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Saturday, April 1, 2006

[Ilya Somin (guest-blogging), April 1, 2006 at 11:48pm] Trackbacks
Final Four Update:

Sadly, George Mason lost in the Final Four. Some dreams are just not meant to be . . . at least not this year!

But West Coast VC readers will be happy that UCLA won. Here at GMU, we take solace in the fact that we moved up in the US News law school rankings more than UCLA did despite the financial disadvantage I discussed in my earlier post:). We are definitely closing in on UCLA in both law AND basketball, so the Bruins better watch out!

3 Comments
[Puzzleblogger Kevan Choset, April 1, 2006 at 10:58pm] Trackbacks
April Fools!

Forgot to post earlier, but check out the April Fools-themed crossword I co-constructed with David Kwong for today's New York Times.

3 Comments
Hurray for Jim and Sarah Brady:

In a Friday interview with the Washington Post, Jim and Sarah Brady state: "In the first place, lets make it clear we don't want restrictions on law abiding citizens beyond making sure that all gun purchasers undergo a complete and comprehensive background check." (Although they do still support local bans on all firearms if "a locality has voted it in themselves", and state or national bans on firearms which they claim are weapons of war.)

The Brady interview marks, apparently, a repudiation of many proposals which the Brady Campaign (formerly known as Handgun Control, Inc., and before that known as the National Committee to Control Handguns) has previously advocated. Such now-repudiated proposals include:

The "Brady II" proposal from 1994 declaring that ownership of a certain number of guns or gun parts or ammunition constitutes an "arsenal" which should require special licensing and subject the owner to warrantless home inspections.

Mrs. Brady's 1993 advocacy of a "needs-based" licensing system, in which police could deny a prospective gun purchase under the theory that the buyer does not "need" the gun.

So-called "safe storage" laws enacted in several states and cities, thanks to effective lobbying from the Brady Campaign, requiring that guns be locked up, and, in many cases, inaccessible for emergency self-defense. Legislatures which enacted these laws should be informed that the Brady Campaign, although formerly supportive of such laws, no longer supports them.

"One-gun a month laws." Repealed in South Carolina, but still in effect in Maryland, California, and Virginia, as a direct result of Brady Campaign lobbying. With the Brady Campaign now repudiating gun rationing, these laws should be repealed.

Perhaps the Brady Campaign will withdraw from membership in IANSA (International Action Network on Small Arms) which promotes many extreme gun laws which go far beyond the Brady objective of comprehensive background checks; such laws include banning all handguns, banning all long guns which can shoot over 100 meters (that is, almost all rifles), banning all self-loading guns (the Brady Campaign has long insisted that only some self-loading guns should be considered "assault weapons"), and prohibiting gun ownership for self-defense.

If the Brady Campaign takes action to give meaning to its leaders' declarations in the Washington Post, the Campaign will deserve respect from all sides of the gun debate for supporting reform of overly restrictive laws which the Campaign now, apparently, acknowledges were mistakes.

54 Comments
All George Mason, All the Time:

As the George Mason Patriots prepare for the Final Four, and loyal V.C. readers everywhere hope for the ultimate National Championship match-up of George Mason vs. UCLA, I thought that now would be a good time to note some of George Mason's contributions to the right to keep and bear arms.

On September 21, 1774, George Mason and George Washington co-founded the Fairfax County Militia Association, which Mason chaired. When Washington attended the May 1775 meeting of the Continental Congress, he wore the blue and buff uniform of the Fairfax County Militia; Congress appointed him General of the Continental Army and the blue and buff later became the colors of the Continental Army.

In January 1775, the Fairfax County Militia issued Mason's Fairfax County Militia Plan:

A well-regulated militia, composed of the Gentlemen, Freeholders, and other Freemen was necessary to protect our ancient laws and liberty from the standing army...and we do each of us, for ourselves respectively, promise and engage to keep a good Fire-lock in proper Order & to furnish Ourselves as soon as possible with, & always keep by us, one Pound of Gunpowder four Pounds of Lead, one Dozen Gun Flints, and a pair of Bullet Moulds, with a Cartouch box, or powder horn, and Bag for Balls.

1 George Mason, Papers 210-11 (1970), quoted in Stephen P. Halbrook, That Every Man Be Armed: The Evolution of the Constitutional Right 60 (1984).

Mason authored the Virginia Declaration of Rights (June 2, 1776), which stated in article 13:

That a well regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided as dangerous to liberty; and that, in all cases, the military should be under strict subordination to, and be governed by, the civil power.

Mason wrote the Richmond Antifederal Committee's June 11, 1788, proposal for Bill of Rights to be added to the United States Constitution. The 17th item stated:

That the People have a Right to keep & bear Arms; that a well regulated Militia, composed of the Body of the People, trained to Arms, is the proper natural and safe Defence of a free State; that standing Armys in time of Peace are dangerous to Liberty, and therefore ought to be avoided, as far the Circumstances and Protection of the Community will admit; and that in all Cases, the Military ought shou'd be under strict Subordination to and be govern'd by the Civil Power.

As the Virginia ratifying convention, Mason pointed out:

Forty years ago, when the resolution of enslaving America was formed in Great Britain, the British Parliament was advised by an artful man [Sir William Keith], who was governor of Pennsylvania, to disarm the people; that it was the best and most effectual way to enslave them; but that they should not do it openly, but weaken them, and let them sink gradually, by totally disusing and neglecting the militia.

He also warned the convention (June 14, 1788):

The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless--by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia.... But we need not give them power to abolish our militia. If they neglect to arm them, and prescribe proper discipline, they will be of no use.

Like many anti-federalists, Mason worried that the present militia, composed of the entire people, might one day be replaced by a much narrower militia:

Mr. Chairman, a worthy member has asked who are the militia, if they be not the people of this country, and if we are not to be protected from the fate of the Germans, Prussians, &c., by our representation? I ask, Who are the militia? They consist now of the whole people, except a few public officers. But I cannot say who will be the militia of the future day. If that paper on the table gets no alteration, the militia of the future day may not consist of all classes, high and low, and rich and poor; but they may be confined to the lower and middle classes of the people, granting exclusion to the higher classes of the people. If we should ever see that day, the most ignominious punishments and heavy fines may be expected. Under the present government, all ranks of people are subject to militia duty. Under such a full and equal representation as ours, there can be no ignominious punishment inflicted. But under this national, or rather consolidated government, the case will be different. The representation being so small and inadequate, they will have no fellow-feeling for the people. They may discriminate people in their own predicament, and exempt from duty all the officers and lowest creatures of the national government. If there were a more particular definition of their powers, and a clause exempting the militia from martial law except when in actual service, and from fines and punishments of an unusual nature, then we might expect that the militia would be what they are. [Note: the final two concerns were partially addressed by the Fifth Amendment, which requires Grand Jury indictments before prosecutions for serious crimes, except "in the Militia, when in actual service in time of War or public danger" and by the Eighth Amendment, which forbids "cruel and unusual" punishments for anyone, including people in active militia service.] But, if this be not the case, we cannot say how long all classes of people will be included in the militia. There will not be the same reason to expect it, because the government will be administered by different people. We know what they are now, but know not how soon they may be altered.

Some persons argue that because Mason was so concerned about the militia, and because he was so influential in creating the pressure that led Madison to draft the Second Amendment (and the rest of the Bill of Rights), that the Second Amendment only protects militia rights (and, somehow, the militia rights have now dwindled into only the rights of members of the National Guard while on active duty). Such an interpretation, however, is not consistent with Mason's proposed Richmond bill of rights, which first states "That the People have a Right to keep & bear Arms" and only thereafter adds other items dealing with the militia and with standing armies.

Some George Mason University publications involving the Second Amendment and related issues: Stephen P. Halbrook, The Jurisprudence of the Second and Fourteenth Amendments, 4 Geo. Mason U. L. Rev. 1 (1981); Stephen P. Halbrook, Second-Class Citizenship and the Second Amendment in the District of Columbia, 5 Geo. Mason U. Civ. Rts. L.J. 105 (1995); David B. Kopel, The Brady Bill Comes Due: The Printz Case and State Autonomy, George Mason University Civil Rights Law J.; Stefan B. Tahmassebi, Gun Control and Racism, 2 Geo. Mason U. Civ. Rts. L.J. 67 (1991).

Some notable George Mason Univeristy professors who have written about the Second Amendment: Stephen P. Halbrook (Asst. Prof. Philosophy, 1980-81); Walter Williams (Economics); Nelson Lund (Law), Patrick Henry Professor of Constitutional Law and the Second Amendment; Daniel Polsby (Dean, Law).

18 Comments
Nebraska is 40th state to enact Shall Issue licenses for defensive handgun carrying:

Yesterday the Nebraska legislature defeated a filibuster, and passed a Shall Issue law for licensing the carrying of concealed handguns by adults who pass a background check and a safety class. Nebraska's governor has said he will sign the bill into law.

The law does not preempt Omaha's ban on concealed carry; in this regard, the Nebraska law is like Pennsylvania's 1989 Shall Issue law, which allowed Philadelphia to refuse to issue permits to qualified citizens. Later, the statewide success of the Pennsylvania law convinced the legislature to eliminate the Philadelphia loophole. Omaha's loophole will probably be eliminated sometime within a decade.

Here is the nationwide status of the law regarding carrying of concealed handguns for lawful defense:

40 states generally allow such carrying:

No permit needed. 2 states do not require a permit for any adult who is legally allowed to possess a firearm. These are Alaska and Vermont. These states will issue a permit, however, upon application. (See discussion of “reciprocity,” below, for why a person would want a permit.)

"Do Issue." 3 states have statutes which reserve some discretion to the issuing law enforcement agency. These are Alabama, Connecticut, and Iowa. In these states, local law enforcement will generally issue a permit to the same kinds of persons who would qualify for a permit in a Shall Issue state.

"Shall Issue." 35 states, including all states not listed elsewhere. Nebraska (this week) and Kansas (last week) are the most recent states to join this list.

10 states generally do not allow such carrying.

"No Issue." Illinois and Wisconsin have no process for issuing concealed carry permits. Illinois allows certain persons (e.g., law enforcement, security guards) to carry without a permit. By a decision of the Wisconsin Supreme Court, no permit is needed for concealed carry in one's home or place of business. (See my Albany Law Review article for discussion of the Wisconsin and Rhode Island cases.)

"Capricious Issue." 8 coastal states give local law enforcement almost unlimited discretion to issue permits, and permits are rarely issued in most jurisdictions, except to celebrities or other influentials. These states are Hawaii, California, Delaware, Maryland, New Jersey, New York, Massachusetts, and Rhode Island.

The future:

The Wisconsin legislature has twice come within one or two votes of over-riding the Governor's veto of a Shall Issue law. In every state where Shall Issue laws have been blocked by a veto, a Shall Issue law has eventually been enacted. It seems reasonable to predict that Wisconsin will one day become a Shall Issue state.

Rhode Island actually has a Shall Issue law (for issuance by local law enforcement) and a Capricious Issue law (for issue by the Attorney General). The Attorney General has succeeded, at least temporarily, in stifling the local Shall Issue system, but a decision of the Rhode Island Supreme Court suggests that this state of affairs is untenable. All that is necessary to implement Shall Issue in Rhode Island is a new Attorney General with a different attitude, or the proper legal challenge. Rhode Island too seems a likely candidate to become a Shall Issue state.

The Delaware legislature is currently considering a Shall Issue law, and proponents seem optimistic. I suggest that Delaware's politics are, on the whole, more similar to the normal pattern of the 40 issuing states than to the 9 other hold-outs. I expect Delaware to enact a Shall Issue law, perhaps this year, or within the next several years. (UPDATE: The bill has passed one committee, and has enough co-sponsors to pass both houses; the Governor has not yet taken a position. As with Wisconsin, the existence of majority support in both houses makes Shall Issue a near-certainty to become law sooner or later.)

Of the remaining seven hold-outs, three states (New York, Illinois, and California) have previously passed a Shall Issue bill through a single house of the legislature. The passage suggests that Shall Issue, although hardly easy to enact into law, might be accomplished. In all seven of the final hold-out states, it would appear almost impossible to pass a Shall Issue law by a wide enough margin to over-ride a veto.

The pattern in almost all the states with Shall Issue laws has gone something like this: Initial discussions follow a predictable pattern, with proponents promising reductions in the crime rate, and opponents warning of Wild West shootouts. John Lott is discussed, pro and con, in infinite detail.

Over time, the personal testimony of female Shall Issue advocates sways some legislators. Other legislators, looking at the experience of other states, conclude that Shall Issue is, at the least, harmless; the lurid and sweeping predictions of opponents have not come true anywhere. The more states that enact Shall Issue laws, the more that legislators in a hold-out states become open to the idea that Shall Issue is not dangerous. Ohio, Minnesota, and Michigan are examples of states which are not considered strongly pro-gun, and whose enactment of Shall Issue legislation was possible only because so many other states had acted previously. As the number of Shall Issue states rises, so does the possibility of enacting Shall Issue in the dwindling number of hold-outs.

As momentum builds in a given state, the bill eventually attracts the support of all or almost all Republican legislators, and of almost all Democrats with a C rating or higher from the National Rifle Association. Many of the swing votes (the C-rated legislators, who say that they are pro-Second Amendment, but who often vote for gun control laws) are attracted by the objective standards of the Shall Issue system--which, unlike the Capricious Issue system--forbids gun carrying in certain places (e.g., hospitals), sets objective standards about who may not receive a permit (persons with various disqualifying conditions), and (in most states) requires a specific amount of firearms safety training.

Interestingly, Congress passed the Brady Bill 5-government-working-day waiting period for handgun purchases when there were only 22 states that had any kind of waiting period (and in many of those states, the wait was shorter than the Brady wait). As the number of states which regularly issue carry permits climbs into the 40s, the correlation of forces in Congress in favor of a national carry law also increases.

Brady passed in part because it was a "free" vote for some legislators. A legislator from, say, California, who usually but not always supported gun-owners could vote for Brady (earning praise from most of the media) while at the same time doing nothing that interfered directly with the gun purchase rights of his own constituents (since California already had a 15 day waiting period).

Conversely, a legislator from, say, Ohio, who usually but not always supports gun control, can now cast a "free" vote for a national carry law; he can curry some favor with pro-gun interests, while doing nothing to weaken the gun controls in effect in Ohio (which already has a Shall Issue law).

I am not arguing for or against the merits of a national Shall Issue law—merely commenting on the political realities.

For many decades, every state has recognized driver’s licenses issued by any other states. For concealed handgun licenses, the trend is clearly in that direction. As detailed by packing.org, today a permit issued by one state can be used in 28 states, through the principle of “reciprocity.” The new Kansas law will have reciprocity, while the Nebraska law does not. (Often, states with no reciprocity or weak reciprocity add a broader reciprocity provision several years after the enactment of the Shall Issue law.) A number of other states (e.g., Maine, N.H., Conn., Washington, Nevada), although having no reciprocity or limited reciprocity, issue their own permits to non-residents. (Nevada, however, requires that the training be conducted in Nevada.)

The continuing expansion of reciprocity also adds strength to the movement towards a federal Shall Issue law.

Significantly, Congress has also created the precedent, by enacting legislation which allows police officers and retired police from any state, after following certain procedures, to carry firearms in all fifty states.

In addition, I suggest that one day within the next 20 years, Congress and the President will decide that it is anomolous that residents of the District of Columbia are denied the defensive handgun carry rights which are enjoyed by the residents of all (or nearly all) 50 states; Congress will use its authority to legislate for the District of Columbia and will enact a Shall Issue system for residents of the District.

The modern trends towards Shall Issue was started when Florida became a Shall Issue state in 1988; previous Shall Issue bills had been vetoed by Governor Graham, but Governor Martinez signed the bill. The bill was the project of Marion Hammer, the head of Unified Sportsmen of Florida, who later served as President of the National Rifle Association. A few states (such as Washington and the Dakotas) already had Shall Issue laws, but the Florida law was the one that began a national movement.

Hammer was also the prime mover of the NRA’s Eddie Eagle gun safety program, in which a costumed character (similar to Smokey the Bear) teaches young children that they should only be around guns if there is a responsible adult present; if a children find an unattended gun, they should “Stop! Don’t touch! Leave the area! Tell an adult!” The Eddie Eagle program has now been taught to millions of children nationwide.

Hammer’s latest Florida success is Stand Your Ground legislation, affirming that victims of a violent felony do not need to retreat (even in a public area) before using forceful self-defense. As with Shall Issue, there are already some states, such as Utah, with strong protections of self-defense rights, but the 2005 Florida law may begin a national trend in which, every year, a few more states enact Stand Your Ground laws. Indiana and South Dakota enacted Stand Your Ground laws this year, and Georgia and Alabama may also do so soon.

UPDATE: Mississippi enacted Stand Your Ground (a/k/a "Castle Doctrine") this week; the bill applies to homes, cars, and one's place of business (and thus is weaker than the Florida model, just as some states have Shall Issue laws which are more restrictive than the Florida model).

144 Comments

Friday, March 31, 2006

[Ilya Somin (guest-blogging), March 31, 2006 at 9:27pm] Trackbacks
How the US News Law School Rankings Reward Wasteful Spending:

So much figurative blogosphere ink has been spilled over the US News law school rankings that I hesitate to try to add anything. However, there is one flaw in the US News system that hasn't received as much attention as it should. As Brian Leiter explains, approximately 11% (9.75% for instructional spending, 1.5% for other spending) of a school's rankings depends on its per-student expenditure of money. This may not seem like a lot, but, given the high degree of clustering in the other components of the formula, it can actually make a substantial difference to a school's final ranking.

In other words, if School A and School B are exactly equal in the quality of their students, faculty, facilities, etc., but School A spends twice as much money per student to get this result as School B, then A will come out well ahead in the in the US News rankings. A is actually rewarded for being far less efficient in getting educational value for its money than B! Thus, the US News system gives schools an incentive to engage in wasteful expenditures. This is particularly unfortunate in the case of public law schools, where some of the funds expended are taxpayer money. And even private law schools receive many direct and indirect government subsidies as well.

There is no reason to believe that including expenditures provides useful information to applicants or others interested in the school's quality. To the extent that the money the school spends translates into real improvements in quality, these can be measured directly by including ratings for the quality of the faculty, student body, and facilities. Many of these factors are already included in the US News formula and the rest certainly can and should be (some are in fact measured in the Leiter rankings).

I have to admit that George Mason Law School has a lot less money than most of our competitors, so we have a special interest in getting this part of the US News system eliminated. But this, to my mind, is one of those cases where an argument is correct despite the fact that the person making it could have self-interested motives.

UPDATE/CLARIFICATION: It's true that US News does not publish a separate expenditure ranking. However, as Brian Leiter explains in the first link above, they DO factor in expenditures in the formula that determines schools' overall rankings. As a result, some schools place ahead of others solely because they spend more money per student without actually increasing quality.

Related Posts (on one page):

  1. Final Four Update:
  2. How the US News Law School Rankings Reward Wasteful Spending:
  3. U.S. News Movers:
28 Comments
Just A Reminder: Most VC readers know this, but I figured a quick reminder might be helpful in case some readers missed it: For the last few weeks, I've been blogging about legal stuff over at a new solo blog, OrinKerr.com. Topics of recent posts include Justice Kennedy and the War on Terror, the impact of Tom Goldstein on the Supreme Court's docket, jail time for throwing big parties, and copyright and the U.S. News rankings.
[Puzzleblogger Kevan Choset, March 31, 2006 at 10:56am] Trackbacks
Events:

In 1998 Burger King introduced the left-handed Whopper (the condiments were designed to fall out the right side). In 1965 the BBC conducted a trial of "Smell-o-vision," in which smells would be conducted to viewers (smellers?) at home. And several years ago BMW introduced a car horn designed to calm, rather than aggravate, other drivers.

What do these events have in common?

30 Comments

Thursday, March 30, 2006

U.S. News Movers:

Over at TaxProf, Paul Caron summarizes the biggest moves in the new 2007 U.S. News law school rankings. On the one hand, I'm pleased to report that George Mason moved from number 41 to number 37. On the other hand, don't make a decision on where to attend law school based on annual fluctuations in U.S. News rankings, and don't fool yourself into thinking that minor differences in rankings between schools signify anything meaningful.

UPDATE: Two years ago, I wrote: [While the U.S. News rankings suffer from flawed methodology,] the reaction of the Association of American Law Schools to the rankings, which has been to simply condemn them, is unproductive. Prospective law students are going to invest a lot of time and money in law school, and they are looking for as much information as they can get. Rankings, including even U.S. News's rankings, provide useful information. If nothing else, the rankings themselves influence the decisions not only of students, but to a lesser extent of junior faculty choosing among competing offers, law review editors selecting among articles, and employers, and thus become a self-fulfilling prophecy that can't simply be pooh-poohed.

The real problem is not rankings, but that U.S. News has had a virtual monopoly on the rankings, though Leiter has provided more useful (at least for those concerned with the academic quality of the faculty and students at various schools), though less used guidance for students for several years now. One hears of such things happening, but it's absurd, for example, when a student turns Chicago for NYU because the former is "ranked" sixth and the latter fifth. Both are excellent schools, with very different characteristics, located in very different cities. Which one a sudent decides to attend is a personal choice that should be influenced not a whit by a marginal difference in rankings. If there were competing ranking systems, students would recognize that there is a certain arbitrariness in any ranking, and be less hung up on whether a school has moved up or down slightly in any given year. Let a thousand rankings bloom! Newsweek, Wall Street Journal, American Lawyer, rise out of your collective stupors and do your own law school rankings!

Dan Solove has related thoughts this year at Concurring Opinions.

96 Comments
Dane-Geld:

A comment leads me to repost Dane-Geld, a Kipling poem that I put up a few years ago. Today the Danes are the good guys rather than, as in the poem, the bad guys, and of course the fear isn't of nations but of extremist religious groups. But the principle is the same: When you give in to threats of violence, this just emboldens the threateners to demand more. What happens when someone wants to do a movie of Mohammed's life? Or says harsh things about Islam that some extremist Muslims find offensive or even blasphemous? Behavior that gets rewarded gets repeated.

In any case, here's the poem; it actually isn't one of Kipling's best from the standpoint of craft — his historical poems generally aren't, I think — but it's still pretty good:

It is always a temptation to an armed and agile nation
To call upon a neighbour and to say: --
"We invaded you last night — we are quite prepared to fight,
Unless you pay us cash to go away."

And that is called asking for Dane-geld,
And the people who ask it explain
That you've only to pay 'em the Dane-geld
And then you'll get rid of the Dane!

It is always a temptation for a rich and lazy nation,
To puff and look important and to say: --
"Though we know we should defeat you, we have not the time to meet you.
We will therefore pay you cash to go away."

And that is called paying the Dane-geld;
But we've proved it again and again,
That if once you have paid him the Dane-geld
You never get rid of the Dane.

It is wrong to put temptation in the path of any nation,
For fear they should succumb and go astray;
So when you are requested to pay up or be molested,
You will find it better policy to say: --

"We never pay any-one Dane-geld,
No matter how trifling the cost;
For the end of that game is oppression and shame,
And the nation that pays it is lost!"

28 Comments
[Ilya Somin (guest-blogging), March 30, 2006 at 6:09pm] Trackbacks
The "Yale Taliban" and The Limits of Academic Tolerance:

VC's recent discussion of ideological tolerance on campus naturally leads us to the question of how far such tolerance should extend. This is the key issue raised by the case of former Taliban spokesman Sayed Rahmatullah Hashemi , the nondegree Yale student who is now being considered for admission to the undergraduate program.

My own view is that an applicant's political ideology, no matter how odious, should be ignored in academic admissions decisions. In the case of public institutions, such nondiscrimination is required by the First Amendment. For private institutions like Yale, I would argue that it is the right policy, though not legally mandatory. Although schools may have to admit the occasional Nazi, Communist, or radical Islamist, that is better than letting university bureaucrats exclude any applicants whose views they find objectionable.

Hashemi's admission, however, cannot be justified even by my expansive theory of ideological nondiscrimination. This man was not just an ideological sympathizer of the Taliban. He was a paid agent. Being an actual agent of terrorists and oppressors is vastly different from merely having views similar to theirs. Yes, there is always the risk that some admissions office will decide to label the US or Israel or some other democracy a "terrorist" state and ban applicants who once worked for those governments. Practically speaking, however, I highly doubt that any major university would be willing to incur the opprobrium of doing so. Stigmatizing an entire nation (or even just its government) will be much more costly to universities than merely rejecting an individual applicant because the school objects to his views.

Finally, it should be emphasized that Yale was not simply applying ideological neutrality when they decided to accept Hashemi. They actually chose to take him because of his Taliban experience rather than in spite of it. As then-Yale Admissions Dean Richard Shaw admitted, Hashemi was accepted because of his "personal accomplishments that had significant impact" (see above link). Given that Hashemi was in his early twenties at the time and had never done anything else with "significant impact," this is clearly a reference to his time with the Taliban. Even if Yale chooses not to ban applicants who worked for the Taliban, it should at least not count Taliban experience as a point in their favor.

45 Comments
We Are All Danes Now, Continued:

More from FIRE on the NYU event:

  1. "[T]he students were allowed to admit only 75 of the approximately 150 off-campus guests who had registered. Stephan Walker, the vice president of the Objectivist Club, confirmed to FIRE that even several members of the media had to be turned away."

  2. "Later, Lukianoff and a blogger both observed a student being forced to remove a shirt depicting one of the cartoons."

  3. "Finally, following through on plans divulged in an e-mail in FIRE’s possession, members of the Bengali Student Association apparently obtained and then ripped up many of the student tickets for the event. Walker has a bag of these torn-up tickets."

  4. "As an NYU spokesman told Inside Higher Ed, the university’s objection to the cartoons is based on the fact that 'an important group in our Muslim community made it clear that they found the display of the cartoons deeply offensive.'"

  5. "The spokesman also told the New York Sun that 'it wasn't necessary to show the cartoons to discuss them.' ... [T]he spokesman said the following to NYU’s student paper: 'Realistically, one can have a discussion on smallpox without actually handing out the the live virus to the audience.' [But] making decisions about what is too offensive to be shown to people is none of NYU’s business -- and infecting people with smallpox is not the same as showing them a cartoon[.]"

21 Comments
NYU's Explanation of Its Actions:

As readers may recall, a student group at NYU wanted to put on an event that displayed and discussed the Mohammed cartoons. NYU insisted that the group either close the event to all non-NYU visitors, or not display the cartoons (the course that the group ultimately chose).

I called NYU to ask them for their take on the cartoon controversy, in particular with regard to their Guidelines Regarding Protest and Dissent, which say (emphasis added): "A. Commitment and Responsibilities of the University. New York University is committed to maintaining an environment where open, vigorous debate and speech can occur. This commitment entails encouraging and assisting University organizations that want to sponsor speakers as well as informing members of the University community who seek guidance concerning forms of protest against speakers. It may also involve paying for extraordinary security measures in connection with a controversial speaker. Consistent with these obligations, the University promulgates these Guidelines, which are intended to be applied without regard to the content of any proposed speaker’s speech."

The policy also goes on to recognize that NYU groups are entitled to invite people from outside NYU, so long as "the sponsoring organization ... provide[s] that at least a majority of the seats be available to the University community or portion thereof, as the case may be."

NYU transferred me to James Devitt at the press office, who kindly discussed the matter with me. Here were his responses, with quotes noting his literal words (emphasis mine).

(1) "NYU has to be concerned with its students' safety and well-being, which are among the factors that drove our decision in this matter."

(2) The decision was also based partly on NYU's "larger obligation as a university to the sensibilities of its students," many of whom are offended by the cartoons.

(3) As to the policy, "No-one's speech was curtailed." "If you read the policy, it talks about speakers' speech being curtailed, and to the best of my knowledge none of the speakers were the cartoons' authors."

This strikes me as a troubling position. First, despite its ostensible commitment to public debate, even when this requires extra security protection, the NYU opted to curtail debate. Second, NYU acknowledges that it was partly motivated by concern about other students' "sensibilities" -- a very troubling reason for a university to restrict student expression, especially expression as important and newsworthy as this (these are, as FIRE has pointed out, likely the most newsworthy cartoons in history).

Third, NYU's assertion that the protections offered student speech are limited to speech that the students literally "author[ed]" is especially troubling. Under this logic, NYU's blocking distribution of the Quran or the Bible wouldn't "curtail" anyone's "speech," since of course the distributors are quite unlikely to be the Quran's or Bible's authors (or even authors of the particular translation). Likewise if NYU wanted to stop students from waving flags that they didn't personally design, from reading excerpts of important political works, or for that matter from distributing copies of the First Amendment. Such a reading would dramatically cut back on the speech protections that NYU has promised to its students. I hope that NYU faculty and others with influence at NYU are paying close attention to this controversy, and pressing the administration to mend its ways.

14 Comments
Brian Leiter's Legal Claims:

Keith Burgess-Jackson runs a site that's strongly critical of Texas law professor Brian Leiter. That site used to be http://brianleiter.powerblogs.com, but powerblogs has moved it to http://academicthug.powerblogs.com following this letter from Brian Leiter:

Dear Mr. Landsown [sic]:

I am writing to put you and your company, American Powerblogs Inc., on notice that a user of your service, Powerblogs, has engaged in tortious misappropriation of my name in order to advertise and draw attention to his web site. Keith Burgess-Jackson, who runs the site in question (www.brianleiter.powerblogs.com), has not received my permission to register my name, or any variation of my name, or to otherwise utilize my name, or any variation of my name, in order to promote or otherwise identify his site. Please close down that particular URL immediately. Thank you for your prompt attention to this matter.

Very truly yours, Brian Leiter Joseph D. Jamail Centennial Chair in Law, Professor of Philosophy, and Director of the Law & Philosophy Program The University of Texas at Austin ...

Here's my question for those who know tort law, and especially Texas tort law: Is Prof. Leiter's legal claim at all sound? My sense is that it is not:

(1) There's no right of publicity claim, I think, both because the site doesn't make any money and is thus not commercial, and because it's opinion writing rather than advertising or merchandising.

(2) There's no right of privacy claim (at least in the disclosure of private facts sense), because no embarrassing private information is being disclosed.

(3) One could argue a "false light" invasion of privacy theory, claiming that the use of Leiter's name would suggest to some readers that he is the one posting to the site, but I strongly doubt readers would draw such an inference, given the site's obvious content.

Am I mistaken? Are there some special Texas doctrines that cut in Prof. Leiter's favor? Please post only if you are knowledgeable about tort law; I'm curious what the legal rules are, not what they in theory ought to be. (The ethics of the situation, as opposed to the law of it, are also a separate matter that I leave aside for this post.)

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Massachusetts holds the line:

The highest court in Massachusetts has rejected the argument of out-of-state same-sex couples that they should be allowed to marry in Massachusetts even though their home states don't recognize such marriages. Problem with their argument is, a 1913 Massachusetts statute forbids such marriages. I haven't reveiwed the decision yet, so I can't say whether this is the right call as a matter of state statutory or constitutional law.

What I can say is that it is the pro-federalism result, buttressing the pre-existing power of the states to take their own path on the issue of gay marriage. Many opponents of gay marriage have argued that we need a federal marriage amendment to prevent gay couples from getting married in jurisdictions that recognize such marriages (for now, just Massachusetts) and then returning to their own home states to demand full recognition ("evasion" marriages). This argument was never a very good one, and today's decision reduces its force even more.

Of course, the "evasion" marriages foreclosed by today's decision are not the only means by which inter-state recognition of gay marriage might spread. The fact that some 6,000 gay couples are now married in Massachusetts guarantees that some of them will move out of the state and ask their new states to recognize their marriages, or at least ask that their marriages be recognized for some purposes (e.g., in a custody or property dispute). These cases will raise different, and much harder, questions than the one disposed of today.

But one part of the argument for a federal amendment has now been weakened. To the extent the decision today releases some of the hydraulic pressure for a federal amendment, what looks superficially like a small defeat for gay-marriage advocates may turn out to be a small victory for them.

19 Comments
NYU Violated Its Own Expressed Policies in the Cartoon Case:

From the NYU Students' Guide, Guidelines Regarding Protest and Dissent (p. 208, PDF page 116) (emphasis added):

A. Commitment and Responsibilities of the University. New York University is committed to maintaining an environment where open, vigorous debate and speech can occur. This commitment entails encouraging and assisting University organizations that want to sponsor speakers as well as informing members of the University community who seek guidance concerning forms of protest against speakers. It may also involve paying for extraordinary security measures in connection with a controversial speaker. Consistent with these obligations, the University promulgates these Guidelines, which are intended to be applied without regard to the content of any proposed speaker’s speech.

The policy also goes on to recognize that NYU groups are entitled to invite people from outside NYU, so long as "the sponsoring organization ... provide[s] that at least a majority of the seats be available to the University community or portion thereof, as the case may be."

This incident is a pretty sad commentary on the values of the NYU administration, it seems to me.

For a report on the event, see Right Wing Reason.

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Free Speech and Tort Lawsuits Over Attacks on Bookstores:

Here's a tort law / constitutional law question, by the way, though please answer it only if you are a lawyer or legal researcher who is knowledgeable enough in the doctrine -- I'm not looking for abstract generalities, but concrete arguments based on current American legal rules:

Say that Borders or NYU decides to distribute the cartoons, or allow a meeting that displays the cartoons; and say that thugs respond with violence, which injures a patron or a student. (I set aside for the sake of simplicity injuries to employees, since, to my knowledge, damages claims against employers over such incidents would generally be governed by worker's compensation plans rather than tort law.)

Should Borders and NYU be held liable based on the theory that they negligently failed to employ extra security to protect against? Or should they have a First Amendment defense, because the tort theory underlying that lawsuit essentially imposes a tax on those who distribute highly controversial speech? Cf., for whatever it's worth, Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) (emphasis added), which struck down a policy under which parade organizers had to pay a permit fee (of up to $1000) based in part on the expected policing costs that stemmed from how controversial the parade would be:

The county envisions that the administrator, in appropriate instances, will assess a fee to cover "the cost of necessary and reasonable protection of persons participating in or observing said . . . activit[y]." In order to assess accurately the cost of security for parade participants, the administrator "'must necessarily examine the content of the message that is conveyed,'" estimate the response of others to that content, and judge the number of police necessary to meet that response. The fee assessed will depend on the administrator's measure of the amount of hostility likely to be created by the speech based on its content. Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit.

Although petitioner agrees that the cost of policing relates to content, contends that the ordinance is content neutral because it is aimed only at a secondary effect -- the cost of maintaining public order. It is clear, however, that, in this case, it cannot be said that the fee's justification "'ha[s] nothing to do with content.'"

The costs to which petitioner refers are those associated with the public's reaction to the speech. Listeners' reaction to speech is not a content-neutral basis for regulation. Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.

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Fear of Extremist Muslim Violence Suppresses Speech in the U.S.:

The AP reports:

Borders and Waldenbooks stores will not stock the April-May issue of Free Inquiry magazine because it contains cartoons of the Prophet Muhammad that provoked deadly protests among Muslims in several countries.

"For us, the safety and security of our customers and employees is a top priority, and we believe that carrying this issue could challenge that priority," Borders Group Inc. spokeswoman Beth Bingham said Wednesday.

The magazine, published by the Council for Secular Humanism in suburban Amherst, includes four of the drawings that originally appeared in a Danish newspaper in September, including one depicting Muhammad wearing a bomb-shaped turban with a lit fuse....

I have some sympathy for Borders here. It seems to me that leading bookstores, like leading universities, need to take some risks -- and, yes, even risks that involve potential risks to customers and employees -- in order to protect the marketplace of ideas that sustains them. Nonetheless, I can certainly see why Borders might worry about this risk.

The real point here, though, is that speech suppression caused by the threat of extremist Muslim violence has come to the U.S. We are all Danes now. What is the West, and what are we, going to do about it?

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More on Gesturegate:

The Boston Herald reports:

“It’s inaccurate and deceptive of [Justice Scalia] to say there was no vulgarity in the moment,” said Peter Smith, the Boston University assistant photojournalism professor who [photographed Justice Scalia's gesture]....

Smith said the jurist “immediately knew he’d made a mistake, and said, ‘You’re not going to print that, are you?’” ...

Smith was working as a freelance photographer for the Boston archdiocese’s weekly newspaper at a special Mass for lawyers Sunday when a Herald reporter asked the justice how he responds to critics who might question his impartiality as a judge given his public worship.

“The judge paused for a second, then looked directly into my lens and said, ‘To my critics, I say, ‘Vaffanculo,’” punctuating the comment by flicking his right hand out from under his chin, Smith said.

The Italian phrase means “(expletive) you.”

Yesterday, Herald reporter Laurel J. Sweet agreed with Smith’s account, but said she did not hear Scalia utter the obscenity.

In his letter, Scalia denied his gesture was obscene and claimed he explained its meaning to Sweet, a point both she and Smith dispute.

Scalia went on to cite Luigi Barzini’s book, “The Italians,” which describes a seemingly different gesture -- “the extended fingers of one hand moving slowly back and forth under the raised chin” -- and its meaning -- “‘I couldn’t care less. It’s no business of mine. Count me out.’” ...

The gesture typically means “I don’t know” in Portugal, “No!” in Naples, “You are lying” in Greece and “I don’t give a damn” in northern Italy, France and Tunisia, said David B. Givens of the Center for Nonverbal Studies ....

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The GMU Economics Department and Moneyball (Yes, Them Too):

One fun thing about GMU's Final Four run is that it has caused the national spotlight to fall on some of the centers of excellence here at GMU that had previously been little-known, including, of course the law school, but other programs as well.

Another area, known to VC readers through our co-conspirator Tyler Cowen, is the GMU Economics Department. There have been a number of excellent articles about our colleagues in the Econ Department in recent days. Two especially good articles describing the rise of GMU's Economics Department are in the Washington Post (focusing on Peter Boettke, Robin Hanson, and Vernon Smith's work) and the Philadelphia Inquirer (focusing on Jim Buchanan's work). Many readers may have already seen Peter Boettke and Alex Tabarrok's article in Slate that explains the success of GMU's Economics Department as well.

Given the close relationships between the Law School and the Economics Department (we often co-teach classes and several Econ professor teach in the law school), readers will not be surprised to learn that Boettke and Tabarrok attribute the success of GMU's Economics Department to following a Moneyball strategy, a model that at least one GMU Law Professor extolled as the secret to the Law School's success (the full text of John J. Miller's article on GMU Law is now available here). In fact, I was the guy who first lent Pete a copy of Moneyball to read a few years ago, so I figure I am allowed to chime in a bit here. While I might quibble a bit with some of their application of the model I think their analysis is basically sound.

I would add just one further point of elaboration to their Moneyball analysis of the basketball program. I heard Coach Larranaga on the radio this week addressing the precise question of how he managed to find these kids on the team who were overlooked by the larger schools. Larranaga suggested that he just looks for something different from what the big programs are looking for in a player. Larranaga says that rather than just looking for kids with the best individual skills, who all the big-name programs focus on, he looks for kids who come from winning high school programs. The idea is to find kids who are know how to win and are willing to do what it takes to win, which means working hard, listening to the coach, and playing as a team. First he mentioned this stunning statistic that Will Thomas and Rudy Gay both went to high school in Baltimore and that Thomas's teams are now 8-0 playing against Gay's teams in their careers. He then proceeded to list the key players on the team, noting that every one of them (if I remember correctly) had played for a state champion or major city champion in high school. Larranaga indicated that he thought that it was this intangible commitment to winning that accounts for the selflessness of the team in terms of sharing the ball, running the game plan, playing defense, and doing the hard work to win. If this is true, it is a fascinating observation that commitment to winning (versus raw talent) is an undervalued attribute in the modern basketball marketplace.

So I think that the interesting point here is that Larranaga suggests that even now the big-time programs probably wouldn't really want any of these GMU kids because they are not the individual superstars with brilliant talent that those teams are looking for. So it is not that somehow those programs "missed" these kids, but rather that those programs have a different model of talent acquisition. It is only when melded together in Larranaga's system, with the emphasis on the way in which their individual skills complement one another within the system, that their total value is maximized.

Those interested in the relatively new JD-PhD Economics Joint Degree Program and the LLM in Law & Economics Progra at George Mason can find more information here.

As for me, I am off tomorrow for Indianapolis and the Final Four. Thanks for indulging my occasional sports post around here over the past week or two.

Go Mason!

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Iranian teenager to be executed for self-defense against a rapist:

Amnesty International reports this case from Iran:

On 3 January, 18-year-old Nazanin was sentenced to death for murder by a criminal court, after she reportedly admitted stabbing to death one of three men who attempted to rape her and her 16-year-old niece in a park in Karaj in March 2005. She was seventeen at the time. Her sentence is subject to review by the Court of Appeal, and if upheld, to confirmation by the Supreme Court.

According to reports in the Iranian newspaper, E’temaad, Nazanin told the court that three men had approached her and her niece, forced them to the ground and tried to rape them. Seeking to defend her niece and herself, Nazanin stabbed one man in the hand with a knife that she possessed and then, when the men continued to pursue them, stabbed another of the men in the chest. She reportedly told the court “I wanted to defend myself and my niece. I did not want to kill that boy. At the heat of the moment I did not know what to do because no one came to our help”, but was nevertheless sentenced to death.

Human rights activists have created an on-line petition to save Nazanin's life. I've signed the petition, and I urge all readers to do the same.

Amnesty International points out that the execution would violate Iran's obligations under the International Covenant on Civil and Political Rights (ICCPR) and the Convention on the Rights of the Child (CRC).

However, the AI argument appears to have a significant weakness. When ratifying the CRC, Iran also made the following reservation: "The Government of the Islamic Republic of Iran reserves the right not to apply any provisions or articles of the Convention that are incompatible with Islamic Laws and the international legislation in effect." I have not found information indicating that Iran made any reservation when ratifying the ICCRR, which also bars executions for crimes committed when the perpetrator was under the age of 18.

According to a modern summary of Islamic law:

There is a natural right to self-defense. One may defend oneself from a criminal act that poses an imminent threat to person or property, but only necessary force may be used. An intruder who might be repelled with a stick may not be shot and killed; neither may one pursue an intruder who has retreated and is no longer a threat. Violation of the limits of self-defense is aggression and renders one criminally liable.

Matthew Lippman, Sean McConville & Mordechia Yerushalmi, Islamic Criminal Law and Procedure: An Introduction (Westport, Conn.: Praeger, 1988), p. 56.

The above-quoted scholars appear to be consistent with the view of the nineteenth century Islamic jurist Ulaysh, who "wrote that all jurists have always agreed that Muslims have the right to defend their life and their property." (Quoted from Khaled El Fadl, Rebellion & Violence in Islamic Law (Cambridge: Cambridge Univ. Pr., 2001), pp. 334-35.) El Fadl's quote is consistent with the practice of many Islamic nations of denying dhimmi (non-Muslims) any right to defend themselves against Muslims, or to possess arms. (See Bat Ye'or's books for details.) However, the dhimmi exception to self-defense does not appear to be relevant in the Nazanin case.

So I have two starting questions for commenters: For those of you who can read Persian, is there any evidence from the Iranian press, or other media, suggesting that Nazanin was not actually acting in self-defense, or that her use of deadly force was legally excessive?

Second, for readers familiar with Shari'a law, are there any legal precedents suggesting that a female teenager acted by stranger rapists would not possess the ordinary Muslim's right to self-defense?

Third--and this question is for everyone--are there international law arguments that the Iranian government cannot lawfully abrogate the right to self-defense? Europe's Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221, E.T.S. 5, 1955), art. 2 (2)), and the Rome Statute of the International Criminal Court (U.N. Doc. A/CONF.183/9, art. 31) both recognize a right of self-defense, but of course neither document is applicable to domestic Iranian law.

Are there other international treaties which recognize a right of personal (rather than national) self-defense? Are any of these applicable to Iran?

In addition to positive international law, a defender of Nazanin might also argue from customary international law. Below is a sketch of one such argument, based on my own research. I invite commenters with international law expertise to amplify, correct, and otherwise suggest improvements or flaws in the argument.

1. Even in the absence of positive enactments, humans have certain fundamental rights which no government can violate. (See, e.g, Grotius, Vittorio, Locke, Declaration of Independence).

2. In extreme cases, a government which violates those fundamental rights can be overthrown, and the perpetrators of the rights violation can be punished. A person who denies the previous sentence must necessarily conclude that the Nuremberg and Tokyo war crimes trials were illegal, since, for example, there was no positive law forbidding the genocide at the time the Germans and Japanese perpetrated genocide.

3. Even if ex post facto principles about positive law made it unjust to punish some of the Germans and Japanese, it was still lawful for the Allies (even putting aside issues of national self-defense and treaty obligations towards countries such as Poland) to attempt to interfere with on-going violations of fundamental human rights by the Japanese and Germans.

4. Even if there were no right to interfere or punish, a person in, say 1938, could correctly say "The German and Japanese governments are in violation of international law, because they are violating many fundamental human rights of their subjects, including rights which have always been regarded as fundamental by the vast majority of mankind throughout recorded history."

5. Self-defense is a fundamental human right, and has been so regarded by the vast majority of mankind throughout recorded history. For example, the right of self-defense is recognized by ancient and modern Jewish law, by the Catholic law which formed the basis of Western law (and which was predicated on the recognization of self-defense rights by ancient Greece, ancient Rome, and the Byzantines), by the great Protestant religious philosophers who shaped the United Kingdom, by the American revolutionaries, and by all the major religions of Asia.

Note: Although some Christians and Buddhists have believed that a truly enlightened person should not engage in self-defense, non-resistance was always presented as a higher moral choice, and there was no suggestion (at least until quite recently in the West), that the government should forbid self-defense.

6. The above litany of sources recognizing a right of personal self-defense is illustrative, rather than exhaustive. (Commenters are invited to supply additional sources, of the type traditionally cited in international law.)

7. The right of self-defense has been recognized by the overwhelming majority of all legal systems throughout human history. The only known exceptions are those which obviously relate to very special circumstances (e.g., prisoners against guards; soldiers against superior officers), or which, by their very nature, are so odious as to shock the conscience (e.g., Japanese peasants forbidden to resist Samurai; tyrannies; slaves; persecuted religious or ethnic groups). The fact that no known legal system has (outside of special cases) ever denied self-defense rights except in circumstances which are self-evidently odious is further proof that customary law has, from time immemorial, recognized a right of self-defense.

8. The parameters of the right to self-defense have varied over time, but, at the very least, they have always included the right of a chaste woman to resist rape by strangers who have no relationship of any sort with the woman or her family. (The historical exceptions to a woman's right to resist rape are in themselves odious, but they appear to be irrelevant to the Nazanin case.)

9. Deadly force may be used to resist rape, if no lesser force will suffice.

10. The right to resist rape also includes the right to use force to protect a close relative from being raped.

The above statements represent my current understanding, but I welcome clarifications from commenters about circumstances in which the above statements might be untrue--such as legal codes which forbade self-defense, or forbade deadly force as a last resort against a rapist.

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Choosing Higher Educational Institutions:

A few loose thoughts, in response to the recent posts about this:

1. Most students, especially undergraduates -- even most smart and politically engaged ones -- generally know a little of the thinking in their own political camp, and less in the opposite camp. A few know a decent amount of the thinking in their own political camp, and a small amount in the opposite camp. All of them would therefore most benefit intellectually (all else being equal) from going to a place where they can hear important views from both sides, both formally in class and informally in interactions with classmates.

2. Entering undergraduates and law students should thus seek a place that is not only respectful of conservatives and libertarians, but (a) has a real mix of opinion among professors and students, and (b) has an intellectual and social climate that makes students and professors willing to speak out whether they are liberal, conservative, or libertarian. I suppose this puts me closest to Ilya, though I doubt that David or Orin would disagree with Ilya and me much on this.

3. I'm not sure about this, but I suspect that when people are entering a Ph.D. program, the matter is quite different. Here their work is likely to be much more closely and aggressively evaluated; and while in undergrad and law school you can just, if necessary, give the professor what he wants on the exam, doing that with your Ph.D. work is much more burdensome. I suspect that you would therefore want to go to a program where many on the faculty really respect the school of thought to which you belong (in the sense of thinking that it has a great deal of merit, even if they don't agree with many of its bottom-line conclusions), where some actually adhere to this school of thought, and where some strongly disagree with it and can thus help you improve your arguments.

40 Comments

Wednesday, March 29, 2006

[Ilya Somin (guest-blogging), March 29, 2006 at 10:03pm] Trackbacks
Political Ignorance and Israeli Coalition Politics II:

See here for an update on negotiations to form the postelection Israeli coalition government. As I predicted in my previous post on the subject, Prime Minister Ehud Olmert and his Kadima Party are trying to form a coalition with the left-wing parties. Free market advocates, however, may be heartened by Kadima's refusal (so far) to let the socialistic Labor Party have the Finance Ministry and its rejection of Labor's proposal for a massive increase in the minimum wage.

At the same time, Olmert says he's leaving open the possibility of allying with the right-wing parties instead. I suspect that he's bluffing. As I noted in my earlier post, these parties categorically oppose Kadima's main policy objective: unilateral Israeli withdrawal from much of the West Bank.

Whether I'm right about Olmert or not, the fact remains that Israeli party leaders have a strong incentive to keep their true coalition preferences secret, or at least be highly ambiguous about them. If, for example, Olmert were to reveal that he prefers a coalition with Labor, that would greatly increase Labor's bargaining power in the negotiations and weaken Kadima's. Such incentives for secrecy make it even more difficult for voters to accurately predict what kind of coalition government is likely to result from an election. This problem further exacerbates the knowledge burdens that a PR system imposes on voters.

Related Posts (on one page):

  1. Political Ignorance and Israeli Coalition Politics II:
  2. Political Ignorance and Israeli Coalition Politics:
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One more Post on Respect for Conservative and Libertarian Students:

I'm wondering if all the individuals stating in various threads that conservatives and libertarian students who are concerned about whether they will be living and studying in a respectful environment should "get over it" would have the same attitude about someone who posted something like the following: "I live in the South and my 17 year old daughter's an outspoken feminist, and she's looking for a school not too far from home where she'll be treated by faculty and fellow students with respect, even if she's in the minority." Would they tell him to tell his daughter to "get over it" "suck it up" and just go the nearest intolerant right-wing religious college to hone her ideology? Even if she heard that feminists at that college get death threats, get downgraded by professors for their views, have the administration throw away the feminist paper, and otherwise suffer the indignities conservatives sometimes suffer at elite liberal arts colleges?

UPDATE: I've learned from the comments below that some posters apparently think that opposition to campus feminism inherently signifies hostility to women, that conservatives should never complain about any sort of mistreatment on campus because they control the three branches of the federal government, and that merely pointing out that conservatives are sometimes treated disrepectfully (and I haven't even given the most common example of the heckling of speakers) on certain campuses is "whining" and "hysteria about persecution."

Honestly, given this reaction arising from an initial innocuous question of which elite campuses are more or less open to conservative and libertarian views,* does one really have to wonder why a conservative or libertarian (or merely open-minded) prospective student would want to check out the campus environment before enrolling?

*More specifically, I asked which schools are "'safe'for politically active and or outspoken conservatives and libertarian students in the sense that students and faculty will generally treat them respectfully, even if they are a small minority."

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Credibility:

Max Sawicky e-mailed me asking me to post about alleged FBI malfeasance. Here's the post he pointed me to:

FBI AS GESTAPO: OPPRESSING THE KURDS OF HARRISONBURG, VIRGINIA

The following is something that has not hit the media at all, other than a story in the Harrisonburg Daily News-Record that simply repeated FBI propaganda about this awful case. Harrisonburg, Virginia happens to have one of the largest enclaves of Iraqi Kurdish population in the US. They all came in the late 1990s to flee from Saddam Hussein's regime after working for pro-US NGOs and having their lives threatened. They applauded at the fall of Saddam.

However, four of them have been arrested for transferring funds to their families and charitable organizations in Iraqi Kurdistan without a license, a felony offense under the Patriot Act and the act to keep Cubans from sending money to their relatives in Cuba. One has been convicted in a trial in which most of the evidence was not allowed and in which the FBI suggested that the defendant was a terrorist. These people were cowed into not talking to the media, and now they are all in deep trouble. Their homes have been raided, their money seized, even things like medical insurance cards (with one wife pregnant), applications for citizenship are off, they are facing deportation, and so on. They were assigned a Croatian translator for the court. There is a serious string of outrages associated with this with no coverage by any serious media. The FBI agent in charge even told them, "I know you are not the bad guys, but too much paperwork has gone forward on this."

If you are interested in helping these people out, the following are contacts....

InstaPundit likewise links to this, noting "MAX SAWICKY says that the FBI is oppressing the Kurds in Virginia. Sounds like this could use some more scrutiny." [UPDATE: I should note that the post is from the MaxSpeak site, but was written by Max Sawicky's coblogger Barkley Rosser.]

It's certainly quite possible that the FBI is misbehaving. But the question is whether this is in fact so; and the post gives me very little to go on here. It gives a few facts, and no links to original sources or press accounts. It does give lots of opinion — but the opinion is expressed in such an overwrought way, starting with the "Gestapo," that it makes me wonder how much other embellishment there may be in the factual discussion (or how many important facts are omitted).

Sometimes you decide that your enemies are Nazi-like because you know they've done some very bad things. But sometimes your judgment that your enemies have done some very bad things is colored by your assumption that your enemies are Nazi-like. And often there's a complicated positive feedback loop: You see them doing something that looks bad, you get outraged, and your initial outrage clouds your further judgment about the other facts you learn.

Now if I knew the poster well personally, and knew him to be trustworthy — or had lots of experience of his trustworthiness from his past posts — I might trust his judgment even without much factual details. If I knew that he was almost always calm and understated, then his calling someone the "Gestapo" would actually be an important signal that there really was something very bad likely happening.

But if someone doesn't have such preexisting credibility with me, then his using rhetoric about the "Gestapo" only makes his factual characterizations less credible in my eyes rather than more. And I would expect the same would be true of many other readers, including many who read this site and who might follow its links to other sites.

So the best way to make a case — a case which may well be very justified and important, if it is indeed factually sound — that someone is misbehaving is to give (1) lots of factual details (what exactly is the law involved? does it really ban the mailing of any money to anyone in Iraq? what evidence wasn't allowed and why? what was the FBI's basis for suggesting that the defendant was a terrorist?), (2) as many supporting documents as possible, (3) as many links to presumptively neutral sources as possible, while (4) avoiding even slight rhetorical exaggerations that might cast doubt on the precision of the other material. Maybe I'm mistaken on this; but it seems to me to be much more effective for the author's cause, and much more valuable for readers' enlightenment.

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Latest NYU Panel Development:

FYI
PRESS ADVISORY
AYN RAND INSTITUTE
2121 Alton Parkway, Suite 250, Irvine, CA 92606

TONIGHT’S NYU FREE SPEECH EVENT IS OPEN TO THE PRESS
In order to allow entry to non-NYU guests, the student organization sponsoring this event has been forced by NYU administrators to NOT display the Danish cartoons. The panel discussion on free speech will nevertheless proceed as planned.

Pretty sad.

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Where Should Conservatives and Libertarians Go To School?: David's posts about identifying schools conservatives and libertarians will find safe and respectful raises an interesting question: If you are conservative or libertarian, are you better off going to a school with lots of other conservatives or libertarians? We can ask the same question on the other side: If you identify as progressive, should you look for schools with lots of progressives?

  My own take may be idiosyncratic, but let me put in a plug for attending an institution that does not share your basic ideological outlook. I think we can all agree that an open and respectful environment is essential. But beyond that, I think there are real educational benefits to being outside your ideological comfort zone. In my experience, at least, we tend to learn most when we are challenged; being forced to explain why you think how you think is the best way to improve your thinking. As an old boss of mine used to say, "If everyone is thinking the same thing, no one's thinking much."
56 Comments
Quote of the Day:

GMU Law School dean Dan Polsby on a request from the Provost that professors take into account student exuberance over GMU's Final Four appearance: "In law school we're taught to respect the activities that go on in court, and that includes the basketball court."

(Dean Polsby added, however, that at the law school "we’re not cutting our students any slack at all under any circumstances.")

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[Ilya Somin (guest-blogging), March 29, 2006 at 3:54pm] Trackbacks
The Real Harm of Campus Political Correctness

The issue of intolerance for conservative and libertarian viewpoints on campus, raised by David's post below, is often discussed in terms of the harm to the students who suffer for expressing their views. The more serious problem, however, is the impact on the quality of discourse on campus for students of all ideologies.

It is true that the vast bulk of the retaliation faced by students who express locally unpopular right-of-center views on intolerant campuses is relatively minor - social ostracism, petty harassment by the administration, and so forth. Most of the people involved will suffer little if any lasting damage. However, many will choose to keep quiet if the price of expressing their views is petty harassment or ostracism.

We can, if we want to, criticize these people and argue that they should be willing to take more risks. The practical reality, however, is that many (perhaps most) people care more about their social standing and about avoiding even minor harassment than they do about expressing their views on political issues. The predominantly leftist schools I attended were, on the whole, far more tolerant and open than 1980s Brandeis was, as David describes it. I usually said what I thought and didn't worry too much about the consequences (some of my classmates would say that I worried too little:)). Even so, I knew quite a few conservative (and even some moderate) students who kept their views to themselves for fear of hostile reaction.

The result may be a campus environment where debates about controversial issues such as abortion, race, or other matters will be one-sided because most of the adherents of the opposing view are keeping quiet. This reduces the quality of debate (and education) for all students, including those who adhere to the dominant view. The point applies to the expression of left-wing views at intolerant conservative institutions as much as the reverse. It just so happens that we have far more predominantly left of center schools than right of center ones. Thus, there is good reason to worry about political intolerance on campus even if we don't care much about the hurt feelings of conservative or libertarian students.

UPDATE: Some of those who claim that campus intolerance of conservatives and libertarians is not a significant problem argue that right of center students are themselves obnoxious, intolerant, and so forth. If there really is an overrepresentation of such people among outspoken campus right-wingers, this fact may itself be the result of PC intolerance. If speaking out in favor of un-PC viewpoints can lead to social ostracism, an obnoxious jerk is less likely to be deterred by this danger than a conservative who is generally nice and popular. After all, the jerk is probably already widely disliked, while his more popular counterpart has much more to lose from any PC backlash to his remarks.

23 Comments
NYU Mohammed Cartoons Event Effectively Closed to the Press:

Canonist reports, apropos NYU's closing of the Mohammed cartoons event to off-campus visitors:

UPDATE: A notice just went out over the AP that the event tonight is closed to the press. I called FIRE to ask what happened, and they said that NYU was closing the event to anyone who didn’t register before noon yesterday. That is essentially shutting out the press, as in all likelihood few even heard of the event until yesterday afternoon. As anyone covering the City knows, even an appearance by Bill Clinton requires a pre-registration of at most a few hours.

0 Comments
[Ilya Somin (guest-blogging), March 29, 2006 at 2:39pm] Trackbacks
Political Ignorance and Israeli Coalition Politics:

One of the major themes of my academic work is that modern democracies suffer from a serious problem of political ignorance (see, e.g., here and here). Most voters are "rationally ignorant." Because there is so little chance that any one vote is going to be decisive in an election, individual voters have almost no incentive to learn about the competing parties and their policies, and as a result it is rational for them to devote very little effort to acquiring political knowledge (except for the few who have reasons for doing so unrelated to improving the "quality" of their votes).

In a proportional representation (PR) system such as that in Israel, the problem may be even worse than in the US. Voters in a PR system need to know not only what the policy differences between the parties are, but also what effect voting for a particular party will have on the resulting coalition government that emerges from an election. In some cases, voting for a right-wing party might actually increase the chance of creating a more left-wing coalition government or vice versa.

Yesterday's Israeli election is a good example of this. In order to form a government, Israeli politicians must put together a coalition with at least 61 seats in the 120 seat parliament. Yesterday, the centrist Kadima Party got 28 seats, while right-wing parties (Likud, NU-NPR, Yisrael Beteinu) got 32, and parties to the left of Kadima got 31 (Labor 20, Meretz 4, Pensioner's Party 7). Various special interest parties, got most of the remaining seats. Kadima is unlikely to form a coalition with the right-wing parties because these parties oppose Kadima's central policy agenda: unilateral withdrawal from large parts of the West Bank. But because Kadima got only 28 seats, they will almost certainly have to form a coalition with the Labor Party (20) and perhaps other leftist parties as well. Had more right-wing voters picked Kadima rather than the parties closer to their views, Kadima might have won enough seats (say 40) to be able to form a government without Labor (which many Kadima leaders would have preferred to do), and therefore a government that would be less leftist.

Ironically, by voting for right-wing parties instead of Kadima, Israeli rightists may well have ensured a more left-wing government than would have resulted from their voting for Kadima instead! They "achieved" the opposite result from the one they probably intended. I suspect that this occurred at least in part because Israeli right-wing voters (like most other voters in PR systems) simply had insufficient incentive to put in the time necessary to think systematically about the impact of picking a particular party on the resulting coalition.

The extra knowledge burden imposed by the need to calculate coalition possibilities is an important (and generally ignored) weakness of PR electoral systems.

Related Posts (on one page):

  1. Political Ignorance and Israeli Coalition Politics II:
  2. Political Ignorance and Israeli Coalition Politics:
22 Comments
"Respect" for Conservative and Libertarian Students:

Some commentators seem to have misinterpreted my rather clear (I think) post below as suggesting that I was looking for suggestions of colleges where conservatives and libertarians find themselves immune from criticism. Nothing of the sort; I said "where students and faculty will generally treat them respectfully," and that's what I meant. For example, I would consider the following actions disrepectful, or worse: (1) receiving death threats because someone was offended by what you wrote for the school paper (2) having someone come up to your girlfriend, while your standing right next to her, and asking, "are you his girlfriend?" and when she says, "yes," responding, "do you realize he's a Republican?" (3) having the Administration refuse to abide by its own rules and regulations when conservative or libertarian students engage in activities they find offensive or merely annoying (e.g., throwing out the campus conservative magazine so students visiting campus on prospective students' weekend won't see them)

I witnessed all of these events, and more, at Brandeis as an undergrad. And I still enjoyed Brandeis, and I'm certainly not asking anyone to feel sorry for me, but if you would ask me if I would rather have attended somewhere with that sort of environment, or an environment in which I was treated with respect, the answer is obvious. Various 17 year-olds and their parents feel the same way, which is why I get asked the question. Personally, I didn't know any better when I was 17, wrongly assuming that since I was going to a "liberal" environment, that meant it would be a tolerant environment.

So How Does One Submit a Correction Request to the AP?

 

UPDATE: Just to be clear, the only error that I suggested the AP made is the one noted below: The AP story said that, despite Scalia's allegation that the Herald had called him an "Italian jurist," "The Herald had referred to him as an 'Italian-American jurist.'" In fact, an online version of the article did refer to him as an "Italian jurist."

Related Posts (on one page):

  1. More on Gesturegate:
  2. So How Does One Submit a Correction Request to the AP?
  3. The AP on the Boston Herald and Gesturegate:
  4. Justice Scalia on Gestures:
19 Comments
The AP on the Boston Herald and Gesturegate:

The AP writes about Justice Scalia's response to the Boston Herald story:

Scalia said in the letter, written to Executive Editor Kenneth Chandler, that the reporter leapt to conclusions that it was offensive because he initially explained his gesture by saying, 'That's Sicilian.'"

"From watching too many episodes of the Sopranos, your staff seems to have acquired the belief that any Sicilian gesture is obscene -- especially when made by an 'Italian jurist.' (I am, by the way, an American jurist.)," he wrote.

The Herald had referred to him as an "Italian-American jurist."

Funny that Justice Scalia would have misquoted the Herald story that he was criticizing that way, no? Except that here's a quote of the Herald story from the Boston Herald Web site:

“That’s Sicilian,” the Italian jurist said, interpreting for the “Sopranos” challenged.

The NEXIS version of the story says "Italian-American," and perhaps the print version said the same. But it seems wrong to implicitly fault Justice Scalia for misquoting the story when he quoted one version (quite likely the most easily accessible one) correctly. ("The Herald had referred to him as an 'Italian-American jurist,'" in context, seems like an assertion that it had referred to him as that rather than as what Scalia quoted -- an assertion that proves to be incorrect.)

13 Comments
Justice Scalia on Gestures:

UPI originally reported that "U.S. Supreme Court Justice Antonin Scalia startled reporters in Boston just minutes after attending a mass, by flipping a middle finger to his critics." It then revised the story to say that "U.S. Supreme Court Justice Antonin Scalia startled reporters in Boston just minutes after attending a mass, by making a hand gesture some consider obscene." Other media outlets may have done the same; UPI is just the first that I had found. I had originally heard the "flipping a middle finger" story myself.

Here's Justice Scalia's reply, which I think is a fun read as well as an important correction (thanks to How Appealing for the pointer):

To the Editor:

It has come to my attention that your newspaper published a story on Monday stating that I made an obscene gesture — inside Holy Cross Cathedral, no less. The story is false, and I ask that you publish this letter in full to set the record straight.

Your reporter, an up-and-coming “gotcha” star named Laurel J. Sweet, asked me (o-so-sweetly) what I said to those people who objected to my taking part in such public religious ceremonies as the Red Mass I had just attended. I responded, jocularly, with a gesture that consisted of fanning the fingers of my right hand under my chin. Seeing that she did not understand, I said “That’s Sicilian,” and explained its meaning — which was that I could not care less.

That this is in fact the import of the gesture was nicely explained and exemplified in a book that was very popular some years ago, Luigi Barzini’s The Italians:

“The extended fingers of one hand moving slowly back and forth under the raised chin means: ‘I couldn’t care less. It’s no business of mine. Count me out.’ This is the gesture made in 1860 by the grandfather of Signor O.O. of Messina as an answer to Garibaldi. The general, who had conquered Sicily with his volunteers and was moving on to the mainland, had seen him, a robust youth at the time, dozing on a little stone wall, in the shadow of a carob tree, along a country lane. He reined in his horse and asked him: ‘Young man, will you not join us in our fight to free our brothers in Southern Italy from the bloody tyranny of the Bourbon kings? How can you sleep when your country needs you? Awake and to arms!’ The young man silently made the gesture. Garibaldi spurred his horse on.” (Page 63.)

How could your reporter leap to the conclusion (contrary to my explanation) that the gesture was obscene? Alas, the explanation is evident in the following line from her article: “‘That’s Sicilian,’ the Italian jurist said, interpreting for the ‘Sopranos’ challenged.” From watching too many episodes of the Sopranos, your staff seems to have acquired the belief that any Sicilian gesture is obscene — especially when made by an “Italian jurist.” (I am, by the way, an American jurist.)

Sincerely,

Antonin Scalia

24 Comments
Misquoted by a Federal Bankruptcy Judge?

Much to my surprise and dismay, it appears that I have been badly misquoted by Federal Bankruptcy Judge (and former law professor) Bruce Markell regarding my testimony before the Senate Judiciary Committee regarding BAPCPA. Not only did Judge Markell grossly take my words out of context in a published judicial opinion but I understand that he did the same thing in a recent speech to the a local bankruptcy lawyers association (as reported to me by a person present at the talk). Now I have tracked down the full transcript of the Hearing, so I wanted to set the record straight here.

Here's what Judge Markell wrote in his opinion in In re Kane, 336 B.R. 477 (Bankr. D. Nev. 2006) (I couldn't find the opinion on-line other than in Westlaw) at page 481:

This court concurs with Judges Mark and Riegle--the cap applies to all debtors who do not satisfy the 1,215-day rule--but for different reasons than either of them advanced. Whether the text is ambiguous or not, it is still possible to consider and implement what Congress unambiguously intended and to overcome the drafters' unfortunate choice of words. [FN7]

FN7. Section 522(p) is one of many examples of poor drafting in the new bankruptcy law, which Professor Todd Zywicki assured the Senate Judiciary Committee was "fine as it is," adding, "There is no word that I would change in this particular piece of legislation." SEN. JUD. COMMITTEE, Hearing on S. 256: Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, 109th Cong., unofficial transcript (March 10, 2005).

Judge Markell quotes me as suggesting that I somehow created a warranty with respect to the exact drafting of the statute (which was about 400 pages long as enacted). It is clear from reading the full transcript and the context in which this exchange took place that Judge Markell has crudely taken my comments out of context. In fact, my comments referred to a completely different question, namely whether the fact that the bankruptcy reform legislation had been pending for eight years at the time of the hearing meant that the draft was obsolete in light of changes in the economy and the bankruptcy system during that time. There was no discussion at all about particular drafting glitches or errors, either in Senator Feingold's questions or my responses.

Here's the relevant passages from the Hearing transcript.

SENATOR FEINGOLD: Professor Zywicki, as you know, I have mentioned that the Bankruptcy Act was fist introduced eight years ago, and you have long supported it. However, as Professor Warren has stated, the eight years since this bill was introduced have seen many developments with significant implications for bankruptcy law. Furthermore, we now have significatly more data about who files for bankruptcy and why they do than when the bill was first introduced.

Given all of the things that have changed since the original bill was drafted and given all the new information that has emerged sicne that time, is there anything about this bill that you think should be changed, or do you endorse S. 256 without any adjustments whatsoever?

There are two key contextual points here. First, the argument that "the world has changed in the past eight years" was the key procedural element of Professor Warren's testimony during this Hearing and a point made repeatedly by opponents of the bill during the Hearing and legislative process. Her testimony is available here. In particular, it was noted that during that period of time after the legislation was originally introduced (1997) had all of the big Chapter 11 "scandal" bankruptcies, such as WorldCom and Enron, which the bankruptcy reform legislation didn't address in a major way. Second, the reference to "significantly more data on who files bankruptcy" refers to the "Health Related Bankruptcies" paper that Professor Warren published right before these Hearings and which was the main substantive of the critics of the legislation during this particular Hearing. I discuss the study here and a new critique of the study is available here (subscription).

So the main attacks on the legislation during the last go-around were (1) during the intervening eight years new problems arose in the bankruptcy system that were not accounted for in the legislation, and (2) during that time new evidence of the supposed causes of bankruptcy filings had been discovered which should lead to a reconsideration of the basis for the legislation.

Here's my answer:

MR. ZYWICKI: Senator, first, let me clarify that I believe that the majority of bankruptcy filers are legitimate, honest bankruptcy filers, and I would not endorse this bill if I believed that in trying to eliminate fraud and abuse we would be harming people, the honest, innocent people for whom bankruptcy is intended.

Having said that, this bill has been around for eight years. The problems that this bill attacks have not disappeared during eight years; they have worsened during that eight-year period. There may be new abuses that have come on the scene, additional new problems that have come on the scene [TZ: Here I am referring to the possibility of further reforms in the future to deal with Chapter 11 scandals such as Enron]. But that is not, I don't believe, a reason to ignore the fact that this bill targets real problems. It targets the homestead exemption abuses, it targets fraud and those sorts of things. So this bill responds to problems that are still endemic in the system.

SENATOR FEINGOLD: What about my question? Are there any changes to the bill that need to be made at all or is it exactly the way it should be? We are making [TZ: I think this is a typo in the transcript, it should be "marking"] this thing up next week. This is it. The train is leaving the station, apparently, and there is not going to be another bankruptcy bill probably for a very long time. This is it. Should this bill be changed?

MR. ZYWICKI: I believe this bill is fine as it is.

SENATOR FEINGOLD: Not one word?

MR. ZYWICKI: There is no word that I would change in this particular piece of legislation.

SENATOR FEINGOLD: Well, Mr. Chairman, I know my time is up, but the idea that after eight years and all the economic changes in this country that there wouldn't--

CHAIRMAN SPECTER: If you need some more time, Senator Feingold, go ahead.

SENATOR FEINGOLD: Let me just say that after eight years, the notion thatt there wouldn't be anything different about the Bankruptcy Code--with all of ht eeconomic changes and dislocations, that there wouldn't be a word to change is not credible to me and is a further reason why I am very cincerned about the speed with which this bill is moving.

Thank you for the extra time, Mr. Chairman.

The reference to "economic changes and dislocations" is a third contextual point--earlier in the Hearings Senator Feingold had expressed dismay about the decline of the manufacturing sector in his home state of Wisconsin during the eight year period that the legislation was pending, which he argued meant that it was bad policy to tighten the bankruptcy laws.

Here's Senator Specter's closing remarks, picking up where Senator Feingold left off about whether the passage of time had made the bill obsolete:

CHAIRMAN SPECTER: Thank you, Seenator Feingold.

The timing on the bill has been set. We are moving ahead. This hearing was designed to give us opinions of experts in teh field on problems in teh bill. We will have many communzues from insterested citizens in all walks of life, and when the Judiciary Committee meets next Thursday to consider the bill, there will be time between that sesion and the full floor debate. So there is time for consideration of any changew taht ought to be made.

Looking at all of this in context, it is quite clear that both subjectively and objectively I was not in any way making any respresentations about the particular drafting of every single word in the bankruptcy reform legislation. This exchange is focused on one central point--should the legislation be reconsidered because of changes in the economy and bankruptcy system during the eight-year period between the time the legislation was first introduced and actually enacted. My argument is straightforward--no, even if new abuses have manifested themselves in large Chapter 11 cases, that does not change the essential need for this legislation as it applies to consumer bankruptcies because the problems and abuses were still present and weren't going to solve themselves.

There is simply no reasonable way to read this passage as suggesting that I was endorsing the drafting of every single word in the legislation (or any particular word for that matter in this particular exchange) and I know subjectively that I was not providing such a warranty. It seems equally clear that Senator Feingold was not asking that question, and moreover, no other Senators or other people testifying raised detailed and particular questions about drafting provisions of the legislation. That was not the purpose of the Hearing and it was not the purpose of my exchange with Senator Feingold.

Obviously a piece of legislation of this complexity is going to have unanticipated drafting problems as applied to particular factual circumstances. Heck, the 1978 Code was declared unconstitutional after it was enacted. I certainly had no anticipation that legislation would turn out to be perfect in every possible term. But that wasn't the question I was answering.

To suggest, as Judge Markell does, that I was vouching for the drafting of the exact language of the bankruptcy reform legislation seems grossly sloppy about reading the proper context here at best. At worst, this is a willful distortion of what I said. Perhaps Judge Markell was saimply misled by someone else who excerpted my quote out of context. I'm sorry that Judge Markell's misuse of my quote made it into a published opinion in the first place. At the very least, I hope he will refrain from using this noncontextual quote in the future.

48 Comments
Seemingly Troubling Behavior from NYU:

The Foundation for Individual Rights in Education, a group whose accounts I have generally found quite accurate, reports (see here for the version with links):

In violation of its own policies, New York University (NYU) is refusing to allow a student group to show the Danish cartoons of Mohammed at a public event tonight. Even though the purpose of the event is to show and discuss the cartoons, an administrator has suddenly ordered the students either not to display them or to exclude 150 off-campus guests from attending....

Earlier this month, the NYU Objectivist Club decided to hold a panel discussion entitled “Free Speech and the Danish Cartoons,” at which the cartoons will be displayed.... Like previous NYU Objectivist Club events, the discussion was to be open to the public.

However, on Monday afternoon, NYU Director of Student Activities Robert Butler sent an e-mail requesting a meeting with the leaders of the Objectivist Club the next day. He also informed them that NYU would now “require that this event be open only to members of the NYU community.” Butler cited “the campus climate and controversy surrounding the cartoons,” ordering the students to inform the “non-NYU people” who had already registered that they “should not plan on attending.” He concluded, “This is not negotiable.”

Following the meeting, Butler sent another e-mail clarifying that the students have two choices: they must either not display the cartoons, or not allow anyone from off campus to attend the event. Approximately 150 off-campus guests are currently registered to attend....

NYU is a private institution, and is thus legally free to limits access to its property however it pleases. But most private universities have generally understood their mission as including enriching the intellectual lives of their students and fostering debate among students, including by helping the students spread the message to the broader community. FIRE reports that NYU has indeed accepted this view: "NYU’s own policies recognize student groups’ right to open events to the public." Events focusing on the Mohammed cartoons should be no less protected by NYU's policies than events focusing on other controversial ideological questions, whether involving race, sex, class, politics, or religion.

Now I understand that NYU might be concerned about the risk of vandalism or violence that might flow from events that display and discuss the cartoons. But it seems to me that leading universities should be at the forefront of defending speech against those who would suppress it, rather than giving in to the vandals' and thugs' heckler's veto.

15 Comments
College Thread:

I get occasional emails and personal inquiries regarding which, if any, elite colleges are "safe" for politically active and or outspoken conservatives and libertarian students in the sense that students and faculty will generally treat them respectfully, even if they are a small minority, and that they won't need to worry about being hauled before disciplinary committees because they said something politically incorrect that allegedly offended someone. Unfortunately, my knowledge of college life is almost twenty years out of date, but I'm sure VC readers have some ideas. Please comment below, and in the future I'll refer my inquiries to these comments.

118 Comments
New Report Supports Gay Adoptions:

Some 16 or so states have been considering whether to ban adoptions by gay men and women. So far, only Florida categorically bans adoptions by homosexuals -- in a statute passed in 1977 during Anita Bryant's campaign against homosexuals. Meanwhile, some 119,000 kids await adoption in the U.S.

A report just released by the Evan B. Donaldson Adoption Institute, a prominent adoption policy group, makes the following findings:

**Against a backdrop of increasing public acceptance, social science research concludes that children reared by gay and lesbian parents fare comparably to those of children raised by heterosexuals on a range of measures of social and psychological adjustment.

**Studies are increasing in number and rigor, but the body of research on gay/lesbian parents is relatively small and has methodological limitations. Still, virtually every valid study reaches the same conclusion: The children of gays and lesbians adjust positively and their families function well. The limited research on gay/lesbian adoption points in the same direction.

**Though few states have laws or policies explicitly barring homosexuals from adopting, some individual agencies and workers outside those states discriminate against gay and lesbian applicants based on their own biases or on mistaken beliefs that such prohibitions exist.

**Laws and policies that preclude adoption by gay or lesbian parents disadvantage the tens of thousands of children mired in the foster care system who need permanent, loving homes.

The report is right to note the methodological limitations of many of the studies that have shown that children of gay parents do just as well as children of heterosexual parents. Still, the studies are improving and the latest ones are quite good. While they may not yet fully support the view that homosexual parents are just as good as their heterosexual counterparts, they do support the view that homosexual parents are competent to raise children. They are certainly much better for kids -- including the older and "special needs" kids (e.g., those with illnesses and disabilities) -- who won't otherwise be adopted and will languish in the foster-care system until they "age out." No credible social science evidence suggests they're better off in permanent foster care.

Based on its findings, the report suggests the following policy initiatives:

**Move to end legal and de facto restrictions on adoption by gays and lesbians. This includes working to expand co-parent and second parent adoption, as well as revising agency policies and practices that may impede their consideration as an adoptive resource.

**Develop clear statements in support of such adoptions, recognizing a "don't ask, don't tell" approach disadvantages parents and, ultimately, their children. And develop contacts with the gay/lesbian community in order to engage in genuine, informed outreach.

**Help workers, supervisors, and agency leaders examine their attitudes and beliefs about gay and lesbian parenting, while affirming the value of these families by including them in outreach, training materials, and parent panels.

**Conduct research to inform the development of resources, training, and support to improve post-adoption success. And work to include and educate children in the process, recognizing that they may encounter prejudice if adopted by gay parents.

These seem like sensible recommendations. The report found much confusion in adoption agencies, and among individual child-welfare workers, over whether adoptions by gay parents were even legally permitted. At the very least, states should stop trying to constrict the pool of good parents for children awaiting adoption. A real pro-family, pro-children agenda ought to include making loving and stable home environments available to the kids who need them most, regardless of whether those homes are headed by gay or straight parents.

It's one thing to say that a married mother and father are the ideal environment for raising children; it's another thing entirely to say that no other environment is suitable when that ideal is unavailable, as it often is for children awaiting adoption. The proposals in the states to ban gay adoptions are senseless, cruel, and unsupported by the available evidence. Such bans practically guarantee that some kids will never have a permanent home.

The report was funded by the Gill Foundation and the Human Rights Campaign, which both support equal civil rights for gays.

64 Comments
For an Ethnic Group That Likes To Think of Itself as Smart,

we Jews can be pretty dumb where politics is concerned. (See also The Tale of the Two Brothers.)

UPDATE: Just to make clear, I'm referring — as the links suggest — to what strikes me as the disproportionate Jewish propensity for Socialism (see the Related Posts below), which I'm quite willing to call a dumb idea, and to what is generally seen as the fairly dysfunctional Israeli style of government (see the Tale of the Two Brothers).

Related Posts (on one page):

  1. For an Ethnic Group That Likes To Think of Itself as Smart,
  2. The Return of Israeli Socialism?
  3. Bad News from Israel's Elections--The Revival of Israeli Socialism:
56 Comments

Tuesday, March 28, 2006

[Ilya Somin (guest-blogging), March 28, 2006 at 10:14pm] Trackbacks
The Return of Israeli Socialism?

I largely agree with co-blogger David Bernstein that today's Israeli elections were a setback for free markets. However, the magnitude of the setback may not be as great as David and others suggest. Yes, the relatively pro-free market Likud lost seats, while various socialistic parties did better than expected. However, much of the former Likud vote went to Avigdor Lieberman's right-wing Yisrael Beitenu Party (which won 12 Knesset seats compared to Likud's 11), and Lieberman is a strong supporter of free market "Thatcherism."

Overall, Jewish parties to the economic right of Prime Minister Ehud Olmert's centrist Kadima Party (28 seats), won 32 seats (12 YB, 11 Likud, 9 NU/NRP), while those to the left won 31 (20 Labor, 7 Pensioners, 4 Meretz). It is true that the Shas Party's (13 seats) main goal is to increase transfer payments to its constituency (highly religious Sephardic Jews), but they do not usually take strong positions on broader social and economic policy issues, and have in the past joined coalition governments that promoted privatization. Obviously election results do not perfectly reflect voters' policy preferences, and many voters are in fact ignorant of the details of party platforms. But, in and of themselves, I'm not sure these results really do reflect a tidal wave of Israeli sentiment for socialism, though they certainly don't bode well for free markets.

Much will depend on which other parties Olmert decides to invite into his coalition government. He needs 61 seats to form a government, which means that he will have to round up enough coalition partners to add at least 33 seats to Kadima's 28.

UPDATE: I may have been too quick to describe the NU/NRP party as "to the right" of Kadima on economic policy. Their platform, available in English here, places little emphasis on economic issues, but supports mostly statist policies (complete with left-wing code words such as "social justice" and "exploitation") where it does mention them. It's not clear whether NU/NRP's policies on these issues are much different from Kadima's and it is still possible that NU/NRP would support a less statist policy than Kadima would in the highly unlikely event that they get to join a coalition government. But they are certainly not pro-free market in the way that Likud and YB are.

15 Comments
[Ilya Somin (guest-blogging), March 28, 2006 at 9:46pm] Trackbacks
Promoting Democracy and Individual Rights III: The German Experience:

Many critics of efforts to promote democracy in the Muslim world claim that the successful occupation of Germany after WWII is not a relevant precedent because postwar Germans, unlike modern Arabs and Afghanis, supposedly had a strong cultural affinity for liberal democracy. As one of my commenters put it, Germany was "the land of Kant" and therefore (it is implied) highly receptive to liberalism and democracy. This claim is largely a myth.

The truth is that Hitler and Goebbels were much more reflective of German opinion in the immediate post-WWII years than Kant. According to a series of surveys conducted by the US occupation authorities in 1951-52, 41% of West Germans saw "more good than evil" in Nazi ideas, compared to only 36% who said the opposite. In a 1949 survey, 59% of West Germans said that National Socialism was a "good idea badly carried out," compared to only 30% who said that it was wrong. 63% in a 1952 poll said that German generals held on war crimes charges were innocent and only 9% said that they were guilty. Well into the 1950s, large numbers of Germans rejected liberal democracy and expressed sympathy for various forms of authoritarianism. By the time the 1951-52 surveys, were conducted, West Germany had been occupied by the Allies for 6 years, and had had its own democratic government since 1949. Thus, German support for authoritarianism and even for many aspects of Nazism was quite deeply rooted. For these and other survey data from postwar Germany, see Anna J. Merritt & Richard L. Merritt, Public Opinion in Semisovereign Germany (1980).

Indeed, Iraqi and Afghan opinion today is probably more pro-democracy than German opinion in the 1940s and early 50s. For example, a December survey shows 57% of Iraqis expressing support for a democratic form of goverment, compared to 14% who endorse an "Islamic state" and 26% who support "a single strong leader."

Nor was it the case that Allied occupation forces were highly popular in German eyes, another distinction that critics of today's democratization efforts try to make. To the contrary, many Germans hated the Western Allies for the understandable reason that Allied bombing had flattened virtually all of Germany's cities, killed some 300,000 civilians, and left 7.5 million homeless. Whether or not strategic bombing was morally justified, it certainly didn't endear the Allies to the average German. Abu Ghraib notwithstanding, the US has not done anything comparable in Iraq or Afghanistan.

Obviously, German opinion changed over time and today Germans are as supportive of liberalism and democracy as most other Westerners. But it was not German affinity for liberal democracy which led to its successful imposition. Rather, it was the success of liberal democratic institutions that gradually led Germans to support them - an important historical lesson that we would do well to learn.

This is not to say that there aren't any relevant differences between the democratization of Germany and today's efforts to democratize Iraq and Afghanistan. Obviously, in Iraq (and to a lesser extent in Afghanistan) we face a stronger insurgency than existed in Germany, and Iraq and Afghanistan have so far failed to produce democratic leaders as effective as Germany's Konrad Adenauer. However, it is a mistake to argue that German democratization succeeded because German political culture supported it, while today's democratization projects are doomed to failure for lack of such support.

UPDATE: Many (including some of my commenters) also argue that Germany was better prepared for democracy because of the experience of democracy under the Weimar Republic. Given that the Weimar Republic was a disastrous failure and was perceived as proof of the undesirability of democracy by the vast majority of Germans (including many moderates and leftists), it was probably at least as much of a liability as an asset to efforts to implant democracy and liberalism in Germany after WWII. For what it's worth, Iraq had similar brief and unsuccessful experiences with democracy in the 1920s and 1950s. No one contends that they "prove" that democratization will succeed there.

UPDATE #2: I am aware that this post fails to systematically distinguish democracy from the protection of individual rights. To do so would have made it even longer! But the plurality of Germans who in the 1950s continued to express sympathy for Nazism very likely were not too fond of either democracy OR individual rights. Thus, the evidence cited has implications for both democracy promotion and the promotion of liberal values.

Related Posts (on one page):

  1. Promoting Democracy and Individual Rights III: The German Experience:
  2. Promoting Democracy vs. Promoting Human Rights II:
  3. Promoting Democracy vs. Promoting Human Rights:
18 Comments
Bad News from Israel's Elections--The Revival of Israeli Socialism:

The international media, of course, is focusing on the implications of the election for the Israeli-Palestinian conflict, but there is bad news for those of us who believe that Israel's inept and corrupt version of social democracy has been stifling economic growth there for years. The new "Pensioners Party" won 7 out of the 120 seats. I don't know much about this party, but I've seen it described as "socialist." Even if it's not, the last thing Israel needs is a domestic equivalent of the AARP holding decisive votes in the Knesset. Meanwhile, the Labor Party, led by former union leader Amir Peretz, did better than expected with 20 seats, running largely on a "social justice" (i.e., big government) platform. The religious Separdic Shas Party, which made increased transfer payments from the government its major issue, won 13 seats. The Likud Party, meanwhile, garnered only around 11 seats, in part, analysts seem to agree, because voters chose to punish party leader Benjamin Netanyahu, who as finance minister pushed through free-market economic reforms and budget cuts that rescued the Israeli economy from a nasty Intifada and tech-collapse induced recession.

Israel has among the highest tax burdens and government spending of any "capitalist" nation in the world (even putting aside the defense burden), yet the education system stinks (Israeli kids must have the shortest school day in the developed world!), the infrastructure is awful, and corruption with regard to government contracts, permits, et al., is rampant. The average Israeli voter, though, has a solution to this mess (and I've heard it over and over again from Israelis): More government. Israelis elites, both left and right, have tried with some success to bring Israel out of its statist stupor, but the public has finally rebelled; large segments of the public want that old time Socialist religion, and that, apparently, is what they are going to get.

UPDATE: In my view, Israel's economic situation is an important Israeli national security issue. To understand why, just wander around New York, Miami, Los Angeles, Rockville, Maryland, and even Ann Arbor, and notice all the smart, ambitious, and often technology-savvy Israelis who have chosen to make their homes in the U.S. The drain of human capital is enormous, and while not all of it is attributable to the relatively sorry state of Israel's economy, a good part of it is.

Related Posts (on one page):

  1. For an Ethnic Group That Likes To Think of Itself as Smart,
  2. The Return of Israeli Socialism?
  3. Bad News from Israel's Elections--The Revival of Israeli Socialism:
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[Ilya Somin (guest-blogging), March 28, 2006 at 6:51pm] Trackbacks
Promoting Democracy vs. Promoting Human Rights II:

A few points building on my earlier post on this subject:

1. Does my claim imply that we are worse off for having occupied Afghanistan and Iraq?

I think not. Despite very serious flaws (and major errors by the Bush Administration), the new Afghan and Iraqi governments are greatly superior to the predecessors - both from the standpoint of US interests and from that of their own people. Being better than the Taliban and Saddam Hussein is not a high standard to shoot for, but it is still an important achievement. However, failing to pay adequate attention to promoting liberal values as well as promoting democracy is likely to both reduce the extent of our success and imperil its longterm viability.

2. Is liberalism harder to promote than electoral democracy?

Many commenters, and some scholars, such as Fareed Zakaria, claim that it is. I am not so sure that this is universally true. Unlike electoral democracy (which usually takes years to provide any real benefits to the population), individual rights provide immediate and tangible benefits to a large number of people. The most dramatic recent examples are Afghani women who can now work outside the home, attend schools, and not wear burkhas. But there are many smaller, but still significant examples, such as the fact that 62% of Iraqis now have cell phones, which were forbidden under Saddam Hussein. Such benefits can be used to strengthen public support for individual freedom. Obviously, radical Islamists will resist efforts to promote individual rights, but they are not exactly big on democracy either. I am not suggesting that promoting individual rights will always be easier than promoting democracy. But there is no reason to believe that the reverse is true, or anything close to it.

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[Puzzleblogger Kevan Choset, March 28, 2006 at 1:30pm] Trackbacks
Places in Order (Take Two):

In what order have I arranged these places?

  • Germany, France, America, Berkeley, California.

NOTE: People have been having trouble with the comments. Hopefully now it works.

27 Comments
Mearsheimer and Walt--Arrogance, Not Anti-Semitism:

As regular VC readers know, I've been highly critical of Mearsheimer and Walt's "Israel Lobby" paper. However, I think many of their critics are erring in accusing the authors of anti-Semitism without supporting evidence. Where some critics see anti-Semitism, I see what is much more likely the result of simple sheer arrogance. As is very clear from the paper, Mearsheimer and Walt have firmly concluded that U.S. support of Israel is CLEARLY neither strategically nor morally justified. They are sufficiently arrogant that they assume that any normal, right-thinking person who looked objectively at the evidence would agree with them. Thus, U.S. policy would naturally not be supportive of Israel. The fact that it is supportive of Israel leads the authors to a conundrum: either acknowledge that reasonable people might disagree with their conclusions (which would provide a non-conspiratorial basis U.S. support for Israel), or assume that there is a wide-ranging conspiracy involving an amorphous "Israel lobby" biasing U.S. policy in favor of Israel. Rather than suspend their arrogant view that everyone sensible agrees with them, the authors adopt the conspiracy theory (not uniquely in this respect), and engage in sloppily researched and ill-reasoned inferences to support it. The Israel lobby also explains, in their view, other anomalies that they can't otherwise explain, like how all reasonable people failed to agree with them that the Iraq War was not in U.S. interests.

The fact that Mearsheimer and Walt reasoned backwards from an inane, apparently arrogance-driven thesis, and wrote a "piss poor" (as Drezner put it) paper to support it, is reason enough to criticize these two well-known "scholars". No need to pile on unsubstantiated allegations of anti-Semitism. Indeed, such allegations drown out more substantive criticisms.

Admittedly, writing about alleged largely Jewish-driven conspiracies gives succor to anti-Semites, and for that reason, individuals sensitive to such concerns would be especially careful about circulating academic work on that theme that's not well-documented and reasoned. But a failure to be sensitive about anti-Semitism, or the anti-Semitic implicatons others will take from one's work, is simply that, and is not itself persuasive evidence of anti-Semitism. To put it another way, all anti-Semites will be insensitive about anti-Semitism, but most individuals who are not sensitive about anti-Semitism are not anti-Semites.

UPDATE: You're really in trouble when an anti-Israel diatribe can't win the support of Christopher Hitchens or even Noam Chomsky (the latter nevertheless praises the authors' "courage" as if criticizing Israel at an elite university is brave).

Profanities on Bumper Stickers:

The Atlanta Journal-Constitution reports that a motorist was ticketed for having a bumper sticker that said "I'm Tired Of All The BUSHit"; according to the police officer, the county "had an ordinance about lewd decals." (Thanks to Orin for the pointer.)

The police officer unfortunately didn't know that the state had a Supreme Court decision about lewd decals, too (though "profane decals" is probably the more sensible term here): Cunningham v. State, 400 S.E.2d 916 (1991), which struck down on First Amendment grounds an ordinance that banned affixing to a car "any sticker, decal, emblem, or other device containing profane or lewd words describing sexual acts, excretory functions, or parts of the human body." The Georgia Supreme Court in Cunningham quite sensibly held that Cohen v. California, 403 U.S. 15 (1971), which upheld Cohen's right to wear a jacket that said "Fuck the Draft," applied equally to bumper stickers; because of this, the court set aside a conviction for displaying a sticker that said "Shit Happens."

Seems to me that the DeKalb County Police Department owes someone an apology, at least.

Related Posts (on one page):

  1. More About Profanities on Bumper Stickers:
  2. Profanities on Bumper Stickers:
58 Comments
Paychecks:

People like to say that they want a paycheck with "lots of zeroes in it." Seems to me that they really should prefer a paycheck with "lots of nines in it." Replacing any zero with a nine would be an often substantial improvement, unless it's one of those unfortunate negative paychecks. What's more, asking for nines avoids the embarrassment of leading zeroes ("we'll pay you $000,005").

There's still the problem of digits after the decimal point; an employer can easily and cheaply pay you a paycheck with an infinite number of nines (or, to save toner, pay you a paycheck that is worth the same as a number with an infinite number of nines). So next time you're looking for a job, tell the employer "I'd like a paycheck with lots of nines in it -- before the decimal point."

58 Comments

Monday, March 27, 2006

Moral Outrage at Yale Law School:

Seventeen year-old Kiwi Camara uses the word "nigs" to refer to African Americans as an unusually young Harvard law student. He later apologizes, and denies that he harbors ill feelings towards African Americans. Several years later, editors at the Yale Law Journal, unaware of his controversial past, offer to publish an article he wrote in a symposium issue, and later invite him to speak at the relevant symposium. When the "community" discovers Camara's past, all hell breaks loose at Yale, with outraged students arguing that a moral reprobate like Camara should not be allowed to publish in the hallowed Journal, much less speak in Yale's hallowed halls. Camara apologizes again, unequivocally. (See previous VC coverage by Eugene here.) Nevertheless, mass meetings, protests, etc. ensue, culminating last Friday when 1/3 of the symposium audience walked out on Camara's talk.

By contrast, when I was a Yale Law student, the Law Journal accepted an article by convicted murderer Mumia Abu-Jamal, who is, as Stuart Taylor summed it up in 1995, "probably an unrepentant killer who on December 9, 1981, stood over 26-year-old Daniel Faulkner and put a bullet between his eyes while the already wounded officer lay helpless on his back." (For even more certainty on the issue, see here and here, among other sources.] You can find the article at 100 Yale L.J. 993 (1991). As far as I can recall, the only student outrage I witnessed over this publication was some grumbling by a few Federalist Society types. (The Journal, of which I was a member, did receive a fair number of outraged letters from alumni and others who had read about the controversy elsewhere.)

Granted, the law students who currently attend Yale are not the same people as the students who attended Yale in 1991, and are not responsible to the indifference displayed in 1991 to the Journal publishing a convicted murderer's work. It's possible that the students who have been outraged over Camara would have been even more outraged over Abu-Jamal, but given the left-wing orthodoxy [which holds Abu Jamal is an innocent "political prisoner"] that has long pervaded the most activist element of the Yale Law student body, I sincerely doubt it.

Not surprisingly, I don't look to the Yale Law student body as my moral compass.

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The Associated Press says it doesn't credit blogs, but it does.--

In an odd story at HuffPost (tip to Instapundit), Larisa Alexandrovna says that two weeks of work on a story she wrote for an online news service was ripped off by the Associated Press. The story involved changes in security clearance standards that might affect gays, lesbians, and bi-sexuals. She complained to the AP:

We contacted an AP senior editor and ombudsmen both and both admitted to having had the article passed on to them, and both stated that they viewed us as a blog and because we were a blog, they did not need to credit us. . . . [W]we made a point of tape recording the AP apparatchiks admitting to taking our work and using it without attribution, stating "we do not credit blogs".

But it gets stranger: According to Alexandrovna, AP didn't just take her work, they misattributed the work to other people. Even if there were some legitimate reason for AP's policy, that would not justify misleading readers. The AP wrote:

"Lesbian and gay advocacy groups recently found the change in an 18-page document distributed by National security adviser Stephen Hadley on Dec. 29, without public notice." Yes, the groups had found it in my article, which they gave to the AP.

But the strangeness doesn't stop there. The AP does credit bloggers.

I did a search of the last 7 days of AP headlines and stories and got 52 hits for the word "blog." One might also search for "blogger."

Although most of these stories did not credit blogs, some did. The first AP story I skimmed discussed several bloggers and included this statement, which sounded like credit:

A self-described Iraqi blogger translated one of the documents for the American blog pajamasmedia.com - a Sept. 15, 2001, memo from the Iraqi intelligence service that reported about an Afghan source who had been told that a group from Osama bin Laden and the Taliban had visited Iraq.

Or consider this AP story:

Blogger Glenn Reynolds of instapundit.com predicted Summers' fall would help conservatives pass bills monitoring academic freedom - including one currently under consideration in South Dakota's legislature.

AP was apparently referring to this post at Instapundit:

MORE ON SOUTH DAKOTA'S intellectual diversity legislation. I'm guessing that the publicity over the Larry Summers affair will give this sort of thing a boost.

Unless I'm missing something, it appears that AP does sometimes credit things that they read on blogs and then quote or paraphrase.

I find this story triply strange.

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Promoting Democracy vs. Promoting Human Rights:

The recently published annual State Department report on human rights notes that "democracy does not guarantee what President Bush has called a commitment to 'the non-negotiable demands of human dignity.'" It cites Russia and Venezuela as nations with democratically elected governments that violate basic human rights. Obviously, the case of the Afghan who may be executed by that nation's elected government for converting to Christianity raises the same issue. So too does the victory of the terrorist group Hamas in the recent Palestinian election. In these and other cases, democracy might conflict with other liberal values, including human rights, equality for women and minority groups, and the rule of law.

The Bush administration has focused on promoting democracy in the Muslim world, but has not given anything approaching equal attention to the cause of promoting liberal values more generally - especially in instances where doing so means constraining the powers of nascent democratic governments such as that in Afghanistan. Yet, ultimately, liberalism is at least as important to both US interests and those of Muslims themselves as democracy is. An illiberal democratically elected government may be just as likely to oppress its people and support terrorism as a dictatorship or oligarchy. And, as numerous historical examples suggest, such governments are unlikely to allow free elections in the future, especially if there is a chance that they might lose. It would be a shame if the Bush Administration succeeded only in establishing a series of "one man, one vote, one time" experiments.

I will have more to say about these issues in later posts. For now, I will note only that successful US democracy-promotion efforts in the past have usually involved extensive attention to promoting liberalism BEFORE the establishment of democratic governments. For example, Germany was not allowed to have an elected government until 1949 (4 years after WWII), and Japan not until 1951. In both cases, US occupation authorities first made sure to institutionalize liberal values and human rights, and ensured that the powers of the new government were subject to major limitations. I would not suggest that the reconstruction of Iraq and Afghanistan should follow these historical precedents in exact detail. But I do think that US policy in these countries and elsewhere should focus more on promoting liberal values more generally and less on democracy, narrowly defined.

UPDATE: As Eugene points out in his post below, the Afghan government has now dropped the charges against Abdul Rahman, the convert to Christianity who might have been executed for "apostasy." I don't think this affects my main point, as the government continues to claim the right to execute other converts from Islam in the future, and (as Eugene also notes), such executions apparently have broad support in Afghan society.

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Afghan Charges Against Christian Convert Dismissed:

Story here:

After days of international outcry, an Afghan court has dismissed the case against a man threatened with being put to death for having converted from Islam to Christianity, a court official said Sunday.

The charges of apostasy against Abdur Rahman, a 41-year-old medical aid worker, were being dropped for lack of evidence, said Abdul Wakil Omari, a spokesman for the Afghan Supreme Court.... Omari, the court spokesman, cited two factors for the case's dismissal: signs that Rahman might be mentally disturbed and the possibility that he had become a German citizen.

Naturally, a "dropped for lack of evidence" result is far from perfect. But here the perfect may be the enemy of the good. Sometimes liberty progresses through small steps and legal fictions. That's better than liberty not progressing at all, which is what might have happened had Rahman's defenders insisted on all (a rousing decision affirming religious freedom) or nothing.

What's worth remembering about the case, though, is that "even moderate Muslim clerics, as well as members of Rahman's own family, have said that death is the only fair and logical punishment for him." If that's "moderat[ion]" as Muslims go, that's mighty troubling.

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Hello VC Readers!

Thanks to Eugene and the rest of the gang at the Volokh Conspiracy for having me as a guest blogger. There's probably no better time to add another GMU Law Professor than now, when the school is enjoying a moment of well-deserved glory:).

Although I know many of you are hoping for more blogging about GMU basketball, I have to confess that my expertise in this area is nowhere near the level of Todd Zywicki's. My sports loyalties are more with Boston teams, especially the Red Sox. Even GMU's incredible trip to the Final Four does not - in my completely objective judgment - equal the REVERSAL OF THE CURSE in 2004, which was my personal greatest moment as a sports fan.

While I may at some point blog about sports issues, I will focus more on my actual areas of expertise in constitutional law, political participation, federalism and property rights. In the interest of shameless self-promotion, more information about my work is available here and here.

In the meantime, for all you law mavens/sports fans, here's a sports law case that involves a lone Red Sox fan going up against the Evil Empire of the Bronx!

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Who Was George Mason?

In case you were wondering, the Bill of Rights Institute has a profile of the "Father of the Bill of Rights."

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Ilya Somin:

I'm delighted to welcome Ilya Somin as a Volokh Conspiracy guest-blogger for this week and next. Ilya teaches at George Mason law school, and writes about property rights, federalism, judicial review, and more. He's also a fellow Russkie, which just shows how many conspiracies The Volokh Conspiracy overlaps with.

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Final Four!

George Mason's stunning, amazing run through the tournament continues. We have now knocked out the last two champs and the winners of 3 of the last 6. Stunning, breathtaking results, and magical games. Yesterday was probably still the first chance most of the country had to see us play, as from what I read, CBS has been broadcasting out games to a minuscule portion of the country. There's plenty of room on the bandwagon still, so welcome aboard (I'm proud to say that I've been a season-ticket holder for a few years now).

A few quick observations for those who haven't seen GMU much this year:

1. Team: I love that this team is a real team. These guys have absolute faith and confidence in each other and they play selflessly and with full faith and respect for each other. In four games, Jai Lewis's 20 yesterday was the first game in the tournament where one of our guys scored 20 or more (and he only had 2 points on Friday night). These are five starters, all with above-average ability whose skills and personalities complement each other well. On any given night, any of the starters can lead the team (in the four games in the tournament, three different guys have been the top game scorers). Any of the five starters can take (and make) the big shot and each player has confidence in each other that they will make it. On Friday the guards carried GMU because Wichita State collapsed on the big men; yesterday the big men carried GMU because UConn pressured the guards. Everybody plays defense and works hard on the boards. It is pretty darn rare in modern sports to see such a well-balanced and selfless team, but it sure has worked. In comparison, at one point this weekend I actually heard John Calipari complimenting Carney for being willing to share the ball even though he was auditioning for a lottery pick. He gets credit for passing the ball to his teammates?

2. Coach L: What can you say about Larranaga? A brilliant coach and obviously a remarkable man. My wife insists that this is all karma for him being willing to do the right thing with Tony Skinn in that first game. Regardless of what it is, it is clear that his players respect and listen to him. Plus, he is a brilliant game coach. Listening to him after the game yesterday, I was dazzled by his game plan--he observed that on Friday Wichita was going to collapse inside and so the guards would get open three-point looks, which they did. Then he (and his sons) figured out that Sunday UConn would not collapse, but would pressure the guards and play behind our big guys, so that the guards should throw it inside and let Lewis and Thomas decide what to do with the ball. And his players are well-coached to stick with and execute the game plan, rather than breaking down. As far as what I could tell, and judging by Calhoun's comments at halftime, UConn's strategy for dealing with out big men was "block their shots" (Calhoun said at halftime his big guys said "What should we do with these guys" and Calhoun said "Block their shots"). At some point I would've thought there would be a Plan B.

3. Confidence: I mentioned to Steve Teles in an email the other day that I had never seen a team in George Mason's position appear so composed and confident going into this weekend's game. Even when we were down by double-digits to UNC and UConn we didn't panic and after the heart-breaking tie at the end of regulation last night we didn't collapse, but came right out in OT, stopped them, and then scored the first basket of overtime. This is obviously a combination of Coach Larranaga, the character of the kids he has recruited, and the way that they have developed. The Tony Skinn suspension really showed a lot about how this team wants to win. They don't preen or talk trash. They haven't boasted about being an upset or cinderella. They've just gone out and had faith in themselves, their teammates, and their system. One thing I love about these kids is that there is no chest-thumping or "look at me" behaviour, but just pure, unbridled joy of playing and winning. And the amazing thing is that in three of four games it is only because we have missed free throws down the stretch that there was even suspense at the ends of these games.

4. Surprised: To me, the win yesterday was a surprise but not a shock. Josh Wright and I went to the game Friday night and watched us dismantle Wichita State and UConn struggle with Washington (and need some timely help from the refs). Watching those games, it was clear to us that had we played UConn on Friday night, we would have beaten them, as we would have hit the open shots that Washington missed and we wouldn't have made the mental errors that Washington made. So while I was surprised, I wasn't shocked. Unfortunately our local CBS affiliate cut away from CBS's Fla-Nova halftime report, so I didn't get to see Seth Davis, who was awfully confident before the game that UConn would win. As for Mr. Billy Packer, it looked to me like he had just eaten a raw onion when he first mentioned this game.

5. Karma: What a year this has been for me--first, the Steelers win the Superbowl (as a #6 seed) and now this. I joked during the playoffs that my daughter Claire was the Steelers' secret weapon. But to have Mason make the Final Four too--apparently her powers are beyond the realm of human comprehension! And I already mentiond Larranaga and the karma there. And now Mason goes to Indianapolis for the Final Four, the home of Hoosiers.

What a ride!

Now if you'll excuse me, I have a Final Four ticket application to fax in.

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Sunday, March 26, 2006

You Can't Say That! in England:

Where America is heading, if the First Amendment is found to have a "hostile environment" exception:

A UNIVERSITY lecturer who claimed that black people were less intelligent than whites was suspended from his post yesterday. Frank Ellis, a lecturer in Russian and Slavonic Studies, was sent home on full pay by the University of Leeds, which accused him of breaching its obligations to promote racial harmony under the Race Relations (Amendment) Act 2000. It is the first significant test of academic freedom since the introduction of the Act, which places a duty on public bodies to promote equality of opportunity and good relations between different races. .... He voiced support for the theory set out in The Bell Curve, a book published in 1994 by Richard J. Herrnstein and Charles Murray, that white people had higher average IQs than blacks. He said the study had "demonstrated to me beyond any reasonable doubt there is a persistent gap in average black and white average intelligence". Dr Ellis also told Leeds students that women did not have the same intellectual capacity as men and that feminism, along with multiculturalism, was "corroding" Britain. His views outraged students, who staged a campaign to have him dismissed from the university. Leeds responded initially by stating that Dr Ellis had a right to express his views, although they were 'abhorrent to the overwhelming majority of our staff and students". Officials said that they had no evidence that his beliefs had led him to discriminate against students or colleagues. Yesterday, however, it announced that the ViceChancellor, Professor Michael Arthur, had suspended Dr Ellis and that disciplinary proceedings had begun. Roger Gair, the University Secretary, said that in publicising his views Dr Ellis had "acted in breach of our equality and diversity policy, and in a way that is wholly at odds with our values".

Note that there was no finding of academic misconduct, no finding that Dr. Ellis had engaged in bad scholarship, and no finding that he had harassed, discriminated against, or even addressed his comments to, any student. Rather, he is being "disciplined" solely because students found his views offensive, and thus a breach of the university's obligation to promote "racial harmony" (which sure seems to imply a heckler's veto for any controversial statements related to race). Troubling, indeed.

Hey, but if we're going to fire British professors for disrupting racial harmony, how about Oxford professor Tom Paulin, who infamously stated that "Brooklyn-born Jewish settlers" on the West Bank "should be shot dead"? Don't hold your breath waiting for laws like this to be applied consistently...

UPDATE: Whenever I criticize somebody on this blog, especially with regard to Israel, someone like Jeff H. writes (in ths comments below) something like, "see, what hypocrite Bernstein is, he is attacking someone for exercising their right to freedom of speech." I have never maintained, however, that anyone should be immune from criticism for saying stupid, hateful, or just plain incorrect things. Indeed, people should be criticized for such things (though one should err on the side of civility); but the government has no business passing laws punishing people for such things. And in fact, I've publicly criticized pro-Israel activists who are trying to turn hostility to Israel (and, to some extent, students who support Israel) on campuses in California into a "hostile environment for Jewish students" antidiscrimination issue that calls for federal civil rights involvement.

But the fact that the government has no business censoring speech has absolutely nothing to do with whether I, or anybody else, should feel free to harshly criticize others' speech. Students at Leeds should have every right to protest, complain, picket, boycott, etc., with regard to Ellis or anybody else whose views they dislike, and I'd defend their right to do so even if I think they are being foolish in a particular instance. What they shouldn't have the right to do in any free society, be it England or the U.S., is use the force of the law to shut someone up because they find his views offensive.

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Holy Cow, George Mason's in the Final Four!:

I generally completely ignore "March Madness," and have no interest in college basketball. But we here in the Bernstein household (GMU professor, GMU graduate school alum, and baby) are very excited by George Mason's success. If nothing else, we are going to be a lot less likely to hear "where?" when we say we teach at/graduated from George Mason. Relatedly, while some mediocre law schools clearly benefit from being affiliated with renowned universities (I won't mention any names here), GMU Law School has long suffered from being affiliated with (what is unfairly known as) "that commuter school in Fairfax." So go Patriots!

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Israeli Checkpoints:

The next time you read about Israel's awful inhumanity in not immediately waving Palestinians with medical problems through checkpoints, consider this:

According to a gag order lifted Sunday by Shin Bet Security Service, Islamic Jihad militants [terrorists] involved in planning attacks within Israel were arrested earlier this month. One of the militants [terrorists], a resident of the Gaza Strip, was arrested on his way to carrying out a shooting attack. The militant [terrorist] was arrested on March 7 at the Erez crossing on the Israel-Gaza border. He was carrying falsified medical permits in order to be admitted entry. He had been planning to carry out a shooting attack in an Israeli city with a weapon prepared for him within the Green Line.
In other situations, the Palestinians have used ambulances to transport weapons and terrorists. When your enemies are unwilling to respect any boundaries in their efforts to murder innocents, what are you to do?

Nursery School Revisited: Does the Representativeness of a Sample Matter?

I have now read three pieces to come out of the Block & Block Berkeley longitudinal study besides the one on political orientation, and I am generally very impressed both with the thoroughness and the quality of the work. They did a staggering amount of work and collected a wealth of data.

A. Is the sample representative?

I, nonetheless, think there are still sampling and measurement problems with the political orientation study. In that study Block admits that the sample is not representative on the main outcome variable—conservatism/liberalism—but he disagrees that this is a problem.

The debate continues at Michelle Malkin’s site, where she excerpts part of an email sent by Jack Block. Block informs Malkin that one of the two nursery schools was indeed open to faculty & staff, but in the other, faculty & staff children were excluded. Presumably, this was school that the Blocks in 1980 described as a “parent cooperative,” which was part of the UC-Berkeley Child Study Center, though it was administered by the Berkeley Public Schools. One might reasonably wonder about the political makeup of two schools, both part of the university's Child Study Center, one open to UC-Berkeley faculty & staff children, the other a “parent cooperative” in Berkeley, California.

Given that the question of the representativeness of the sample has arisen and that Block has admitted in the new article that the sample had “relatively few participants tilting toward conservatism,” it would be good for Block to point people to any paper that gives the demographic breakdown of the education and SES of the parents. Chris from MixedMemory (who has written the best blog post I've read in support of the nursery school study), has suggested to me that he seems to recall that such SES information is in one of the studies to come out of the project. If not, perhaps Block can release that information on the parents of the 95 children.

Ultimately, it would be more important to know:

1. How many of the 95 subjects self-identified as conservatives, moderates, or liberals?

2. How many of the 95 subjects self-identified as Democrats, Republicans, or Independents, if that question was asked?

3. What was the party ID and political orientation of their parents in 1969-71, if that is known? (As part of the thoroughness with which the study was done, parents were studied in 1969-71 as well as children).

B. Does representativeness matter?

Block also makes this following dismissive argument in his email on Malkin’s site:

More important, the analyses were within the sample. Logically, the Malkin analysis therefore is fundamentally irrelevant and inapplicable. I suppose one cannot expect hasty and untrained reporters to be familiar with the logic of research.

Here Jack Block goes too far. Only if the relationships that he is examining are straight line linear AND he has good measures of who is or is not conservative or liberal would it not matter whether the sample was representative.

I remember once suggesting something like Jack Block’s argument to Norman Bradburn, a psychologist specializing in questionnaire framing and the former provost of the U. of Chicago and research director of the Natl. Opinion Research Center. I said that, as long as I was measuring some basic psychological process, it was not too important whether the sample was representative. Bradburn archly replied that, of course, representativeness did not matter, so long as I wasn’t planning to generalize my results to try to shed light on what people outside my survey were like. I got Bradburn’s point.

If there are really very few conservatives in the Blocks’ sample (as he admits), then it wouldn’t make sense to describe what conservatives think or even what the relatively conservative think. It would be better to describe the results as reflecting what liberals and moderates think, or to contrast what the “relatively liberal” and “relatively moderate” think.

Further, on some of the issues used to try to separate liberals from conservatives, it appears that moderates (not conservatives) would score at one extreme and liberals at the other, so it would matter very much to the results if the sample was substantially skewed to the right or substantially skewed to the left. When the relationships between two variables are U-shaped, it is important to have representative samples from all parts of the spectrum or it is possible to get major relationships backwards.

In short, representativeness does matter.

UPDATE: In the comments below, the question is raised whether the Blocks intended their results to be generalizable to the general public. Their nursery school article interestingly suggests that they put at least some stock in the representativeness of the sample and its possible application beyond its unique setting:

This configuration of personality characteristics, although methodologically based on quite different procedures, is especially reminiscent of earlier speculations by Fromm (1941), the Berkeley studies of the authoritarian personality (Adorno et al., 1950), Rokeach (1960), and Altemeyer (1981), among others. Providing additional conceptual and informational support for the present findings, is the attractive recent review by Jost et al. (2003b). The congruence between our findings regarding adult conservatives and prior empirically-based understandings attests to the general representativeness of the present sample as adults and, therefore, the likely veridicality of the unique nursery school results.

(By the way, "veridical" is defined as "1. Truthful; veracious . . . 2. Coinciding with future events or apparently unknowable present realities.")

Note that in this part of their article the Blocks do view their sample of adults as representative of the larger sample of adults in society. As for the relevance of having a representative sample, here the Blocks do not consider representativeness "fundamentally irrelevant and inapplicable," as Block does in his email quoted above on Malkin's site.

Although the Blocks think that the "representativeness of the present sample as adults" is important enough to mention because it leads to the likely "veridicality" of their observations of nursery school students, it is not entirely clear what they mean by "veridicality" in this context. They could (and probably do) mean that their results are likely to be generalizable to other observations of nursery school kids in other eras and places, or they could mean something less. In any event, they don't consider "representativeness" "irrelevant and inapplicable."

Related Posts (on one page):

  1. Nursery School Revisited: Does the Representativeness of a Sample Matter?
  2. Update on the Berkeley Nursery School Study.--
  3. You Can’t Tell a Conservative Without a Score Card.--
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