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Saturday, April 15, 2006

Blog Cited Over 20 Times in Court Cases:

Congratulations to Ohio State University law professor Doug Berman, who runs Sentencing Law and Policy; that blog has been cited over 20 times in court cases, according to Ian Best (3L Epiphany). Many (likely most) law professors never get that many court citations for all their law review articles put together, much less for their blog posts.

Ian also points to some other blogs that have been cited in court cases, but Sentencing Law and Policy is far ahead of any other.

10 Comments
W.H. Auden 1, "The Pristine Words Only Academy" 0:

Jacob Behymer-Smith is a ninth-grader at the Coral Academy of Science, a public charter school in Nevada. He's participating in the Poetry Out Loud contest, which is run by the National Endowment for the Arts and the Poetry Foundation, and in which high school students compete at reciting a great poem that they've memorized. Behymer-Smith chose W.H. Auden's The More Loving One; so far, he's progressed from his school competition to a district-wide competition, in which he placed first. On April 22, he'll be competing in the Nevada statewide competition. You'd think that the Coral Academy's officials would be happy for him, and would be trying to support him.

You'd be mistaken, because -- horror of horrors -- Auden's poem, it turns out, contains unspeakable vulgarities. To be precise, it contains the words "hell" ("Looking up at the stars, I know quite well / That, for all they care, I can go to hell") and "damn" ("Admirer as I think I am / Of stars that do not give a damn"). That, the Dean of Students at the Coral Academy opined, is "inappropriate language," as opposed to the "pristine language" (her words) that she thinks ought to be presented to the school's students.

And because of this, the school insisted on April 7, Jacob couldn't perform his poem. Not at the school; that happened already, which is what prompted the Dean of Students' initial "pristine[ness]" objection. No, school officials said, Jacob is prohibited from speak the words "hell" and "damn" at the district-wide competition at the Governor's Mansion in Carson City, on a Saturday. Instead, the officials said, Jacob should choose another poem to recite there -- 15 days after their order -- though Jacob reports (not implausibly) that he practiced his chosen poem twice a day for more than two months. (Recall that the competition is all about quality of performance, since the students are supposed to recite poems they didn't write; it stands to reason that this quality would be closely connected to practice time.)

Fortunately, a federal district court (hat tip: How Appealing) issued an order on Thursday temporarily enjoining the school's prohibition, and thus preventing the school from retaliating against Jacob for his performance on the 22nd. The event, the court pointed out, isn't a school-sponsored curricular activity: The school plays a role in the competition, but the coming event is off school grounds, outside school time, and run by the NEA and the Poetry Foundation, not by the school. The court also held that this speech isn't the sort of "lewd" and "vulgar and offensive" speech that the Supreme Court has held that schools have the power to restrict (at least on-campus). And there was no reason at all to think that the speech would disrupt the school's educational mission, the one remaining theory under which the speech of public school students can be restricted.

I suppose that if I were the school's lawyer, I could come up with a nonfrivolous argument justifying the school's actions: I'd have to say that the winner of the schoolwide phase of the competition becomes the school's representative at further stages of the competition, and the school is entitled to make sure that its representative conveys a "pristine" image. (Winning students' schools get prizes, alongside the prizes given to the student.)

But while this isn't a frivolous argument, it surely is a weak one. The coming phases of the contest are not run by the school. The phases at the school are supposed to be judged on the student's qualities as a reciter; they aren't an endorsement of the merits of the poem. (The recited poem is selected by each student from an anthology prepared by the contest organizers.) The student competes on his own; it seems to me a stretch to say that he's the voice of the school -- and thus properly under the school's control -- in any meaningful way. The court was, I think, right to say that the First Amendment denies the school any power to restrict what the student says outside school hours, off school property, while quoting a poem.

And even setting aside the constitutional issue, what was the school administration thinking? How could it have fallen into this unintentional parody of high school administators' narrowmindedness?

Can modern literature -- and I'm not even talking about the racier stuff -- even be taught with an insistence that all one's language be "pristine"? (I'll even give the school the benefit of the doubt and assume that their objection isn't to the words "damn" and "hell" as such, or else there goes Paradise Lost, but to the words used in nontheological senses.) And what kind of lesson in loyalty is it when a school undermines a winning student who's gone on to compete at higher levels, instead of supporting him?

Even if in a perfect world, the Coral Academy's students would never let a hell or a damn pass their lips (again, except in a theological context), where is the school's sense of perspective? Their sense that there are places where the school's writ does not run? That there are works of literature for which exceptions should be made, even assuming the rule is in principle a good one? That when a student has done well, you should cheer him on rather than trying to block him?

63 Comments

Friday, April 14, 2006

ABA Accreditation Standards Supersede Contrary State Laws

according to a coalition of left-wing advocacy groups.

As regular VC readers will recall, I wrote an op-ed for the Wall Street Journal noting that the ABA's new accreditation standard 211, which is due for a final vote this Summer, requires law schools to engage in racial preferences, even when it's contrary to their own educational judgment, in violation of the Grutter opinion. Moreover, the standards seem to require law schools to violate federal and state law if laws stand in the way of meeting ABA diversity requirements. (For the full argument, see the op-ed and related VC posts.)

Following publication of the op-ed, several conservative organizations wrote to the Department of Education, requesting that it divest the ABA of its authority to accredit law schools for federal purposes if the ABA goes through with enforcing Standard 211.

A coalition of left-wing advocacy groups has written its own letter to the Department of Education, defending the standards.

The most shocking of this letter's many flaws is the claim that to the extent the ABA standards conflict with state constitutional or statutory law, the ABA standards trump state law! [This relates to the following ABA Standard 211 language, which seems to order law schools to violate the law: "The requirements of a constitutional provision or statute that purports to prohibit consideration of gender, race, ethnicity or national origin in admissions or employment decisions is not a justification for a school's non-compliance with Standard 211."] I couldn't believe that anyone would make such an argument with a straight face, but here it is:

Nothing in Standard 211 requires law schools to achieve a fixed number of under-represented students. The interpretative language of the Standards also makes clear the Council's practice to look at the actions of individual law schools in their totality rather than in a rigid, inflexible manner. In any event, as in the case with federal statutes and executive orders, such provisions supersede state laws and constitutions. Particularly, when the accrediting body is overseen by the U.S. Department of Education by virtue of the recognition process, the matters involved in the establishment and imposition of accreditation standards take on the color of federal action.

Come again? The letter writers are claiming that if the Federal Department of Education permits a private organization to accredit law schools, the private organization's standards implicitly become part of federal law, and thus supercede state law under the Supremacy Clause. The chutzpah, the absurdity, the audacity of this argument simply floors me.

I wonder if ABA spokespersons are willing to state on the record that once Standard 211 is in place, the ABA will not adopt the position that it will be a "higher law" than any laws that may conflict with efforts that ABA accreditation committees will try to impose on law schools?

As noted above, the letter has many other flaws. For example, acccording to the letter, the new ABA diversity standard will not require the admission of minority students unless they "are fully capable of succeeding in the educational program." In fact, even under current diversity efforts, over 42% of all African American matriculants either fail out of law school or never pass the bar. At the bottom 2/3 of law schools, the (approximate) figure is over 51%. At individual law schools within the bottom 2/3, the relevant percentage is undoubtedly over 60%, and perhaps much higher at particular schools.

Just to make it clear that the ABA is not interested in whether admitted minority students are likely to succeed, the ABA is also poised to undermine rule 501(b), which states that "A law school shall not admit applicants who do not appear capable of satisfactorily completing its educational program and being admitted to the bar." A proposed "interpretation"* of this rule is pending that directs law schools to ignore the rule if it conflicts with the Standard 211. So, according to the ABA, it’s not only okay, but actually required to admit students whom you know are likely to fail—but only if they are minority students. It's hard to imagine that the ABA could come up with a more pernicious policy if avowed racists led the organization.

The coalition of organizations that are supporting the ABA seem to me to be supporting racial preferences for their own sake, without regard to whether they are lawful in a particular context, and, more surprisingly, without regard to whether they will actually help their purported beneficiaries. The ABA has a stake in ensuring that many minority students matriculate in law schools: after all, the ABA would have a hard time justifying the various monopoly privileges it gets from the government if it didn't ensure that law schools admitted many minority students, at least some of whom will eventually become lawyers. But what stake do "civil rights" organizations have in forcing third and fourth-tier law schools to matriculate African American students who will be giving up other career and educational opportunities for a (sometimes way) less than 50% chance at becoming a lawyer?

* Proposed Interpretation 501(2): "A law school's admission policies shall be consistent with Standards 210 and 211."

Related Posts (on one page):

  1. On the ABA's "Well-Respected Tradition of Accrediting Law Schools":
  2. ABA Accreditation Standards Supersede Contrary State Laws
59 Comments
Online Dating:

It turns out that I met my lovely wife through match.com. I also found our dog, Toby, through petfinder.com. And our two kids we got through babies.com. Well, no, not the last one, but the other two are right. And I'm a big believer in online dating; it has its minuses as well as its pluses, but (1)

E(m) = pn

which is to say the expected number of suitable mates you'll meet (m) is equal to p (the probability that any particular candidate is suitable) times n (the number of people you meet), (2) in my experience, as we get older, more settled, and more educated, we tend to get pickier and the p thus becomes quite low, and therefore (3) one easy solution is to increase the n. And the best way I've seen of doing that is through online dating. (Yes, the equation is an oversimplified model, among other things since the p may vary depending on the source through which you meet people, but I actually didn't find the p to be much less for online dating than for other contributors to n.)

In any case, I was just talking to an acquaintance of an acquaintance, a woman in her thirties who is interested in doing online dating, and I realized that my own store of online dating advice is pretty old -- five years old, which is 35 in Internet years.

So what can our readers, especially women, who have more recent experience recommend? Are there any services that you've found especially useful or useless? Are there any tips that worked for you? Any approaches or practices to stay away from? (Not people to stay away from, approaches or practices to stay away from.)

Please post your answers below. Please limit your answers, though, to useful advice on the subject, rather than (for instance) debates about the morals or social utility of various modern dating practices. I'm trying to collect some useful tips for people, and digressions will decrease the thread's utility.

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Althouse being Althouse.--

Here is Ann Althouse's most recent post:

A perception about time.

Seconds are short. Minutes are long. Hours are short. Days are long. Weeks are short. Months are long. Years are short. Decades are long. Life is short.

Don't you agree?

Unusual--and yet at the same time typical of Ann's interesting mind.

[Ilya Somin (guest-blogging), April 14, 2006 at 1:50pm] Trackbacks
Good Bye!

My guest-blogging stint was supposed to end several days ago now, so it is time for me to take my leave. Those who may be interested might wish to know that a much revised version of 2 of my posts on discrimination against atheists is going to be published in the April 17 issue of the Legal Times.

I had a great time posting on Volokh Conspiracy and interacting with my co-bloggers and readers. I look forward to possibly doing more blogging in the future. In the meantime, however, I have to go back to doing the work that enables me to make a living.

Best wishes to all!

Ilya

16 Comments
Prosecution of Kurdish Immigrants for Running an Unlicensed Money Transfer Operation:

MaxSpeak (Max Sawicky's blog) now has more details on the story, from Max's coblogger Barkley Rosser. I blogged a few weeks ago about an earlier MaxSpeak posting that struck me as overwrought and maddeningly lacking in details. This post provides more details, and links to a newspaper article that offers still more.

As best I can tell, the claim in this post (which doesn't deal with various supposed abuses involved during the investigation and prosecution of the case, but deals just with the substantive issue) is that (1) the defendants, while legally guilty, are basically decent people who ran afoul of a complex law that sweeps harmless conduct in together with genuinely harmful conduct, and (2) the federal prosecutors, realizing this, should have just dropped the prosecution and let the defendants off with a warning.

This is not an implausible claim -- it's hard to tell how plausible without still more information -- but it's important to put it in perspective (something that seemed to me missing from the original MaxSpeak post): There are lots of laws that punish conduct because of its potential to cause harm, and that are in fact applied to people who engaged in the conduct but did so with good motives, and seemingly without causing actual harm themselves.

Licensing requirements are classic examples. Their whole point is to prohibit doing a certain broad class of things (e.g., transfering money, selling guns, selling liquor, distributing controlled substances, and running various other businesses) without a license, and not just to prohibit doing specific items from that class that are harmful (e.g., transfering money to terrorists, or selling guns to people who you know will use them for criminal purposes). As a (squishy) libertarian, I take the view that many (probably most) of these requirements should probably be repealed. But I'm not sure that this is right as to prophylactic rules that are aimed at preventing the transnational distribution of funds to terrorists (distribution that can happen even if the intermediaries are well-intentioned); at the very least, the argument for decriminalizing this has to be made, rather than just assumed. And in any event, until the laws are repealed, it's unsurprising that prosecutors enforce them even against generally decent people.

I should also note one point about the column that Prof. Rosser links to: When it says "The Patriot Act, enacted a month after 9/11, made a simple transfer of someone's money a felony regardless of knowledge or intent, a radical shift in criminal law," it actually means "a radical shift in the legal regime governing money transfers." A casual reader might assume that the "radical shift in criminal law" claim means that there's something radically new about the notion that unlicensed activity can be made a felony regardless of knowledge or intent that the activity is for some harmful purpose (and regardless of whether the actor knows about the licensing statute). That's not at all so, as I mention above.

8 Comments
Not All University Presidents are Craven Weenies

even if it sometimes seems that way. Cheers to Northern Kentucky University president Jim Votruba:

A Northern Kentucky University literature professor could be disciplined for her role in the removal of nearly 400 crosses that were erected on campus as part of a school-sanctioned display by a right to life group.

Tenured professor Sally Jacobsen, who has been teaching at NKU since 1980, said she found the display offensive and asked students in her British literature class Wednesday night if they wanted to take down the crosses.

During a break in class, Jacobsen said she asked "if any students wanted to participate in practicing their freedom of speech in destroying the very offensive right to life, anti-abortion display in the central plaza."

"Some did," she said.

Votruba said he would prefer Jacobsen and others who found the display offensive erect their own display.

"That's a civilized way to let ideas play off each other," he said....

In an e-mail sent to campus officials earlier this week and obtained by The Kentucky Post, Jacobsen demanded the display be removed immediately. She wrote that the crosses violated the separation of church and state because NKU is a state institution.

Votruba disagreed.

"If people are occasionally offended by points of view on a campus, that's what a university is all about," he said.

Votruba said he welcomes lively debate on such a hot-button issue on campus.

"We're a place where ideas get vetted," he said.

UPDATE: This news story, and accompanying photos, suggest that Jacobsen not only encouraged students to vandalize other students' display, she participated in the vandalism. The student "right to life" group is pressing charges, and I hope they throw the book at those responsible.

57 Comments
Suggesting Anti-Gay Book for Inclusion in University Reading Program = Sexual Orientation Harassment?

That's what Ohio State University (Mansfield) professors J.F. Buckley and Norman Jones are alleging, in a complaint that they have filed with the University. A conservative OSU reference librarian (Scott Savage) suggested that several books be included in the first-year reading program; one of the books -- The Marketing of Evil by David Kupelian -- is apparently anti-gay.

The professors claim in a formal complaint filed with OSU that this suggestion, and the librarian's arguments in its defense (which were apparently not otherwise anti-gay, not that this should matter), create a "hostile environment" for them based on their sexual orientation. (The complaint has been referred to as a sexual harassment complaint, but it's really a sexual orientation harassment complaint, see the first paragraph on page 2 of the Ohio State harassment policy.)

Here are copies of the relevant documents, attached to an Alliance Defend Fund letter written on behalf of the librarian. (The ADF, as readers may know, is a public interest law firm that generally approaches things from a cultural/religious conservative perspective.) My summary above relies on the copies of the documents, not on the ADF's own accounts.

The university is now investigating the complaints. It's quite sad, I think, that these university professors are responding to offensive ideas not just by arguing against them, but by trying to coercively suppress them (apparently, according to the ADF's letter, with considerable support from their colleagues). I expect that the university will promptly dismiss the complaint, since even under the university's own policy such speech is not prohibited -- among other reasons, the speech wasn't "based on a person's protected status," since the statements weren't about the complainants, and weren't targeted towards the complainants because of their sexual orientation. But it reflects badly on the complainants that the complaint is even being filed.

Oh, and one related item, from a message during this debate written by another professor, Hannibal Hamlin (no, not the Hannibal Hamlin): "On the matter of homophobia, I think you should be rather careful, Scott. OSU's policy on discrimination is not simply a matter of academic orthodoxy, but a matter of human rights." Yes, reference librarians, professors, students, everyone: On matters of certain viewpoints that are prohibited by university policies, we think you should be rather careful.

Thanks to commenter Gaius Obvious for the pointer.

Related Posts (on one page):

  1. Accusing Librarian of Sexual Orientation Harassment
  2. Scott Savage Cleared:
  3. Interesting Tidbit About the Ohio State (Mansfield) Controversy:
  4. Suggesting Anti-Gay Book for Inclusion in University Reading Program = Sexual Orientation Harassment?
244 Comments

Thursday, April 13, 2006

Comedy Central Censored out of Fear, not Tolerance.--



South Park Executive Producer Reveals That Comedy Central Censored the Showing of Mohammed out of Fear, not “Religious Tolerance.”

Thursday, April 13, 2006.

On Wednesday night, the cable network Comedy Central showed a censored episode of the animated cartoon, South Park, refusing to allow a brief depiction of the prophet Mohammed. The battles between the network and the producers and creators of South Park over the inclusion of Mohammed raged until late Tuesday night, less than 24 hours before the show aired Wednesday at 10pm ET.

Interview With Producer Reveals Reason for Censorship was "Fear"

In an interview Thursday evening, South Park Executive Producer Anne Garefino revealed to me that the show was faced with two options: deliver the episode as written and animated with Mohammed shown and then allow Comedy Central to censor it, or edit out the disputed scene and write their own language explaining why Mohammed was not being shown and whose decision it was. “We wanted everyone to understand how strongly we felt about this,” said Garefino. Although the decision to omit Mohammed was not theirs, they wanted the language of the censorship disclosure to be their own.

Along with South Park creators Matt Stone and Trey Parker (who are also Executive Producers of the show), Garefino was heavily involved in the negotiations with Comedy Central. She made clear that the reason for Comedy Central’s decision was “fear”: “We were happy that they didn’t try to claim that it was because of religious tolerance.” She thought that South Park’s arguments and influence might have had something to do with the candor of Comedy Central executives on this point.

On Thursday, to justify its decision not to broadcast a depiction of Mohammed, Comedy Central released a brief public statement that hinted at violence, but gave no explicit reason for its action:

"In light of recent world events, we feel we made the right decision."

When asked whether Comedy Central was responding to any specific threats of violence if it showed Mohammed, Garefino replied, “Not that I know of.”

Censoring a Cartoon

The censored episode was Part II of a story begun the week earlier called "Cartoon Wars." In a complicated “play within a play” scenario, the town of South Park, Colorado, becomes frightened because the Fox Network is supposedly going to show Mohammed in its Family Guy cartoon. To reduce the threat of terrorist violence, the people of South Park decide to truck in sand and bury their heads in it. Two of the boys of South Park, Kyle and Cartman, go to Los Angeles—Cartman to persuade the President of Fox to censor Family Guy and Kyle to stop him.

(Cartmnan and Kyle head for LA in Part I; click to enlarge)

In their trailer for Part II (shown last week along with Part I), South Park creators Matt Stone and Trey Parker warned that they might be censored by Comedy Central:

"As an entire nation buries its head in sand: 'The idea has swept the nation, but where we will find enough sand for everyone?' . . . Will television executives fight for free speech or will Comedy Central puss out?"

In Part II shown on Wednesday, Kyle and Cartman rehearse at least some of the arguments that the principals for both sides actually used in their censorship battle.

Kyle lectures the head of FOX about the importance of free speech:

"You can't do what he wants just because he's the one threatening you with violence. . . .

Yes, people can get hurt. That's how terrorism works. But if you give in to that, Doug, you're allowing terrorism to work. . . .

Do the right thing, Mr. President. . . .

If you don't show Mohammed, then you've made a distinction between what is OK to make fun of and what isn't. Either it's all OK or none of it is. Do the right thing."

(Cartman threatens the President of Fox; click to enlarge)

In the episode, the President of Fox allows the depiction of Mohammed.

But instead of showing Mohammed in the South Park episode, two sets of titles appeared on a black screen. The first read:

"In this shot, Mohammed hands a football helmet to Family Guy."

The second read:

"Comedy Central has refused to broadcast an image of Mohammed on their network."

(click to enlarge)

The uncensored depiction of Mohammed is described in the episode by an animated President Bush as not being in itself derogatory: “Hey, that wasn't bad at all. They just showed Mohammed standing there, looking normal."

In the episode, Al Qaeda then retaliates by broadcasting its own cartoon showing Americans, President Bush, and Jesus defecating on each other and the American flag.

Defenders of Comedy Central argue that it regularly allows South Park and other shows to “push the envelope,” with far more lax controls than almost any other cable network.

On the other hand, critics of the network have pointed out that showing “Mohammed standing there, looking normal” is not allowed, while showing Jesus defecating on President Bush and the American flag is permitted.

Garefino also confirmed that a short video circulating on the internet, which purports to be the excised South Park scene with Mohammed, is a forgery, though she revealed that a scene with Mohammed was animated and does exist. Garefino reported that she still hopes that the original, uncensored episode of South Park will be shown in the near future.

Although other sources with knowledge of Comedy Central’s side of the dispute were interviewed for this story, any comments made were off the record.

Readers may comment on this story here.

South Park Discussion Thread.--

I am posting a separate story on VC based on my interview of South Park Executive Producer Anne Garefino. It answers some questions raised by commenters here.

I may edit or add to this post from time to time, without showing changes.

Feel free to comment on South Park below.

I reorganized the order of the paragraphs in the Garefino interview story to give more emphasis to the interview itself.

UPDATE (4:55 FRI): I wanted to point out that Anne Garefino's characterization of "fear" is consistent with the AP/WAPO characterization, based on an unnamed source: "The network's decision was made over concerns for public safety."

From my talking with people on both sides of the dispute, it appears that some of the arguments actually made in the negotiations over showing Mohammed found their way into the statements of Kyle and Cartman in "Cartoon Wars"--including probably Kyle referring to the president of Fox as "Doug," an obvious reference to Comedy Central's president, Doug Herzog.

Further, as many commenters below have noted, that Garefino had not heard of any specific threats against Comedy Central or anyone else because of "Cartoon Wars--Parts I and II" does not mean that Comedy Central's fears were unfounded. I think that there was a nontrivial chance that people would die if Comedy Central showed the cartoon as made--and any deaths might be traceable precisely to their decision to show Mohammed.

Of course, there is also a substantial chance that even more people will die if institutions give in to the actual or anticipated threats of religious terrorists. Here, though, the marginal impact of any one institution's cave-in is impossible to know, and thus, even if more people were to die ultimately from Comedy Central's decision to censor South Park, one would likely not be able to trace any resulting deaths to Comedy Central's decision to censor, rather than to many other societal decisions to restrict artistic and political speech.

Anyone who thinks that there was nothing at stake besides free speech in Comedy Central's decision isn't recognizing that "ideas have consequences"--for both good and ill.

140 Comments
USC Muslim Students Union Reacts to the Planned Panel Discussing and Displaying the Cartoons:

Here's the flyer expressing the Muslim Student Union's views. "Please come and voice your support for free speech and respect for freedom of religion," the flyer reports. Moreover, the flyer says, "Islam promotes free speech." Sounds great!

But, the flyer goes on, "it is important to recognize that anything that is discriminatory does not qualify under this heading" of free speech. I take it that the implication is that criticism of Islam, or critical depictions of Mohammed (or is it any depictions of Mohammed at all?), is unprotected because it's "discriminatory." How about Muslim statements that other religions are misguided; are those "discriminatory," too?

Plus of course there's also the old chestnut about the supposed "differences between free speech and hate speech." Fortunately, modern U.S. First Amendment law does not treat the two as antonyms, just as it wouldn't discuss "the differences between free speech and blasphemy" or "the differences between free speech and sedition." It's a shame that the USC Muslim Student Union takes a different view.

Finally, the flyer promises that the advertised meeting "will be discussing the ramifications of the continued unveilings across the country on the Muslim community at large as well as its political implications." Here's my sense of the political implications: If the Muslim community is perceived as hostile to free speech, and as friendly towards coercively suppressing criticisms of Islam, that's going to be quite politically bad for it, at least in America. If, on the other hand, leading Muslim voices were to defend even the speech of Islam's critics, and to stress that the proper response to offensive speech is peaceful debate, not suppression by violence or by force of law, that would be politically good for the Muslim community.

21 Comments
Jaruzelski charged with leading an armed criminal organization:

Poland's former communist dictator, General Jaruzelski, has been criminally charged with leading "a crime related armed organization." That organization, of course, was the government of Poland.

To some people, the notion that a government could be a crime organization would seem strange; for example, Richard Nixon once declared "If the President does it, it's not illegal." One of the ways in which the Roman Empire showed its inferiority to the Roman Republic was by espousing the notion that the Princeps was above the law.

The better view, however, is the rule of law also applies to the government, and that governments can indeed degenerate into criminal organizations. In The City of God, Augustine wrote: "If justice be taken away, what are governments but great bands of robbers?" He told a story attributed to Cicero.

Indeed, that was an apt and true reply which was given to Alexander the Great by a pirate who had been seized. For when that king had asked the man what he meant by keeping hostile possession of the sea, he answered with bold pride, "What thou meanest by seizing the whole earth; but because I do it with a petty ship, I am called a robber, whilst thou who dost it with a great fleet art styled emperor."
(The story appears in a section of Cicero's Commwealth from which several pages of the original text have been lost, and only the final sentence remains.)

The same point was also made, centuries before, by the great Jewish scholar Philo of Alexandria. And as Don Kates, explained in an excellent article in Constitutional Commentary, the American Founders (and their British intellectual influences, such as Blackstone and Locke) thought that the right of self-defense was applicable against either a small band of criminals or against a larger groups of criminals which called themselves a "government."

5 Comments
See the [FAKE] censored clip of Mohammed from South Park, now playing on the web.--

[3d UPDATE: South Park Executive Producer Anne Garefino confirmed to me that the clip is a forgery, but an uncensored episode does exist. See the details here.]

[2d UPDATE: I have had a call into South Park Studios for a while to try to get them to confirm or deny the authenticity of the clip. Until then, I find Brendan Loy persuasive that the clip is a fake.]

[1st UPDATE: A commenter below thinks that the clip and still photo might be fakes that have been photoshopped. Like some of the Danish cartoons, the clip linked here and the still photo might well be forgeries.]

[What purports to be] The censored clip of Mohammed from the Wednesday South Park episode may be viewed at the South Park Scriptorium (with the proper software). A still picture of Mohammed from the [purportedly] censored scene is also available there. [Brendan Loy has reasonably good evidence suggesting that they are forgeries.]

In the clip, Mohammed says:

"Ah, jihad, jihad."

[Still photo deleted for reasons given in the 2d Update above.]

[If legitimate,] this clip tends to show (though it doesn't prove) that, despite earlier warnings that Comedy Central would not allow Mohammed to be shown, Stone and Parker still hoped to change the network's decision.

30 Comments
The Flight 93 Tapes: The New York Times has a report on the audio tapes of what happened on Flight 93 on September 11 ,2001, played at the Moussaoui trial for the first time in public. It's hard to do justice to the event or the tapes with just an excerpt, but here is the most chilling of the very chilling parts:
  The recording ends with a three-minute crescendo of noise as a passenger apparently just outside the door shouts: "In the cockpit! If we don't, we'll die!"
  On the other side of the door, two hijackers are heard deliberating before deciding to end the flight to avoid being overcome.  "Is that it? I mean, shall we pull it down?" one asks in Arabic and the reply is, "Yes, put it in it and pull it down." They then both scream repeatedly "Allah is the greatest" in Arabic as the planes goes down at 10:03 a.m. into a field in Shanksville, Pa., at more than 500 miles an hour. Aboard were 33 passengers, 5 flight attendants, 2 pilots and the 4 hijackers.
The story adds, a few sentences later: "Mr. Moussaoui, who was in jail in Minnesota at the time of the attacks, smiled broadly at times during the playing of the recording."
41 Comments
Comedy Central Releases Brief Statement on Decision to Censor Mohammed.--

I just had an amusing off-the-record conversation with someone at Comedy Central. They have released a simple public statement on their decision to deny South Park the right to show a depiction of Mohammed in their Wednesday episode, Cartoon Wars--Part II:

"In light of recent world events, we feel we made the right decision."

There is much more in an earlier post here.

UPDATE: The Washington Post now has a story that gives some background (tip to Malkin):

When the [Danish] cartoons were reprinted in newspapers worldwide in January and February, it sparked a wave of protests primarily in Islamic countries.

Parker and Stone were angered when told by Comedy Central several weeks ago that they could not run an image of Muhammad, according to a person close to the show who didn't want to be identified because of the issue's sensitivity.

The network's decision was made over concerns for public safety, the person said.

Comedy Central said in a statement issued Thursday: "In light of recent world events, we feel we made the right decision." Its executives would not comment further. . . .

A frequent "South Park" critic, William Donohue of the anti-defamation group Catholic League, called on Parker and Stone to resign out of principle for being censored.

"The ultimate hypocrite is not Comedy Central _ that's their decision not to show the image of Muhammad or not _ it's Parker and Stone," he said. "Like little whores, they'll sit there and grab the bucks. They'll sit there and they'll whine and they'll take their shot at Jesus. That's their stock in trade."

Parker and Stone did not immediately respond to a request through a spokesman for comment.

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Term Limits for Thee, But Not (In the End) For Me: The USA Today has a report on seven House Republicans who ran in favor of term limits and swore that they would only serve a set number of Terms — only to realize, after they themselves had served those Terms, that term limits are actually a bad idea. All seven are breaking their pledges and running for reelection.

  I happen to agree that term limits are a bad idea, and I thought so even when it was out of fashion. But it's pretty pathetic to run on them when they help you and run aganst them when they hurt you. As John Miller puts it: "Each one of them exploited popular sentiment about term limits for personal gain; they are now becoming what they once railed against."

  Here is the list of the seven Representatives:

Barbara Cubin, Wyoming
Jeff Flake, Arizona
Gil Gutknecht, Minnesota
Timothy Johnson, Illinois
Frank LoBiondo, New Jersey
Mark Souder, Indiana
Zach Wamp, Tennessee

  According to USA Today, none of the seven faces serious opposition in their reelection campaigns.
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Did Comedy Central Censor South Park?

Did Comedy Central censor tonight's episode of South Park? The answer would appear to be YES.

[THURSDAY NIGHT UPDATE: In an interview Thursday evening, South Park Executive Producer Anne Garefino explained to me that Comedy Central censored the episode out of fear (not tolerance) and gives details here on how the battle whether to air the Mohammed scene continued until late Tuesday night, less than 24 hours before airing the episode.]

[UPDATE from Thursday early afternoon and updated again Thursday night: In response to my inquiries whether the statement aired on South Park on Wednesday night was accurate, early this morning an official with media relations at Comedy Central gave me an evasive answer, "Well, not exactly." He then referred me to a Comedy Central VP who [was either away from his desk or on another call when I tried to reach him three times over a 15-20 minute period. Apparently, he promptly returned my call within a few minutes of my last morning call, leaving me a voice mail message that I didn't pick up until late Thursday afternoon, after I had already spoken with him.]]

But Stephen Spruiell at NRO now has a confirmation of the censorship claim made on South Park (and first posted here on VC on Wednesday night).

A spokesman for Comedy Central told NRO:

They reflected it accurately. That was a Comedy Central decision.

NRO goes on to say: "Just in case there was any confusion, that settles it. Comedy Central censored the image."

Comedy Central has now released a brief statement:

"In light of recent world events, we feel we made the right decision." ]

In Wednesday's episode, part II of "Cartoon Wars," Kyle (one of the boys of South Park) persuades the President of Fox TV to run a Family Guy episode with a short scene including Mohammed. Kyle lectures the head of FOX about the importance of free speech:

"You can't do what he wants just because he's the one threatening you with violence. . . .

Yes, people can get hurt. That's how terrorism works. But if you give in to that, Doug, you're allowing terrorism to work. . . .

Do the right thing, Mr. President. . . .

If you don't show Mohammed, then you've made a distinction between what is OK to make fun of and what isn't. Either it's all OK or none of it is. Do the right thing."

At the point in the South Park episode where Mohammed is about to be shown handing a football helmet (with a salmon on top of it) to the Family Guy, the screen shows these words:

"In this shot, Mohammed hands a football helmet to Family Guy."

The next screen shows these words:

"Comedy Central has refused to broadcast an image of Mohammed on their network."

In the South Park episode, President Bush then sees the image of Mohammed supposedly broadcast on Family Guy (which Comedy Central censored us from seeing) and says,

"Hey, that wasn't bad at all. They just showed Mohammed standing there, looking normal."

Al Qaeda retaliates by broadcasting its own cartoon showing Americans, President Bush, and Jesus "crapping" on each other and the American flag.

"Al-Zawahri" then praises his retaliatory cartoon:

"Oh Yeah. Take THAT! We Burned you! That was way funnier than Family Guy."

Thus, from the South Park episode itself, it appears that tonight: "Comedy Central has refused to broadcast an image of Mohammed on their network." To be certain of this, one would want confirmation from Comedy Central or the South Park creators.

Tonight's episode is being rebroadcast on Comedy Central at midnight ET Wednesday night and 10pm ET Thursday night.

It should be noted that a 2001 episode of South Park included Mohammed.

UPDATE: As one of the comments below notes, Comedy Central apparently allows South Park to show Jesus defacating on others and being defacated on, but prohibits showing Mohammed "just standing there, looking normal."

Unfortunately, until Comedy Central or Matt Stone and Trey Parker make clear whether South Park was indeed censored, one can't know for sure. The "play within a play" format renders things a tad uncertain.

FURTHER UPDATE: There is much more at

Malkin (including clips and links).

Also:
Instapundit,
NRO,
the Captain,
Iowa Voice,
Anchoress
,
Political Pit Bull
,
Right Wing News
,
Tammy Bruce,
Coalition of the Swilling,
Malcontent,
You Tube,
TV Squad,
Pretend Pundit.

FURTHER, FURTHER (late Thursday afternoon) UPDATE:

This post has been updated here, here, here, here, including a link to the [fake] censored clip from Wednesday's episode. [I deleted a still picture here because it and the clip from which it was taken are fakes .]

142 Comments

Wednesday, April 12, 2006

Bainbridge v. Drum on the Minimum Wage.--

It's Professor Bainbridge v. Kevin Drum on a hike in the minumum wage.

Both are eloquent enough to speak for themselves, but Bainbridge makes more of a positive argument, while Drum is just making a passing dismissive crack. Drum favors raising the minimum wage at least "a buck or two." Bainbridge favors indexing it:

First, the minimum wage debate is not really a debate about how much money the working poor make. Instead, it is mainly a debate about how much working teenagers and twenty-somethings in their first job ought to make. The federal Bureau of Labor Statistics reports that (in 2002):

Minimum wage workers tend to be young. About half of workers earning $5.15 or less were under age 25, and slightly more than one-fourth were age 16-19.

Among workers over 25, only two percent - 2%! - earned the minimum wage. Sympathy for the working poor thus ought not to be a driver of minimum wage debates.

Second, setting aside the debate of whether an increase in the minimum wage affects the supply of jobs for teenagers (wages go up, employers hire fewer workers), an increase in the minimum wage increases the demand by teenagers for work:

Minimum wages increase the probability that teenagers leave school to become employed or work more hours, and increase the probability that they leave school and become non-enrolled and non-employed. Minimum wages also increase the probability that lower-wage employed teenagers become non-enrolled and non-employed.

In other words, because teenagers tend to apply too high a discount rate to the higher future income associated with higher educational attainment, they systematically underestimate the present value of the future deferred income associated with staying in school. As a result, when deciding between work and a present paycheck versus school and deferral of income, they will tend to err towards the former. Increasing the minimum wage simply makes the choice of work even more attractive.

This analysis has two implications for minimum wage policy. First, a differential lower minimum wage for those who have not completed a high school degree probably would result in a lower dropout rate. Second, the minimum wage ought to be indexed, so that it grows no faster than inflation, so as to not further bias the choice between work and school.

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US sticks its head in sand to avoid seeing a Muhammed cartoon--coming to you on South Park tonight.--

South Park continues its examination of the Muhammed cartoons with "Cartoon Wars--Part II." You can watch a trailer for the new episode in the middle of the page here.

Last week's episode (Part I) re-airs at 9:30pm ET (8:30pm CT) tonight (Wednesday). The new episode (Part II) follows at 10 pm ET and midnight ET, as well as Thursday at 10 pm ET.

From the trailer for the new episode:

"As an entire nation buries its head in sand: 'The idea has swept the nation, but where we will find enough sand for everyone?' . . . Will television executives fight for free speech or will Comedy Central puss out?"

Tune in tonight to find out the answers to these and other questions!

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Michael Totten finally makes it back to Iraq.--

Michael Totten has been spinning a wonderful tale of taking his friend Sean to Kurdish Iraq on a lark. I waited to link until the third installment when they finally set foot in Iraq, though there are more posts to come.

The first installment is here, the second here, and the third here.

From the third post, "Back to Iraq--III":

Turkish Kurdistan is a disaster. It is not where you want to spend your next holiday.

One village after another has been blown completely to rubble.

The Turkish equivalent of roadside Kurdish strip malls have also been blown to pieces, by tank shells, air strikes, or what I could not say. . . .

The civil war in Eastern Turkey didn’t look anything like it was over. I could tell just from driving on through that the Marxist-Leninist Kurdistan Workers Party (the PKK) was still active. How else to explain the full-on siege by the army? The Turks’ treatment of Kurds has been horrific since the founding of the Republic. But the PKK seems hell-bent on matching the Turks with the worst they can muster, including the deliberate murder of Kurdish as well as Turkish and foreign civilians. . . .

Some Kurdish villages in Turkey still stood. Every one of them, though, looked grim compared to many of those I had seen earlier in Northern Iraq.

The only places in Turkish Kurdistan that looked pleasant were those where no people lived, where there was no dug-in military, where there was no visible poverty, where there were no blown up buildings, and where you did not look across minefields toward Syria on the horizon.

Later, at the border:

We pulled up to the side of a building. The man with the horrible pink scars on his face got out.

“Follow that man,” our driver said. “He knows what to do.”

We followed him to a drive-thru type window and handed our passports to the border official. He stamped us out of the country and we were set.

“Do you know why that man’s face looks like that?” Sean said on our way back to the taxi.

“No,” I said. “Do you?”

“He's Iraqi," Sean said. "Those scars are burns from chemical weapons. I’ve seen photos online. I know that’s what happened to him.”

We drove through a post-industrial wasteland of devastated buildings, piles of scrap metal and box cars, an unfinished international highway, and derelict drive-thru gates that presumably were closed after the Saddam regime's batshit behavior required a long-ago shutdown of the Turkish side of the border. After a quick hop over a one-way bridge we were inside Iraq. The Iraqi side was cleaner, more orderly, more prosperous, and far more soft on the eyes than the Turkish side. I wish I could have taken some pictures for contrast. I swear it felt like the sun came out and the birds started chirping as we left Eastern Turkey behind. . . .

"Well," Sean said as he flicked his eyes around the room. "We're here."

A portrait of Kurdistan Regional Government President Massoud Barzani hung on the wall.

I knew I would go back to Iraqi Kurdistan. But I could hardly believe I was back there already.

The customs boss came out from behind the desk and walked up to me and Sean.

"What do you guys do?" he said. "Are you NGOs?"

"You won't believe me when I tell you," I said.

He raised his eyebrows.

"We're tourists," I said.

He laughed. "Welcome to Kurdistan! How long do you want to stay?"

"We're just here for the day," Sean said.

He laughed again. "How long will you be here, really?" he said. "Two weeks? A month?" He spread out his hands.

“I swear to God,” I said, “we are going back to Turkey today. I've been here before. Sean hasn't. We were just in the area and I want to show him Dohok."

He smirked at us, indicating he was willing to play along with what he thought was a ruse. "Welcome," he said. "Welcome." . . .

He grinned and patted both of us on the back. “Welcome, my American friends!” he said. “Have a wonderful time while you’re here.”

The whole thing was just weird. I don’t quite know how to convey how surreal it is to leave a country that maybe, just maybe, might join the European Union and enter a country that is a poster-child for wrenching war-torn catastrophe and have everything around me dramatically improve all at once. But that's how it goes these days when you cross into Iraq from Turkey. Even though Sean had never been there before, he, like me, breathed a sigh of relief at our arrival in a tranquil place at peace with itself.

Great stuff!

Hey, Why Doesn't April 12 Rate a Special Google Logo?

 

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Stanford Law Dean IM's Harvard Law Dean,

in the April 1 issue of the Harvard Law Record. Thanks to Orin for the pointer.

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What are Manolo Blahniks?--

Instapundit and Bidinotto point us to this story, with Glenn asking whether Oprah has been reading Ayn Rand.

Oprah Winfrey is a rich woman – and she's got no problem with that.

Speaking in Baltimore on Monday at a fundraiser for Beth Tfiloh Dahan Community School, Winfrey told the audience, "I have lots of things, like all these Manolo Blahniks. I have all that and I think it's great. I'm not one of those people like, 'Well, we must renounce ourselves.' No, I have a closet full of shoes and it's a good thing."

Winfrey, 52, who is reportedly worth more than $1 billion, said she doesn't feel guilty about her wealth. "I was coming back from Africa on one of my trips," she said. "I had taken one of my wealthy friends with me. She said, 'Don't you just feel guilty? Don't you just feel terrible?' I said, 'No, I don't. I do not know how me being destitute is going to help them.' Then I said when we got home, 'I'm going home to sleep on my Pratesi sheets right now and I'll feel good about it.' "

Should I feel bad that I didn't even know what Manolo Blahniks were (they're shoes) and that I'd also never heard of Pratesi sheets.

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Using DNA Tests to Confirm Ancestry and Receive Financial Benefits.--

The New York Times has an odd, but fascinating story about DNA services that purport to determine whether one's ancestors were of such heritages as Native American, North African, British Isles, or (apparently) European Jewish:

Alan Moldawer's adopted twins, Matt and Andrew, had always thought of themselves as white. But when it came time for them to apply to college last year, Mr. Moldawer thought it might be worth investigating the origins of their slightly tan-tinted skin, with a new DNA kit that he had heard could determine an individual's genetic ancestry.

The results, designating the boys 9 percent Native American and 11 percent northern African, arrived too late for the admissions process. But Mr. Moldawer, a business executive in Silver Spring, Md., says they could be useful in obtaining financial aid. . . .

Genetic tests, once obscure tools for scientists, have begun to influence everyday lives in many ways. The tests are reshaping people's sense of themselves — where they came from, why they behave as they do, what disease might be coming their way.

It may be only natural then that ethnic ancestry tests, one of the first commercial products to emerge from the genetic revolution, are spurring a thorough exploration of the question, What is in it for me?

Many scientists criticize the ethnic ancestry tests as promising more than they can deliver. The legacy of an ancestor several generations back may be too diluted to show up. And the tests have a margin of error, so results showing a small amount of ancestry from one continent may not actually mean someone has any. . . .

One Christian is using the test to claim Jewish genetic ancestry and to demand Israeli citizenship, and Americans of every shade are staking a DNA claim to Indian scholarships, health services and casino money.

"This is not just somebody's desire to go find out whether their grandfather is Polish," said Troy Duster, a sociologist at New York University who has studied the social impact of the tests. "It's about access to money and power."

Driving the pursuit of genetic bounty are start-up testing companies with names like DNA Tribes and Ethnoancestry. For $99 to $250, they promise to satisfy the human hunger to learn about one's origins — and sometimes much more. On its Web site, a leader in this cottage industry, DNA Print Genomics, once urged people to use it "whether your goal is to validate your eligibility for race-based college admissions or government entitlements." . . .

DNAPrint calls the ethnic ancestry tests "recreational genomics" to distinguish them from the more serious medical and forensic applications of genetics. But as they ignite a debate over a variety of genetic birthrights, their impact may be further-reaching than anyone anticipated. . . .

Ashley Klett's younger sister marked the "Asian" box on her college applications this year, after the elder Ms. Klett, 20, took a DNA test that said she was 2 percent East Asian and 98 percent European.

Whether it mattered they do not know, but she did get into the college of her choice.

"And they gave her a scholarship," Ashley said.

Pearl Duncan has grander ambitions: she wants a castle.

The article has many interesting stories of people using these new tests to determine ancestry.

But the New York Times story is very weak on the science behind the tests. The last time I reviewed the genetics literature behind racial classifications was about a decade ago, so I am not up to speed on recent developments, though I recall discussing with a genetics scholar the possibility of such testing for the general public. Here (in my lay opinion) is where things stood a decade ago.

First, the consensus is that race is a social construct that maps very crudely onto real genetic (and thus physical) differences, of which skin color is only one example.

Second, whether there are genetically three races or five races or twenty races depends more on whether the racial classifier is a "lumper" or a "splitter." It's a bit like determining how many major fields there are in law. Are there just two: private law and public law? Or are there twenty fields, or fifty fields, or more? (Though for law, while there are real differences between fields, there is little physical or genetic reality lying beneath the classifications.) At the margin, any classifications are going to be (or appear to be) arbitrary.

Third, there are few (if any) genetic markers that everyone in one traditional racial category has and everyone in other traditional racial categories lack. (I take it that there may be a few markers that are found only in some racial or ethnic groups, but not all people in those groups have the markers.)

If one looks for genetic markers, one could draw something like the isobars one sees in weather maps. In one area (even without recent migration), 90% of those living there have a particular marker, in another area 80% have the characteristic, and so on. This is obviously true for physical characteristics, such as hair color, eye color, and skin color. For example, there is a real difference in skin color between those whose families lived for the last 600 years in southern Sweden and those whose families lived over the same period in sub-Saharan Africa. Yet there is no one line that could be drawn between light skin and dark skin. If one drew a map of mean skin color between southern Sweden and central Africa, there would be the equivalent of isobars marking the gradual differences, with the isobars closer together in some regions and farther apart in others. Wikipedia has a fairly crude version of such a skin color map and another from the dust jacket of Cavalli-Sforza's The History and Geography of Human Genes (1994), a population genetics text that I consulted in my research a decade ago. Further, the maps would be somewhat different for skin color, hair color, or one genetic marker or another.

Genetic Variation (Cavalli-Sforza)

At the genographic project, they trace genetic markers that identify groups that migrated around the world tens of thousands of years ago, thus creating genetic diversity in regions long before the age of exploration.

Coming back to these new genetic services described in the New York Times, I would have liked more of an explanation in the article about what markers allow them to determine that someone is "10% British Isles" or "3% Native American" or "2% East Asian." Because I wasn't aware that the genetic signature of British Isles ancestry was so specific that it permitted such a conclusion, I would have appreciated an identification of the scientific basis for such a claim. As for 3% Native American or 2% East Asian, I would have liked a confirmation that they found a marker present only in those groups, rather than one simply unlikely to be found in other ethnic groups.

Despite the frustrating absence of information about the scientific bases for the determinations, I recommend reading this Times account of the operation of what Justice Brennan called "benign racial sorting."

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And speaking of Italy:

In preparation for my stay in Italy this semester, I read, a few months ago, Alessandro Manzoni's extraordinary novel "The Betrothed" ("I Promessi Sposi"). [In English, alas -- my Italian is getting good, but it's not that good ...] It's the great 19th-century Italian novel -- every schoolchild reads it, everybody knows it inside and out, and people refer to it with some frequency (among other things, Manzoni's decision to write it using the Tuscan dialect helped to establish that as the modern Italian language). It's a remarkable book -- I can't recommend it highly enough. [I read the Penguin edition, translated by Bruce Penman; while I can't speak for the fidelity of the translation, the English prose was supple and very powerful]. Manzoni's descriptions of life in the 17th century -- the plague sweeping through the country, bread riots in Milan, the relationship between peasants and the Church and local and distant royalty -- are simply overpowering; I don't think I will ever be able to think about those subjects, or a dozen others touched upon in the book, without recalling his descriptions. It's a little bit like he was writing the Dickensian novel before Dickens was Dickens. Very few Americans have ever heard of it, let along read it; but if your taste runs to things like, say, "Great Expectations," or George Eliot's "Middlemarch," or Hardy's "Return of the Native," you will thank me for pointing you in this direction.

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Italy, continued:

Mike Livingstone has a nice summary here of what he (rightly, I think) calls "the most extraordinary day in recent Italian history" -- yesterday, when the results of the election were announced and, simultaneously, Bernard Provenzano, the leader of the Sicilian mafia who had been in hiding for forty three years, was finally arrested. It looks as though Romano Prodi, head of the center-left coalition, has won the narrowest of victories; his coalition received around 20,000 more votes than Berlusconi's. But under Italy's "bonus" system -- put into place, ironically, by the Berlusconi regime, and opposed at the time by most of the opposition center-left parties -- the coalition (not the party, but the coalition of parties) that receives the highest number of votes gets a bonus allocation of 40 seats in the Camera, the lower house of the national assembly. A razor-thin electoral vote margin can therefore produce a more substantial governing majority, and it looks like that's what Prodi has now; it was very weird, though, to try to follow the election results and to see the majority in the Camera flipping from one side to another as the votes were counted and Prodi's percentages went from 49.8 to 49.7 . . . . Prodi, as it happens, lives about 2 blocks from us here in Bologna. On the last night of the campaign, last week, his campaign held a big "comizio" -- sort of like an American political rally, but much less stage-y, much more serious -- in the big central square in Bologna, at the end of which Prodi just walked home . . . followed by thousands of supporters (mostly drawn from among the huge student population here) singing revolutionary anthems and waving their giant flags in the air. It was quite a scene; I'd let myself get more swept up in it all if I thought that Prodi really had good answers to what ails Italy. It will probably be a step up to be rid of Berlusconi -- but governing Italy with a left-wing coalition, a substantial portion of which consists of the Communists, will be no mean feat. During the campaign, Prodi attacked one of Berlusconi's labor law reforms, which had (shades of France!) raised the mandatory retirement age from 57 to 60; not, in my opinion, the move made by someone willing or able to tackle the very serious economic problems Italy faces at the moment. But I certainly wish him well -- if any country deserves good economic times, it's Italy.

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Get Volokh Conspiracy Posts By E-Mail:

Just reminding readers of this option, in case some people find it useful. Here's the list management page; you can use it to subscribe, change options, or unsubscribe. About 185 of our readers are taking advantage of this. Another 65 use the announcements only list, which sends the headers and pointers to the full post, rather than the full post itself.

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Sen. McCain on Jobs No American Citizens Want, Even at $50/Hour:

The comments to one of my posts pointed to this claim by Sen. McCain:

[Speaking to the AFL-CIO's Building and Construction Trades Department, McCain took] questions, including a pointed one on his immigration plan.

McCain responded by saying immigrants were taking jobs nobody else wanted. He offered anybody in the crowd $50 an hour to pick lettuce in Arizona.

Shouts of protest rose from the crowd, with some accepting McCain's job offer.

"I'll take it!" one man shouted.

McCain insisted none of them would do such menial labor for a complete season. "You can't do it, my friends."

How can this assertion of his possibly be right? Fifty dollars an hour is $100,000 per year. I suspect the lettuce-picking season is shorter than a year, but it's still $50,000 per six months, assuming a 40 hour/week pace. It's possible that no-one in that particular crowd would think this is a good deal; among other things, they already had jobs that likely pay pretty well, and perhaps most of them were older and not terribly fit (McCain saw the crowd and I didn't). But surely there must be some substantial number of current American citizens who would be quite willing to engage even in highly strenuous physical labor for an annualized wage of $100,000 per year, no? Even if 99% of all Americans would be unwilling or unable to do the job, the remaining 1% should be plenty to fill those hypothetical jobs.

Now perhaps Sen. McCain should have just chosen a lower number; maybe his claim would have been plausible at that number, though I'm not sure. But it seems odd that he would choose a number that is so clearly out of place for his argument — that he would seemingly deliberately engage in such pretty patent overstatement.

Related Posts (on one page):

  1. Sen. McCain on Jobs No American Citizens Want, Even at $50/Hour:
  2. More on "Jobs Americans Won't Do":
  3. Response to "Jobs Americans Won't Do":
  4. Jobs Americans Won't Do:
83 Comments

Tuesday, April 11, 2006

[Ilya Somin (guest-blogging), April 11, 2006 at 11:35pm] Trackbacks
When Should the Supreme Court Follow its Own Mistaken Precedents?

In this article, law professor Robert Nagel makes a strong argument that the Supreme Court's rhetoric (if not its practice) gives too much respect to its own precedent and not enough to the Constitution that the precedents are supposed to be expounding. After all, Judges swear an oath to uphold the Constitution, not the Court's prior precedents. At least in principle, when the precedent conflicts with the Constitution, it is the precedent which should give way.

I agree with many of Nagel's points. But like most other commentators, Nagel does not give a fully satisfactory account of when a flawed precedent should be maintained because reversing it would be too disruptive of settled expectations ("reliance interests," as lawyers call it). Nagel argues that the expectations created by Roe v. Wade are not enough to justify keeping it in place. But he fails to articulate any kind of general theory of how strong reliance on a flawed precedent has to be in order to justify not overruling it.

In at least some instances, we may have to make peace with precedents that are wrong. For example, there is a strong originalist argument that the Court made a mistake in holding that Congress has the power to issue paper money in the Legal Tender Cases of the 1870s. Article I of the Constitution gives Congress the power to "coin Money," and it is highly likely that the Framers and ratifiers really did mean COIN, since hyperinflation caused by excessive issuing of paper money was one of the principal economic problems that the Constitution was intended to solve. In Federalist 10, James Madison denounced "a rage for paper money" as one of the types of abuses that the Constitution would prevent (though Federalist 10 focuses on nontextual constraints). Federalist 44 refers to "the pestilent effects of paper money on the necessary confidence between man and man." Madison's Notes on the Constitutional Convention seem to conclude that Congress lacked the power to "mak[e] . . . bills a tender either for public or private debts."

Yet even if paper money is unconstitutional as a matter of text and original meaning, a Supreme Court decision banning paper money today might have such catastrophic economic effects that even justices who thought that was the right outcome as an original matter would be highly unlikely to overrule precedent. If they did, the likely result would be a pitched political battle with Congress and the president that the Court would almost certainly lose.

While it might be easy to agree that the Legal Tender Cases should not be overruled, it is much harder to develop a coherent theory of reliance interests in constitutional law. The lack of such a theory makes it easier for partisans of all stripes to claim that their preferred precedents should be untouchable because they protect imajor reliance interests, while arguing that the other side's are ripe for overruling.

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Passover Grab Bag:

Passover starts tomorrow night at Sundown. I'm running my own Seder for the first time, so the interminable rabbinical commentary about how the ten plagues were really two hundred and fifty blah blah blah will be replaced, hopefully, with more interesting discussion, aided by a book I bought from Amazon, "Creating Lively Passover Seders." Anyway, I've been collecting offbeat Passover links people have been sending me via email, and here they are:

The sixty second Haggadah (click on the book to start; ability to recognize Hebrew helpful).

The thirty minute seder: A nice, concise version for those who want the basic elements, in English.

"Who Let the Jews Out? [Who? Who? Who?]"

The JibJab Matzah video.

And, of course, "Matzo Man" (who can resist a matzah dressed like an Indian chief?)

UPDATE: And here, courtesy of reader Hannah, is "Elijah the Prophet", starring Elijah Wood, from Birthright Israel.

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Let Catholic Charities Discriminate:

In early March, Catholic Charities of Boston (CCB) announced that it would stop providing adoption services in Massachusetts rather than comply with a state law that it not discriminate against prospective parents on the basis of sexual orientation. In response, Mass. Gov. Mitt Romney proposed a bill that would exempt religiously affiliated adoption agencies like CCB from compliance with this antidiscrimination requirement.

I've finally gotten around to writing a column responding to these events. A bit of background from the column on adoptions:

Private agencies contract with the state [of Massachusetts] to provide adoption services. The state pays them money and strictly regulates their operations, including the criteria they use to find homes for children. For the past 17 years, Massachusetts has prohibited such agencies from discriminating on the basis of sexual orientation. This means that Massachusetts adoption agencies may not refuse to consider same-sex couples as adoptive parents.

This is sound public policy. First, gay couples can provide children with very good homes. Indeed, research so far tends to support the thesis that gay parents are comparable to similarly situated straight parents. They're at least competent to raise children.

Second, there's a shortage of good homes for children. In Massachusetts alone, some 682 children now await adoption. It would be cruel to shuffle them from foster home to foster home while turning away perfectly good prospective parents simply because they're gay.

Here's where CCB comes in:

Until recently, Catholic Charities coexisted peacefully with this anti-discrimination policy. During the past two decades, the group has placed 13 children (out of 720) with same-sex couples. Last December, the 42-member lay board of the group voted unanimously to continue the practice.

But there is a chill wind blowing from the Vatican now on all subjects related to homosexuality. The church hierarchy has evidently decided to root out all internal manifestations of opposition to its longstanding belief that homosexuality is “intrinsically disordered.” Cardinal Alfonso López Trujillo, Vatican head of the Pontifical Council for the Family, recently said that allowing gay couples to adopt children “would destroy the child's future, it would be an act of moral violence against the child.” Catholic Charities is reluctantly bowing to this pressure.

CCB's decision, in turn, prompted Romney's proposal for exemption. Gay groups objected, saying that CCB and Romney were promoting invidious discrimination and putting politics before the interests of children (since Romney is considering a run for the GOP presidential nomination in 2008 and has been assiduously wooing religious conservatives). Typical was the reaction of the Human Rights Campaign, which issued a press release quoting exective director Joe Solmonese as follows:

Denying children a loving and stable home serves absolutely no higher purpose. These bishops are putting an ugly political agenda before the needs of very vulnerable children. Every one of the nation’s leading children’s welfare groups agrees that a parent’s sexual orientation is irrelevant to his or her ability to raise a child. What these bishops are doing is shameful, wrong and has nothing to do whatsoever with faith.

Here's my response to this from the column:

In most respects, this statement [from HRC] is wrong. Allowing an exemption would not deny children loving and stable homes. They will get good homes through Catholic Charities, just not good gay homes. Gay couples could still adopt through dozens of other private agencies or through the state child-welfare services department itself, which places most adoptions in the state.

At most it could be argued that allowing Catholic Charities to discriminate would make it very slightly more difficult for gay couples to adopt (since one private agency would not be available to them). If numerous other agencies also began barring gay couples, a real difficulty might arise. But that problem is nowhere in sight in Massachusetts.

While gay advocates may strongly disagree with church doctrine, there's no basis for saying that the Catholic Church's objections to gay adoptions have “nothing whatsoever to do with faith.”

Exempting Catholic Charities would serve the “higher purpose” of respecting the deep religious convictions of a major faith tradition, without hurting children or appreciably affecting the adoption prospects of gay parents. That is what we'd ordinarily a call a win-win situation.

I don't think religious objectors should always be completely exempt from anti-discrimination laws (such exemptions are not constitutionally required). If, for religious reasons, a large employer refused to hire gay people or a huge apartment-complex owner refused to rent to gay couples, the harm caused by their actions would potentially be great. It would literally foreclose many important opportunities.

Exemptions to laws of general applicability inevitably raise slippery-slope concerns. All kinds of exemptions exist in all kinds of laws. Each is an invitation to slide down a slope, but we seem to manage it. Title VII is understood to exempt the Catholic Church from having to hire women priests, for example, but that hasn't gutted employment-discrimination protection. There are particular line-drawing problems about what would constitute a “religious” exemption, but those problems aren't peculiar to this case.

If we can grant religious exemptions with little or no burden placed on others, we should presumptively do so. Yes, this allows people to discriminate in ways that seem irrational or even invidious to many of us, but our resulting discomfort is an acceptable price for living in a religiously pluralistic and free society. When there are plenty of alternatives for those discriminated against, continued objection to an exemption seems pretty abstract and illiberal to me.

If we can't respect others' exercise of religious conscience in a case where it costs us nothing to do so, can we really be said to respect religious liberty in a meaningful way at all? In an age when government regulation encroaches on every area of life, to say that we can't make an exemption under circumstances like this is really to say that religion has no place in the public square. I'm not ready to say that.

. . .

So let them discriminate, but don't let anyone forget what they're doing.

My views on this could be criticized from two polar positions. At one pole, a libertarian criticism would be that antidiscrimination laws are generally problematic, so my willingness to allow religious exemptions only where there's no appreciable harm is too stingy. I'm sympathetic to claims that antidiscrimination law as practiced has many problems, but I'm less sympathetic to this concern in the context of adoptions. The state recognizes and enforces enormous parental control over children. As long as that's the case, the state has an obligation to ensure that it puts children's interests, including parental fitness, at the forefront when placing them in adoptive homes. The state rightly thinks parental sexual orientation is irrelevant to the placement decision, since the state has very good reason to believe that criterion is of little or no importance to a child's best interests.

At the other pole my view has been criticized from a gay-equality or children's-interests perspective. This response has broken down into three main types of arguments so far.

First, many critics have labored to find some appreciable, concrete "harm" either to children or to prospective gay parents in allowing an exemption. (I'd distinguish concrete harm from abstract harm, as in: an exemption violates "the principle of antidiscrimination"). But I have yet to hear a convincing account of concrete harm. CCB doesn't monopolize access to the adoption of any child in the state, any more than a single real estate agent monopolizes access to real property for sale (indeed, probably less so). Any adoption agency can secure the adoption of the available children and any gay couple or individual can go to any of these other agencies. Further, it's not like CCB is claiming that its religious scruples require that children be placed in the homes of unfit parents who are, say, addicted to peyote. CCB wants the children to go to parents everyone would agree are fit; the only disagreement it has with the state is that its conception of "fitness" is narrower than the state's (or my) conception of fitness. Real harm to the children would come only if CCB either monopolized access to some children, thus limiting the pool of fit parents available to them (which CCB does not do), or if it adopted for religious reasons a definition of fitness that was broader than the state's, as by insisting that drug-addicted people adopt children (which CCB also does not do).

Second, many gay-rights critics of my view have emphasized that an exemption would allow public money ("my tax dollars") to support invidious discrimination. This argument has a lot of intuitive and popular appeal, but I don't think it withstands much reflection. First, it's common for public money to "support" discrimination and discriminatory organizations. Consider property-tax exemptions for churches (which discriminate in all sorts of ways), or the huge outlays for the military (which bars gays), or the numerous state and government contracts with private service providers that themselves discriminate on objectionable grounds. One could consistently object to all of this "support" for discrimination, of course, but I doubt many do. Further, given the pervasiveness of government financial interaction with private entities I doubt it would be practical to have a no-support-for-discrimination policy. It wouldn't leave much room for moral disagreement.

It's also doubtful that Massachusetts' contract with CCB amounts to net public "support" for discrimination. As I understand it, CCB itself shoulders much of the cost of its adoption services. The services are not fully compensated by the state, and the state may have to make up for the loss of CCB's services in other ways. Thus, the public appears to be getting a net financial gain from CCB's participation in adoption, not a net loss.

And even if we could characterize an exemption as public money "supporting discrimination," at least it is not harmful discrimination (if I'm right about the absence of more than de minimus harm). That makes the objection about public support for discrimination another species of the abstract concerns I addressed in the column.

A third critique of my view presses the various slippery-slope concerns. I won't belabor the point since I sketched a response in the column.

I'll admit I had a harder time coming to this view than I have had in justifying tolerance for discrimination in other contexts, like the Boy Scouts. (I'm still not certain I'm right about this one; I'm sure I'm right about letting the Boy Scouts discriminate.) Perhaps that's because children's interests are involved here in a special way. Perhaps it's because I suspect CCB's decision isn't really a reflection of deep religious conviction, but a capitulation to a Church hierarchy whose views are based more on falsifiable and outdated empirical claims about how gay parents harm children than on first principles. Perhaps it's because the state has always, and rightly, been heavily involved in regulating adoptions in a way that it hasn't long regulated the membership of organizations like the Boy Scouts. I also strongly object to the cynical use of this episode by some to critique gay marriage. As I wrote in the column:

Some opponents of gay marriage have been using this episode to claim, “Aha! This proves that gay marriage will erode religious freedom. Massachusetts has had gay marriage just two years and already Catholics are being forced out of adoptions.”

The claim is unfounded, since the conflict here is based on an anti-discrimination law that predates the recognition of gay marriage in Massachusetts.

Gay marriage in Massachusetts did not bring about this conflict; CCB's own change in policy produced it.

But for me, the bottom line is that I can't find much concrete harm if we allow an exemption in this case. And if we don't allow an exemption, I see much potential harm in losing the valuable services of an historically important adoption agency and in failing to reaffirm a liberal respect for diverse views of the good life.

UPDATE: In response to this post, many commenters have pressed me on slippery-slope issues. I don't think much of slippery-slope arguments as a general rule, but let me respond very briefly to two especially common ones in this context.

One common slippery-slope argument is that if we allow an exemption here for sexual-orientation discrimination, we'll have to allow one for race discrimination, e.g., by letting adoption agencies refuse to work with prospective black parents or interracial couples or by letting the agencies refuse to place children with parents of a different race. I think sexual-orientation discrimination is unjustified and often irrational, but given our history I think race discrimination is many orders of magnitude worse. So allowing an exemption for race discrimination is, in principle, a much harder call.

The second common slippery-slope argument is that if we allow an exemption for religious conscience, we'll have to allow an exemption for non-religious conscience. Two responses: First, exemptions limited to religious institutions are a common feauture of anti-discrimination law, so there's nothing very peculiar about it in this context. Second, religion occupies a special place in our political and constitutional heritage. In principle, exemptions for religious conscience are a way of fulfilling the constitutional promise of free exercise beyond what the Court has been willing to do. Legislators are entitled to take this principle into account in crafting exemptions to antidiscrimination law. They may decide to allow exemptions for non-religious objectors as well, but the case for religious objectors is ordinarily even stronger.

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More on "Jobs Americans Won't Do":

A brief response to Orin's post below: Perhaps Orin is right, and I'm mistaken; it's hard to tell exactly how these short phrases are likely to be understood.

But my sense is that the "illegal immigrants do the jobs Americans won't do" argument is mostly aimed at quieting people's concerns that illegal immigrants will take jobs that would otherwise go to current American citizens. Don't worry, the argument suggests: These are jobs that wouldn't exist (or would go unfilled) if it weren't for illegal aliens who are willing to do them cheaply.

The more accurate phrasing -- "illegal immigrants just do the jobs Americans won't do for the same low wages that illegal immigrants will take, and it helps our economy to have the jobs done at those low wages" -- carries, I think, quite a different message: It acknowledges that illegal immigrants do take some jobs that would otherwise go to current American citizens (and would go to them at higher wages), but argues (perhaps quite sensibly) that legalizing such immigrants would still be a good idea.

Orin suggests (as I understand it) that the "jobs Americans won't do" argument is basically seen as shorthand for this more precise phrasing. That just doesn't seem to me to be so (as the McCain quotes mentioned in the comments to Orin's post and to my earlier post suggest).

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Message from the NYU Provost About the Mohammed Cartoons Matter:

Provost David W. McLaughlin sent this message in response to a student's inquiry, and then gave me permission to post it:

Thank you for writing. I'm sorry I wasn't able to respond sooner on behalf of John Sexton and myself.

I disagree with a number of your views with respect to the event involving the Danish cartoons.

First of all, at no time did the University say that cartoons could not be shown; indeed, just the reverse. For that reason, I reject the assertion that free speech was abridged. That the Objectivist Club, the student organization, ultimately chose not to include the display in its event was its decision, not the University's. The University made clear to the club -- as well as to the Muslim groups on campus asking for the cartoon display to be prohibited -- that the display would be permitted.

Secondly, you, like the Muslim students on campus, have a right to make your voice heard when you think something is objectionable. We would handle your objections no differently; that is, our tradition of free speech would prevail, as it did in this instance.

Thirdly, as to the media -- I believe this matter has been mischaracterized by several media outlets, driven by accounts offered by others that have been crafted in a way to obscure the crucial, central fact: the University made clear that the cartoons could be displayed as part of the event.

Good luck with your studies. Thanks for writing

I should say that I'm quite unpersuaded by this message -- unless I'm mistaken, it's quite clear that NYU did indeed insist that the Objectivist Club choose between (1) displaying the cartoons, in which case the event would be closed to audience members from off-campus (even though NYU student groups are generally allowed to open their events), or (2) having the event be open to off-campus visitors, but not displaying the cartoon. It's hard for me to say that, given this, "at no time did the University say that cartoons could not be shown; indeed, just the reverse." But if I'm mistaken on the facts, I'd much appreciate being corrected.

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Scalia's Infidelity at UCLA On Thursday I will be speaking at UCLA School of Law on Scalia's Infidelity: A Critique of Faint-Hearted Originalism, a topic on which I spoke last week at the University of Iowa. The program will be at 12:30-1:20 p.m. in Room 1327. Be sure to introduce yourself as a VC reader.

This will be my last talk of the school year. This year has been extremely intense, starting with my visit in the fall semester to Georgetown, during which time I commuted home to Boston on weekends. Then this semester, I crammed a year's worth of conferences and speaking invitations into one semester, at the same time I ended up having to brief and argue the Raich case in the Ninth Circuit and house-hunt in DC. I am looking to a more tranquil summer during which I can make progress on the new Constitutional Law casebook I am writing, as well as doing some more blogging, before moving to the Georgetown University Law Center in the fall.
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Abortion and Crime:

On Truth on the Market, Josh Wright has an extensive and even-handed discussion of the theoretical and empirical questions surrounding the abortion and crime debate kicked off by Donohue & Levitt a few years ago.

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One Month of OrinKerr.com: A month ago, I started a solo blog, OrinKerr.com, with the caveat that I wanted "to try the new blog for a month or two and see if I enjoy posting there. If it doesn't work out, I'll fold up shop and post exclusively at the VC." I have a few comments about my take so far over there, but I figured I would also open it up for comments here.

  UPDATE: The site is back up. Sorry for the delay.

  ANOTHER UPDATE: In the comment thread, Justin writes: "I don't like the fact that one cannot post anonymously at OK.com, but otherwise find it a good read." To be clear, you can comment anonymously at orinkerr.com, and many people do. You have to wait for me to review the comment, rather than have an account that posts automatically, but you are free to submit the comment. I would estimate that I approve about 70% of anonymous comments.
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Some Dartmouth Stuff:

First, the Dartmouth Review republishes a delightful late-Nineteenth Century essay by former English Professor H. H. Horne on "The Dartmouth Man," distinguishing the characteristics of said fellow from his colleagues at Harvard. Republished on several occasions through the years, and quite obviously overgeneralized and dated in places, I enjoy rereading for its reflections on Dartmouth's somewhat unique character and the way in which geography and philosophy interact to shape the nature of institutions. I am also always struck by Horne's description of the leveling effect of the fierce New Hampshire winters in tending to break down differences of class and pretentions among Dartmouth students and reinforcing the virtues of practicality and usefulness.

And for those who may be interested, the Dartmouth Review will be celebrating its 25th Anniversary with a New York City gala next week (April 21). I wasn't a Review staffer at Dartmouth and it doesn't look like I will be able to attend the gala, but I pass along the info to those who might be interested. Peter Robinson has the details on what promises to be an enjoyable evening.

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Homeless Man Buys Five Houses:

All with Fannie Mae loans, of course. Details at the Housing Bubble Blog. The time for lawmakers to make it clear that they are not going to bail out Fannie is now. The time to abolish Freddie and Fannie is also now.

UPDATE: Does the existence of Fannie make fraud more likely? Yes, because Fannie gets its political support by claiming that it is responsible for the ever-growing percentage of Americans who own their own homes. If that percentage doesn't keep growing, Fannie loses its key p.r. point. Therefore, Fannie has the incentive to look the other way regarding loose lending standards, fraud, etc., to ensure an ever-growing mortgage market. A day of reckoning will come some say, but everyone seems to expect that the taxpayer will bail Fannie out.

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Response to "Jobs Americans Won't Do": Eugene raises an interesting point in his post below, but I confess that my instinct is different: It seems to me that when considering a claim about attitudes toward a market good or service, the price of that good or service is an essential part of the claim. For example, imagine someone says, "The new Oldsmobile sedan is really ugly; I'll bet no one will buy one." I think it's implicit in the claim that the sedan is being offered at a market price comparable to other cars. Surely there is some price point at which people would start buying the cars, but normally this need not be made explicit. Similarly, I think it's implicit in the phrase "no one else will do that job" that the no one else will do the job for roughly the currently offered wage. That's my sense, at least.
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Jobs Americans Won't Do:

I rarely blog about immigration-related matters, because I have no expertise on the subject, and because I think this is the sort of subject that it's hard to make bottom-line conclusions about without real expertise There are lots of considerations cutting in various directions, and I have no real sense of how to estimate the magnitude of each, much less compare them.

Nonetheless, even in such matters there might be some benefit in discussing a particular factor that people are focusing on. So here's my question:

Can it possibly be right that illegal aliens are doing the "jobs Americans won't do," so that their presence is no competition for workers who are citizens?

I would have thought that, as a matter of basic economics, it makes little sense to talk about "jobs Xs won't do" (at least so long as X is a large and heterogeneous national group). Rather, there are only jobs Americans (or enough Americans) won't do for a certain amount of money. Raise the amount you're willing to pay, and more people will be willing to take that wage to do the job; at some price, that supply would be enough to satisfy the perceived demand for such workers.

Now perhaps "jobs Americans won't do" is shorthand for "jobs Americans won't do unless the wage is raised to a level at which the jobs wouldn't exist in any case, since they won't be cost-effective." (For instance, if current American citizens just won't pick fruit unless they're paid $20/hour, only currently illegal aliens are willing to pick fruit for less, and fruit picked at $20/hour in America won't be competitive with fruit imported from overseas, then it may be that no jobs in fruit-picking would realistically exist for the current American citizens.)

Yet surely this would be true only for some jobs. If getting certain jobs done without the now-illegal aliens requires raising wages, then in some situations the lack of illegal alien workers would mean the jobs would disappear. But in other situations someone will need the job done, and will just pay more -- to a current American citizen -- to get that job done.

Now it may well be that having more cheap and legal labor would be good for the average current-American-citizen worker, or even the average current-American-citizen low-wage worker. The presence of such labor might mean lower priced products for the current American citizens, and might mean more new jobs in new fields made possible by the economic efficiencies that the low-wage workers bring. It's actually pretty sensible free market economics, though free market economics that might lead to at least some results that some advocates of low-wage workers might not like, and that might be distorted by various aspects of the welfare state.

But in any case this argument is a very different argument, it seems to me, than "illegal immigrants just do the jobs Americans won't do." It's

Illegal immigrants just do the jobs Americans won't do for the same low wages that illegal immigrants will take, and it helps our economy to have the jobs done at those low wages.

Doesn't have quite the same ring, no? Or am I missing something here?

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Monday, April 10, 2006

Peck on the "Israel Lobby":

Via the Independent Institute, which is unfortunately promoting this dreck, I've come across a thoroughly dishonest article by Edward Peck on the controversy over the Mearsheimer and Walt "Israel Lobby" paper. How dishonest?

Peck: "The expected tsunami of rabid responses condemned the report, vilified its authors, and denied there is such a lobby"

"Shrill insistence that no groups promote Israel is ludicrous."

There are many other flaws in this article, which I'd Fisk more throughly if I didn't have to prepare for two classes tomorrow. But for now, I think it's sufficient to address this challenge to "Ambassador" [I hate using former titles as current titles] Peck: Identify any source that denied that there is an Israel lobby (as opposed to those, like me, who argued that Mearsheimer and Walt's definition of the "Israel lobby" is absurdly broad, and contrary to the normal meaning of the word), or that any groups promote Israel.

Okay, I promised no full Fisking, but I can't resist raising one more point. Peck suggests that the "Israel Lobby" (which he never defines) "prevents" "public knowledge, discussion and debate" on the U.S.-Israel relationship. Really? Has Noam Chomsky been arrested? Has Juan Cole been exiled? Have The Nation and the Village Voice been shut down? Is Jimmy Carter an Israeli mole? Have Mearsheimer and Walt been assassinated? Has any U.S. critic of Israel met with any sort of violence at all? For that matter, aren't Middle East Studies departments in the U.S. thoroughly dominated by academics who favor the Arab position in the Arab-Israeli conflict? It's more than a bit odd for a libertarian outfit like the Independent Institute to promote articles claiming that just because a certain perspective has found only a small popular audience, that the holders of that perspective, who have been subject to no state or private force, have been prevented from promoting their views. And it's especially odd when those views are expressed all the time.

UPDATE: Reader "Brian" points out that antiwar.com has also featured a piece (by Michael Scheuer) claiming that critics of Mearsheimer and Walt have denied there is an Israel lobby (along with a bunch of other wacky nonsense). Brian also points out that the geniuses at the Daily News gave David Gergen's op-ed the title "There is no Israel Lobby", but the piece says the opposite: "To be sure, pro-Israeli groups in this country, led by the American Israel Public Affairs Committee, push hard to gain the support of U.S. political leaders. AIPAC is officially registered as a lobbying group, but that does not mean that its members are engaging in something sinister." So, Messrs. Peck and Scheuer--who has denied that there are organizations in the U.S. that lobby for a strong U.S.-Israel relationship?

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Advice to Law Students on Publishing Their Student Work:

Frank Pasquale, at Concurring Opinions, gives some tips; it's much worth reading (and I don't just think so because of his kind words about my Academic Legal Writing book).

I do differ with him on one matter: I encourage students to submit to main law reviews, and not just specialty journals; some main law reviews won't publish work by students at other schools, but some do. And now that submission is free and easy, using Berkeley Electronic Press's ExpressO (assuming your school has a site license for it, which many schools do) or SSRN's eSubmissions (click on Submit, make sure you're configured as a user, and then go to eSubmissions), you should definitely try it. As Wayne Gretzky supposedly said, you miss 100% of the shots you never take.

FAVORITE COMMENT UPDATE: A commenter writes: "Some blogger on his taxonomy should give him a job or pay him." Jared K. responds: "He's not getting paid, but he is getting credit, which is like getting paid but instead he pays someone else."

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A Taxonomy of Legal Blogs.

 

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Sometimes the Media Can Be a Little Too Cautious:

The AP reports:

A Malaysian man said he nearly fainted when he recieved a $218 trillion phone bill and was ordered to pay up within 10 days or face prosecution, a newspaper reported Monday.

Yahaya Wahab said he disconnected his late father's phone line in January after he died and settled the 84 ringgit ($23) bill, the New Straits Times reported.

But Telekom Malaysia later sent him a 806,400,000,000,000.01 ringgit ($218 trillion) bill for recent telephone calls along with orders to settle within 10 days or face legal proceedings, the newspaper reported.

It wasn't clear whether the bill was a mistake, or if Yahaya's father's phone line was used illegally after after his death....

As Tom Elia (The New Editor) points out, sometimes one really doesn't need to present both sides: "Seeing that GDP for the entire world was around $40 trillion in 2004, and that the world's largest corporation, Exxon Mobil, had about $328 billion in sales in FY 2006, I think it's safe to say that the $218 trillion phone bill was a mistake. But, it's a good thing the Associated Press covered themselves ... ya know ... just in case."

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Another Russian Saying:

This weekend, I was also reminded of a more recent Russian saying. There was at one point a well-known Russian line (I've seen it credited to Ilf & Petrov's The Golden Calf) that "a car is not a luxury, it is a means of transportation." I'm a bit hazy on the precise meaning of the saying, but that doesn't quite matter here. What matters is that in the 1970s, when most Jews -- and, with them, their family members -- but virtually no Russians were allowed to emigrate, someone coined this variant: "A Jewish wife is not a luxury; she is a means of transportation."

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He Lies Like an Eyewitness:

For no reason in particular, I was reminded of this Russian saying; to my surprise, it seems to have had little exposure in America, so I thought I'd do my part.

As I understand it, the word "lies" is understood to be something of an overstatement: The suggestion is simply that eyewitnesses are often mistaken about important matters, and perhaps also that they nonetheless overstate their confidence in their accuracy (since after all they saw the event with their own eyes).

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Moneyball:

Just read this book -- largely because some of my cobloggers have spoken highly of it -- and liked it a lot, though I'm not a baseball fan. To me, this book is about science, psychology, and the power of reason and the scientific method. The story that it tells reminds me of the Royal Society's motto, "nullius in verba," an approach that I much admire (though, sad to say, so rarely emulate, given the limitations of my profession at least as I practice it).

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Is John McCain losing his base in the media?--

Howard Kurtz of the Washington Post writes:

John McCain was expecting journalists to start slapping him around, and he hasn't been disappointed.

As he gears up for a likely presidential campaign, the Arizona senator knows that reporters and columnists — whom he jokingly described last year as "my base" — have to prove their independence this time around. Media folks spent so much time riding on McCain's bus and listening to his rolling news conferences in the 2000 campaign that they were often mocked for swooning over the candidate. . . .

The reasons for the chilling of the climate go beyond a desire by journalists to prove they aren't in the senator's pocket. The press has a weakness for mavericks, and McCain is running as more of a regular Republican this time, embracing President Bush on most issues, making amends with the religious right, and voting to make permanent the tax cuts he once derided as excessive.

"When loving McCain was a way of expressing a negative opinion about the Republican Party, they were all for him," says Mike Murphy, a top McCain adviser in 2000. "Now that McCain is a strong potential candidate, some fickle liberal hearts are not fluttering as much."

McCain's apparent flip-flops are fair game, of course, but some of the liberal sniping at the senator seems based on ideology. McCain has always been a conservative, antiabortion, pro-military Republican who took more moderate positions on a few key issues. Now he is suddenly being outed as . . . a conservative Republican. . . .

Why are liberals suddenly more exercised about McCain? In 2000, he was a colorful underdog running against the party establishment's candidate. He was funny, told great stories, admitted mistakes and enjoyed dining with reporters. He was endlessly available for television interviews. He championed what seemed like a quixotic crusade for campaign finance reform. He was a certified war hero as a former prisoner at the Hanoi Hilton. He was unfairly slimed in the South Carolina primary. And, in the view of the press, he had little chance of winning.

This time around, McCain is arguably the front-runner for the GOP nomination. If he runs, he could well win the White House, shutting out the Democrats for the third straight election. And that is rallying the pundits of the left.

Mark Salter, McCain's administrative assistant, says the senator "is not unhappy with the press coverage he's receiving." Of course, it is far better for him to be put through the media meat grinder now, in early 2006, than when voters are paying attention. And getting banged around by liberal columnists hardly hurts him on the right.

Still, the skeptics are right on one point: McCain's crossover appeal is built on the idea that he speaks his mind without political calculation. If he loses his media "base," that may be a sign that he has returned to the ranks of political mortals.

Betsy at Betsy's Page comments:

Well, we always knew that it would happen; it's just happening a little ahead of schedule. Now that the media is waking up to the idea that John McCain could actually win both the Republican nomination and even the election in 2008. And they're realizing, that there is more to McCain than the guy who so helpfully bashes the administration on some issues. Why, the guy is actually pro-life and supports the war in Iraq. Gasp! We can't have that, so liberals and the media are already gearing up to cut McCain down to size and soften him up for 2008. . . .

I think Kurtz is exactly right about why the media worm is turning on McCain. What they don't realize is that such attacks help McCain in his race for the Republican nomination because there is nothing Republican primary voters agree so much on as their dislike for the media. In fact, in addition to my differences with McCain on issues such as tax cuts and campaign finance reform, one of my main suspicions of McCain has been the sense that he would take positions solely to maintain his popularity with the press. So, McCain will benefit, at least in terms of the GOP nomination, by losing his "base," the press.

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