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Saturday, August 19, 2006

Distinguishing Original Meaning and Original Intent:

Lawprof Larry Solum of the Legal Theory Blog laments:

From the perspective of a constitutional theorist, I am frequently baffled, frustrated, and confused by the carelessness with which the theoretical foundations of debates about original meaning are articulated, both in the blogosphere and in contemporary constitutional scholarship. How can it be that the distinction between the various forms of originalism are still ignored? Can anyone really have missed the shift in originalist thinking from original-intentions originalism to original-meaning originalism? Most contemporary originalists believe that the relevant inquiry is into the original "public meaning" of the constitutional provision at issue. Hardly anyone thinks that the intentions, expectations, or purposes of the framer's are independely entitled to interpretive authority--although they may be evidence of original public meaning.

I definitely share Larry Solum's frustration. Sadly, the confusion is not confined to the blogosphere and "contemporary constitutional scholarship." Supreme Court Justice Stephen Breyer also does not get the distinction between original meaning and original intent (or at least does not realize its importance), as I explain in Part III of my forthcoming review of Active Liberty: Interpreting our Democratic Constitution, his recent book on constitutional theory. Breyer also conflates originalism and textualism (which need not require any reliance on original meaning OR intent). These two distinctions are not just academic hairsplitting, because original intent, original meaning, and textualism often lead to widely differing results in real-world legal controversies.

Perhaps future Supreme Court nominees should be required to explain the difference between original meaning and original intent during their confirmation hearings! It would certainly be more fun to watch than the hearings we have now - at least for Larry Solum and me.

Related Posts (on one page):

  1. Balkin on Originalism:
  2. Originalism Debate Update:
  3. More on Originalism:
  4. Distinguishing Original Meaning and Original Intent:
88 Comments
Jules Crittenden: "Psalm 9-11: Fear No Evil."--

Jules Crittenden, a journalist who was embedded with the troops in Iraq, has a deeply felt editorial in the Boston Herald: "Psalm 9-11: Fear No Evil":

Lullabies combat false monsters. Real monsters require something different.

Psalms, like lullabies, give comfort. But they don’t mask or deny the threat. They embrace it, and show the way to strength and ultimately comfort from within. What might a psalm say to anyone whose 9/11 fears have been reawakened?

Strong, ruthless men and women go long hours without sleep for you. They do everything they can to keep you safe. They are your shield. They will kill for you, and die for you. You can take comfort from that knowledge and draw strength from their example.

But that is not enough. There is something you have to find within yourself. It may be that one day, our shield will fail, and the insidious foe that operates from beyond our borders and even within them will penetrate that shield and kill some of us again.

You must decide for yourself that you will not let them deter you from your path. If they rise against you, you must be prepared to meet them. Prepared to be ruthless in defense of what you love. It may mean that you will die. We all do someday. As a friend of mine who knew what he was talking about once said, it’s not a matter of whether we will die, but how we will die. And when the time comes, the best we can hope for in this life, the one thing we might be able to control, is that we die well.

After discussing some brave souls on 9/11, Crittenden closes:

We honor them by endeavoring to live up to their example. It begins by repeating to ourselves the words from which others have drawn comfort in time of war and peril for more than 2,500 years.

I will fear no evil.

To see how these more intense passages fit into the larger essay (Crittenden begins by pointing out that the chances of being killed by a terrorist are extremely small compared to other risks), you would have to read the whole thing.

For background on Crittenden, see this post at Powerline.

10 Comments
Preserving early modern gay civil rights history:

Franklin Kameny was, as they say, a pioneer of the early days of the modern gay civil rights movement. Before even the Stonewall riot in New York in 1969, in days when 49 of 50 states banned sodomy (and meant it), when the police routinely raided gay bars and arrested patrons for dancing together or for no reason at all, when the APA still considered homosexuality a mental disorder, when homosexuality was a disqualification from any federal employment, when the FBI was busy monitoring and harrassing nascent gay political groups, Kameny was leading pickets of homosexuals in front of the White House and generally giving the government hell for its anti-gay policies.

Now an octogenarian, Kameny has kept almost all of his letters and other documents and pictures from those days, from the early 1960's on. That's very fortunate for anyone interested in the history of the movement. Some of this original source material, all of which will ultimately go to a library for preservation and scholarly research, is collected at a website called "The Kameny Papers". It's worth a visit if you have any interest in the subject at all. The pictures, including marvelous color photos of the 1965 White House pickets, can be accessed by clicking the "Memorabilia" tab to the left on the home page.

Much more interesting and often heart-breaking, however, is the material under the tab "Correspondence," also to the left on the home page. These materials have been photocopied and are presented in their original form. Some highlights:

*In 1962, Kameny incorporated the Mattachine Society in Washington, D.C., an association devoted to ending discrimination against gays. He wrote polite letters to members of Congress introducing himself, explaining the purposes of the Society, and offering to meet with them. Rep. Paul C. Jones (D-MO) responded by scribbling the following note on the letter and returning it to Kameny: "I am unalterably opposed to your proposal and cannot see how any person in his right mind can condone the practices which you would justify. Please do not contaminate my mail with such filthy trash."

*Rep. Charles Chamberlain (R-MI), who now has a federal building named after him in Grand Rapids, responded to the same letter from Kameny with this: "Your letter of August 28 has been received, and in reply may I state unequivocally that in all my six years of service in the United States Congress I have not received such a revolting communication."

*A letter from the APA in 1963, ten years before it would remove homosexuality from its list of disorders, refusing even to meet with Kameny's group or to "publicize your meetings."

*Vice President Hubert Humphrey writing to Kameny in 1965 that federal civil rights laws are not "relevant to the problems of homosexuals."

*A 1962 letter to an employee of the Library of Congress (!) informing him that the library had "received a report concerning you," asking whether he had performed a homosexual act, whether he was attracted to other men, whether he had been in bed with men, and whether he "enjoyed embracing them." The letter concludes, "I am quite shook-up over this matter" and requests an interview with the employee as soon as possible. I can only imagine how terrified the employee must have been.

*A 1962 letter from Kameny to Attorney General Robert Kennedy asking him to "halt immediately" the FBI's investigation and infiltration of Mattachine and the interrogation of its members.

*A memorandum from the FBI (headed by J. Edgar Hoover at the time) urging that the Attorney General not respond to Kameny's letter and justifying its harrassment of Mattachine as part of the investigation of "crimes perpetrated by sex deviates," as homosexuals were commonly called at the time. Alas, large parts of the memo are blacked out.

*A 1973 memo from Kameny to his supporters describing the sequence of events that led the APA to remove homosexuality from its list of disorders or, in his words, "'curing' us all, instantaneously, en masse, in one fell swoop, by semantics and by vote, rather than by therapy."

There's much more. See the whole site here. Let's hope the whole archives will be publicly available soon.

52 Comments
"Recovering the Original Fourth Amendment": In response to Randy's post, I don't have a Ph.D. in history and have more interest in legal history than training, but my sense is that the best and most careful originalist analysis of the Fourth Amendment — written largely to refute Amar's theory — is Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547, 555 (1999) (.pdf link). It's worth a careful read if you're interested in these questions. An excerpt from the introduction:
  [The historical materials establish that] the Framers did not perceive the problem of search and seizure authority in the same way we now do. In fact, they reveal that the Framers did not even use the term "unreasonable searches and seizures" the way we do.
  The historical statements about search and seizure focused on condemning general warrants. In fact, the historical concerns were almost exclusively about the need to ban house searches under general warrants. Thus, the Framers clearly understood the warrant standards to be the operative content of the Fourth Amendment, as well as the earlier state search and seizure provisions. Moreover, the evidence indicates that the Framers understood "unreasonable searches and seizures" simply as a pejorative label for the inherent illegality of any searches or seizures that might be made under general warrants. In other words, the Framers did not address warrantless intrusions at all in the Fourth Amendment or in the earlier state provisions; thus, they never anticipated that "unreasonable" might be read as a standard for warrantless intrusions.
  Perplexing as that omission may appear from a modern perspective, it made sense in the context of the Framers’ understanding of the problem of search and seizure. They saw no need for a constitutional standard to regulate the warrantless officer because they did not perceive the warrantless officer as being capable of posing a significant threat to the security of person or house. That was so because the ex officio authority of the peace officer was still meager in 1789. Warrant authority was the potent source of arrest and search authority. As a result, the Framers expected that warrants would be used. Thus, they believed that the only threat to the right to be secure came from the possibility that too-loose warrants might be used.
  The modern interpretation of "unreasonable searches and seizures" is the product of post-framing developments that the Framers did not anticipate. During the nineteenth century, courts and legislatures responded to heightened concerns about crime and disorder by expanding peace officers' ex officio authority to arrest and search. That expansion marginalized warrant authority and thus undercut the premises that had led the Framers to believe that they could control the officer by controlling the warrant. As a result, the new discretionary arrest and search authority of the officer posed a novel threat to the security of person and house.
  In the early twentieth century, the Supreme Court belatedly responded to the new threat to the right to be secure by extending constitutional search and seizure doctrine to the warrantless officer. It was at that time that the "warrant requirement" emerged as a salient issue. And it was at that time that the reference to "unreasonable searches and seizures" in the constitutional text was reinterpreted as though it articulated the relativistic concept of reasonableness-in-the-circumstances.
18 Comments
A Culture of Free Speech:

Just a final thought that bears on the context of the recent Dartmouth imbroglio, as well as the possible larger implications of the story. This is the College's recent history of actually punishing students for speech of which the College disapproves. As T.J. Rodgers, my colleague on the Dartmouth Board of Trustees put it, "To be clear: I believe there has been and continues to be a serious free speech problem at Dartmouth." I think this unfortunate history may provide a broader context for understanding this most recent incident and what it says about the perils of campus speech restrictions more generally.

Dartmouth's recent history on matters of free speech is lamentable and well-known. Almost 20 years ago in a series of cases Dartmouth's President James O. Freedman attempted to bully, intimidate, and even expel members of the Dartmouth Review in a effort to destroy the paper's existence (more here). (For the record, I was not a member of the Review at Dartmouth or otherwise affiliated). Freedman's attack rested on vicious distortions, half-truths, and personal attacks. The students were prosecuted and convicted by a ludicrous college disciplinary proceeding of "vexatious oral exchange," a heretofore unknown offense. Later, dorm room deliveries of the Review were banned, in a superficially neutral policy with one clear target.

A few years ago the College permanently derecognized Zeta Psi fraternity again articulating an ex post speech restriction. This punishment and its justification led the Foundation for Individual Rights in Education to downgrade Dartmouth from a "green" to a "yellow" rating for creation of a speech code. Last spring the speech code simply disappeared from the College's website with no warning or explanation--leading FIRE to reinstate its green rating, but failing to clarify the College's policy on free speech. Zeta Psi continues to this day to remain derecognized by the College. Although the fraternity has continued to function, it has been stripped of its ability to legally recruit new members and to allow them to reside in the fraternity, the house itself remains a gloomy reminder of violating Dartmouth's ad hoc speech policy.

The latest instance follows in the context of this history. Given Dartmouth's track record of punishing speech by students with kangaroo-court college disciplinary proceedings, and doing so by ad hoc standards invented and applied retroactively, it may seem more than plausible that a student might feel intimidated by perceiving himself to be in the College's crosshairs.

Things have not always been thus at Dartmouth. Under the leadership of President Ernest Martin Hopkins, in the mid-century Dartmouth was a national leader in exemplifying the value of free speech on campus. Over howls of protest from media, alumni, and faculty (universities were different places then), Hopkins permitted Communists (including CPUSA leader William Z. Foster) to be invited to speak, indeed as Stearns Morse relates it, "more important, the choice of these speakers was generally left ot vaious student organizations." In the 1930s, The Dartmouth (the campus daily) editorialized in favor of a number of controversial causes, including striking miners in a nearby Vermont town. Although this upset a wealthy donor to the College, Hopkins refused to censor the students in order to preserve the potential for the gift (universities were very different places then), but merely observed "[W]e've lived with and shall keep on living with it."

In 1953 Presient Eisenhower chose Dartmouth's Commencement as the site for his famous "Don't Join the Book Burners" speech, calling for freedom of speech rather than censorship of Communist books and ideas on campus.

This is not intended in the slightest as a comment on this case and no one involved here was around for the prior incidents. But I think that there is a larger point here. Institutions can seek to create and cultivate a culture of free speech or they can develop a culture of censorship. President Hopkins left a legacy of tolerance and freedom that persevered for decades after his departure. President Freedman created a legacy of intimidation and prevarication that continues to hang like a dark cloud over Dartmouth today. The College has never renounced its use of disciplinary proceedings in these cases and indeed continued to defend its actions, even when defeated in court. The knowledge that censorship, intimidation, and disciplinary proceedings are available as part of a university's bag of tools for dealing with unpleasant speech undoubtedly chills speech. But more fundamentally it also creates an environment of distrust and mistrust, of background malice and threat, where students know and fear that speech or associations today may be punished according to arbitrary rules and punishments announced tomorrow.

36 Comments
Akhil Amar's Originalist Reading of the Fourth Amendment: Not being a specialist on the Fourth Amendment, and having done no scholarship of my own on its original meaning, I am wondering what Orin's (or others') opinion is of Akhil Amar's reading of the Amendment in his book, The Bill of Rights (at pp. 68-77). Essentially, Akhil questions whether there is any "warrant requirement" in the Amendment at all. Why not? Well to begin with,
"the Fourth Amendment actually contains two different commands. First, all government searches and seizures must be reasonable. Second, no warrants shall issue without probable cause. The modern Supreme Court has intentionally collapsed the two requirements, treating all unwarranted searches and seizures--with various exceptions, such as exigent circumstances--as per se unreasonable." (68)
So what WAS the original meaning of the Amendment as reflected in its actual wording? I would prefer to cut and paste Akhil's own words, but, as it is in a book, I cannot (and it is too long for me to type), so let me paraphrase (with perhaps a bit of my own embellishment):

(1) At the Founding all persons engaged in what we now would consider "law enforcement" were subject to civil actions in tort for trespass for any searches deemed unlawful by a jury.

(2) There was no sovereign immunity in those days (See Chisholm v. Georgia).

(3) Obtaining a "warrant" FROM A JUDGE served
"as a sort of declaratory judgment whose preclusive effect could be subsequently pled in any later damage action. A lawful warrant, in effect, would compel a sort of directed verdict for the defendant government official in any subsequent lawsuit for damages." (69)
(4) In this way, warrants were a way to JUDICIALLY immunize persons engaged in searches from later civil liability at the hands of a JURY.

(5) Having experienced such abuses as the issuance of "general warrants" that granted sweeping immunity to the discretion of warrant-holders, in addition to requiring that searches be reasonable, the Founders ALSO limited the issuance of these judicial "warrants" to those based on "probable cause." Far from imposing a "warrant requirement" on all searches, then, the Fourth Amendment was actually a limitation on the issuance of warrants.

(6) With the growth of "sovereign immunity" (see e.g. 11th Amendment in response to Chisholm), the need of those engaged in searches to obtain an advanced judicial approval by means of a warrant to immunize themselves against tort liability for trespass was eliminated.

(7) Given the absence of civil tort liability for offending misconduct, courts created an incentive to seek judicial approval as the only means of controlling law enforcement by collapsing the "reasonableness" requirement into a judicial requirement to obtain a warrant--qualified by judicially created exceptions to this requirement.

(8) In response to Jim's query, trespass actions would lie for physical trespasses, not the sort of eavesdropping to which he refers, but this is not the issue I am asking about. I am concerned with the so-called "warrant requirement" of the Fourth Amendment. Did the Fourth Amendment require a warrant as criticisms of "warrantless searches" seem to assume? (The extent of Congress's power to limit by statute the President's power to monitor signals intelligence during wartime — e.g. by requiring a special "FISA warrant" — is an entirely different question.)

(9) It is also a separate question whether one can or ought to revive this purported original meaning of the Fourth Amendment without also reviving effective civil liability for police misconduct. Years ago, in my very first article as a law professor, I proposed replacing the "exclusionary rule" with a system of compensation for police misconduct available to the guilty, but especially to the innocent who now have no effective remedy for violations of their Fourth or Fifth Amendment rights. You can find this article here. The merits of my proposal are not what this post is about however. I am interested in the matter of original meaning.

While I always find Akhil's originalist interpretations intriguing, I do not always agree with them. For example, in my forthcoming article in the Texas Law Review ("The Ninth Amendment: It Means What it Says") I take issue with his interpretation of the Ninth Amendment (on page 123-24). So I do not assume that his originalist interpretation of the Fourth Amendment is necessarily correct. But it does make sense of the text and surrounding legal practice, and I am wondering if Orin or anyone else knows of any persuasive response to it.

(civil comments only please)

Update: Larry Solum is puzzled by my exchange with Marty Lederman in the comments. Check out his post here.

Related Posts (on one page):

  1. "Recovering the Original Fourth Amendment":
  2. Akhil Amar's Originalist Reading of the Fourth Amendment:
  3. Originalism and the Fourth Amendment:
9 Comments

Friday, August 18, 2006

NY Times article on NSA wiretapping quotes bloggers.--

In a very solid article by Adam Liptak in tomorrow's New York Times, several bloggers comment on the weakness of the arguments in the recent NSA wiretapping case. Among those`quoted are Eugene and Orin (tip to Althouse, who notes how much the story conflicts with Friday's praise for the decision's reasoning on the Times editorial page).

15 Comments
Dartmouth:

I appreciate Todd's and Jim's responses, linked below; as I noted at the outset, there may well be some misbehavior of various sorts by the administrators. But the student account that Todd points to seems to be a little odd as an attempt at intimidation:

Next [the administrator] began questioning me about my personal life, including my membership in student groups. He had made clear to me that he knew which groups I belonged to, what positions I held, and who my friends were. As I answered his questions, I got the distinct impression that he was checking his notes against my replies, verifying the records in a file he had compiled on me.

If a student holds positions in groups, that sounds like a pretty public matter; it's hard for me to be too troubled by the university administrators' knowing this. If indeed the administration had somehow compiled a dossier on all this person's friends, that would be intimidating in more a spooky stalker way than anything else; but I'm not even sure from the account that this is quite what was going on (though maybe I'm just drawing an inference here from how unlikely I think it is for administrators to spend time doing this). Todd also writes:

The clear concern expressed here is not about a political disagreement, but rather that the administrator was threatening to use this personal information to try to embarrass this student and/or his friends. As I read Eugene's post, he seems to misunderstand the phrase in the story "I think when someone tries to let you know that they know what you’re up to" to mean that the administrator was monitoring the student's political views, when in fact, the reference is to the administrator monitoring the student's personal life.

How exactly would the administrators be likely to use their knowledge of the groups to which the student belongs -- or even who his friends are -- "to embarrass this student and/or his friends"? Presumably the student thinks that his public statements were quite sound, so even if the administration somehow reports on the student's public statements to the groups to which the student belongs, the student ought to be proud of the statements rather than embarrassed. Perhaps the student was worrying that the administration would argue to the groups (and the student's friends) that it thought the student's public statements were mistaken; but it seems to me that someone who makes public statements criticizing the administration should be prepared for the administration's responding that those statements are mistaken. Now obviously if the administrator was actually threatening to blackmail the student with the revelation of some private information (the student's grades, the student's medical history, or what have you), that would be different. But I didn't get any sense of that from the post.

I think it's great that students are willing to publicly criticize the university administration. I think universities shouldn't expel students, discipline students, grade down students, and the like because of the students' criticisms. But students should be ready to be criticized back, and to be remonstrated with by those who take the criticisms personally. Likewise, if a student holds a position (doubtless publicly announced) in a student group and makes public statements, it may well be that the other members of the student group will be told of the student's public statements; public speakers and group leaders should be prepared for that.

Again, as I've said, it may be the administrators were rude, petty, or dishonest (or maybe not). But it's important, I think, to distinguish that from actual censorship or intimidation.

13 Comments
Probable Lying at Dartmouth.--

I'm kind of between Todd and Eugene on the intimidation at Dartmouth issue (though I'm closer to Todd's view). If Nick Stork's account is true, an administrator calling Nick Stork in for a talk and letting him know that they have a dossier on him and saying that "We know who your friends are" seems to be a veiled, but real threat to interfere with his life. In form, it is similar to the classic threats of physical violence indicating that "We know where you live" or indicating that the threatener knows the names and ages of the victim's children. The obvious difference is that everyone would know that the Dartmouth administrator is not threatening violence or kidnapping, but Nick Stork was left to wonder just what sort of damage Vice President Spalding was threatening. (It is, of course, possible either that Stork's account is false or that the administrator made the threat accidentally. But if an administrator disclosed to me that he had a file of information on me, including an email not sent to him, and if the administrator actually said something like "We know who your friends are," I would interpret that as a threat of harm to me or my friends, unless there were some reason for such a bizarre statement.) On the advantage of ambiguity about what one might actually do in threatening, see Daniel Ellsberg and Thomas Schelling.

On the other hand, as far as finding it intimidating to be called in by a college Vice President and harangued over criticisms that Stork posted online, I mostly agree with Eugene. Unless the administration is not supposed to be taking sides (and it isn't, see below), there is nothing wrong with an administrator calling in a student to argue with him about his views regarding a new Dartmouth alumni constitution to make it harder for write-in candidates to win a seat on the governing board of the college. One should expect people committed to the opposite side of a public dispute to be angry with you. Putting aside the implicit threats mentioned in the first paragraph (and other issues), that an administrator would call you in to argue with you suggests good faith and the willingness to take your ideas (and you) seriously, even if the arguments made were somewhat harshly worded and dismissive.

But there are two reasons that Eugene's sound principle may not apply here.

First, for whatever reasons, the administration is officially not taking sides in the dispute over the new Dartmouth constitution. Thus, leaving the issue of intimidation aside, Vice President Spalding may be in direct violation of the administration's policy and its public assurances to the Dartmouth community. This is hardly a hanging offense. Individuals may have strong feelings even when in their official capacity they should not. Perhaps it is worse that Spalding called in Nick Stork for a seemingly official meeting to harangue him in violation of the policy, rather than that a casual campus conversation simply got out of hand, but it is still an understandable offense against university policy, not a serious wrong in itself. And the victim of this wrong seems to be the university in general or its administration, rather than Stork himself, who had no a priori right not to be criticized for his views.

Did Somebody Lie?: But the last issue--one that neither Todd nor Eugene addresses--is serious: someone is very probably lying.

Compare Nick Stork's account of the meeting with Vice President Spalding's account.

Here is Stork's account (in part):

Mr. Morey responded by describing the postings on www.voxclamantisindeserto.org. including my own, as incorrect, spiteful, and “flat-out lies.” Mr. Spalding altogether agreed and began a lengthy diatribe advocating the proposed alumni constitution.

Mr. Spalding then pointed to the email I had sent to my fraternity brothers. He began quoting it to me. He became agitated. He criticized the views I expressed and the way in which I expressed them. Next Mr. Spalding began questioning me about my personal life, including my membership in student groups. He had made clear to me that he knew which groups I belonged to, what positions I held, and who my friends were. As I answered his questions, I got the distinct impression that he was checking his notes against my replies, verifying the records in a file he had compiled on me. As the meeting ended, Mr. Spalding once again attacked the “Vox Clamantis in Deserto” website. . . .

I left that room feeling extremely intimidated, as if I’d been operating under Mr. Spalding’s microscope for a year and nobody had bothered to tell me that my actions were being recorded and monitored. No students at an institute of higher learning, or anywhere for that matter, should endure intimidation of any kind, especially because of their politics. Mr. Spalding’s condemnation of my political views, followed by his inquisition into the personal and private details of my life, affectively threatened those freedoms which ought to be sacred.

Mr. Spalding’s actions were clearly not those of an official intent on “remaining neutral on the alumni constitution.” In the service of his biases, he used his position as an administrator to attack my ideas, my politics, and my privacy.

Now compare this to what Spalding told the Dartmouth newspaper (I am assuming that the newspaper quoted Spalding correctly, which is not certain):

In an interview with The Dartmouth, Spalding said he possessed no private information that had been sent through BlitzMail.

"I guess I'm cautious around the words 'that he sent privately to his fraternity brothers.' I think that if you go on the Vox Clamantis website, most of that information was there," Spalding said. "I don't remember anything private that was sent."

Later in the interview, Spalding neither confirmed nor denied that he had a copy of a Stork's BlitzMail message that was not sent specifically to him.

"I don't recall having a private e-mail that he sent to his Gamma Delt brothers," Spalding said.

Stork alleges that in the meeting, Spalding advocated for the newly proposed alumni constitution, a reversal of his constant dedication to neutrality on the subject. . . .

Spalding said that the constitution did come up during the meeting, but that he and the administration continue to remain neutral on the issue.

"I may have suggested that commenting that the administration was misleading the alumni about what students think, that that really wasn't true," Spalding said, citing student satisfaction surveys. "I certainly would have taken issue with him on that question, but I don't remember debating the constitution with him."

Now it is highly unlikely that both Nick Stork and Vice President Spalding are telling the truth.

Private Email: Spalding claims:

"I don't recall having a private e-mail that he sent to his Gamma Delt brothers."

But Spalding also says,

"I guess I'm cautious around the words 'that he sent privately to his fraternity brothers.' I think that if you go on the Vox Clamantis website, most of that information was there. . . . I don't remember anything private that was sent."

Wait a minute! How can Spalding know that "most" of what is in the private email is also available on the public website if he doesn't remember having seen the private email? I find it hard to see how Spalding could be telling the truth here.

Further, Stork is quite emphatic that Spalding quoted from the email in their meeting. Someone is probably lying about the email.

Neutrality on the New Constitution: Stork claims that Spalding argued at length in favor of the new constitution and against Stork's opposition to it. Spalding claims that he was neutral in his comments. Either Stork or Spalding is very probably lying.

Evasiveness in Wording: For the most part, as the Dartmouth newspaper points out, Spalding neither confirms nor denies Stork's account. He uses locutions such as "I don't remember" and "I don't recall," phrases commonly used by people who are being less than candid. The differences between what Stork reports and what Spalding recalls are so different that it is highly unlikely that both are telling the truth as they remember it.

6 Comments
Intimidation at Dartmouth?

I fear that Eugene may have misunderstood some of the underlying facts surrounding the Dartmouth episode he discusses. As a result, he seems to have misunderstood the concern about intimidation. Were the claim simply that there was an effort by an administrator, even a vigorous effort, to change a student's mind on a political debate than Eugene plainly would be correct. But the claim by the young man here is not merely that "He criticized my views and said my political views are wrong..." but a specific concern of intimidation that the student should cease his activities in opposition to the proposed new Dartmouth alumni constitution or the administrator would make public or otherwise use against the student information that the student preferred to remain confidential.

Eugene relies on an account from the student newspaper, excerpted in another blog. But that newspaper article is derived from an underlying text from a campus blog, "Vox Clamantis in Deserto." Eugene focuses only on the political disagreement, but not the not-so-veiled threat that lies behind it:

Next [the administrator] began questioning me about my personal life, including my membership in student groups. He had made clear to me that he knew which groups I belonged to, what positions I held, and who my friends were. As I answered his questions, I got the distinct impression that he was checking his notes against my replies, verifying the records in a file he had compiled on me.

***

I left that room feeling extremely intimidated, as if I’d been operating under [the administrator's] microscope for a year and nobody had bothered to tell me that my actions were being recorded and monitored. No students at an institute of higher learning, or anywhere for that matter, should endure intimidation of any kind, especially because of their politics. [His] condemnation of my political views, followed by his inquisition into the personal and private details of my life, affectively threatened those freedoms which ought to be sacred.

The clear concern expressed here is not about a political disagreement, but rather that the administrator was threatening to use this personal information to try to embarrass this student and/or his friends. As I read Eugene's post, he seems to misunderstand the phrase in the story "I think when someone tries to let you know that they know what you’re up to" to mean that the administrator was monitoring the student's political views, when in fact, the reference is to the administrator monitoring the student's personal life.

And that seems like a clear case of it could be a case of intimidation to me.

Update:

I should have clarified that I was assuming the facts as stated by the former student (sort of like a summary judgment analogy), which is what I understood Eugene to be doing as well in his analysis. So I didn't mean to be prejudging the case just based on the little that is known publicly now. I have changed the final sentence of the post to reflect this.

11 Comments
Should We Care About The Reasoning In Judge Taylor's Opinion? : Glenn Greenwald has a post responding to the Washington Post's editorial on Judge Taylor's NSA opinion, and in particular criticizing the Post (and many others, including Eugene) for criticizing its reasoning. He writes:
  What really matters, says the Post in its unbelievably petty editorial, is not the profound constitutional crisis we face by virtue of a President who believes he has the power to act outside of the law and has been exercising that power aggressively and enthusiastically in numerous ways over five years. No, that is merely a fascinating intellectual puzzle, something for super-smart experts to resolve with great civility and high-minded, complex discussions as they ponder what the Post calls the "complicated, difficult issues" raised by the administration's lawlessness.
  To the Post, what really matters here is how impressed law professors are with the complexity and nuance in Judge Taylor's written decision. Condescendingly scoffing at the judicial quality of her opinion is of infinitely greater importance than objecting to the growing extremism and lawlessness to which our country has been subjected. * * *
  In the scheme of the profound issues our country faces, obsessing about the inartfulness of this judicial opinion is not unlike those who use a laughably grave tone to write articles about fights between Daily Kos diarists or the latest blogger "scandal" while ignoring our national media's grotesque failure to scrutinize meaningfully our government's conduct and claims — particularly on matters of war and peace or threats to constitutional liberties.
  There is nothing commendable or impressive about always being restrained and muddled and ambivalent in one's tone and views. It is not a sign of intellectual prowess to be open-minded to frivolous claims or corrupt and dangerous behavior. And when the claims are particularly frivolous, and when the corruption and dangers reach a certain level of severity, self-important ambivalence — hospitality to extremist ideas and systematic government law-breaking — is actually irresponsible, reckless, and morally and intellectually bankrupt.
  Two responses. First, the issues raised by the NSA domestic surveillance program are not easy. Granted, I think that the Administration's published legal defense of the program is weak. But that doesn't mean that the program is illegal; the Administration is giving the program only a very partial defense in its public documents, so there is a lot more that we don't know. (For example, I teach and write in the area of the Fourth Amendment, and my view is that I don't know enough of the facts to know if the program violates the Fourth Amendment. I can recite the arguments, but without the facts I can't tell.) And the legality of the NSA domestic surveillance program was a part of Judge Taylor's opinion, but only a part, as most of the opinion was on procedural issues such as the state secrets privilege and standing. Greenwald is right that "it is not a sign of intellectual prowess to be open-minded to frivolous claims." But it's also not particularly helpful to be close-minded to difficult ones.

  Second, isn't the gist of Greenwald's argument somewhat similar to the arguments that the President's most zealous supporters have been making all along? In their case, of course, they have made such claims in response to criticisms of the Administration's legal defense of the NSA program, rather than in response to criticisms of Judge Taylor's opinion striking it down. But you've seen the argument many times, including in many VC comment threads: Rather than dwell on the "fascinating intellectual puzzle" of whether the NSA program is legal, we should focus on the really important question of defending the country against terrorists. In other words, stop quibbling over little legal issues and get back to the big picture. To be fair, this is often a very legitimate argument; legal niceties aren't everything. But it's not obvious to me why we would reject this advice when analyzing the DOJ's defense of the program but not when analyzing Judge Taylor's opinion striking it down.

  UPDATE: After drafting this post, I note that Greenwald has an update further explaining his point, in which he suggests (I think) that his point is that even if the criticisms of Judge Taylor's opinion are fair on the merits, it is somehow inappropriate. In his example, Greenwald suggests that criticizing Taylor's opinion is like seeing an assault and complaining about the unpleasantness of a victim's cry rather than the assault itself. While I appreciate his willingness to attempt to clarify the point, I'm not entirely sure how that clarifies the post. And I don't find the analogy persuasive.
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Unanimously Wrong:

I now have a new paper up on SSRN on Rumsfeld v. FAIR, the Supreme Court's decision of last March upholding the constititutionality of the Solomon Amendment.

I'd appreciate any constructive comments here or at my law school email address from those who have the time to read the paper.

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D.C. Real Estate Market Update:

The Washington Times says that July was the toughest month to sell a home in D.C. since 1997.

It's very hard to get a handle on what's going on, because statistical comparisons often involve comparing apples and oranges. For example, I've noticed that much nicer properties seem to be on the market now than last time I was seriously following things, in the Winter of 2005. Then, not only did prices seem outrageous, but the vast majority of homes for sale were dreck, as if everyone with a crappy house was taking advantage of the bull market in housing to sell, and anyone with a nice house was waiting to sell. (I also suspect that sellers' agents "fed" many of the nicer houses to their buyer clients before the properties formally went on the market, the better to get a double commission.)

But I can provide one piece of apples to apples evidence. In February '05, my wife and I looked at townhouses in a development in Alexandria called "Quaker Hill." It's not walking distance to the metro, but it is well inside the Beltway, and is across the street from large, beautiful single family houses. At the time, the asking price for standard three and four bedroom townhouses there ranged in price from $520K to $580K (for a model about 15% larger than most). Also at the time, houses were routinely selling in one weekend for more than asking (we bid instead that weekend on a wonderful house in Falls Church, offering 50K over asking, and didn't even come close). Checking the real estate sales from last Fall on the Alexandria website, these same homes were selling from the high $500s and up. Prices started to gradually decline, but in the mid-Spring sellers could still get in the low mid-500s for the regular-sized homes.

By July, the sweet spot seemed to be around $530k. One seller, MLS AX5588111, dropped his price on July 15 from an initial $594K to $529K, with a new listing text that started "$529,000! $529,000!." The house was off the market within a day or two, assumedly sold.

But suddenly, since then, sellers can't get even $529K. One seemingly desirable unit, an end unit with a garage (MLS AX6098109), "recently updated", has been reduced to from an initial $549K (and later $529K) to $515K with $5K closing cost help, effectively $510K. Almost a week later, it still hasn't sold. Two other houses in the development are selling for $525K, and one for $529K.

In short, at least in this one large townhouse development in Alexandria, prices are now lower than they were in February 2005. (But don't feel too bad for the sellers, most of whom originally bought these houses in the early 90s for a bit over 200K). Mortgage payments, however, would be higher than they were in 2/05 because of higher interest rates.

I make no claims that this reflects anything beyond the prices in this one particular development, and, even if it did, it's worth keeping mind that in a down market condos and townhouses tend to decline more, and more rapidly, than single-family homes. Also, while some of the bubble markets (especially No. Va., Boston, South Florida, Phoenix, and Las Vegas) seem to be rapidly contracting, prices are still rising in other parts of the country. But I think it's interesting anecdotal data nevertheless, and is consistent with the Times' claim that the market has slowed down considerably of late.

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Reports of "Near Terror Disaster on German Trains,"

described here.

UPDATE: Bloomberg has more; thanks to InstaPundit for the pointer:

Two suitcases containing bottles of gasoline, propane gas and a detonating device that were found abandoned in German regional trains last month were bombs primed to go off and kill a "high number" of people, police said....

The perpetrators are suspected of being members of a "domestic terrorist organization," [Federal Prosecutor Rainer] Griesbaum said....

Investigators found pieces of paper with Arabic letters and telephone numbers from Lebanon in clothes which were in the suitcases to pad the gas bottles, he said. They also found starch bags from Lebanon which were sold in a store in or around Essen, a city in North-Rhine Westphalia....

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Hardly a "Hard-Left" Position:

While I'm on the subject of editorials about the NSA eavesdropping case, let me note the New York Sun's, which notes that "The administration plans to appeal, and, while we hope it will prevail, it's clear the hard-left is going to play the courts for all it's worth."

It seems to me that the proposition that Congressional judgments about the proper scope of surveillance (even surveillance aimed at catching foreign terrorists) prevail over Presidential judgments is hardly a "hard-left" view. If the Foreign Intelligence Surveillance Act prohibits the NSA program (my reading is that it does), the Authorization for the Use of Military Force doesn't implicitly authorize what FISA forbids (and it's at least quite plausible to say that it doesn't implicitly authorize it), and the Congress has the constitutional power to constrain the President this way (and again it's at least quite plausible to say that it has such a power), then the NSA program is illegal. And even if the program is nonetheless valuable for national security, there are perfectly sensible non-hard-left arguments for concluding that the rule of law should trump even national security concerns (especially if one believes, as I do, that the constraints on the program are statutory and can thus be removed, if necessary, simply by getting Congress to change the law).

Again, one can certainly argue that the program is legal. But it seems to me a mistake to derogate many people's legitimate concerns about the program by connecting them to the "hard-left." Doubtless parts of the hard left (however you define such a group) are interested in sinking this program and many others -- but many people who criticize this program are most certainly not on the hard left.

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The New York Times Praises the NSA Eavesdropping Decision:

Orin points me to today's editorial, which says (among other things) that "The ruling eviscerated the absurd notion on which the administration’s arguments have been based: that Congress authorized Mr. Bush to do whatever he thinks is necessary when it authorized the invasion of Afghanistan," and refers to the "careful, thoroughly grounded opinion." Whatever the merits of the Times' substantive arguments, it seems to me hard to justify calling the opinion "careful" and "thoroughly grounded," for the reasons various people (including Jack Balkin, Orin, and me, see the posts below) have noted.

UPDATE: Commenter Kazinski rightly points out another problem in the Times editorial. The editorial says:

The ruling eviscerated the absurd notion on which the administration’s arguments have been based: that Congress authorized Mr. Bush to do whatever he thinks is necessary when it authorized the invasion of Afghanistan.
Is that quite a fair way of characterizing the AUMF, which hardly limits itself to Afghanistan, but instead says the following?
To authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States.

Whereas, on September 11, 2001, acts of treacherous violence were committed against the United States and its citizens; and

Whereas, such acts render it both necessary and appropriate that the United States exercise its rights to self-defense and to protect United States citizens both at home and abroad; and

Whereas, in light of the threat to the national security and foreign policy of the United States posed by these grave acts of violence; and

Whereas, such acts continue to pose an unusual and extraordinary threat to the national security and foreign policy of the United States; and

Whereas, the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States: Now, therefore, be it [r]esolved by the Senate and House of Representatives of the United States of America in Congress assembled, ...

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons....

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Seems Like an Interesting Site for Political Junkies,

or those who are planned on acquiring the habit in the next few months -- Election Projection - 2006 Edition. The post I link to discusses why generic "Will you vote for the Republican or the Democrat in November?" questions may be of limited use in predicting actual results. "Generic polls may uncover a sense of dissatisfaction with the majority party in Washington, but they do not seem, as head-to-head polls show, to indicate a willingness to kick the bums out. It's as though the electorate has grown weary of GOP control, but doesn't see the Democratic candidate in these closely-held GOP districts as a viable alternative." True or not? I don't know enough to tell, but it seems interesting.

The "Blogging Caesar" nickname, on the other hand, doesn't work for me, even though I've read the explanation.

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Washington Post Editorial on the NSA Eavesdropping Decision:

The Post has hardly been a solid defender of the NSA eavesdropping program, but it nonetheless criticizes the decision:

[T]he decision ... is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work -- that is, as a guide to what the law requires and how it either restrains or permits the NSA's program -- her opinion will not be helpful.

Judge Taylor's opinion is certainly long on throat-clearing sound bites. "There are no hereditary Kings in America and no powers not created by the Constitution," she thunders. She declares that "the public interest is clear, in this matter. It is the upholding of our Constitution." And she insists that Mr. Bush has "undisputedly" violated the First and Fourth Amendments, the constitutional separation of powers, and federal surveillance law.

But the administration does, in fact, vigorously dispute these conclusions. Nor is its dispute frivolous. [For details, see the editorial itself. -EV] ...

The judge may well be correct in her bottom line that the program exceeds presidential authority, even during wartime. We harbor grave doubt both that Congress authorized warrantless surveillance as part of the war and that Mr. Bush has the constitutional power to act outside of normal surveillance statutes that purport to be the exclusive legal authorities for domestic spying. But her opinion, which as the first court venture into this territory will garner much attention, is unhelpful either in evaluating or in ensuring the program's legality....

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Sacramento News & Review Cartoon:

The newspaper publishes an explanation: "In this case, Kloss [the cartoonist] used the Star of David symbol — which is displayed prominently on the flag of the government of Israel — to depict his view that Uncle Sam is locked into a single position in that region." Here's the cartoon:

Seemed to me that when someone is in a pillory, it's because someone else has locked him into it, not because he's just abstractly "locked into" it. And it also seems to me that in context the Star of David, without the horizontal bars that distinguish the Israeli flag from the general symbol of Jews, is more reasonably interpreted as a symbol of Jews, not of Israel. As I read the cartoon, it was suggesting that Uncle Sam is locked in to something Jewish, not just something Israeli; but in any event, he was locked in by someone else, not by himself — could it be ... the Jews? (It surely can't be Israel, since Israel has very little power to lock the U.S. into anything.)

If you share my interpretation, then I suspect you take a pretty dim view of the cartoon. If, on the other hand, you think the cartoon is more reasonably interpreted simply as Uncle Sam having locked himself into support for Israel, then you would likely see little wrong with it. It's your call.

Related Posts (on one page):

  1. Sacramento News & Review Cartoon:
  2. In Which Publication and Which Year Was This Cartoon Printed?
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Employees May Sue Congressional Offices:

A splintered en banc panel of the U.S. Court of Appeals for the D.C. Circuit unanimously concluded that the Speech and Debate Clause does not require the dismissal of suits against Congressional offices filed under the Congressional Accountability Act. Judge Randolph delivered the opinion of the court and wrote an opinion joined by Chief Judge Ginsburg and Judges Tatel and Henderson. Judge Rogers wrote a separate opinion concurring in part and concurring in the judgment, and Judge Brown wrote an opinion concurring in the judgment joined by Sentelle and Griffith. Judge Tatel also wrote a concurrence stressing the commonalities among the opinions. No single rationale commanded a majority of the court, but the decision allows employment lawsuits against the offices of Representative Eddie Bernice Johnson and Senator Mark Dayton to proceed.

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Is Abortion Still Legal in America?

Are Private Schools Still Legal in America? Is Promoting Legislation Still Legal in America?

I'd think the answer to all these questions would be "yes," even though the government generally declines to support these endeavors (and even though the government generally supports some similar or even rival endeavors, such as childbirth, public schooling, and speech on other issues). Many states ban the use of state funds or state facilities for abortion. The federal government provides a charitable tax exemption for contributions towards a wide range of advocacy — an exemption that is economically equivalent to a form of matching-grant subsidy — but excludes the express promotion of (or opposition to) candidates or legislative proposals. All these provisions are constitutional, and hardly raise the question "Is [X] Still Legal in America?" If anything, it's been conservatives (on the Court and among the public) that have generally argued that failing to subsidize behavior — even constitutionally protected behavior — is far removed from banning it.

Yet the rather conservative Washington Examiner runs the headline "Is Christianity still legal in America?" for a column that faults a public university for mandating that groups (including religious groups) not discriminate based on sexual orientation in choice of officers. I've written about why I think these policies are generally constitutional (though in my view often unwise), partly by analogy to the funding choices I described at the start of this post. The matter is made complex by the fact that sometimes the Court has held that the government must fund constitutionally protected behavior that it disapproves of; for instance, the government may not discriminate based on speakers' viewpoints in operating a broadly available funding program. I discuss that in my article, in more detail than you'll likely want, and come to the conclusion that exclusion of groups based on their expressive association choices doesn't fit within that relatively narrow exception to the "government need not fund behavior it dislikes rule."

But complex as the constitutional matter might be, one thing is simple: Government rules that all groups that get government benefits comply with certain restrictions — even restrictions that end up bearing especially hard on some Christian groups — aren't even close to making Christianity illegal; instead, it's a lot closer to the government's choosing which behavior (childbirth but not abortion, public schooling but not private schooling, much speech but not electioneering or lobbying) to support using its money and access to its property.

UPDATE: Silly screw-up in characterization of the lower court decision corrected (thanks to reader Jeremy Richey for alerting me to this) -- sorry about that; the substantive point remains the same.

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Odd Real Estate Ad:

MLS AR6060519, Arlington County, Va.: "Location, location, location! For sale at recent appraisal price!"

Wow, you'll let me buy the house for what an appraiser you hired says it worth? Gee, thanks. (The county appraisal is over $70K less, and in many cases these appraisals are themselves inflated, because they are based on value as of last Summer, which was the top of the market in Arlington). And the listing is now three months old, and since then prices have fallen a bit in the region, including, from what I can tell, Arlington (According to data from this site, the average sell price in Arlington went down between May and July from approximately $594K to approximately $524K, with the averages going down a similar amount. That seems way too dramatic to me for two months, and I'm sure at least in part reflects a change in the mix of properties sold, but we're clearly not in an uptrend).

What would lead the listing agent to think that this is a good way of creating interest in the property?

And while we're on the subject of real estate listings, a huge percentage of them have typos or spelling errors(today I saw "closeing"). For the three percent the sellers' agents get, do you think they could run their text through a spell check? Also, lots of listings have inaccuracies or misrepresentations, ranging from misstating the square footage to claiming that a house well over a mile from the metro is "walking distance."

In case you're wondering, I'm just browsing the listings, not in the market yet.

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He Criticized My Views! He Said My Political Views Are Wrong, Here Are the Right Ones! He Let Me Know That He Knew What I Was Up To!

I'm not an expert on the Dartmouth governance debates, and for all I know there might be something wrong with what the Administration there is doing. But some of the arguments this post (which I mention because it was linked to at InstaPundit) struck me as not terribly persuasive:

Claims of Censorship and Intimidation at Dartmouth

This morning’s edition of The Dartmouth carries a worrisome story by reporter Rebekah Rombom....

As the Association of Alumni prepares to vote on a new proposed constitution this fall, heated debate has persisted throughout many sectors of the Dartmouth community. Factions on both sides participate, with weblogs becoming an important media for political dialogue.

The website voxclamantisindeserto.org vocally criticizes the proposed constitution and other administrative affairs. A recent alumnus heavily involved with the website is alleging that he was intimidated in private meetings with members of the Alumni Relations administration because of his views on the proposed alumni constitution.

Nick Stork ‘06 issued a public statement on the website accusing Vice President for Alumni Relations David Spalding ‘76 of intimidating him and criticizing his views during a June 7 meeting in Blunt Alumni Center.

According to Stork, he went to Blunt for a morning meeting with Spalding and Assistant Director of Young Alumni and Student Programs Rex Morey ‘99 to make up a missed lunch for Greek leaders days before.

When he entered the room, he noticed a BlitzMail message concerning the constitution he had sent to members of his fraternity, Gamma Delta Chi, lying on top of a stack of papers in the conference room.

Later in the interview, Spalding neither confirmed nor denied that he had a copy of a Stork’s BlitzMail message that was not sent specifically to him.

“I don’t recall having a private e-mail that he sent to his Gamma Delt brothers,” Spalding said.

Stork alleges that in the meeting, Spalding advocated for the newly proposed alumni constitution, a reversal of his constant dedication to neutrality on the subject.

“I think effectively what he did during the meeting was to say: your political views are wrong, here are the right ones,” Stork said, referring to anti-constitution posts on voxclamantisindeserto.org.

“I think when someone tries to let you know that they know what you’re up to, there is a serious intimidation there.” ...

Harsh — the administrator criticized a student's views. He apparently effectively said "your political views are wrong, here are the right ones." He communicated to a vocal critic of the administration that he was paying attention to people's criticisms of the administration.

I take it that the student might have been somewhat worried that the administrator would somehow affect the closing days of his school career (the student was about to graduate), but it would take someone with a pretty poor view of Dartmouth to think that there's that much of a chance that the administrator would, say, urge professors to unfairly lower the student's grades or some such. (Top universities, to my knowledge, are known for leaving the individual grading decisions to the professors, except to the extent that they leave them to TAs.) And if this was the student's view of Dartmouth, then I'm surprised he had spoken out in the first instance, since the administration could (if it's willing to break all the rules) retaliate against a student whether or not an administrator decides to personally argue with the student. All the evidence suggests is that the administration is willing to talk back to students who they think express unsound views. Not a lot to build a case of intimidation and censorship (much less, as the blogger later says, "indecent tactics"), it seems to me.

Some of the other items in the post might be more troubling, depending on the facts; the post discusses the administration's statements to another student who works for a Dartmouth-affiliated charity, which might be proper or might not be, depending on the facts. The post also argues that the administration has been disingenuous in its public comments; I can't speak to that, but in any event that claim strikes me as separate from the claim of censorship and intimidation-by-criticism. One might also argue that the administrator might have been rude or petty in his actions (as opposed to censoring or intimidating or indecent), though we'd need a good deal more information to evaluate that, it seems to me.

The post also suggests that the administration might have gotten the e-mail to the fraternity brothers by monitoring student e-mail accounts — this would be troubling, but a more probable explanation, I suspect, is that one of the many recipients forwarded the message on, and it eventually got forwarded to the administrators. The post proceeds to argue that even this explanation is troubling, because "it means that a recipient of Nick’s e-mails felt that the proper thing to do with a piece of political expression with which he disagreed was to surreptitiously forward it to a College administrator, whom he or she expected would take corrective action. This is not the mark of a campus with an atmosphere fostering of free speech. It is the mark of the precise opposite: chill." But if the "corrective action" is the administrator's "criticizing [the speaker's] views" and saying "your political views are wrong, here are the right ones," that sounds to me like free speech — something even administrators may sometimes be entitled to exercise.

I mention this partly because I've seen similar arguments before in other contexts. Sometimes (perhaps here) they are simply inartful representations of legitimate grievances — for instance, perhaps there really was something more being done to Mr. Stork than "criticizing his views." But sometimes they represent the view that freedom of speech means freedom to speak without criticism, without people tracking what you're saying and faulting you for it, without the "chill" that comes from the possibility that your speech will lead to public disagreement and condemnation. That's not what freedom of speech can be or should be.

UPDATE: For an example of the broader phenomenon I describe, see the incident described in this post from last March. The incidents are of course not identical, but both seem to me to exhibit the "how dare [proessors/administrators] criticize students, 'demean[ their] ideas,' and 'dishonor[ their] perspective'" argument.

UPDATE: I initially misread the story as suggesting that Nick Stork had been an alumnus at the time of the conversation (the trouble with blogging from bed late in the evening); I now realize (thanks to a commenter) that he was an about-to-graduate student. I've updated the post accordingly, but I think my argument is still sound.

Related Posts (on one page):

  1. Dartmouth:
  2. Probable Lying at Dartmouth.--
  3. Intimidation at Dartmouth?
  4. He Criticized My Views! He Said My Political Views Are Wrong, Here Are the Right Ones! He Let Me Know That He Knew What I Was Up To!
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Thursday, August 17, 2006

Lying about Lebanon:

Judith Klinghoffer catches Saint Jimmy Carter in bold-face lie (or at least, gross and intentional exaggeration).

Relatedly, we heard (includng from commenters on this blog) at the beginning of the POG/Israel War that Israel "destroyed" the Lebanese airport for no good reason, when in fact, Israel only bombed the easily repaired runways to prevent resupply of the Party of God. Proof? The airport is now open again, and full commercial service is expected to start next week.

I'm busy getting ready for the first week of classes, so I haven't been, and won't be, keeping up with the aftermath of the media scandals in Lebanon much. But plenty of other blogs are, including two that have proved invaluable in the last month: EU Referendum and Little Green Footballs.

Originalism and the Fourth Amendment: In response to Jim's post below, surprisingly little of relevance is known about the original purpose of the Fourth Amendment. There was no policing at the time of the Framing, at least as we conceive of it today, and the Framers were mostly thinking about limiting particular types of very broad warrants that the King had permitted to search physical places and things. In any event, the Supreme Court wrestled with the issues that Jim raises below in three major cases: Olmstead v. United States (1928), Berger v. New York (1967), and Katz v. United States (1967). The gist of the cases (to really really oversimplify matters) is that Jim's argument had five votes in Olmstead, but became a minority view by the time of Berger and Katz.

  Indeed, Jim's argument sounds a lot like Justice Black's solo dissent from Berger. An excerpt:
    Eavesdroppers have always been deemed competent witnesses in English and American courts. The main test of admissibility has been relevance and first-hand knowledge, not by whom or by what method proffered evidence was obtained. It is true that, in England, people who obtained evidence by unlawful means were held liable in damages, as in Entick v. Carrington, 19 How.St.Tr. 1029. But even that famous civil liberties case made no departure from the traditional common law rule that relevant evidence is admissible even though obtained contrary to ethics, morals, or law. And, for reasons that follow, this evidentiary rule is well adapted to our Government, set up as it was to "insure domestic tranquility" under a system of laws. * * *
  While the electronic eavesdropping here bears some analogy to the problems with which the Fourth Amendment is concerned, I am by no means satisfied that the Amendment controls the constitutionality of such eaves-dropping. As pointed out, the Amendment only bans searches and seizures of "persons, houses, papers, and effects." This literal language imports tangible things, and it would require an expansion of the language used by the framers, in the interest of "privacy" or some equally vague judge-made goal, to hold that it applies to the spoken word. It simply requires an imaginative transformation of the English language to say that conversations can be searched and words seized.
  Interestingly, none of the current Justices seem to be interested in returning to Justice Black's approach. Occasional originalist Justice Scalia has written opinions that suggest an interest in creating new rules that capture the original role of the Fourth Amendment in light of technological change — see, for example, his opinion in Kyllo v. United States — but I don't think there are any votes on the current Court for Justice Black's approach.
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Question About the Original Meaning of 4th Amendment?--

I am quite skeptical whether the President is inherently exempt from statutory restrictions (especially procedural ones) on wiretapping. But the question I want to raise here is about the original meaning of the 4th Amendment.

(BTW, I don't necessarily believe that originalism is the only legitimate form of interpretative analysis, but I do think that it is the place to start, which is why both originalists and nonoriginalists usually start there.)

Being neither an expert in Constitutional law nor an expert in criminal procedure, I wanted to ask our readers and my fellow Volokh Conspirators (particularly Orin, Eugene, Dale, and Randy, who are experts in some or all of these issues) about what research has been done into the original meaning of the 4th Amendment. On its face, it doesn't seem to be a general provision protecting people's privacy from government investigation without a warrant.

The 4th Amendment's text seems much more limited:

Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

To a naive reader such as myself, it would seem to contemplate looking at people's writings, homes, and private papers, in other words, their physical property--as well as seizing their body by arrest. For seizing your physical property or your body or breaking into your home to search, a warrant and probable cause is recognized as legally necessary.

Consider that spies were commonly used in the 18th century, at least in military actions. Presumably criminal informers were as well. The 4th Amendment doesn't say that you have to have a warrant to eavesdrop on people's conversations.

Is there any evidence in discussions at the time of drafting it, voting on it, or ratifying it that the 4th Amendment was intended to require warrants when someone wanted to overhear another person talking--which is, after all, a semi-public act that someone can hear without arresting the suspect, physically breaking into his home, or seizing his private papers or other tangible personal property?

Or is there any evidence that the words of the 4th Amendment would mean at the time that eavesdropping and spying were illegal without a warrant? If not, then conversation may not have been intended to be covered.

If so, that would not end the analysis. The argument might arise whether the technological changes in the government's ability to eavesdrop have fundamentally changed the analysis such that eavesdropping was not covered then but must be covered now. Or one might argue that the federal government, being one of limited powers, did not have the power to eavesdrop without a warrant, even if the 4th Amendment does not prevent it.

Or, of course, tradition or US precedent may be thought to mandate something other than the original understanding.

I repeat that I am not claiming that I know what the original meaning of the 4th Amendment was, only that a facial reading gives me some doubt whether surveillance outside of one's home or eavesdropping were intended to require a warrant, and I'm hoping that some expert can tell me what the research tells us on this question.

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Public Financing of the New Yankee Stadium:

ESPN reports that the New York Yankees have just broken ground on construction of their new stadium, which will be partly financed with $200 million in state and New York City government subsidies, as well as an undetermined quantity of tax exempt bonds.

There is absolutely no justification for this kind of government subsidization of big business. Studies by both liberal and conservative/libertarian economists have uniformly shown that stadium construction provides no net economic benefits to the communities where they are built. See, e.g., this study by leading sports economists Roger Noll and Andrew Zimbalist, published by the liberal Brookings Institution. Professor Zimbalist, by the way, has done work for the Major League Baseball players union, which (like the owners) has an interest in promoting public subsidization of baseball; If even he concludes that stadium subsidies do not create net economic benefits, that is a telling sign.

One could argue that, even if there is no net benefit to New York City as a whole, public subsidies for the new Yankee Stadium are justified because of the benefit to Yankees fans. I too am a big baseball fan, but I do not believe I have the right to government subsidization of my entertainment preferences. I also love science fiction, for example, but that does not justify government subsidies for science fiction writers or the producers of Star Trek and Battlestar Galactica.

In this case, moreover, average Yankees fans are actually likely to be harmed rather than benefited. According to the ESPN report, the new Yankee Stadium will have some 4000 fewer seats than the current one and a higher percentage of luxury boxes. So there will actually be fewer seats affordable to ordinary fans. Middle and lower class Yankees fans are being asked to foot the bill for the public subsidy while at the same time having fewer opportunities to go see games. Definitely a case of adding insult to injury! The stadium subsidy is a straight wealth transfer from New York taxpayers to multimillionaire Yankees owner George Steinbrenner, his wealthy players players, and (to a lesser extent) those few fans who can afford luxury boxes. Of course there may also be some dead-weight losses to society as a whole. To be clear, I am not opposed to George Steinbrenner wanting to build a stadium with more luxury boxes, if he spends his own money on it. But I do oppose government subsidies for this kind of activity.

Some longtime VC readers might suspect that I am only blogging about this issue because I'm a die-hard Boston Red Sox fan and don't exactly have warm feelings for the Yankees. I don't deny disliking the Yankees. But I also opposed 1980s and '90s plans by the Red Sox to build a new Fenway Park also partially financed with public funds. In any event, the possible impurity of my motives in no way undermines the validity of my point!

UPDATE: Some commenters argue that the stadium subsidy is defensible because the public money is being used to pay for new public infrastructure in the area. In reality, as news reports make clear, infrastructure is only part of what the $200 million in public funds will be spent for (see, e.g., here). More to the point, if the infrastructure is only needed because of the construction of the new stadium, using government money to pay for it is no less a subsidy to the Yankees than if the money were used solely on the stadium itself. Subsidization of infrastructure that is purpose-built in order to complement a specific privately owned construction project is no different than subsidization of the project itself, and must be judged by the same standards.

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Lower Court Opinions Are Briefs to Higher Courts:

If you're a judge, your first responsibility is of course to reach the conclusion that you think is legally right, and to explain it using those arguments that you think are most sound. But once you have that figured out, presumably you'd want to maximize your chances of being affirmed — since by hypothesis your approach is the correct one, and you'd like to see it kept rather than being overruled. And that must be doubly so when you not only think the result you reached is right, but are passionate about it.

You may sometimes render a decision knowing that it will be overruled, for instance because you think this is the decision mandated by current precedent, but you think the higher court will overrule that precedent or even somehow evade it. But once you figure out what you think is the right reasoning, it makes sense to present it as persuasively as possible, at least if you think it's likely that the decision will be appealed. In some cases, you might conclude that the higher court judges just won't care what you write, because they'll make up their minds based on their own considerations. Yet even in ideologically polarizing cases, there are usually at least some judges who may be swayed by persuasive argument, especially from a fellow federal judge.

By that standard, the judge's opinion in today's NSA eavesdropping case seems not just ill-reasoned, but rhetorically ill-conceived. A careful, thoughtful, detailed, studiously calm and impartial-seeming opinion might have swung some higher court judges (and indirectly some Justices, if it comes to that). A seemingly angry, almost partisan-sounding opinion ("[The orders] violate the Separation of Powers ordained by the very Constitution of which this President is a creature," emphasis added, thanks to a caller for pointing this out) is unlikely to sway the other judges — especially when the opinion is rich in generalities, platitudes ("There are no hereditary Kings in America and no powers not created by the Constitution"), and "obviously"'s, and poor in detailed discussion of some of the government's strongest arguments.

Jeff Rosen once faulted Justice Blackmun for a judicial approach that was so emotional that it undermined his ability to implement the very ideas that he passionately believed; his "tendency to let his heart get the better of his head," Rosen argued, would "deprive[] him of lasting influence." (Others have argued that Justice Scalia's pugnacity might have a similar effect.) It seems to me that by writing an opinion that was too much feeling and too little careful argument, the judge in this case made it less likely that the legal approach she feels so strongly about will ultimately become law.

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The NSA Eavesdropping Opinion and Standing:

The district court held that the plaintiffs had standing to challenge the warrantless NSA surveillance program. The plaintiffs are individuals and associations whose members "conducted regular international and telephone and internet communications for various uncontestedly legitimate reasons including journalism, the practice of law, and scholarship." They asserted a "well founded belief" that they had been subjected to warrantless surveillance and that the existence of the program had actually "chilled" their communications with persons overseas. None of the plaintiffs alleged, however, that they had actually been surveilled under the NSA program.

The Supreme Court has held that, to establish standing, the plaintiffs must allege an injury that is concrete and particularized, not hypothetical and conjectural. Cases in the past decade or so have shown that this doctrine is quite flexible, allowing the Court to sidestep difficult or particularly sensitive constitutional questions where there's even a doubt about whether the standing threshold has been met. An example of this technical maneuver to avoid consideration of a thorny constitutional issue is the Supreme Court’s recent decision to reject a non-custodial atheist father’s claim that it is unconstitutional for public schools to lead children in reciting the phrase “under God” in the Pledge of Allegiance. Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1 (2004) (dismissing claim on the ground that the father lacked standing). Justice Stevens’s majority opinion declared: “The command to guard zealously and exercise rarely our power to make constitutional pro-nouncements requires strictest adherence when matters of great national significance are at stake.” Id. at 11 (emphasis added).

The district court nevertheless thought the plaintiffs had met this standard because the "chilling" effect from the very existence of the program was clear. The court then cited cases in which plaintiffs had adequately alleged chilling and other effects from the operation of federal laws. The problem is that, in each case, there was no question that the plaintiffs had actually been subjected to the regulation in question, not simply whether they might be. Once the application was clear, a chilling effect surely suffices as a sufficiently concrete injury. But the predicate is not clearly met in this case.

I am one of those who believes that the NSA program is not authorized by the AUMF, that it violates FISA, that FISA is a constitutional exercise of congressional power, and that therefore the NSA program is both illegal and unconstitutional. I have written so here. But I am less sure this is an issue courts should review, and even less sure that this case is one they should review.

So while the much sexier questions of executive power, the First Amendment, and the Fourth Amendment, will no doubt occupy many of us over the coming months (as they already have), I'd be willing to bet that at either the appellate court or the Supreme Court the suit will be dismissed for lack of standing.

(Meanwhile, with all this going on, ABC led its evening news with the latest from the Jon Benet Ramsey case.)

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The Fourth Amendment and the NSA Domestic Surveillance Opinion: I've just read through the Fourth Amendment part of Judge Taylor's opinion on the NSA domestic wiretapping opinion, and, well, um, it's kind of hard to know what to make of it. There really isn't any analysis; rather, it's just a few pages of general ruminations about the Fourth Amendment (much of it incomplete and some of it simply incorrect) followed by the statement in passing that the program is "obviously" in violation of the Fourth Amendment.

  Here's the part that comes closest to being an analysis section:
  [The Fourth Amendment requires] reasonableness in all searches. It also requires prior warrants for any reasonable search, based upon prior-existing probable cause, as well as particularity as to persons, places, and things, and the interposition of a neutral magistrate between Executive branch enforcement officers and citizens.
  In enacting FISA, Congress made numerous concessions to stated executive needs. They include delaying the applications for warrants until after surveillance has begun for several types of exigencies, reducing the probable cause requirement to a less stringent standard, provision of a single court of judicial experts, and extension of the duration of approved wiretaps from thirty days (under Title III) to a ninety day term.
  All of the above Congressional concessions to Executive need and to the exigencies of our present situation as a people, however, have been futile. The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment.
  The President of the United States is himself created by that same Constitution.
  I confess that this has me scratching my head. Let's take it bit by bit:
[The Fourth Amendment requires] reasonableness in all searches. It also requires prior warrants for any reasonable search, based upon prior-existing probable cause, as well as particularity as to persons, places, and things, and the interposition of a neutral magistrate between Executive branch enforcement officers and citizens.
  It's true that the Fourth Amendment requires reasonable searches. But Fourth Amendment reasonableness is satisfied by a warrant or an exception to the warrant requirement, and there are several possible exceptions to the warrant requirement that may apply. Whether and how they may or may not apply depends on the facts of the surveillance, which are currently unknown.

  Also, identifying a reasonable expectation of privacy in communications is really quite complicated given new communications technologies; for example, courts have held that there is no REP in transactional information and cordless phone calls, and individuals with no voluntary contact with the U.S. presumably have no Fourth Amendment rights at all. We'd need to know the details of the surveillance to know this, but we don't know those details.
In enacting FISA, Congress made numerous concessions to stated executive needs. They include delaying the applications for warrants until after surveillance has begun for several types of exigencies, reducing the probable cause requirement to a less stringent standard, provision of a single court of judicial experts, and extension of the duration of approved wiretaps from thirty days (under Title III) to a ninety day term.

All of the above Congressional concessions to Executive need and to the exigencies of our present situation as a people, however, have been futile.
  What does this have to do with whether the program violates the Fourth Amendment?
The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment.

The President of the United States is himself created by that same Constitution.
  It's hardly obvious that the program — or some aspect of it — violates the Fourth Amendment; that's the issue before the court, and my sense is that we really don't know enough to answer it without knowing the facts. And while it's true that the office of the Presidency was created by the Constitution, and the Fourth Amendment is a part of that Constitution, it's not clear how this relates to the Fourth Amendment issue. (Oh, and on an exceedingly minor point, I think that's four years, not five.)

  I can come up with explanations for why a district court judge inclined to rule against the program would put out an opinion that isn't quite ready for prime time. For example, Senator Specter's bill would take these issues away from the district court, so the choice might be to speak now or never. But at least based on the court's Fourth Amendment analysis, I suspect this opinion is important more for its political impact and its triggering of appellate review than for any analysis in the opinion itself.

  In any event, on to the Sixth Circuit (which, at least this story suggests, may have issued a stay of the injunction already).
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Possible Problems With Exit Polls:

Mystery Pollster has an interesting discussion of this, building around one incident -- I'm not an expert on the subject, but it struck me as quite informative. Thanks to Mickey Kaus (Slate) for the pointer.

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The NSA Domestic Surveillance Program Opinion: I was off-line and without an office phone all day due to an office move, and I just logged on to see the news about Judge Taylor's opinion in the NSA domestic surveillance case. I haven't read it yet, but I hope to have something up shortly.
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George vs. Rauch on polygamy (Round 2):

Two weeks ago, I posted about an exchange between Professor Robert George and Jon Rauch on gay marriage and polygamy. The exchange between them was prompted by a recent document signed by hundreds of progressive academics and activists calling for health care and jobs for all, universal peace, an end to hunger, and the equal recognition of all relations among sentient creatures. George took this rather stale manifesto as fresh proof that gay marriage will lead to polygamy; Rauch disagreed. Since then, George and Rauch have had another go at it. You can read George's latest on the topic here and Rauch's latest here. Some of the exchange now consists of debaterish points about who-really-said-what, but there is still much of interest in it.

Since George mentions a column of mine in his latest response to Rauch, I'll say a little in response to him here. George, a prominent natural-law theorist and one of the best public speakers I've seen, understands the radical argument for gay marriage. It claims, as he notes, that "love makes a family" and that making any legal distinctions among people who love each other is unjustified. The love-makes-a-family ideology — which also marches behind the more individualistic "families of choice" banner — does indeed entail the recognition of many forms of relationships, including same-sex couples and polygamous/polyamorous groups, since all may love each other. George concludes that this love-makes-a-family premise "is central to any principled argument" for same-sex marriage.

George thus mistakes the most open-ended argument for gay marriage as the one necessary argument for gay marriage. This is a debater's ploy. One could do the same thing arguing against almost any position. For example, I could say that support for restrictions on abortion will lead to restrictions on the use of contraceptives and to the prohibition of abortion even in cases of rape or threat to the mother's life. After all, that is what many abortion opponents have said publicly and the logic of their opposition to abortion (that human sex is for reproduction) must necessarily be attributed to the whole anti-abortion cause. It is, we might say, "central to any principled argument" against abortion.

So while George understands the most open-ended argument for gay marriage — the "radical" one, as he and Rauch refer to it — it does not appear that he has taken the time to understand more careful and restrained arguments for gay marriage, like those advanced by Rauch himself. (George acknowledges not having read Rauch's excellent short book, Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America.). I have tried, much less elegantly than Rauch, to make a similar limited and cautious case for gay marriage on traditionalist grounds. There are many, many others who have done so as well, going back to Andrew Sullivan's pathbreaking article for The New Republic almost two decades ago making a conservative case for gay marriage. I won't repeat the substance of these arguments here, but suffice it to say they do not easily lend themselves to support for polygamy; they certainly involve more than saying simply, "love makes a family."

I adduce these examples not because I think George will be persuaded by them; I am sure he will not be. He is the kind of writer who cannot even bring himself to type the words "same sex" and "marriage" together without scare quotes. I give these examples because he must know that the radical case for gay marriage is not the only one, or the necessary one.

George complains that Rauch, I, and others have not made what he calls "principled" arguments about why the recognition of same-sex marriages does not entail the recognition of polygamous ones. Instead, we have made what he calls "pragmatic" and "prudential" arguments, emphasizing differences between SSM and polygamy in terms of their respective histories, expected effects on society and marriage, and predicted benefits to the people involved. Notably, George doesn't say that these prudential arguments are wrong; he even concedes that some of them are "strong." In the sense that I think George means "principled" he's probably right that we haven't made principled arguments against polygamy; but his sense of principle is a very specialized one coming from a modern strain of natural-law argument.

When you read modern natural-law writings, you find that by "principle" in the context of the debate over marriage, something like this is meant: "Marriage must be between a man and a woman because only they can procreate; as for sterile male-female couples, they are included because they can have sex of a reproductive kind." Sex "of a reproductive kind" is sex that involves a penis and a vagina, even if it can produce no more babies than could a male and a male or a female and a female. (The argument is longer than this, of course.) The conclusion of the argument is embedded in the "principle" and then offered as if it's an argument.

In his scholarship, George has asserted that male-female marriage (and no other kind) is a good in itself; it is not a good because it is instrumental to the attainment of other goods, like pleasure, expressing feelings, or even procreation. In an article co-authored with Gerard V. Bradley, George has written that male-female marriage, and only male-female marriage, has an “intrinsic value” that “cannot, strictly speaking, be demonstrated.” “Hence, if the intrinsic value of marriage . . . is to be affirmed, it must be grasped in noninferential acts of understanding.” George and Bradley, Marriage and the Liberal Imagination, 84 Geo. L. J. 301(1995). This “noninferential understanding” that “cannot be demonstrated” is unavailable to some people, argue modern natural-law theorists. Bradley adds that, “In the end, one either understands that spousal genital intercourse has a special significance as instantiating a basic, non-instrumental value, or something blocks that understanding and one does not perceive correctly.” Gerard V. Bradley, Same-Sex Marriage: Our Final Answer?, 14 Notre Dame J. L. Ethics & Pub. Pol’y 729, 749 (2000).

This amounts to saying: “Same-sex marriage is not ‘marriage’ because only male-female marriage can be ‘marriage.’ Trust me.” The modern natural-law argument against same-sex marriage at bottom thus appears to rest on revelation of some pre-cognition reality to the initiate and only to the initiate. This seems to me very close to saying that marriage just is the union of one man and one woman and cannot, no matter the arguments, be defined any other way. Same-sex marriage is always same-sex "marriage." Thus, for George as for other natural-law writers, every attempt to expand marriage beyond their "principle" is mere pragmatism and prudence, and as George puts it, "lets the cat out of the bag."

But advocates of a logical slide to polygamy need to show the necessary "principle" uniting the causes of same-sex marriage and other unions, like polygamous ones. Yes, you can imagine such a principle ("love makes a family") and even find support for it in slogans and in the writings of some academics and activists who say they favor gay marriage but also favor many other reforms. The manifesto that has George so excited actually says very little about polygamy (I missed the one oblique reference on a first read), but prominently calls for an end to "militarism," and repeatedly for a wide range of government social-welfare measures. Must gay marriage advocates who didn't sign the manifesto produce position papers and principles against state-controlled universal health care, too? Same-sex marriage is no more necessarily tied to polygamy than it is to all of these other proposals.

And when it comes to crafting public policy, why don't pragmatic and prudential considerations count as serious arguments? If same-sex marriage will benefit the individuals involved, any children they're raising, and their communities, all without plausibly harming marriage or any existing marriages, does this not matter as against a claim that a conclusory principle stands in the way? All of these claims are contested, of course, but the point is that we should be debating them.

And if polygamous/polyamorous marriage raises a host of different questions about harm, practical administration, and about historical experience, none of which depend necessarily on how we've resolved the debate about gay marriage, why must gay-marriage advocates definitively address it?

The way we frame the debate about gay marriage matters not just for the ultimate outcome, but for the shape and attributes of that outcome. Those of us who have been making a conservative case for gay marriage do so, fundamentally, because we believe in marriage. We do not want to see it harmed and we do not think that this reform means every proposed reform of marriage, including potentially harmful ones, must be accepted. Ironically, George and the Gang of 300 manifesto-writers agree that gay marriage means anything goes. I don't expect that George will hold to that position when gay marriage is actually recognized (indeed, he'll strongly resist the supposed slippery slope to polygamy then), but the damage he is doing now by making a tactical alliance with them and arguing the line cannot be held will not have been helpful.

UPDATE: Maggie Gallagher has now added her views to this discussion, in a post at Marriagedebate. I have significant disagreements with Maggie about gay marriage and how radical a change it would be, see here, and therefore with some of the points she makes now. I also think she overstates the influence of the manifesto writers on actual national family policy. They have an entire agenda on family law (not just gay marriage), and a host of other matters, but I see very little constituency for many of the changes they advocate and very little legislative or judicial movement in their direction. The forgotten causes of academics and activists fill whole graveyards of ideas.

However, I am pleased to have Maggie acknowledge that if procreation is the principle that keeps us from SSM it is not a very good principle for keeping us from polygamy. Oddly, the constant emphasis of some gay marriage opponents on procreation as the be-all-and-end-all of marriage opens the door to arguments for polygamy. It is this reductionist opposition to gay marriage that risks the logical slippery slope.

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Startling Confession by the ABA:

As regular readers of this blog know, the ABA has just passed a controversial new "diversity" standard, Standard 211, that seems to require law schools to act illegally and immorally by engaging in racial preferences to admit minority students who, in many (statistically predictable) cases, will have a slim chance of making it through law school and passing the bar exam. More on that in a future post.

For now, I want to focus on the old Standard 211, which I have pasted below "the fold". Unlike new Standard 211, which specifically empowers the ABA accreditation committee to consider the results of a law school's diversity efforts, the old standard was a purely efforts-based standard. As you can see, below, neither the standard itself nor its (binding) interpretations empowered the committe to consider results. Indeed, in case there was any ambiguity in this regard, the old Standard is entitled "EQUAL OPPORTUNITY EFFORT," whereas the new Standard is entitled "EQUAL OPPORTUNITY AND DIVERSITY."

Nevertheless, the ABA Council of the Section on Legal Education has just circulated a "commentary" on the new Standard, defending it from its critics (including, I assume, me). One argument made defending the new results-based standard is that, in practice, it does nothing new:

The Council also recognized that the results achieved are very relevant, though not dispositive, in evaluating commitment. Thus the second sentence of Interpretation 211-3 provides: "The determination of a law school's satisfaction of such obligations is based on the totality of the law school's actions and the results achieved." The Council understands that this sentence is consistent with the current practice of the Accreditation Committee, which does consider the diversity results that a school has achieved as a factor in evaluating the school's compliance with current Standard 211.
I agree with the Council that the Accreditation committee has been informally using a results-based standard in recent years, especially since the Grutter opinion came out. But I would also note that there is nothing in old Standard 211 that suggests that a law school will be judged based on results, as opposed to efforts.

Indeed, old Interpretation 211-1 lists a variety of ways that a law school could demonstrate to the satisfaction of the ABA that it has a commitment to equal opportunity (note: not diversity). Racial preferences is not among them, and indeed, the use of racial preferences is literally contrary to "equal opportunity." If anything, as written the old Standard implies that attempting to achieve specific results by lowering admissions standards for minority students would be disfavored (not, I acknowledge, that anyone believed that the ABA would punish a law school for using preferences).

The ABA's confession that it was applying an unwritten results-based standard is startling for at least two reasons. First, as noted in the case linked in co-blogger Jon's post about the Cooley Law School case, the ABA, as a quasi-state actor in its accreditation process, has constitutional due process obligations. It strikes me as inconistent with due process to have one "published" version of accreditation standards, and another version applied informally and without written authority by accreditation officials.

The other reason, even more important reason this is a startling confession is that the Department of Education is currently considering, against the objections of the American Law Deans Association and several groups that oppose racial preferences, whether to renew the ABA’s role as the official accrediting agency of law schools for federal law purposes, such as the availability of student loans to students at those schools. 34 C.F.R. Sec. 602.18 states that the Secretary of Education may only recognize an accrediting agency such as the ABA if, among other things, the agency "[b]ases decisions regarding accreditation and preaccreditation on the agency’s published standards."

In addition to the objections of the groups noted above, the Department of Education should consider the fact that the ABA is, by its own tacit admission, in gross violation of DOE regulations in enforcing an accreditation standard that was never put in writing; indeed, the purpose of new Standard 211 is to "codify" what the ABA has already been illegally doing!

You can read old Standard 211 below.

Related Posts (on one page):

  1. Interesting News from the ABA re Accreditation:
  2. Startling Confession by the ABA:
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Jack Balkin on the Eavesdropping Opinion:

Much worth reading, here. Key excerpts (some paragraph breaks added):

Although the court reaches the right result -- that the program is illegal, much of the opinion is disappointing, and I would even suggest, a bit confused. The first amendment holding is novel although plausible, but it is not supported by very good arguments. The basic idea is that when the government spys on its citizens, they are likely to avoid making controversial statements or join controversial organizations. Fair enough. But the problem is that the program was secret. It was the disclosure of the program that created the chilling effect. And even if we put that problem to one side, it is not clear whether a program that is otherwise legal under the Fourth Amendment and federal law ipso facto violates the First Amendment simply because people are chilled by its existence.

Second, the court does not really deal with a number of very good arguments for why the NSA program might be within the Fourth Amendment. The best argument for the court's position is that if the program reaches United States persons who are not agents of a foreign power, like the plaintiffs, it may be unconstitutional. But the court does not make that distinction.

Finally, the court seems to be very weak in its reasoning about the separation of powers. It does not even cite the recent Hamdan decision, which is probably the most relevant decision, resting its arguments primarily on the 2004 Hamdi decision. It also seems confused about what constitutes a violation of separation of powers. If the AUMF did in fact amend FISA, the government has a very strong argument that it falls into category one -- maximum executive power -- and not category three -- minimum executive power -- under the Youngstown analysis. The court does not seem to deal with the best version of the government's arguments. I think those arguments fail, for reasons that Marty and I, among others, have elaborated. But I must say that the court's analysis is not very strong. It depends heavily on the fact that the President has violated the First and Fourth Amendments, which, I think, are the weakest arguments against the program.

If those arguments go away, the separation of powers argument it offers is not very good, although in fact there are very good arguments for why the program does in fact violate the separation of powers, as well as FISA itself. The fact that the court does not bother to meet the government's claim that FISA is unconstitutional is also quite unwise, in my view. Indeed, I'm mystified by the court's refusal to draw on well publicized debates over the legality of the program between Justice Department officials and legal academics and commentators that reheases the best arguments pro and con, or, for that matter, the reasoning of the Supreme Court's Hamdan decision, handed down this June, which is, in my estimation, precisely on point.

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The NSA Eavesdropping Opinion, the FISA Claims, and the Separation of Powers / Inherent Power Claims:

As Orin pointed out last December, the strongest argument -- quite possibly an ultimately correct argument -- against the NSA program is that it violates not the Constitution, but the Foreign Intelligence Surveillance Act, which bans "engag[ing] in electronic surveillance under color of law except as authorized by statute." The government has responded that (1) the Authorization for the Use of Military Force implicitly authorizes certain warrantless surveillance, and that (2) the President in any case has inherent constitutional powers, powers that Congress can't limit (and that the Fourth Amendment doesn't limit, for reasons noted below, to engage in national security surveillance). Orin's post (a must-read) suggests that the government's responses are on balance not persuasive, and that the program probably violates FISA.

So it's possible that the court got the result right -- in my view, not on the First and Fourth Arguments, but on the FISA point. Nonetheless, if the court's FISA analysis is mistaken, then the other arguments (the separation of powers and the inherent power arguments) don't provide any independent basis for its decision. The separation of powers point rests on the assertion that "The President, undisputedly, has violated the provisions of FISA"; and the inherent power argument, which is long on rhetoric but short on detailed analysis, rests on the assertion that "Not only FISA, but the Constitution itself has been violated by the [program]." If the First and Fourth Amendment analyses are mistaken (as I think they are), and if the FISA analysis is mistaken, then the other analyses provide no independent foundation for striking down the program.

So, I think (as Orin's post suggested), the real foundation of this decision is FISA. If Congress prohibited this sort of eavesdropping via FISA, and didn't carve out an exception under the AUMF, then the program is indeed illegal (since I don't think the President's inherent power argument much works here, even as to violations of a statute). If FISA doesn't apply, though, then the program is permissible, because there's no First or Fourth Amendment violation here.

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The NSA Eavesdropping Opinion and the First Amendment:

The court also holds that the program violates the First Amendment, because it deters some people from communicating with the plaintiffs, given the risk that the communications will be overheard. Note, though, that this judgment rests entirely on the court's earlier conclusion (which is in my view not fully defended) that the eavesdropping violates the Fourth Amendment.

All publicly known eavesdropping -- or for that matter the prospect of possible searches of tangible papers -- poses the risk that some communications will be deterred. Eavesdropping conducted pursuant to properly issued warrants (ones that can be based on mere probable cause, rather than any solid proof that the eavesdropping will yield incriminating evidence) poses that risk. Eavesdropping conducted purusant to properly issued FISA orders, which don't even require probable cause that the speech collected will be incriminating (only probable cause that the targeted person is an agent of a foreign power), poses that risk. Constitutionally permissible border searches of papers pose that risk.

But there's no need to show in any of these cases (as the court in this case suggested) that the search is based on "a compelling governmental interest; and that the means chosen to further that interest are the least restrictive of freedom of belief and association that could be chosen." At most, the Fourth Amendment rules (which generally require only a warrant and probable cause and not a compelling interest and narrow tailoring, sometimes don't even require a warrant, and sometimes don't even require either a warrant or probable cause) are made somewhat more demanding by the First Amendment (see, e.g., Lo-Ji Sales, Inc. v. New York), though even that doctrine is quite limited. And in a case like this one, I know of no Supreme Court cases suggesting that a search that's valid under the standard Fourth Amendment rules would violate the First Amendment.

So the court's First Amendment conclusion, if it's correct, would be correct only if the court is right to say that the program violates the Fourth Amendment, and that a violation of the Fourth Amendment in such a situation yields a violation of the First Amendment. Perhaps the court is correct here, but it's important to recognize that the First Amendment holding is derivative of the Fourth Amendment holding, rather than being a fully independent basis for the decision.

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Comments on the PGA Championship.--

On Tuesday, I went out to the Chicago suburbs to watch the pro golfers playing a practice round for this week’s 4-day PGA Championship. The first of four rounds is underway today. The course is Medinah #3, which has hosted several major championships before. The course had more hills and was more interesting than I expected, though it still didn’t strike me as one of the country’s very best. I also favor seaside links courses (without trees), rather than parkland courses with lots of trees, such as Medinah.

Although Medinah is the longest course in major championship history, I expect that scores will be fairly low. The fairways are narrow, but the first cut of rough (about 2 yards wide) is cut so short that the lies should be perfect in that first rough. And the main rough, though very dense, is not as long as I expected it to be. From tee to green, I don’t think that the rough will be nearly as serious a hazard as the commentators think it will. There will be mostly good lies in the rough; the trees are a more serious hazard and, even with the trees, there are few branches low enough to interfere with a player's backswing. So far a lot of players who are missing the fairways are still hitting the greens in regulation. Around the greens, the rough is long enough that it will be a little more problem to judge those delicate shots to the pin. The condition of the course is superb (apparently unlike the conditioning when the last PGA championship was held there in 1999). From the outside, the clubhouse looked huge and strange (it echoes Arabic motifs, since the club was founded by the Shriners). Because my father was a Shriner and a terrific golfer (captain of the team in college at Northwestern), he played the course many times, but I had never seen it.

Tuesdays are usually the best day to watch practice rounds because play is so slow on Wednesdays that some players don’t even bother to play the course on Wednesdays. Both Tiger Woods and Phil Mickelson skipped the course itself on Wednesday. On Tuesday, as usual for Tiger, Woods went out early in the morning. He skipped the holes 14-17 and finished before 10am, despite the very slow play. In the holes I watched, after hitting to the greens, Tiger generally didn’t bother to putt to the hole, but rather dropped balls in the rough and chipped to the places on the green where he thought that the pins were likely to be during the tournament itself. Because the greens are so small and the rough around the green is thick, I think that players wanted to practice chipping. When Phil Mickelson reached the green, he would usually take a quick putt toward the hole. Then one of his coaches, the short-game guru Dave Pelz, would stick little flags in the ground where he thought pins would be, and Phil would practice lag putting to those little flags. Some other players putted to white discs that their caddies dropped on the greens.

I followed John Daly for a while; he hit some great shots, as well as some bad ones. Off the tee, he was long and accurate with either a driver or a 3-wood. He was having trouble hitting greens with his irons and put his first tee shot on 17 in the water. Daly’s foursome was clearly frustrated by having to wait for the group ahead, which swelled to a fivesome at one point (Davis Love, Chris DiMarco, Jeff Sluman, Scott Verplank, and Geoff Ogilvy). That might explain a comment I overheard Pat Perez (playing with Daly) say, “Imagine if one of us tried to do that, they’d go crazy.” I also overheard caddies talking when they were waiting in the fairway for their players to hit; they talked about mortgages, health insurance coverage, children, ex-wives, and each other’s health problems.

Very few players signed autographs on the course, either putting their heads down between holes to avoid eye contact or saying that they would sign after their rounds were over (which I saw some of them doing later). One exception to avoiding on-course autographs was John Daly, who would grab a hat or banner (as he walked briskly) and sign it, tossing it back into the small crowd; in that way he signed about 3-4 items between each hole.

Davis Love was really struggling on the course. He is a likely discretionary captain’s pick for one of the last two spots on the US Ryder Cup team, which will be announced on Monday. Despite his experience, nothing I saw would suggest that he would be a smart pick for the team. [UPDATE: So much for my judgment! After 12 holes, Davis Love is tied for first at 6 under par.]

I watched about 15 players hitting balls on the range on Tuesday. I thought that two stood out, hitting consistently pure iron shots: Brett Quigley and Luke Donald. Donald, an Englishman who went to Northwestern, is in second place as I write this, but Quigley has yet to tee off.

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The NSA Eavesdropping Opinion and the Fourth Amendment:

The district court, in a three-page analysis — mostly consisting of block quotes from opinions in the Supreme Court's United States v. United States District Court (Keith) case — concludes that the program is "obviously in violation of the Fourth Amendment." The opinion, however, doesn't even mention the arguments that

  1. the Court has expressly held that the government has broad authority to engage in warrantless, probable-cause-less searches of goods and people crossing the border, and that the same authority should apply to information crossing the border (as some lower courts have indeed held as to information crossing the border on computer disks), and

  2. Keith itself expressly left open the question whether the Fourth Amendment rules applicable to purely domestic intelligence surveillance even applies to surveillance aimed at ferreting out the activities of "foreign power[s]" (a term that could encompass foreign nongovernmental organizations as well as foreign governments), as oppose to activities of domestic organizations (the matter that the Keith Court stressed was at issue in that case).

For more on these two arguments, see Orin's post from last December, which I also excerpt below (but click on the link to the original post to get links to earlier cases):

On the whole, I think there are some pretty decent arguments that this program did not violate the Fourth Amendment under existing precedent. There are a bunch of different arguments here, but let me focus on two: the border search exception and a national security exception. Neither is a slam dunk, by any means, but each are plausible arguments left open by the cases.

The border search exception permits searches at the border of the United States "or its functional equivalent." United States v. Montoya De Hernandez, 473 U.S. 531, 538 (1985). The idea here is that the United States as a sovereign has a right to inspect stuff entering or exiting the country as a way of protecting its sovereign interests, and that the Fourth Amendment permits such searches. Courts have applied the border search exception in cases of PCs and computer hard drives; if you bring a computer into or out of the United States, the government can search your computer for contraband or other prohibited items at the airport or wherever you are entering or leaving the country. See, e.g., United States v. Ickes, 393 F.3d 501 (4th Cir. 2005) (Wilkinson, J.).

As I understand it, all of the monitoring involved in the NSA program involved international calls (and international e-mails). That is, the NSA was intercepting communications in the U.S., but only communications going outside the U.S. or coming from abroad. I'm not aware of any cases applying the border search exception to raw data, as compared to the search of a physical device that stores data, so this is untested ground. At the same time, I don't know of a rationale in the caselaw for treating data differently than physical storage devices. The case law on the border search exception is phrased in pretty broad language, so it seems at least plausible that a border search exception could apply to monitoring at an ISP or telephone provider as the "functional equivalent of the border," much like airports are the functional equivalent of the border in the case of international airline travel. [UPDATE: A number of people have contacted me or left comments expressing skepticism about this argument. In response, let me point out the most persuasive case on point: United States v. Ramsey, holding that the border search exception applies to all international postal mail, permitting all international postal mail to be searched. Again, this isn't a slam dunk, but I think a plausible argument — and with dicta that seems to say that mode of transportation is not relevant.]

The government would have a second argument in case a court doesn't accept the border search exception: the open question of whether there is a national security exception to the Fourth Amendment that permits the government to conduct searches and surveillance for foreign intelligence surveillance. Footnote 23 of Katz v. United States left this open, and Justice White's conccurrence in Katz expanded on this point:

Wiretapping to protect the security of the Nation has been authorized by successive Presidents. The present Administration would apparently save national security cases from restrictions against wiretapping. We should not require the warrant procedure and the magistrate's judgment if the President of the United States or his chief legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable.

The Supreme Court also left this question open in the so-called "Keith" case, United States v. United States District Court, in 1972. Justice Powell's opinion in the Keith case concluded that there was no national security exception to the Fourth Amendment for evidence collection involving domestic organizations, but expressly held open the possibility that such an exception existed for foreign intelligence collection:

Further, the instant case requires no judgment on the scope of the President's surveillance power with respect to the activities of foreign powers, within or without this country. The Attorney General's affidavit in this case states that the surveillances were "deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of Government." There is no evidence of any involvement, directly or indirectly, of a foreign power.

The administration presumably takes the position that the President does have such power in cases involving foreign evidence collection, and that the NSA surveillance is such a case. The Supreme Court has never resolved the question, so it's an open constitutional issue. Nonetheless, between the border search exception and the open possibility of a national security exception, there are pretty decent arguments that the monitoring did not violate the Fourth Amendment. Maybe persuasive, maybe not, but certainly open and fair arguments under the case law.

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Federal District Court Decision Striking Down NSA Eavesdropping Program,

here. Naturally, expect a quick appeal.

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WSJ on Espionage Act Case:

The Wall Street Journal editorializes on the Espionage Act prosecutions of two former AIPAC employees.

The prosecution of government "leaks" that began with the Valerie Plame case has already sent one reporter to jail and limited the ability of all journalists to protect their sources. But now things are getting worse, as the Justice Department is prosecuting a pair of lobbyists for doing what journalists do every day.

While decrying the prosecution, the WSJ avoids beatifying the press for its actions.

We realize that few of our readers have much sympathy for the press these days, and with ample cause. As we recently wrote after the Swift terror financing disclosure by the New York Times, we think the press sometimes has an obligation not to publish everything it knows. By revealing security secrets for no apparent reason other than its own partisan and ideological agenda, the Times has invited a government backlash against the entire press corps.

But these Espionage Act prosecutions are dangerous to more than the media. The statute is notably vague, meaning it is ripe for selective prosecution and misuse against political or partisan enemies. On any given day in Washington, numerous classified details are whispered across lunch tables and many of them make it into print or on the air. Many of these "secrets" aren't truly vital to national security but have been classified for political reasons, or because information is power and many bureaucrats like to control the flow of information. Is Justice going to investigate and prosecute every one of those leaks? The potential for political abuse is obvious.

And in the end, the WSJ picks up on the Washington Post's Espionage Act as U.S. Official Secrets Act" meme.

More broadly, this use of the Espionage Act amounts to the imposition, by executive fiat, of a U.S. version of Britain's Official Secrets Act. That law criminalizes the publication--and even the re-publication--of certain kinds of information. This kind of "prior restraint" on the press is alien to the American legal tradition of First Amendment rights. If Attorney General Alberto Gonzales thinks we need an Official Secrets Act, then he ought to say so and ask Congress to debate and pass it, rather than let his prosecutors impose one by the back door.

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Should We Try To Increase Voter Turnout?:

I have always wondered why so many people are concerned about voter turnout and and so few are concerned about the fact that most of the voters know little or nothing about what they're voting about.

The state of Arizona has established a $1 million dollar lottery for the purpose of trying to increase voter turnout. Each voter will, in effect get a lottery ticket that gives him or her a chance of winning. I don't know whether the Arizona plan will increase turnout or not. In the last off-year election in 2002, some 1.225 million Arizonans voted. If the same number turns out in 2006, this means that the expected winnings of each voter will be about $1 (1/1.225 million or possibly 2/1.225 million if there is a separate jackpot for primaries). Doesn't sound like much of an incentive to me, though perhaps some people might come just because they enjoy participating in lotteries.

The more important question, to my mind, is why we should care about turnout levels at all. Obviously, a nation where only 1% of the people vote is likely to have serious problems because the voting population will be highly unrepresentative of the public as a whole. However, in the real world, we are not talking about the difference between 1% and 80% turnout, but about the difference between, say, 50% and 70% at most. In theory, even an electorate with 50-60% turnout (roughly the US average in recent presidential elections) might be highly unrepresentative. However, numerous studies show that, at least in the US, the partisan and ideological affiliations of nonvoters are roughly similar to those of voters (see, e.g., Democratic Party election consultant Ruy Teixeira's important book, The Disappearing American Voter (1992)). The 2004 election, which saw an increase in turnout from about 51% in 2000 to 59%, is not an exception to this rule. To make a long story that I cannot fully document here short, the Republican turnout operation essentially offset the Democratic one and vice versa.

I follow the academic literature in this field fairly carefully and I have yet to come across a study that provides any evidence that countries such as Australia and Belgium, which have turnout rates over 80% as a result of compulsory voting laws, have better public policy outcomes or stronger democratic control of government as a result. On the other hand, one of the few advanced nations with turnout levels lower than the US is Switzerland, which has turnout of about 33-40 percent in its national elections (comparable to US off-year elections and much lower than US turnout in presidential election years). Switzerland, of course, is usually considered one of the best-governed nations in the world. I am NOT claiming that this success was caused by low voter turnout, but low turnout certainly has not inhibited it.

Efforts to raise turnout cost money, including but not limited to Arizona's $1 million. If increasing turnout within the parameters that are relevant in the real world does not produce any significant benefit to society and does not change electoral outcomes, those resources might be better expended elsewhere.

Moreover, the non-problem of low turnout diverts scarce media and academic attention away from what I have repeatedly argued is the far more significant problem of widespread political ignorance (see, e.g., here). I don't worry about whether turnout in this year's election will be 40% or 50%; I do worry that most of the voters are likely to be ignorant of very basic facts about many of the candidates and issues.

UPDATE: My most recent article on the harm caused by widespread political ignorance can be found here.

UPDATE #2: Some commenters claim that nonvoters are disproportionately likely to be Democrats. This is a common claim in the public discourse, but it is contradicted by every serious study conducted by political scientists over the last 30 years or more. The Teixeira book I mention in the original post is just one of many such analyses. I should also note that the claim seems to have been falsified by the 2004 election, where there was a major increase in turnout (from 51 to 59%), but the Republican vote increased just as much as the Democratic vote, or even slightly more. If the (nonacademic) conventional wisdom was correct, we should expect a large increase in turnout (some 15% in this case) to benefit the Democrats, yet it strikingly failed to do so. Regular readers of this blog know that I don't have any great love for today's Republican Party, but it is simply not true that they stay in power because a disproportionate number of Democratic-leaning voters fail to turn out.

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Interesting Posts at BlackProf Recently: Check out Chris Bracey's A Human Tragedy, In Five Acts, and Devon Carbado's UCLA: The Racial Birth of a New Ivy League Law School?.

Wednesday, August 16, 2006

More Evidence of Israeli Government Incompetence:

Ha'aretz: "When Defense Minister Amir Peretz took office four months ago, Hezbollah and the missile threat were at the bottom of the priority list senior IDF officers presented him, Peretz says. In private conversations over the past few days, Peretz said officers did not tell him there was a strategic threat to Israel, and did not present him with all relevant information about the missile threat."

While I certainly didn't have "all relevant information" about the missile threat, just from glancing at Ha'aretz more or less daily I was aware of that there was a strategic threat to Israel from Party of God missiles. Indeed, it was difficult to read any article about a possible Israeli or American military strike on Iranian nuclear sites that did not mention that the POG had thousands of missiles, including some long-ranger missiles, aimed at Israel that Iran could potentially use to retaliate. If Peretz was indeed ignorant of this threat, or at least sufficiently unconcerned about it never to ask for a briefing from the military about it, even if they didn't volunteer information, he should resign in disgrace. I read today that Peretz's approval rating is down to 28%; many Israelis seem to have concluded that as a defense minister, Peretz would make a great labor union boss (which is what he was until recently).

UPDATE: Noah Pollack argues that Israel and the U.S. may have achieved their main objective in the Lebanon campaign, to neutralize the missile threat to Israel in case of a U.S. attack on Iran.

Related Posts (on one page):

  1. More Evidence of Israeli Government Incompetence:
  2. Incompetent Ehud Olmert?:
A Form of Discrimination I Hadn't Heard Much About:

An acquaintance of mine (whom I've always found quite reliable) reports that when she sought out an egg donor, one candidate donor — a woman who was past the age of majority, and in fact in graduate school — was disqualified by the agency involved because she was ... a virgin. The theory, I take it, is that somehow the lack of sexual experience made it harder to maturely make the egg donation decision, though that sounds pretty odd to me. (The acquaintance stressed that the disqualification was the agency's choice, not her own.)

Perhaps there was something lost in the translation, but, as I said, my source was quite credible. Nothing illegal here, just interesting.

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Espionage Act Prosecution Updates:

The editorial page of the Washington Post is concerned about last week's Espionage Act ruling.

The United States has never had an Official Secrets Act -- a statute forbidding private citizens from disclosing and discussing information the government wants to keep quiet. Last week it got one. The change didn't come from Congress but from a federal judge in Virginia. At the urging of the Bush administration, Judge T.S. Ellis discovered it in an old and vague law that prohibits disclosure of information related to the national defense.
The editorial stresses that federal prosecutors have not accused the defendants of spying -- apparently the facts alleged could not support such a charge -- and are instead seeking convictions on the grounds the defendants knowingly obtained and recommunicated classified information.

In a related development, Judge Ellis issued a ruling last Friday that may make it more difficult for the federal government to obtain convictions in this case. Specifically, Judge Ellis denied the government's motion to offer evidence that a document described as "not classified" in the indictment was, in fact, classified. Allowing such evidence to be admitted would constructively amend the indictment and constitute per se error, Judge Ellis ruled. This is potentially significant because, according to the government's allegations, this is the only document that one of the defendants specifically requested from a government official. The Secrecy News blog has more here.

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Bat-Man:

People with echolocation ability (thanks to GeekPress for the pointer). Wow.

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Thomas M. Cooley Law School v. ABA:

Today the U.S. Court of Appeals for the Sixth Circuit affirmed a district court's rejection of the Thomas M. Cooley Law School's due process claims agains the American Bar Association. Cooley claimed tha the ABA violated its due process in failing to accredit two satellite programs operated by the law school, and by imposing sanctions on Cooley for operating the programs without prior ABA approval. Judge Gibbons wrote the opinion for the panel. Judge Batchelder wrote a separate concurring opinion. Both are available here.

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The National Lawyers Guild - Then and Now:

On The Right Coast, Gail Heriot reflects on the past and present of the National Lawyers Guild. The NLG's history is also detailed here.

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Tuesday, August 15, 2006

Public Service Announcement for Professors and Students Using the Brest, Levinson, Balkin, Amar, & Siegel Constitutional Law Textbook:

This is a public service announcement for those constitutional law professors and students who have had the same problem I am now having with the the excellent textbook by Brest, Levinson, Balkin, Amar, & Siegel - Processes of Constitutional Decisionmaking:

The most recent version of the book (the 2006 5th editions) omits several major recent decisions on federalism, which are also not available in the published supplement. Fortunately, the textbook authors have recently made edited versions of these cases (taken from the now discontinued 2005 Supplement to the book) available on their website here.

Yale Law School professor(and textbook coauthor) Jack Balkin has asked me to make this information available to VC readers, because many professors and students were apparently confused about this, just as I was, and I know that many people fitting that description read this blog.

Thanks to Jack and co-author Sandy Levinson for helping me address this issue quickly and efficiently.

I Told You So! Lessons of the London Terror Plots: I've been reading lots of commentary about the recently-foiled terrorist attacks in the UK, and I have found that most of the commentary says the same thing: I told you so! The big lesson everyone is drawing: I was right!

  Take the issue of surveillance. Supporters of controversial surveillance programs think that the episode proved the importance of controversial surveillance programs; after all, there was massive surveillance of the plotters, and that surveillance helped bust the plot. Opponents of increased surveillance think that the episode proved that they are right: You see, there is no sign that this particular surveillance came from controversial programs, and some of the key breaks in the case were from human intelligence not signals intelligence.

  Or take the topic of airline security measures. Opponents of airline security measures say that the episode shows that airline security measures are silly; you see, the attack was planned to go around the measures. Proponents of airline security measures say that the episode shows that airline security measures work; you see, the measures stopped the terrorists from attacking as they did on 9/11, and made them have to plan on going great lengths to try another approach.

  The same goes for the war in Iraq. Opponents of the war in Iraq say that the London plots show that the war in Iraq is a mistake; the war has only created more wannabe terrorists. Proponents of the war in Iraq say that the London plots show how important the war in Iraq is; it reinforces the seriousness of the war on terror, and the need for the United States to take major steps to bring democracy and Western values to the Middle East. (My apologies that I don't have links for these; I have seen the arguments, but right now can't find good sources. If others haven't heard the same arguments, please let me know.)

The take-away lesson: Whatever you do, don't use the London plots as an opportunity to rethink any of your preexisting assumptions about the war on terror, or the role of surveillance, or airline security measures. Remember, you were right all along! And the other guys are still too dense to see that they're wrong.
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Colorado Shakespeare Festival 2006:

Do you want to be happy, or do you want to think deep thoughts? At this summer’s Colorado Shakespeare Festival, at the University of Colorado at Boulder, you can do both, although not on the same night.

If you want to laugh, then see As You Like It, a comedy for the CSF seems to have a particular talent. The previous CSF production of As You Like It, in 2001, was sparkling and wonderful, and so is this version, but in a very different way.

This time around, As You Like It is turned into a “screwball comedy.” The screwball comedy, which was especially popular in the late 1930s and early 1940s, was based on the comic juxtaposition of opposites – rich vs. poor, urban vs. rural, and male versus female. In As You Like It, the heroes, having been betrayed by their older relatives, flee to the Forest of Arden. In the Boulder production, the forest is the rural south of the 1930s.

The male hero of the screwball comedy is often good-hearted, simple, and naïve, while the female is a wily, deceitful fast-talker. The improbable film plots succeed on the strength of excellent leads and their witty dialogue.

Director Gavin Cameron-Webb transforms As You Like It into screwball mode so seamlessly that one almost believes that the play was originally written screwball-style. Particularly excellent as sharp-tongued cynical dames are Rosalind’s cousin Celia (Elgin Kelly) and Phebe the hard-hearted country girl (Laura Montes)—two broads with broad gestures, wide swings in their voices, and comically expressive faces.

The males are well-played and solid, although none of them rises to, say, the heights of Gary Cooper in Mr. Deeds Goes to Town (1936).

The only really false note is struck by Duke Senior, as the hobo leader who is the exiled brother of Duke Frederick. He often played with a yo-yo during his speeches, but the action seemed contrived rather than zany.

Hobos with yo-yos notwithstanding, most of the other elements from the 1930s fit together smoothly: the wrestler with the Brooklyn accent who would be “loathe ta hoit 'im,” the singing telegram, the Woody Guthrie music, the square dance finale, and, especially, the characters at the urban costume party dressed as Flash Gordon, Ming the Merciless, Scarlett O’Hara, the Mummy, and other 1930s movie characters.

Another play involving an exiled brother, The Tempest, is also excellent, in its own dark and disturbing way. The story begins with Prospero and his young adult daughter Miranda, who for almost two decades have been exiled on a Mediterranean island by Prospero’s usurping brother, who took over the duchy of Milan. During the years on the island, Prospero has learned magic and acquired a collection of ethereal servants, led by Ariel. He also rules over a monstrous slave named Caliban.

Prospero discovers that a ship carrying his wicked brother, as well as the wicked king of Naples (who had helped the usurpation plot) are coming nearby; Prospero uses magic to cause a shipwreck, and most of the play involves several shipwrecked parties who wander the island.

The performances and staging evoke, at various times, Heart of Darkness, Lord of the Flies, The Hulk, and Lost—works which followed The Tempest in exploring the dark-hearted monster that is part of human nature—a monster sometimes revealed more vividly in the wilderness, but always present in “civilization” too.

Caliban is the overt monster—enslaved because he once attempted to rape Miranda, after she befriended and tutored him. The Neapolitan and Milanese rulers and courtiers are better-dressed than brutish Caliban, but even more monstrous, betraying families and each other.

Almost all the characters in the play undergo a transformation. The leading exceptions are Prospero’s beautiful daughter Miranda (the charming Tara McMullen) and her beloved, handsome Prince Ferdinand, who both remain guileless and pure.

The biggest transformation is Prospero’s. A Freudian avant la lettre, he re-enacts the central trauma of his life (the usurpation of his dukedom), and this time ensures a happy ending—defeating a pair of drunken, cruel sailors whom he has entrapped in a plot to usurp his little island kingdom. After exacting some revenge and teaching a few lessons to the shipwrecked characters, Prospero abjures magic, frees the spirit Ariel (thereby liberating his own spirit), emancipates Caliban, reconciles with his brother, and prepares to return to civilization.

Having grown up without knowing any human other than her father, Miranda sees the shipwrecked men, and exclaims “Oh brave new world, that hath such people in it!” Her naïve excitement evokes laughter from the audience, but the line also reminds us of the new word that has been created by the reconciliation of Prospero and his enemies (and also by the solution of other conflicts in the subplots), when reformed men stop acting like monsters.

Yet in the brave new world created by mercy, Prospero remains a rather dour fellow. After all, character is built over the years, and, although a person can change his intentions, changing one’s disposition is takes time.

Both of The Tempest and As You Like It are performed at the beautiful outdoor Mary Rippon Theatre at the University of Colorado, with a stage flanked by evergreens, and the night sky sometimes adding commentary to the show. The Tempest benefits most from the setting, as the sparse set blends into the outdoors to create scenes of magical otherworldiness.

As You Like It, ostensibly set in a forest, keeps so much attention on the characters’ madcap physicalizations that the play would work equally well indoors. The CSF finishes its season with performances every night this week, through Saturday night.

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Dissenting Without Opinion: It used to be common for U.S. Supreme Court Justices to dissent from opinions of the Court without writing or joining a separate dissenting opinion; the U.S. Reports simply would note that the Justice dissents. The practice is still common in some courts, but is quite rare for the modern U.S. Supreme Court.

  So here's the question: What is the most recent case in which a U.S. Supreme Court Justice dissented from a majority merits opinion of the Court without either filing or joining a dissenting opinion? The most recent case I know of is Minnesota v. Olson, from 1990, in which Rehnquist and Blackmun dissented without opinion, but I wonder if there are more recent examples.
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An Odd Argument:

Philosophy professor Thomas Nadelhoffer writes:

Last week U.S. Senator Rick Santorum suggested that the individuals who leaked information about our domestic and international surveillance programs were traitorous (see here). Moreover, he claimed that, "If leaking this information is traitorous, then publishing it is also complicit with that activity." Just to be clear, his first claim is that the act of leaking information about these surveillance programs amounted to treason--presumably because it involved divulging information that was supposed to be kept secret (i.e., outside the eyes and ears of the public and beyond the scope of the law). His second claim is that the news agencies that published the information that had been leaked were themselves complicit with treason--presumably because they made the public aware of the information that should have been kept secret in the first place.

For now I want to set aside the tricky issue of determining precisely what complicity involves (see here for an earlier discussion). Instead I simply want to suggest that if one takes Santorum's reasoning seriously, then it appears that he, too, is being complicit with treason. After all, if he had not brought the subject up yet again, the issue would be getting less public attention. Instead, Santorum's comments make the issue even more visible--which in turn means that the secrets that were improperly leaked and published are more visible. And, based on his own reasoning, bringing attention to the secrets is treasonous. Hence, Santorum is a traitor who by his own standards "must be pursued aggressively." Luckily, I just moved to Pennsylvania. So, I get to play a part in kicking him out of office in the fall.

Let's set aside the technical definition of "treason" for now (since Prof. Nadelhoffer isn't really focusing on it), and the difficult First Amendment question of whether publishing leaked secrets may be properly criminalized. Let's instead focus on Prof. Nadelhoffer's argument, "if one takes Santorum's reasoning seriously, then it appears that he, too, is being complicit with treason."

Isn't there a pretty clear and sensible distinction between (1) publishing for the first time material that may help terrorists evade surveillance, and (2) "mak[ing] the issue even more visible" by commenting on this publication?

The former takes a secret and publishes it to the world, to the point that many terrorists will see it for the first time (I realize many of them might have already suspected it, but there's suspecting and there's knowing, especially knowing that involves knowing some details). The latter takes an already published secret -- one that's been in lots of high-circulation newspapers, and has presumably been seen by most terrorists -- and at worst reminds people of it. Perhaps the program will thus be "more visible" to some people as a result of Santorum's reminder; but I suspect that it will be materially more visible to terrorists, who have strong personal reasons for paying attention to the program quite without Santorum's further comments. Or is there some philosophical argument supporting Prof. Nadelhoffer's position that I'm missing here?

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Prof. Ben Barres' Response:

Stanford Prof. Ben Barres e-mailed me about my earlier criticisms of his Nature article; I then e-mailed him back, and he responded further, kindly agreeing to let me post our exchange. Here are the relevant parts, starting with Prof. Barres' first e-mail (some paragraph breaks added):

I noticed your blog comments about your discomfort with my comment about verbal violence in my recent Nature commentary. If I may clarify, I wouild definitely not like to squash free discussion of ideas in any way. But I would like to draw a line between a faculty member conducting a free discussion as compared to a faculty member teaching that women are innately less good as fact in a classroom. For one thing it's not a fact, for another by teaching it as fact he makes it so. Studies have shown, for instance, that when teachers are told a group of their students are less intelligent, that they in fact perform less well. Teaching that a group of people is innately less good is extraordinarily damaging, as you would realize if you were personally subject to the harmful consequences of discrimination (no offense intended--but do you not think it is meaningful that pretty much the only people defending Larry Summers are white men?).

There is a faculty member here at Stanford, Bill Hurlbut, who is on the Presidential Ethics Committee that makes recommendations on embryonic stem cell research. He is deeply religious and I personally disagree with his views about banning stem cell research. However, I would defend his right to discuss this subject in the classroom. Whenever he teaches, he discusses a controversial topic fully by encouraging students to bring up and discuss and explore all possible viewpoints. The students never have any idea what his own personal viewpoint is and he discusses deeply all viewpoints in a balanced and fair way. This is very different than Professor Harvey Mansfield teaching in his classroom that women are innately inferior (I really don't care what he says outside of a classroom to his friends and relatives). That he has done this is documented in the Harvard Crimson. When faculty tell women they are less good, this causes them to do less well, demoralizes them, and tells them they are not welcome.

I responded that my original reading was based on Prof. Barres' focus on Summers' out-of-class statements (a matter I discussed in the quasi-footnote here), and Prof. Barres graciously replied that "I can see why you would have come to your original interpretation as there was some (unintended) ambiguity. It was not my intended meaning." But I also went on to probe a little further Prof. Barres' views about the in-class statements:

Also, I think there's much to a pedagogical style in which "The students never have any idea what [a teacher's] own personal viewpoint is and he discusses deeply all viewpoints in a balanced and fair way"; my sense, though, is that most universities generally don't require such a teaching style these days. Say that Steven Pinker, who may well be mistaken, as you argue, but who presumably has some nonridiculous reasons for thinking that his view is correct, teaches a class in which the question of sex differences comes up. He discusses deeply all viewpoints (subject perhaps to inevitable time constraints) in a balanced and fair way, but also mentions that his view is that the data points to biological sex differences being part of the reason for the disproportionate representation of men in the sciences. Would that too be intolerable and verbal violence?

Prof. Barres in turn responded:

Don't get me wrong. I am not saying that someone that does this should be put in jail. I am simply saying that to tell young people that they are innately inferior is deeply harmful. It is presently scientifically impossible to sort out with any degree of certainty the effects of social forces and prejudice, which are more than amply demonstrated to be large, from any possible innate effects. Therefore any faculty member who pronounces in a classroom that a whole group of people is wired to be inferior is causing great harm without having strong evidence to back his contention. If I were president of Harvard University and I had a faculty member that was doing this, I would ask them to feel free to have a full and balanced discussion on the topic, and to feel free to discuss any and all aspects of the question, but that they should stop short of pronouncing that science had demonstrated that a group of people was innately inferior (be it Jews, African-Americans, gay people, or women). It is hard for me to see any strong argument for not taking the course of action that is least harmful. Since tolerance and free speech are both important values, I don't see why one of them should always win out over the other, instead of their being an appropriate balance. (It bothers me deeply that there is an asymmetry here--overwhelminingly it is only white men who argue that its ok for faculty to categorize women or minorities as innately inferior ....).

I agree that people "should stop short of pronouncing that science had demonstrated that a group of people was innately inferior," unless they really have good evidence that science has so demonstrated. Certainly statements about such scientific questions should be no more confident than the data warrants.

Yet I'm also struck by Prof. Barres' reaction to my hypothetical, in which a professor merely discusses the data thoroughly in class and "also mentions that his view is that the data points to biological sex differences being part of the reason for" a phenomenon. To his credit, Prof. Barres does say "I am not saying that someone that does this should be put in jail." But he goes on to say, in a paragraph prompted by the same hypothetical, that "to tell young people that they are innately inferior is deeply harmful," and "[s]ince tolerance and free speech are both important values, I don't see why one of them should always win out over the other, instead of there being an appropriate balance."

In principle I agree that we should take "the course of action that is least harmful." But there is great harm, for the reasons I mentioned earlier in this thread, in stifling discussion of possible innate sex differences, and that stifling seems to me to be precisely what Prof. Barres' analysis calls for.

Before science can be said to "demonstrate" something "with any degree of certainty," scientists have to be able to discuss their tentative findings, both among themselves and with students (who will often end up being fellow scientists). If we're going to have a serious scientific debate, which will likely span decades and generations, we can't demand that one side say nothing (at least to students) about where it thinks the data points, while the other side is free to express its views.

If we're concerned about the possible harm that such conjectures may cause simply from their being heard, I think it's far better to educate students about probabilities, and to show that even if there are biological differences between men and women as populations, they don't tell us much about the qualities of a particular man or a particular woman. We shouldn't have a truncated scientific debate, for fear that some might be dispirited by one side's conjectures. Nor should we have some sort of secret debate that is allowed to go on only among professors because it's seen as too unpleasant or dangerous to be exposed to mere students.

This is especially so because, to his credit, Prof. Barres isn't even saying that the view that innate sex differences exist, and form a part of the explanation for the observed disproportions, is factually wrong. Rather, he says that "[i]t is presently scientifically impossible to sort out with any degree of certainty the effects of social forces and prejudice, which are more than amply demonstrated to be large, from any possible innate effects [by which I presume he means innate causes]."

Now it seems to me that if it impossible to do this sorting, then it's hard to accurately estimate "the effects of social forces and prejudice." Evidence of the presence of such social forces and prejudice can't really tell us much about the magnitude of the real-word effects of those forces, given that the observed effects might stem from other causes (and might do so to a "scientifically impossible to sort out" degree).

But in any event, science has not, I think, generally advanced by saying "it's presently scientifically impossible to sort out with any degree of certainty" X and Y, and thus abandoning the project of sorting them out, or of making conjectures at weaker levels of certainty. Rather, scientists have looked closely at evidence, made their best guesses, and over time improved their scientific tools and crafted theories that are helpful even if they lack the certainty that some might prefer. Likewise, while the impossibility of certainty should caution people against claiming certainty that the facts don't support, it shouldn't stop people from investigating the facts and reporting what they see as the directions in which the facts seem to point.

77 Comments
Comparative advantage and Media Criticism:

Many commenters have wondered why several of my co-bloggers and I have spent so much energy discussing the MSM's participation in the staging of photographs by the Party of God in Lebanon, as opposed to other issues regarding the war in Israel and Lebanon.

Speaking for myself, the most important reason is comparative advantage. I'm not a military strategist. I don't have sources in the Israeli government, or in any government for that matter. My Hebrew is adequate for basic conversational purposes but otherwise limited, my Arabic non-existent. Spending tons of bytes giving you my personal "insights" into the war would be a waste of my time and yours.

If you don't think that the question of whether elements of the media have been serving, sometimes intentionally, sometimes not, as Party of God propaganda agents, I'm not going to try to persuade you in this post. But if we (rightly)assume that it's a very important issue, it's one regarding which bloggers have a comparative advantage.

Picking out inaccurate, biased, fraudulent, or staged media (MSM or new media) reports is something that anyone with some patience and determination can do. For example, here's one that I've been meaning to write about. Last week, I noticed that Professor Juan Cole, perhaps the most prominent "Middle East expert" on the left, wrote in his blog on Wednesday: "When the victims' families and friends held a funeral procession on Tuesday, the Israelis hit them again, killing 6 more innocent civilians. (This terror tactic, where you kill people and then kill their funeral party later, as well, is commonly used by the Baathist insurgency in Iraq)."

A little digging shows the incident reported by Cole ("kill their funeral party") never actually happened. Very early reports claimed that Israel had bombed the funeral procession. Later reports corrected that. Indeed, the link in Cole's own post, now states that Israel bombed NEAR the funeral procession (half a kilometer away), which is quite different from intentionally bombing a funeral party (which, I would note, would not itself be objectionable if the mourners were armed Party of God terrorists). Reuters was even more emphatic that the funeral was not bombed or even targeted, correcting its own story to read that "At least two rockets hit Ghaziyeh during the funeral, though not in the immediate vicinity, a Reuters journalist reported." Other reports confirm that the funeral processoin was not hit, and that Israel was apparently targeting the home of a Party of God poobah.

I am fairly confident that Cole is aware that the early reports were corrected, and that his post is inaccurate. The reason is that I emailed him (anonymously) at two separate email addresses on two separate days to inform him. First, on the day he made his post, I provided a link to the corrected Reuters story, which appeared just hours after the initial report. A few days later, I sent him another email, with a link to both the Reuters story and the story he himself cited, pointing out that neither of them supported what he wrote. This did not lead him to correct his report, even though it had been the lead entry on his blog for an entire day.

So, while I can't tell you what's on Ehud Olmert's mind, or predict the ultimate outcome of Israel's military campaign in Lebanon, or translate Arabic news reports to you, I can report to you that Professor Juan Cole has published some very serious misinformation on his blog, in which he accused the Israeli government of engaging in a horrible "terror tactic" of intentionally bombing a civilian funeral procession, and failed to correct it after the inaccuracy was called to his attention twice via email; in the unlikely event he read neither email, and no one else informed him of his error, he certainly didn't bother to check himself to see whether the initial reports he saw were validated [anyone with a modicum of objectivity regarding Israel should have been suspicious of claims that it was intentionally targeting a civilian funeral party]. Given that Cole, as I said, is considered something of a Middle East "guru" by many on the left, and is a frequent guest on NPR and other media outlets, that seems like useful information to have.

Heather MacDonald's Irreligious Conservative Cri de Coeur:

In The American Conservative. An excerpt (one paragraph break added):

[Conservative atheists and agnostics] find themselves mystified by the religiosity of the rhetoric that seems to define so much of conservatism today. Our Republican president says that he bases “a lot of [his] foreign policy decisions” on his belief in “the Almighty” and in the Almighty’s “great gifts” to mankind.

What is one to make of such a statement? According to believers, the Almighty’s actions are only intermittently scrutable; using them as a guide for policy, then, would seem reckless. True, when a potential tragedy is averted, believers decipher God’s beneficent intervention with ease. The father of Elizabeth Smart, the Salt Lake City girl abducted from her home in 2002, thanked God for answering the public’s prayers for her safe return. When nine miners were pulled unharmed from a collapsed Pennsylvania mineshaft in 2002, a representative placard read: “Thank you God, 9 for 9.” ...

But why did the prayers for five-year-old Samantha Runnion go unheeded when she was taken from her Southern California home in 2002 and later sexually assaulted and asphyxiated? If you ask a believer, you will be told that the human mind cannot fathom God’s ways. It would seem as if God benefits from double standards of a kind that would make even affirmative action look just. When 12 miners were killed in a West Virginia mine explosion in January 2006, no one posted a sign saying: “For God’s sake, please explain: Why 1 for 13?”

103 Comments

Monday, August 14, 2006

Celebrate Diversity with Hezbollah:

Denver blogger Joshua Sharf (View from a Heights) notes a Denver Post report of an anti-Israel rally in Denver last Saturday: "Mixed messages ranging from steadfast nonviolence to support for Hezbollah 'show the diversity' of a new organization called the Front Range Coalition for Justice and Peace in the Middle East, said Imam Ibrahim Kazerooni, a leader of interfaith efforts at St. John's Cathedral."

Sharf writes:

I hadn't realized that tolerance for, indeed applause for, Ahmedinejad's willing executioners was included in the definition of "interfaith efforts."

...A well-organized rally would have had marshals controlling the message a little bit. The quote to the paper would have been about how his "movement" had no place for the sort of hatred that Nasrallah represents, blah blah blah. But Kazerooni couldn't even bring himself to say that.

Kazerooni knows what Hezbollah and Nasrallah are. He knows perfectly well that Nasrallh, too, has said he's looking forward to the ingathering of the Jewish exiles, all the easier to kill them. He's also a professional at PR, so he knows how to stay on message when he wants to. And in this case, the message was, "we'll take all comers, even if they're experimenting with Zyklon B in their back yards."

He's not anti-war, he's just on the other side.

Kazerooni came to Colorado after fleeing persecution under Saddam Hussein, but it hard so respect his current tolerance a group that would impose its own tyranny on Lebanon.

33 Comments
No Charges for Pair Arrested in Ohio:

The two men arrested in Marietta, Ohio and accused aiding terrorism after they had purchased numerous cell phones and airport information was found in their car will not be charged after all, local prosecutors announced today.

Washington County Prosecutor James Schneider said he didn’t have enough evidence to present the felony terrorism charges to a grand jury. He said in a news release he needed more information to prove the charges beyond a reasonable doubt.

The charges will be dropped at a hearing Tuesday in Marietta Municipal Court and a $200,000 bond reduced to $1,000 each, Schneider said in a phone interview. . . .

“At this time we didn’t see a link that we could prove,” Schneider said, adding he was referring to both terrorism in general and any specific group.

But Schneider said the investigation is open and he could still present evidence to a grand jury to pursue terrorism-related charges.

The two men are still charged with a misdemeanor count of falsification accusing them of lying about why they bought the phones, Schneider said.

Schneider said his office and federal authorities don’t believe “the defendants pose an imminent threat at this time.”

An attorney for one of the men welcomed the announcement.

“We’re grateful the Washington County Prosecutor’s Office has been willing to keep an open mind and look at all the evidence and make their decisions based on the evidence,” said William Swor, a Michigan lawyer representing Ali Houssaiky of Dearborn, Mich.

Related Posts (on one page):

  1. No Charges for Pair Arrested in Ohio:
  2. Update on Ohio Arrests:
  3. Another Terror Plot Foiled?
  4. The Foiled Plots:
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Kos Readers Reactions to Wallace Interview With Ahmedinejad:

I found the actual interview a snore, as Ahmed speechified, avoiding answering the questions Wallace put to him. It was relatively easy for him to get away with this, given the fact that both men needed interpreters. The result is that the interview was just a little more interesting that watching an Iranian government propaganda video.

More interesting to me is this Daily Kos discussion thread, in which (I'm only barely exaggerating here)Kos readers debate whether Ahmed is as bad as George W. Bush.

What did VC readers think of the interview?

UPDATE: Here's an op-ed by David Harris of the American Jewish Congress, who takes a rather dim view of the interview. Among other things, Harris points out that Wallace asked no questions about human rights in Iran, including the rights of Wallace's fellow journalists.

Related Posts (on one page):

  1. Kos Readers Reactions to Wallace Interview With Ahmedinejad:
  2. Mike Wallace Buddies Up to Iranian President Mahmoud Ahmadinejad:
58 Comments
Brief video on Photo Fraud in Lebanon:

Various allegations (and in some cases, proof), of fraud/manipulation/staging/etc. of photos by "journalists" in Hizballahland in South Lebanon have been gradually spreading over the last two weeks. If you have been curious about the allegations, but haven't had the patience to read the various blog and MSM accounts of them, this brief movie from AISH.com reviews some of the more prominent examples of media misconduct.

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"Our Children ... Become a Subject of So-Called International Law":

Here's a strange sort of -- apparently vaguely conservative -- concern about "international law": The Eagle Forum Web site has a piece about the International Baccaulaureate Organization, which complains about the fact that disputes with the IBO have to be resolved under foreign rules related to international contracts:

The International Baccalaureate Organization (IBO), based in Geneva, Switzerland, offers three different International Baccalaureate (IB) programs and is responsible for assisting schools with implementation so that children learn how to become "engaged world citizens" (IBO, 2006).... All of the programs come with tests administered by the IBO.

Like many other schools in the United States, some Oklahoma schools offer at least one of the three IB programs at the taxpayers' expense....

To offer IB programs, schools undergo a process governed by the IBO. Once complete, the schools operate with the guidance and support of the organization.

In its Rules for Authorized Schools, the schools must "abide by all the IBO regulations and procedures" (IBO, 2005, p.18).

Interestingly, Article 12 notes that Swiss law governs the Rules and all other documentation related to the authorization for teaching an IB program (IBO, 2005, p.22) (emphasis added).

Under Article 13, arbitration is the way to resolve disputes regarding the Rules. The arbitration process consists of three arbitrators who act under the Rules of Arbitration from the Chamber of Commerce and Industry in Switzerland; the seat for arbitration is in Geneva (IBO, 2005, p.22)....

As of January 1, 2004, Switzerland replaced its arbitration rules with that of the United Nations Commission on International Trade Law, otherwise known as UNCITRAL ("New Swiss Rules," 2004). According to UNCITRAL's web site, this organization is the "core legal body" of the United Nations, whose goal is to promote "commercial law reform" across the globe (UNCITRAL, 2006)....

Neither Switzerland nor the United Nations operates under American law, which seems to be further proof our children and IB schools in America become a subject of so-called international law once the school signs a contract with the IBO....

This strikes me as a very odd, and rather hyperbolically worded, objection. If U.S. schools want to get for their students the benefits of an internationally recognized credential, they need to enter into a contract with a foreign entity -- just as if U.S. schools want to get for their students the benefits of, say, foreign-produced computers or lab equipment or gym equipment, they need to enter into a contract with a foreign entity. With such contracts, one or the other side (or perhaps both) will have to agree to have the contract decided by laws other than its own home country's. Sometimes it makes sense for us to demand that such disputes be governed by our own law, but sometimes it's just not a big deal (especially when we're dealing with an international organization that understandably wants all its disputes governed by the same legal rules).

This is especially so since the typical dispute, I imagine, will have to do with an American family's claim that the IBO authorities somehow didn't give their child proper credit or the proper grade. The only thing at stake is the benefit that the child will get from his IBO participation.

If somehow the foreign legal rules end up unfair to the child, he'll lose very little -- it's hardly that the "child" will "become a subject of so-caleld international law" in any meaningful sense. And there's not even any real reason to expect that the rules will end up being unfair. Plus if for whatever reason a school district becomes dissatisfied with the value it's getting from the IBO program, it can simply wash its hands of the program. (The paper I point to also makes a more substantive criticism, suggesting that the IBO may not maintain proper security of student records -- that at least is a sensible thing to argue about; and if the state is concerned about this, it may well demand contractual assurances from the IBO, just as it can demand contractual assurances of information confidentiality from any other organization, foreign or domestic, which it does business.)

In some situations, there may well be reason to worry about submitting to foreign legal rules, or to the jurisdiction of foreign courts. But in some situations, there's little reason to worry about it -- and when one is trying to get the benefits of contracting with international organizations (whether service providers, certification providers, or product providers), such transnational choice-of-law rules or choice-of-forum rules make perfect sense. Conservative or liberal, we must realize that we live in the larger world, that our children can benefit from credentials and products that come from this larger world, and that sometimes disputes arising under international business relations will be decided under foreign law. Nothing inherently bad about that, it seems to me.

Thanks to reader Carl Sanders for the pointer.

26 Comments
Blight, Sweet Blight - The Problem of Blight Condemnation After Kelo:

My op ed on condemnation of "blighted" property was published today by the Legal Times, and can be read here.

In the wake of Kelo v. City of New London, there has been a major backlash against condemnations of private property for "economic development," but not enough attention has been paid to the even greater harm caused by condemnation of supposedly "blighted" property. A brief excerpt:

...[E]ven many critics of Kelo ignore the danger posed by blight condemnations. In her scathing Kelo dissent, Justice Sandra Day O’Connor emphasized that she believes that such takings are constitutional. None of the 11 state supreme courts that banned Kelo-style economic-development takings have imposed parallel restrictions on blight takings. And only a handful of the states that have enacted post-Kelo reform laws restrict blight condemnations in any meaningful way. Unfortunately, blight condemnations have most of the same shortcomings as takings for economic development: They transfer property to private parties, often fail to help their supposed beneficiaries, and are vulnerable to exploitation by powerful interest groups. Moreover, a ban on economic-development takings is unlikely to be effective without parallel restrictions on blight condemnations. Effective reform efforts must address the two major flaws of current blight takings: overexpansive definitions of blight and abusive takings in truly blighted areas.

9 Comments
Good Turn in a Very Troubling Academic Case:

The Foundation for Individual Rights in Education reports:

In a dramatic turn of events, the State University of New York at Fredonia (SUNY Fredonia) has promoted the embattled Professor Stephen Kershnar to full professor....

As FIRE reported last month, Kershnar was nominated for promotion to full professor with abundant support from his colleagues and superiors. SUNY Fredonia President Dennis L. Hefner nevertheless denied the promotion. Hefner explained that although Kershnar’s “teaching has been described as excellent,” he would not be promoted because of his “deliberate and repeated misrepresentations of campus policies and procedures…to the media,” which Hefner claimed “impugned the reputation of SUNY Fredonia.” The supposed “misrepresentations” referred to Kershnar’s bi-weekly opinion columns in the local Dunkirk-Fredonia Observer and his public criticism of a student conduct policy. The university presented absolutely no evidence, however, that Kershnar ever actually misrepresented the university.

When Hefner suggested to Kershnar that refraining from such statements in the future would help his chances for promotion, Kershnar offered to submit his writings to prior review for a year. Hefner suggested instead that Kershnar sign an even harsher contract that would be in effect for an indefinite period of time and that would require Kershnar to get “unanimous consent” from a university committee for all writing regarding the university to ensure “the avoidance of any future misrepresentations” of campus practices.

Kershnar refused Hefner’s illiberal and unconstitutional arrangement and contacted FIRE. On July 7, FIRE wrote a letter to Hefner criticizing his actions. Hefner responded in a letter dated July 20 by upholding the denial of promotion to Kershnar.... [But within days after] articles appear[ed] in the New York Post, the Chronicle of Higher Education, and Inside Higher Ed[,] ... SUNY Fredonia administrators informed Kershnar that they would reevaluate his promotion....

I hadn't had a chance to blog about the matter earlier, but I had looked into the underlying documents (which are pointed to here), and my tentative sense was that FIRE's reaction was quite right -- the professor was being faulted for publicly expressing views with which the university president disagreed, and not for any actual misrepresentations. I'm very pleased that everything ultimately turned out well.

18 Comments
Desperately Smearing Susan:

This morning I have an article on National Review Online detailing some of the outlandisha and erroneous attacks made against Susan Dudley, President Bush's nominee to head the Office of Information and Regulatory Affairs (OIRA) within the White House Office of Management and Budget. Like her predecessor, John Graham, Dudley is being caricatured and subjected to false charges in an effort to paint her as an extremist unworthy of confirmation. As I note, some of the attacks are plainly false, and yet have been repeated uncritically throughout the blogosphere. I should also note that I know Susan well, and consider her a friend.

The serious and substantive arguments made against Susan are not so much about her nomination, as they are about the Bush Administration's approach to regulatory policy. The White House picked Susan Dudley because it believes she will carry forward the adminsitration's approach to regulatory review, and continue the policies of her predecessor. This means careful analytic review of agency regulatory proposals in an effort to prevent unnecessary reuglatory overreach. It also means a sincere effort to ensure that regulatory and other administrative measures are cost-effective, and maximize the potential pulbic benefits of regulatory interventions. Many object to this "conservative" appraoch to regulation, but it is the approach this administration will adopt whether or not Susan is ever confirmed.

Adminsitrator of OIRA is clearly an important White House perch. OIRA reviews reuglatory proposals emanating from throughout the executive branch, and can force agencies to redraft regulatory proposals where they are inconsistent with prevailing executive orders and OIRA requirements. This is a big deal, but the role of OIRA should not be overstated. OIRA does not have the authority to trump statutes. So, where a statutory requirement conflicts with OIRA policy, the statutory requirment will preveail — even if that will result in the issuance of a regulation that the administration would otherwise oppose. The OIRA Administrator may be a "Regulatory Czar" (or in this case "Regulatory Czarina,"), but is far from all powerful.

In my view, Susan merits confirmation because she is clearly qualified for the position. She is a thoughtful economic analyst with a wide range of relevant experience — in federal regulatory agencies, in the private sector, in non-profits, and even at OIRA. As head of the regulatory studies program at the Mercatus Center, she has been quite influential in the development of regulatory proposals, submitting regular comments to OIRA. This influence is not lost on her critics, but it is also why the Washington Post said Dudley was John Graham's natural successor at OIRA. I also believe, as I have said before, that a President should receive significant deference in his selection of White House personnnel, so the burden on those opposing Susan's confirmation should be quite high. We shall see whether the Senate adopts this approach.

UPDATE: The Federal Times has more on the Dudley nomination:

Dudley’s name is already well known to agency regulators. The Mercatus Center analyzes regulations while they are being written, suggesting changes that will minimize the cost to individuals and businesses complying with a regulation.

One EPA regulator said that when he and his colleagues know that Mercatus is looking at a regulation, they pay special attention to the costs of compliance.

“To some extent it’s something we should do already, but it does make writing the regulation more difficult,” said the regulator, who asked to remain anonymous. Because of Dudley’s analysis of regulations’ impact on the public, Sen. Joseph Lieberman, D-Conn., promised the nomination would receive his “most stringent scrutiny.” He said Dudley’s questioning of the economic justification of regulations might conflict with OIRA’s role reviewing regulations.

OIRA’s “protective role, especially when applied to the environment or the health and safety of consumers and workers, is worthy of a vigorous defense,” Lieberman said. Nobel prize-winning economist Vernon Smith wrote a letter to Lieberman and Sen. Susan Collins, R-Maine, chairman of the Homeland Security and Governmental Affairs Committee, praising Dudley’s qualifications.

“She approaches public policy questions in a principled and objective manner, with no goal other than to understand and pursue the public interest,” he wrote in the July 31 letter. Regulatory advocates said Dudley’s prolific writing should give them ammunition to fight her nomination. But economist Bruce Yandle said senators considering her nomination should keep in mind the inherent controversy that comes with the job.

“The person heading OIRA sits in a hot seat, generally disappointing special interest groups on all sides of a regulatory debate,” he said.

Related Posts (on one page):

  1. What Does Dudley Drive?
  2. Desperately Smearing Susan:
  3. Congratulations to Susan Dudley:
32 Comments
Oops: From the News of the Weird:
In June, after the roof of the just-built Cedar Grove Methodist Church near Thorsby, Ala., collapsed (with no one inside), church officials revealed that they had never sought building permits, based on Pastor Jeff Carroll’s assumption that "separation of church and state" meant that his church was none of the government’s business. Carroll, whose day job is as a home builder, said volunteers designed and then built the church, but agreed to get a permit for the re-building.
Thanks to Jessica Gabel for the tip.
42 Comments
Possible Breach of Fiduciary Duty at Black Box Voting?--

I. Introduction.

I was cruising the diaries of AnonymousArmy at DailyKos and came across a late June 2006 discussion of a disturbing set of documents, the IRS Form 990 and Schedule A for the 2004-2005 fiscal year for the charity, Black Box Voting, Inc. (BlackBoxVoting.org).

For those who are unaware, Black Box Voting is one of the organizations that has alleged voting irregularities in the 2004 election, especially associated with the Diebold voting machines. I know very little about the merits of these claims or about the incredibly nasty internecine warfare between BBV and other voting reform groups. Kos diarist AnonymousArmy has often been harshly critical of BBV and its most prominent officers and employees, as have many others in that movement. I have no idea who is right or wrong on these voting machine issues; my concern here is over serious questions with BBV’s Form 990.

My analysis is based on BBV’s IRS tax returns (Form 990 and its Schedule A), which are posted on BBV's website (and apparently have been posted there for about 6 weeks).

II. All of BBV's Financial Assets Were Held in Non-Interest Bearing Accounts.

Leaving aside some small math errors in the return noted by posters at DailyKos, the thing that really jumps out on Black Box Voting's Form 990 is something that Kos commenters notice, but don’t seem to understand the full import of: Black Box Voting shows $972,304 in “Gifts, grants, and contributions received” (990 Schedule A, p.3, ln.15) and the return shows $613,309 as “Cash--non-interest-bearing” at the end of the year (990, p.4, ln.45). Despite this huge cash account, the return shows no “interest or dividends” from investments (990 Schedule A, p.3, ln.18) for the entire year!

I find it hard (but not impossible) to come up with a scenario under which this charity is operating legally with nearly a million dollars in receipts and over $600,000 in cash-on-hand at the end of the year with no interest or investment income for the year.

The duty of prudence that charities must follow generally requires that managers or trustees invest any substantial cash on hand for the benefit of the charity, if only in a money-market account. They are not required to obtain a current return (e.g., they could invest in stocks that appreciate but pay no current dividends), but they are required to invest to get a return. Because of the time value of money, not investing means that the portfolio is essentially guaranteed to depreciate in real value by the end of a year. These days, one can set up money-market accounts that the charity can write checks on, so that even if the charity had been planning to spend most of its money in a week or two, it could still have earned interest until it wrote large checks.

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Sunday, August 13, 2006

The Hart-Fuller Debate and Student-Edited Law Reviews: Troubles with student-edited law reviews are a favorite topic in the blawgosphere; one common complaint is that student editors often butcher articles during the editorial process. Given that frequent complaint, I was amused to read a passage in the recent biography of H.L.A. Hart about Hart's classic exchange with Lon Fuller in the Harvard Law Review in 1958, an exchange often known simply as "the Hart-Fuller debate." The exchange consisted of two articles: Hart's initial essay, H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593 (1958), and Fuller's response, Lon L. Fuller, Positivism and Fidelity to Law - A Reply to Professor Hart, 71 Harv. L. Rev. 630 (1958).

  It turns out that the exchange was held up for a bit when the eager editors of the Harvard Law Review so heavily edited Hart's piece that he considered pulling it. He ended up asking Fuller (who was a Harvard professor) to intervene on his behalf. The Law Review editors restored the piece back to Hart's original, and the exchange went on to become a classic.

  Here is Hart's letter to Fuller, asking Fuller for help with the editors:
  Meanwhile a spot of trouble! The L. Rev. boys had mutilated my article by making major excisions of what they think is irrelevant or fanciful. They have made a ghastly mess of it and of the references to Bentham and I have written to say thet must not publish it under my name with these cuts which often destroy the precise nuance. I took great care and much time over what they have coolly cut out.
  Could you induce them to be sensible? Such an interference with an author's draft is unthinkable here and I am astonished that so gross and insensitive thing should be possible at Harvard.
  I have told them that if they will undertake to restore the listed cuts I will get down to the unwelcome task of patching it up all over again. But meanwhile I will not return the proof.
  So sorry but it is important to me to get precisely what I said printed. * * * Yours ever, Herbert Hart
Fuller responded:
Dear Herbert,
  After receiving your letter I went over to the Review and found the President busily engaged in restoring your article to its original form. I am sorry for what they did, although I have to confess that this sort of thing comes close to being standard practice with articles written by American authors. Being near at hand I could save my baby from mayhem. Had I dreamed they would take such liberties with your text, I would have stood over them.
  So, authors, if you get back an article and the editors have overedited your piece, don't be upset: just think to yourself, "Hey, cool, I'm being treated just like H.L.A. Hart!" And editors, if an author gets upset with your edits and insists on having everything restored to the original, don't get depressed: just think to yourself, "Hey, this is just like the Hart-Fuller debate!"
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Sunday Song Lyric: The debut album of Panic! at the Disco, A Fever You Can't Sweat Out, is filled with clever, catchy, hook-filled songs -- and great song titles (e.g. "The Only Difference Between Martyrdom and Suicide Is Press Coverage" and "London Beckoned Songs about Money Written by Machines"). Panic! reminds remind me a bit of the Housemartins with a touch Squirrel Nut Zippers and the storytelling of John Wesley Harding. Panic! is also somewhat reminiscent of their Vegas contemporaries, The Killers, albeit with less of an overtly '80s feel. Like The Killers, they've done well on MTV, as their video for "I Write Sins not Tragedies," has gotten them five VMA nominations, including one for video of the year.


Here's a taste of their lyrics from the track "Build God, Then We'll Talk":

It's these substandard motels on the corner of 4th and Freemont Street.
Appealing, only because they are just that un-appealing.
Any practiced catholic would cross themselves upon entering.
The rooms have a hint of asbestos and maybe a dash of formaldehyde,
and the habit of decomposing right before your very eyes.
(Along with the people inside.)

There are no raindrops on roses or girls in white dresses.
It's sleeping with roaches and taking best guesses
at the shade of the sheets before all the stains
and a few more of your least favorite things.

Tonight tenants range from a lawyer and a virgin
Accessorizing with a rosary tucked inside her lingerie
(she's getting a job at the firm come Monday)
the Mrs. will stay with the cheating attorney,
moonlighting aside, she really needs his money.

Oh. What a wonderful caricature of intimacy.
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