians might follow Sen. Kerry into the blogosphere, whereas we wouldn't necessarily expect to see conservative politicians reach out in exactly the same way.

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Friday, January 27, 2006

Thumbs Down on "The Matador":

Relying on generally good reviews, my wife and I hired a babysitter and went out to see "The Matador" tonight. It was a bad movie. Bad. Bad. Boring. Contrary to reviews, not funny [Update: A couple of guys in the back of the theater laughed heartily every time Pierce Brosnan copulated with a hooker, but those were the only laughs the movie received where we saw it]. Nor suspenseful. With a plot that makes no sense (click below for spoiler). Matchpoint was much better. Brokeback Mountain, though overrated in our opinion, was much better, though not as good as Matchpoint. But by far the best movie we've seen lately is Shrek 2 on DVD. Your mileage may vary.

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Cindy Sheehan Threatens to Run Against Feinstein:

"Cindy Sheehan to Dianne Feinstein: Fillibuster [sic] Alito or I’ll Challenge Your Senate Seat." That's the headline of a press release just issued by Ms. Sheehan. The text begins:

Caracas, Venezuela – Gold star mother Cindy Sheehan has decided to run against California Senator Diane Feinstein if Feinstein does not filibuster the Supreme Court nomination of Judge Samuel Alito. While in Venezuela attending the World Social Forum, Sheehan learned that several Democratic Senators had announced their plans for a filibuster but that Senator Feinstein, who’s up for re-election in November, had stated she would vote against the nomination but not filibuster it. “I’m appalled that Diane Feinstein wouldn’t recognize how dangerous Alito’s nomination is to upholding the values of our constitution and restricting the usurpation of presidential powers, for which I’ve already paid the ultimate price,” Sheehan said.
In a September 11, 2005, essay, Ms. Sheehan said that Senator Feinstein "will also go on our Hall of Shame" because Senator Feinstein has rebuffed three requests by Ms. Sheehan for a personal meeting.

Last fall, Ms. Sheehan dismissed rumors that she might offer herself as a candidate against the re-election bid of Senator Hillary Clinton, whom Sheehan called "a political animal who believes she has to be a war hawk to keep up with the big boys" and "the leader of the pack" of "the pro-war Democrats."

UPDATE: Some commenters were wondering about Ms. Sheehan's reasons for opposing Alito, so here is the rest of the press release:
Sheehan is the grieving military mother whose vigil outside President Bush’s ranch in Crawford last summer focused the nation’s attention on the human cost of the Iraq war. Her son Casey was killed in Iraq in April 2004.

Judge Alito has an extensive paper trail documenting the right-wing political agenda that he has actively advanced, not only as a high-ranking official in the Reagan Administration, but also as a judge. He has publicly supported the "Unitary Executive" theory, a radical notion that the President holds exclusive and inherent authority to execute all federal law. He has supported efforts to curtail privacy rights, including not only privacy from government surveillance and arbitrary arrest, but also other constitutional rights based on privacy, such as reproductive liberty for women. Alito has outspokenly sought to restrict Congress' power, limiting the scope of the Commerce Clause of Article I of the Constitution. In addition, he has consistently applied his discretion as a judge in favor of certain interests and against others. He rarely votes against big business, police or prosecutors.

Sheehan is available for interviews from Venezuela through the contact people listed above. [DK: I have omitted the contact info from this posting.] She returns to the United States on Monday morning and will travel to Washington, DC on Tuesday to participate in an alternative State of the Union event.

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Review of Breyer and Sunstein: Lawprof James Ryan has posted an interesting review of recent books by Justice Breyer and Cass Sunstein: Does It Take a Theory? Originalism, Active Liberty and Minimalism, forthcoming in the Stanford Law Review. From the abstract:
  This review essay examines two recent books, Active Liberty by Justice Stephen Breyer, and Radicals In Robes by Professor Cass Sunstein, and it assesses them in relation to their main target – Justice Scalia and his brand of originalism. Both books are self-consciously designed to influence public debate over how best to interpret the Constitution, a debate that originalists have dominated for the last fifteen years or so.
  There is much to admire in these books. Both are engaging and at times quite provocative. Justice Breyer’s book is candid and smart. He offers no pat answers or simplified formula for deciding cases, which is to his credit and speaks well of his intellectual honesty. Professor Sunstein’s book, in turn, is quite effective in poking holes in the form of originalism he dubs “fundamentalism” and in highlighting the numerous instances where “fundamentalists” like Justices Scalia and Thomas seem to deviate from their avowed methodology. For those who have been waiting for a public response from the left, these books are a sight for sore eyes, if for no other reason than they constitute an attempt to push back at the level of ideas.
  And yet the books fall a bit flat, at least in the eyes of this (sympathetic) reader. The basic problem is suggested by the title of this review: neither Justice Breyer nor Professor Sunstein offers and justifies a theory of constitutional interpretation. Justice Breyer comes closer than Professor Sunstein. But in my view, neither Active Liberty nor Radicals in Robes explains and justifies, in terms plain enough to influence public debate, how judges ought to decide cases. In their haste to distance themselves from originalism, moreover, both Justice Breyer and Sunstein seem to distance themselves from the text of the constitution. These seem to me fatal missteps in their effort to persuade a general audience to reject originalism and embrace an alternative.
Thanks to Legal Theory Blog for the link.

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WSJ and NY Times on Alito:

Excerpted from the WSJ yesterday (I can't tell whether it is available for free on opinion journal or through my WSJ subscription):

The Roberts-Alito Court Thank you, Ted Kennedy and Ralph Neas.

Thursday, January 26, 2006 12:01 a.m. EST

With at least 52 Senators already on record in support, it's clear that--short of some smear ex machina--liberal Democrats can't stop Samuel Alito from being confirmed to a seat on the Supreme Court. So it's a good moment to consider what this says about our politics and what it means for the Court as it enters a new era.

One conclusion is that the confirmation of both Chief Justice John Roberts and Judge Alito marks the most important domestic success for President Bush since his 2003 tax cuts. These look like legacy picks. Despite the Harriet Miers misstep, Mr. Bush has now fulfilled one of his campaign promises. And with two distinguished conservative jurists joining Justices Antonin Scalia and Clarence Thomas, the Court is closer than it's been in 50 years to having a majority that can restore Constitutional interpretation to its founding principles.

In this sense, the Alito-Roberts ascendancy also marks a victory for the generation of legal conservatives who earned their stripes in the Reagan Administration. The two new Justices are both stars of that generation--many others are scattered throughout the lower courts--and they are now poised to influence the law and culture for 20 years or more. All those Federalist Society seminars may have finally paid off. Call it Ed Meese's revenge.

The Roberts-Alito Court also represents a notable, and greatly satisfying, rebuke for the legal left and its "borking" strategy. They have long thought of the courts as their personal legislature, and they have shown they will do and say anything to keep control of it. But this time they lost, and on their own ideological terms.

Senator Chuck Schumer declared in 2001 that he wanted to turn judicial confirmations into battles over "ideology." The New York Democrat succeeded in doing so, but he ended up losing in a self-knockout. One reason Democrats couldn't defeat Chief Justice Roberts or Judge Alito, despite near party-line opposition, is that their filibuster strategy had made judges a top-line election issue in both 2002 and 2004.

The battle over their unprecedented filibuster of 10 appeals-court nominees helped to sweep Democrats out of the Senate in Bush-leaning states and give Republicans a larger majority. The Democrats who remain in red states--five of whom are up for re-election in November--saw all this and had no appetite for a repeat in 2006. The liberal interest groups that devised the filibuster strategy and wrote the anti-Alito talking points for Senators Ted Kennedy and Patrick Leahy thus contributed as much as anyone to Judge Alito's confirmation. Congratulations, Ralph Neas. It's your finest hour.

In contrast to the WSJ's evident glee, the NY Times is "frightened" of Judge Alito and is calling for a filibuster, "Senators in Need of a Spine":

But portraying the Alito nomination as just another volley in the culture wars vastly underestimates its significance. The judge's record strongly suggests that he is an eager lieutenant in the ranks of the conservative theorists who ignore our system of checks and balances, elevating the presidency over everything else. He has expressed little enthusiasm for restrictions on presidential power and has espoused the peculiar argument that a president's intent in signing a bill is just as important as the intent of Congress in writing it. This would be worrisome at any time, but it takes on far more significance now, when the Bush administration seems determined to use the cover of the "war on terror" and presidential privilege to ignore every restraint, from the Constitution to Congressional demands for information.

***

Judge Alito's refusal to even pretend to sound like a moderate was telling because it would have cost him so little. Chief Justice John Roberts Jr., who was far more skillful at appearing mainstream at the hearings, has already given indications that whatever he said about the limits of executive power when he was questioned by the Senate has little practical impact on how he will rule now that he has a lifetime appointment.

Senate Democrats, who presented a united front against the nomination of Judge Alito in the Judiciary Committee, seem unwilling to risk the public criticism that might come with a filibuster — particularly since there is very little chance it would work. Judge Alito's supporters would almost certainly be able to muster the 60 senators necessary to put the nomination to a final vote.

A filibuster is a radical tool. It's easy to see why Democrats are frightened of it. But from our perspective, there are some things far more frightening. One of them is Samuel Alito on the Supreme Court.

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Econ Journal Watch:

The latest issue of Econ Journal Watch is out and I wanted to call readers' attention to a couple of articles in particular.

William McEachern of the University of Connecticut has an article presenting evidence on the campaign contributions of "American Economic Association Members, Committee Members, Officers, Editors, Referees, Authors, and Acknowledgees." Subject to obvious caveats about the nature of the data set, McEachern finds that in the AEA generally the Democratic to Republican contribution ratio is 5.1 to 1 and that on average contributions to Democrats were approximately 20 percent larger than to Republicans. He also finds that about 10% of the editors of the American Economic Review contributed to candidates (9 out of 84 Americans), and of those, all of them contributed to Democrats. McEachern similarly studies the editors, referees, etc., of the Journal of Economic Literature, and Journal of Economic Perspectives. He concludes by asking whether it is possible that the ideological orientations of editors and referees have the potential for influencing their opinions as to the quality and relevance of various articles.

Dan Klein follows-up with an an essay on the possible implications of McEachern's research (and that of others) for the professional practice of economics. Klein makes the provocative argument that the editorial leadership of the AER's various journals may be reflected in the pattern of articles published there. These journals are among the most prestigious in the profession, so there is some import from this. Klein suggests that the ideological predispositions of the editors is reflected in the type of articles that are accepted and published (his argument that McEachern's data reflects itself in the articles published is largely anecdotal). Put crudely here (and with more nuance there), Klein suggests that "liberal" economists who serve as editors of the AER are less likely to publish articles that are critical of interventionist economic policies.

Note that itis not necessary for editors to be consciously-biased in order for ideology to influence publication processes. Ideological bias may mainifest itself as simply as the degree of skepticism applied to a given argument or the extent to which a reader believes that the author has "considered" competing explanations for the observed phenonmenon, for instance. Even more diffusely, what a given editor believes to be an "interesting" or "original" contribution will be colored to some extent by ideological views.

Note more generally that Klein's argument is anchored in the McCloskeyite notion of the economic enterprise as a sort of conversation among economists, rather than "truth" per se. In this McCloskeyite view, the preexisting ideological perceptions that economists bring to the table would be relevant to understanding this process in a way that it would not be in the standard Popperian sort of analysis of scientific economics. Obviously this assumption itself in Klein's paper is likely to prove controversial.

Both articles present the question whether subconscious ideological beliefs influence the publication process of professional economics journals. Klein also praises (p. 185) the role of blogs in creating a more spirited discussion about economics than is present in most scholarly journals. If that is so, and it does seem plausible to me, Klein argues that there is room for some degree of disclosure in the publication process to determine whether there may be ideological bias that may color editors' and reviewers' perceptions of an article.

There is an interesting analogy to Klein's--it is commonly expected that if someone has a financial interest in a matter or their research was financially supported that a disclosure is appropriate. Given that a person's ideological bias may also influence their independence, it is an open question whether it might also be appropriate to make similar sorts of disclosures about ideology. I'm not sure, but if Klein is right that ideological bias matters in professional publications (and he's the only one I have seen that actually looks at that question), the logic of the argument suggests that such disclosure might be appropriate.

These articles are sure to prove controversial, both in the findings of the data and the implications that the authors draw from them. By the way, Econ Journal Watch is a fascinating publication (most of the January 2006 issue is actually focused on completely different issues) in that it is an effort to create the sort of robust debate that is actually somewhat lacking in most academic journals today. In some sense it can be thought of as a hybrid between academic journals (in their seriousness and depth) and blogs (in their effort to create a real dialogue of ideas, rather than just a series of monologues).

If Klein is right, there does seem to be implications of this for law reviews. My impression is that most law professors work under the assumption that ideology is almost certainly present in the selection process of student edited law reviews, given the nature of the process. It is an observation frequently remarked upon in passing, but to which little thought is given as to the possible implications. It almost certainly influences where articles get accepted (or even read) and in my experience it can impact the editing process quite dramatically. I have no original ideas about whether this actually turns out to be a substantial problem in practice and if so what might be done about it. But it seems like an important question that has heretofore been largely ignored.

Anyway, while I don't necessarily agree with the entirety of the argument (just because I haven't thought it all through in depth) I thought the argument sufficiently interesting that I wanted to call to readers' attention this conversation in Econ Journal Watch.

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A Real Lawyer!

As Orin noted a few days ago, I've become an Academic Affiliate of Mayer, Brown, Rowe & Maw. (My wife, babies, dogs, and I have been moving to Pacific Palisades this week, so I haven't had much of a chance until today to post about this myself.) I'm delighted to be working with the Mayer people, who are first-rate lawyers, and who have the largest appellate practice in the country. I'm particularly proud that Michael McConnell, one of my academic idols, used to be an academic affiliate at Mayer. Leading First Amendment scholar Martin Redish and tort law scholar John Goldberg are academic affiliates there, too.

I've been a legal academic for going on 12 years, and a law clerk for 2 years before that; but I have little actual lawyering experience, and I think being affiliated with Mayer is an excellent way of filling that gap. I'll only be working roughly 150 hours a year or so with Mayer, so I'll continue being a law professor first and foremost; my teaching load will remain the same as before, and I'll continue writing legal articles as before. In fact, I hope the experience will make me a better teacher and scholar, and give me lots of ideas for new scholarly work. (For those curious about how the University views consulting arrangements, I should mention that the UC rule seems to be that academics are expected to spend no more than 1 day in 7 on outside work; my 150-hour target is roughly half that maximum.)

I'll also continue blogging, talking to reporters, and writing the occasional op-ed, though I'll probably comment relatively little about cases that I'm involved in. (This has been my practice in the past as well; this is why, for instance, I've not commented much on the Lyle v. Warner Brothers "Friends" sexual harassment case.) I will naturally disclose my connection with any case that I do blog or comment about. If I'm right that this will be an important learning experience for me, then I suspect that it will improve my blogging as well, since it will give me a better perspective on how the legal rules actually play out on the ground.

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Commerce:

As the New York Sun puts it,

A federal appeals court panel yesterday upheld the government's authority to punish Americans for patronizing child prostitutes overseas.

I think the majority was right to hold (over Judge Ferguson's dissent) that this was within Congress's Foreign Commerce Clause power, and I said this to the reporter; but I was a little amused about how the quote was rendered (quite accurately and in context, I should stress, but nonetheless with an odd double entendre):

Mr. Volokh rejected Judge Ferguson's argument that an American paying for sex abroad hasn't engaged in international commerce. "That's quintessentially commerce with a foreign nation," he said.

Let me just state, for the record, that I think it's the paying that makes an American citizen's prostitution transaction with a foreign citizen in a foreign country "foreign commerce." (I understand "commerce with foreign nations" to include commerce with the citizens of foreign nations, at least when the commerce is itself in a foreign place, and not just with the foreign nations' governments.) I do not think that it's the sex itself that qualifies as commerce — or for that matter as a violation of the Non-Intercourse Act.

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French Politician Fined for Anti-Homosexuality Speech:

BrusselsJournal reports:

Stating that “homosexual behaviour endangers the survival of humanity” and that “heterosexuality is morally superior to homosexuality” can cost you dearly in France. Exactly these opinions, expressed by the French politician Christian Vanneste last year, led to him being sentenced on Tuesday to payment of a heavy fine.

A court in Lille ... ruled that Mr Vanneste has to pay a fine of 3,000 euro plus 3,000 euro in damages to each of the three gay organisations that had taken him to court. The politician, a member of the French National Assembly for the governing UMP, also has to pay for the verdict to be published in the leftist Parisian newspaper Le Monde, the regional Lille daily La Voix du Nord, and the weekly magazine L’Express....

Tuesday’s verdict is the first conviction on the basis of the French anti-homophobia bill of 30 December 2004 ....

I couldn't find any English-language reports about this in other media, so I'm relying on the BrusselsJournal piece, which is an opinion article that is critical of the verdict. I have no reason to doubt its accuracy, but if there are errors here, or some necessary clarifications or elaborations, please do let me know.

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Bush Cabinet Member Condemns Anti-Christian Blasphemy, and Points to Laws Restricting Incitement to Hateful Expressions:

Here's the e-mail from the official

I am sorry that the publication of a few cartoons in a leading American newspaper has caused upset among Christians. I fully understand that these drawings are seen to give offense by Christians, because they depict Jesus Christ in a sacrilegious context. Christianity is a spiritual reference point for a large part of the world. Christianity has the right to be respected. Let it be clear that the American government condemns every expression or act which expresses contempt for people on the basis of their religion or ethnic origin.

Freedom of expression is one of the pillars of American society. This includes tolerance for opinions that not everyone shares. At the same time our laws and our international obligations enforce restrictions for incitement to hatred or hateful expressions.

Pretty appalling, no? Though the official makes a passing nod towards freedom of expression, surely the last sentence -- backed by the recent American trend towards restricting speech that's hostile to certain groups -- strongly suggests that the Administration is willing to suppress allegedly blasphemous speech.

Whoops, sorry, one important detail. This isn't the American government suggesting the possibility of suppressing speech that Christians find blasphemous; it's the Norwegian government suggesting the possibility of suppressing speech that Muslims find blasphemous, against the backdrop of a European trend towards restricting speech that's hostile to certain groups. Here's the BrusselsJournal report, which quotes (in translation) a Norwegian newspaper:

The left-wing government in Norway apologizes to Muslims worldwide for the publication of twelve Muhammad cartoons [see them here] in the Norwegian newspaper Magazinet. Oslo sent out instructions to all the Norwegian embassies on how to respond to queries about the cartoons. Unlike the Danish government, the Norwegian government is not concerned about safeguarding the right to freedom of expression. Foreign Minister, Jonas Gahr Støre, a leading member of Prime Minister Jens Stoltenberg’s Workers’ Party, wrote the following e-mail to the Norwegian embassies:

I am sorry that the publication of a few cartoons in the Norwegian paper Magazinet has caused unrest among Muslims. I fully understand that these drawings are seen to give offence by Muslims worldwide. Islam is a spiritual reference point for a large part of the world. Your faith has the right to be respected by us.

The cartoons in the Christian paper Magazinet are not constructive in building the bridges which are necessary between people with different religious and ethnic backgrounds. Instead they contribute to suspicion and unnecessary conflict.

Let it be clear that the Norwegian government condemns every expression or act which expresses contempt for people on the basis of their religion or ethnic origin. Norway has always supported the fight of the UN against religious intolerance and racism, and believes that this fight is important in order to avoid suspicion and conflict. Tolerance, mutual respect and dialogue are the basis values of Norwegian society and of our foreign policy.

Freedom of expression is one of the pillars of Norwegian society. This includes tolerance for opinions that not everyone shares. At the same time our laws and our international obligations enforce restrictions for incitement to hatred or hateful expressions.

I've blogged more about this issue here; as I mentioned there, the UN High Commissioner for Human Rights, Louise Arbour, has also recently publicly condemned a Danish newspaper for publishing the drawings. Arbour said that she "deplore[d] any statement or act showing a lack of respect towards other people's religion," and "appointed to UN experts in the areas of religious freedom and racism to investigate the matter." The High Commissioner's office has "asked Danish Prime Minister Anders Fogh Rasmussen for "an official explanation," including asking "the Rasmussen government to respond to the question, 'Do the caricatures insult or discredit?'" As I argued, against the backdrop of the Commissioner for Human Rights' resolutions urging governments to legally suppress "xenophobic ideas and material aimed at any religion or its followers that constitute incitement to ... hostility," the call is even worse.

In any case, this puts me in mind of the quote attributed to French socialist Jean-Francois Revel, that the "dark night of fascism was forever descending upon America, but it touched ground only in Europe." Likewise, it seems to me, for the supposed suppression of dissent that people have been seeing, largely as mirage rather than reality, in modern America.

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[Puzzleblogger Kevan Choset, January 27, 2006 at 11:33am] Trackbacks
More on Amadeus:

In honor of Mozart's 250th birthday today, here's another puzzle involving the movie made about him.

What do these movies, and only these movies, have in common? Don't google the list.

  • Going My Way

  • Judgment at Nuremberg

  • Network

  • Terms of Endearment

  • Amadeus

HINT:

(show)

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The Anatomy of an Editorial Cartoon:

This post by Joe Malchow is pretty neat--it shows alternative editorial cartoons drawn by the same artist, conveying three different perspectives on the balance between "civil liberties" and "national security," drawn from liberal, conservative, and centrist perspectives.

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Hamas Post Update:

Several commentators on my previous post on the Hamas victory either praised or condemned my "optimism." But note my last paragraph: "If Hamas turns out to be unwilling to turn itself into a non-terrorist movement that Israel can reasonably deal with, Israel will have no choice but to absolutely destroy the Palestinian government." I'm not a good enough fortune teller to put odds on this, but I wouldn't say that this scenario is "unlikely," assuming, of course that a Hamas government doesn't either collapse under its own weight, or lapse into fraticidal civil war with elements of Fatah unwilling to accept Hamas security control, and/or who are angry over not getting paid. Nevertheless, this may be what passes for optimism in the current situation. Meanwhile, it's imperative that the Europeans, Israelis, Americans, and everyone else cut off funding to the PA/Hamas ASAP. Perhaps when the Palestinians recognize the extent to which even their impoverished lives are dependent on the goodwill of outsiders it will sober up their remaining genocidal fantasies.

Meanwhile, WindsofChange, in a post linked by Instapundit, quotes a Jerusalem Post piece lambasting the Rabin-Peres government for this mess. While their naivete is certainly apparent regarding Arafat's intentions is clear in retrospect, my own understanding of the situation places the primary blame squarely in the lap of Bush I Secretary of State James Baker. In 1991, with the PLO and Arafat at their lowest ebb following their disastrous support for Saddam Hussein in the Gulf War, and the prospect of the disappearance as a serious political force at hand, Baker decided it would be a dandy idea to resurrect Arafat and start a new "peace process" with Arafat and his PLO cronies representing the Palestinians. Obviously, history doesn't run in a straight line, and alternate scenarios were possible. But it would be very hard to say that what has happened since, up to and including the creation of Hamasistan, aren't a natural result of Baker's initial mistake.

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Happy Birthday to You:

Today, as you’re no doubt aware, marks Mozart’s 250th birthday, and the world is awash in Mozartian sound – surely a good thing, ceterus paribus, a net plus for our universe compared to the alternate universe identical to ours in all details except it doesn’t celebrate Mozart’s birthday.

It has always bugged me a little that Mozart has the “boy genius” tag associated with him. He was, to be sure, a musical prodigy – playing the piano blindfolded at age 6 for Empress Maria Theresa and all that. But that was mostly trained monkey stuff; there were other kids at the time, and since, able to perform dazzling tricks like that at the keyboard. And while it’s also true that he was composing at a ridiculously early age – sonatas at age 6, a symphony at 8, an opera at 10 – the fact of the matter is that the stuff he wrote as a boy is all quite pedestrian. In fact, I’d argue there’s nothing he wrote before the age of 20 that’s at all interesting, let alone something that can be called a work of real genius. Compared, say, to Mendelssohn, who by the age of 17 had composed two genuine masterpieces: the incidental music to Midsummer Night’s Dream, and the remarkable and transcendent Octet for Strings.

Mozart’s not remarkable for what he did as a kid – he’s remarkable for what he did as a grownup. At his most sublime – the last Act of Figaro, the Jupiter symphony, the set of String Quartets dedicated to Haydn, Piano Concertos 20 and 21, . . . – there is not only nothing truly comparable, nothing that touches us more deeply, but nothing that one can imagine ever could touch us more deeply.

And here’s a weird bit of Mozartiana. He’s one of the few composers who ever actually wrote anything for Ben Franklin’s glass harmonica – one of the world’s most peculiar instruments, consisting of a series of water-filled glasses whose rims are rubbed by the player to make sounds at different pitch (depending on how much water is in the glass. It’s pretty lousy stuff, to be honest; the instrument’s very difficult to keep in tune, has very limited range, and, to my ears, sounds a bit like the coyotes up here in Vermont, on a night with a full moon . . . . Mozart’s pieces for the instrument – a Fantasie, and an Adagio & Rondo – were both composed during the last few months of his life, in 1791; a shame, really, as he (or at least we) would have been considerably better off had he spent that precious time working on, say, another opera, or another symphony ...

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Thursday, January 26, 2006

The Alito Vote Tally, according to Ed Whelan at Bench Memos:
I believe that 86 senators have now declared their positions: 55 for Alito, 31 against. Of the remaining Democrats, four (Conrad, Dorgan, Landrieu, and Pryor) are possible yes votes.

So it looks like Alito will get between 56 and 62 votes — probably 58 to 61.
The vote is currently scheduled for next Tuesday.
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Same-Sex Couple Loses Suit Over the Unauthorized Political Use of their Wedding Photo:

I blogged about this case last March, when it was filed, and predicted that the plaintiffs would lose. For a factual background, here's plaintiffs' press release:

A $25 million lawsuit was filed today against right-wing front group USA Next and political consulting firm Mark Montini International for stealing an Oregon couple’s wedding photo and using it without permission in a high-profile gay-bashing ad designed to drum up support for social security privatization. . . .

The suit alleges that the use of the couple’s image without permission constituted an invasion of privacy, was libelous, violated their right of publicity and constituted an intentional infliction of emotional distress.

In one version of the USA Next ad disseminated widely on the Internet in February, and aired repeatedly by television news programs and newspapers nationwide, the couple’s image, superimposed with a green checkmark, is side-by-side a picture of a US soldier with a red “X” across it. Below the photos is the phrase “The REAL AARP Agenda.”

Last Friday, the district court granted defendants' motion to dismiss, and I'm pleased to say that the court's reasoning was nearly identical to the reasoning I outlined. I might have been wrong, but at least I was wrong in a way that a judge agreed with, which is usually good enough in legal circles ....

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Private Economic Retaliation Against Speakers (Here, Commentators) Based on Their Speech:

As promised, here's another excerpt from my new Deterring Speech: When Is It "McCarthyism"? When Is It Proper? (93 Cal. L. Rev. 1413 (2005)); I omit the footnotes, but they're all in the PDF; if you wonder whether one of my assertion is well-supported, please check the footnotes first to see if they may answer your question. Last week, I blogged excerpts on economic retaliation against speakers who are entertainers; next week, I'll probably blog excerpts on economic retaliation against "ordinary employees," who are neither entertainers nor commentators:

Six days after the September 11 attacks, Bill Maher, host of the TV show Politically Incorrect, was discussing the oft-repeated claim that the terrorists were cowards. Not so, Maher said, agreeing with one of his guests, conservative commentator Dinesh D’Souza. Maher went on:

But also, we should—we have been the cowards lobbing cruise missiles from 2,000 miles away. That’s cowardly. Staying in the airplane when it hits the building, say what you want about it, it’s not cowardly. You’re right.

This won Maher no friends. Several stations pulled his show briefly. Nine months later, the show was canceled, possibly partly because of this incident. And responding to the Maher incident, then-White House spokesman Ari Fleischer famously said that “all Americans . . . need to watch what they say, watch what they do.” Fleischer almost certainly wasn’t threatening legal retaliation against Maher—but I suspect that he welcomed the outcry against Maher’s remarks and the nongovernmental retaliation that Maher faced.

Yet of course commentators have long known that they “need to watch what they say” on television or in print. Their employers, after all, are watching what the commentators say. The employers rightly want to avoid using their networks and their newspapers to spread ideas that they strongly disapprove of.

The employers may be quite willing to carry some views that differ from their own; even newspapers with clear editorial policies may want to have a mix of views on their op-ed page. But some views doesn’t equal all views. Few media outlets want to carry—and place their own imprimatur on—all possible views, no matter how rude, despicable, or foolish the views may be. And of course the public also watches what commentators say, and the employers watch what the public thinks.

Certainly the experience of Jimmy “the Greek” Snyder, a CBS commentator fired for making racially offensive statements in a TV interview, made this clear. (Snyder’s comments weren’t explicitly anti-black—he condemned white athletes, not black ones—but they were seen as offensive chiefly because they asserted that blacks’ athletic ability flows largely from slavery-era breeding practices.) Those who needed more evidence that commentators “need to watch what they say” got it when CBS News suspended Andy Rooney for allegedly remarking in a magazine interview that “most people are born with equal intelligence, but blacks have watered down their genes because the less intelligent ones are the ones that have the most children. They drop out of school early, do drugs and get pregnant.”CBS rightly didn’t want to be seen as approving such views, and thus the network took steps to dissociate itself from those who promoted them.

Ari Fleischer’s remarks, in fact, criticized ethnic prejudice as well as perceived contempt for our soldiers. On September 17, 2001, Representative John Cooksey said in a radio interview, “If I see someone that comes [into an airport] that has a diaper on his head and a fan belt wrapped around the diaper on his head, that guy needs to be pulled over and checked.” At a briefing a week later, a journalist questioned Fleischer about Cooksey’s statement, asking whether the president had a message for “members of his party . . . about this issue” of anti-Arab speech. Fleischer said that the president was disturbed by Cooksey’s remarks; and then, a few questions later, Fleischer again condemned Cooksey, at the same time as he condemned Maher:

[QUESTION:] As Commander-in-Chief, what was the President’s reaction to television’s Bill Maher, in his announcement that members of our armed forces who deal with missiles are cowards, while the armed terrorists who killed 6,000 unarmed are not cowards, for which Maher was briefly moved off a Washington television station? . . . .

MR. FLEISCHER: I’m aware of the press reports about what he said. I have not seen the actual transcript of the show itself. But assuming the press reports are right, it’s a terrible thing to say, and [it’s] unfortunate. And that’s why—there was an earlier question about has the President said anything to people in his own party— they’re reminders to all Americans that they need to watch what they say, watch what they do. This is not a time for remarks like that; there never is.

Now as it happens, Fleischer may have erred in relying on press reports, if those reports tracked the questioner’s characterization of Maher’s statement. Maher didn’t condemn the “members of our armed forces who deal with missiles” as cowards. He said that we are cowards, and, in context, it seems likelier that he was condemning our then-existing practice— i.e., the country’s practice—of fighting terrorists using missiles rather than ground troops. Maher, I think, got a bum rap for what he said; in the tense and emotional time following the attacks, his remarks were misinterpreted.

But other people did not get a bum rap. New York Times editorial cartoonist Ted Rall was rightly condemned for a cartoon that cruelly mocked the widows of those killed on September 11 and the widow of Daniel Pearl, the murdered Wall Street Journal reporter. The Times and other papers pulled that particular cartoon, and properly so. If I were an editor, I wouldn’t run Rall’s cartoons at all, given the nastiness he has proved himself capable of. This editorial decision is no more reminiscent of the “House Un-American Activities Committee” than is the firing of Snyder. Newspapers and TV networks are entitled not to carry views and speakers that they find contemptible.

A year later, MSNBC talk-show host Michael Savage got what he deserved, too. Responding to an insult from a caller, he asked whether the caller was “one of those sodomists”; when the man said yes, Savage said, “You should only get AIDS and die, you pig.” MSNBC promptly fired him, and rightly so. Do such firings make commentators “watch what they say”? You bet. Yet media outlets such as MSNBC are nonetheless entitled to refuse to carry speech that they find repugnant.

Related Posts (on one page):

  1. Private Economic Retaliation Against Speakers (Here, Commentators) Based on Their Speech:
  2. Private Economic Retaliation Against Speakers (Here, Entertainers) Based on Their Speech:
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Gilmore v. Gonzales: The Ninth Circuit decided Gilmore v. Gonzales today. (This was the airport ID requirement/ secret law case that I blogged about before.) The Court upheld the ID requirement in a unanimous opinion by Judge Paez. The Court didn't seem particularly troubled by Gilmore's legal claims, either about the Fourth Amendment or the "secret law" Due Process claim.

  The Court held that the law did not violate Due Process because the law was not a criminal law and Gilmore was fully informed about the rule at issue:
Gilmore had actual notice of the identification policy. He alleged that several airline personnel asked him for identification and informed him of the identification policy. They told him that in order to board the aircraft, he must either present identification or be subject to a "selectee" search. He also saw a sign in front of United Airlines’ ticketing counter that read "PASSENGERS MUST PRESENT IDENTIFICATION UPON INITIAL CHECK-IN." Although Gilmore was not given the text of the identification policy due to the Security Directive’s classification as SSI, he was nonetheless accorded adequate notice given that he was informed of the policy and how to comply.
  Judge Paez also rejected Gilmore's Fourth Amendment claims relying on Ninth Circuit precedent. The gist of the analysis was that forcing Gilmore to submit to a search if he refused to provide an ID was reasonable, because it gave him a choice of options:
Gilmore had a meaningful choice. He could have presented identification, submitted to a search, or left the airport. That he chose the latter does not detract from the fact that he could have boarded the airplane had he chosen one of the other two options.
  Thanks to Howard for the link.
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The Secret to Effective In-Court Advocacy?

Reader Greg Weber points to this article. Haven't read the study myself yet, though I'm looking forward to it.

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Cingular [Tries to] Patent Use of Emoticons on Cell Phones: I think this is an important step forward for America. How else are we going to encourage cell phone users to come up with new ways to send text messages? I plan to file my first patent application soon, for "A Method of Using Communications Networks to Distribute Snarky Commentary About Silly Patents."

UPDATE: VC commenters point out that this story is inaccurate. It seems that Cingular applied for the patent, but the application has not been examined and no patent has been obtained.
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Further Thoughts on the Hamas Victory:

(1) This is a victory for terrorists, but not necessarily for terrorism. Or to put it another way, whichever side won, it would have been at least a partial victory for terrorism. First of all, Hamas has more or less observed to a cease-fire with Israel for the last six months. It's resounding victory can be seen in part to as an endorsement of that policy. Second, as I noted previously, the most popular Fatah figure, Marwan Barghouti, is himself a terrorist, as were other Fatah candidates. In fact, Debka published a campaign photo allegedly circulated by Fatah showing Barghouti in a jailhouse embrace with a terrorist convicted of murdering schoolchildren in Israel in 1970s. Not to mention that the lethal Al Asqa Brigades are still affiliated with Fatah. A Palestinian voter wishing to vote against terrorism really didn't have much to and choose from between Fatah and Hamas. But Palestinian polls showed that 54% of Hamas voters want to reach a peace agreement with Israel.

(2) If I were voting in the Palestinian elections, I would have been sorely tempted to vote for Hamas, even if I rejected their Islamicist views and their policies toward Israel. This is because the Palestinian Authority is one of the most corrupt and incompetent governments in the world. The PA has received billions of dollars in foreign aid but one would be hard-pressed to find a single school, hospital, park, or other public building built by the PA with that money. The money has disappeared either into the hands of corrupt officials, or into paying salaries to the tens of thousands of Palestinians who work for the government, who do basically nothing but are thus bought off by Fatah. Indeed, the election results almost certainly overestimate the PA's real support because assumedly government patronage employees and their dependents voted for Fatah. Because of the PA's low standing among the Palestinian public, it probably was not capable of reaching any kind of agreement with Israel, much less disarming Hamas and Jihad, and even if it were capable of reaching such agreement, it would not have had any legitimacy among the public.

(3) On the other hand, if Hamas decides to negotiate with Israel, any agreement it reaches will have legitimacy among the Palestinian public. Why might Hamas change its views toward recognizing Israel and cease engaging in terrorism? Now it is responsible for the welfare of the Palestinian public. The Israeli government has not used even a fraction of its retaliatory capability against the Palestinians. If Hamas encourages or even tolerates terrorism, Israel can start by refusing to transfer taxes paid to Palestinians by Israeli companies to the PA. Israel can also shut off the electric grid, the water supply, cell phone service, close the borders to Palestinian goods heading to Israel and Europe, etc. Hezbollah now rarely attacks Israel because it knows that Israel will retaliate by bombing power stations in Beirut, and the Lebanese public will blame it for their suffering. Similarly, if every time a Qassam missile lands in Israel, the electricity goes off in Gaza for a week, it might not be very long before no more Qassams land in Israel. Israel couldn't engage in such tactics with the PA because the government had too much international legitimacy, however undeserved, and because Israel still has some hope that not being in an official state of war with the PA, and having the relatively moderate Abbas as president, a deal could still be worked out. But if Hamas doesn't change its stripes, Israel won't hesitate to wreak havoc on the Palestinian areas. Hamas will not be able to play the double game that Arafat was able to play of negotiating talking peace while keeping terrorist groups on a long leash; nor will it be able to get Europe and the US to restrain Israeli military action, as Abbas has, on the premise that it just need a little more time to organize itself against terrorism.

(4) Related to the above posts, the Palestinian authority is broke, and without the transfer of Israeli tax money and European and US foreign aid, it's not all clear how Hamas is going to pay thousands of armed Fatah men on the PA payroll, much less pay its own civil servants and otherwise run the government. The only way to get this money will be to renounce terrorism and recognize Israel. Hamas, I believe, would have much preferred to have received the 45% of vote that was predicted. That would have given them the ability to block the PA from disarming them, would have ensured they would have received several ministerial portfolios, but still not left them responsible ultimately for the welfare of the Palestinian public.

(5) If Hamas turns out to be unwilling to turn itself into a non-terrorist movement that Israel can reasonably deal with, Israel will have no choice but to absolutely destroy the Palestinian government. If that's what happens, the international community may need to rethink the whole idea of a sovereign Palestinian state. Professor Inbar of Bar Ilan University has suggested that Gaza should be confederated with Egypt, and the West Bank with Jordan, with these governments, which have peace treaties with Israel, having security responsibility. In my opinion, such a plan would make Palestinian independence/autonomy much more viable from both a political and economic perspective. It would obviously take significant change international attitudes to move toward that solution, but an unrepentant Hamas terrorist government in the Palestinian areas might just move opinion in that direction.

UPDATE: Further evidence that the Hamas victory is not necessarily a disaster. Israeli stocks, as reflected in this quote on the closed-end First Israel fund, are calm.

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[Puzzleblogger Kevan Choset, January 26, 2006 at 11:13am] Trackbacks
Missing Word:

What word is missing in this list?

  • Twist, George, _____, Mohandas, Mozart.

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Comments on Hamas Victory: David hasn't opened comments (at least yet), but I am very interested to hear the comments of VC readers on the meaning of the Hamas victory. So comments are open. Please note that I will be extra vigilant about deleting comments that are not civil.
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Hamas Victory:

Not necessarily a bad thing, for reasons I'll try to elaborate on later. (Hint: According to media reports, the most popular Fatah figure was Marwan Barghouti, currently residing in an Israeli jail for directing the murder of Israeli civilians a few years back.)

Meanwhile, in my view, the gloves are off. If Hamas doesn't recognize Israel (and, more important, renounce terrorism) right away, I can't see any reason why Israel wouldn't be perfectly within its rights to destroy all PA government buildings, given that they are now the assets of a terrorist group that demands Israel's destruction. There may be practical reasons (let Hamas implode on its own accord), but Israel has no reason to treat Hamas as a legitimate government [update: or, as a reader suggests, perhaps Israel should treat Hamas as a legitimate government at war with Israel]. You say they were elected? So if Hamas runs a terrorist state bent on its destruction Israel should refrain from treating it as an enemy because it's an elected terrorist government bent on Israel's destruction? Please. By that logic, the U.S. shouldn't have responded to the Nazis' declaration of war.

(I'll open comments later, after I finish teaching today, after I (hopefully) have an opportunity to post further thoughts.)

Wednesday, January 25, 2006

The "Constitution in Exile" as a Political Issue

in Canada! if this is the best the Liberals could do, no wonder they got trounced. Thanks to reader Ben Sharma for the pointer.

FISA and the DeWine Amendment: Glenn Greenwald has an interesting post on a never-enacted 2002 amendment to FISA that was proposed by Senator DeWine. DeWine's amendment would have changed the law to be at least somewhat similar to the law that would justify the NSA domestic surveillance program. Greenwald's basic take is that DOJ refused to support DeWine's amendment in 2002, which suggests that the Administration could not have thought its NSA domestic surveillance program was necessary.

  I read less into the documents than does Greenwald, and wanted to explain why I'm not inclined at this point to share his conclusion. Greenwald's basic take is that DOJ's refusal to support the DeWine Amendment shows that the Administration did not need the NSA program. He writes:
[A]s of June, 2002 — many months after the FISA bypass program was ordered — the DoJ official who was responsible for overseeing the FISA warrant program was not aware (at least when he submitted this Statement) of any difficulties in obtaining warrants under the FISA "probable cause" standard, and for that reason, the Administration would not even support DeWine's amendment. If - as the Administration is now claiming - they had such significant difficulties obtaining the warrants they wanted for eavesdropping that they had to go outside of FISA, surely Baker - who was in charge of obtaining those warrants - would have been aware of them.
  There are three potential problems with this claim, I think. First, it's not obvious to me that the DOJ official in question, James Baker of the Office of Intelligence Policy and Review(OIPR), would have a complete picture of the NSA's needs. As I understand how the FISA process works, the OIPR is in charge of going to the FISA court. But individual intelligence agencies are not necessarily going to brief OIPR on their intelligence needs and whether they feel existing law is adequate. I would be happy to be corrected on this, but my understanding is that agencies don't give their intelligence to DOJ and ask DOJ to get warrants to do more monitoring; OIPR plays a much narrower role of obtaining warrants when the agencies believe that they have probable cause already. So whether Baker was in the loop about the NSA's broader needs is unclear to me. Perhaps he was, but that's not clear to me based on what we know.
UPDATE: In the comment thread, Marty Lederman (who would know much better than I) helpfully points out that James Baker's testimony to the Senate on the DeWine Amendment would have been internally reviewed and approved within the Executive Branch, including by the Office of the Vice President and the NSA. This doesn't answer whether the testimony showed a lack of need for the NSA surveillance, hints at a tactical decision not to reveal any cards on the issue, or something else, but I think it does indicate that Baker's statement is more than just DOJ's take on the Amendment. Thanks to Marty for the helpful point.
  Second, and relatedly, I don't read Baker's statement as a refusal to support the Amendment in the sense of a rejection of it. As I read Baker's statement, he doesn't take a position: he says that it raises a lot of difficult legal and practical questions, and that DOJ will contuinue to study those questions. If Baker was in fact out of the loop of the NSA's needs, that would make some sense: when he says that "we will need to engage in a significant review to determine the effect a change in the standard would have on our ongoing operations," that may be because having a practical picture of the effect in the standard is a bit beyond IPR's core mission. Greenwald seems to assume that Baker had the complete picture and was refusing to support the Amendment because he thought it wasn't needed, but it's not clear to me that this is accurate.

  I'm not sure about my third point, but I think it's at least worth flagging: the DeWine amendment was somewhat similar to the NSA program, but it wasn't precisely the same thing. For example, the DeWine amendment wouldn't have altered the rules for electronic surveillance under 18 U.S.C. 1801(f)(1), as that provision applies only when a U.S. person is target (and the DeWine amendment sets a different standard only when the person targeted is a non-U.S. person). Perhaps the FISA experts among VC readers can shed more light on this.

  UPDATE: For more on the controversy, see this article in the Washington Post.
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Bush Visits NSA: President Bush visited NSA headquarters today to give a speech to NSA employees. The Volokh Conspiracy has obtained a copy of the speech. Here is the introduction and key section:
  Thank you for that kind instruction. It's a pleasure to XXXXX here. XXXXXXXX XXXXXXXXXX XXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXX XXXXXXXX XXXX XXXXXXXXXXXX XXXXXX XXXXXXX And that's why I think we were right to XXXXX X XXXXXX XXXXXXX X XXXXXXX XX XXXXX The National Security Agency is playing a crucial part in the war on terror. XXXXXXXXXX
  XXXXXXXX XXXXXXX XXXXXXXXXX XXXXXX XXXXXXXXXXXXXX XXXX XXXXXX XXX XX XXXXXXXX XXX Osama bin Laden and take him seriously. When he says he's going to hurt the American people again, or try to, he means it. I take it seriously, and the people of NSA XXXX XXXXXXXXX XXXXXXXXXX XXXXXX XXXXXXX XXX XXXXX XXXXXXX ;do this? You bet we did. XX XXXXXXXX XXXXXXXXXX XXXXXX XXXXX X XXXXXXXX X XXXXX American people, because XXX XXXXX X X X XX XXXXXXX X X XXXXX XXXX X X X X X XXXXXX XX XXX X XXXXX XXXX Thank you.
Okay, so the actual text is here.
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[Puzzleblogger Kevan Choset, January 25, 2006 at 2:10pm] Trackbacks
Actors in Order:

In what order have I placed these actors?

  • William Daniels

  • Nick Nolte

  • Anthony Hopkins

  • Charlton Heston

  • Nigel Hawthorne

  • Henry Fonda

  • Kevin Kline

  • Jon Voight

  • Gary Sinise

  • William Devane

  • Michael Gambon

  • Anthony Hopkins

No googling the list.

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Is Atlas shrugging? BB&T won't support eminent domain

BB&T, the nation’s ninth largest financial holdings company with $109.2 billion in assets, announced today that it “will not lend to commercial developers that plan to build condominiums, shopping malls and other private projects on land taken from private citizens by government entities using eminent domain.”

In a press release issued today by the bank, BB&T Chairman and Chief Executive Officer John Allison, said, “The idea that a citizen’s property can be taken by the government solely for private use is extremely misguided, in fact it’s just plain wrong. One of the most basic rights of every citizen is to keep what they own. As an institution dedicated to helping our clients achieve economic success and financial security, we won’t help any entity or company that would undermine that mission and threaten the hard-earned American dream of property ownership.”

Here is more information.

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Tuesday, January 24, 2006

Big Coup for Vanderbilt Law School:

Vanderbilt has hired Kip Viscusi and Joni Hersch to found and run a Ph.D. program in law and economics.

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Alito Update: The Wednesday Washington Post reports:
Democrats all but conceded the Supreme Court confirmation of Samuel A. Alito Jr. yesterday but signaled they will use the Senate debate that begins today to focus on President Bush's domestic spying program and their predictions that Alito will be too pliant in supporting it.
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Saudi Bloggers:

If you missed it, there's a nifty article in the Weekly Standard this week on Saudi Arabian bloggers as a force for liberalization and women's rights, "Blogging Saudi Arabia: Undermining the Wahhabis, one post at a time." On a related topic, Hugh Hewitt has a long, interesting article in the same issue of the magazine on the Columbia School of Journalism.

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Eyewitness to the Scalia Snub:

Sean Sirrine was at the scene of the snub as it was occurring and reports Justice Scalia's words--"My new Chief Justice has just been sworn in."

As Sean observes, "Sounds like he really has it in for that guy."

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Crystal Balls and Future Judicial Nominations:

Assuming that Judge Alito is confirmed by the full Senate, the "precedent question" rears its ugly head--will party-line votes become the future of Supreme Court nominees? The heated Bork and Thomas confirmations did not appear to set a precedent, in that Ginsburg and Breyer were confirmed by overwhelming bipartisan majorities. Assuming Alito is confirmed on roughly a party line vote, will this set a precedent? Joe Malchow says "yes," what goes around inevitably will come around (and adds a pithy quote from Senator Jon Kyl to back it up). And the urging of the base will ensure that. The subsequent confirmations of Ginsburg and Breyer, by contrast, suggest that the Bork and Thomas experiences did not seem to set a precedent.

And while I have your ear, a question for the gathered. Leaving aside Vanguard and CAP (which seem to have evaporated as issues) is there a principled reason why a Senator might vote for Roberts but against Alito? Are there particular questions or elements of their record that would justify a different vote in the two cases? Moreover, it seems to me that by almost any reasonable analysis of the record, Alito looks much more like Roberts than either Bork or Thomas (whose confirmations were somewhat sui generis, for different but unique reasons), so it is not obvious to me why Alito's "no" vote total would look more like Bork's and Thomas's than like Chief Justice Roberts's.

While I'd be interested in hearing from anyone who can articulate a principled explanation for why one my vote differently on Roberts versus Alito, I'd be especially interested in hearing from readers who supported Roberts but would oppose Alito (as some 20 or so Senators appear poised to do). I ask because if there is a principled distinction between the two, that could very well shed some light on whether a party-line vote on Alito could be precedent setting.

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Ninth Circuit Holds That Possession of an "Assault Weapon" Isn't a "Crime of Violence":

Judge Kozinski's opinion on this issue — a matter of construing the Sentencing Guidelines, though informed by an understanding of what "assault weapons" are like and how they may be used — was just handed down yesterday. It struck me as an interesting example of how courts make decisions that rely on statutory text, precedent, action by other government bodies, and understanding of the world, and one that laypeople may find especially interesting because it's tied to (though not squarely a part of) the Great American Gun Debate. I've therefore included it below, for those who are interested; if you want the PDF version instead of HTML (or if you want the citations and footnotes, which have mostly been stripped below), see here.

Thanks to Steve Newman for the pointer.

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The "America's Whitest Law School Report":

Where, for example, you can read about "The Eleven Schools with the Greatest Excess Whiteness Disparity." Oddly enough, however, law schools with high minority populations don't have "excess blackness," "excess hispanicness," or "excess Asianess," or even excess "people of colorness" but simply have negative "excess whiteness." I kid you not.

More on Supreme Court Ethics: Over at Crime and Federalism, Michael Cernovich fisks the ABC News Supreme Court ethics scandal. I disagree with Mike's first sentence, and one or two other particulars, but that Scalia story was certainly mega-lame.
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Cool Disclaimer,

in The Scrivener, UCLA Law's occasional and anonymous humor publication. (Actually, today's issue was Teh Scrivener.) The humor at times rather misfires, and is often not quite to my taste; whenever you make up humorous stories that involve professors or administrators by name (which the publication routinely does), you risk being more annoying than amusing.

But some is really funny. My favorite item is the tiny-print disclaimer at the bottom:

Note for numbnuts: The Scrivener is predominantly lies. You do not see similarites to real people. That's the liquor talking again.

UPDATE: I originally said "whenever you talk about professors or administrators by name"; I meant "talk" in the particular context involved in The Scrivener, but I realize this might not have been clear. I've tried to clarify this by instead saying more precisely, "whenever you make up humorous stories that involve professors or administrators by name."

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Big Fun for Us Law Geeks:

Take the "Which Canon of Statutory Construction Are You?" quiz. I'm noscitur a sociis; makes sense to me. Thanks to Sean Sirrine for the pointer.

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[Puzzleblogger Kevan Choset, January 24, 2006 at 11:48am] Trackbacks
Presidential Action:

George Bush did it on June 29, 2002. Ronald Reagan sort of did it on July 13, 1985. No other president ever did it, and none of them could have before February 10, 1967. What is it? (Research away, but don't just google the dates.)

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Ethics Scandal Rocks the Supreme Court!: Reporter Brian Ross of ABC News' Nightline breaks a must-read exclusive story about a new ethics scandal at the Supreme Court: Justice Scalia missed Chief Justice Roberts' swearing-in ceremony because he was giving a series of lectures on constitutional interpretation in Colorado — and he even had the nerve to exercise during his trip!!! Here is the scoop:
  At the historic swearing-in of John Roberts as the 17th chief justice of the United States last September, every member of the Supreme Court, except Antonin Scalia, was in attendance. ABC News has learned that Scalia instead was on the tennis court at one of the country's top resorts, the Ritz-Carlton hotel in Bachelor Gulch, Colo., during a trip to a legal seminar sponsored by the Federalist Society.
  Not only did Scalia's absence appear to be a snub of the new chief justice, but according to some legal ethics experts, it also raised questions about the propriety of what critics call judicial junkets.
  It remains unclear whether Justice Scalia will have to step down from the Supreme Court or face impeachment, as no Justice has ever missed a hearing as critical as a swearing-in ceremony before. Some scholars argue that having missed Roberts' swearing-in ceremony, Scalia lacks the qualifications to vote on cases heard by the Roberts Court. A group of law professors are rumored to be circulating a letter demanding that in light of Scalia's absence from the critical ceremony, Scalia's vote should now be ignored, and the vote of Justice Ginsburg (who was present) should be counted twice. Developing....
132 Comments
Conservative Strategies for Reforming the Academy:

Steve Teles weighs in on the Bruin Alumni Association and contrasts competing strategies for conservative reform of the academy. He argues that the "Federalist Society" approach of eschewing bomb-throwing has been more effective at getting conservative ideas legitimated in the legal academy than a more confrontational and combative style, which he refers to as the "Dartmouth Review" strategy (which is the BAA strategy as well). In fact, almost since its inception the Dartmouth Review has been doing teaching reviews similar to that of the BAA, as I'm sure student newspapers do elsewhere as well. (A reminder to interested readers that I was not and am not affiliated with the Dartmouth Review).

Steve's observations generally seem correct to me. But while I find the whole approach tasteless and more than a litte discomfiting, I'm not sure that I can agree that the strategy is counterproductive.

On the other hand, advocates of a more combative strategy might argue that we have both missed the real point, which is the need for fundamental change to the culture of the academy. And, indeed, I have heard some conservatives express the view that one danger of the approach that Teles refers to as the accommodationist or "Federalist Society" approach is that it runs the risk of coopting conservatives into the prevailing establishment, rather than meaningfully changing the establishment itself. (Let me stress that I am not implying here that the Federalist Society has "sold out"--I'm just borrowing Teles's terminology to describe a general type of approach toward the academy). In other words, conservatives are rewarded for their ability to "play nice" within the prevailing establishment, rather than being agents of change of the academy itself. In this view, conservatives are relegating themselves to permanent minority status because they are playing within the establishment structure and accepting the slate of rewards established there. Put otherwise, it is a serious question as to whether those who succeed within the establishment can be counted on to be agents of change of that same establishment, whether by temperament or by self-interest. To the extent that groups such as the Federalist Society simply bestow redundant rewards on those already rewarded by the establishment system, they run the risk of simply replicating the same establishment that they are titularly intended to oppose. The question here is not about whether this is true of this or that particular group, but whether the general approach gives rise to a temptation or general drift in that direction.

Consider an analogy that I have heard advanced in this context--the difference between the Republican Party of the 1970s and 1980s and the Republicans of the 1990s. The former group, led by the "Bobs" (Michael and Dole) were willing to accept the prevailing establishment rules--and permanent minority establishment. Bomb-thrower Newt Gingrich (and others, such as Lee Atwater), by contrast, used a more confrontational strategy and succeeded in overthrowing the establishment. The Bobs, of course, ridiculed the Gingrich types for the belief that either their strategies or their ideas could ever become majoritarian ideas. Gingrich, of course, intended to create an entirely new sort of establishment, a project which Tom DeLay then imperfectly took to the next level (before his fall, of course). And, of course, the new establishment eventually has come to take on many of the trappings of the establishment it supplanted.

An even more interesting question is whether the operation of both bomb-thrower groups such as the Dartmouth Review and BAA in combination with more establishment groups such as the Federalist Society may be an even more potent strategy for change than either strategy working alone. A third strategy is to simply give up on changing the existing system as hopeless and establish a completely alternative network of institutions (a counter-establishment), a position that many have come to support, especially religious conservatives. See, for instance, the rise of the home school movement, alternative universities such as Patrick Henry College, and in law, Ave Maria law school. That whole approach is beyond the alternative options addressed here, although it does seem to be an increasingly commonly-articulated strategy.

Now I'm not implying that the BAA in any way has thought this issue through with any sort of this type of care or strategic vision. But from a purely strategic and pragmatic reckoning it is not obvious to me that if the goal of the leaders of the BAA are to effect a fundamental cultural change of the academy that this is an obviously strategically stupid strategy that will inevitably backfire in the long run. It very well may turn out to backfire, as Steve suggests, but that is not as obvious to me as it seems to be to Steve. As Steve incisively observes, the purpose of strategies like the BAA or Dartmouth Review strategy seems to be to fundamentally delegitimate the entire apparatus of the establishment, much as Gingrinch did to the incumbent leadership in Congress, rather than accept permanent minority status within the prevailing establishment. I think Steve is right about that. The idea, as I take it, is to try to argue that the prevailing norms and self-governance of these institutions are corrupt to the core and should be replaced with a whole new ethos and system of governance (or in the case of the academy, I suppose they would argue "old" norms of less-political faculties).

In this sense, the BAA seems to be a flower from the same branch that has spawned the Academic Bill of Rights--the notion that universities have proven themselves to be incompetent at the task of self-government and that any catalyst for fundamental change is going to have to come from outside the academy. If that is the long-term goal of conservatives, then that is going to be much messier than the comparatively Marquis of Queensbury rules followed by the Olin Foundation and the Federalist Society, as opposed to more bare-knuckle groups like Horowitz's. Whether it is also more effective, is an open question. While I personally disagree with the Academic Bill of Rights, for instance, it is not obvious to me that it has been a strategic blunder for those conservatives who have endorsed it if they are pursuing a long run goal of a fundamental transformation of the American academy.

Steve notes that the "Federalist Society" approach is aimed at persuading fair-minded liberals within the academy of the intellectual merits of conservative and libertarian ideas. The BAA approach, by contrast, seems to be directed at constituencies outside the academy, such as alumni and state legislatures, who may have the power to change the academy from without. With respect to these consituencies, it is not obvious to me that it will be ineffective. Is it implausible that the BAA or similar groups could convince alumni to withhold alumni donations? And if that is the goal, is it obvious that this would not be an effective approach with those constituencies?

So leaving aside questions of taste or legality of the BAA, and viewing matters simply from a tactical level, it is not as obvious to me that it will be as counterproductive to the goals the group's leaders have as it seems to Steve. Indeed, I suspect that the approach will likely turn out to be quite effective with the outside constituencies toward which it is directed.

Again, let me stress that I am not endorsing this argument here and I am not implying that group that pursue an accommodationist approach have "sold out" to the establishment in any way. Teles argues persuasively that the Federalist Society approach may be more fruitful than the "Dartmouth Review" approach. But the counter-argument does not seem patently unreasonable to me for conservatives seeking to reform the academy, however, and it bears some further reckoning before being dismissed. Moreover, by remaining focused on a mission of change and avoiding co-option by the establishment, it is not inevitable that such strategies result in being co-opted. But it does seem like it is a greater temptation for those pursuing such an approach versus those pursuing a conscious counter-culture appraoch (such as the BAA), and it may be that those pursuing such strategies need to be extra-vigilant in ensuring that their tactics advance their long-term strategies, and not be content merely with permanent minority status or replicating the same establishment.

So, as I said at the outset, I find this whole approach more than a little disturbing, even leaving aside the legal issues that Eugene raises. And certainly I fear for the effect it could have on the classroom, especially among students perhaps even more than professors. But while tasteless and disturbing, I suspect that it will be somewhat effective. And, as a result and for better or worse, I expect the model to spread rapidly to other schools as well.

Update:

The New York Times reports today that the BAA has withdrawn its offer to pay students for course transcripts in order to save the groups "strident supporters" from possible legal action by the university. The reporter does not state who the BAA's supporters are or how she knows they are "strident." She does report that three members of the BAA advisory board have resigned in the wake of the offer and that group has raised only $22,000.

48 Comments

Monday, January 23, 2006

Two Cheers for Paul Martin:

The Liberal Canadian Prime Minister has just delivered an eloquent, patriotic concession speech. Current results (including Ridings where results are not final) is Conservatives 124; Liberals 103; Bloq Quebecois 51; New Democratic Party 29; Independent 1. This will lead to the Governor-General of Canada asking Conservative party leader Stephen Harper to form a minority government.

As the results solidified, television commentators speculated that the Liberals might try to hold on to power by forming a minority coalition with the NDP. Paul Martin's concession speech, however, rejected this backdoor attempt to cling to power. Although the Liberal campaign was extraordinarily ugly by Canadian standards (the low point being a quickly-withdrawn January 12 ad warning that Stephen Harper would put the military on the streets of Canadian cities), Martin's concession speech was statesmanlike, dignified, and constructive.

In Parliament, the Conservatives and NDP will be able to team up to pass a variety of anti-corruption measures. Enactment of other items on the Conservative agenda (such as adding property rights to the Charter of Rights and Freedoms, or dismantling the long gun registry and spending the savings on more police) is uncertain.

Although the Liberals lost, they did better than polls had indicated. Regionally, the results are: In Atlantic Canada, a late Liberal surge maintained the status quo, with only small Liberal losses. In Quebec, the Conservatives won nearly a third of the vote, and handily displaced the Liberals as the major federal party in Quebec. In Ontario, the Conservatives made significant gains, while the Liberals easily held their stronghold of Toronto. In the Prairie Provinces, the Conservatives had a great night, as expected; I was especially pleased to see that Liberal gun-banning Justice Minister Annie McClellan lost her seat in Edmonton. In British Columbia, the Liberals appear to be holding much of their Vancouver base, although results are still coming in.

24 Comments
British Gun Controls -- and the quasi-independence of some small islands:

I recently received this article from an overseas friend, and received permission to post it. It does not exist anywhere else on the Web. The article details the experience of a competitive handgun shooter from the Isle of Man who was returning from a competition in the Channel Island of Jersey, and had to pass through a London airport. Following the shooter's tale of woe, I explain how it is possible that handguns are legal in the Channel Islands and the Isle of Man, even though they are banned in the United Kingdom.

How Irrational Fears of Inanimate Objects Divert Resources & Delay ‘Planes

by John Partington, Isle of Man Pistol Team Member

Flying back from the Commonwealth Shooting Federation (European Division) Championships in Jersey in May 2003 we, the Isle of Man Shooting Team, had to change ‘planes at London Gatwick Airport. What should have been a straightforward exercise in which all our checked luggage would be transferred automatically to our next ‘plane, as per the tags attached in Jersey, became a highly-stressed, worrying farce in which the comic element only became apparent some (considerable) time later.

As our pistols are illegal in England, all the gun and ammunition boxes were dealt with very carefully when we booked in at Jersey Airport. They should have stayed airside at Gatwick and been transferred direct to the Isle of Man ‘plane. Unfortunately, as we were going through the luggage pick-up Hall, there on the carousel were our 3 cases with big Firearms stickers plastered all over them and 2 more boxes clearly marked Ammunition. Just going round and round.

We informed Customs that we needed someone to take charge of the boxes as, if we touched them in England, we would be committing a serious firearms offence (illegal firearm possession is liable to a sentence of 14 years). I showed Customs our 3 IoM Firearm Certificates. The Customs office gave me permission to collect all 5 cases and take them to be X-rayed and checked in. When I put the boxes through the X-ray, the operator informed me that there were guns in the cases and they should not be there. This valuable new information was, of course, a great help! The operator then ‘phoned the senior Customs officer and the Armed Response police unit. The police arrived first and told the operator that there was no problem as they had been notified in advance and, as far as they were concerned, everything was in order. Then a senior Customs officer re-checked all the paperwork and the serial numbers that had already been checked in Jersey, then added a security sticker to each case to prove they had been through Security.

By now time was running out, but we had been effectively forced to enter England with our guns and now had to locate and reach the check-in desk for the Isle of Man flight.

I had the unique experience of an armed escort: one policeman in front of me and one behind. One of the policemen decided that there was no time for the lift so, with a forceful, “We will use the escalator. Follow me!”, he was off at a trot. "Stand back!" he shouted as we raced up the escalator, two steps at a time (with me as the filling in a Police sandwich), "Make way, make way!". I pulled both my Achilles tendons trying to keep up with this super-fit escort team.

Eventually, in pain and out of breath, I reached the Check-in desk.

“What's in the cases marked firearms?”, asked the gentleman at the desk.

Me - a gasped “Guns”.

Check-in - “We will need to check them”.

Me – “But that was done 5 minutes ago, coming in”.

Check-in – “That is not my responsibility. I have to make sure that everything going out is in order”.

Me – “The cases have been sealed with Security stickers and it is plain to see that they have not been broken”. At this point there was an announcement on the Airport Tannoy system, calling me to go to Departure immediately as the ‘plane was ready to depart, which I drew to the attention of the gentleman at the Check-in desk. At my request he then made a ‘phone call to hold the ‘plane.

Check-in – “You have pistols in these cases”, he informed me (this was, of course, a frightful surprise to both the police and myself).

Me – “That is why the police are here”.

Check-in - “I need to check that all the numbers are correct … ”.

When I eventually limped to my seat, my colleagues, long sitting comfortably in theirs, had already seen a funny side that, sadly, eluded me for several days.

Results?

Flight held up for 15 minutes at one of the busiest Airports in the world; several Police and Customs officers diverted for an hour or so from looking for NON-DECLARED contraband, or wanted persons, or some other useful activity; 2 strained tendons and a month’s quota of worry.

Postscript

… and that wasn’t the end of the story. When we reached the Isle of Man, a pistol box with 3 pistols and a rifle box with 2 rifles, were both missing. Inevitably this led to many ‘phone calls, discussions with airline and security staff – and a great deal of worry. A day later, they turned up, but without any explanation. Perhaps the spitting cobras had gone for a walk.

[Back to Dave from here on:]

How did it come to be that the Channel Islands and the Isle of Man (in the Irish Sea) are not subject to the handgun prohibition enacted by the Parliament of the United Kingdom, at the urging of Prime Minister Tony Blair?

The answer is that the Jersey and the Isle of Man are not part of the United Kingdom. They are dependencies of the British crown, but they have no representation in the U.K.’s Parliament, and U.K. laws do not apply to the islands’ internal affairs. (Although such laws could theoretically be imposed by the Queen’s Governor-in-Council, they almost never are.)

Before the Norman Conquest of England, Jersey was ruled by the Plantagenet family of Normandy, which also ruled other parts of France. William the Conqueror (the Norman king) took over England in 1066. The Plantagenet family (and the other families which succeeded them on the English throne), eventually lost all of their old pre-1066 possessions—except for the Channel Islands. Although the wicked King John lost Normandy in 1204, Jersey and the other Channel Islands stayed local to the British crown, in exchange of guarantees of great local autonomy. The islands changed hands several times between England and France, giving the Islanders leverage to continue to insist on autonomy in exchange for fealty. (There are are some other islands in the Channel which are part of France, and others--the Isle of Wight and the Scilly Islands--which are part of the United Kingdom. "Channel Islands" is a term which applies only to the semi-independent islands.)

The Channel Islands now have two entirely separate, self-governing Bailiwicks. The Bailiwick of Jersey (one inhabited island and two uninhabited ones) and the Bailiwick of Guernsey (seven inhabited islands).

So the Channel Islands recognize themselves to be governed by Queen Elizabeth, but not, in internal matters, by Tony Blair. They rely on the U.K. for defense and for many external affairs issues, but do have the authority to communicate officially directly with foreign governments.

How do Channel Island gun laws differ from those of the U.K.? Derek Bernard, a pistol shooter from Jersey, explains:

Guernsey does not allow self-loading, centre fire rifles; Jersey does. Guernsey copied the UK 1988 Act [a ban on such guns] in this regard in the mid-90s. Guernsey, through the huge, almost unconstrained power of being able to add “conditions” to Firearm Certificates, rather than through statute, prevents the storage of ammunition at home and introduced a bureaucratic nonsense whereby the Certificate-holders who cannot be trusted to hold the ammunition at home, issue it to each other at the designated storage site. This adds considerable bureaucracy to the process of shooters travelling to away matches. It also prevents home loading, which would be critical if there were many active centre fire pistol shooters left; but, since the few that are left seem “happy” to use factory ammo, it doesn’t seem to cause much heartache. In Jersey, home storage and home loading are allowed within the specific quantities on the Certificate. For some years Jersey authorities have normally granted whatever quantities have been requested. The awful power to add conditions is universal in all 8 jurisdictions in the British Isles.

In Guernsey the licensing authority is the Police force, as in the UK. In Jersey, the Connetable (Mayor) of each of the 12 Parishes, is the licensing authority, but they will normally follow any recommendation of the Police that may be made with the report on criminal record. The Guernsey Licence has to be renewed every 3 years; the Jersey every 5 years.

Guernsey has adopted the UK approach to airguns: outside the Certificate and registration systems, providing rifles have muzzle energies below 12ft/lb and pistols below 6ft/lb. In Jersey everything above "soft air" toys is on Certificate and subject to registration. Until a few years ago Jersey regarded even soft air toys as firearms, which meant that their lawful importation, sale and possession was effectively impossible. Largely as a result the relatively new sport of Field Target air rifle shooting flourishes in Guernsey, but failed to get off the ground in Jersey. Guernsey police "approve" an individual applicant’s security arrangements. This used to be the effective situation in Jersey, but since the 2000 Law makes it clear that it is the certificate-holder’s responsibility to take precautions to prevent unauthorised possession, this inspection has ceased. I am not aware of a prosecution of a certificate-holder for inadequate security since the new Law came in. But in 2002/3 the Jersey Police probably spent about £500,000 searching out technical trivia and prosecuting about 25 people for e.g. Certificates that haven’t been renewed in time.


The Isle of Man also appears to have a status by which it is not subject to U.K. laws for domestic affairs. The Isle of Man was ruled by a Norwegian family until 1275, after that by the Scottish crown, and not until 1765 by the U.K.

It is home to the world’s oldest continuously operating parliament, the Tynwald, which has held the sovereignty since 979 a.d. The Tynwald is composed of the Legislative Council (upper house, 10 members; most elected indirectly, plus some ex officio) and the House of Keys (directly elected lower house, 24 members).

"[A]lthough English law does not extend to the Isle of Man, the Manx legal system is based on the principles of English common law," Wikipedia explains.

As in many Commonwealth nations, the legal but rare, course for an appeal of a judicial decision in the Isle of Man is to the Judicial Committee of the Privy Council in London. Within the Isle of Man itself, the High Court judges of the Isle are known as “Deemsters” (a Viking-era term).

I am not familiar with the details of the Manx gun laws, other than the fact that handguns have not been prohibited.

Commenters are welcome to share additional information about the Channel Islands and the Isle of Man, in regards to government status, and gun laws.

14 Comments
More on Katz:

Steve Jacubowski at the Bankruptcy Litigation Blog has more on the Katz case noted by Stuart this morning.

I was teaching all day, so haven't had a chance to read it yet myself, but I thought Steve's post was an interesting take on the case.

1 Comments
Dan Klein Responds to VC Comments:

A few weeks ago I posted on the new paper by Dan Klein and Charlotta Stern, "Narrow-Tent Democrats and Fringe Others: The Policy Views of Social Science Professors." The post spawned a vigorous and interesting discussion in the Comments (available here). It is also relevant to the Leagal Affairs debate that Orin flagged earlier today. I invited Dan to provide a brief response to some of your Comments if he wanted to, and I am delighted that he agreed to do so. Here is his response:

Todd Zywicki posted an entry on Charlotta Stern’s and my paper “Narrow-Tent Democrats and Fringe Others: The Policy Views of Social Science Professors,” to appear in Critical Review: An Interdisciplinary Journal of Politics and Society. The post was followed by 34 comments.

My 2003 survey of members of six leading scholarly associations has gotten a fair amount of attention. The “Narrow-Tent” paper is the big paper coming out of the survey. If you want to read just one paper on the survey, this is the one to read.

This memo is a follow-up to the set of Volokh comments.

Stern and I are open about our libertarian sensibilities. We agree with Gunnar Myrdal that such openness is the best way to avoid bias and advance discourse that involves deep-seated judgments and interpretations. For a review of Myrdal and a justification of disclosure of ideological sensibilities (and of exposé), please see my paper “Sense and Sensibilities.”

But many commenters say “A-ha!, these researchers are libertarians, and that undermines the whole study.” Sorry, but the conclusion doesn’t follow.

Many revert to l-v-c convention (that is, liberal v. conservative) in putting libertarians as conservatives. The paper shows not only that Dems and Greens are highly statist, but also that Repubs are much more statist than some think, and on some issues more statist than the Dems (e.g., immigration, military action, drugs and prostitution restrictions). My agenda is to criticize l-v-c. I think the terms “liberal” and “conservative” are simply degenerative. Other than code (in the US context) for Dem and Repub, they are terribly fuzzy. Our research tacitly criticizes Republicans and conservatism (in a narrow sense that is different from libertarianism), and I think that is one reason that conservatives ignore many of our findings. For example, the cluster analysis shows that conservatives (in the narrow sense made clear in the paper) are closer to the establishment left and even to the progressives than they are to the libertarians. This finding is remarkable. The first division in the cluster analysis is between the tiny, tiny number of libertarians (of which 40% vote Republican and 11% vote Democratic) and the vast mass of all others who are mostly significantly more statist.

For libertarians, the voluntary/coercive distinction is not only meaningful, but gives rise to important analytic structure in categories and formulations. The distinction is not black or white, but is a matter of degree. My goal is to make people on both the left and the right face up to the fact that they are much more agreeable to coercive policy than they are usually prepared to admit.

Responses to specific points:

1. The Dem’s tent is narrow. The study finds that over the 18 policy questions, the Dems have a narrower tent than the Repubs. (Note, one is a “Dem” based on saying he mostly votes for Dem candidates, not based on being registered Democratic, and likewise for Repubs.) Specifically, the sum of 18 Dem-group standard deviations is 17.1, while the sum for the Repub-group is 23.1. Thus, the sum is 35% larger for the Repubs. The greater diversity of the Repub tent is also shown by plotting the policy index scores for each individual in each group. The Republican group shows significantly more spread (pp. 17-19). Commenters including Gabriel Rossman, Bruce Wilder, and Justin challenge our finding, saying that the result comes from the libertarian selection and formulation of the 18 policy questions. They do not make the case, however. The questions are not remarkable, and the scoring is granular, based on a continuous scale, not a binary categorization into “statist” and “libertarian”. I really don’t see anything about the 18 questions that would deflate the diversity of the Dems or puff it up for the Repubs. Think about it, very few Dems really favor free enterprise and all favor redist/welfare state/protect the weak type policies. I suspect that in the mind of those on the left, the differences between progressives and the establishment left seem larger than they really are. Meanwhile Repubs have both libertarian types and (narrow) conservative types. Realize that the libertarians are often far-out in their opinions, so they stretch the tent more than their number would make one think. Thus, is it really surprising that the Dems have a significantly narrower tent? In the comments the only substantive challenge comes from Gabriel Rossman: “if they had asked about, say, gay marriage they might have found more uniformity among Republicans.” My guess is that we would find academic Dems to be quite uniformly supportive of gay marriage (as Stern and I are), while academic Repubs being more mixed (again, one must recognize that those with libertarian tendencies tend to vote Republican). My guess is that Rossman’s suggested question would have reinforced the narrow-tent finding.

2. Are Dems and Repubs much different? A commenter named “alkali” looked carefully at the 18 issues and notes: “the poll asked respondents to rate themselves on a 5 point scale (from ‘strongly support’ to ‘strongly oppose’) with respect to 18 particular policies. On 8 of the 18 issues, the average Dem is less than 1 point away from the average Rep. On no issue are the average Dem and Rep more than 2 points apart.” Two points. First, the “5 point scale” has a measure of only 4 units, so a difference of 1 is a difference equaling 25% of the scale, not 20%. The differences are somewhat bigger than it might seem. But, second, “alkali” is pointing out something that we highlight in the paper, even in the abstract, namely, that the Republicans are generally also quite supportive of status-quo interventions. Very few are serious supporters of individual liberty. Again, the cluster analysis shows that the (narrowly defined) conservatives are closer to the establishment left and progressives than they are to the libertarian cluster.

3. Regarding the libertarian formulation of the policy questions. Each policy question posits some form of government intervention and then asks degree of support/opposition. It is deliberately constructed to provide a uniform format suitable for creating an overall policy index of degree of statism v. libertarianism. Is there something wrong with that? I think that is the analytic contribution of the study. Many on the left object to it, but frankly I think that is because this method exposes their degree of statism. Gabriel Rossman writes: “the questions are horribly worded and reflect an extreme libertarian bias (for better or worse, things like legalizing heroin and eliminating progressive income tax simply aren't on the table politically). the proper thing to do would have been to adopt questions from the GSS, both because these questions are well tested and also because this gives a solid baseline of the general population.” While I agree that getting comparisons to the general population would be a great benefit of using GSS or other commonly used questions, the problem is that those questions do not get at the core analytic issue of statism v. libertarianism (coercive v. voluntary action). Most surveys are mired in the l-v-c swamp. The big difference between my research and practically all other work on political culture is that I avoid the l-v-c swamp.

4. Do the policy questions favor the Republicans? I do not think that the set of 18 questions are slanted so as to overstate the statism of the Dems and understate the statism of the Repubs. The whole realm of redistribution/welfare state, which the Dems are more statist on, is limited to just one question. Meanwhile, there are three separate questions for drugs, prostitution, and gambling, which are personal-liberties questions I had hoped to see Democrats be significantly more libertarian than the Republicans on (on the whole, they were only somewhat more, alas). Admittedly, the whole realm of military action is limited to just one question, but, hey, that issue is not really straight forwardly statist v. libertarian anyway (similarly with one other question, namely monetary policy), as there is a libertarian flavor to, say, toppling a Saddam Hussein (although Stern and I tend to lean against the Iraq invasion). On the whole, I feel that the findings about relative statism of Dems v. Repub voters are reasonable. Notice that this is about voters’ views, not regimes’ deeds. That the Republicans now in power in Washington have in fact been inimical to individual liberty is not relevant to what we are discussing.

5. Is Democratic really leftist? Justin has a point here, but I think it is pretty clear that we are focusing on the US context and that everything is dominated by the status quo.

6. Why is the academy dominated by the left? This question is tossed around by the commenters, often insinuating that we took a stand on the question. But Stern and I say at the start of the paper that we do not attempt to explain it. I do hope, however, that people observe our contribution to the explanandum: We provide knock-down evidence that Republican-voting PhDs who are members of the leading scholarly association in their field (American Historical Association, etc.) are significantly more likely to land outside of academia in the fields of sociology and history, and same with weaker effect in economics, political science, and legal and political philosophy. Also, across all six disciplines studied, in the multivariate regressions, the correlation between voting R and landing outside academia consistently holds up at 0.01 (see pp. 22 and 34).

I thank Todd Zywicki and The Volokh Conspiracy for hosting this discussion, and those who commented on paper for taking the time.

Daniel Klein, Professor of Economics, George Mason University

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

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

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

  Finally, it's important not to let lower-than-expected grades become a self-fulfilling prophecy. Recognize the psychological game going on here: many students expect their fall 1L grades to give them a lightning bolt of insight about their future in the legal profession. Too many students think that grades are destiny, and begin to take steps to readjust their expectations to what they think is their destiny. A student who gets a B+ in Torts and a B in Contracts just might think to herself, "Well, maybe I should practice tort law, because I'm better at that." Some students react to the sting of lower-than-expected grades by tuning out, by deciding law is dumb, and by concluding that they just aren't good at it.

  I urge all students not to take that path. All grades do is measure how well you did relative to your classmates on a few 3-hour exams taken at a particular place at a particular time. They're only a snapshot of how well you displayed your ability at one particular time in the judgment of one particular professor, rather than a Scarlet Letter (whether A, B, or worse) sewn on for life. Plus, it's just this kind of attitude that makes it less likely your grades will improve. By tuning out, you'll only make it more likely that you won't do as well as you should next time. My advice is to stick with it: get your old exams back, review them, and make sure you know what you did wrong. Then have faith in yourself and your smarts that you can improve your grades in the spring.

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

  Not quite. To be sure, grades are at least a little bit random. For example, different professors have different approaches when they grade. Some pore over exams for hours, others read them pretty quickly. Some use a point system that gives you credit for mentioning an argument, others focus more on how skillfully you make the arguments. Some take off points for incorrect answers, others just don't add any. Some care about how well you write, others don't. Plus, it is by nature extremely difficult (if not impossible) to turn essay exams into a reliable and objective numerical score that accurately measures legal ability. The process requires judgment, judgment brings discretion, and discretion can be unpredictable.

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

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

That's the topic of my latest article, to be published this fall in the Journal on Firearms & Public Policy. The article looks at Confucianism (in detail), Taoism (in detail), Hinduism (briefly, with some discussion of Gandhi), Jainism (very briefly), Sikhism (also very brief), and Buddhism (at great length). The article also examines the spiritual aspects of the martial arts. For all the religions, the article looks at the scriptures and the historical practice of the religion.

Thoughtful comments and suggestions are welcome, either in the Comments section below, or in private e-mail via the e-mail link on my home page. Please keep the comments focused on the issues of religious ethics (and not the usual pro/con arguments on gun control, etc.). Please comment if, and only if, you have something useful to add to the discussion after reading the article (or at least the portion of the article covering the religion about which you wish to comment).

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Legal Affairs Print Version to End, Website to Remain: Linc Caplan has unhappy news about Legal Affairs:
  As many start-ups do, Legal Affairs has run out of time for realizing our dream of creating a self-sustaining print magazine without breaking stride. We've been unable to attract a second round of financing to allow us to continue publishing in print after the March|April issue reaches subscribers in February. We'll maintain our website while we explore opportunities the site provides, so stay tuned for further developments. . . .
  This is a period of challenge for thought-leader magazines, then, in terms of the business models that support them and the forms of journalism they provide. But it's also a moment of opportunity for some visionary American foundation, media organization, or individual. While Legal Affairs has run out of time to receive this kind of support without suspending the print magazine, it won't be hard to find us to support our journalism on this website. Putting aside our parochial interests, a broader-based investment could have a significant payoff in preserving valuable thought-leader magazines and in assuring the staying power of promising new ones.
  I'm a big fan of Legal Affairs. I've written for it twice, and participated in the Debate Club feature, as well. It has targeted an important zone between law review articles and news stories about the law, and is a very interesting read. I hope it stays viable online, even if the print version is no longer available.

  Speaking of Legal Affairs, check out this week's very interesting Debate Club feature: Do Law Schools Need Ideological Diversity?, featuring a discussion between Peter Schuck and Brian Leiter.
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Things I didn't know about American Communism:

I'm reviewing Martin Redish's book, The Logic of Persecution, for the Northwestern Law Review. The book is an interesting look at the so-called "McCarthy era" (which both pre and post-dated McCarthy) from a First Amendment perspective. I'll post a link to the review soon.

Meanwhle, I was thinking today about how much I enjoy writing about constitutional history. Some law professors love to manipulate legal doctrine; that's fine, and I do plenty of that myself, but I like even more learning how legal events unfolded in their historical context, especially because when I delve into the historical literature, I (a) find such interesting details; and (b) so often find facts that are either overlooked, ignored, or misinterpreted by both mainstream historians and popular presentations of history.

Here are some of the facts I learned from doing research for my review, some of which are just "fun facts," and others of which affected my view of the era in question (if you want footnotes, you will have to wait until I circulate the paper):

(1) The first chairman of the House committee that was the predecessor to HUAC, Samuel Dickstein, was probably a Soviet agent.

(2) Hollywood scriptwriters who were members of the Communist Party (CPUSA) were expected to use their positions to promote Communist doctrine and the Party's agenda, or, if that was not possible, at least to work to exclude anti-Soviet sentiment. (And I already knew, but you might not have, that each of the Hollywood Ten was a member of the CPUSA.)

(3) The first federal prosecution under the Smith Act (later used to prosecute CPUSA leaders) was the prosecution of eighteen leaders of the Trotskyist Socialist Workers Party 1941. The CPUSA not only applauded this action; Party leaders assisted in the prosecution.

(4) The Smith Act prosecutions of CPUSA leaders were largely a result of the fact that top government officials had recently learned from decoded "Venona cables" between the Soviet Union and its agents and affiliates abroad that the Soviet Union used American Communists to engage in wide scale espionage against the United States. The CPUSA leaders were not prosecuted for espionage and related charges (conspiracy) because that would have involved revealing that the U.S. had deciphered the Soviets' code, and also much of the additional evidence the government had was obtained in violation of the Fourth Amendment. Instead, the government resurrected the Smith Act, and proceeded with prosecutions of highly dubious constitutionality (though upheld by the Supreme Court, which implicitly recognized that these prosecutions were "special").

(5) Not only did the CPUSA recruit spies for the Soviet Union through its "secret apparatus," it was prepared to engage in violence on behalf of the Soviet Union.

(6) The Smith Act prosecutions and other government and private anti-Communist activity destroyed the usefulness of the CPUSA to the Soviet Union for espionage.

(7) Many of the questionable tactics used by the government against domestic Communists in the late 1940s and 1950s, including Smith Act prosecutions, were previously used by the government against domestic Nazis and fascists in the late 1930s and early 1940s by the Roosevelt Administration.

(8) Alger Hiss was not prosecuted for spying because the statute of limitations had expired.

(9) During the "Red Decade" of the 1930s, Hollywood Communists ran their own blacklist againist their political enemies. Because the studio bosses didn't support this blacklist, it wasn't as effective as the 1950s blacklist of Communists, but it seriously harmed careers nevertheless. Also, many in Hollyood boycotted those who testified before HUAC, allegedly as revenge for "naming names". But is there any serious doubt that the boycotters' attitudes would be very different if their targets had discussed with Congress Nazi, as opposed to Communist, infiltration of Hollywood?

(10) Then there's this quote from historian Ellen Schrecker, who is generally sympathetic to the Communists, regarding the blacklist, which conflicts with the theme of a couple of major Hollywood movies: "Most of the men and women who lost their jobs or were otherwise victimized were not apolitical folks who had somehow gotten on the wrong mailing lists or signed the wrong petitions. ...Whether or not they should have been victimized, they certainly were not misidentified." On the other hand, anti-Communist historian Klehr states that "many innocent people were harassed." But Redish concludes that "for the most part, it seems that the blacklists were accurate."

(11) Much of what is now labeled "McCarthyism" consisted of spontaneous action by private individuals and groups to boycott Stalinists. Unfortunately, I have yet to find a sound source that persuasively explains to what extent these private actors interacted with the government. For example, I still don't have a firm sense to what extent the Hollywood blacklist was the result of a fear of bad publicitly and threats to boycott the industry from various anti-Communist groups, and to what extent it was motivated by fear of potential government regulation. [Update: Eric Muller says that I'm wrong about this, becuase "most" of what now think of as McCarthyism was government action. Besides confusing "much" and "most," I'm not sure Eric is right that people consider the federal loyalty security program "McCarthyism"; maybe they do, and it's hard for someone who actually knows the history to disaggregate public perceptions from reality. But in fact, the federal loyalty security program was started by President Harry Truman in 1947, years before anyone heard of McCarthy, and was a result of revelations of significant lapses in federal security with regard to Communist espionage. Also, Eric talks about the federal government preventing "alleged Communists" from getting passports. The only relevant law I know was a 1950 law that prevented Communist Party members from getting passports, and if the definition of McCarthyism is policies that targeted potentially subversive activities by actual members of the Stalinist Communist Party, then the definition is broad indeed!]

Of course there are plenty of other facts around which make the Communists look better (e.g., most Americans who joined the Communist Party did so for relatively benign reasons, did not participate in espionage, and left after a short time), the government look worse, and otherwise more closely supports the "revisionist" historians perspective on the era. But I was already aware of those facts, the ones above were new to me.

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For Those Who Believe the Worst About the Supreme Court:

The Supreme Court today issued a 5-4 opinion with O'Connor in the majority (the first this Term, I think). The opinion holds that state sovereign immunity does not prevent a bankruptcy trustee's suit against a state agency. This may sound dry (and it is), but state sovereign immunity has been a hugely contentious issue in the Court in recent years, with virtually every case decided 5-4 -- usually with O'Connor joining Rehnquist, Scalia, Kennedy, and Thomas. This time she joined Stevens, Souter, Ginsburg, and Breyer, and the other four (including Roberts) were in dissent. So there's a nontrivial chance that, had the opinion been held up just another week or so, the case would have come out 5-4 the other way.

I highlight this because some might have been inclined to assume that justices on the losing side of a 5-4 with O'Connor in the majority would strategically delay the completion of their dissent so that they could, with any luck, get a different result with Alito. After all, that's what we would expect legislators to do.

I suppose that cynics will suggest that the dissenters allowed this case to be released precisely to create this favorable impression among the citizenry/cognoscenti, but that seems farfetched. Less improbable is the possibility that their intended audience was their colleagues -- e.g., that they allowed this case to be released because they wanted to hold up another case and used the release of this case to show their colleagues on the Court that they were not acting entirely in bad faith. But I think the odds of that explanation being true are pretty slim. Very likely the real explanation is that they acted honorably, sticking to their normal schedule.

The case is Central Virginia Community College v. Katz.

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[Puzzleblogger Kevan Choset, January 23, 2006 at 11:16am] Trackbacks
A West Wing Conundrum:

The West Wing was officially cancelled yesterday. With the death of actor John Spencer in December, the show is being forced to kill off Democratic Vice-Presidential candidate Leo McGarry just days before the election.

What was the only time a (real) Vice-Presidential candidate died before an election? What does the Constitution (or any other law) say about what names should appear on the ballot and how a new Vice President should be chosen?

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The Roberts Court and the Passive Virtues: Last week, the Supreme Court decided a closely-watched abortion case, Ayotte v. Planned Parenthood, in a short unanimous opinion that sent the case back to the lower courts on narrow grounds to reevaluate the scope of the remedy. Today, in a campaign finance case argued just last week, Wisconsin Right to Life v. FEC, the Court sent back the case in a unanimous 2-page per curiam opinion that will allow the lower court to consider an as-applied challenge to the statute. It's hard to know if two data points suggest a trend, but it will be interesting to see if the Roberts Court shows more interest in narrow and unanimous opinions than the Court did under Chief Justice Rehnquist.

  Incidentally, I'm placing my bet on the author of today's per curiam opinion with Justice Breyer. Justice Breyer likes to introduce reasons for a position using "for one thing" and "for another thing." From today's opinion:
It is not clear to us, however, that the District Court intended its opinion to rest on this ground. For one thing, the court used the word “may.” For another, its separate opinion WRTL’s challenge with prejudice characterized its previous opinion as holding that “WRTL’s ‘as-applied’ challenge to BCRA is foreclosed by the Supreme Court’s decision in McConnell.”
(emphasis added)

  No Justice uses that phrasing nearly as often as Breyer does, so I'm guessing Breyer drafted the per curiam opinion.
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Senate Competence and Confirmations:

Joe Malchow points me to Professor Dershowitz's Chicago Tribune column "The wrong questions from the wrong questioners." (registration required). Dershowitz argues that the problem with Senate confirmation hearings is the Senators themselves: (1) they are too long-winded and self-absorbed, more concerned about speechifying and preening than questioning the nominee, and (2) they lack the expertise in law and cross-examination skills to do a competent job of the matter. While nothing can be done about the former problem, Dershowitz argues that the latter problem can be corrected by hiring trained lawyers to conduct the questioning:

The only way to remedy these problems is to get senators out of the questioning business. I propose that the Judiciary Committee take a page from other congressional committees and hire outside lawyers to conduct their hearings. They should bring in three or four first-rate trial lawyers with backgrounds in constitutional scholarship to ask the hard questions. Of course committee members will consult with the litigators to ensure that they cover all the issues of concern to the senators. But during the hearings, the senators' job will be to listen and then to vote.

He adds, "It is astounding that he should be allowed to join the court without identifying the political lens through which he will confront cases."

Leave aside for the moment the assumption that the purpose of confirmation hearings today is actually to elicit the nominees views on law, rather than the very Senatorial speeechifying that Professor Dershowitz bemoans. Why is it "astounding" that a person could join the Supreme Court without identifying the political lens through which he will confront cases? If the Senate lacks the expertise to make in-depth judgments about law, there are then two possible alternative responses it could take. First, we can try to provide the Senate with expertise in order to carry out this task. Or second, we could restore the Senate's functions to those for which it does have expertise. It is not obvious to me that the former approach is inherently preferable to the latter. For instance, recall the vision of the Advice and Consent Clause in Federalist 76:

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.

Under this view, the purpose of the Advice and Consent Clause is to ensure the independence of the judiciary brach from both the executive and legislative branches, by ensuring the qualifications, integrity, character, and independence of nominees and preventing the nominations of Presidential cronies. And, of course, for well over a century the Senate conducted no hearings at all on Supreme Court nominees.

One may agree or disagree with the more humble vision of the advice and consent power laid out in the Federalist versus that assumed by Professor Dershowitz. But it is far from "astounding" to consider the Senate conducting an inquiry focused on the character, independence, and qualifications of a Supreme Court nominee, rather than their political views. This is a more restrained function, and one for which the Senate quite obviously is competent to carry out. And, as Professor Dershowitz himself seems to implicitly comprehend, the structure, power, and expertise of the Senate (perhaps not coincidentally) seems to be much better-equipped to conduct the more tightly-focused inquiry described in the Federalist, rather than the sprawling process that it has become--and which Dershowitz wants to enlarge still further.

One also needs to keep in mind that the Seventeenth Amendment has dramatically reshaped the structure of the Senate in such a manner that I would argue it has made the Senate even less-equipped to effectively carry out the sort of inquiry that Professor Dershowitz advocates. The indirect election of Senators under the original constitution was designed to give Senators a degree of quality and independence from politics that is absent today. This could cut either way, but to my mind this increased politicization of the Senate tends to make the Senate less, rather than more, equipped to responsibly and competently carry out the advice and consent powers given to it under the Constitution. As we have seen, this is a primary reason why confirmation hearings have become precisely the political circus that Dershowitz deplores. Thus, if anything, I think that this change points in the direction of encourging a more restrained view for Senate confirmations, rather than a still more-expansive view.

Put otherwise, I think it is an open question as to whether the Framers would have entrusted the advice and consent power to the Senate in the same manner had they known that eventually Senators would be elected directly by the people in partisan elections, and as a result, the nature and tenor of the confirmation process would deviate so dramatically from what was originally anticipated.

For what its worth, I would say the same thing about Senate trial on Impeachment--as demonstrated by almost farcical political and partisan nature of the Clinton impeachment trial. When the Framers entrusted to the Senate the power to conduct trials regarding impeachment, they anticipated (whether or not naively) that the indirect election of Senators by state legislatures would tend to elevate to the Senate individuals largely independent of political pressures and selected based on their distinction, rather than politics (in contrast to the House, of course). One can see how with that anticipation the Framers could imagine the Senate sitting as a sort of jury weighing the evidence on the impeachment of a public official (such as the President). Had the Framers anticipated that Senators would later come to be directly elected, would they have entrusted to the Senate the power to conduct impeachment trials? It is not obvious to me that they would have. The performance of the Senate during the Clinton impeachment showed the way in which impeachment is now an extension of politics, rather than the Senate sitting as a sort of sober jury, relatively independent of political pressures.

So perhaps the real question to draw from these hearings is not how to enable the Senate to compensate for its lack of expertise so as to enable it to dig still deeper into the nominee's political vision, but rather, whether the Senate should consider confining itself to a scale of inquiry for which it actually might have expertise, and which arguably fits better into the logic of the Advice and Consent Clause in the first place, namely to preserve the independence of the Court from the other branches of the government. And which, perhaps not coincidentally, also seems more compatible with the actual institutional capabilities and expertise of the Senate.

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Pittsburgh's Going to the Super Bowl!

True bliss. And an early birthday present (my 40th coming up next weekend).

Early lines have the Steelers favored by 3.5-4 points, which seems overly optimistic to me. I haven't seen the Seahawks much this year (the only time I remember seeing them is when they lost to the Redskins early on), but they sure looked tough yesterday. The Steelers need to come up with some way to run the ball (Willie Parker hasn't done much against good defenses this year, including the playoffs) and have to come up with a scheme to control Shaun Alexander. It strikes me that one edge for the Steelers may be their ability to blitz, which could offset some of the strength of that Seahawks offensive line. The real problem in thinking about the game is that the general softness of the NFC this year, and the particular softness of the NFC West leaves me simply uncertain about how good Seattle is. But they looked pretty darned impressive yesterday. Neither team looks particularly turnover-prone, so it should be a good, tough game.

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Sunday, January 22, 2006

EV Joins MBRM: From the press release: "The international law firm Mayer, Brown, Rowe & Maw LLP is pleased to announce that Eugene Volokh, who holds the Gary T. Schwartz chair at the UCLA School of Law, has joined the firm's litigation practice as an academic affiliate."
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Sunday Open Thread: Many commenters enjoyed the VC open thread from last week, so I think I'll try making it a regular event. Weekends are usually pretty quiet here, so in the tradition of the Sunday Song Lyric, I hereby introduce a new weekly feature, the Sunday Open Thread. What's on your mind? Comment away.
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Juan Cole Jumps the Shark?:

[Editor's note: This post was originally prepared several months ago, just when the Miers confirmation controversy was about to erupt, and eluded my attention since then.]

I visit Juan Cole's blog only once in a while, and I rarely find much to agree with. And I've certainly been critical of Cole before. But I was especially dismayed and appalled to notice that Cole--a man with serious scholarly credentials, and former head of the Middle East Studies Association--recentlyfavorably cited the absurd meanderings of Justin Raimondo, whose views on Israel's purported role in 9/11 (and much else) are simply beyond the pale of anything remotely resembling reason (a quick Google search will uncover much more colorful descriptions of Raimondo's views by quite respectable individuals and organizations such as the ADL). The particular Raimondo post Cole links to states, among other things: "'If we observe how we were lied into war with Iraq, and by whom,' I wrote in May, 'the whole affair looks more like an Israeli covert operation by the day. The AIPAC spy scandal is confirming this in spades – and much else, too."

Here's Cole's take on Raimondo:

I wish the argument were more nuanced, and there are many things in it with which I disagree (David Satterfield is likely to have been a relatively innocent bystander in this train wreck, e.g.). But because Raimundo pulls no punches, he forces us to consider the degree to which Congressional foreign policy on the Middle East in particular has become virtually captive to the Zionist lobby (just as US policy toward Cuba is captive to the Cuban-American community and its lobby). He clearly goes too far, but how far should an analyst of this case go?

So Cole disavows Raimondo without really disavowing him, suggesting that he may be on to something! In fairness, Cole goes on to write, "One thing must be said, which is that there is no sinister cabal, that all this is just single-interest politics." But anyone who is even vaguely familiar with Raimondo's views on the Middle East, Israel, and AIPAC, knows that everything he writes is dictated by his view that there is indeed a sinister cabal, and that Israel (and its supporters) are in charge of it, e.g., the following pastiche of nonsense, conspiracy theories, and oft-debunked "facts" circulated by tin-foil hat wearers around the world (from the same post linked favorably by Cole):

Israel's legendary Mossad intelligence service, with its reputation for both efficiency and ruthlessness, reportedly shadowed the 9/11 hijackers on American soil as they prepared to launch the biggest terrorist attack in our history. Multiple sources reported a large-scale surveillance operation directed at U.S. government buildings, including offices of the Drug Enforcement Agency, the FBI, U.S. courthouses, and some military bases and research facilities. The AIPAC spy cell in Washington was the brain, and the "Israeli art students" – whose movements shadowed the hijackers in Florida and elsewhere – were the arms and feet of a subterranean creature whose dimensions we are only just beginning to iscover.

Citing Raimondo as an expert on Israel and espionage, with a caveat that he merely goes too far, and that of course there is no "sinister cabal" is analogous to referring readers to the infamous anti-Semitic forgery, The Protocols of the Elders of Zion, and then adding that it "should be more nuanced" and "goes too far" and of course the Jews don't control world finance and politics, but just engage in typical special interest politics. Except that Raimondo has an irrational hatred of Israel, not Jews per se (at least so far as I know), and Cole, who is very careful, and sincerely so, I gather, to distance himself from anti-Semitism, gets so worked up with his own distaste for Israel that good judgment seems to elude him.

In a bizarre but telling postscript to this story, Cole later published, without comment, a "guest editorial" from Prof. Jan Smith of Ohio Wesleyan University objecting to Cole's citation of Raimondo. Not, mind you, because of Raimondo's, ahem, unique views, noted above, but because Raimondo is a libertarian [ed. note--or purports to be; Raimondo is a "true libertarian" like the subtly fascistic Pat Buchanan is a "true conservative"], and libertarians are both beyond the pale in general, and more specifically are somehow responsible for the Iraq war because they are "private elites" (that's about as coherent as the argument gets).

I know many sensible people who find value in Prof. Cole's views on the war in Iraq, among other things. But where do we draw the line, if such a line can be drawn, between Juan Cole, Middle East Studies expert, and Juan Cole, who looks with at least tentative favor on the rantings of Justin Raimondo?

Sunday Afternoon Baby Blogging:

Natalie Ilana Bernstein at 3.5 months.

Stuntz, Schauer, and Miller: The January issue of the Harvard Law Review has been posted on line, and it features three very strong contributions: Bill Stuntz's The Political Constitution of Criminal Justice, a terrific and important article I blogged about a few months ago when it was in draft form; a review by Fred Schauer of the new biography of H.L.A. Hart (a book I recently started reading, and so far is excellent), and an interesting article by Arthur Miller, Common Law Protections for Products of the Mind: An "Idea" Whose Time Has Come. The introduction of Miller's article has one of the more unusual passages I have read in a while:
  I began this Article in the fall of 1956 — that’s right, just about fifty years ago. As a second-year law student on the Harvard Law Review, I had become fascinated with copyright and for my Note was assigned the topic of legal protection for noncopyrightable and nonpatentable mental creativity — ideas. I dutifully prepared a preliminary draft, ran the gauntlet of what was then called "intermediate editing," and ultimately produced a polished draft ready for final editing. Then, out of the blue, a funny thing happened on the way to publication.
  The Review’s president and I were asked to confer with the University’s outside counsel. He informed us that the Law School and its then Dean, Erwin N. Griswold, had been sued by an angry Argentinean who claimed that a series of books on the tax systems of other nations, which the School was developing in conjunction with the United Nations, was based on his idea. Publication of my work product while the litigation was pending would have presented a classic catch-22. A Note sympathetic to idea protection would be used by the plaintiff’s counsel against Harvard and Dean Griswold; a Note rejecting idea protection would be seen as propaganda for the school and the Dean, lack credibility, and damage the Review’s reputation.
  We concluded that discretion was the better part of valor, and the Note was placed on the "back burner" until the case ended. . . .
  In the years between then and now I have loved, litigated, taught, and written on questions of intellectual property, nurturing the thought that sooner or later I would finish my "2L Note." . . . To that end, this Note of my youth — turned Article of my maturity — seeks to reconceive and render rational the law of ideas.
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