Saturday, July 22, 2006

Libertarianism, the Iraq War, and the Division in the Friedman Household:

This interesting recent Wall Street Journal interview with Milton Friedman and his wife Rose (also a prominent libertarian economist) reveals a rare disagreement between them - over the Iraq War:

Mr. Friedman here shifted focus. "What's really killed the Republican Party isn't spending, it's Iraq. As it happens, I was opposed to going into Iraq from the beginning. I think it was a mistake, for the simple reason that I do not believe the United States of America ought to be involved in aggression." Mrs. Friedman--listening to her husband with an ear cocked--was now muttering darkly.

Milton: "Huh? What?" Rose: "This was not aggression!" Milton (exasperatedly): "It was aggression. Of course it was!" Rose: "You count it as aggression if it's against the people, not against the monster who's ruling them. We don't agree. This is the first thing to come along in our lives, of the deep things, that we don't agree on. We have disagreed on little things, obviously--such as, I don't want to go out to dinner, he wants to go out--but big issues, this is the first one!" Milton: "But, having said that, once we went in to Iraq, it seems to me very important that we make a success of it." Rose: "And we will!"

The dissension in the Friedman family would be unimportant if not for the fact that it mirrors a broader split within the libertarian community over the war. Just looking at the major libertarian websites and blogs for example, Instapundit and Techcentralstation have strongly supported the war (as have most of us here at VC), whereas Liberty and Power and others have opposed it. So too has the most prominent libertarian think tank, the Cato Institute. The commentators at Reason, probably the leading libertarian magazine, are internally divided among themselves.

Obviously, the war has also produced internal rifts among conservatives and liberals, but in each of these groups one side (pro-war among conservatives; anti-war among liberals) is clearly in the ascendancy and the other a small minority (though I wonder if more conservatives would oppose the war and more liberals support if it had been initiated by a Democratic administration instead of a Republican one). Libertarians, by contrast, seem much more evenly split, at least judging by the positions taken by prominent libertarian academics, pundits, and intellectuals.

I do not as yet have a definitive explanation for the intra-libertarian split. One possibly theory is that this disagreement tracks the longstanding division between those who endorse an absolutist interpretation of libertarian principle versus those who take a maximizing approach. Wars clearly lead to violations of rights to life, liberty, and property. If you are a deontological absolutist who believes it is always (or almost always) wrong to violate such rights regardless of consequences, then that gives you a logical reason to oppose virtually any war, possibly excepting a strictly defensive one, with "defense" defined very narrowly. By contrast, if you take a maximizing approach, you will be more willing to accept some rights violations now in order to reduce the total incidence of violations in the long run. For example, it could be argued that the War in Iraq, despite the carnage it has caused, saves a much greater number of innocent lives in the long run, as well as expanding personal and economic liberties for most Iraqis. However, it is not clear to me that the longstanding absolutist vs. maximizing division among libertarians fully accounts for the split or even that being absolutist or a maximizer is a good predictor of individual libertarians' positions on the war.

A second possible explanation is more autobiographical than ideological. It is possible that those libertarians who embraced the ideology primarily out of hostility to the various works of the US government are more likely to be antiwar than those who came to it primarily because of personal or familial experience with statist and socialistic governments elsewhere. Certainly, anecdotal evidence suggests that immigrant libertarians are more likely to be pro-Iraq War than native-born ones. So too with Jewish libertarians (who, even if native-born, may have a strong consciousness of their people's oppression by governments outside the US) as opposed to gentile ones, though Milton Friedman is one of many exceptions to the pattern. If you are highly focused on the evils of oppressive regimes and political movements outside the US, you might be more willing to countenance the use of American military power to destroy or contain them than if you have regarded the US government itself as the main threat to your freedom.

Obviously, most native-born libertarians are well aware that many other governments, including Saddam Hussein's. are much worse, in libertarian terms, than that of the US. Similarly, foreign-born and Jewish ones are still deeply hostile to the many nonlibertarian policies of the US government (I know I am!). However, there may be a visceral difference between the two groups as to which of these dangers to liberty seems more vivid and threatening and which engages our emotions more strongly at a subrational level.

I'm still not sure that this theory is the main factor behind the intralibertarian division over Iraq, and I can certainly think of many individual libertarians who are exceptions to it. But it does seem to have greater explanatory power than others I have heard. At the same time, it is certainly far from being the whole story.

To give credit where credit is due, I should note that the theory of a Jewish/immigrant vs. gentile/native-born intra-libertarian split was first proposed to me by co-blogger David Bernstein (though he bears no responsiblity for the content of this post).

NOTE: I'm not going to try to censor comments, but I suggest that it would be more productive if people focus on the narrower issue of the disagreement among libertarians instead of the broader issue of the justice of the war (which has already been debated ad nauseum both at VC and elsewhere).

Related Posts (on one page):

  1. THe Libertarian Split over the War II - Historical Roots:
  2. Libertarianism, the Iraq War, and the Division in the Friedman Household:
Response to "United Nations an Accomplice in Hezbollah Kidnapping": For VC readers who don't follow comment threads, I thought I would post up front my response to David Kopel's post below arguing that "the United Nations has a well-established record of collaboration with Hezbollah in the kidnapping of Israeli soldiers." In my view, David's argument doesn't work.

  As I understand David's post, four Indian soldiers that were part of a UN peace-keeping force were bribed by Hezbollah; they helped Hezbollah get close to a kidnapping spot and find Israeli soldiers, and then the Hezbollah members kidnapped the Israeli soldiers and later killed them. Other UN forces watched the kidnapping happen and didn't try to stop it. The UN then tried to cover up what happened.

  This is really horrible stuff, obviously. It certainly helps show -- to those who need proof -- that if you're in a foxhole you probably don't want a UN soldier there with you. At the same time, I don't understand how it supports the claim that "the United Nations has a well-established record of collaboration with Hezbollah in the kidnapping of Israeli soldiers."

  First of all, collaboration and accomplice liability both imply and require intent to further the act, not merely conduct that furthers or fails to impede the act. Thus the claim would have to be that the United Nations didn't just help the kidnapping occur, or didn't just sit idly by while it happened, but it actually intended its actions to further the kidnapping. I don't know if there is evidence that the four Indian soldiers actually had that intent, or that anyone else associated with the UN had that intent, but none is provided in David's post.

  Second, to the extent that there was real collaboration between Hezbollah and the four Indian soldiers, I'm not sure how we jump from four Indian soldiers doing something to the entire United Nations doing it. I recognize that there are difficult questions involved in tagging an institution with the acts of its members. But I gather from David's post that the bribed soldiers were rogue soldiers who were not following orders, rather than loyal soldiers following orders. Surely we should be reluctant to ignore the difference. To use a provocative example, consider press reports involving individual acts by U.S. soldiers in Iraq including rapes, murders, and cover-ups of those crimes. Surely it would be unacceptable to go from those stories to the broad claim that "the United States had a well-established record of raping and killing women and children."

  To be clear, I'm not saying that the UN is the greatest, or that UN involvement is the (or an) answer to the current Middle East crisis. But I don't think it helps us to paint with the broadest possible brush.

Related Posts (on one page):

  1. Accomplices, Accessories, Mens Rea, and More:
  2. Response to "United Nations an Accomplice in Hezbollah Kidnapping":
  3. United Nations an Accomplice in Hezbollah Kidnapping:

Friday, July 21, 2006

Suit Against Michael Jordan for $5 Million to Keep Silent is Dismissed.--

In 1991, Michael Jordan was informed that he had fathered a child with Karla Knafel. Knafel claims that Jordan then agreed to pay his lover $5 million to keep silent, an assertion that Jordan denies.

Many years later Knafel sued on the alleged $5 million promise. Jordan then countersued for extortion. Paternity tests proved that Jordan was not the father of Knafel's child.

In the latest round of the case, Knafel's suit was dismissed. The judge reasoned either that the agreement was tainted by fraud OR that the agreement was unenforceable because of mutiual mnistake.

Here is Forbes on the MJ case:

Judge Stuart E. Palmer ruled in Cook County Circuit Court that any alleged agreement between Jordan and Karla Knafel would be invalid, pointing to definitive tests that showed Jordan is not the child's father.

Palmer writes that "as a result of Knafel's fraudulent misrepresentation to Jordan that he was the child's father or, alternatively, as a result of a mutual mistake of fact, the alleged settlement contract is voidable and ... unenforceable."

Jordan has denied ever agreeing to pay Knafel $5 million.

Jordan's attorney said he considers Friday's ruling a complete victory in the four-year legal fight for the former Chicago Bulls All-Star.

"This is a claim that never should have been made and we are pleased that the court has granted summary judgment in Michael Jordan's favor," Frederick Sperling said.

Jordan sued Knafel in 2002, alleging attempted extortion. In court documents, he contended that Knafel threatened to publicize their affair and had agreed to a $250,000 payment after paternity tests showed the child was not his.

Knafel argued in a counterclaim that she became pregnant in 1991 and thought the baby was Jordan's. When she told him, the lawsuit contended, Jordan agreed to pay her $5 million to keep quiet about the affair.

United Nations an Accomplice in Hezbollah Kidnapping:

After Hezbollah's kidnapping of a pair of Israeli soldiers spurred an Israeli counter-attack, many critics of Israel actions have suggested that the United Nations can serve as a buffer between Israel and Hezbollah. To the contrary, the United Nations has a well-established record of collaboration with Hezbollah in the kidnapping of Israeli soldiers.

The United Nations Interim Force in Lebanon (UNIFIL) has been deployed since 1978, not long after Israel first entered Lebanon in pursuit of PLO terrorists. UNIFIL was created pursuant to Security Council Resolution 425, for the purpose of "confirming the withdrawal of Israeli forces, restoring international peace and security and assisting the Government of Lebanon in ensuring the return of its effective authority in the area." Quite obviously UNFIL has utterly failed to achieve the Security Council's objectives, either before or after Israel's 2000 complete withdrawal from Lebanon. One reason is that UNIFIL does not interdict Hezbollah attacks on Israel. Instead, UNIFIL allows Hezbollah to set up positions next to UNFIL units, in effect using UNIFIL as human shields against Israeli counterstrikes. (Aluf Benn, Israel accuses UN of collaborating with Hezbollah," Haaretz, Sept. 11, 2005.)

UNIFIL's most notorious collaboration with terrorists involved the kidnapping and murder of three Israeli soldiers, and the subsequent cover-up.

On October 7, 2000, Hezbollah terrorists entered Israel, attacked three Israeli soldiers on Mount Dov, and abducted them Lebanon. The kidnapping was witnessed by several dozen UNIFIL soldiers who stood idle. One of the soldier witnesses described the kidnapping: the terrorists set of an explosive which stunned the Israeli soldiers. Clad in UN uniforms, the terrorists called out, "Come, come, we’ll help you."

The Israeli soldiers approached the men in UN uniforms. Then, a Hezbollah bomb detonated—-apparently prematurely. It wounded the disguised Hezbollah commander, and three Israeli soldiers.

Two other terrorists in U.N. uniforms dragged their Hezbollah commander and the three wounded soldiers into a getaway car.

According an Indian solider in UNIFIL who witnessed the kidnapping, "By this stage, there was a big commotion and dozens of UN soldiers from the Indian brigade came around." The witness stated that the brigade knew that the kidnappers in UN uniform were Hezbollah. One soldiers said that the brigade should arrest the Hezbollah, but the brigade did nothing.

According to the Indian soldier, the UNFIL brigade in the area "could have prevented the kidnapping."

"I’m very sorry about what happened, because we saw what happened," he said. Hezbollah "were wearing our uniforms and it was too bad we didn’t stop them."

It appears that at least four of the UNIFIL "peacekeepers," all from India, has received bribes from Hezbollah in order to assist the kidnapping by helping them get to the kidnapping spot and find the Israeli soldiers. Some of the bribery involved alcohol and Lebanese women.

The Indian brigade later had a bitter internal argument, as some members complained that the brigade had betrayed its peacekeeping mandate. An Indian government investigation sternly criticized the brigade's conduct.

There is evidence of far greater payments by Hezbollah to the UNIFIL Indian brigade, including hundreds of thousands of dollars for assistance in the kidnapping and cover-up.

The UN cover-up began almost immediately.

Lebanon's The Daily Star reported the story told by a former officer of the Observer Group Lebanon (OGL), which is part of the UN Truce Supervision Organization (UNTSO). ("UN 'destroyed' evidence after abduction of 3 Israeli troops," The Daily Star, July 20, 2001.)

A few hours after the kidnapping, UNTSO learned that two abandoned cars had been discovered. One was a white Nissan Pathfinder with fake UN insignia; it had hit an embankment because it was being driven so fast that the driver missed a turn. The other was a Range Rover; it was missing a tire rim, and was still running when it was discovered.

Rather than using the very-recently-abandoned vehicles as clues to rescue the kidnap victims, the UN initiated a cover-up. The next morning, eighteen hours after the kidnapping, a team of OGL and the Indian UNIFIL began removing the contents of the cars.

The Range Rover was soaked with blood. Among the contents of the vehicles may have been a cell phone belonging to the terrorists. The UNTSO officer confirmed that the cars contained "extremely sensitive" items which included "current and relevant information that could have been easily linked to the incident."

A UNIFIL peacekeeper videotaped the removal of the contents, and attempted to tow one of the cars. According to a much-later U.N. report, there were fifty items taken from the car, seven of them blood-stained. (Report of the fact-finding investigation relating to the abduction of three Israeli soldiers on 7 October 2000 and subsequent relevant events, Aug. 2, 2001.)

The end of the UNIFIL videotape featured armed Lebanese men confronting the UN forces, and taking the cars away from the UN. The UN personnel did not resist, because, they later claimed, the cars did not belong to the UN anyway.

The UNTSO officer told The Daily Star that the UN ordered its personnel to destroy all photographs and written reports about the incident.

The U.N. did not provide the Israelis with the automobile contents, or the videotape, both of which might have helped the Israelis rescue the kidnap victims. Instead, the seized contents of the cars were taken to a town in Lebanon, stored in a safe, and some were eventually returned to Hezbollah.

Israel found out about the videotape, and demanded that the UN let Israeli investigators see it. Kofi Annan and his Special Envoy denied that any videotape existed. It is not clear whether Annan was lying, or whether he was misled.

Nine months after the kidnapping, July 6, 2001, the UN admitted that is had the videotape. Annan ordered an internal UN Report, which was led by UN undersecretary-General Joseph Connor. (Connor was later implicated in the Oil-for-Food scam.) The report revealed that the UN had two additional videotapes—one of which contained still photographs from the kidnapping itself. The UN investigation declared that there was no evidence that the UNIFIL forces had been bribed, or that the UN had deliberately misled anyone.

Even after admitting the existence of the first videotape, Annan refused to allow Israel to view it. He claimed that letting Israel see evidence about the kidnapping would undermine the UN’s neutrality. Thus, Annan insisted on neutrality between innocent victims and terrorists who had used fake UN insignia and who had taken vehicles from UN staff a gunpoint.

The United States House of Representatives, on July 30, 2001, passed by a vote of 411-4 a resolution urging the UN to allow Israel to see the videotape. Annan relented, but only under the condition that the tape be edited so as to hide the faces of the Hezbollah perpetrators. He also agreed to give the Israelis some, but not all, of the items which the UN had seized from the getaway cars.

On January 29, 2004, the bodies of the murdered Israelis were returned to Israel by Hezbollah, as part of a prisoner exchange.

UPDATE: In response to one of the commenters, I've added the following analysis on two questions: 1. By what standard can the UN be considered an "accomplice" in the Hezbollah kidnapping? 2. Is anti-semitism the best explanation of UN behavior?

1. Regarding UN complicity in kidnapping, one can analogize from the rules that are used to decide whether a corporation is criminally culpable for the acts of its employees, or whether a government agency is liable under section 1983 for the acts of its employees. At the lowest level--the four bribed Indians--the trier of facts looks at the entity's efforts to prevent or punish the employee conduct in question, and whether the entity creates a culture in which the conduct is encouraged or tacitly tolerated.

For misconduct by higher-ranking employees, prosecutors and fact-finders tend to be more likely to conclude that misconduct is attributable to the entity. If you believe the UNTSO official who spoke to The Daily Star (not exactly a reflexively pro-Israel newspaper), or if you believe that reports of a vast bribery scheme are true, then you might well find culpability on the part of the UN.

But I think that my calling the UN an "accomplice" is supportable purely on the undisputed public facts about the UN's concealment and suppression of evidence — with some of the suppression being conducted at the direct order of the UN's chief executive. I believe the undisputed facts are sufficient to show, at the least, that the UN was an accessory-after-the-fact to the kidnappings.

Moreover, the activities of the UN's top staff in New York City, and of high-ranking UN officials in Lebanon, are also relevant evidence for whether there is UN corporate culture of tolerance for terrorism/kidnapping, which is relevant evidence for whether the misconduct of the Indian brigade can be attributed to the UN.

As some commenters have pointed out, there is a very long record of the UN being extremely lax towards crimes committed by its peacekeepers in many other places--for example, the rapes of women and girls in former Yugoslavia, Cambodia, West Africa, and the Congo. The global record suggests, again, a corporate culture of indifference (despite official statements to the contrary) towards employee on-the-job involvement in violent crime; the evidence of a global culture of indifference is more evidence which a fact-finder could use in concluding that crimes of the Indian brigade were attributable to the UN.

2. Anti-semitism. I don't think that anti-semitism is the root of the UN's problem with Israel. It's true, as some commentators have pointed out, that the UN is functionally anti-semitic; that is, the UN constantly condemns Israel far more often and more vehemently than it condemns other countries which (even if you believe the worst about Israel) violate human rights much more severely than Israel does. The Eye on the UN website provides copious documentation of the UN's functional anti-semitism.

Nevertheless, I think the UN's pervasive anti-Israelism, although anti-Semitic in practice, is not primarily motivated by hatred of Jews.

Hitler was genuinely committed to anti-Semitism. He harmed his own military interests by giving rail line priority to trains which were headed for the death camps, putting those trains ahead of military transport trains. Similarly, Hitler would have produced resources with which to fight the war if he had used Jews as slave labor (as many were used before extermination), rather than killing them en masse. Who else would harm their own self-interest in order to kill Jews. The answers include "the government of Iran, Hezbollah, Hamas, and the PLO." But only one of these has a UN delegation, and the UN had turned vehemently against Israel long before Iran's government was taken over by Islamonazis.

Way back in the 1950s, the Arab bloc at the UN had succeeded in perverting UNRWA so that UNRWA would perpetuate rather than solve the Palestinian refugee problem. The Arab dictators of the day may have personally despised Jews, but I think that the dictators were acting out of self-interest, not prejudice. They recognized that keeping the Arab-Israeli conflict festering was a good way to distract and divert the anger of their own nations' populations. In retrospect, we know that the strategy was only partially successful, since the fomentation of anti-Israel Jew hatred sometimes aroused local forces which the dictatorships were unable to control.

Arab government-incited anti-semitism had the advantage of building on historical prejudices against Jews. (It's true that, in the past, Arab Moslem regimes sometimes treated Jews better than did European Christians, but there was also a long record of atrocious abuse of Jews in the Arab world on which the post-WWII Arab dictatorships could build.)

But suppose that modern Israel had never been created, and that, after WWII, some other state for a stateless people had been born. Maybe sympathy for the Gypsies, who were also the victims of Nazi genocide, might have led to the creation of Gypsistan (or Romastan, according to the modern usage) in a part of Egypt. (The word "gypsy" comes from the "Egypt", based on the belief that the group originated there.) Or some other persecuted group might have established a homeland in the wastelands of Libya. In any case, I think that the establishment of a non-Arab state would likely have led to military confrontation, and if the attempt to exterminate that state by force had failed, then the Arab dictators would have found political advantage in fomenting hatred of that non-Arab state.

Although UNRWA was captured very shortly after it was born, the broader UN assault on Israel didn't get going until the 1960s; the assault peaked in the 1970s, and later receded slightly from its 1970s apex. The anti-Israel assault of the 1970s was merely one element in a successful Soviet strategy of aligning the new UN members, most of them former colonies of Europe, and most of them dictatorships, into an anti-Western bloc. Israel, having the misfortune of being located in the middle of a sea of dictatorships, was a natural target of this UN super-majority; but the same would have been true if Romastan were a pro-western democracy.

Today, the Islamic bloc at the UN continues to find local political advantage in anti-Israelism (as it would with anti-Romastanism), while the rest of the Third World finds it advantageous to go along. I don't think that the dictatorship of China, for example, cares one way or the other about Jews or Israel; but the Chinese dictatorship correctly discerns that voting with the Islamic bloc against Israel is a cost-free way to curry favor with Islamic states, and win their support on issues relevant to China.

Regarding Kofi Annan, and most of the rest of the UN's leading executives, I would say that, functionally, they are vicious anti-Semites, but that, in their hearts, they are not particularly prejudiced against Jews per se. Rather, their actions are explainable under the principles of organizational behavior. Annan is a career UN employee (the first one to become Secretary-General), and he has risen through the organization by shrewdly placating whoever needs to be placated. His anti-Israel actions are simply the result of his astute calculation of the balance of forces at the UN. If he could gain more power at the United Nations by denouncing Fiji or by defending Israel, he would do so.

So there is no anti-semitic conspiracy at the UN, in the sense of a conspiracy directed by people who are deeply motivated by hatred of Jews. Rather, the UN's criminal complicity in the kidnapping of Israelis, like the rest of the UN's anti-Israelism, is explainable as the logical result of a wide variety of UN actors behaving according to their self-interest.


Orin, in a post above, argues that, even though high-ranking United Nations officials destroyed and withheld evidence about the Hezbollah crime (for which the accomplices included four rank and file UN peacekeepers), the UN officials would not be guilty as accessories-after-the-fact, because they did not have the specific intent that is necessary for such liability.

If there actually were a prosecution, I don't know whether the law which would be applied would be Lebanese law, Israeli law, International Criminal Court law (if similar acts were perpetrated today), US law for the portion of the cover-up in the US (assuming the UN employees waived or lost their diplomatic immunity), or some other law. But for simplicity, let us look at a very straightforward example of how American juries are instructed to determine accessory guilt.

Here the Sixth Circuit Jury Instructions:

(1) _______ is not charged with actually committing the crime of _______. Instead, he is charged with helping someone else try to avoid being arrested, prosecuted or punished for that crime. A person who does this is called an accessory after the fact.

(2) For you to find _______ guilty of being an accessory after the fact, the government must prove each and every one of the following elements beyond a reasonable doubt:

(A) First, that the defendant knew someone else had already committed the crime of _______.

(B) Second, that the defendant then helped that person try to avoid being arrested, prosecuted or punished.

(C) And third, that the defendant did so with the intent to help that person avoid being arrested, prosecuted or punished.

(3) If you are convinced that the government has proved all of these elements, say so by returning a guilty verdict on this charge. If you have a reasonable doubt about any one of these elements, then you must find the defendant not guilty of this charge.

It would appear relatively easy for the prosecutor to prove elements (A) and (B) of the offense. As for (C), let us presume that a UN official testifies honestly during his trial (perhaps in exchange for leniency):

Q: Why did you destroy and conceal the evidence?

A: To avoid embarassment to the United Nations.

Q: Did you believe that it would be embarassing to the United Nations if the public found out that four UN peacekeepers were accomplices in the crime?

A: Yes.

Q: Did you worry that if the Hezbollah perpetrators were caught, they might reveal, or the prosecutors might more easily discover, that UN peacekeepers were accomplices?

A: Yes.

Q: Did you destroy and conceal evidence with the intent of helping the Hezbollah perpetrators and the UN perpetrators avoid being arrested, prosecuted or punished?

A: Yes.

Q: Why?

A: Because achieving my intent of helping the perpetrators avoid being arrested, prosecuted or punished was indispensible to my ultimate intent of avoiding embarassment to the United Nations. Isn't that obvious? I mean, once I formed my intent of avoiding embarassment to the United Nations, I necessarily intended to accomplish all the steps which were requisite to my ultimate intent. I certainly had the common sense to know that one of the steps which I must take would be helping the perpetrators avoid being arrested, prosecuted or punished.

Injunction Against "Any Comments That Could Be Construed As To Disparage [a Trademark]" Stayed:

This remarkable injunction, which I discussed here, was stayed yesterday by the Ninth Circuit, pending the resolution of the defendant's appeal.

I'm working on this case on the defendant's side in my capacity as academic affiliate for Mayer Brown Rowe & Maw; on Monday, I hope to blog our merits brief on appeal, and two amici briefs that were filed on our side.

More on Smoking Bans:

As a follow-up to my post below on Marriott's decision to eliminate smoking rooms, let me provide more fodder for deabte. First, here is Thomas Lambert's "The Case Against Smoking Bans" available on SSRN. The abstract reads as follows:

In recent months, numerous localities and states have banned smoking in public places (i.e., privately owned places to which members of the public are invited). Such sweeping bans are typically justified on grounds that they alleviate externalities, shape individuals' preferences in a desirable manner, and reduce risks. This essay rebuts the externality, preference-shaping, and risk-reduction arguments for smoking bans and contends that such bans are unnecessary and, on the whole, utility-reducing.
For a somewhat different perspective, readers may want to look at the Surgeon General's new report "The Health Consequences of Involuntary Exposure to Tobacco Smoke." This report summarizes the research to date on secondhand smoke, and concludes, among other things, that a) secondhand smoke poses a health risk to non-smokers, b) there is no risk-free level of exposure, and c) the most effective way to prevent exposure is to prevent smoking.

The Surgeon General's findings do not necessarily lead to the conclusion that governments should adopt indoor smoking bans. We allow people to smoke and eat fatty foods and engage in many other risky activities (such as, in some states, ride motorcycles without helmets), under the assumption that individuals should be able to decide for themselves whether the risks are worth the benefits of the activity in question. One could decide to treat secondhand smoke in private estalbishments the same way. Consumers can decide whether they wish to frequent those places that allow smoking — they can decide whether the food, ambiance, noise level, trendiness, NFL Ticket subscription, pick-up scene, or whatever is worth the marginal risk. The same is true for workers. The Surgeon General notes that entertainment and hospitality industry is the only sector in which workers face signficant exposures to secondhand smoke. This would suggest that even workers have choice in deciding whether exposure to secondhand smoke is worth the compensation they receive. No job or leisure activity is risk-free. The relevant policy question, in my view, is whether, and under what conditions, the government should prevent individuals from making certain trade-offs in their personal and professional lives.

Related Posts (on one page):

  1. More on Smoking Bans:
  2. Marriott Goes Smoke-Free:
Hilarity and Affordable Housing and the NY Times, II

One of the prerogatives of being on the VC blog is that one can take prior discussions and reframe them more to one's liking. The comments on my previous post ("Hilarity (Presumably Unintentional) at the New York Times") were quite interesting, and I want to respond.

Some commenters took me to task for my "childish" tone. Well, what can you do -- getting "tone" right for all readers in a blog (especially a collective blog) is a tough thing to do. But the Times editorial actually made me laugh out loud, it was so silly -- and I was trying to get you to see how silly it was.

So I'll try again. The editorial begins with a description of a building that has opened up on the Upper West Side and that offers "dormitory-style" living, aimed at the recent-college-graduate market. It's a damned good idea -- I lived in NYC recently and in the past, and I'm the parent of a recent-college-graduate who is among the zillions of recent college graduates piling into NYC. There is indeed a "shortage of affordable housing."

So you'd think the Times would say: "this looks like a damned good idea; we hope it spreads." Here's what they say:

"It’s an idea that could spread. Recent graduates working long hours and filling their free time with dates and parties require little more than places to sleep and communal stoves to boil the occasional pot of noodles. Dormitory living also carries a whiff of nostalgia. It almost sounds like fun until you stop and remind yourself that these dorms for adults arise from the rigors of the housing market and not from any desire to live in close quarters with strangers.

"It almost sounds like fun ..." If I took a "childish" tone in my original posting, perhaps it was because I was following the Times' lead. Who said anything about it being fun?

But it is, to the Times, not fun -- no, it's not fun, because these dorms "arise from the rigors of the housing market and not from any desire to live in close quarters with strangers."

Come on, people -- look at that sentence! Surely you must agree that it is, if not laugh-out-loud funny, very odd. I don't even know where to begin. It would be "fun," except that it came from the market. What does that mean?

And (2) it came from the market, and not "from any desire to live in close quarters with other people."

What, renters are going to be herded in at gunpoint? If someone rents an apartment in that place, seems to me they do "want to live in close quarters with other people" -- at that price, they're willing buyers. Would they rather live in Greenwich with the editors of the NY Times? Sure -- who wouldn't. But that, as I would have expected the editors of the Times to understand, is not the way the world works.

But wait -- there's more!

"There is a nobler alternative — to make affordable housing a higher priority for a city that caters more and more to its richest residents. Families with small children that are living off dishwashers’ and even teachers’ pay are also adrift in this cutthroat market. For the working poor, and increasingly for middle-class families, dorms are not an option, but neither is the going rate on a comfortable home."

Not "better," or "more likely to provide affordable housing," or "more efficient" -- no, a "nobler" alternative. "For the working poor, dorms are not an option." Um, thank you, NY Times, for telling me what the working poor consider to be their options -- as if you had the faintest idea! Actually, they are an option -- now. [Didn't this start out as an editorial about precisely that? about the opening of a dormitory-style building??] Maybe the "working poor" will choose that option, maybe they won't. That's why we have entrepreneurs. We'll find out. But for the Times to have already decided -- it's just

There's something about the Times editorial board trying to tell me what the working poor consider their options to be, and about the extent to which people "desire to live in close quarters," that I find hilarious -- I'm thinking of what Mark Twain could do have done with material like this, or Monty Python.

But I guess it's like explaining a joke. If you don't think it's funny, you don't think it's funny, and that's that.


Thursday, July 20, 2006

VC Reader Catches Party of God (Hezbollah) Lies:

Reader Victor Steinbok writes:

A Financial Times piece has a couple of interesting contradictions that are worth noting.

"Lebanon’s Hizbollah movement on Thursday denied that a massive Israeli strike on the southern suburbs of Beirut had hit any of its leaders." vs. "The Shia fundamentalist group took reporters on a visit to its devastated stronghold of Haret Hreik in south Beirut but did not provide access to an adjacent neighbourhood where Israel said it targeted a 'leadership bunker.'"

And, "A Hizbollah spokesman ridiculed Israeli claims that it had severely damaged the group’s military capabilities in nine days of attacks, in which more than 300 people have been killed – the overwhelming majority civilians – according to Lebanese sources." vs. "A Lebanese military expert also said he doubted that Israel had made much headway against the group. 'Hizbollah has no visible personnel infrastructure on the ground. They are organised in cells, they look like civilians, they move fast and they are trained to hide.'"

And, "In the south, Hizbollah fighters were engaged in fierce clashes with Israeli soldiers on the border for a second day. The group’s spokesman in Beirut said this underlined that Israeli claims that only military targets were hit, were clearly wrong. 'We have no fighters here in Beirut, they are all in the south, on the front.'" vs. "On the edge of the bombed-out southern neighbourhoods of Beirut, some Hizbollah supporters have remained. One expressed his pride in the movement. “We are only a small group standing up to a mighty nation. I hope that they will come in with ground troops so that we can face them."

So, let's take count: Hezbollah denies that the massive attack did any damage to their leadership and infrastructure, yet they refuse to show the actual damage; they claim that the casualties are mostly civilian, yet they [sic, it was a "Lebanese military expert"] also confirm that "they look like civilians" so it's easy for an outside observer to mistake dead Hezbollah troopers for civilians; and they claim that they have no fighters in Beirut, yet their supporters in Beirut are goading on the Israelis into a combat.

Thanks, Victor.

O'Reilly on the Jewish Far Left:

The left-wing blogosphere is abuzz over a clip from Bill O'Reilly's radio show Tuesday night where he has some rather harsh, and hyperbolic, words about the Jewish left, basically stating that the Jewish left (first he says "liberals", then "far left") supports, or at least are apologists for, anti-American and anti-Israel terrorism. I've gotten some emails asking me to condemn O'Reilly. Well, the site that started the buzz provides zero context for O'Reilly's remarks; they have the audio clip of the specific remarks they are publicizing, but don't show what was said right before or right after. The lack of context makes me suspicious--if the remark is so outrageous in context, why not provide the context?

Lexis does have a transcript of his t.v. show from that night, in which he had a Jewish guest who led a protest in San Francisco against Israel's actions in Lebanon. We can at least be pretty confiden that O'Reilly's remarks were not an out of the blue attack on Jews, as one could potentially conclude from the Media Matters website circulating the clip.

[Here's the statement circulating on the internet: "You have a very big split in the Jewish-American community. You got a lot of Jewish liberals, a lot of Jewish far-left people, who basically feel that, you know, you don't have a right to go after terrorists because it's our fault, the United States' fault. And some say it's Israel's fault because we've been mean to them, therefore they have a right to do whatever they want -- behead people on camera, all this terrible stuff. OK? That's a far-left position."]

I'll withhold final judgment until someone gets me the complete transcript, and not just one paragraph taken out of context. It seems absurd to suggest that "Jewish liberals" are apologists for terrorism. But it seems to me that while O'Reilly first refers to "Jewish liberals", he then corrects himself and refers to the Jewish "far left." And while he paints with too broad a brush, it's undeniable that there are a few Jews [like their non-Jewish counterparts] on the far left who support anti-American and anti-Israel terrorism, and a greater number who are apologists for it. [Just look at Indymedia or some time.]

UPDATE: Thinking about this more, O'Reilly likely deserves criticism for hyperbole (to some extent, that is his schtick, no? and you can't expect every extemporaneous statement to be perfectly phrased), and he could have done a much better job at limiting his criticism explicitly to the far left. But, assuming this remark was in the context of a discussion of Jews who are protesting against Israel, it's hard to see this as an attack on "the Jewish left," as such, as opposed to left-wingers who are Jewish and are adopting the far left position on the Israel-Party of God War, when O'Reilly is supporting Israel. And this post has been edited to provide the text of O'Reilly's controversial remark, for clarity, and to avoid a side-debate over particular links.

Court Rules that NSA Lawsuit Can Go Forward, Also Suggests NSA Program Violates Fourth Amendment: I have a new post up on Judge Vaughn Walker's opinion today over at my solo blog,
Lochner v. New York Paper:

SSRN has posted my Washington U. Law Quarterly article Lochner v. New York: A Centennial Retrospective. Immodestly, I'll claim this as the most comprehensive look at the Lochner case to date. Among other things, the article makes two particular contributions to the literature: First, it establishes without a doubt that the sixty-hours law at issue in Lochner was in signficant part, the product of a special interest struggle among established bakers, new immigrant bakers, large unionized and mechanized bakeries, and small, old-fashioned bakeries. Second, it is the only scholarly work to discuss how Lochner v. New York, which as late as the 1950s had no special significance in American jurisprudence, had by the 1980s become an incredibly potent (and negative) symbol. Did you know, for example, that the first mention of the so-called "Lochner era" in a law review was not until 1970, and the term was rarely used until the late 1970s?

Anyway, here's the abstract:

This Article discusses two aspects of Lochner's history that have not yet been adequately addressed by the scholarly literature on the case.

Part I of the Article discusses the historical background of the Lochner case. The Article pays particular attention to the competing interest group pressures that led to the passage of the sixty-hour law at issue; the jurisprudential traditions that the parties appealed to in their arguments to the Court; the somewhat anomalous nature of the Court's invalidation of the law; and how to understand the Court's opinion on its own terms, shorn of the baggage of decades of careless and questionable historiography. In short, Part I places the Lochner opinion firmly in its historical context.

Part II of this Article explains how Lochner, which existed in relative obscurity for decades, became a leading anti-canonical case. As discussed in Part II, Lochner was initially famous only because of Oliver Wendell Holmes's much-cited dissent. The Lochner cases modern notoriety, however, arose largely because the post-New Deal Supreme Court continued to treat the Lochnerian cases of Meyer v. Nebraska and Pierce v. Society of Sisters as sound precedent. Meyer, in particular, eventually became an important basis for the Warren and Burger Courts' substantive due process jurisprudence in the landmark cases of Griswold and Roe v. Wade. Critics of those opinions attacked the Court for following in Lochner's footsteps, and, with some significant help from Laurence Tribe's 1978 constitutional law treatise, Lochner came to represent an entire era and style of jurisprudence.

Recently, the ghost of Lochner has been kept very much alive by Justices Kennedy, O'Connor, and Souter, each of whom has praised Meyer and Pierce as engaging in appropriately aggressive due process review of police power regulations, while straining to distinguish those opinions from Lochner. Meanwhile, a revival of limited government ideology on the legal right, most notably in the Rehnquist Court's federalism opinions has raised (perhaps exaggerated) fears on the legal left that the conservatives seek to return, in spirit if not in letter, to the discredited jurisprudence of the Lochner era. Yet virtually no one, on either the right or the left, challenges what may be the strongest evidence of Lochner's influence on modern jurisprudence: the Supreme Court's use of the Fourteenth Amendment's Due Process Clause to protect both enumerated and unenumerated individual rights against the states.

Dean and Other Harvard Law Women Faculty Opposed Law Review Affirmative Action Proposal:

UPDATE: My bad, I didn't notice the date (Nov. 2003) on the article, which was just emailed to me. A reader reports in the comments that "Review membership in last year's incoming editor class had roughly the same male/female proportion as the HLS class as a whole. There are currently no affirmative action proposals pending." I still think the information below is quite interesting, and the updated information makes me wonder: (a) what was the fate of the affirmative action proposal? and (b) Did the Law Review otherwise take steps to raise the percentage of women, or do the statistics just naturally ebb and flow?

Harvard Crimson:

But some HLS professors, including HLS Dean Elena Kagan, said if the Review announced an affirmative action policy, it would imply that women could not be accepted based on merit alone.

All three of the Review’s faculty advisors—who are also all women—do not support introducing affirmative action for women.

"Such a plan would offer Law Review membership to perhaps a handful more women per class while making all women selected for the Law Review wonder whether they would have been selected absent such a program (and making other Review editors, as well as judges and other future employers, wonder the same thing)," HLS Professor and Review faculty advisor Carol S. Steiker told the Record.

According to the article, the Review does practice race and disability-based affirmative action.

More Evidence of ABA Lies re Accreditation and "Diversity":

To hear ABA officials tell it, all the ABA's accreditation officials are looking for with regard to law school equal opportunity and diversity is a good faith effort. And the ABA, according to them, never abuses its power by threatening to deny accreditation to a law school simply because it hasn't met some arbitrary goal, much less quota.

This is widely known to be balderdash in the legal academy, but it's hard to get information on specific instances, because no one likes to admit that his school has been in trouble with the ABA. Occasionally, however, a story seeps out. Here's David Barnhizer, law professor at Cleveland State, discussing a school at which he was a dean candidate:

Two main criticisms were voiced as serious concerns by the AALS/ABA report to the extent that immediate action was needed to avoid a negative final accreditation report. One criticism was that of twenty-three faculty members, only eight were women. It was expected that something must be done immediately to fix this problem. I had several problems with this particular situation and none of them related to the issue of women law faculty. One problem was the fact that the school had added women to a previously largely male faculty at a substantial pace. Since 1983, eighteen faculty members had been hired with ten being men and eight women. While perhaps it could have been ten women and eight men, it still seemed to me the school should be commended for its commitment rather than condemned and threatened.

David Barnhizer, A Chilling of Discourse, 50 St. Louis U. L.J. 361 (2006).

Spanish P.M. Accused of anti-Semitism:

It's the first I've heard of this, but so says this article in ynetnews:

The first signal came on Monday, 5 December, when during a dinner with the Benarroch family, Zapatero and wife began claiming what Vidal Quadras, member of the European Parliament, described on the radio as "a tirade of anti-Zionism and anti-Semitism". By the moment the Benarroch couple had left the table to express their regrets, Zapatero was explaining his lack of surprise about the Holocaust: according to the people present, Zapatero claimed to understand the Nazis.

Beyond that, the article is rather short on details; Zapatero has a typical European leftist strong antipathy toward Israel (and the U.S.), but provides no other specific evidence that he's an anti-Semite. But the article is certainly right about Jews in Spain feeling anxious; my parents were in Spain in May, and they heard all about it at the synagogue they attended (guarded by a small army, reservations-only, with warnings not to wear kippot on the streets).

UPDATE: According to this story, the Spanish opposition leader has accused Zapatero of anti-Semitism, though again we are short on specifics.

Is Nasrallah Dead?:

Last night (Israel time), the IAF dropped 23 tons of bombs on a bunker thought to be hiding Party of God (Hezbollah) leader Nasrallah and other top Party of God terrorists. The bunker was completely destroyed, Party of God's t.v. station claims that neither Nasrallah nor any other top leader (or even member) was killed, and that Israel actually hit a mosque under construction.

It's now 5:00 10:30 pm Lebanon time, and Nasrallah has yet to appear in public to prove that he's still among the living. Contrast this with last week, when rumors of his demise led Nasrallah to appear on Party of God t.v. within hours. And the "mosque" cover story doesn't lend much credibility to Party of God denials.

We shall see.

UPDATE: He's alive. Guess Hell will be one man short for a while.

Marriott Goes Smoke-Free:

The Marriott hotel chain will no longer allow smoking in any of its guest rooms, according to this report. Interestingly, the decision appears to have been motivated by Marriott's concern for the bottom line.

Two decades ago, about half the company's rooms were set aside for smokers, but demand has steadily dropped, with only 5 percent of customers now requesting smoking rooms. At the same time, complaints about cigarette odor have increased, and company officials have struggled to address the issue.

Marriott, which will enforce its ban by charging violators $200 to $300, follows that of the Westin Hotels & Resorts chain, which late last year announced it was making all 77 of its properties smoke-free. Since then, business has grown stronger, said Sue Brush, a senior vice president with Westin, which is owned by Starwood Hotels and Resorts Worldwide Inc.

An interesting question is how this decision will affect activist campaigns to impose local smoking bans in various parts of the country. Smoking ban advocates will cite Marriott's decision as evidence that banning smoking is not bad for business. Yet in my opinion this decision is evidence that service companies are respnsive to changes in consumer preferences and demands. Marriott's decision was driven by market pressures, specifically by a recognition that it was more costly to try and accomodate both smokers and non-smokers than to go smoke-free. Similalrly, many restaurants and bars have banned or limited smoking because they would prefer to attract non-smoking patrons. The point is that if a substantial percentage of consumers want smoke-free accomodations, enough businesses should respond to satisfy that preference. And, if the rate of change is too slow for some, I would recommend than smoking-ban proponents devote their resources to pressuring firms to adopt smoking limitations, instead of lobbying for legislative smoking bans than deny a singificant portion of people (the 20 percent or so of Americans who still smoke) the opportunity to seek accomodations that meet their preferences. I quit smoking cigarettes years ago, and enjoy smoke-free restaurants, but I see no need to impose my preferences on others through legislative fiat.

Related Posts (on one page):

  1. More on Smoking Bans:
  2. Marriott Goes Smoke-Free:
Impeaching Judge Real:

Some House Republicans have talked about impeaching wayward judges for quite some time. According to this story, they have finally found a target.

House Judiciary Committee Chairman James Sensenbrenner, R-Wis., introduced a resolution to allow his committee to investigate U.S. District Judge Manuel Real, who has served on the federal bench in Los Angeles since 1966. The committee would then consider whether impeachment proceedings are warranted, Sensenbrenner said.
Judge Real was accused of misconduct for his handling of a bnakruptcy case. The allegations were reviewed by the Ninth Circuit Judicial Council, which decided not to discipline him over the strenuous objections of some of the panel members. Judge Kozinski, in particular, wrote a withering dissent. (The opinions are here.)

If the impeachment proceedings proceed, this would not be the first time a federal judge was impeached.

Thirteen federal judges have been impeached over the years, according to the Federal Judicial Center. The first was in 1803, when John Pickering, serving in the District of New Hampshire, was impeached on charges of mental instability and intoxication on the bench.

Most recently, Alcee L. Hastings of the Southern District of Florida was impeached in 1989 on charges of perjury and conspiring to solicit a bribe. The same year, Walter L. Nixon of the Southern District of Mississippi was impeached on perjury charges. Both were convicted by the Senate and removed from office.

Hastings is now a Democratic congressman from Florida.


Wednesday, July 19, 2006

"The Party of God":

A question from a reader prompts the following rhetorical question: how much of the sympathy that Hezbollah is receiving from the far Left would dissipate if the media referred to "Hezbollah" by its English translation "Party of God," the way it refers to Israel's "Mafdal" party as the "National Religious Party?" The fact that the United States, United Kingdom the Netherlands, Australia and Canada have designated Hezbollah a terrorist organization of course doesn't sway the far left, but could people who literally cringe at the very mention of Ralph Reed or Jerry Falwell really engage in enough cognitivie dissonance to publicly support violence on behalf of the theocratic goals of the Lebanese Party of God?

While we're at it, why not call Hamas (an acronym) by its proper English name, the "Islamic Resistance Movement"? From now on, I'm blogging them as The Party of God (Hezbollah) and The Islamic Resistance Movement (Hamas).

Big Sky Blogging:

I have been at a conference in Montana the past several days. While here I learned some interesting facts about the state. Approximately 30 percent of Montana's 700,000 residents purchase fishing licenses, and nearly 25 percent purchase hunting permits. I would be surprised to see higher numbers in any of the other lower 48 states. Perhaps more surprising, according to a presentation I attended yesterday, approximately one in five Montana hunters is female.

[NOTE: I edited post to correct a minor error.]

An Exchange on Executive Power and NSA Surveillance:

The University of Minnesota Law School's alumni magazine has just published a debate between my colleagues Professors Michael Paulsen and Heidi Kitrosser, and me, on the constitutionality of the NSA's warrantless surveillance program. Professor Paulsen, a noted and prolific advocate of expansive executive authority, argues that the program is constitutional; Professor Kitrosser and I disagree. All of it was written before the Supreme Court's recent decision in Hamdan. You can read the exchange here.

I'm sure everyone has general views about the advisability and constitutionality of the NSA program, but please comment only if you've actually read the exchange and have some observation about the arguments made therein.

FreeAdvice.Com Blegs for Help Finding Abuser of Its Site:

Here's the press release, which struck me as interesting (not bad, just interesting): is asking the Internet community to help find an anonymous abuser of its website, who has posted thousands of harassing, threatening, and obscene messages on the FreeAdvice Forum. The unknown user, who frequently refers to himself or herself as "IAAL" or "I Am Always Liable," has abused the FreeAdvice Forum site several thousand times, posting obscene and harassing graphics and text messages, many of them personally directed against other users.

A hearing for a preliminary injunction in "Advice Company v. Unknown Abusive User" is scheduled for Monday, July 17, 2006, before Judge James Ritchie in Superior Court, Marin County, California. A Temporary Restraining Order was issued on June 30, prohibiting IAAL from using and other websites maintained by its parent, Advice Company.

Gerry Goldsholle, Founder and CEO, says the lawsuit aims to help keep the Internet safe. "The millions of visitors to FreeAdvice want an environment that is safe, where they and their family can be comfortable that they're not going to be abused or subject to sexually degrading and sadistic comments. We have zero tolerance for abuse, and there must be consequences for abusers who prey on the Internet community."

"IAAL" Attacks

After posting tens of thousands of generally useful messages since January, 2000, in late 2005 IAAL, who claimed to be a California attorney, inexplicably began a series of hostile attacks on forum visitors. He registered using over 100 screen names, including "Opera Ghost," "Inflagrante," and a variety of pornographic expressions. He routinely used sexually abusive language and threats, with offensive descriptions of female anatomy and vindictive remarks directed against other Forum users and staff members of

Damage to FreeAdvice Forum and the Internet

In its complaint, claims that "IAAL" has cost the site and its related properties more than $100,000 in goodwill, lost productivity, advertising and visitor loyalty. But the damage is more than economic. IAAL's obscenity and threats hurt consumers seeking legal assistance.

Goldsholle says, "We repeatedly applied technological fixes, but IAAL figured out ways to hack in. When he started using foreign ISPs, we even cut off whole countries, making it impossible for overseas visitors to use the Forum. IAAL damaged access to legal information and the trust that makes the Internet such a valuable resource," he added.

Legal Action Against "IAAL"

Robert F. Knox, of Mill Valley, California, and Advocate Law Group P.C. of Irvine, California are representing in this matter.... In addition to the injunctive relief that has already obtained against IAAL, FreeAdvice is also seeking to recover its economic damages. The site's user agreement makes abusers liable for $250 per improper posting, which the site shares with charities....

Call to the Internet Community

If Internet users suspect they know the identity of IAAL, or if any ISPs or operators of other websites suspect IAAL has attacked their Internet properties, they are urged to contact Gerry Goldsholle at (415) 331-1212, ext. 234 or at Copies of court filings are at ...

Hilarity (Presumably Unintentional) at the New York Times

Here, in its entirety, is an editorial that appeared in Sunday's NY Times [unavailable online except to NY Times Select members, otherwise I'd just give you the link):

"A Dorm Grows in Harlem

Graduating from college used to mean leaving your campus dorm and moving into your first grown-up apartment. Unfortunately, overpriced real estate in places like New York, San Francisco and Washington have raised the bar for making that transition to new heights.

Some graduates go back home; others put the touch on better-off parents for handouts. Perhaps it was only a matter of time, but economic circumstances have provided yet another alternative: dorms for adults. As Janny Scott reported last week in The Times, a woman named Karen Falcon has provided group living for nearly 150 young people in three Harlem buildings. She has assembled a varied mix — men and women, graduate students and bartenders — to minimize potential conflicts.

It’s an idea that could spread. Recent graduates working long hours and filling their free time with dates and parties require little more than places to sleep and communal stoves to boil the occasional pot of noodles. Dormitory living also carries a whiff of nostalgia. It almost sounds like fun until you stop and remind yourself that these dorms for adults arise from the rigors of the housing market and not from any desire to live in close quarters with strangers. There is a nobler alternative — to make affordable housing a higher priority for a city that caters more and more to its richest residents. Families with small children that are living off dishwashers’ and even teachers’ pay are also adrift in this cutthroat market. For the working poor, and increasingly for middle-class families, dorms are not an option, but neither is the going rate on a comfortable home."

The italics are mine -- that's the hilarious part. These dorms arise "from the rigors of the housing market." Man, that really sucks, huh? These "rigors of the housing market" mean that some people might end up living "in close quarters with strangers" even though they don't want to. Ooooh, how terrible is that?! It would be better -- not just better, but actually "nobler" -- if we were to "make affordable housing a higher priority."

Come on! A "higher priority" how, exactly? Karen Falcon actually made it a high priority -- it was such a high priority, for her, that she actually went out and built something. Unlike, say, the Times -- which owns a good deal of real estate in NY, and, last time I looked, had converted none of it into "affordable housing." This idea that it can't be "noble" when it's just the market supplying people with something they want at a price they can afford really gets my goat.

Knowledge About Political Ignorance:

My forthcoming Critical Review symposium article on rationality and political ignorance is now available on SSRN here. The paper explains - for the first time - why, for many citizens, it is rational to vote but irrational to acquire more than a very minimal amount of political information. The phenomenon of widespread "rationally ignorant" electoral decisionmaking has a wide range of important implications that scholars have not fully appreciated.

Here's the abstract:

For decades, scholars have recognized that most citizens have little or no political knowledge, and that it is in fact rational for the average voter to make little effort to acquire political information. This article shows that rational ignorance is fully compatible with the so-called “paradox of voting” because it will often be rational for citizens to vote, but irrational for them to become well-informed. Furthermore, rational ignorance leads not only to inadequate acquisition of political information but also to ineffective use of such information as citizens do possess. The combination of these two problems has fundamental implications for a variety of issues in public policy and international affairs, including the desirable size and scope of government, the need for judicial review, the division of power within a federal system, and the conduct of the War on Terror.

For some of my earlier work on related issues, see here. I also wrote this nonacademic analysis of political ignorance for the Cato Institute back in 2004, explaining why "Political Ignorance is No Bliss."

Why is Israel "Attacking Christian Neighborhoods"?:

Many bloggers [just do a Technorati search for "Christian areas" and "Lebanon" if you're doubtful] have criticized Israel for allegedly attacking Christian villages in Lebanon. Many argue that they would support Israel if the attacks were limited to Hezbollah strongholds, but that attacking Christian villages seems not just wrong, but counter-productive. My own assessment was that the IAF is a very disciplined organization, and doesn't attack targets for no reason, but I refrained from comment (unlike the bloggers in question) until I actually had some information.

Some of the attacks are on Lebanese ports. That's easy enough to explain, given that Israel is blockading Hezbollah from receving new weapons, and from shipping its weapons abroad for safekeeping. Two reports from Israel today explain the other attacks. First, Debka reports that Hezbollah and its Palestinian allies are using Christian villages as launching sites for missles aimed at Israel, and Israel is trying to limit the damage while still protecting itself: "One difficulty in halting Hizballah's rocket barrage in the east has been Israel’s reluctance to attack Christian targets, except for pinpointing launch teams. Israeli negotiators are in contact with the village heads on terms for their evacuation so that Hizballah sites can be smashed. Hizballah is using Lebanese Christians as human shields for its attacks and their towns and villages as supply centers to pump ordnance to the launch teams in forward positions."

Meanwhile, Ynetnews reports that Israel has been bombing structures in which Hizbullah stores its money, including in mixed cities such as Baalbeck and Tyre (which have Christian minorities) and today, central Beirut.

I'm sure some will react to these reports by statin that this is just Israeli government propaganda, and of course I can't independently confirm these reports. But they make a lot more sense than the bloggers who jumped to the conclusion that Israel was risking its pilots' lives, the wrath of world opinion, and potential future relations with Lebanese Christians by bombing Christian areas for no particular reason.

UPDATE: Of course, news reports indicat that the vast majority of the bombing IS taking place in Hezbollah strongholds.

ATLA No More:

The W$J reports that the Association of Trial Lawyers of America (ATLA) may change its name to the "American Association for Justice." Why? Well, according to ATLA president Ken Suggs, ""Our research shows that if our message is about helping lawyers, we lose. On the other hand, if we're about getting justice and holding wrongdoers accountable, we win."


What's with all this about "rising third-year student" or "rising articles editor," where "rising" means "incoming" (e.g., someone who is about to enter his third year or has been selected to become an articles editor on the new editorial board)? I've been seeing it a lot over the last few months, and I don't recall ever seeing it before. Some queries do reveal that the term has been around for at least several years, and the meaning seems related to some old meanings that I saw noted in the OED, but it just seems to me that is has suddenly become much more common.

I find the term somewhat annoying (not wrong, just annoying) in the way that new jargon will sometimes (but not always) strike people as annoying, especially when there's a good substitute for the term ("incoming," as I said) and the term seems vaguely self-congratulatory. But that's an esthetic judgment that's hard to argue about. I was hoping that someone might enlighten me about the more descriptive matters of whether the term is indeed getting more popular, and why.

What Classes Should Every Law Student Take?

Naturally, if a student knows that he's going to specialize in some field, he probably ought to take the cases most relevant to that field. Of course the first year classes — usually contracts, property, torts, criminal law, civil procedure, and (generally) constitutional law — are mostly mandatory, for good reason. You'd want to take some skills classes, depending on which ones the school is good at, and which seem likely to be relevant to your future specialization. And in my view the more writing classes you can take, the better.

But what other second-/third-year classes are important in nearly all areas of the law, so that a student should think several times before skipping them? Here's my list:

  • Basic tax.

  • Remedies (injunctions, damages, restitution, etc., for the non-lawyer readers who are still reading this post).

  • Business associations (called "corporations" in some schools, though in theory "business associations" also covers partnerships and some other forms of organization).

  • Evidence (even if you're not going to be a litigator, it's helpful to understand things such as privileges, and various other rules about admissibility).

  • Any class taught by a professor with a last name of Volokh; doesn't matter what the first name is. Oh, wait, that means we'd have to grade more exams . . . .

What do you think? Thanks to reader Adam Levin for the pointer.


Tuesday, July 18, 2006

Putting a Human Face on the Lebanon War:

My posts on the war have been rather detached, but here's a personal one.

My sister-in-law and her family live in Petach Tikvah, near Tel Aviv. She's a worrier, in general, and not surprisingly she is very worried about Hizbollah missles making their way South. She's also concerned that her husband, a medic in the reserves, will be called up for service in the event of a ground invasion of Lebanon.

Meanwhile, her in-laws live in Haifa, which is already suffering from Hizbollah barrages. To reduce the danger, her three Haifa nephews are now staying in my sister-in-law's apartment, and going to day camp with her two kids. Their parents, both physicians, drive a couple of hours down from Haifa every night to avoid sleeping in shelters and to be with their kids. They drive back each morning to go to work. The family lived in Canada for several years, and just moved back last year.

My wife also has cousins in Haifa. My sister-in-law offered to put them and their children up, too, but they declined the invitation. Their children, however, were reported to be "scared to death," and they have found refuge with other relatives.

My thoughts are with them, and (admittedly to a lesser extent) with all of the innocent victims in Israel, and Lebanon too (though I'm glad the non-innocent victims in Lebanon are getting what they deserve!)

Don't Know Much About History, Geography, Politics:

The AP reports:

A group of Korean-American leaders left a meeting with Comptroller William Donald Schaefer today without the apology they were seeking for comments he made at a recent Board of Public Works meeting....

Schaefer, talking with reporters after the meeting, was adamant in his insistence that he had said nothing offensive....

Korean-American leaders requested the meeting to discuss Schaefer's comments at a July 6 board meeting when, as he periodically does, the comptroller complained about immigrants and U.S. immigration policies.

"I get so irritated that we just open the borders, let everybody in, put everybody in the schools, educate them, all that sort of stuff, and that's the way it is. And Americans [are] going to have to bear the cost," Schaefer said during a discussion of a state contract to teach English to students who speak another language at home. He followed that up with a comment: "Oh, come on. Korea is another one. All of a sudden they're our friends too, shooting missiles at us." ...

Schaefer said he is a longtime friend of Korean-Americans and provided police protection as mayor of Baltimore to owners of inner-city stores that were often targeted by armed robbers.

It's perfectly legitimate (whether or not one might think it's correct) to argue against foreign-language instruction, and to point out that one cost of immigration is that it burdens our educational system in certain ways.

But, jeez, if you're going to do that, at least (1) don't try to tar immigrants with the sins of governments, and (2) even if you are going to ascribe that sort of group responsibility, know a little about the geographical / political references you're throwing around. Recent Korean immigrants are overwhelmingly from South Korea, not North Korea (news bulletin: North Korea doesn't let people emigrate, which is one reflection of its heinousness). And, say, hasn't South Korea been our ally for, oh, over 50 years? Weren't they on our side in a war once upon a time (I forget its exact name, but it was something like "the Korean War")?

Will Chicago Go Trans-Fat Free?

The New York Times reports that Chicago city council may consider a ban on the use of "trans-fats" in local restaurants.

Edward M. Burke, who has served on the Chicago City Council since 1969, when cooking oil was just cooking oil, is pressing his colleagues to make it illegal for restaurants to use oils that contain trans fats, which have been tied to a string of health problems, including clogged arteries and heart attacks.

If approved, nutrition experts say, the ban will be the first in a major city, following the lead of towns like Tiburon, Calif., just north of San Francisco, where restaurant owners have voluntarily given up the oils. In truth, while the proposal’s prospects are uncertain, Chicago officials have been on a bit of a banning binge these days in what critics mock as City Hall’s effort to micromanage residents’ lives in mundane ways.

The aldermen voted in April to forbid restaurants to sell foie gras. They have weighed a proposal to force cabbies to dress better. And there is talk of an ordinance to outlaw smoking at the beach.

Even Mayor Richard M. Daley, who often promotes bicycle riding and who not long ago appointed a city health commissioner who announced he was creating health “report cards” for the mayor and the aldermen, has balked at a trans-fat prohibition as one rule too many.

“Is the City Council going to plan our menus?” Mayor Daley asked.

But Mr. Burke, pointing to increases in obesity, diabetes and heart disease, is unapologetic. He does not profess that better oils would suddenly make Chicago skinny but says that they would at least begin to alleviate some of the related coronary concerns.

“If it were just about adults, I would say, ‘O.K., we should butt out,’ ” Mr. Burke said in an interview. “But youngsters are assuming diets that are unhealthy.”

And if the City Council had agreed to simply steer clear of peoples’ bad habits, said Mr. Burke, an influential alderman who long pushed to ban smoking in indoor public spaces, Chicago might never have passed the smoking ban that went into effect this year (it gives taverns and restaurants with bars until 2008 to comply). “We may be the last civilized city in the world to ban it,” he said.

Under Mr. Burke’s proposal, establishments that failed to remove “artificial trans fats” from their kitchens would be fined $200 to $1,000 a day. . . .

Faced with criticism, Mr. Burke said he was willing to consider changes to his proposal as it heads to a City Council committee, where its fate is anyone’s guess. If mom-and-pop restaurants would be unfairly harmed, he said, perhaps he would agree to rewrite the legislation to single out only fast-food chains.

Alley's "Alleged" Assault:

A VC reader wonders why I wrote below that Sedley Alley "allegedly" raped and murdered Suzanne Collins when Alley was long-ago convicted of the crime and his conviction withstood numerous appeals and petitions for post-conviction relief.

At what point does one stop saying allegedly? He’s been convicted, right? Plus he confessed (although he later recanted). Does the fact that he claims the conviction is unjust entitle him to an “allegedly” in front of the crime or does the conviction plus review through SCOTUS mean his crime is now no longer alleged?
This is a good question, it was something I pondered when drafting the post, and I am not sure I have a solid answer. Given that I wanted the post to be neutral on the subject matter, and because he was making an “actual innocence” claim (however improbable), I figured there was no harm in putting it in. Yet, as the reader notes, saying the crimes are only "alleged" after conviction and appeal seems to imply that the court system is not fair.

In this particular case, Alley's claims of actual innocence are quite incredible, coming two decades after his confessions and conviction. It is true that the state opposed Alley's belated effort to seek DNA testing of available evidence, but even "negative" DNA tests on the available physical evidence would have been inconclusive and the case against Alley was quite strong. [Had the facts been otherwise, Alley would have likely succeeded in his efforts to obtain post-conviction testing in state courts.] Note that I strongly support post-conviction testing of DNA evidence when such testing was not available at the time of trial. In this case, however, I do not believe the effort to obtain such tests was based upon a plausible claim of actual innocence.

Balko on Police "Militarization":

The Cato Institute has published a paper by Agitator blogger Radley Balko on the increased use of paramilitary tactics by local polices forces, Overkill: The Rise of Paramiltary Police Raids in America. Here is the executive summary:

Americans have long maintained that a man’s home is his castle and that he has the right to defend it from unlawful intruders. Unfortunately, that right may be disappearing. Over the last 25 years, America has seen a disturbing militarization of its civilian law enforcement, along with a dramatic and unsettling rise in the use of paramilitary police units (most commonly called Special Weapons and Tactics, or SWAT) for routine police work. The most common use of SWAT teams today is to serve narcotics warrants, usually with forced, unannounced entry into the home.

These increasingly frequent raids, 40,000 per year by one estimate, are needlessly subjecting nonviolent drug offenders, bystanders, and wrongly targeted civilians to the terror of having their homes invaded while they’re sleeping, usually by teams of heavily armed paramilitary units dressed not as police officers but as soldiers. These raids bring unnecessary violence and provocation to nonviolent drug offenders, many of whom were guilty of only misdemeanors. The raids terrorize innocents when police mistakenly target the wrong residence. And they have resulted in dozens of needless deaths and injuries, not only of drug offenders, but also of police officers, children, bystanders, and innocent suspects.

This paper presents a history and overview of the issue of paramilitary drug raids, provides an extensive catalogue of abuses and mistaken raids, and offers recommendations for reform.

There is an interactive map of botched paramilitary operations accompanying the study here. See also Balko's post on the study here.

UPDATE: Balko addresses early feedback to his study here.

N.Y. Times and Israel:

Supporters of Israel are often accused of paranoia when they claim that the New York Times tends to be hostile to Israel. Hmm. Check out this piece, written by Chris Hedges, who was New York Times Middle East bureau chief from the late 90s to the early 2000s. After equating the "extremists" in Hamas and Hezbollah with the "extremists" in the (center-left) Israeli government, he continues: "We cannot ascribe equal amounts of moral blame to all sides."

One might expecting some common sense at this point, for example, some note that while Israel is a peace-seeking liberal democracy that has in fact withdrawn completely from the areas from which it has been subject to attack, and that fundamentalist, fanatical, genocidal Hamas, with a charter that would make Hitler proud, committed brutal acts of terrorism whenever it appeared that the Oslo process may amount to something, that fundamentalist, fanatical, genocidal Hezbollah is a surrogate of an Iranian theocratic dictatorship, with a worldview that would make the adjective "medievil" an undeserved compliment.

Instead, Hedges argues that we can't ascribe "equal blame to all sides" because Israel is far worse than Hamas or Hezbollah: "Israel is the oppressor in Gaza, the West Bank and now Lebanon," whereas Hamas and Hezbollah are merely reacting to Israeli aggression. Consider the fact that this guy, who quite proudly prefers Islamist terrorist groups to Israel, ran the Times' Middle East bureau for years. And then consider the old saw that the fact that someone seems paranoid doesn't meet that someone isn't out to get him.

UPDATE: According to his own account, Hedges was eventually fired for refusing to keep his far left[irony alert: far-leftist supports reactionary, religious fanatics] political views on the Mideast to himself, thereby throwing the Times' credibility into doubt. But that doesn't change the fact that he was for years in a position to influence the Times' Israel coverage, which lends some credence to complaints about this coverage.

A tragedy of the commons:

Nate Oman has an interesting post about how, for a slave in the American South, it may well have been worse to be owned by a church than by a private owner. Nate writes (based on an account of a friend's doctoral research) (paragraph break added):

In most congregations, church property was not controlled by the minister but by the vestry, a committee of powerful members of the congregation. The minister was often simply a salaried employee who served at the pleasure of the vestry. The vestry, in turn, tended to be cheap. They weren't always excited about expending scarce church funds of things like doctors for injured slaves or other expenditures to ameliorate their condition. In particular, when a church owned slaves but lacked the capital to provide for them, it was sometimes extremely difficult for the vestry's to raise funds for slave-related expenses.

In contrast, slaves that were privately owned were regarded as an expensive investment that many owners were unwilling to wantonly harm through a false economy. In short, institutionally owned slaves where quite literally victims of the tragedy of the commons.

I recall reading something similar in George Reisman's The Government Versus the Economy (note: this is not an endorsement of that book generally), about, if I remember correctly, conditions for the slave in private slavery versus "state slavery," in the form of totalitarian labor camps.

[Puzzleblogger Kevan Choset, July 18, 2006 at 9:23am] Trackbacks
Today's Times Crossword:

I wrote today's NY Times crossword puzzle, which will be of particular interest to some of you who tend to prefer a certain type of my puzzles on here. I'll leave it at that, lest I give too much away...


Monday, July 17, 2006

Same-Sex Marriage, Incestuous Marriage, and Polygamy:

I've written about how the fears that recognizing same-sex marriage will lead to recognition of incestuous marriage and polygamous marriage are, as a practical matter, ill-founded. Nor do I think that there's a logical equivalence between the three that means that, to be consistent, those who accept the first must accept the others. Recognizing same-sex marriage, I think, is likely to help society; recognizing the other kinds, I think, is more likely to hurt society.

Nonetheless, the slippery-slope concerns are made more plausible (though in my view still unpersuasive) by the way some advocates of same-sex marriage argue. For instance, consider this item from law professor Dan Pinello, a forceful supporter of same-sex marriage:

Republican State Senators Serphin Maltese and Frank Padavan are longtime foes of gay rights....

I call for a Maltese-Padavan Patrol whereby gay men, lesbians, and other supporters of marriage equality do the following:

1. At regular intervals of every business day -– even better, every hour of every business day -– telephone both the Albany and Queens district offices of Senators Maltese and Padavan to ask them questions such as “Why don’t you support the right of all New Yorkers to marry the person of their choice?” and “Why do you think that lesbians and gay men should be second-class citizens?”

2. At regular intervals, e-mail the two senators with the same questions.

3. At regular intervals, visit both their Albany and Queens district offices to ask the same questions.

4. Whenever either Senator Maltese or Senator Padavan makes a public appearance, be in the audience to ask the same questions.

Now I'm pretty certain that most supporters of same-sex marriage (quite likely including Prof. Pinello himself) do not support the right of all New Yorkers to marry the person of their choice. They would presumably deny this right to New Yorkers who want to marry their siblings. They would also presumably deny it to New Yorkers who want to marry someone who is already married, even if the New Yorker gets permission from the other person's other spouse. (I don't think this can be dismissed by arguing that this doesn't involve the right to marry the person of their choice, which is to say only one. First, the new spouse would be exercising her right to marry the one person of her choice. Second, though the old spouse would be marrying more than one person, why shouldn't people who have the right to marry one have the right to marry two, if that's their choice? Saying that the right to marry doesn't work that way, because it inherently, by its nature, must involve only one marriage at a time per person, invites the response that the right to marry by its nature involves only one man marrying one woman.)

On the other hand, if indeed same-sex marriage wins using the "right of all New Yorkers to marry the person of their choice" argument -- if this right is therefore accepted, either by a court or by a legislature, or perhaps by courts and legislatures throughout the country -- then that would, it seems to me, strengthen the argument in favor of recognizing same-sex marriage or incestuous marriage.

True, defenders of same-sex marriage who oppose the other kinds of marriage could then say "no, we didn't really mean such a right that categorically, we meant the 'right of all New Yorkers to marry the person of their choice unless it's a sibling or unless their chosen person is already married.'" But that wouldn't be a trivial argument to make, and it's possible that at least some people who had become persuaded that there is a "right of all New Yorkers to marry the person of their choice" would feel that they ought to apply that right as it was initially enunciated, rather than to throw in qualifiers. So if you make the argument that Prof. Pinello is making, it's hard to ridicule the slippery-slope concerns that the other side raises. (As I said in my article, it's still possible to argue against those concerns, because of the practical unlikelihood that the pro-incestuous-marriage or pro-polygamy movement will have the force that the pro-same-sex-marriage movement now has; but the argument is not open-and-shut.)

And even beyond this, isn't the questioner who raises the "right of all New Yorkers" argument inviting a quick and effective slap-down, precisely because his argument on its face entails a consequence that most listeners wouldn't approve of, and that even the questioner probably doesn't mean?

Kerr on Lithwick's Lameness:

Dahlia Lithwick warns that the Bush Administration wants to prosecute "thought crimes," VC contributor Orin Kerr is unimpressed.

"Drama Pricing":

A ridiculous euhpemism. For an explanation, click below. Examples of other ridiculous euphemisms are welcome in the comments.


Russian music bleg:

On my recent post on Russian chanson, commenter M writes: "And it's terrible- even worse than generic Russian pop, which in turn is worse than generic American pop. (There are many very good Russian musicians and bands, but this stuff is just amazingly awful.)"

I'm going to Moscow in a couple of weeks. In light of the dual observation in commenter M's parenthetical, what music should I get? Like Eugene, I like Okudzhava very much (see, e.g., Eugene's posts here, here, here, and here). Vysotsky is not bad, but I find him somewhat hard to understand (in a literal sense). While I was in St. Petersburg last year, a store clerk recommended Yuri Vizbor, which was a good choice. I also enjoy Alexander Vertinsky, as well as the Russian romansy.

What else should I try? You don't have to recommend "bards"; Russian pop or rock might also be acceptable, but this is iffier, given what I understand of Russian pop music standards.

Related Posts (on one page):

  1. Russian music bleg:
  2. Russian chanson:
Sedley Alley's Last-Minute Stay:

The state of Tennessee executed Sedley Alley in the early morning of June 28 after a series of last-ditch appeals, an unusual 11th hour stay of execution, and a strongly worded order vacating the stay from a panel of the U.S. Court of Appeals for the Sixth Circuit. Given the Sixth Circuit’s public dissension in recent years, including several sharply worded opinions and allegations of improprieties in death penalty cases, I suspect this case would have received more attention had it not been overshadowed by the close of the Supreme Court’s term and several high-profile decisions.

Alley was convicted of the brutal rape and murder of Suzanne Collins, a 19-year-old Marine, whom he allegedly assaulted while jogging near Memphis, Tennessee. Although he initially confessed to the crime, years later he recanted his confession and claimed to be innocent. After his other appeals failed, Alley was granted a 15-day reprieve by Tennessee Governor Phil Bredesen so he could seek a court order for DNA testing of evidence from the crime scene. Alley’s effort to obtain DNA testing failed, and his execution was rescheduled for June 27.

As usually occurs in death penalty cases, Alley’s attorney’s sought last-minute stays, but were rejected by the Sixth Circuit and the Supreme Court. Then, according to news reports, on the evening Alley was to be executed, his defense attorneys visited the home of Senior Circuit Judge Gilbert Merritt in a last ditch effort to halt Alley’s impending execution.

Less than two hours before Alley was due to die, Senior Judge Merritt issued a stay of execution. The “hasty order” was “half-typed and half-handwritten” according to the Associated Press, but it did the job – or so it seemed. Only two hours after the entry of Judge Merritt’s stay, the three-judge panel responsible for hearing Alley’s last appeal to the Sixth Circuit issued an order vacating the stay. The order, authored by Chief Judge Danny Boggs, had strong words for Merritt’s actions, suggesting the stay by “a single circuit judge” was unseemly. Alley’s claims had already been considered and rejected, so there was no basis for delaying the execution one more time. Tennessee Attorney General Paul Summers used even stronger language, calling Merritt’s decision “highly irregular and in brazen violation of every rule that applies to this situation.”

Not knowing a tremendous amount about the procedural aspects of habeas corpus claims and death penalty appeals, I am curious whether Judge Merritt’s actions were, in fact, particularly “irregular” or unseemly. From the cases I have reviewed it did not seem that Judge Merritt was a partisan in the Sixth Circuit’s prior feuds over death penalty cases. Judge Merritt has publicly expressed concerns that the public’s desire for swift justice could result in the execution of innocents, and may well have been moved by the possibility that Alley was wrongly convicted. Whatever the reasons for the stay, it seems odd to me that a judge who had not been involved in the prior proceedings of this case would issue such a stay when stay requests had been repeatedly rejected by the Circuit, and stay applications to the Supreme Court were equally unavailing.

The application of the death penalty has divided the Sixth Circuit for some time, producing fiery opinions and allegations of judicial manipulation of cases to ensure given results. In one instance, a case was taken directly to en banc review, before the applicable three-judge panel could act. Cooey v. Bradshaw, 338 F.3d 615 (6th Cir. 2003). As a result, two senior judges assigned to the original panel were excluded from the case and a capital defendant’s claims were accepted by the narrowest of margins. In another, dissenting judges alleged procedural irregularities in an en banc decision to stay an execution. In re Byrd, 269 F.3d 578 (6th Cir. 2001); 269 F.3d 585 (6th Cir. 2001).

Some judges on the court have intimated that their colleagues allow their personal opposition to the death penalty influence their actions on the bench. Judge Boyce Martin, for instance, has written that he does not believe the death penalty, as currently administered, can comply with due process. While he has not sought to adopt this perspective in a court holding, he regularly votes to delay or overturn capital sentences. Other judges on the court, such as Judge Boggs and Judge Alice Batchelder, are clearly unsympathetic to innovative arguments against validly imposed death sentences. Their written opinions suggest there is not a tremendous amount of trust among the Circuit's judges on these issues. [Note: Judges Martin, Boggs and Batchelder also traded allegations of impropriety concerning the Sixth Circuit's handling of the Michigan affirmative action cases.]

Given the context, and the current “disquiet” over capital punishment on the Supreme Court I found this to be an interesting case – another example of drama on the Sixth Circuit. The information in the post comes from court opinions and published news reports (largely the AP and The Tennessean). I would appreciate additional perspective or information from readers who may be aware of relevant items I may have omitted.

UPDATE: Thanks to some of the commenters, here is a copy of Judge Merritt's order granting the stay; here is a copy of the order vacating the stay; and here is an article from the Nashville Post with some interesting details.

For those who want more legal background on the case, a search of the U.S. Court of Appeals for the Sixth Circuit's opinion database pulls up over one dozen opinions arising from Alley's conviction, including this unpublished opinion rejecting Alley's effort to obtain physical evidence for DNA testing, and this dissent from the denial en banc review concerning Alley's claim that lethal injection constitutes cruel and unusual punishment.

Russian chanson:

Check out this article about the booming genre of Russian pop music inspired by crime, prison, and gulags -- perhaps a Russian version of "gangsta rap." The article calls Vladimir Vysotsky, who died in 1980, the "godfather" of this genre. A previous post of mine on Vysotsky is here. Hat tip: Todd Seavey.

Related Posts (on one page):

  1. Russian music bleg:
  2. Russian chanson:
Libertarian Legal Theory: Larry Solum has a wonderfully concise new entry in his Legal Theory Lexicon on Libertarian Legal Theory. (This is on the beta version Legal Theory Blog.) Legal Theory Lexicon is, by the way, and excellent resource for anyone who is heading for law school in the fall.

Larry even mentions Social Statics (1852) by Herbert Spencer, the book that Justice Holmes took a shot at in Lochner. It is a radical book and not everyone's cup of tea. But it was very popular —popular enough for Holmes to mention it fifty years after its initial publication—and ahead of its time in many ways. For one thing, it contains an entire chapter advocating the equal rights of women. Here is how that chapter opens:
EQUITY knows no difference of sex. In its vocabulary the word man must be understood in a generic, and not in a specific sense. The law of equal freedom manifestly applies to the whole race—female as well as male. The same à priori reasoning which establishes that law for men (Chaps. III. and IV.), may be used with equal cogency on behalf of women. The Moral Sense, by virtue of which the masculine mind responds to that law, exists in the feminine mind as well. Hence the several rights deducible from that law must appertain equally to both sexes.

This might have been thought a self-evident truth, needing only to be stated to meet with universal acceptation. There are many, however, who either tacitly, or in so many words, express their dissent from it. For what reasons they do so, does not appear. They admit the axiom, that human happiness is the Divine will; from which axiom, what we call rights are primarily derived. And why the differences of bodily organization, and those trifling mental variations which distinguish female from male, should exclude one half of the race from the benefits of this ordination, remains to be shown. The onus of proof lies on those who affirm that such is the fact; and it would be perfectly in order to assume that the law of equal freedom comprehends both sexes, until the contrary has been demonstrated. But without taking advantage of this, suppose we go at once into the controversy. . . .
[Of course Spencer was also known for his beliefs in "Social Darwinism," but this should be put in perspective. Social Darwinism was a very popular theory that was widely held among Conservatives, Socialists and Progressives as well as by Liberals like Spencer. (I believe Holmes himself was a Social Darwinist.) At any rate, that is not the subject of Social Statics, which is a defense of Spencer's "law of equal freedom."]

(Civil comments only please.)
Israel and Palestinian Poverty:

Browing around the blogosphere recently, I've noticed that critics of Israel consistently repeat various versions of the following talking point (promoting by false propaganda emanating from sources such as this one): "what do you expect from the Palestinians? Israeli occupation impoverished them, and desperate, hungry people can only be expected to take desperate measures."

The idea that "occupation," per se, impoverished the Palestinians is simply wrong. In fact, it has been Palestinian violence since the first intifada broke out in 1987 that has impoverished the Palestinians, forcing Israel to gradually close its borders to Palestinian workers to prevent terrorist infiltration, creating the need for checkpoints and fences cutting the West Bank and Israel off from Gaza (Palestinians used to be basically free to enter and exit Israel, and Israelis used to shop and tour in the territories), and stifling foreign investment post-Oslo. (Not to mention that Palestinian support for Saddam Hussein in the first Gulf War led to the expulsion of Palestinians from the Gulf, and the loss of their remittances.) Meanwhile, billions of dollars of post-Oslo aid were wasted by the corrupt and incompetent Arafat admninistration. I've read that post-Oslo, not a single significant public works project (hospital, road, etc.) was completed in the West Bank or Gaza. In an effort to buy political support, the PA ignored the private economy in favor of employing tens of thousands of employees in do-nothing bureaucratic jobs.

Anyway, here are some facts (source here--this is only one footnoted source, but it comports with numerous paper sources I've read over the years) about the economic consequences of the Israeli administration of the territories following the Six Day War:

--"Private consumption per capita [and per capita includes population growth, which was among the highest in the world in the territories] rose during 1969-1986 at an overall rate of 5% per annum."

-- Outside of regugee camps in Gaza (which Israel wanted to replace with permanent housing, but was prevented so as not to help solve the "refugee crisis" that provided the PLO's reason for existence), "in 1986, 95% of the Households in Gaza had running water and 100% had electricity (compared with 3 percent for water and 14% for electricity in 1974)."

--The percentage individual "with at least 9 years of education has risen from 22% in 1970 to 46% in 1986 in the West Bank, and from 32% to 54% in the Gaza Strip during the same period." Not noted in the paper I'm citing, all of the universities in the West Bank and Gaza were opened during the Israeli administration of the territories. There were none before that.

--As this source (hostile to Israel) acknowledges, as of 1993, per capita income in the Palestinian territories was higher than in Egypt (MUCH!) or Jordan, the countries that previously occupied Gaza and the West Bank, respectively. The logical conclusion from this is that if Israel had not won these territories in the Six Day War, the Arab population would have been much poorer.

And all this despite the fact that the Arab nations boycotting products made in the territories, cutting off local industry from its previous and natural export markets.

As the paper I cite above also points out, Israel made significant errors in its economic administration of the territories. This isn't surprising given that the residents of these territories had no voice in the Israeli government, and that the Israeli government severely mismanaged the Israeli economy itself during this period, resulting in, among other things, 400% inflation in the early 1980s. Also, economic growth slowed down in the territories considerably in the '80s, making it much more plausible to argue that the first intifada was in part the result of a "revolution of rising expectations," than a reaction to gradual impoverishment.

Way back when I was a college student, I took a class on the Arab-Israel conflict. My Israeli T.A., like most Israeli intellectuals, was highly sympathetic with the Palestinian cause, going so far as to justify PLO terrorism. I pointed out the huge rise in the Palestinian standard of living since 1967, and he responded along the lines of "do you think you can buy off nationalist sentiment with refrigerators and t.v.s? The Palestinians want their own country, and don't want to be occupied."

Fair enough. Man does not live by bread alone. But let's get our facts straight. The current wave of violence started in 1987, and has ebbed and flowed ever since, not because the Israelis impoverished the Palestinians, but despite the fact that the Palestinians became much wealthier under Israeli occupation, and despite the fact that it has been Fatah and Hamas violence, and Fatah corruption, that has impoverished the Palestinians since then.


Sunday, July 16, 2006

Frankel on the Israel Lobby:

A reader alerts me to a piece in the Washington Post by Glenn Frankel on the Israel lobby, via this email:

I know you made a series of posts about W&M's paper on the Israel lobby. I commented on a few of your threads (as David in DC).

At least one of the posters asked, "How does one discuss the Israel lobbies without sounding like/being branded an anti-Semite", or something similar. (The short answer is, don't invoke old anti-Semitic canards while supporting them with shoddy and one-sided research.)

This piece in the WaPo magazine is a good example of how to do it. When you read it, there is no doubt that AIPAC and other pro-Israel organizations wield a ton of power in DC, and this is done without talk of cabals, dual loyalties, and the like.

Although I'm not one of those who accused M&W of anti-Semitism, I agree with the reader's assessment of Frankel's piece. I certainly don't endorse everything Frankel says, but there's nothing ignorant or repulsive about Frankel's article, unlike M&W's paper [for my criticisms of that paper, see here].

William H. Lash III R.I.P.:

Whatever caused this terrible tragedy — something I and others find inexplicable — I will fondly remember Bill's engaging and entertaining class lectures, his personal enthusiasm and generosity, and his friendship.

UPDATE: I've closed and deleted the comments on this post. As one commenter observed, given the circumstances, it was a mistake to open comments to begin with. Bill Lash committed a horrific, inexcusable -- and, to me, inexplicable -- act. The feeling I sought to express was that the circumstances of Bill's death are hard for me to reconcile with the man that I knew.

Epstein on Signing Statements:

In today's Chicago Tribune, noted University of Chicago law professor Richard Epstein has an op-ed highly critical of President Bush's use of signing statements. While acknowledging there is "nothing new" about the use of such statements, Epstein raises concern about the "extraordinary freqency" and "unorthodox way" these statements are used by the Bush Administration. Here's a taste:

President Bush dishonors traditions in his aggressive use of signing statements as one way among many to circumvent the congressional and judicial checks built into the Constitution. . . .

why does the president make them? One reason is that it skews the administration of a statute by presidential subordinates before a matter gets into court. A second--and more troubling--point relates to the larger question of the role of judicial review.

Modern understanding of judicial review requires the executive branch to take its marching orders from the Supreme Court. Signing statements, I fear, could be the opening wedge to a presidential posture that judicial decisions may limit the president's ability to use courts to enforce his policies, but cannot stop him from acting unilaterally. On this theory, the president could continue to order wiretaps and surveillance in opposition to the Foreign Intelligence Surveillance Act after a court had determined that he has exceeded his powers--he just couldn't use the evidence acquired in court. Different branches of government have different views of the law, yet the executive marches on. A major check on executive power goes by the boards.

(Link via How Appealing)

UPDATE: NR's Ramesh Ponnuru is unconvinced:

I'm sympathetic enough to coordinate construction, and hostile enough to the "modern understanding of judicial review," not to be frightened by the bottom of this particular slippery slope. If Congress or a court purported to order the president (or one of his agents) to exceed his constitutional powers, for example, it would probably be right for the president to disobey.

But I also don't think this slope is especially slippery. Signing statements could be an "opening wedge," but they aren't necessarily. If the administration were taking the posture Epstein fears, its response to Hamdan would have been different.

SECOND UPDATE: Here is another take from Kevin Drum.

ANOTHER UPDATE: More Ponnuru here; more Drum here.

Bill Miller, RIP:

The great Bill Miller, Frank Sinatra's legendary piano player, has passed away at the age of 91. Just last week the Post had a profile of Frank Sinatra, Jr., that noted (much to my surprise) that Miller has been playing with Jr. for the past several years.

"One For My Baby," is probably Miller's most famous accompaniment, but he was Sinatra's right-hand man for years. A great loss and the passing of an era.

A couple of thoughts on the two-front war:

(1) Casualty counts: The international media is reporting that almost all of the casualties of Israel's bombing of Lebanon are civilian. This can't be right, because Israel has launched thousands of sorties at Hizbollah missle sites and storage depots. Surely, Israel has killed many more Hizbollah fighters than the four I saw reported this morning. But Hizbollah is being tight-lipped about its casualties, and the media reports only the "official" casualty counts. Can the media at least more accurately report that the civilian deaths are accompanied by an "unknown" number of Hezbollah casualties? Meanwhile, the Israeli media is reporting [I saw this on and elsewhere, but didn't save the links and now can't find them, but here's a blog that mentions one such report, and here's a related WSJ piece ] that Hezbollah stores its rockets in specially designed private homes. Accordingly, some significant fraction of "civilian" casualties are the owners and residents of homes destroyed by Israel because they house Katyushas and other weaponry. The idea is to make the missles hard to locate, and also to hide behind a "civilian" facade for propaganda purposes. These are not "civilian" targets, though undoubtedly (and obviously unfortunately) children, intentionally put in harm's way by their parents for the benefit of Hezbollah, are getting killed.

(2) Why are Arab States Taking a Relatively Moderate Line on Israel's Actions: Hamas and Hizbollah are proxies for Iran. Iran is Persian and Shiite. Egypt, Jordan, and Saudi Arabia are Arab and Sunni, and have no interest in seeing Iran become a regional superpower. Not to mention that Hamas has been trying to destabilize Jordan (part of "Greater Palestine"), and that Hamas's ally and progenitor, the Moslem Brotherhood, is the most potent enemy of the Mubarak regime.

The Conclusion Many Israelis Will Draw from This War:

UPDATE: I'm making a positive, not a normative, statement here. Whether or not territorial withdrawal is in Israel's interest, and to what extent if so, is obviously a complicated matter. But Israelis are not likely to be in the mood for further withdrawals for some time.

Sunday Song Lyric: The Vietnam War and civil rights movement inspired some tremendous music (for an example of the latter, see here while there is substantial and sincere opposition to the current war in Iraq, it seems to me that the conflict has not generated protest music of an equivalent caliber as that produced in the 1960s and early 1970s. Am I mistaken? Are there contemporary anti-war songs destined to become classics?

These thoughts occurred to me when I decided to choose a song by The Doors for this week's Sunday Song Lyric, and settled on "The Unknown Soldier" off of Waiting for the Sun. This was long overdue. After all, I've already written a Jim Morrison-themed article on the Supreme Court's commerce clause jurisprudence, but this song didn't make the final edit.

Wait until the war is over
And we're both a little older
The unknown soldier

Breakfast where the news is read
Television children fed
Unborn living, living, dead
Bullet strikes the helmet's head

And it's all over
For the unknown soldier
It's all over
For the unknown soldier . . .

Make a grave for the unknown soldier
Nestled in your hollow shoulder
The unknown soldier

Breakfast where the news is read
Television children fed
Bullet strikes the helmet's head

And, it's all over
The war is over
It's all over
The war is over
Well, all over, baby