Saturday, July 15, 2006Missing Pieces in Immigration Stories
In my latest media column, I point out how the Denver Post falsely portrayed Georgia State Senator Sam Zamarripa, who is that state's leading advocate for illegal aliens. Also, how the Post missed the research showing the complexity of the issue of illegal aliens and Medicaid. Plus a suggestion that the Rocky Mountain News drop the mean-spirited cartoons of Dan Asmussen of the S.F. Chronicle. Letter to the ABA Journal re Thimerosal and Autism:
Here's a letter I wrote to the ABA Journal:
I was especially saddened to see this piece because Mark Hansen, who used to write for the ABA Journal, wrote some pathbreaking pieces debunking junk science and junk scientists such as uber-charlatan Louise Robbins. Jurisdynamics:
University of Minnesota law preofessor Jim Chen has launched a new blog, Jurisdynamics. In his first post, he explains the blog's title:
Jim's work is typically provocative and engaing, so I would expect his blog to be so as well. Welcome to the blogosphere! Friday, July 14, 2006New idea for a movie
based on Franz Kafka's The Trial: As the police come to arrest Josef K. one morning in his apartment, Josef K. is having a bowl of Special K. (For an idea for a possible sequel to The Trial, see here. Former posts of mine related to Kafka are available here and here, and see especially here for a post on one of his best short stories. Going out on a tangent a bit, here's a post on Capek.) Gonzalez v. Raich and the Future of Federalism:
A draft of my forthcoming Cornell Journal of Law & Public Policy symposium article on Gonzalez v. Raich (the medical marijuana case) is now available at SSRN. Longtime VC readers and con law mavens may be interested to know that the article to some extent takes issue with the somewhat less pessimistic interpretation of Raich advanced by co-blogger Randy Barnett here. Here's the abstract:
Why Did Reagan Coddle Iran (and Hezbollah)?
I've always been puzzled why Reagan didn't try to punish Iran for taking American hostages. And then barely reacted when Hezbollah killed over 200 marines, and tortured CIA station chief Buckley to death. And then tried to sell weapons to Iran. Near as I can tell, it's because the Reagan Administration had one huge priority, and that was to defeat Communism. (Although we did back Saddam for a while against Iran.) Fanatical muslims, Administration officials hoped, were potential allies of the U.S. against godless Communism, just as they turned out to be in Afghanistan. Is this a reasonable summary? Any commentors with expertise on this? You can't really blame the Reaganites too much, as they did indeed defeat Communism. But they also seem to have sowed the seeds of WWIII, by allowing and sometimes encouraging fanatical anti-Western Sunni and Shiite Islamicism to flourish, just as Roosevelt and Truman laid the groundwork for the Cold War by cooperating with Stalin to defeat Hitler--and being way too naive about their putative "ally." Court Bars Defendant "From Making Any Comments That Could Be Construed As To Disparage [a Trademark]":
In The Freecycle Network, Inc. v. Oey, a federal district court issued a preliminary injunction ordering Tim Oey not to "mak[e] any comments that could be construed as to disparage upon Freecycle's possible trademark and logo." The court further ordered Oey "to remove all postings from the internet and any other public forums that he has previously made that disparage Freecycle's possible trademark and logo." (Oey is a former volunteer with The Freecycle Network who eventually concluded that "freecycle" should be a generic term, and not a privately owned trademark, and who has been trying to persuade others of that. Whether TFN actually has the trademark rights has not yet been finally adjudicated; it's part of a separate lawsuit in a different court.) The order "specifically refers to, but is not limited to, the exhibits used by Freecycle in this case," which include, but are not limited to, statements such as,
and
Mayer Brown Rowe & Maw, the firm for which I'm a part-part-part-time Academic Affiliate, is handling the appeal to the Ninth Circuit; here's the brief, which was written by Don Falk with the help of Ian Feinberg, Dennis Corgill, summer associate (and my former student at Mayer) Pete Patterson, and me. Related Posts (on one page):
Disarming Hezbollah:
The Washington Post reports that the Israeli attacks on Hezbollah positions in Lebanon have caused the Lebanese government to consider efforts to disarm Hezbollah and gain control over the southern part of the country, currently dominated by the Iranian-supported terrorist group:
According to most experts, the democratically elected Lebanese government lacks the firepower to take on the much better armed Hezbollah forces. However, if the Israelis can do enough damage to Hezobollah, the terrorist group might be sufficiently weakened to enable the government to disarm it and take control of the Lebanese-Israeli border in the aftermath of an Israeli attack. Although the anti-Hezbollah Lebanese probably have little love for the Israelis, the Christians and moderate Muslims who control the government are unlikely to use the border as a staging ground for rocket attacks into Israel, as Hezbollah has been doing. Indeed, many Lebanese factions, particularly various Christian and Druze groups, have cooperated with the Israelis in the past when it was in their interest to do so. Hopefully, this scenario, or something like it is the Israeli objective. The worst outcome would be for the Israelis to stop after inflicting only minor damage on Hezbollah. This would subject Israel to international condemnation and increase Hezbollah's prestige for "standing up" to Israel, while producing few benefits for either Israelis or Lebanese. Obviously, a full-fledged campaign to crush Hezbollah would lead to greater casualties in the short run than a more "proportionate" retaliation. But it is likely to save numerous lives in the long run on both sides of the border. It could also help the Lebanese to consolidate their still-fragile democracy by eliminating the most serious domestic threat to it. UPDATE: Since I wrote this post, the Israelis have announced that they do indeed plan to pursue this strategy, and the Lebanese Prime Minister, while denouncing Israel, has pledged to take control of southern Lebanon: Lebanese Prime Minister Fuad Saniora . . . said Saturday at a press conference that his government would reassert government authority over all Lebanese territory - an allusion to the possibility of deploying the Lebanese army in south Lebanon, which is effectively controlled by Hizbullah. Is It Legally Actionable for Google to Downgrade a Site's PageRank (Supposedly Without Good Reason)?
Kinderstart sued Google, saying so:
The district court has mostly rejected Kinderstart's claims, including state and federal Free Speech Clause claims, antitrust claims, and state unfair business practices claims, but suggested that a libel claim might prevail, if the complaint is properly amended:
50 Greatest Sidekicks of All Time:
Entertainment Weekly has a list of the Fifty Greatest Sidekicks of all time. Unfortunately, those of us who soldier on as sidekicks of the mighty Volokh Clan didn't quite make the cut. We won't be taking our rightful places alongside George Costanza, Chewbacca, Robin, and Willow Rosenberg. However, as EW points out, the key to being a great sidekick is "letting No. 1 get all the glory." So we take even greater pride in NOT being on the list than we would if we had made it! What Israel is and is Not Attacking in Lebanon:
To read the average American newspaper, much less lefty blogs or French government pronouncements (link corrected), you would think Israel is indiscriminately attacking Lebanon's civilian infrastructure. Ze'ev Schiff of Ha'aretz (a well-respected military analyst with excellent sources) has the facts, as of this morning Israel time:
Doctor-Patient Speech and the First Amendment:
The New Hampshire Board of Medicine has been considering disciplining Dr. Terry Bennett for the following incidents:
The Board was investigating whether such statements violate N.H. Rev. Stat. Ann. 329:17, VI(d), which bans "unprofessional conduct" by doctors, and N.H. Admin. R. Med. 501.02(h), which says:
Principle I of the AMA's Principles in turn says:
A New Hampshire trial court has just enjoined the investigation on First Amendment grounds. Professional-client speech, the court held, is protected by the First Amendment; it didn't discuss precisely how protected it is substantively, because it held that the regulation was unconstitutionally vague:
Related Posts (on one page):
Yet more losses for gay-marriage litigants:
Two more today, one in Tennessee apparently letting an anti-gay-marriage state constitutional amendment go to the ballot and one in the Eighth Circuit reversing a district judge's ruling that Nebraska's gay-marriage ban is unconstitutional. That makes five losses in one week. The Eighth Circuit decision, which can be read here, is especially important. It's significant because it reverses a district court decision that opponents of gay marriage, among them my friends Maggie Gallagher and BYU law professor Lynn Wardle, the Senate Republican Policy Committee, and many others, had relied on heavily as part of the "judicial activism" justification for passing a federal constitutional amendment. Very few constitutional law experts I know believed the district court opinion would be upheld, but that did not stop amendment supporters from using it to goad Congress and the public. The Eighth Circuit opinion is also significant because it appears to contain very broad language rejecting same-sex marriage claims. This is especially curious because the litigants had not asked the federal court to force Nebraska to recognize gay marriage; they had only asked the courts to hold that Nebraska's state constitutional amendment, which seems to ban much more than gay marriage, was too broad. Not content to reject just that claim, the Eighth Circuit seems to have taken it upon itself to reject gay-marriage claims generally. It holds that only rational basis review applies to Nebraska's definition of marriage and that the state has a rational basis supporting the definition, including interests in children very much like those sustained by the New York Court of Appeals last week. The Eighth Circuit opinion ends with a quote from Judge Richard Posner in a law review article nine years ago, arguing that for prudential reasons federal courts should be especially careful about recognizing "new rights" broadly opposed by the public. My hunch is that, if asked, the Supreme Court will deny cert in the Eighth Circuit case. Gay-marriage litigants will be deeply disappointed by this string of losses, especially the New York and Eighth Circuit rulings. But perhaps the more excitable elements of the anti-gay-marriage movement will calm down just a bit. Gay Marriage "Loses" in Connecticut:
For the third time in a week, a state court has rejected the claims of gay-marriage litigants. The decision comes from a Connecticut trial court, which granted summary judgment to the state in a suit claiming that the civil unions recognized in Connecticut since last year fall short of marriage, and thus deny the plaintiffs state constitutional rights to due process and equal protection. It's a trial court decision, so it's hard to get very excited about it. Nonetheless, it deals with some interesting issues that are going to come up again. The Connecticut ruling is not a decision against gay marriage claims in the same way that the New York Court of Appeals decision last week was. The legislative backdrop in Connecticut and New York could not be more different, since New York has done nothing legislatively to recognize and protect gay families. The trial court reasoned that since the Connecticut legislature has extended all of the rights, benefits, and responsibilities of marriage under state law to same-sex couples they have suffered no harm of constitutional significance. The fact that, for example, people may think of "civil unions" as a lesser status, or that same-sex couples may have to explain to people what the term "civil union" means, did not cause the kind of injury a court could address. So the court did not even analyze the substantive constitutional claims for gay marriage. And the state did not have to present its interest in having an equivalent status that goes by a different name. Here's how the court explained its rationale:
As an aside, while I agree with the court that judges should not generally get involved in fine-tuning titles, I'm not so sure that "nomenclature" is always beneath the constitutional radar. I can imagine circumstances in which it might well matter to a claim. Imagine, for instance, that in 1967 Virginia had created "civil unions" for interracial couples with all the rights, benefits, and responsibilities of marriage. It's unlikely that the Supreme Court would have held in this alternative-universe Loving v. Virginia that such a status involved no constitutional injury, regardless of how people perceived the status, such that the state would not even need to explain the reasons for the distinction. Such a case would involve a racial classification, of course, and so would be especially vulnerable in a way that Connecticut civil unions are not, but we reach that analysis only after deciding first that nomenclature can matter. The Connecticut court denies that the difference between "civil unions" and "marriage" even constitutes a "classification." Beyond that, the decision is interesting in several ways. First, it has to be taken as yet another blow to the position of the Massachusetts high court, which held in an advisory opinion after its Goodridge decision that an alternative status like "civil union" would present a substantial injury to same-sex couples and that the state had no rational interest in maintaining the distinction. Second, it's worth pondering this question: once a state has decided to grant all of the benefits, rights, and protections of marriage to same-sex couples, what exactly would be its interest in reserving the word "marriage" to opposite-sex couples? The Connecticut court did not address this question since it denied the claim at the threshold injury requirement. The New York rationales for denying gay marriage claims — the greater need for stability in opposite-sex couplings and the reasonableness of preferring opposite-sex parents — would seem an uneasy fit. Third and most critically, while superficially a victory for the anti-gay-marriage movement, judicial resolutions like the one in Connecticut actually help to preserve legislative compromises that may ultimately make gay marriage possible. If courts start ruling that once a legislature experiments with marriage-lite for gay couples it must go all the way to full marriage for those couples, legislatures will stop experimenting. Given a choice between gay marriage and nothing, many legislatures will choose nothing. But if they can try an intermediate point without risking that a court will say they've undermined the very basis for any further distinction between gay and straight couples, they'll be more likely to start down that road. Denying gay-marriage claims under these circumstances, judges may help the cause of gay marriage. It's possible that legislatures will create civil unions or domestic partnerships and then further progress will stall. That's a risk of incrementalism. But within a few years, I expect that Connecticut will legislatively grant marriage, including the word, to same-sex couples. This will come after a few years of seeing that formally recognizing gay couples, and protecting their families fully in the law, has done no harm. It will come after people have had time to adjust to the idea. Gay-marriage advocates need not sue for something that seems likely to come within a few years by legislative action. A little patience could go a long way just now. I love the Claremont Review of Books:
I've recommended it before, but I continue to be amazed by the consistently high quality and erudition of the essays in the Claremont Review of Books. If I were to cut down my subscriptions to one journal, this would be it. 'nuff said. UPDATE: I should point out that the Review is not a libertarian publication, but promotes its own idiosyncratic brand of natural-rights-based conservatism, which is apparent in some, but not all, of the essays it publishes. But I don't have to agree with every essay to appreciate the quality of the writing and editing. FISA, the NSA, and the Specter Bill:
In the last 24 hours, there have been some important developments concerning legislation to address the NSA domestic surveillance program. The White House and Senator Specter have agreed to a bill, although the MSM is doing a pretty bad job (at least so far) of reporting what is actually in it.
If you really want to know what is going on, I recommend sticking to the blogs. I have posted a few things at my solo blog, including this recent post: The Specter Bill's Major Shift in Constitutional Authority to Conduct Monitoring. Balkinization has several very critical posts, including Jack's post Specter Gives Up The Game -- The Sham NSA Bill and Marty's The Specter Monstrosity. Over at Prawfsblawg, Steve Vladeck has a post entitled The Specter Bill, the TSP, and the FISA Court: Some Thoughts. Getting the ABA Out of the Law School Accreditation Business:
Readers of this blog know that there is an ongoing controversy over the American Bar Association accreditation standards for law schools, and co-blogger David Bernstein, among others, have pointed out numerous flaws in the ABA's approach. To my mind, the problem goes beyond the shortcomings of specific ABA standards. The real mistake is allowing an organization with a blatant conflict of interest to take over the accreditation role in the first place. As an interest group representing lawyers, the ABA has an obvious stake in limiting entry into the profession so as to decrease the competition faced by its members. One way of doing so is by restricting the number of accredited law schools, at least in the vast majority of states that require all or most aspiring lawyers to attend an ABA-accredited school in order to take the bar exam. We would not allow an organization run by Chrysler, GM, and Ford to set regulatory standards determining who has the right to sell cars in the United States. Requiring ABA accreditation for law schools is the exact equivalent in our industry. Nor is the point purely theoretical. As soon-to-be guest blogger Andrew Morriss explains in this paper (pp. 4-9), ABA accreditation of law schools emerged in the early twentieth century as a way of eliminating competition from independent law schools and apprenticeship systems. Many if not most ABA accreditation requirements since that time have similar causes. If viewed as mechanisms for maintaining a cartel system rather than as efforts to advance the public interest, the ABA's most controversial accreditation policies suddenly start to make sense. For example, the ABA's support for methods of affirmative action that admit students most of whom are likely to either drop out of law school or fail the bar obviously serves the economic interests of already practicing lawyers. After all, had those same admissions slots gone to people who are likely to graduate and pass the bar, there would be more competition in the profession. Like David Bernstein, I am not categorically opposed to all forms of affirmative action. But it is striking that the ABA has chosen the form most likely to advance the interests of its members and least likely to actually help minority students (not to mention minority consumers of legal services). Similarly, the requirement that schools have a variety of expensive, but redundant library resources and other programs that most students do not need (discussed in Prof. Morriss' article linked above) greatly increases the cost of establishing a new law school and thereby further reduces competition. To be completely clear, I am NOT arguing that the ABA should be prevented from certifying schools as meeting what it considers to be appropriate standards. I am merely suggesting that ABA accreditation should not be required by law as a prerequisite for allowing a school's graduates to take the bar. If ABA accreditation really is a sign of school quality, then applicants can take that into account in making their decisions on what school to attend, just as they currently consider US News rankings and other data. If some form of legally mandated accreditation is needed (and I highly doubt that it is), the system should be run by an independent agency insulated as much as possible from control by the ABA and other interest groups representing practicing lawyers. There should be similar insulation, by the way, from influence by established law schools, since we too have an obvious self-interest in limiting competition by preventing new entry into the legal education market. The ABA's own survey data show that the public has far less confidence in lawyers than members of most other professions. Personally, I do not believe that lawyers are, on average, less trustworthy than other professionals (then again, I'm a lawyer!). But we certainly are NOT trustworthy enough to be allowed to run a government-supported cartel under which we can prevent would-be competitors from joining the industry. Those state governments that require ABA accreditation of law schools have in effect appointed a committee of foxes to control access to their chicken coops. We should not be surprised if the foxes have taken the opportunity to gobble up some of the chickens. The really surprising thing is that so many people seem to accept the foxes' self-serving rhetoric that they are doing it for the benefit of chicken farmers. UPDATE: I am not saying that ABA officials are consciously lying when they claim that their accreditation standards are meant to serve the public interest. Many probably believe their own rhetoric. However, this provides little comfort, since people have a great capacity to believe that whatever benefits them is also good for the general public. Every interest group has its version of "What's good for GM is good for America," and the ABA is no exception. Related Posts (on one page):
Thursday, July 13, 2006Keeping the Iranians In:
An intriguing possibility: Israel claims that it has attacked Lebanon's international highways and airports to keep its two kidnapped soldiers in Lebanon, and to prevent the resupply of Hezbollah. But what if Israel's actual main goal is to trap the Iranian Revolutionary Guards who have been aiding Hezbollah (and through Hezbollah, Hamas) for years in Lebanon, where they can be destroyed? That would be a huge strategic victory for Israel. Is Less More? A Slightly Different Take:
I enjoyed Eugene's post below, although I had a slightly different reaction. Eugene is quite right that "less is more" is a common phrase that is not meant to be facetious; as he suggests, it is often used to note that there isn't a linear relationship between the amount of something and its impact. Sometimes less of that thing actually increases its impact, so less in amount brings more in desired effect.
At the same time, I read don't read Judge Bybee's dissent to call for a consideration of whether the phrase "less is more" makes sense, or what sense it makes. Rather, I think the difficulty was trying to transition from the clever and memorable intro, "Is less more?," into the legal question in the case. The second sentence doesn't do such a terrific job with it: "To lawyers, unlike philosophers, the question may appear facetious, but the answer has real-life implications." This gets the job done — it makes the transition — but doesn't make a great deal of sense for the reasons Eugene suggests. I think the better transition might have noted the difference between the contexts in which "less is more" and when it isn't. It's hard to come up with the perfect transition, but maybe something like this might be in the ballpark: "Is less more? Perhaps it is in fashion design, but the quip provides an unhelpful guide to interpreting statutes." Not great, but better, I think. Related Posts (on one page):
The Dangers of Trying To Be Colorful:
A federal statute allows certain appeals "if application is made to the court of appeals not less than 7 days after entry of the order." That's pretty odd -- why allow applications that come six years after the order, but not ones that come six days after? There's some reason to think that Congress (or those members or staffers that paid any attention to the provision) meant "not more than 7 days after entry of the order," making this a deadline rather than a waiting period. The interpretive question is whether a court should read "not less than" as (1) "not more than," on the theory that this is what Congress must have meant, or as (2) "not less than," on the theory that this is what Congress actually said. The Ninth Circuit (and, I believe, several others) read it as "not more than." Several judges disagreed, and dissented from the Circuit's refusal to rehear this decision en banc. Here are the opening sentences of the dissent (a dissent, incidentally, that I found to be substantively quite well-reasoned):
My first reaction to the "Is less more?" question was that it was an allusion to the phrase "less is more." I suspect this would be the common reaction, and quite likely the intended reaction. And it might seem like a nice colorful touch, an eye-catching way of framing the legal issue. Yet the trouble is that the connection to "less is more" cuts against the dissent's rhetorical purposes, or so it seems to me. "Less is more" (and, I suppose, "is less more?") is neither particularly facetious nor particularly philosophical. Rather, it's a common way of putting the notion that less of something (especially something that's usually a means towards an end) may often be more of something (the end itself). A lawyer may tell a junior lawyer that, "when it comes to italics, less is more," meaning that "less use of italics to show emphasis may actually mean more effective emphasis." Or he may say, "in brief-writing, less is often more," probably meaning "using fewer words will often make for more persuasion." "Less is more" is often good advice. So the answer to "Is less more?" is thus actually often yes, and a not particularly facetious yes. By framing the majority's argument as being "Is less more?," the dissent, I think, is analogizing the majority's argument to something quite plausible (since less often is more) rather than to something wrong, paradoxical, unlawyerly, or particularly facetious. As it happens, the majority's point that "'less' is 'more'" actually has nothing to do with the common phrase "less is more." But it seems to me that by bringing up this phrase in the reader's mind, the dissent is giving the majority more credit than necessary. I mention this because it ties in to my "avoid the figurative, but not like the plague" advice. I'm all in favor of making one's arguments colorful, if that color doesn't unduly sacrifice precision or persuasiveness. Metaphors, allusions, and witticisms can sometimes be especially persuasive, or at least can help keep the reader interested. But often such colorful language is so appealing to the writer that the writer uses it even when it's not quite apt -- even when it suggests an analogy that isn't quite right, or when it implicitly undermines the writer's argument. Plain words are usually chosen only because the writer thinks they're right. (They may still be wrong, but the writer was at least focused solely on getting the right words.) Colorful words are often chosen chiefly because they're colorful, not because they're the most precise way of articulating the writer's point. And while a colorful and precise phrase is great, a colorful but inapt and thus substantively counterproductive phrase is worse than a plain and precise one. Perhaps I'm mistaken, and perhaps I'm reading too much into a harmless witticism. But if I'm right, then it's further evidence that we should be skeptical about the very flourishes that we most like. If we like them for reasons other than their logical and rhetorical aptness, we might be missing their possible inaptness. Related Posts (on one page):
Valerie Plame Wilson & Joseph Wilson v. Scooter Libby, Karl Rove & Dick Cheney:
Here's the complaint in the just-filed case. I'm swamped, and can't get into the details, but I think it's a pretty weak argument; but I thought I'd post it so you folks can see for yourselves. ABA Denies Provisional Accreditation, in Part Because of "Diversity" Concerns:
As the U.S. Civil Rights Commission hearing on the ABA's "diversity" requirements last month, the ABA's representative stated that no law schools had ever been denied accreditation for failing to meet "diversity" requirements. Even if that statement was true then, it's not true now. The ABA has denied Charleston Law School provisional accreditation, in part because the ABA is not yet satisfied with its commitment to "diversity." The law school, its future on the line, will now do the only sensible thing under the circumstances, and admit wildly underqualified minority applicants who will go on to fail the bar exam in wildly disproportionate numbers. But there is a saving grace: thanks to the ABA, which condemned the law school for relying too heavily on electronic resources, while they are in law school they will be able to read cases in the official reports, rather than rely on identical PDF files from Westlaw. Makes me proud to be a member of the ABA. Related Posts (on one page):
Derbyshire Debunks Gilder:
George Gilder of the Discovery Institute has an extended defense of "intelligent design" in the new print issue of National Review. John Derbyshire, writing on National Review Online, is wholly unconvinced. I often disagree with Derbyshire, and I found Gilder's early writings on capitalism and economic growth quite compelling when I was in college, but Derbyshire clearly gets the best of Gilder here. On a related note, I am quite puzzled that so many conservatives who accept the idea of spontaneous order in the marketplace are nonetheless enthralled by the idea of "intelligent design." As F.A. Hayek and other important economic thinkers explained, the order and coordination of the marketplace arises spontaneously and does not require any central planner (or intelligent designer). Further, the economic order evolves over time without any such central planning, as successful innovations and organizations displace their predecessors. Why is it that those who see no need to ascribe the existence of complex evolutionary organizatioal systems to a central intelligence in one sphere find the concept so necessary in another. Missile Test "Success":
The military is touting the latest Terminal High Altitude Area Defense (THAAD) missile test as "phenomenal" and claims a THAAD system could be ready for emergency deployment within a year. According to this report, "military officials said the test went better than they could have hoped." [Yet in the next paragraph, the story quotes an official saying "It performed as expected." Does this mean that when it comes to missile tests performing "as expected" is "better than they could have hoped" for? Never mind.] Since I've learned so much about defensive missile capabilities from in prior comment threads, I am once again interested in what the VC readership has to say about this latest test, whether the THAAD system is worth the $4 billion invested in it, and what this development means for our defensive capabilities. Joelle Moreno on Federal Rule of Evidence 702:
Last week, I posted a critique of a Federal Circuit decision that ignored the text of amended Rule 702. The court treated issues of wheter a methodology is used in a reliable way in a particular case, which is an issue of admissibility under Rule 702, as an issue of weight. Despite what I think is the clear text of the rule, some commentors claimed that I was propounding an indiosyncratic view of Rule 702. However, I just came across a piece by Prof. Joelle Moreno that critiques an Eleventh Circuit opinion on which the Federal Circuit relied heavily in the case I criticized. Moreno makes the same point I do:
Joelle Ann Moreno, What Happens When Dirty Harry Becomess an (Expert) Witness for the Prosecution, 79 Tulane L. Rev. 1 (2004). The Tomorrow People:
Anyone remember that show? (Perhaps watched it on Nickelodeon in the mid-1980s?) Harry Brighouse on Crooked Timber does. See also John Quiggin's and Henry Farrell's posts about Doctor Who. (See also my posts about Doctor Who here and here. Note, as I noted back then, that Dalek is a good rhyme for Volokh. Also, since writing those posts, I saw Tom Baker as Dr. Who in The Talons of Weng-Chiang, which was better than the episode I had complained about.) "International Guarantees" and the "Peace Process":
Left-winger Aluf Benn, in Ha'aretz:
This, I'm afraid, is a key point. European governments and other members of the relatively responsible "international community" have been asking, or demanding, for some time that Israel take risks, especially territorial risks, for peace, in return for international support for Israel to live within its recognized borders. This has worked reasonably well in the case of Egypt, but Israel's withdrawal from Southern Lebanon and Gaza has not exactly mobilized the "international community" to crack down sufficiently on Hamas and Hezbollah. Indeed, while criticism of Israel has been relatively muted, nevertheless the predominant reaction to Israel's defense of its borders has been that Israel is "overreacting." I'd love to see what, for example, France's reaction would be if a neighboring country launched missles at its border cities and killed and kidnapped its soldiers! The failure of international pressure to tame either Hezbollah or Hamas means that Israel's electorate is justifiably likely to take a significant turn to the right. UPDATE: Schmuel Rosner of Ha'aretz already sees signs of the turn to the right:
Peter Kirsanow on the ABA's "Diversity" Standard for Law Schools:
Related Posts (on one page):
Textbook Plagiarism? Or the Perils of Ghostwriting?
Today's New York Times has an interesting story about a common problem with elementary and high school textbooks: a lack of originality. The problem is not texts in given fields recount the same historical events -- one would hope there is substantial overlap in this regard -- but that, in at least one prominent case, they use virtually identical passages to describe the same events. While the texts are adorned with the names of prominent academics. it appears, have far less input over the eventual content of the textbooks than one might have thought.
According to the publisher, the rush to update books with contemporary material after 9/11 was part of the cause.
Others quoted inthe story suggest there is a deeper problem with the practice of putting the names of prominent academics on textbooks that they may not have written. According to Gilbert Sewall of the American Textbook Council:
So instances like the above may simply be the perils of textbook publishing (at least in some fields).
Tushnet v. Cornell On Guns:
Oxford University Press has just published A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control in America by Ohio State professor Saul Cornell. The book challenges both the "individual right" and "collective right" interpretations of the Second Amendment, and puts forth a third "citizen-oriented" interpretation of the right to bear arms. To help promote the book, the OUP blog is hosting a dialogue between Cornell and Mark Tushnet on the meaning of the Second Amendment. It's quite interesting so far. The dialogue begins here, and continues here and here. Wednesday, July 12, 2006Three Reasons Why Real Football Is Superior to American Football:
(Warning: Shamelessly derivative of another joke I once heard.) 1. It actually mostly involves the ball being moved with the foot. 2. Head-butting an opponent is seen as reason for a penalty, rather than praise. 3. When the World Championship is held, it involves teams from more than one country. More Presidents:
Yes, but which President is credited for having come up with an original proof of the Pythagorean Theorem? Speaking of Neologisms and the OED:
Which American President is listed in the OED as the first cited author for over 100 words, including such beauties as "doll-baby"(!), "sanction," "electioneer," "vomit-grass," "public relations," "Mason-Dixon," "obiter dictum," "post-note," and, best of all, the self-referential "neologize"? Answer is below. (show) OUCH! Judge Gives Lawyers What They Deserve
It's old news, I guess, and many of you may have seen this already -- but I hadn't (thanks to my student, Angela Giampolo, for passing on the citation to me), and it's more than worth another look in any event. The case is Bradshaw v Unity Marine (147 F.Supp.2d, S.D. Texas 2001) -- available online here or here. Some choice tidbits:
Interpreting Academia:
I came across an interesting and provocative piece by Mark Bauerlein at Inside Higher Ed yesterday, "The Selective Critique." It is actually more like two short pieces rolled into one fairly long column. The first part is essentially that the rise of linguistic theory in the humanities went too far and beyond its proper stopping point. The second is that those who used linguistic theory to critique the academy in the past are now inconsistent in turning the same tools on the language of the academy in the present. An excerpt from the first part:
From the second part:
His punchline is that this failure to use linguistic theory responsibly and consistently has spawned intellectual errors within the academy (he calls them "intellecutal blunders") and has undermined the credibility of academics by exposing their uses of theory as being political and opportunistic rather than intellectually consistent. There is a lot going on in this piece and I haven't immersed myself in the theory or practice of linguistic theory to judge whether Bauerlein's critique is sound. Nonetheless, it struck me as a provocative piece that I thought VC readers might find interesting, and I suspect that there are readers out there who are probably more expert on linguistic theory and its application in the humanities to comment on Bauerlein's critique. Some of the comments at Inside Higher Ed are interesting as well. Box Switching:
One of my all-time favorite problems: I have two boxes. Each has some positive amount of money in it, but I will give you no information about the possible dollar amounts other than the fact that one box has exactly twice the amount of money in it as the other. You randomly select one of the two boxes, open it, and find $100 inside. I now give you the option of keeping the $100 or switching boxes with me and keeping whatever's inside the other box. Which should you choose? If you'd like a related problem that might help you think about this differently, click below. (show) Updating the OED V: Old words!
Here's a neat feature of the online OED. (Alas! You can only connect if you or your institution has a subscription. So if you can't get there, and if you don't have the paper copy, you'll just have to take my word for it. Well, for the online interface stuff I'm talking about, even the paper copy doesn't work....) As you look at the definition of a word, the word also appears in an alphabetical list in a frame in the left margin. For instance, for "cert (n.)," you can see "cert" in the middle of a list stretching from "cerosin," "ceroso-," "cerote," etc., down to "certes," "certie," "certifiable." This is good for checking similar words or correcting your own spelling, and also simulates to a small extent the experience of being seduced by random words you might find while flipping through a dictionary. But you can switch from "List by entry" to "List by date"; then, instead of seeing your word in alphabetical context, you can see it in chronological context, where each word is indexed by the earliest listed occurrence (over the entire entry). "Cert" (in the "dead cert" meaning) is listed as appearing in 1889, so the words in the left margin run from "1889 catalytical," "1889 cataphoresis," "1889 catatonia," etc., down to "1889 chemiluminescence," "1889 chicle," "1889 chit-chatty." There are a lot of 1889 words, but you can also go up or down a screen to see alphabetically prior or subsequent words in the same year, and further to see words from different years. This is fun because, if you're interested in a period, seeing what words first showed up in the language in that period gives you a nice sense of what was going on at the time in society and culture. For example, "lonely" was invented by Shakespeare, who used it in Coriolanus ("I go alone Like to a lonely Dragon, that his Fenne Makes fear'd, and talk'd of more then seene.") in 1607 — did you know that "Alpine," "archaeology," "birthplace," "bloodshot," "exasperated," "Machiavellianism," "maestro," and "procrastinator" also appeared (as far as the OED knows) in that year? Now I know what you're thinking: "O.K., Volokh, enough with the 1889 and 1607, what are the earliest known English words?" (show)
UPDATE: Pat at Stubborn Facts responds. Also, note a useful comment by |