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Saturday, June 3, 2006

Media Miscoverage of Global Climate Change:

That's the topic of my latest media analysis column for the Rocky Mountain News. Plus a short item on the Denver papers failing to report on Governor Bill Owens' support for illegal aliens.

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Is the Federal Marriage Amendment Consistent with Federalism and Democratic Values?

That's the title given to a panel discussion at which I'll be speaking on Monday. The other panelists will be Prof. Louis Michael Seidman and Mark Agrast. It's being co-sponsored by Cato and the Center for American Progress. It will take place Monday, June 5, 10:00 a.m.-11:30 a.m. at the Center for American Progress, 1333 H Street NW, Washington DC. It's open to the public, but they ask you to RSVP by going to the CAP website here.

For those of you not in the DC area who are not inclined to fly in for the panel, it'll be broadcast by CSPAN.

Friday, June 2, 2006

Columbia University May Use Eminent Domain to Take Over a Harlem Neighborhood:

As this New York Times Magazine article explains, Columbia University may be planning to use eminent domain to acquire property from unwilling owners in a Harlem neighborhood where the University would like to build new facilities (hat tip to Propertyprof Blog). Like most private organizations, Columbia lacks the power to condemn property on its own. But university leaders seem confident that they can persuade New York City officials to condemn the property for them, perhaps due to the University's extensive political influence and NYC Mayor Michael Bloomberg's strong support for the unrestricted use of eminent domain.

The key facts:

Columbia's plans are ambitious: across a large swath of Upper Manhattan, the university wants to create an academic enclave that will both nurture intellectual progress and revitalize an urban area . . .

But in the eyes of many local residents, [Columbia's] optimistic rendering obscures the fact that to fulfill its vision, the university will have to bulldoze almost everything that's already there. About 1,600 people are currently employed in this part of Manhattanville, and some 400 live there . . .

Columbia has already purchased more than half the property it would need. But some owners have refused to sell, and Columbia says that eminent domain remains an option if negotiations fail. It's a dicey option, however. Throughout the country, public opposition to eminent domain has mounted since last summer, when the Supreme Court ruled that private property can be seized by local governments for private development. Virtually every state has considered changing its eminent-domain laws; at least 13 different bills on the subject have been introduced in Congress. As Justice Clarence Thomas noted in his dissent in the recent Kelo case, concerning New London, Conn., an expansive definition of "public use" in the 50's and 60's permitted local governments to eliminate entire minority neighborhoods through eminent domain in the name of "urban renewal" — soon known as "Negro removal" among blacks.

As the NYT article suggests, this potential condemnation is part of a longstanding pattern under which politically powerful interests have used eminent domain to acquire property at the expense of the politically weak. Poor blacks have been victimized especially often, and this pattern may repeat itself here. To avoid misunderstanding, I should emphasize that I do not believe that Columbia is targeting this area out of racism. If the identity of the residents mattered to Columbia, key variable was probably the relative political weakness of the people in the neighborhood, not their skin color. Nonetheless, eminent domain abuse need not be racist to be reprehensible.

An ironic aspect of Columbia's plan is the role of the University's President Lee Bollinger (also noted in the article). He became famous as a defender of affirmative action during his tenure as President of the University of Michigan at the time the Gratz and Grutter affirmative action cases were before the Supreme Court. Bollinger is now a major supporter of the the Columbia expansion and seems more than willing to use eminent domain to get the property the university wants, despite the fact that poor African-Americans would be the major victims. There may not be a direct contradiction between Bollinger's stance in Grutter and Gratz and his position now. But his current position should certainly increase skepticism about Bollinger's claims to be a defender of "diversity" and minority rights.

A few relevant facts that the article omits:

1. Even if Columbia does not actually resort to eminent domain but merely continues to threaten it, this could cause serious harm to the property owners. The mere threat of eminent domain will usually depress property values in the area, and often force owners to sell "voluntarily" in order to avoid the costs of prolonged litigation. Moreover, owners who do not sell quickly may face even greater price declines in the future if the government moves to condemn some of their neighbors' land. This is one of the reasons why a bright line rule against "development" condemnations is necessary. Even if it is unclear whether courts will uphold a given condemnation or not, the mere possibility that they might can be used to drive down property values and compel "voluntary" sales. Such pernicious dynamics are particularly severe if the property owners are poor and/or legally unsophisticated and therefore unable to bear the burden of fighting city hall for their land.

2. The article seems to accept at face value Columbia's claims that they can't carry out their expansion plans without resorting to eminent domain because of the danger of "holdouts." In reality, private developers - including major universities such as Harvard - routinely assemble large tracts of property without resorting to eminent domain. To prevent holdouts, they purchase the land secretly and only announce the building project after they have purchased what they need; in this way, potential holdouts never get a chance to stop the project in order to extort abnormally high payments for themselves. For a more detailed explanation of this admittedly complex issue, see my article here, pp. 21-28. While "holdout" problems sometimes do justify the use of eminent domain, it is far more common for this issue to be used as a dubious pretext for coercing property owners who are not holding out for a higher price but are genuinely unwilling to sell. This seems to be the case here.

3. New York state has some of the worst public use jurisprudence in the country. New York courts have allowed the use of condemnation for "economic development" purposes for decades (long before Kelo), and they are willing to endorse even the most blatant transfers of land for the benefit of private interests. In a 2001 case, for example, a New York appellate court upheld the condemnation of property in Times Square in order to allow the NY Times to build a new headquarters. The ostensible justification was that the area was "blighted" and that the condemnation would help alleviate the alleged blight. See In re W. 41st St. Realty v. N.Y. State Urban Dev. Corp., 744 N.Y.S.2d 121 (N.Y. App. Div. 2002). At least in the short term, Harlemites cannot expect courts to save them from Columbia's expansion plans.

On the other hand, major universities fear negative publicity to a far greater extent than most commercial developers do. Hopefully, there will be a big enough outcry to persuade President Bollinger and Columbia to reconsider their plans.

UPDATE: For those who may be interested, the NAACP's amicus brief supporting the property owners in Kelo contains a wealth of information on how eminent domain abuse has disproportionately victimized poor blacks over the last several decades - often even in the absence of racist motivation on the part of the state.

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More Coati-Blogging:

My pictures from Argentina and Brazil have now been developed, and there are some interesting shots of coatis, the raccoon-like animals I described in my previous post. In this sequence, brought to you by the crack staff at the VC Photography Department, a Brazilian coati demonstrates its climbing skills:

For more info on coatis, see here and here.

Related Posts (on one page):

  1. More Coati-Blogging:
  2. Back from Argentina:
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Another prominent conservative against a federal marriage amendment:

You've already got the publicly stated opposition of prominent conservatives like Bob Barr, Dick Cheney, Chris Cox, Bruce Fein, John McCain, Ramesh Ponnuru, George Will, and others (not to mention several VC bloggers). Now you can add to the list James Q. Wilson, a respected voice in conservative intellectual and policy circles. Last March 18, in the Wall Street Journal, Wilson criticized the one-size-fits-all abortion policy represented by Roe v. Wade. Then he wrote this:

The states should also decide about gay marriage. Some conservatives are urging Congress to propose a constitutional amendment banning this, but this would be a mistake. People should vote on this matter and about the conditions of life they wish to experience where they live. Though I oppose gay marriage, voters in some states may approve it. If they do, we will have a chance to learn what it means in practice, with the costs and benefits falling on people who have accepted it.

Moreover, a state-by-state vote on the matter provides an opportunity for gay advocates of this policy to make their case. A constitutional amendment would deny them that opportunity, leaving them perpetually angry. Since feelings run high on this matter, it would be a mistake to let it be decided as the right to abortion was decided. If there were the gay marriage equivalent of Roe v. Wade or a constitutional ban on it, we would infect the nation with the divisive anger that followed Roe and our earlier attempt at alcohol prohibition.

I love the link here between Roe and the federal marriage amendment. Both spring from the absolute conviction that you have laid your hands on the final truth of the matter, that no amount of evidence the other way could ever convince you that you are wrong, that your conviction must be imposed immediately and forevermore on the entire nation lest some fools living in dissident states think and act otherwise, and that the Constitution itself must be made to conform to your current policy preference.

Wilson continues:

If there is to be a constitutional amendment, it would be better if it said this: “Nothing in this Constitution shall authorize a federal judge to decide that a marriage can be other than between one man and one woman.” If I could think of language to bar judges from making other social policy decisions, I would add it, but the words fail me.

This jurisdiction-stripping amendment would allow the states and the people to experiment with gay marriage, something George Will has said is worthwhile. I don't think even this narrower amendment is necessary, since I think the likelihood of federal judicial imposition of nationwide gay marriage in the near- to medium-term is very low. But at least a jurisdiction-stripping amendment would actually address the stated, populist concerns about judicial activism. The amendment the Senate will vote on next week would do much more than that. It's overreach and overkill.

(Hat tip: Walter Olson.)

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Is Marriage a Federal Issue?

I've been debating this question with Ed Whelan over on NRO's Bench Memos blog. Setting aside the question whether gay marriage is a good or a bad idea, I argue that FMA proponents have not demonstrated the sort of federal interest that would justify federal intervention, let alone a change to the Constitution. Here are the posts: Ed Whelan, my response, Ed's reply, and my surreply. I'll be on the road today, so if Ed posts a rebuttal, he'll get the last word.

UPDATE: Ed Whelan has the final word here (and I fixed the link to my surreply above).

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Thursday, June 1, 2006

From an anonymous student evaluation of my teaching, Constitutional Law, Spring 2006:

"Coming in to this class, I thought all people with his 'lifestyle' were morally depraved. Now I recognize that Republicans aren't all bad."

Israeli Motorcyclists Drive with All the Chutzpah and Daring of

a Manhattan bicycle messenger, but none of the skill. The concept of "blind spot," in particular, means nothing to them.

Dixie Chicks Hit No. 1:

Although some country stations refuse to play their music, the Dixie Chicks seem are doing okay. Their new album hit number one in sales on the Billboard charts this week, and also topped the country album charts. Either their fans don't care about the trio's politics -- or they do care, and the Chicks are more popular than President Bush.

Related Posts (on one page):

  1. Dixie Chicks Tour Problems:
  2. Dixie Chicks Hit No. 1:
  3. Sunday Song Lyric:
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Environmental Wars Conference:

This Saturday I will be speaking at the Skeptic Society conference "The Environmental Wars: The Science Behind the Politics," hosted by Dr. Michael Shermer at the California Institute of Technology. My talk is titled "The Fables of Federal Environmental Regulation: A Re–examination of the Reasons for Federal Environmental Regulation." Other speakers at the conference include David Baltimore, Michael Crichton, Gregory Benford, David Goodstein, and John Stossel, so I expect there to be quite a bit of disagreement on a variety of issues. I'm particularly looking forward to the debate between Chris Mooney and Ronald Bailey on the politicization of science. Technology willing, I will live-blog much of the conference over at The Commons Blog. More conference details here.

Related Posts (on one page):

  1. Environmental Wars Conference:
  2. Environmental Wars Conference:
Interesting Post-Kelo Public Use Case:

An interesting and potentially important post-Kelo public use case is now before the U.S. Court of Appeals for the Fifth Circuit (hat tip to Wright Gore, President of the Western Seafood Co., who brought this case to my attention). In Western Seafood Co. v. City of Freeport, part of a property owner's lot is being condemned and transferred to a neighbor so that the latter can build a marina for the asserted purpose of promoting "economic development" in the area. In Kelo v. City of New London, the Supreme Court of course held that "economic development" is sufficient justification to allow condemnation of private property for transfer to a new private owner.

In one sense, Western Seafood is a less egregious example of eminent domain abuse than many previous cases. The planned condemnation will not displace dozens of people (as in Kelo) and certainly not thousands (as in the notorious Poletown case, and many "urban renewal" takings). However, to a greater extent than Kelo, Western Seafood seems to be a case where there is a pure "A to B" condemnation where most if not all the benefits flow to an identifiable private party.

In Kelo, the Supreme Court majority indicated that the lack of an identifiable private beneficiary was one factor in its decision to uphold the condemnation. In reality, the Kelo taking was to a large extent instigated by the Pfizer Corporation, but as I explain in my forthcoming article on Kelo (pp. 57-58), this was not fully understood until after the case was decided by the Supreme Court. Western Seafood will help determine how important this factor really is.

My own view is that this will be a difficult case for the property owner to win. The Freeport condemnation is part of a city development plan, albeit one that may be dubious in nature. The Kelo majority repeatedly emphasized that a condemnation undertaken as part of an "integrated development plan" is virtually immune from public use challenge. Courts are not supposed to "second guess" the planners, require them to prove that the condemnations are necessary to achieve the plan's goals, or even ask the government to demonstrate that the plan has any prospects for success (see my article, pp. 48-49, 56-57). While Justice Kennedy's concurring opinion is slightly less deferential to the government than Justice Stevens' opinion for the Court, Kennedy signed on to the majority opinion, so his own handiwork has no binding precedential significance for lower courts.

Nonetheless, the Western Seafood case will help delineate the outer limits of Kelo and therefore bears close watching. The case also raises public use issues under the Texas state constitution and under Texas' new post-Kelo eminent domain reform law. Unfortunately, the Texas law is quite weak, as I documented in my article linked above, because it continues to allow condemnations for "community development," which is defined broadly enough to encompass virtually any condemnation for "economic development."

Note: the link above is to a website run by the property owners and reflects their perspective on the case. However it also includes links to the City of Freeport's briefs, thereby enabling you to get their side of the story as well.

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Seattle School District Takes Down Odd Definition of "Cultural Racism"

(the one that included "having a future time orientation, emphasizing individualism as opposed to a more collective ideology, defining one form of English as standard, and identifying only Whites as great writers or composers").

Here's my earlier post about this definition on the Seattle school district's "Definitions of Racism" Web page. Here's the new version of the page, put up in response to complaints that were apparently prompted by today's op-ed in the Seattle Post-Intelligencer by Andrew Coulson (Cato) (praising school choice as the long-term solution for such problems). Here's Coulson's blog post (Cato@Liberty) on the subject.

Related Posts (on one page):

  1. Seattle School District Takes Down Odd Definition of "Cultural Racism"
  2. Seattle Public Schools' Web Site Says Individualism is a Form of "Cultural Racism":
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Against a constitutional amendment banning gay marriage:

Today the Cato Institute is publishing a paper I've written on why a federal amendment banning gay marriage is a bad idea, even if you oppose gay marriage. Of course, if you think recognizing same-sex marriages is a good idea, that's a strong reason by itself to oppose an amendment banning them. This paper is written for conservatives and moderates who either oppose or are unsure about same-sex marriage. Here's the executive summary:

Members of Congress have proposed a constitutional amendment preventing states from recognizing same-sex marriages. Proponents of the Federal Marriage Amendment claim that an amendment is needed immediately to prevent same-sex marriages from being forced on the nation. That fear is even more unfounded today than it was in 2004, when Congress last considered the FMA. The better view is that the policy debate on same-sex marriage should proceed in the 50 states . . . .

A person who opposes same-sex marriage on policy grounds can and should also oppose a constitutional amendment foreclosing it, on grounds of federalism, confidence that opponents will prevail without an amendment, or a belief that public policy issues should only rarely be determined at the constitutional level.

There are four main arguments against the FMA. First, a constitutional amendment is unnecessary because federal and state laws, combined with the present state of the relevant constitutional doctrines, already make court-ordered nationwide same-sex marriage unlikely for the foreseeable future. An amendment banning same-sex marriage is a solution in search of a problem.

Second, a constitutional amendment defining marriage would be a radical intrusion on the nation's founding commitment to federalism in an area traditionally reserved for state regulation, family law. There has been no showing that federalism has been unworkable in the area of family law.

Third, a constitutional amendment banning same-sex marriage would be an unprecedented form of amendment, cutting short an ongoing national debate over what privileges and benefits, if any, ought to be conferred on same-sex couples and preventing democratic processes from recognizing more individual rights.

Fourth, the amendment as proposed is constitutional overkill that reaches well beyond the stated concerns of its proponents, foreclosing not just courts but also state legislatures from recognizing same-sex marriages and perhaps other forms of legal support for same-sex relationships. Whatever one thinks of same-sex marriage as a matter of policy, no person who cares about our Constitution and public policy should support this unnecessary, radical, unprecedented, and overly broad departure from the nation's traditions and history.

The paper goes into some detail responding to the common arguments for a federal amendment on this issue, most prominently the facile judicial-activism argument. You can read the whole thing here. While there is a reasonable (though ultimately unpersuasive) argument to be made against gay marriage as a policy matter, the case for a constitutional amendment is very weak. And it is weak for good conservative reasons.

I'll be in Washington on Monday speaking to Cato and the Center for American Progress, as well as to congressional staff, about the proposed amendment. When the schedule is available publicly, I may update this post to let you know more.

UPDATE: A number of commenters have made responses and criticisms based solely on reading the short summary of the paper provided above. The paper itself goes into some detail on almost all of the criticisms made — for example, on questions of how and why the fear of judicial activism on this issue is overstated, why and how the amendment is unprecedented in our history, and just how broad its reach may turn out to be. I encourage readers, once again, to read the whole thing before commenting.

One error in the comments, in particular, needs more detailed attention because it illustrates how some supporters of a federal amendment have deployed misleading arguments about judicial activism. This particular error repeats the common mistake of claiming that Lawrence v. Texas led to the result in the Massachusetts marriage case, Goodridge v. Dep't of Public Health. As I point out in the paper, Lawrence has been read very narrowly by other state and federal courts (often too narrowly in my view). No federal court anywhere at anytime has ordered the recognition of any gay marriage. While the Goodridge court cited Lawrence a handful of times for unexceptional propositions in its 30-page opinion, the opinion is remarkable for its lack of substantive reliance on Justice Kennedy's work in Lawrence. In fact, here's what the Goodridge opinion said about Lawrence on the precise question of gay marriage:

Whether the Commonwealth may use its formidable regulatory authority to bar same-sex couples from civil marriage is a question not previously addressed by a Massachusetts appellate court. [footnote omitted] It is a question the United States Supreme Court left open as a matter of Federal law in Lawrence, supra at 2484, where it was not an issue.

Goodridge, 798 N.E. 2d 941, at 948 (emphasis added).

Notably, none of the suggestive and flowery passages in Lawrence that are said to support claims for gay marriage appear in the Goodridge opinion. Reading Goodridge as a whole, there is no doubt the Massachusetts court would have reached its result without Lawrence. This, by itself, doesn't mean that there's no potential for judicial activism on the gay-marriage issue, but it does undermine the claim that developments in the Supreme Court are leading us down a quick path to nationwide gay marriage. Judicial action on this issue in the coming years is most likely to come from the state courts interpreting their own state constitutions. But, as I note in the paper, the states themselves have always been entrusted to rein in their own state courts if they choose to do so.

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Wednesday, May 31, 2006

More Jail Time for Women than Men?

L.A. County is out of jail space. The sheriff is therefore releasing some inmates though they've served less than 10% of their sentences. Other inmates, presumably ones whose release would, in the sheriff's view, be especially harmful, aren't being given this break.

There's generally no constitutional problem with that, even when this has unintended disparate racial impacts, or geographical impacts. Just as the police may constitutionally choose to police one area more than another when they think that area needs more police presence, and prosecutors may choose to prosecute some criminals but not others, so the sheriff isn't violating the Constitution (for instance, the Equal Protection Clause) through using his discretion — so long as he isn't considering the inmates' race, sex, religion, political views, or a few other attributes. Such discretionary decisions may be faulted as unfair, unwise, or violative of state law, depending on the circumstances, but they don't violate the Equal Protection Clause or other parts of the federal Constitutoin.

But here's a twist:

Over the years, the Sheriff's Department has maintained different release policies for men and women, even for those convicted of the same crimes.

Male and female inmates are housed in separate jail sections, and sheriff's officials said their release policies are based on the amount of space available and fluctuations in arrests.

Two years ago, women convicted of all but the most serious crimes were released immediately, serving none of their sentences. But in the last year, the department required women convicted of assault to serve 25% of their sentences while men served just 10%.

Klugman said he changed the policy earlier this month. Men and women now are eligible for release after serving 10% of their time....

When one's jail time turns on one's sex, that does pose a potential problem, both under the federal Equal Protection Clause, and under the state equivalent in the California Constitution, which has been interpreted as even more hostile to sex-based classifications.

Now the fact that the policy has sometimes favored women and sometimes men doesn't make it constitutional. Equal Protection Clause rights are individual — that Jane has gotten a break over John because of her sex in the past doesn't mean that Mary can be treated worse than Moe because of her sex today. This pattern does suggest that the sheriff's policy isn't animated by hostility to one or the other sex, but good intentions do not by themselves make sex discrimination impermissible. (Patterico criticizes the Times story for stressing in the lead paragraph only the discrimination against women, and saving the information that the discrimination has been against men in the recent past for later in the story; but whatever the journalistic objections to that might be, the point is not dispositive as a constitutional matter.)

The tougher questions are these:

1. The jail policy is an interesting hybrid. It seems to involve a facially sex-neutral rule: Inmates of less overcrowded jails get smaller sentence breaks. But this rule in turn operates based on the consequences of a facially sex-based rule: Women get put in one jail, men in another.

The separate-jails rule is definitely a sex classification, but it's constitutional (because the classification is needed for inmate safety). Does this mean that other rules that are based on the separate-jail system should also be treated as sex classifications, and should be presumptively unconstitutional? Or should we say that, if the other rules — here the "release based on overcrowding of the jail you're in" policy — are facially sex-neutral, they're OK even if they are based on the underlying sex-based system?

The one case I know of that's somewhat on point (though not identical), Jackson v. Thornburgh, 907 F.2d 194 (D.C. Cir. 1990), said such follow-up rules should be treated as nondiscriminatory: In this situation, the argument would go, women aren't being treated worse because they are women, but because they are in a less overcrowded prison. Likewise, the most on-point (though not very on-point) Supreme Court precedent, Personnel Administrator v. Feeney (1979), held that preferences for veterans in civil service hiring are constitutional: Though the process of becoming a veteran itself involves (constitutionally permissible) sex discrimination — even more in the past than now — any follow-up rules that turn on veteran status are not treated as sex discriminations.

On the other hand, I'm not sure that's right; when the inmates of a women's prison have to serve considerably more time for the same crimes than the inmates of a men's prison, it's hard to see how that can be treated as a sex-neutral classification. Moreover, as I mentioned above, California courts have read the California Constitution as being more hostile to sex classification than the U.S. Constitution is. The current California Constitution rule is that sex classifications must pass strict scrutiny, and not just the somewhat less demanding high-level intermediate scrutiny that the U.S. Constitution requires. Whether the California courts would also be more willing to treat ambiguous classifications as facially sex-based and therefore subject to strict scrutiny is hard to tell.

2. Say this is a sex classification, and subject to strict scrutiny; might it nonetheless be upheld? The policy of keeping women inmates locked up as long as jail space allows — even if that means keeping them locked up longer than comparable men inmates are held — would likely be seen as serving a compelling interest: keeping criminals off the streets. (I suppose some of them might be guilty of violating relatively less important laws, such as prostitution laws or drug possession laws, and it's possible but I think unlikely that courts would draw constitutional lines between what they see as the really important crimes and the less important crimes.)

Moreover, there don't seem to be less discriminatory (more "narrowly tailored") alternative means of serving the compelling interest. The sheriff can't lock up the men for the same amount of time as the women, because there's no space. And if he gives women the same break as the men, then he won't be serving the compelling interest adequately. (Apparently that's what the new policy does do, but the question is whether a court should have mandated this policy as a constitutional matter.) One solution is to get more prison space, but that can't be done overnight. Might the county be required to rent space in other counties' jails, to make sure that men serve the same length of time as women? Is that even possible? Would it be so costly that the county could justify not doing this? Not sure what the answer would be.

One could also put this question more broadly, and less legalistically: Even if sex discrimination is presumptively unconstitutional, should this presumption nonetheless be overcome by the need to prevent crime? Is this one of those interests that justifies, especially in difficult-to-fix temporary situations, a departure from our normal antidiscrimination norms?

In any event, this is a really interesting and conceptually complex question. My quick literature search found nothing written on it in the law reviews, but it seems much worth discussing.

Note that the Times story quotes me on the issue, but — as with many newspaper quotes — gives only part of my analysis: It quotes me as saying that the non-sex-related classifications are constitutional, but that the sex-related classifications are presumptively unconstitutional, but doesn't discuss the complicated questions raised in point 1 above.

UPDATE: Whoops! Meant to say "women aren't being treated worse because they are women, but because they are in a less overcrowded prison," but said "in an overcrowded prison" (the opposite of what I meant) by accident. Fortunately, commenter Sebastian Holclaw alerted me to the error -- many thanks.

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NSA data mining and the false trade-off between privacy and security:

Defenders of the NSA's known domestic surveillance programs -- listening in to some international calls and collecting records of Americans' wholly domestic phone calls -- sometimes claim that we must sacrifice a little privacy/liberty in order to gain security from future terrorist attacks. That sounds reasonable and pragmatic, as long as the magnitude of the loss of privacy/liberty is worth it in light of the magnitude of the gain in security. But in the case of the two programs revealed in the last 6 months, and especially the massive call-records programs revealed by USA Today earlier this month, the tradeoff may well be a false one. The program may well be all pain and no gain. This column by Bruce Schneier, an expert on data systems and privacy, points to a big problem with data mining of the sort the NSA is doing with Americans' telephone calls. It turns out to be a huge investment of wasted time and resources chasing rabbit trails. Writes Schneier:

Data mining works best when you're searching for a well-defined profile, a reasonable number of attacks per year, and a low cost of false alarms. Credit-card fraud is one of data mining's success stories: All credit-card companies mine their transaction databases for data for spending patterns that indicate a stolen card.

Many credit-card thieves share a pattern -- purchase expensive luxury goods, purchase things that can be easily fenced, etc. -- and data mining systems can minimize the losses in many cases by shutting down the card. In addition, the cost of false alarms is only a phone call to the cardholder asking him to verify a couple of purchases. The cardholders don't even resent these phone calls -- as long as they're infrequent -- so the cost is just a few minutes of operator time.

Terrorist plots are different; there is no well-defined profile and attacks are very rare. This means that data-mining systems won't uncover any terrorist plots until they are very accurate, and that even very accurate systems will be so flooded with false alarms that they will be useless.

Just in the United States, there are trillions of connections between people and events -- things that the data-mining system will have to "look at" -- and very few plots. This rarity makes even accurate identification systems useless.

Let's look at some numbers. We'll be optimistic -- we'll assume the system has a one in 100 false-positive rate (99 percent accurate), and a one in 1,000 false-negative rate (99.9 percent accurate). Assume 1 trillion possible indicators to sift through: that's about 10 events -- e-mails, phone calls, purchases, Web destinations, whatever -- per person in the United States per day. Also assume that 10 of them actually indicate terrorists plotting.

This unrealistically accurate system will generate 1 billion false alarms for every real terrorist plot it uncovers. Every day, the police will have to investigate 27 million potential plots in order to find the one real terrorist plot per month. Clearly ridiculous.

This isn't anything new. In statistics, it's called the "base rate fallacy," and it applies in other domains as well. And this is exactly the sort of thing we saw with the National Security Agency (NSA) eavesdropping program: The New York Times reported that the computers spat out thousands of tips per month. Every one of them turned out to be a false alarm, at enormous cost in money and civil liberties.

Finding terrorism plots is not a problem that lends itself to data mining. It's a needle-in-a-haystack problem, and throwing more hay on the pile doesn't make that problem any easier. We'd be far better off putting people in charge of investigating potential plots and letting them direct the computers, instead of putting the computers in charge and letting them decide who should be investigated.

By allowing the NSA to eavesdrop on us all, we're not trading privacy for security. We're giving up privacy without getting any security in return.

With respect to the domestic call-records program, perhaps the NSA has developed a very precise formula for pinpointing patterns of terrorist-related calls that reduce the wasted time and resources that would otherwise be expended. Perhaps there are real and verifiable success stories -- foiled plots, arrested would-be terrorists -- that have come from the NSA's activities. If so, we've seen little evidence of it, apart from the administration's unsupported assertions that these NSA programs are needed for national security. Aside from the possible unconstitutionality of one or both of the NSA programs, there's a deeper problem with the administration's position. When it comes to the loss of personal privacy and liberty, the history of the abuse of executive power and the ever-present danger of the inadvertent disclosure of Americans' personal data counsel that "Trust us" shouldn't be good enough.

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One Advantage of the Republican Party, 1982:

Why, it "is not in the hands of the Jewish lobby in America." The Democratic Party, on the other hand, "must look quite often to Jewish money to finance candidates." And Israel, of course, "has become very much like adolf Hitler's Germany." That's Rep. Pete McCloskey, in an interview with Spotlight magazine (published by the Liberty Lobby), Oct. 11, 1982, at 14:

The Republican Party is not in the hands of the Jewish lobby in America as the Democratic Party must look quite often to Jewish money to finance candidates. If you look at "Scoop" Jackson, and Alan Cranston, and Teddy Kennedy -- any Democratic candidate for national office has more or less go to look to Jewish money, Republicans don't -- they are more business-oriented....

The battle [over Reagan's peace plan for the Mideast] will be for public opinion in the United States, whether the Congress will be willing to back Reagan and stand up to the Jewish lobby in this country. Congress has invariably knuckled under to the Israeli lobby in the past, and for Reagan's plan to succeed, Congress is going to have to be willing to cut off aid to the Israelis if they continue the West Bank settlements....

That's the same man who has referred to the "so-called Holocaust," in a speech before the Holocaust revisionists at the Institute for Historical Review. That's the same man who called Yasser Arafat a "man of peace" in the same exchange in which he harshly condemned Menachem Begin, Ariel Sharon, and Yitzhok Shamir.

It's also the same man who's running in the Republican primary for a House of Representatives seat, and who has been endorsed by the San Francisco Chronicle and the Los Angeles Times. The Times tells us he's "the best thing that could happen for the district, the state, the nation and possibly the Republican Party."

There's no doubt that Jews, like others, participate in the political process, and promote causes that they care about -- which sometimes include Israel. It's quite legitimate to discuss that. It's quite legitimate to criticize Israel; for all I know (not being particularly knowledgeable on the subject), Rep. McCloskey's substantive criticisms of Israel were quite sound, though the claim that Israel was "very much like Adolf Hitler's Germany" makes me skeptical of his other views.

But when someone suggests that the Democratic Party is "in the hands of the Jews," because it is beholden to "Jewish money" (the money of 2% of the U.S. population, a group that's somewhat but not vastly more prosperous per capita than the average person), that suggests a pretty serious lack of perspective. And when coupled with the more recent talk of the "so-called Holocaust" and the shocking double standard in evaluating Arafat and the Israeli leaders, it makes one wonder whether Mr. McCloskey is indeed quite as good as the Times and the Chronicle suggest.

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Webcast of New York same-sex marriage oral argument:

Same-sex marriage has made it to New York's highest court. The argument in Hernandez v. Robles and three other cases starts at 2:00 p.m. eastern time today. You can listen to the oral argument live at the court's website. New York is one of a handful of states where gay-marriage litigants feel they have a decent prospect of winning.

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Tuesday, May 30, 2006

Against Nicotine Abstinence:

Hunter College epidemiologist Philip Alcabes has an op-ed in the Washington Post arguing against an "abstinence only" approach to nicotine. "Like other abstinence campaigns (alcohol prohibition, sexual abstinence before marriage, just saying 'no' to drugs), this one is both moralistic and ineffective," he argues. Instead Alcabes suggests public health advocates should be willing to promote alternative, less-harmful means for people to get their nicotine fix.

Obviously, nicotine use is a popular and tenacious habit. Equally obviously, tobacco policy is a failure. Surveys show that a majority of current smokers would like good alternatives to smoking as ways of getting nicotine. But we will not tell nicotine users that there are safe ways to continue to use the legal drug they crave. Apparently, our policymakers would rather see those people get sick and die.
Smokeless tobacco is hardly a "safe" alternative to cigarettes, but it is "safer," in that it poses a lesser risk of cancer and other health problems. (Nicotine patches and gum work for some, but not for all.)

If the aim is to reduce tobacco-related deaths, why not inform smokers of this fact? One possible argument is that this knowledge could encourage some people to use smokeless tobacco who otherwise would have given up tobacco use altogether. Perhaps, but given the enormous death toll from cigarettes, I find this argument unconvincing. To the contrary, if smokeless tobacco companies had the guts to promote the comparative health "benefits" of their products over cigarettes, I am inclined to think the net public health benefit would be quite substantial.

Perhaps even more provocatively, Alcbes suggests public health professionals should take a second look at so-called "social smoking":

And then there's what many smokers nowadays really do: Mix periods of abstinence (encouraged by smoke-free workplaces and restaurants) with periods of light smoking. Mixing light or occasional smoking with other nicotine-delivery products might be even safer -- but it can't be studied as a possible alternative because current funding goes only to research on how to quit smoking, not on finding a safe level of smoking.
If the aim is to improve public health, this mindset should change.

Related Posts (on one page):

  1. Big Tobacco Goes Smokeless:
  2. Against Nicotine Abstinence:
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"The Common Law Is Like a Baby . . . ":

Miriam Cherry offers up some of her favorite lines from her students exams and papers. My favorite: "The common law is like a baby. It grows and grows until someone comes along and stops it."

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Sonic Hedgehog

is the name of a chemical, discussed by Real Scientists, And Everything. Thanks to Slate's Explainer for the pointer.

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Blood Oath:

Funny AP story about a contract that apparently was indeed written in blood -- but that one party is still challenging as not being binding. Yes, the blood has no legal effect, but I'd have thought it would have had some moral influence on the signatories. Thanks to How Appealing for the pointer.

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A Liberal Argument for Why the Federal Courts May Have Been Wrong in Schiavo After All:

Sam Bagenstos, who's a lawprof at Washington University (St. Louis), an expert on (among other things) disabilities law, and in my experience a thoughtful and careful scholar — though one with whom I'd likely often disagree — has a forthcoming paper that takes this perspective. Here's the abstract (some paragraph breaks added); the paper is also available at that page:

This paper argues that, even if one does not endorse anti-abortion politics or agree with the intemperate attacks visited on the judges who were called upon to decide the Theresa Schiavo case, one ought still to conclude that the manner in which the federal courts handled the case offers cause for regret.

The federal courts rushed the case, and in so doing failed to provide meaningful consideration to the Schindlers' nonfrivolous claims under the Americans with Disabilities Act (ADA). The state court ordered Schiavo's feeding and hydration terminated for reasons that had everything to do with her medical condition — a condition that is clearly a "disability" under the ADA.

Although there may be good arguments that the state court did not violate the statute, the federal courts did not so much as advert to those arguments. And the case touched on a core concern of many disability rights advocates: the fear that nondisabled people, relying on erroneous understandings of the "quality of life" of people with disabilities, will unjustifiably terminate life-sustaining treatment. Given that background, the federal courts should have taken the time to give the Schindlers' ADA claim at least some serious consideration.

It is certainly understandable that the federal judges assigned to the case wanted to rush things. By the time the case got to federal court, the state courts had considered the matter with care and deliberation through six years of contested litigation. There was no particular reason to believe that the state courts had overlooked something, or that federal court intervention was necessary.

But it was not up to the federal courts to decide that question; Congress had explicitly directed them to address and resolve the Schindlers' claims de novo, notwithstanding any state court proceedings that came before. Federal judges might understandably have been put off by the way the statute singled out a particular case, by the lack of meaningful congressional deliberation in the highly charged atmosphere in which the statute was adopted, and by the attempts by many politicians to use the courts (as weapons or targets) in a political battle. But neither the district judge nor any of the judges on the three-judge appellate panel assigned to the case was willing to conclude that the statute was unconstitutional. In the absence of such a ruling, the federal courts should have given the parties and themselves enough time to give meaningful consideration to the Schindlers' claims.

I'm not a disabilities law expert, and thus can't judge the merits of Bagenstos's arguments. But my quick look, coupled with my respect for Prof. Bagenstos, suggests that the arguments are worth considering.

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Not Anti-War -- Just on the Other Side:

The appalling George Galloway (a British Member of Parliament) says that the assassination of Tony Blair would be "morally justified." Christopher Hitchens in Slate has the story.

By the way, I do agree that the assassination of an enemy Prime Minister is, as a matter of the laws of war, quite a different matter than the deliberate targeting of civilians who aren't participating in the war effort. Likewise, a Nazi attempt to assassinate Winston Churchill during World War II would not have been a war crime of the same sort as Nazi deliberate murders of civilians. (Depending on the circumstances, it might not have been a war crime at all, or it might have been a far lesser violation of the law of war.) Similarly, if al Qaeda were to simply attack the Pentagon, that too would not be a war crime on the level of deliberate targeting of civilians, though of course it would amply justify continued military retaliation against those who are making war on us. (I can't speak with similar confidence about the actual 9/11 attack on al Qaeda, because it involved a hijacked civilian aircraft, which might make the analysis different.) Not all of one's enemies' military attacks are at the same time inherently atrocities -- for some, the actions' moral repugnance stems from the ends to which they're aimed, rather than the means that are used -- though the attacks should be dealt with by force even when they aren't atrocities.

My point, therefore, is not that Galloway's position is an endorsement of the most serious sorts of war crimes. Rather, Galloway's position simply shows, as the title of the post indicates, that he's on the side of his country's (and my country's) enemies.

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United States District Court Puzzle:

U.S. District Courts are generally known as

The United States District Court for the X District of Y

where X is "Northern," "Southern," "Eastern," "Western," "Middle," or nothing at all, and where Y is the name of the jurisdiction (e.g., Alaska, Texas, Guam, and the like).

Which currently operational U.S. District Courts do not precisely fit this pattern? Partial credit will not be given.

UPDATE: Note that the question is limited (three times!) to U.S. District Courts. If the court you're thinking of isn't a U.S. District Court, it doesn't qualify. If you think some court that isn't called a U.S. District Court is actually a U.S. District Court, please explain your position in any comment you post.

FURTHER UPDATE: If you think some court qualifies because of its nonstandard name -- for instance, one commenter suggests the "Connecticut District Court" -- please point to some evidence that the court is actually called that. The United States District Court for the District of Connecticut, for example, actually seems to be called the United States District Court for the District of Connecticut -- which fits the standard format described above -- and not the Connecticut District Court.

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A Question Many of Us Have Asked While Traveling:

"Why Do Europeans Smoke More than Americans?"

NBER Working Paper No. W12124

Contact: DAVID M. CUTLER Harvard University - Department of Economics, National Bureau of Economic Research (NBER) Auth-Page: http://ssrn.com/author=42210

Co-Author: EDWARD L. GLAESER Harvard University - Department of Economics, John F. Kennedy School of Government, The Brookings Institution, National Bureau of Economic Research (NBER) Auth-Page: http://ssrn.com/author=20261

Full Text: http://ssrn.com/abstract=893779

ABSTRACT: While Americans are less healthy than Europeans along some dimensions (like obesity), Americans are significantly less likely to smoke than their European counterparts. This difference emerged in the 1970s and it is biggest among the most educated. The puzzle becomes larger once we account for cigarette prices and anti-smoking regulations, which are both higher in Europe. There is a nonmonotonic relationship between smoking and income; among richer countries and people, higher incomes are associated with less smoking. This can account for about one-fifth of the U.S./Europe difference. Almost one-half of the smoking difference appears to be the result of differences in beliefs about the health effects of smoking; Europeans are generally less likely to think that cigarette smoking is harmful.

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New Supreme Court Punitive Damages Case:

As SCOTUSblog reports, the Supreme Court has agreed to hear a very interesting and important new case on constitutional limits to punitive damages:

The Court said it would rule on two issues raised in Philip Morris USA v. Williams (05-1256). The first: if a court finds that a company's misconduct was outrageous, does that override the constitutional limit that holds punitive damages closely to the actual harm done -- the so-called "ratio" issue. [EV Note: This refers to the rule that punitive damages may not be more than some relatively small, likely single-digit, multiple of the actual harm.] The second is whether the Constitution forbids juries to provide damages to punish a company for the effects of its conduct on others, not directly before the court....

The case involves two rulings by the Oregon Supreme Court -- one decided after the Supreme Court had ordered the state tribunal to reconsider its earlier ruling in the wake of constitutional standards laid down by the Justices in their 2003 decision in State Farm v. Campbell. In both of its decisions, the Oregon court upheld a $79.5 million punitive damages award to a woman whose husband had died of lung cancer. The punitive award far exceeded the $521,485.40 ordered in compensatory damages. The widow's lawsuit was a wide-ranging attack on 50 years of Philip Morris' conduct in marketing cigarettes, and the Oregon court ruled that the punitive damages could be based in part upon injuries it found had been done to many Oregon smokers, not involved in the case.

The company's appeal said that each of the issues raised in the case arises regularly in punitive damages cases, and those questions have resulted in widely varying lower court rulings....

I should note that the firm with which I'm now affiliated (on a part-part-part-time basis), Mayer Brown Rowe & Maw, represents the tobacco company here. One of the reasons I joined Mayer is that they get involved in important, interesting, high-level cases like this one; congratulations to them on getting a certiorari grant.

I should also note that, when I blog about cases that I know Mayer is involved in (whether or not I am personally involved), I'll disclose the involvement (much as other bloggers, especially the SCOTUSblog bloggers, have done).

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"Fill in Alarmist and Armageddonst Factoid Here":

A reader points me to this amusing item in the Philadelphia Inquirer:

Before President Bush touched down in Pennsylvania Wednesday to promote his nuclear energy policy, the environmental group Greenpeace was mobilizing.

"This volatile and dangerous source of energy" is no answer to the country's energy needs, shouted a Greenpeace fact sheet decrying the "threat" posed by the Limerick reactors Bush visited.

But a factoid or two later, the Greenpeace authors were stumped while searching for the ideal menacing metaphor.

We present it here exactly as it was written, capital letters and all: "In the twenty years since the Chernobyl tragedy, the world's worst nuclear accident, there have been nearly [FILL IN ALARMIST AND ARMAGEDDONIST FACTOID HERE]."

Had Greenpeace been hacked by a nuke-loving Bush fan? Or was this proof of Greenpeace fear-mongering?

The aghast Greenpeace spokesman who issued the memo, Steve Smith, said a colleague was making a joke by inserting the language in a draft that was then mistakenly released.

"Given the seriousness of the issue at hand, I don't even think it's funny," Smith said.

The final version did not mention Armageddon. It just warned of plane crashes and reactor meltdowns.

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Kelo Crunch Time:

Tom Blumer has been posting up a storm at Bizzyblog on the "Kelo Crunch Time." What is Kelo Crunch Time?

Tomorrow, May 31, is what I am calling Kelo Crunch Day, the deadline set by the New London City Council and the New London development Corporation (NLDC) for the Kelo holdouts to either accept their “offer” (moving the houses to a different parcel and paying rent for the rest of their lives) or face eviction and the assessment of $946,000 in back rents, taxes, and fees.

Tom has lots of good stuff and excerpts from local news stories and editorials about the various positions being taken in the run up to Kelo Crunch Day.

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Monday, May 29, 2006

AP Error About Funeral Picketing Restriction Makes Its Way Into New York Times:

Today's story in the New York Times says:

Under the Senate bill, approved without objection by the House with no recorded vote, the "Respect for America's Fallen Heroes Act" would bar demonstrations within 300 feet of the entrance of a cemetery and within 150 feet of a road into the cemetery from 60 minutes before to 60 minutes after a funeral.
But as I wrote a few days ago, the law bars only access-impeding demonstrations within 300 feet of the cemetery entrance, and only demonstrations that involve "noise or diversion that disturbs or tends to disturb the peace or good order of the ... ceremony" within 150 feet of the entrance road. If the latter provision is interpreted the way it has been in other laws that contain this language, it will be simply a content-neutral ban on speech that disturbs because of its noisiness and not its message.

There are some possible problems with the law, which I discuss in more detail here. But the law does not, as the AP — and now the New York Times — suggests, "bar protests within 300 feet of the entrance of a cemetery and within 150 feet of a road into the cemetery from 60 minutes before to 60 minutes after a funeral."

By the way, does anyone know what's a reasonably reliable way of alerting the AP — not the particular newspaper that has run an AP story — to errors in its stories? Do any of you have a sense of whether such messages would be worthwhile? (For instance, do newspapers that rerun stories work off the master on the AP site, so that if the master gets corrected, future copies will no longer have the error? Have you ever had success yourselves with getting AP to make such corrections?) It would have been good if I could have persuaded the AP to correct the error when the story first ran; on the other hand, I don't want to take the time to send them messages about future errors if it seems likely that such messages will be futile.

Thanks to fellow lawprof Eric Freedman for the pointer.

UPDATE: Commenter Jason Fliegel correctly points out that the ban applies to all demonstrations -- including favorable ones -- not just to protests. I was using protest as an imprecise term for demonstration, but it's better to be precise, especially if all it means is changing one word; I've therefore changed the post (in which I used the term "protest") accordingly.

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Radio Show On Liberty: This morning, I did an hour-long show for Minnesota Public Radio on "the meaning of liberty, and how it has changed since the U.S. Constitution was framed." It is a wonderful luxury to have a whole hour to elaborate one's views, but even so I can think of so many things I wish I had said. One gets sidetracked by the thrust of the questions of the host, and of the callers. But all-and-all, I think it is worth listening to here. (Unfortunately, you need RealAudio to open the stream)
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Hitchens on Memorial Day:

OpinionJournal.com presents a Memorial Day essay by Christopher Hitchens. Here's a taste:

it was only after the doughboys returned in 1918 that the former Confederate states dropped their boycott of America's original "Memorial Day," proclaimed by Union commander Gen. John Logan in May 1868. And here one can note the bizarre manner in which war--which is division by definition--exerts its paradoxically unifying effect. If it is "the health of the state," as was sardonically said by that great foe of "Mr. Wilson's war," Randolph Bourne, then it can also be an agent of emancipation and nation-building and even (as was proved after 1945) of democracy. But even this reflection can never abolish the insoluble problem: how to estimate the value of those whose lives were cruelly cut off before victory was in sight. It is sometimes rather lazily said that these soldiers "gave" their lives. It would be equally apt, if more blunt, to say that they had their lives taken. Humanity has been grappling with this conundrum ever since Pericles gave his funeral oration, and there would have been many Spartan and Melian widows and orphans who would have been heartily sickened by those Athenian-centered remarks.

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Memorial Day Rememberance:

Professor Bainbridge remembers his grandfather.

Memorial Day Thoughts:

This Intel Dump post by Philip Carter provides some valuable, Memorial Day food for thought. (Link via Mark Kleiman.)

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Truly Remarkable Thing I Saw on Israeli Television:

I couldn't believe my ears, so I asked my Israeli companions to translate, in case I was completely miscomprehending (my Hebrew isn't great), but they confirmed it. I was watching a show about life in Israeli prisons, and it eventually reached a segment about a wing of an Israeli prison where they incarcerate Arab women who planned suicide murder bombings, but were caught before they could do so.

So what does Israel do with these women? Lock them up and throw away the key? Torture them? Even as a supporter of Israel, I wouldn't have been surprised by either of the above, given what I read about Israel in the English-language media.

In fact, however, the segment was about how many of these women were having children, who were being raised in the prison. These women were not pregnant when they were caught. How did they get pregnant? Abusive rape by prison guards? Nope. Israel allows them conjugal visits. The segment showed decked-out cribs awaiting new priosners' babies, and also had interviews with some of the women, who proclaimed that they were sorry they didn't get to murder any Jews and that they planned to raise their children to be suicide murderers.

While the Western media loves to play up themes of Israeli militarism, questionable human rights practices, etc., the above story suggests (and I plan a post on another example soon) no shortage of the worst types of Scandinavian-style leftism.

Immigration for Academics II - Answering the Challenge:

Jonathan Adler's recent post cites Matthew Yglesias' challenge to academics who support open immigration. Yglesias writes:

I'll believe that this is all about altruism when I see an open letter from economists we scrap the complicated H1B visa system and instead allow unrestricted immigration of foreign college professors without all these requirements about prevailing wages, work conditions, non-displacement, good-faith recruitment of natives, etc.

OK, here goes:

I hereby announce my unequivocal support for the proposition that the US government should allow universities to hire professors without regard to the job applicant's citizenship status or national origin. There should be no government-mandated "requirements about prevailing wages, work conditions, non-displacement, [or] good-faith recruitment of natives."

In reality, universities are rarely if ever prevented from hiring foreign academics by visa rules even in the status quo. Almost every top tier law school I know of (including GMU) has at least a few foreign professors (not even counting immigrants like myself, who had US citizenship prior to entering academia). In my experience, visa considerations virtually never influence law school faculty hiring decisions; I suspect that the same is true in other academic fields. Therefore, I doubt the validity of Yglesias' claim that if visa requirements for academics were scrapped, "there could be many more [foreign professors], wages for academics could be lower, and college tuitions could be significantly lower." However, my support for open academic immigration is not contingent on the accuracy of this prediction. If Yglesias is right about the effects of eliminating visa requirements for professors and I am wrong, I believe that would actually strengthen the case for doing it.

Give me your tired, your poor, Your huddled masses yearning to breathe free . . .

. . . . and your unemployed academics!

Related Posts (on one page):

  1. Immigration for Academics II - Answering the Challenge:
  2. Immigration for Academics:
  3. Immigration: The Economic Consensus
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Sunday, May 28, 2006

Immigration for Academics:

Matthew Yglesias challenged those academics who signed the economists' open-letter on immigration to endorse scrapping the H1B visa system "and instead allow unrestricted immigration of foreign college professors." "If there's really no difference between 'us' and 'them' economists should be leading the charge to disassemble the system of employment protections they enjoy," writes Yglesias. No problem, say Brad DeLong and Greg Mankiw (via Daniel "Bring It On" Drezner).

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"An Over-representation of Factual Presentations"

In a recent interview about the movie, "An Inconvenient Truth," Dave Roberts of Grist magazine, asked former Vice President Al Gore: "There's a lot of debate right now over the best way to communicate about global warming and get people motivated. Do you scare people or give them hope? What's the right mix?" Gore answered as follows:

I think the answer to that depends on where your audience's head is. In the United States of America, unfortunately we still live in a bubble of unreality. And the Category 5 denial is an enormous obstacle to any discussion of solutions. Nobody is interested in solutions if they don't think there's a problem. Given that starting point, I believe it is appropriate to have an over-representation of factual presentations on how dangerous it is, as a predicate for opening up the audience to listen to what the solutions are, and how hopeful it is that we are going to solve this crisis.

Over time that mix will change. As the country comes to more accept the reality of the crisis, there's going to be much more receptivity to a full-blown discussion of the solutions.

How should one interpret Gore's statement that it is "appropriate to have an over-representation of factual presentations on how dangerous it is." Is this a call for environmental activists to exaggerate or stretch the truth? Or merely an argument for emphasizing certain facts? I'd be curious what readers think.

UPDATE: Some commenters below speculate about my motives for this post. Contrary to the suggestion of Kieran and some of the others, this was not an effort to ridicule or disparage Gore — various selections from his book or earlier interviews would have better served that purpose. I was pointed to the quote by someone who thought that it was quite damning. Unconvinced, I was curious to see what readers of this blog made of the quote when presented in context.

For various other perspectives on the quote, see here, here, here, and here.

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Townshend on the Politics of WGFA:

Pete Townshend offers his thoughts on National Review's John Miller naming "Won't Get Fooled Again" as the greatest conservative rock song (after coverage in The Independent).

Of course the song has no party-allied political message at all. It is not precisely a song that decries revolution - it suggests that we will indeed fight in the streets - but that revolution, like all action can have results we cannot predict. Don't expect to see what you expect to see. Expect nothing and you might gain everything.

The song was meant to let politicians and revolutionaries alike know that what lay in the centre of my life was not for sale, and could not be co-opted into any obvious cause. . . .

I am just a song-writer. The actions I carry out are my own, and are usually private until some digger-after-dirt questions my methods. What I write is interpreted, first of all by Roger Daltrey. Won't Get Fooled Again - then - was a song that pleaded '….leave me alone with my family to live my life, so I can work for change in my own way….'. But when Roger Daltrey screamed as though his heart was being torn out in the closing moments of the song, it became something more to so many people. And I must live with that.

Related Posts (on one page):

  1. Townshend on the Politics of WGFA:
  2. Sunday Song Lyric:
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Kelo Backlash Update:

An excellent paper by Tim Sandefur summarizes the disappointing results of the political backlash stimulated by Kelo v. City of New London, which upheld the use of eminent domain to transfer property from one private citizen to another for purposes of "economic development."

In the aftermath of Kelo, many commentators, including Judge Richard Posner and Chief Justice John Roberts at his Senate confirmation hearings claimed that state legislative reform is a viable alternative to judicial enforcement of public use limitations. Posner even claimed that it provides justification for the Court's decision in Kelo itself (see my paper on Kelo, pg. 65-66). Although some forty states have either adopted or considered legislation to curb eminent domain power in the aftermath of Kelo, Sandefur concludes that only five - "Indiana, South Dakota, Georgia, Pennsylvania, and Florida" have enacted laws that actually provide "strong protections for property rights." Numerous other states have passed laws that purport to restrict eminent domain abuse but actually do little or nothing.

In my view, the situation may be even worse than Sandefur suggests. Of the five states that have enacted meaningful legislation, two (South Dakota and Georgia) have little or no history of private-to-private condemnation for economic development in any case, and one (Florida) already has a judicial ban on economic development takings (though the new Florida law also restricts "blight" condemnations). As Sandefur points out, the Pennsylvania law to a large extent excludes the cities of Philadelphia and Pittsburgh, where most of the state's development condemnations actually occur. Thus, only the Indiana and (to a lesser extent) Florida laws represent truly significant progress. I also think, for reasons discussed in my own forthcoming article on Kelo, that Sandefur is overly optimistic about anti-Kelo legislation being considered by the US Congress.

Why has the Kelo backlash largely failed? Sandefur blames the political power of development interests who benefit from private-to-private condemnations and the lack of a strong philosophical commitment to property rights. Both of these factors play a role. But Sandefur and other analysts fail to explain how development interests could overcome the opposition of the vast majority of the electorate that, according to surveys, opposes Kelo-style takings.

I would argue that political ignorance on the part of voters also plays a major role. A great deal of specialized knowledge and study is required to tell the difference between an anti-Kelo bill that meaningfully restricts eminent domain power and one that does little or nothing. The devil (and the angel, if any) is in the details! Most voters lack the ability or the incentive to scrutinize such details closely. Indeed, as I have argued in much of my scholarly work, it is rational for voters to pay little attention to the details of public policy because there is so little chance that any one voter's decision will have a decisive impact on electoral outcomes.

Developers and other interest groups, on the other hand, have far superior knowledge about the details of legislation and strong incentives to keep track of them. Thus, skilled politicians can satisfy voters angered by Kelo by passing laws purporting to "reverse" it, while simultaneously avoiding the ire of development interests by ensuring that those laws are actually toothless. For the same reasons that ordinary voters don't pay attention to the details of eminent domain law, they are also unlikely to pay attention to the details of its implementation. Thus, most will not notice that little has changed after the passage of "anti-Kelo" laws in their states. Run of the mill takings, even if abusive, are not likely to get the kind of widespread press coverage and attention that Kelo did. This dynamic will only get stronger as the excitement generated by Kelo begins to dissipate and public attention moves on to other issues.

This does not mean that all post-Kelo legislative reform is hopeless. It does, however, suggest that there are severe limits to what such reform can be expected to achieve. At the very least, supporters of property rights should be highly skeptical of claims that legislative reform is an adequate substitute for judicial enforcement of limits on the scope of public use.

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Back from Argentina:

I have now returned from Argentina (as well as brief side trips to Brazil and Uruguay). I'm not going to attempt to describe the tourist sites, as many other people can do that better than I could. But one of the most amazing places I saw was the Iguazu National Park, which spans the border between Argentina and Brazil. Iguazu has breathtaking views and much interesting wildlife. One example is the Coati, pictured here (not one of my photos, which aren't developed yet, but taken from this website).

Coatis are genetically related to raccoons. But unlike raccoons, they are not nocturnal and seem to have no fear of humans. Coatis are also social animals that live in large packs. Often 10 or 12 of them will appear at once and start sniffing you over. Coatis have a female-dominated social structure, with adult males allowed to join the band only during mating season. For more on Coatis, see here.

Related Posts (on one page):

  1. More Coati-Blogging:
  2. Back from Argentina:
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Sunday Song Lyric: Back in 2003, the Dixie Chicks alienated a good portion of their fan base when lead singer Natalie Maines told a London concert audience that she was embarrassed to be from the same state as President George W. Bush. Many country music stations responded by refusing to play Dixie Chick songs, and record sales suffered. While I was never much of a Dixie Chick fan (though I have seen them in concert), I did not feel Maines' comments justified a boycott, but many country music listeners obviously felt otherwise. I also don't think the Chicks helped matters by crying "censorship" and posing martyrs for free speech.


The Dixie Chicks released a new album this week -- their first since Maines' comments -- but it seems they still have some problems. According to this report, country music stations have not warmed to the first singles (though one is apparently receiving decent VH-1 airplay). One possibility is that country music fans have long memories, and are unwilling to forgive Maines for her comments. Another is that the trio has not made it easy for their fans to forgive and forget. Consider the lyrics to one of their new singles, "Not Ready to Make Nice":

Forgive, sounds good.
Forget, I'm not sure I could.
They say time heals everything,
But I'm still waiting

I'm through, with doubt,
There's nothing left for me to figure out,
I've paid a price, and i'll keep paying

I'm not ready to make nice,
I'm not ready to back down,
I'm still mad as hell
And I don't have time
To go round and round and round
It's too late to make it right
I probably wouldn't if I could
Cause I'm mad as hell
Can't bring myself to do what it is
You think I should

I know you said
Why can't you just get over it,
It turned my whole world around
and i kind of like it
If, as Maines sings, the Chicks are "not ready to make nice," why should their former fans feel any different?
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