Saturday, August 26, 2006

The Group Dynamics of Mass Unsolicited E-Mail Lists: Every once in a while, some random person sends out an unsolicited e-mail to an assembled distribution list of anywhere from 50 to 200 addresses found on the web trying to either settle some personal score or bring attention to a cause.

  In my experience as an occassional recipient of such e-mails — whether because of blogging or the day job, or some other random connection — the dynamic usually goes something like this:
1. A few people will respond with a "reply all" suggesting to the sender that it's really not nice to spam so many people like that, and/or that the message of the e-mail is wrong or offensive.

2. One or two people will respond with a "reply all" asking everyone else to "please take me off this distribution list."

3. A bunch of people will then chime in with "reply all" responses urging recipients to "STOP REPLYING WITH 'REPLY ALL' AS NO ONE CARES, AND HITTING 'REPLY ALL' IS REALLY ANNOYING!!!."

4. After the flurry of "reply all"s condeming the use of "reply all"s, some time will pass, and then someone on the list will have to follow up "reply all" with some kind of comment on the substantive message of the initial e-mail.

5. The comment will draw one last "reply all" condemning the use of "reply all"s, and then the round is over.
It's the folks who participate in Step 3 without a hint of irony that I find the most amusing. But then the whole thing is sort of funny, I guess.

  UPDATE: I switched (1) and (2) around, as I remembered that people usually don't start asking to be removed from the list until a handful of e-mails from the list are in their inbox.
Owens the master in JonBenet case:

My new media analysis column for the Rocky Mountain News looks at how Republican Governor Bill Owens used the JonBenet case, and other sensational national Colorado crime stories, to his political advantage:

Although Ronald Reagan faced a hostile media, he succeeded politically in part because he knew how to beat the media at its own game; by carefully limiting the supply of presidential photo opportunities, Reagan ensured that even when the words in a television story about his policies were negative, the pictures would be positive.

Similarly, Owens on policy was well to the right of much of the Colorado media. Yet he was very good at delivering soundbites for big crime stories, reinforcing popular (although not necessarily accurate) public opinion about somebody's guilt. He thus used the media to disseminate an image of himself as a straight-talking, common-sense leader who was not afraid to criticize the guilty (or rather, those who had been proclaimed guilty by the media).

Like a martial artist who turns his opponent's greatest force into a vulnerability, Reagan jiu-jitsued the picture-dependent national TV networks. Likewise, Owens turned the media's obsession with sensational crime stories into a showcase for himself.


Friday, August 25, 2006

Hey, Wait a Sec!

I think this means the Ninth Circuit is blegging.

It Took Three Years, but Anthony did indeed become the devil: his Columbia law student blog, Three Years of Hell to Become the Devil, has wrapped up as of today with advice for law student bloggers. Hat tip: The Imbroglio.
The Ninth Circuit Is Soliciting Briefs in En Banc Sentencing Case:

Rather an unusual order in U.S. v. Canty and U.S. v. Zavala:

The court invites supplemental briefs by the parties addressing some or all of the following questions on the role of the United States Sentencing Guidelines in a district court’s sentencing decision after United States v. Booker, 543 U.S. 220 (2005):

1. Do we have jurisdiction to review appeals of within-Guidelines range sentences?

2. If we have jurisdiction to review within-Guidelines range sentences, are such sentences entitled to a presumption of reasonableness, or should we review such sentences no differently than we review outside-Guidelines range sentences? If within-Guidelines range sentences are entitled to a presumption of reasonableness, is this presumption conclusive? Rebuttable? If rebuttable, how can such a presumption be rebutted?

3. How should we review a post-Booker sentence for reasonableness? Do we review only whether the district court complied with Booker’s mandate to consider the 18 U.S.C. § 3553(a) factors? If so, is this review de novo? Do we independently review the sentence imposed for reasonableness? If so, how do we determine whether a sentence is reasonable? What legal and factual matters, if any, must we consider? Is this review for abuse of discretion? Are factual findings decided by the district court reviewed for clear error, abuse of discretion, or on some other standard of review? Does it matter whether the findings are pertinent to the calculation of the advisory Guidelines range or pertinent to the application of the other 18 U.S.C. § 3553(a) factors?

4. What procedure is a district court required to follow in sentencing a defendant within the advisory Guidelines range? In particular, what should be the district court’s duty, if any, to articulate its consideration of the section 18 U.S.C. § 3553(a) factors?

5. If distinct from the procedure for within-Guidelines range sentences, what procedure is a district court required to follow in sentencing a defendant above or below the advisory Guidelines range?

6. What weight does the advisory Guidelines range have, in relation to other 18 U.S.C. § 3553(a) factors? In conducting a sentencing proceeding, may a district judge announce that he will impose a sentence within the advisory Guidelines range unless the parties present compelling reasons for imposing a sentence outside of that range? On review, should we determine whether the district court has given the advisory Guidelines range the appropriate weight, and if so, how?

Briefs responding to this order shall be filed no later than September 15, 2006. Any person or entity wishing to file a brief as an amicus curiae in response to this order is granted leave to do so pursuant to Fed. R. App. P. 29(a).

The last sentence essentially means that the Circuit really does want more amicus briefs than usual in this case.

For more on the cases, see Sentencing Law and Policy (of course).

Related Posts (on one page):

  1. Hey, Wait a Sec!
  2. The Ninth Circuit Is Soliciting Briefs in En Banc Sentencing Case:
Bleg for Help re Diversity Jurisdiction, Complete Diversity:

I need to know rather quickly if there have been any recent (last several years) developments with regard to diversity jurisdiction, specifically with regard to the issue of complete diversity, other than the provisions of the Class Action Fairness Act. Has there been proposed legislation to further relax the complete diversity requirement? Thanks.

SCOTUSBlog Podcast on Granting Cert: Over at SCOTUSBlog, Tom Goldstein has posted a 7-minute podcast on how Supreme Court Justices decide which cases to accept for review. If you're interested in how the Supreme Court works, definitely check it out. Also, if you're really interested in how cert works, read Deciding to Decide, a wonderful book about the topic based in large part on interviews with 64 former clerks, 4 former SG's, and 5 Justices.
Takeover by Norway:

I recently came across this list of people in the line of succession to the British throne. People have taken the trouble to list the first 800 or so people in line, taking care (according to the Act of Settlement of 1701) to skip over anyone who is Catholic, is married to a Catholic, or was at one point married to a Catholic. (Query, for anyone who knows: This is weird.... I assume that if you renounce Catholicism you're back in the line of succession? What if you marry a Catholic but your spouse then renounces Catholicism? Are you back in line, or is removal from the line of succession permanent? Would someone who had divorced a Catholic have to get their ex-spouse to renounce Catholicism to get back in line?)

Point 1 is that what would rock is if Prince William started dating a Catholic. Constitutional crisis! (The Catholic prohibition is sitting there, but it's apparently never been used, and as matters stand today, the prohibition won't be used anytime soon, since the first disqualified person doesn't show up in the list until the 20s.) Of course these British constitutional statutes are just statutes, but (1) it's an important statute, (2) under the Statute of Westminster of 1931, this may require the assent of all the Dominions, and (3) they'd probably have to do some rethinking of this whole King-as-head-of-the-Church-of-England idea.

Point 2 is that the King of Norway is 60th in line of succession. Now 60th is pretty far down, but Norway has been trying to take over England since the year 787! Is there a political thriller plot in there somewhere: The Lindisfarne Legacy? (Note that apparently in V for Vendetta, there's a reference to a "Queen Zara," apparently implying that Zara Phillips, who's now 11th in line, was the most senior Family member to survive a 1980s nuclear war. For Norway-like plots involving currently non-functioning thrones, the heir to the Romanian throne is at #82, the heir to the Serbian throne is at #89, and one pretender to the Russian throne is at #107.)

UPDATE: I know what you're thinking: Isn't "The Lindisfarne Legacy" a course at St. John's College in Durham, England? Not the same thing. You're also thinking: Didn't the Vikings already rule over England from 1016 to 1042, during the reigns of Cnut and Harthacnut? It's tricky to draw these sorts of distinctions, but Cnut is generally thought of as a Dane, not a Norwegian. The Queen of Denmark doesn't come into the British succession until #209.

The Collapse of Collapse:

Scientists, archaeologists, and others have begun examining the claims of Jared Diamond's best-selling Collapse, and some are finding that many of his claims do not hold up to serious scrutiny.

For example, Diamond claims that the collapse of the Rapa Nui on Easter Island provides "the clearest example of a society that destroyed itself by overexploiting its own resources." Yet Diamond's account is contradicted by the available archaeological evidence, as documented in this article by Terry L. Hunt from The American Scientist. (Link via Daniel Drezner) Whereas Diamond blames deforestation and population growth, Hunt finds that newly introduced diseases, invasive species (rats) and conflict with Europeans had a greater impact.

Using Rapa Nui as an example of "ecocide," as Diamond has called it, makes for a compelling narrative, but the reality of the island's tragic history is no less meaningful. . . .

I believe that the world faces today an unprecedented global environmental crisis, and I see the usefulness of historical examples of the pitfalls of environmental destruction. So it was with some unease that I concluded that Rapa Nui does not provide such a model. But as a scientist I cannot ignore the problems with the accepted narrative of the island's prehistory. Mistakes or exaggerations in arguments for protecting the environment only lead to oversimplified answers and hurt the cause of environmentalism. We will end up wondering why our simple answers were not enough to make a difference in confronting today's problems.

Hunt is hardly the only one to raise questions about Diamond's accounts and his underlying thesis. In 2005, the interdisciplnary journal Energy and Environment devoted a special issue to essays critiquing Diamond's work. Several of the papers are available here. Among other things, the various authors fault Diamond for failing to give sufficient attention to the role of instituions in economic development and environmental performance (a criticism that can also be made of his earlier book, Guns, Germs, and Steel). For those interested in Diamond's thesis, the various papers are worth a look.

More on Evolutionary Biology Omission:

The New York Times reports on the Education Department's curious exclusion of evolutionary biology from the list of subjects eligible for SMART grants here. According to a Department spokesperson, the omission was inadvertent and would be restored to the list. Deven Desai comments on Concurring Opinions here.


Thursday, August 24, 2006

Spam From Lawyers?: Mike has the scoop over at Crime & Federalism.
All Your Fakes Are Belong to Us

(Civil comments only please)
Documents from the NSA Surveillance Case: Via Alkali, I have obtained copies (or links to copies) of many of the key documents filed in the district court in the ACLU v. NSA case decided by Judge Taylor last week. Here they are, all in .pdf format:
Docket Sheet in the case as of this morning

ACLU Motion for summary judgment (filed March 9)

DOJ motion to dismiss (or in alternative for summary judgment) (filed May 25)

Order denying DOJ's motion for a stay (filed May 31)

DOJ's motion for clarification (filed June 2)

ACLU's reply memo in support of summary judgment (filed June 5)

ACLU's response to DOJ's motion for clarification (filed June 6)

DOJ's reply to ACLU's response (filed June 7)

ACLU's response to DOJ's motion to dismiss, or in the alternative for sumamry judgement (filed June 20, 50 pages)

DOJ's reply to the ACLU's response (filed June 30, 33 pages)
If I get additional documents and think they're worth posting, I'll add them to this post.
Choice of Blogging Topics:

A commenter on the Conversion to Christianity Earns Death Threats, Risk of Incarceration thread agrees that the story is quite troubling ("As to the post itself I am horrified at this practice," but goes on to ask:

However, I do have to wonder what purpose is served by posting this particular example in such detail. Human rights abuses suck but they are happening all the time. Why pick this one about islam rather than the jailing of Chinese dissidents or oppressive actions by other governments? (Do third world christian nations behave differently or does the influence of first world churches keep them in check?)

If the poster feels that this sort of inhuman treatment goes underreported/uncondemned out of fear of offending religious sensibilities then, assuming his assesment is correct, I share his goals. However, I am skeptical of the appropriatness of this particular incident to accomplish this purpose. Jailing people for conversion to christianity is clearly no worse than jailing them for conversion to any other religion, advocacy of heretical islamic views or violation of any other religious law. Choosing an example where the individual wishes to convert to christianity when the mention of prison camps in the article suggests a wealth of other examples seems designed to inflame a christian audience.

I realize that you probably didn't run across any of the other stories so I don't want to cast blame. However, I do feel that the choice of examples is unfortunate and more good could be done with examples that don't encourage people to view this as a religious conflict.

Another reader likewise asks (with a good deal of detailed discussion following), "What is the purpose of picking up stories about the horrors of repressive Islamic regimes?"

A few thoughts:

1. "This" in the sense of "this story" does involve a religious conflict. "This" in the sense of the broader issue of "jailing ... for conversion to any other religion [or] advocacy of hereitcal islamic views" also involves religious conflicts, albeit ones with other religions.

2. I'm quite sure that the Chinese government represses people's human rights, too; I don't blog much about Chinese repression because I don't get a lot of e-mails about them, and at least some of those stories are complex enough that it's hard to opine on them without investing more time than I have to invest. This story struck me as pretty simple; there'll always be a bias in favor of such stories, especially among part-time writers (though I suspect among full-time writers as well).

3. While some balance of perspective is valuable, insisting that people not complain about the misbehavior of one country (or ideological movement) unless they somehow evenly calibrate their condemnation among all countries, in proportion to the countries' actual misconduct, is a recipe for total silence. Seems to me better that some people point out the misbehavior of some groups and others of other groups (depending on the speakers' knowledge base, interests, and so on), than that no-one point out anything out of an attempt at pure balance.

4. I agree that if you fault country X for doing something and defend country Y for doing the same thing, you could be faulted for inconsistency. Likewise, if X and Y are adversaries, and you fault X for certain behavior in the conflict without noting Y's misbehavior, you can be faulted for partiality. And if you fault country or movement X harshly for doing something that lots of other comparable countries do, without noting that this misbehavior is very common, you can be faulted for lack of perspective. Yet I don't think that any of these problems are present here.

5. The sad fact is that, as best I can tell, many Islamic regimes are indeed quite repressive of religious freedom, as well as of other freedoms. That's important for us to know, and to know in some detail.

6. However, I'm happy to say that if anyone can point me to a non-Islamic country in which religious conversion leads to private death threats, and threat of governmentally authorized incarceration, I'll be glad to note that as well. (I've certainly noted what seem to me improper religious discrimination in my own country, albeit a less egregious discrimination than we're discussing here.) I'm interested in such matters, and it's always good to get interesting blogfodder.

But no need to tell me that revealing accurate information will somehow "inflame a Christian audience," or suggest that it's somehow not "appropriate"; that's not going to go far with me.

UPDATE: The second commenter I quote above posts a follow-up comment, which asks, in part, "Why this story now?"

Well, because a former student (actually, a very liberal former student) e-mailed me this story, and this story was published -- in the New York Times, mind you -- now. What was I supposed to do? Not post it? Sit on it for months until someone sent me some story about a Christian country doing the same to converts to Islam (a story that might never come)? Sit on it until I could spend a week researching all the ways in which a wide range of countries violate a wide range of rights and then post a paper on the subject?

The commenter also writes, "I think one or two of your points above erect strawmen. I don't think anyone -- at least, not anyone that need be taken seriously -- is trying to 'insist that people not complain' about one country or movement unless it is done evenly according to some schedule." I wonder about that. It's hard to figure out what's in my commenters' minds, but the comments as I read them point precisely in that direction: They're suggesting that there was something wrong with posting about the Malaysian government's misbehavior, apparently because I don't comment enough on misbehavior of other governments and therefore because my post somehow paints an unfairly grim picture of Islamic law. Isn't that an argument that people shouldn't be complaining about Islamic misconduct unless one somehow finds some matching set of misconduct by non-Islamic countries that one can serve up as some supposed balance?

Google as a Source of Writing Advice:

In a recent exchange with an editor, I had to choose between "What matters is the [singular version of phrase X]" and "What matter are the [plural version of phrase X]." My first reaction to the latter option was, "Huh, sounds strange."

Now sometimes sounding strange is good: For instance, it's often good to use less familiar (but apt) imagery -- imagery which is "strange" in the sense of less familiar -- than familiar and therefore cliche imagery. The fresh imagery is more likely to capture the reader's attention, and to convey the message.

But you don't want to focus the reader's attention on a routine transition like "What matters is"; it's therefore best, I think, to phrase such routine items in routine ways -- to use common versions, not strange ones. (Other writers may legitimately disagree, but that was my judgment for my piece.) Yet was I right that "what matter are" is much less idiomatic than "what matters is"?

Google to the rescue: Google reported for me 400,000 results for "what matters is the," 35,000 for "what matters are the" (which I think is grammatical, but for reasons I don't want to get into here), and fewer than 1000 for "what matter are the." Matter settled.

Conversion to Christianity Earns Death Threats, Risk of Incarceration:

The New York Times reports:

[Malaysian] Lina Joy ... converted from Islam to Christianity eight years ago and since then has endured extraordinary hurdles in her desire to marry the man in her life.... [S]he is now in hiding after death threats from Islamic extremists, who accuse her of being an apostate.

Five years ago she started proceedings in the civil courts to seek the right to marry her Christian fiancé and have children. Because she had renounced her Muslim faith, Ms. Joy, 42, argued, Malaysia’s Islamic Shariah courts, which control such matters as marriage, property and divorce, did not have jurisdiction over her.

In a series of decisions, the civil courts ruled against her....

About 60 percent of Malaysia’s 26 million people are Muslim, 20 percent are Buddhist, nearly 10 percent are Christian and 6 percent Hindu....

In rulings in her case, civil courts said Malays could not renounce Islam because the Constitution defined Malays to be Muslims.

They also ruled that a request to change her identity card from Muslim to Christian had to be decided by the Shariah courts. There she would be considered an apostate, and if she did not repent she surely would be sentenced to several years in an Islamic center for rehabilitation....

Last month, Prime Minister Badawi appeared to side with the Islamists when he ordered that forums organized around the country to discuss religious freedom must stop. The forums, run by a group called Article 11, named after the section of the Constitution that says Malaysians are free to choose their religion, were disrupted on several occasions by Islamic protesters....

“Church members know us as who we are, and the outside world knows us as we were,” [another convert] said. He was fearful, he said, that if his conversion became public the religious authorities would come after him, and he could be sentenced to a religious rehabilitation camp.

One such place, hidden in the forest at Ulu Yam Baru, 20 miles outside the capital, is ringed like a prison by barbed wire, with dormitories protected by a second ring of barbed wire. Outside a sign says, “House of Faith,” and inside the inmates spend much of their time studying Islam....

Thanks to Cynthia Reed for the pointer.

OpinionJournal Federation Feature Article:

In case you missed my VC post, "Does Japan Have the Right to Exist as a Japanese State?", it's available today on the Wall Street Journal's OpinionJournal website as the OpinionJournal Federation Feature Article of the day. The piece discusses theh fact many countries have an explicit ethnic basis, including some sort of "law of return," but only Israel's right to exist as a Jewish state is ever called into question.

More Advice for Second-Year Law Students.--

David Bernstein has some excellent advice for second-year law students. In particular, as David notes, many students may not realize that most students work much less hard in their last two years, so if you work as hard as you probably worked in your first year, you have a good chance of getting better grades.

Let me offer some additional suggestions:

1. Seminars. Take seminars--and if your school has them, graded faculty workshop courses. They generally offer interesting reading, writing training, the opportunity to get to know professors better, and high grades. [I am here assuming that the curve is substantially higher than in lecture courses, as has been generally true at the six law schools at which I've taught].

2. Independent Study. If your school has possibilities for independent study with a professor, do this both years (with two different professors). The advantages are the same as for seminars--only these benefits are usually realized to an even greater extent. Also, you might get a publication out of it. In choosing whom to work with, try to choose a professor who has successfully supervised or collaborated with students on publications before (ask other professors for this information). For example, on the Northwestern faculty perhaps a third to a half of the prominently published student work has come from working with just a few professors; the most outstanding supervisors on this score have been Steve Calabresi, Ron Allen, Marty Redish, and (before he left for Columbia) Tom Merrill. If no professor has successfully supervised students on independent study, at least pick a professor who publishes a lot, because he or she usually has ideas to share.

3. Law Review Fall Write-on (but only at schools where it often works). A few schools (probably less than 15%) have true open-access law review possibilities in the fall of second year, where at least a quarter of the second-year staff of the main law review are chosen by writing a near-publishable draft of a student note during the semester. Most schools have a write-on option for publishable work, but they are not really geared to accept people through that route, so almost no one succeeds at it. If it is not common at your school to write-on by this method in the fall, I would usually recommend not trying, because it is much too easy to get discouraged. But if access to the law review is truly open and substantial numbers of fall write-ons are selected for the review each year, then I would recommend trying. Work closely with a professor to refine your idea so that you don't spin your wheels, and then kill yourself for the three months it takes to write on. Follow the advice in Eugene Volokh's book and make sure that your blue-booking is exemplary. If doing cite-checking of law review manuscripts is allowed for those merely writing on, volunteer for at least some of this work and make certain that you ace that assignment. For those trying to make the main law review (or for those on the review trying to make the managing board), making an extreme effort for just a few months in the fall term of second year can pay big dividends in the long run. As for working on other than the main law review at your school, I'm not sure that I agree with David. He may be right, or he may not be. Certainly, if you strongly desire that experience, I would do it. As to whether it matters on a resume, I've always thought that being an editor on a less prestigious law review was a plus, but he might be right that it may not be worth the considerable effort, both in making the managing board and doing the editing if you make it.

4. Different Sorts of Educational Experiences. I would generally recommend doing some different sorts of educational experiences because the learning curve is especially steep at the beginning of a new experience. If you don't do law review, you might consider working in the clinic or doing an internship off campus. Both can be terrific for learning how to practice law. While I think that doing moot court can be educationally sound, unfortunately I don't think that it helps your resume unless you win at least some level of the competition. At schools that give a lot of course credit for moot court, that might offset the time spent away from other work, but otherwise I would be cautious about participating in moot court--unless you just love that sort of thing or you realistically have a good chance of winning.

Related Posts (on one page):

  1. More Advice for Second-Year Law Students.--
  2. Advice for Second-Year Law Students:
Balkin on Originalism: Larry Solum recommends Jack Balkin's new article Abortion and Original Meaning. Although I must resist the temptation to read it until next week, on the basis of its abstract and Jack's blogging I recommend it as well. There is a reason my first article defending originalism, and the chapter on originalism in Restoring the Lost Constitution, is entitled: "An Originalism for Nonoriginalists." Here is the abstract.
This article argues that the debate between originalism and living constitutionalism offers a false dichotomy. Many originalists and their critics improperly conflate fidelity to the original meaning of the constitutional text with fidelity to how people living at the time of adoption expected that it would be applied. That is, they confuse original meaning with original expected application.

Constitutional interpretation requires fidelity to the original meaning of the Constitution and to the principles that underlie the text, but not to original expected application. This general approach to constitutional interpretation is the method of text and principle. This approach is faithful to the original meaning of the constitutional text, and to its underlying purposes. It is also consistent with the idea of a basic law that leaves to each generation the task of how to make sense of the Constitution's words and principles in their own time. Although the constitutional text and principles do not change without subsequent amendment, their application and implementation can. That is the best way to understand the interpretive practices characteristic of our constitutional tradition and the work of the many political and social movements that have transformed our understandings of the Constitution's guarantees. It explains, as other versions of originalism cannot, why these transformations are not simply mistakes that we must grudingly accept out of respect for settled precedent, but are significant achievements of our constitutional tradition.

The article applies this method to the most contentious constitutional issue of our generation-- the constitutional right to abortion. It concludes, contrary to conventional wisdom, that the constitutional right to abortion is consistent with the original meaning of the Fourteenth Amendment, and, in particular, its prohibition on class legislation that is embodied in the Equal Protection Clause.

The article criticizes Roe v. Wade's original trimester system, arguing that there are actually two rights to abortion instead of one. Finally, it explains how courts might have better implemented the constitutional guarantee of the two rights to abortion in ways that are more respectful of democratic politics.
As Larry likes to says "download it while it's hot."

I am opening comments for those who read the paper and want to discuss it.

(Civil comments only please)

Update: Jack blogs about his new paper here. You can post your comments on his blog where he can read them.

Advice for Second-Year Law Students:

A reader writes: "How about offering some advice for second year law students--not making a journal, with mediocre grades, at a respected but not elite law school? I am somewhat amazed by my grades coming out of this year and little concerned that I made a poor decision."

My advice is, first, don't despair. I know many students who had mediocre grades their first-year, and wound up doing much better the rest of their law school careers. One student I recall was in the top 45% first year, but wound up in the top 15%. Many of the students who did well first-year will coast. Most of the students who had mediocre greats will be discouraged, and will reduce their effort. This gives you the opportunity to continue to work hard and get excellent grades against weaker competition.

Second, don't waste a lot of time on a secondary law review. Raising your GPA is likely to have a much greater positive impact on your career prospects than being Articles Editor for the Podunk Law School Journal of I Want to Have Law Review on My Resume. A potential exception is when the specific subject matter of the journal is directly related to your career goal.

Third, and most important, make an appointment with each of your first-year professors to go over your exams with them. DON'T look at this as an opportunity to dispute the professors' interpretation of the answers, to argue about your grade, or to carry out revenge fantasies. Do listen, attentively, and also take notes, as your professor explains what was deficient about your exam, and how it could have been improved. If the professors will let you, tape record the conversations. Most likely, common themes will become apparent (you didn't relate the facts of the question to the law, you gave a lengthy treatise providing both sides of the issue, but you never discussed which side you think is more persuasive in this context and why, so I couldn't give you full credit and so on). Then, make sure you don't repeat the same mistakes in December.

Related Posts (on one page):

  1. More Advice for Second-Year Law Students.--
  2. Advice for Second-Year Law Students:
More responses to Professor George on the slippery slope to polygamy:

Two more response are now available to Professor Robert George's argument that there is no objection to polygamy "as a matter of principle" once gay marriage is accepted. Philosophy professor John Corvino writes:

The issue is whether being a gay-rights advocate inherently “entails abandoning any principled basis for understanding marriage as the union of two and only two persons,” as George puts it. And the answer to that question is obviously “no.” [Jonathan] Rauch is a clear counterexample: he’s a gay-rights advocate who adduces general moral principles to oppose polygamy.

Why does George claim otherwise? The answer has to do with his confusion about what it means to have a “principled” objection to something. More specifically, he confuses having “a principled objection” with having “an objection in principle.” The difference is subtle but important. To have a principled objection is to base one’s opposition on principles (rather than simply to assert it arbitrarily). Rauch surely does this.

By contrast, to have an “objection in principle” is to object to a thing in itself, not on the basis of any extrinsic reason. Rauch doesn’t object to polygamy “in principle”; he objects to it for being harmful, and if it weren’t harmful he presumably wouldn’t object to it.


This distinction is important, because once one moves from “no objection in principle” to “no principled objection,” it’s a short slide to “no serious objection”—and thus a bad misrepresentation of the position of mainstream gay-rights advocates.

So, to be clear: Rauch, Carpenter, Varnell, and others have a principled objection to polygamy, but not an objection in principle. But here’s the kicker: neither does George. For George’s natural-law position is based on the requirement that sex be “of the procreative kind.” And polygamy is very much of the procreative kind. Even if one accepts George’s nebulous “two-in-one-flesh union” requirement—which somehow allows [] sterile heterosexual couples to have sex but prohibits homosexual couples from doing so—nothing in that requirement precludes multiple iterations (and thus polygamy). If George wants to argue that polygamy is wrong, he’s going to have to appeal to the same sort of extrinsic principles that Rauch invokes. Either that, or he’s going to have to just baldly assert that marriage is two-person, period. If such ad hoc assertions don’t count as abandoning “principled” argument, I’m not sure what does.

Paul Varnell also disputes George:

In a co-authored article with one Gerard Bradley, George states that male-female marriage has an "intrinsic value" that "cannot, strictly speaking, be demonstrated" and that "if the intrinsic value of (opposite sex) marriage ... is to be affirmed it has to be grasped in noninferential acts of understanding."

That is about as close to acknowledging defeat as you can get without explicitly saying so. What if George Wallace had said that the superiority of the white race could not be demonstrated but could be "grasped in noninferential acts of understanding"? Certainly there was a sizable constituency for just such a view, but undemonstrable "noninferential acts of understanding" are a poor basis for creating public policy in a secular civil society.

Then too, Robert George and his colleagues have never explained very well what it is about their own requirement of a male-female polarity for marriage that excludes polygamy. It is hard not to suspect that George keeps harping on polygamy as an imagined consequence of same-sex marriage to distract attention from the far more obvious opening to polygamy his own principle entails.

Bon mot from my father Vladimir,

who's traveling from Houston to Austin today: Drang nach Austin.

P.S. Of course, there's nothing new under the sun. In January 1998, one Edward A. Cowan made the same joke on LIEDER-L.

Movie recommendations:

On previous trips to Europe, I saw (and later recommended) Bella Martha (released here as Mostly Martha) and Pani e tulipani (released here as Bread and Tulips). (Query: Go together like mint and juleps?) Sadly, Vaya con Dios — a road trip movie about monks (in modern times) and the redeeming power of a cappella — doesn't seem to have been released here, nor is it available on Netflix. Watch out for it, though. (See my previous posts about some of these movies here and here.)

New recommendations, from my recent trip to Moscow: Izobrazhaia zhertvu (Playing the Victim), which is basically Donnie Darko meets Hamlet. The title comes from the main character's occupation — he's a twenty-something slacker who makes a living playing the victim in police reenactments of crimes. The second movie I liked is Mne ne bol'no (It Doesn't Hurt), which is tough to describe. (Buddy movie with kids in St. Petersburg trying to make it as architects; romance with an eccentric girl; also a bit part by Nikita Mikhalkov.) In particular, I liked the song "Pozovi menia nebo" by Vadim Samoilov of the band Agata Kristi. At least It Doesn't Hurt has an English working title on IMDB, which may mean it might travel?

While I'm on the subject of Russian movies, here are some older Russian (Soviet-era) movies, both available on Netflix. Vokzal dlia dvoikh (Railway Station for Two) is excellent, and has a brief appearance by a young Nikita Mikhalkov. I think the star, Liudmila Gurchenko, looks a bit like Felicity Huffman. My mother was once confused with Gurchenko when she was in Moscow, so it all connects. Moskva slezam ne verit (Moscow Does Not Believe in Tears) is also pretty good. I enjoyed the title song, sung by Sergei and Tatiana Nikitin to words by the well-known Russian bard Yuri Vizbor (and which, having gotten it on CD, I've been singing over and over):

Alexandra, Alexandra, this city is yours and mine;
We've become its destiny — just look into its face!
Whatever there was at the beginning, it will ease all your sorrows;
And that's how the Moscow ring road became our engagement ring.
And moving on to non-Russian films, you have all got to see Wait Until Dark, the 1967 thriller starring Audrey Hepburn and also featuring Alan Arkin, Richard Crenna, and Efrem Zimbalist, Jr. Audrey Hepburn plays a blind woman who has to match wits against crooks who are trying to con her and later terrorize her in her apartment. Not only is it legitimately suspenseful — which I didn't expect of an Old Movie — but the blindness/self-reliance theme also makes this a very good Objectivist movie, similar to Million Dollar Baby. (My theory, by the way, is that Gilbert and Sullivan's Patience is also excellent for Objectivists on aesthetic theory.) On a different note, those who like Jane Austen, rather than watching the awful Keira Knightley movie, should try out the Indian movie Bride and Prejudice.

Related Posts (on one page):

  1. Movie recommendations:
  2. Dispatch from Moscow:
Colorado Governor's Race:

The race for governor in the purple state of Colorado features Democrat Bill Ritter (former D.A. of Denver) versus Republican Bob Beauprez (U.S. Rep. of the 7th C.D., south and east of Denver). According to the Denver Post, Ritter recently told a meeting of "several members of the state's business elite" that he agreed with 38 of Owens' 47 vetoes in 2005. Award-winning political columnist (and retired 22-year legislator, and my father) Jerry Kopel calls on Ritter to disclose to everyone which bills he would vetoed. My father also urges the state legislature's Democratic leadership to "talk some sense into him about how far he can go in losing the Democratic base and alienating Democratic legislators or nominees in order to ensure funding from the 'business elite'."


Wednesday, August 23, 2006

Wall St. Journal on the housing market:

A very interesting piece, and quite different from the articles we were seeing a year ago at this time, with all quoted sources insisting that at worst the market was in for a "soft landing", but most arguing for continued 8% to 12% annual appreciation. Especially interesting is Bob Toll of homebuilder Toll Brothers stating that we are in a "hard landing." Toll raised eyebrows last July by selling tens of millions of dollars of his stock (noted here) while still insisting that he believed in his company's prospects. At the time, Toll shares were selling for around (a split-adjusted) $50 a share; they are now down to under $25. I reported on this blog last July that Toll, in what I think were unprepared remarks at a real estate summit, predicted a 20% correction at the high end, and I advised that "It's time to run for the hills." Toll now says that the market is much worse than he envisioned.

Advantage: Volokh Conspiracy!

Some practical differences between same-sex and multiple-partner marriages:

David Link, an attorney who has worked in the California legislature for eight years and has written for Reason and the L.A. Times, has followed the recent exchange among Professor Robert George, Jon Rauch, Maggie Gallagher, and me over gay marriage and polygamy. He has emailed me his thoughts on some practical differences between recognizing dyadic same-sex marriages and recognizing polygamous/polyamorous marriages.

Multiple partner marriages, he argues, would raise many issues simply not present in gay marriages:

Some recent events related to polygamy have brought the slippery slope argument back into prominence for gay marriage advocates. See reactions to Robert George here. The argument has, as a premise, that same-sex marriage is enough like polygamy that legislatures or courts could not distinguish them; if the first is approved, the second would likely follow. In Professor George’s words, there is no “principled” or “serious” argument that could accept same-sex marriage but not polygamy.

But there are differences between same-sex marriage and polygamy that would make it perfectly sensible for society – whether acting through a legislature, a vote of the people, or a court — to draw a line that includes same-sex marriage, but excludes polygamy.

The key difference can be found by asking a fairly simple question that gets very little focus in the current debate: in a polygamous marriage, who is married to whom?

Since polygamy is illegal in America, we seldom have reason to think about such an obvious question. But it’s at the heart of the reason some of us would be perfectly comfortable saying that polygamy is so different from same-sex marriage that the one could fit into our understanding of marriage, while the other does not.

The difference comes down to arithmetic. Same-sex marriages have the same dyadic structure that all heterosexual marriages now have. Each partner is married to the other, and only to the other. Their rights and obligations to one another, to any children they may have, and to any third parties who might have some interest in the relationship, such as banks, creditors, parties to contracts, etc., are usually quite clear.

That’s not true with polygamy.

In the dominant form of polygamy, where one man is married to several wives, he is, in some way, “married” to each one of the wives individually. But the exact boundaries of such relationships are unclear, and we have no modern experience to know how far they might extend.

But what about the relationships of the wives to one another? Are they similarly “married” to all the other wives in the marriage? Specifically, as a matter of public policy, are they legally married to one another the way a husband and wife are under current marriage law?

Stay with that question. If the answer is “yes,” then if the husband died, would the wives continue to be married to each other? Why or why not? For those who find same-sex marriage objectionable, why wouldn’t those relationships among the wives be same-sex marriages? In ancient cultures where women may have had fewer rights than men, such questions might never have come up. But they would be inevitable in today’s world if polygamy were to be seriously debated.

And every question like these leads to others. Assume the husband is alive, but relationships with him sour. Could some or all of the wives divorce the husband, but continue to be married to one another? Could they divorce one another? Again, why or why not? And if the answer is “yes,” how would that work? Who files what papers, naming whom? Would the various partners choose up sides in the ensuing divorce proceedings, and how would a court deal with that?

Another question related to divorce: Could an individual wife file for divorce of only herself, or would a divorce petition dissolve the entire marriage? What about if it’s the husband who wants a divorce? Should the rule for him be different than the rule for the women – i.e. could his successful petition for divorce dissolve the entire marriage, while a wife’s successful petition only removed her from the marriage? Or consider the situation where one woman is married to several husbands – or where several women are married to several husbands. Again, who would be able to divorce whom, and why? How would such actions affect other spouses?

And – central to the present debate — what about the children? If the husband – or one of the wives – wanted out of a polygamous marriage, what would the rules be for who gets custody of the children – and who is responsible for child support? Do the other wives have a claim to custody, along with their husband? What about child support payments? All the wives would almost certainly have some long-term relationship with children of each of them. Would it be good for the children to cut off those relationships because one wife wanted out of the marriage?

The questions related to divorce illustrate only the legal and policy problems within the marriage. But what about the critical question of how outside parties would be affected by polygamous marriages – no small thing in the modern world. There are clear rules when a contractor signs up to remodel a married couple’s kitchen about the couple’s legal responsibility for payment. But what about a contractor remodeling a polygamous family’s kitchen? If, as in “Big Love,” each wife has her own house, and the one who gets the remodel can’t or doesn’t pay, can the contractor go after a wife with sounder finances? Again, why or why not?

The fact that we do not know the answers to these questions – and thousands of others – is at the core of why polygamy is dramatically different, as a matter of public policy, from same-sex marriage.

If anyone wants to argue in favor of polygamy – and for the present such advocates still remain either imaginary or well out of the political mainstream – they will have a lot more questions to answer than advocates for same-sex marriage do. That is because of a very simple reason. Same-sex marriage has the arithmetic on its side. It is mutual, binary, and fully capable of being subject of all existing laws related to marriage.

Polygamy would require a genuine rethinking of marriage. And its multiplicity truly does have the capacity to undermine marriage: psychologically, culturally and legally. In fact, polygamy offers exactly the kind of concrete danger to marriage as we know it that same-sex marriage opponents have only been able to insinuate. This difference between same-sex marriage and polygamy can serve as at least one sound basis to argue that same-sex marriage is consistent with marriage as we understand it in today’s world, but polygamous marriage is not.

These issues could be addressed, special rules worked out to accommodate the many differences between dyadic and multiple-partner marriages, etc. But they are large and numerous enough to suggest that the slope is a lot more sticky than some people suppose.

UPDATE: A number of commenters have suggested that the problems David Link points to have been addressed in one way or another by societies that have practiced polygamy for thousands of years — and thus the problems are not insuperable. "Polygamy has been quite common in Islamic societies," notes one commenter, and surely we can learn from them. But this only exposes a much larger problem that separates the recognition of same-sex marriage from the recognition of polygamous marriage: sex equality. Marriage in the West has evolved over the past 150 years or so into an equal partnership, where both man and woman have more or less equal rights and responsibilities. The legal distinctions between men and women in marriage have been largely erased. In the traditionalist, pre-modern societies where polygamy flourished this norm of sex equality was simply not present. Gay marriage, by contrast, is fully consistent with our commitment to sex equality. In fact, it is partly an outgrowth of that commitment.

Making polygamy (and multiple-partner marriage generally) work in a modern society where sex-equality norms are strong would not be a simple matter of transferring the legal rules from these other, earlier societies to ours. It would require a great deal of adjustment, both to our marriage practices and to the historical practice of polygamy. Again, the point is not that these adjustments could not be made — with a whole lot of effort they could be, at some cost. The point is that having to make them separates the issue from dyadic same-sex marriage in a way that makes either the logical or political/ideological slide seem unlikely.

The practical issues Link raises are not the only reason there's no slippery slope from gay marriage to multiple-partner marriage, as I have written previously here and here, and Eugene has discussed in a very thorough law review article on the subject, but they are a part of it.

The Catholic Church and Evolution:

The U.K. Daily Mail reports that "Pope Benedict XVI has sacked his chief astronomer after a series of public clashes over the theory of evolution":

Although the Vatican did not give reasons for Father Coyne’s replacement, sources close to the Holy See say that Benedict would have been unhappy with the priest’s public opposition to intelligent design theory.

Father Coyne’s most notable intervention came after Cardinal Christoph Schonborn of Vienna, a former student of the Pope, put the case for intelligent design in an article in the New York Times in July last year.

The cardinal, responding to an explosive debate on evolution in the US, had argued that Darwinian concepts of "random variation and natural selection" were incompatible with the Catholic belief that there is a divine purpose and design to nature.

The cardinal also said that the evolution had become an atheistic ideological dogma that was being used against the Church.

The views of Cardinal Schonborn, one of the authors of the 1992 Catechism of the Catholic Church, were criticised just a month later in an article written by Father Coyne for the London-based Tablet magazine.

God "is not constantly intervening, but rather allows, participates, loves," Fr Coyne wrote, adding: "Religious believers must move away from the notion of a dictator or designer God, a Newtonian God who made the universe as a watch that ticks along regularly...."

I don't have to add much to the story, but if you're interested in reading the astronomer's article that the story mentions -- an article that, as I read it, is much more about theology than about science as such -- I found it here.

Lucrative Job Opportunity for GMU Law Students:

Looking over my research budget, it looks like I can hire as many as 2 or 3 more research assistants this semester than I originally expected. So if you are a GMU Law student and you read the VC regularly, as I know some of you do (perhaps because we're not assigning you enough classwork to keep you busy!), you may want to take advantage of this incredibly lucrative and prestigious job opportunity. You may also be able to choose to work for credit rather than pay. Please e-mail me (with copy of resume) if interested. To get an idea of the kinds of projects I use RAs for, you can check out my recent and forthcoming articles on my SSRN author page.

Sadly, I am not allowed to use RAs to research VC blog posts!

The War on Drugs vs. The War on Terror

Apropos David Kopel's recent post on the conflict between the War on Drugs and the War on Terror, I blogged about a related example of this contradiction a few months ago.

Churches and Eminent Domain:

In this recent Findlaw column, Cardozo Law School Professor Marci Hamilton criticizes Senator Ted Kennedy's proposal to give church property special protection against condemnation.

I agree with Prof. Hamilton's bottom-line conclusion: that church property should not be given greater protection against takings than other property owners enjoy. I also tentatively agree that Kennedy's proposal may violate the Establishment Clause, though this issue is really outside my area of expertise.

However, I think Hamilton is mistaken in her claim that church property is not unusually vulnerable to "economic development" condemnations of the sort that the U.S. Supreme Court upheld in Kelo v. City of New London. To support her claim that "there is no real issue when it comes to churches and eminent domain," Hamilton relies on an excellent forthcoming article by Notre Dame law professor Nicole Garnett. Hamilton claims that the Garnett article proves that local governments usually try to avoid condemning churches because of the likelihood of strong political opposition.

However, the relevant part of the article (pp. 13-23) proves no such thing. It focuses principally on the city of Chicago's retreat from efforts to condemn Catholic churches in the 1950s and 60s. The Catholic Church is well-organized for political mobilization and lobbying and had extensive political connections in Chicago at the time, as Garnett notes. Moreover, as Garnett also points out, Catholics were a majority of Chicago voters at the time, and area Catholics had a very strong commitment to their local parish churches. The fact that a politically powerful church to which the majority of local voters belonged was able to resist condemnation politically does not mean that churches with less political clout will be equally successful. Similarly, the fact that Bill Gates' mansion or George W. Bush's ranch is unlikely to be condemned does not mean homeowners in general are not vulnerable to takings - particularly those who are poor or politically weak. Even the Catholic Church has sometimes been victimized by condemnation in areas where it is less politically influential than it was in 1950s Chicago. For example, numerous Catholic churches were condemned in the notorious 1981 Poletown case, which resulted in the forcible displacment of some 4000 people in order to build a new factory for GM.

The Becket Fund for Religious Liberty Amicus Brief in Kelo cites numerous cases where church property has indeed been targeted for condemnation, almost always in places where the denomination in question was less politically powerful than the Catholic Church in 1950s Chicago. It also explains why church property is unusually vulnerable to economic development condemnations that seek to increase economic growth or raise tax revenue:

Because religious institutions are overwhelmingly non-profit and tax-exempt, they will generate less in tax revenues than virtually any proposed commercial or residential use. Accordingly, when a municipality considers what properties should be included under condemnation plans designed to increase for-profit development and increase taxable properties, the non-profit, tax-exempt property of religious institutions will by definition always qualify and always be vulnerable to seizure.

Politically influential churches will usually be able to force the government to desist, but the politically weak are unlikely to be so fortunate.

Ultimately, I believe that the best way to prevent targeting of churches for condemnation is to limit the power of eminent domain more generally, by abolishing "economic development" takings. Alternatively, states could give heightened protection to religious and secular nonprofit institutions alike. The meeting place of a secular civic group or, for that matter, that of an atheist organization, is no less worthy of protection than are churches. This approach would reduce the special vulnerability of church property without raising the sorts of Establishment Clause concerns that bedevil Ted Kennedy's proposal. But we should not ignore the evidence that churches (at least those belonging to politically weak denominations) are indeed vulnerable to economic development takings.

NOTE: I have followed Prof. Hamilton in using the word "church" as a synonym for all property owned by religious organizations, including non-Christian ones. Obviously, houses of worship belonging to religious minorities are no less vulnerable than Christian ones, and in some cases more so, if the minority in question is locally unpopular.

War on Drugs versus War on Terrorists:

During the recent war against Israel, Hezbollah used night vision equipment which had been supplied by Iran, as detailed in a new article by the Jewish Institute of National Security Affairs. Iran had obtained the equipment from the United Kingdom to "bolster Iranian efforts to combat heroin smuggling across the Afghan border as part of the UN Drug Control Program." The U.K. was extremely foolish to expect the Iranian tyrants to keep their promises not to divert the equipment to military use.

This is far from the only example of how excessive zeal in the drug war undermines the national security interest of democracies. A similar problem is evident in Latin America, as Mike Krause and I wrote in "A Foreign Policy Disaster," a chapter in the book The New Prohibition: Voices of Dissent Challenge the Drug War (Accurate Press, 2004).

The Unpersuasive Ethics Claim Against Judge Taylor: The New York Times has a report on the ethics issues raised by Judicial Watch in the NSA surveillance case. It turns out that Judge Taylor, the district court judge, is a trustee and officer of a charitable group that gave $125,000 to the ACLU, the plaintiff in the case. According to the legal ethics experts consulted by the Times — Profs Lubet, Gillers, and Rhode — Judge Taylor should have disclosed her relationship, although recusal was not necessary.

  This judgment seems pretty sensible to me, but I do take objection what some will take as the broader gist of the story as reported in the Times and elsewhere. To the extent that the story raises the question of whether Judge Taylor was biased in favor of the ACLU because of some kind of financial relationship with it, that suggestion strikes me as totally bogus. I don't think Judge Taylor wrote a good opinion, but I think it's very far-fetched and rather insulting to her to suggest that her opinion was influenced by some kind of actual conflict of interest.
Never Make the Mistake of Believing Your Own Metaphors:

A commenter on my Income Tax and the Sanctity of Property in Our Constitutional System writes:

You are ALL missing the point. Compensation for a tortious wrong is not income. If it were taxed, then you would not be made whole. Let's say someone negligently chops off your arm and then pays you a settlement that perfectly compensates you for the loss of your arm. There is no income. There is no gain. The money is just compensation for the loss of your arm. That money = your arm. Because the government cannot take a random piece of your arm, the government cannot tax your compensatory judgment. No level of American government has the right to just hack off a little piece of your arm. All of you on this thread are absolutely wrong and you should be ashamed. This decision is absolutely right.

Let's follow the flow of the argument. The argument begins with a sensible claim about the tort system: If compensation for a tortious wrong were taxed, then you wouldn't be made whole. To give a concrete example, say I have $100,000 in assets; I pay no income tax on that capital. Say then that someone steals the $100,000, and I get it back from him, whether through litigation or otherwise -- I'm no better off than I was before the theft, so it's hard to see why I should end up just with just $60,000, after the state and federal governments get their income tax cut. If we treat personal injury causing $100,000 in pain and suffering as similar to the theft of the $100,000, the principle of tort law is to try to put me back as much as possible into my pre-injury condition, by awarding me $100,000 in damages. Taxing those $100,000 would leave me worse off than I would have been but for the injury (assuming that $100,000 is indeed the compensation that leaves me as well off as before, and thus accepting the theory that the money compensates me for pain). Allowing this money to be taxed would thus undermine the goals of tax law.

Then the argument continues, appealing to the logic of income tax law and not just tort law: "There is no income. There is no gain. The money is just compensation for the loss of your arm." Because the income tax generally taxes income, the argument goes -- stuff you get on top of what you had before -- and because the compensation doesn't really give you more than you had before, taxing the compensation is inconsistent with the underlying principles of income tax law as well as of tort law. So far so good.

And then the argument abruptly plummets from sensible, albeit necessarily cursory, policy argument into sheer formalistic zaniness: "That money = your arm. Because the government cannot take a random piece of your arm, the government cannot tax your compensatory judgment. No level of American government has the right to just hack off a little piece of your arm. All of you on this thread are absolutely wrong and you should be ashamed. This decision is absolutely right."

"That money = your arm"?! Equals? Not just that money compensates you for the loss of your arm, but actually equals it?

That statement is simply and obviously false. It may represent a metaphor at the heart of tort law, but metaphors aren't reality. They may help us understand reality, because in some ways they represent reality. But in other ways they depart from reality (that's why they're metaphors).

"That money = your arm" may make sense for the purposes of understanding how tort law (or even tax law) often treats compensation for personal injuries. But you can't use it with arguments about the law or morality of dismemberment, because those arguments work only with actual arms, not just with metaphorical equivalents of arms. After all, if "that money = your arm," does it mean that if you get the money and then go bankrupt, your creditors can't recover part of that money, given that creditors can't physically dismember you? If "that money = your arm," and then you buy a house with that money, does it mean that "that house = that money = your arm," and you can't be required to pay property taxes on that house? I'd say "that way lies madness," but the madness actually lies at the very first step, which is treating "that money = your arm" as reality rather than metaphor.

Now this is an extreme sort of error; hardly anyone goes quite this far in believing his own metaphors. But I do think it's a helpful illustration of a general problem.

I'm often a formalist in the sense that I generally think that formal legal characterizations are often worth using. That something is called "speech" should influence the way we treat it, and even if we call other things than speech (e.g., waving a flag, wearing a cross, using sign language) "speech," once this characterization is accepted it may make sense to use it in a broad range of cases. But we should never forget that these labels are metaphorical, otherwise figurative, or just generally imprecise. We should never forget that in law, "X = Y" is often just a shorthand for "X is like Y in certain important ways" or "X should be treated like Y in certain important way," that in certain other ways X and Y can remain quite different, and that therefore treating them as genuinely equal is a recipe for massive error.

A classic legal fiction is said to be that for certain old English legal purposes the island of Minorca was treated as being "located within the parish of Mary-le-Bow in the ward of Cheap in the city of London." Yet even if that, within the English legal system, was a perfectly sensible way of dealing with certain kinds of procedural matters, you shouldn't try to walk there from the Houses of Parliament. "Think things not words," as Justice Oliver Wendell Holmes admonished, "or at least ... constantly translate [y]our words into the facts for which they stand, if [you] are to keep to the real and the true."

Human Rights Watch's Credibility--Not So Good:

HRW: "At the sites visited by Human Rights Watch—Qana, Srifa, Tyre, and the southern suburbs of Beirut—on-site investigations did not identify any signs of military activity in the area attacked, such as trenches, destroyed rocket launchers, other military equipment, or dead or wounded fighters."

It apparently raised no eyebrows among HRW staff that of the fifteen "civilian" victims in Srifa it identifies in its report, all were men, and thirteen of them were of normal fighting age (17-35).

N.Y. Times, August 16th, 2006, at 9: "Mr. Kamaleldin, the Sreifa [same as Srifa] official, estimated that up to two-thirds of the town's homes and buildings were demolished, leaving more than 43 people buried in the rubble. A majority of them were fighters belonging to Hezbollah and the allied Amal Party, residents said."

Of course, Human Rights Watch claimed that its sources are credible, and even claimed that "[a]ll cases for which Human Rights Watch could not find eyewitnesses, survivors, or other credible sources of information have been excluded from this report." Right. I'm sure the "eyewitnesses" and "survivors" who stayed in Srifa during the war had no ties to the Party of God (Hezbollah), and no incentive to lie on its behalf.

HRW's report with the false information is still on its website. Any bets as to whether Kenneth Roth will issue a correction, and an apology?

Thanks to reader Larry Rothenberg for the tip.

UPDATE: Dershowitz at the Huffington Post has much more on HRW, concluding that it is repeating "demonstrably false conclusions."

*Here's the evidence that HRW had for Israel "indiscriminately" attacking civilians in Srifa: According to a villager who was in the village at the time of the attack:

There was no Hezbollah in the neighborhood. This neighborhood is known to be partial to the Communist Party, not Hezbollah. There are no Hezbollah people living there. Hezbollah does not have a need to be in this neighborhood, because we are 40 kilometers away from Israel, and the neighborhood looks out over the sea, it is not a strategic place.

Two additional villagers told Human Rights Watch in separate interviews that Hezbollah had not been present in the neighborhood around the time of the attack. "Except for one person, who didn't even belong to Hezbollah, no one in that neighborhood knew how to handle weapons," said Hussain Nazal. He added, "If they hit some houses that belong to Hezbollah we would understand, but this is not the [Hezbollah] neighborhood."

Apparently, HRW thinks it's okay to accuse a country of war crimes based solely on hearsay evidence of male "villagers", acquired while the war was ongoing, who are hanging out in a POG stronghold during an Israeli bombardment, after being warned to leave. Even if these villagers were not POG affiliates (but maybe they are) or even sympathizers, how do you think Hezbollah would have reacted if they had been quoted in an HRW report during the war as stating that Israel was only carefully targeting POG strongholds? I certainly wouldn't issue life insurance to them under such circumstances.

Related Posts (on one page):

  1. Human Rights Watch's Credibility--Not So Good:
  2. The Decline of Amnesty International:
Searching for a European Power Willing to police the Cease-Fire in Lebanon.--

The Belmont Report discusses the difficulties that European powers are having in agreeing to pacify Lebanon until someone else pacifies it first:

Though many people reflexively disagree with President Bush, his statement that the ceasefire in Lebanon under UNSC Resolution 1701 will collapse unless a major European country makes a substantial contribution of troops to an expanded UNIFIL force will probably meet with wide agreement. It is now hoped that Italy will fill the gap left by the sudden refusal of France, co-sponsor of 1701, to send more than 200 men to the contingent. The problem is that the Europeans have no intention of disarming Hezbollah by force, which would require high intensity combat operations and politically unpopular casualties. France actually wanted an assurance that Hezbollah would be "safed" before they made their appearance. MSNBC reported: "French officials on Tuesday (Aug 15) insisted Paris would resist leading a bolstered international force in southern Lebanon without Lebanese government assurances that Hizbollah, the militant Shia group, would be disarmed. ... French officials accept that disarming Hizbollah would not happen overnight but say an international force could not be deployed until a demilitarized zone was created."

Nor would the "international community" leave the disarmament of Hezbollah to Israel, even under its residual right to self-defense under 1701. The UN actually warned Israel that it was violating the ceasefire simply by using force to interdict arms smuggling from Syria -- arms meant to attack Israel.

UN Secretary General Kofi Annan views the Israel Defense Forces' commando operation near Baalbek over the weekend as a violation of the cease-fire agreement, UN envoy Terje Roed-Larsen told Foreign Minister Tzipi Livni during their meeting in Jerusalem Monday. "If you discovered arms smuggling, you could have complained through diplomatic channels," Larsen told Livni.

There was something of the air of unreality about Italian Foreign Minister Massimo D'Alema statement on Tuesday that "From Israel, we expect a renewed effort, this time truly binding, to respect the ceasefire. It's fair to expect that Hizbollah put down their weapons, but we cannot send our troops to Lebanon if the (Israeli) army keeps shooting."

Ann Althouse on the NSA Case in the NY Times.--

In an op-ed in the New York Times, Ann Althouse argues:

TO end her opinion in American Civil Liberties Union v. National Security Agency — the case that enjoins President Bush’s warrantless surveillance program — Judge Anna Diggs Taylor quoted Earl Warren (referring to him as “Justice Warren,” not “Chief Justice Warren,” as if she wanted to spotlight her carelessness): “It would indeed be ironic if, in the name of national defense, we would sanction the subversion of ... those liberties ... which makes the defense of the nation worthwhile.”

As long as we’re appreciating irony, let’s consider the irony of emphasizing the importance of holding one branch of the federal government, the executive, to the strict limits of the rule of law while sitting in another branch of the federal government, the judiciary, and blithely ignoring your own obligations. . . .

Look at that juicy quotation from Judge Taylor’s ruling: “There are no hereditary kings in America and no powers not created by the Constitution.”

But this is sheer sophistry. The potential for the president to abuse his power has nothing to do with kings and heredity. (How much power do hereditary kings have these days, anyway?) And, indeed, the president is not claiming he has powers outside of the Constitution. He isn’t arguing that he’s above the law. He’s making an aggressive argument about the scope of his power under the law.

It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they’ve concluded that the program is legal. Why should the judicial view prevail over the president’s?

This, of course, is the most basic question in constitutional law, the one addressed in Marbury v. Madison. The public may have become so used to the notion that a judge’s word is what counts that it forgets why this is true. The judges have this constitutional power only because they operate by a judicial method that restricts them to resolving concrete controversies and requires them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law. . . .

This means that the judge has a constitutional duty, under the doctrine of standing, to respond only to concretely injured plaintiffs who are suing the entity that caused their injury and for the purpose of remedying that injury. We trust the judge to say what the law is because the judge “must of necessity expound and interpret” in order to decide cases, as Chief Justice John Marshall wrote in Marbury. But Judge Taylor breezed through two of the three elements of standing doctrine — this constitutional limit on her power — in what looks like a headlong rush through a whole series of difficult legal questions to get to an outcome in her heart she knew was right.

If the words of the written opinion reveal that the judge did not follow the discipline of the judicial process, what sense does it make to take the judge’s word about what the law means over the word of the president? If the judge’s own writing does not support a belief that the rule of law has substance and depth, that law is something apart from political will, the significance of saying the president has gone beyond the limits of the law evaporates.

There’s irony for you.


Tuesday, August 22, 2006

The Decline of Amnesty International:


"[In a report accusing Israel of war crimes, Amnesty International] accused Israel of applying an overly broad interpretation of what constituted a military objective when it attacked power plants, bridges, main roads, seaports and Beirut's international airport, all of which are 'presumed to be civilian.'"

I'm no military expert, but every book, movie, documentary, etc., I've ever seen on war assumes that at least bridges [how many WWII movies have a scene focused on taking a bridge?], roads and seaports are important military targets, and in modern times I'd have to put airports on that list, too. The idea that a country at war can't attack the enemy's resupply routes (at least until it has direct evidence that there is a particular military shipment arriving) has nothing to do with human rights or war crimes, and a lot to do with a pacifist attitude that seeks to make war, regardless of the justification for it or the restraint in prosecuting it [at least if it's a Western country doing it], an international "crime."* Not to mention that the Beirut airport was only temporarily shut down with minor damage, and is already reopen. [If Amnesty International wants to make the case that the Party of God would not and could not use any of the relevant targets for resupply, and Israel knew it, that's a different story, but I'd love to see such evidence, which, to say the least, would be counter-intuitive.]

I also have to question the "high number of civilian casualties" that Amnesty is reportedly relying on. Any innocent civilian death are tragic, but 1,000 or so (alleged, we don't really know) civilians in a month of urban warfare against an enemy that based itself in the middle of cities and villages hardly seems excessive by any objective standard. The idea that Israel deliberately targeted civilians should be self-refuting to anyone with common sense, given the low level of casualties relative to the destructive power of the Israeli air force.

I once generally admired Amnesty when it focused on protecting political dissidents on the like, but, like many other NGOs, it seems now to have simply become part of the international far Left, and should be seen in that light.

UPDATE: Does it change things from a human rights or "international law" perspective that Israel was in effect "at war" with the Party of God, not Lebanon? As a moral matter, I don't see why it should, especially because (a) the Party of God is operating from Lebanese sovereign territory, and is part of the Lebanese government and (b) Israel only has an armistice agreement with Lebanon, and the two countries are technically (that is, legally) still at war. If someone nevertheless wants to explain in the comments why it should matter, I'm all ears.

FURTHER UPDATE: This article by Kenneth Roth of Human Rights Watch is also revealing. Roth claims that international humanitarian law required Israel to "treat[] Lebanese civilians as human beings whose lives are as valuable as Israelis'." Can you imagine any government doing this? In other words, a terrorist group in Gaza or Lebanon is attacking Israeli civilian targets. According to Roth's logic, Israel can only retaliate if it's retaliation will cost no more civilian lives in Gaza or Lebanon than would be caused by the terrorists if Israel didn't try to stop them. This is a formula that would paralyze not only Israel, but the U.S., Russian, India, and any other country that feels the need to pursue a military response to terrorism. Surely, the Allied forces inadvertantly killed more Afghan civilians than the number of Westerners likely at immediate risk from Al Qaeda and the Taliban! The type of "international law" and "human rights" activism that Roth and co. represent is scrupulously amoral in failing to consider that the aggressor should be held responsible for the deaths on both sides, as you can't expect any nation to allow its civilians to be attacked and not retaliate militarily. And it's also ridiculously utopian, in the sense that it expects citizens of a democratic polity to value the lives of civilians on the other side, including civilians who openly support terrorist enemies, as highly as their own, their family's and their countrymen's.

*Relevant excerpt from the Amnesty report: "However, even if it could be argued that some of these objects could qualify as military objectives (because they serve a dual purpose), Israel is obligated to ensure that attacking these objects would not violate the principle of proportionality. For example, a road that can be used for military transport is still primarily civilian in nature. The military advantage anticipated from destroying the road must be measured against the likely effect on civilians, especially the most vulnerable, such as those requiring urgent medical attention."

In other words, no country can ever attack road, port, bridge, etc., facilities used by an irregular, guerrilla army, because by the very nature of such an army, these facilities will primarily be used by civilians. Or, put another way, a country at war must sacrifice the lives of its own soldiers and perhaps civilians by avoiding attacking military targets that are also used by civilians, unless you can come up with some sort of cockamamie calculation that somehow proves that the military benefit is greater than the harm to the other side's civilians. I'm sure there are people out there who believe this, but again, this is a highly ideological position that reflects a strongly pacifist sentiment, and should not be confused with the sort of objective human rights standard (e.g., don't lock up someone for writing a newspaper article critical of the government) that all "liberals" of good will could agree on.

Related Posts (on one page):

  1. Human Rights Watch's Credibility--Not So Good:
  2. The Decline of Amnesty International:
More on the NSA Domestic Surveillance Case and Its Chances on Appeal: The excellent comment thread to yesterday's post on the NSA domestic surveillance case showed that there were a bunch of procedural aspects of the case that I was missing, and I wanted to follow up about those issues because they change the picture of the issues the Sixth Circuit faces on appeal. (Normally these things would have been clear from reading the district court opinion, but the opinion didn't include them. I haven't been following the case closely, so many thanks to those who were and helped fill us in.)

  The key dynamic that emerges from the commentary thread yesterday is that Judge Taylor asked DOJ to brief the merits of the case, and DOJ essentially refused to do so. (Procedural history of the case here.) DOJ's argument, if I understand it, was that it couldn't brief the merits without divulging state secrets; Judge Taylor evidently disagreed, and so took DOJ's refusal to brief the merits as a failure to dispute the facts and ruled against it. The civ pro people on the earlier thread seem to disagree whether this was proper; I'm not familiar enough with the issue of the top of my head to know which side is right, and it's far afield from my area of expertise so it's not something I'm planning to research, so I'm not sure of how that issue should be answered.

  Assuming it was correct as a procedural matter, I gather DOJ made a bit of a gamble: I gather the folks at DOJ figured that Judge Taylor was going to rule against them one way or the other, so it was better to just let her do that and head to the Sixth Circuit (and if necessary, the Supreme Court) to duke out the issues if need be in a more hospitable forum.

  What does this tell us about the future of the case on appeal? Well, if the Sixth Circuit judges agree that reaching the merits was procedurally proper, obviously it provides one less reason to reverse. On the whole, though, I still think it seems likely that the Sixth Circuit will reverse, and if they don't, that the Supreme Court will. Here's my thinking: in order to affirm, a higher court would have to agree that a) the resolution was procedurally proper, b) the plaintiffs have standing, and c) the case can go forward under the state secrets privilege, and d) there is a winning substantive cause of action that supports injunctive relief. Maybe I'm missing something, but I believe the ACLU would have to win on all four of these claims to have Taylor's judgement affirmed.

  That doesn't seem very likely to me. For example, on (d), none of the causes of action that Judge Taylor used to support the injunction seem persuasive to me; the only viable cause of action at this stage seems to be one that she didn't cover, FISA. If we're at a procedural stage that it can be understood that the TSP constitutes "electronic surveillance," then an appellate court could hold that FISA blocks the TSP and that DOJ's AUMF argument is unpersuasive as a matter of law. But this hinges on an issue that I asked before, and that no one seems to have an answer to: does FISA permit injunctive relief? I don't see how it does, for the reason mentioned in my earlier post, and if it doesn't I'm not sure how it can permit the injunction.

  Finally, my apologies to Glenn Greewald for calling his theory "bizarre"; I now have a better idea of what he was talking about, and while I'm not sure he is right, his view on the procedural issue (properly understood) isn't bizarre. And of course, I'm very glad that my prior post can help Glenn work through some of his apparent issues with law professors (bad experience with the Socratic Method, perhaps?).
Income Tax and Sanctity of Property in Our Constitutional System:

As Orin points out, the D.C. Circuit has just held that a small part of the federal tax code exceeds Congress's power to lay income taxes under the Sixteenth Amendment. The tax code, the court held, does tax as income compensatory damages for emotional distress and loss of reputation. But such damages aren't "income" for purposes of the Sixteenth Amendment ("The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration"), because they are not a gain but merely a compensation for loss; therefore, the court held, they can't constitutionally be subjected to the income tax.

I don't have much to say about the opinion but one thing did strike me. The court writes:

The Sixteenth Amendment simply does not authorize the Congress to tax as "incomes" every sort of revenue a taxpayer may receive.... [B]ecause the "the power to tax involves the power to destroy," it would not be consistent with our constitutional government, and the sanctity of property in our system, merely to rely upon the legislature to decide what constitutes income.

Yet "the sanctity of property in our system" does not generally protect people from taxes on their capital. Not only may the federal government impose taxes on transactions involving property (such as importation, gift, or disposition on death), but state governments are free to tax property in a wide range of ways, including by imposing a percentage tax on all possessed property.

The state may, for instance, impose a percentage tax on all real estate; it may do the same for personal property, though my understanding is that administrative (and political) problems usually prevent that from happening; and I think it would be quite free to impose a tax on compensatory damage awards as well. States have long taxes real estate, to my knowledge from before the Constitution, though a property tax is often thought of as a quintessential direct non-income tax that the federal government may not impose. There's just nothing in the federal Constitution, or to my knowledge in most state constitutions, that prohibits states from laying taxes either on capital or on compensation for loss. Our system just doesn't view such taxes on property as inconsistent with "the sanctity of property."

Rather, the limits on the federal income tax are limits specific to the federal government — limits that originated in the Direct Tax Clause and were then made much looser by the Sixteenth Amendment. They stem from concerns about federal power, not about government power more generally. And they thus have to do not with "the sanctity of property" as such, but rather with what only states and not the federal government should be able to do as to that property.

Related Posts (on one page):

  1. Income Tax and Sanctity of Property in Our Constitutional System:
  2. Constitutional Limits on the Power to Tax:

I thought I'd repost a question I asked four years ago, before we had comments: Why is Jesus a common name in Spanish-language cultures, but to my knowledge no other European-language cultures? (I don't know about Portuguese-language cultures; perhaps they're like the Spanish-language.)

It can't just be Christianity, or even Catholicism: I've never heard of Frenchmen, Italians, Poles, or Irishmen with that name. There's nothing theologically wrong with either approach, I'm sure -- but why is it that one huge part of Christendom embraces the name Jesus for its sons, while another rejects it almost entirely?

Jews: an Ethnic Group and Not Just a Religious One:

A commenter to the last post expressed doubt that Jews can be considered an ethnic group. Here's what I wrote about this in December 2004:

Jews are an ethnic group, though Judaism is also a religion. People can be ethnically Jewish though irreligious -- many Jews are.

[This has been the effective definition of "Jew" in many past incidents of anti-Semitism. M]any anti-Semites hate Jews without regard to their religion; the Nazis went after the irreligious Jews as well as the devout Jews, and so did the Soviets. Much anti-Semitic propaganda focuses on Jews' supposed ethnic or cultural traits, not their religion. Nor is this just an anti-Semitic view; as I understand mainstream Jewish religious teachings, someone whose mother is Jewish, which is to say generally someone who is ethnically Jewish, is "Jewish" for purposes of Judaism even if he is an atheist.

I realize that there's some fuzziness about the definition of "ethnicity" (it usually turns on people's descent, but descendants of converts to Judaism may often be treated as ethnically Jewish, just as descendants of people who moved to Ireland not long ago may often be treated as ethnically Irish -- especially when the descendants are now not in Ireland in any more, and especially if they characterize themselves as Irish). [But s]uffice it to say that an ethnic group is a group that's usually linked by descent and culture, and that perceived itself and is perceived by others as an ethnic group. We need not delve further into this here, except to say that Jews are often treated as an ethnic group much as are Irish, Poles, Gypsies, and so on.

I prefer to use the term "ethnicity" rather than "race" to refer to Jews. Historically, however, the term "race" has also included what we now think of as ethnicity, so Jews, Italians, Irish, and such were sometimes called "races" rather than just ethnic groups. [Likewise, some old U.S. statutes and some more recent foreign statutes have been understood as using "race" to include "ethnicity."]

We Are A Nation of Troublemakers:

A friend of mine who lives and works in Singapore mentioned to me David Marshall, a leading Singaporean political leader and apparently one of the Founding Fathers of Singaporean independence -- and, it turns out, a Jew, of Iraqi extraction of all things.

My tentative survey of Marshall's career suggests that I'd probably have disagreed with many of his positions, though I'd probably have agreed with others. I'm not trying to praise him, or to claim joy in my ethnic kinship with him. But it is striking just how politically active -- and often politically successful -- Jews seem to be, even in places where they're a tiny minority, and where you'd think their alien status might keep many voters from connecting with them and trusting them.

Debating the DTA Debate Redux:

Washington atorney David Remes and Ramesh Ponnuru rehash the debate over whether Senators Kyl and Graham, Justice Stevens, and others misrepresented the congressional debate over the Detainee Treatment Act on National Review Online.

Related Posts (on one page):

  1. Debating the DTA Debate Redux:
  2. Ponnuru & Bazelon Go Another Round:
  3. Debating the DTA Debate:
Did Education Department Omit Evolutionary Biology?

An article in the Chronicle of Higher Education (subscription required) reports that evolutionary biology is absent from a list of majors eligible for SMART Grants from the Department of Education under the Science and Mathematics Access to Retain Talent program. The omission is conspicuous because evolutionary biology is the only field classified by the Department under "Ecology, Evolution, Systematics and Population Biology" that is not listed.

Officials from the Department of Education who could comment on the matter were not available, but a spokeswoman said she suspected that the absence of evolutionary biology was a "clerical consolidation of some kind," and that evolution might fall under other topics.

Indeed, the word "evolution" is not entirely absent from the registry of eligible majors. It is still listed as a subtopic under other fields eligible for Smart grants. For instance, paleontology and genetics, both of which draw on evolutionary theories, list "evolution" as a potential area of focus for students in those subjects. There is also an "other" category, under which studies of evolution might fall.

Still, the absence is conspicuous: the only major with evolution in its title was one of only three among the physical sciences that appears to have been deleted from the list. For unknown reasons, "behavioral sciences" and "exercise psychology" are also absent.

Of course this might have been a clerical error. It also might have been some junior functionary's bright idea. (After all, this sort of thing has happened before.)

Related Posts (on one page):

  1. Evolutionary Biology Is Back:
  2. More on Evolutionary Biology Omission:
  3. Did Education Department Omit Evolutionary Biology?
Tough Times for Political Satirists:

John Stossel, "Does government stupidity know any bounds?"

These are tough days for political satirists. Any satire about government boondoggles is soon upstaged by an actual government program that's more inane than anything comedians could invent. After the 9/11 attacks, Congress passed a compassionate piece of legislation called the Supplemental Terrorist Relief Act. It was to give low-interest loans to small businesses disrupted by the attacks, allowing them to rebuild. The loans were supposed to help hotels, retailers, and small service businesses in lower Manhattan.

But, as usual, the government passed your money out everywhere. Terrorist Relief Act loans went to Dunkin' Donuts shops in Connecticut, Pennsylvania, Georgia, Vermont, and Ohio. The manager of the Essex Junction, Vt., Dunkin' Donuts defended his loan, saying 9/11 affected his business. "Instead of getting probably a large coffee and a couple of doughnuts," Tony Silva said, his customers got "a small coffee and a doughnut."

The Patriot Act was supposed to provide federal funding to states to equip the fire, police, and EMS officers who serve at the front lines of a terrorist attack. But the congressmen who wrote the law apparently believed that patriotism starts at home. Money was allocated under a complicated formula where each state, regardless of its size or location, got an equal slice of the pie before risk was even considered.

One result is that the police and fire departments in Casper, Wyo., (population 49,644), can talk to one another, and to their hospitals and EMS units, on a brand-new communications system. New York City (population 8,000,000) is still waiting for a similar system. Colchester, Vt., got $58,000 for a rescue vehicle capable of boring through concrete to search for victims in collapsed buildings. Colchester has a population of 18,000 souls and a severe shortage of big buildings.

It gets worse. Government health programs require states to pay for men's erections. I'm all for men having good sex lives, but why would government subsidize that?

Because our bloated government just cannot stop vomiting out the money.

Constitutional Limits on the Power to Tax: This morning the D.C. Circuit decided a fascinating case holding that the Constitution does not permit the federal government to collect income taxes on compensation for a non-physical work-related injury not related to wages or earnings.

  In Murphy v. IRS, Murphy received $70,000 from the state of New York for anxiety suffered and injury to her reputation for being unlawfully "blacklisted" after becoming a whistleblower aaginst her former employer, the New York Air National Guard. The government wanted to tax the $70,000 as income, but Murphy claimed that it was not taxable either because it was excludable as compensation for "personal physical injuries" or because the Internal Revenue Code is unconstitutional for trying to tax such earnings as income.

  Murphy drew a very favorable panel for this sort of claim -- Chief Judge Douglas Ginsburg, Judge Judith Rogers, and Judge Janice Rogers Brown -- and the panel held, in an opinion by Ginsburg, that the text of the Internal Revenue Code does not exclude such compensation but is unconstitutional for not doing so. The basic argument: When the Sixteenth Amendment was passed in 1913 and permitted the federal income tax, the framers of the amendment did not have this broad an understanding of "income." Here's an excerpt:
The Sixteenth Amendment simply does not authorize the Congress to tax as "incomes" every sort of revenue a taxpayer may receive. As the Supreme Court noted long ago, the "Congress cannot make a thing income which is not so in fact." Burk-Waggoner Oil Ass’n v. Hopkins, 269 U.S. 110, 114 (1925). Indeed, because the "the power to tax involves the power to destroy," McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 431 (1819), it would not be consistent with our constitutional government, and the sanctity of property in our system, merely to rely upon the legislature to decide what constitutes income.

* * * [T]he term "incomes," as understood in 1913, clearly did not include damages received in compensation for a physical personal injury, we infer that it likewise did not include damages received for a nonphysical injury and unrelated to lost wages or earning capacity.

In sum, every indication is that damages received solely in compensation for a personal injury are not income within the meaning of that term in the Sixteenth Amendment. First, as compensation for the loss of a personal attribute, such as wellbeing or a good reputation, the damages are not received in lieu of income. Second, the framers of the Sixteenth Amendment would not have understood compensation for a personal injury -- including a nonphysical injury -- to be income. Therefore, we hold § 104(a)(2) unconstitutional insofar as it permits the taxation of an award of damages for mental distress and loss of reputation.
  I know essentially nothing about the Sixteenth Amendment, but it will be interesting to see if the SG petitions for certiorari in this case (assuming it doesn't go en banc). I suspect the Supreme Court would take the case.

  Thanks to How Appealing for the link.

Related Posts (on one page):

  1. Income Tax and Sanctity of Property in Our Constitutional System:
  2. Constitutional Limits on the Power to Tax:
When Is Googling Required under FOIA?

Today the U.S. Court of Appeals for the D.C. Circuit holds that a federal agency may be obligated to "Google" someone before invoking their privacy interests under the Freedom of Information Act (FOIA). Specifically, if an agency relies upon the privacy interests of a private individual to deny a FOIA request, it must make a "reasonable effort to ascertain" whether the individual is still alive, and such effort may require the use of freely available internet search engines, such as Google.

In this specific case, Davis v. Department of Justice, an author sought the release of audiotapes between a specific individual and an FBI informant from a Louisiana corruption investigation over twenty-five years ago. The FBI denied the request, citing the privacy interests of the taped individuals, but was unable to determine whether the taped individuals were still alive (or over 100, in which case they would be presumed dead under FBI practice). Yet because the FBI did not turn to Google or other internet search engines to aid its inquiry, the D.C. Circuit concluded that the FBI did not make a "reasonable effort to ascertain" whether the taped individuals were still alive.

one has to ask why -- in the age of the Internet -- the FBI restricts itself to a dead-tree source with a considerable time lag between death and publication, with limited utility for the FBI’s purpose, and with entries restricted to a small fraction of even the “prominent and noteworthy”? Why, in short, doesn’t the FBI just Google the two names? Surely, in the Internet age, a “reasonable alternative” for finding out whether a prominent person is dead is to use Google (or any other search engine) to find a report of that person’s death.

Why Should Religion Get a Pass? Heather McDonald has this provocative posting in the Corner. (Hat tip: Washington Syndrome):
To claim that the GOP and conservatism rest on the “remnant of religious feeling in America” strikes me as a shaky foundation upon which to base a political theory. At the very least, such a purported lifeline can not explain the many non-“envious” skeptics who enthusiastically endorse conservative values. Support for limited government and a respect for human tradition are simply not dependent on a belief in God or “transcendent reality.”

I bow before — and therefore “respect” — the aesthetic legacy of Christianity. My life would be immeasurably poorer without Bach’s St. Matthew’s Passion, B Minor Mass, and cantatas, or Mozart’s great choral works; it would not be life as I know it but a sad hollow thing. I also recognize that countless men of intellect light years superior to mine have been drawn to the great philosophical enterprise of Christian theology. But I will treat the truth claims of Christianity just as I would any other proposition about the world. The claim that we are overseen by an omniscient, omnipotent God who also loves every human being and treats every human being with justice does not square with the slaughter of the innocents that I see every day. I do not understand why religion should get a pass from the empirical and logical demands that we make towards other factual proposition. Nor do I think that serious believers exempt other religions from such demands. Do Catholics, for example, believe that the angel Moroni gave Joseph Smith a pair of magic spectacles in 1827 with which to read the mysterious golden tablets from God? And if not, why not? Doesn’t it matter whether it is true or not, or is it OK to live in error as long as one is happy? I will not raise the similar question of, say, Islam’s veracity.

(Discuss civilly among yourselves. I have work to do.)

Monday, August 21, 2006

Unusual Mathematical Ability: Okay, so here is my completely random post of the week. I have a friend, now around 40, who has a rather astonishing ability to calculate numbers in his head. He can multiply three digit numbers by three digit numbers, divide three digit numbers by other numbers, and even do square roots, all in his head, in real time. I wouldn't believe it if he didn't prove it to me over the course of an evening: you can call out all sorts of calculations that most of us would take a minute to do on paper and he can answer back without even pausing to appear to think of the answer. As he tells it, he has had this ability ever since he was a little kid, and he can just "see" the numbers and how they multiply or divide.

  Obviously being a human calculator isn't as cool as it was before, well, before the invention of the modern calculator. But I was wondering, has anyone ever heard of anything like this before? I know a lot of people who are extremely good at math, but I have never seen anything quite like this. I wondered if anyone else has.

  And so endeth the completely random post of the week.

  UPDATE: In response to the comment thread, my friend wrote in with a response:
When Orin sent me the link and I saw some of the posts, I wanted to respond both to try to eliminate some misperceptions but also because I thought people would find some of what I am saying interesting.

1) While it is true that computational abilities are not the same as mathematical abilities/logic/abstract reasoning, I am quite strong at all of these. Orin knows this, so when someone went after him saying that he does not know the difference, that was wrong.

2) I only estimate square roots, and I can usually go out to at least 4 or 5 decimal places, but I don't need to use tricks. In some cases, I can use some tricks I’ve developed to facilitate my computations, but they are tangential to the process and I can do any of the calculations without these, and for the most part, do.

3) While at least short-term memory is critical to the process of this ability, I do not memorize the answers. It would be impossible given the number of possible mathematical computations that can be asked/done. There are certain “sub”-calculations I sort of just “know” immediately, but that is just sort of a combination of being innate and from doing lots of math/computations over the years.

4) I find the division to be the most unusual part as I can go to as many decimal places as one wants as quickly as I can talk.

5) The limitation I have with the calculations is primarily with multiplication. I can at times do up to 4X4 digits (or 5 or 6 by 3 sometimes), but it depends on my focus/concentration. I am sure if I work on my memory, I can do more than that, not that that is so easy. With division, it is really just the 2 numbers I need to remember and as I say the string of decimal places, I don’t need to recall everything I’ve said to that point. With addition/subtraction, it is essentially a “running tab,” so again I don’t need to remember a lot of numbers at any one time, unless I happen to fall behind. I can add 1, 2 or 3 digit numbers, sometimes more – this is with saying them as quickly as you can put them in the calculator or computer and it can be many, many numbers.

The limitation with multiplication is the need to multiply the different pieces of the numbers (as one of the postings referred to) and remember those answers while also multiplying the other pieces that it needs to be added to.

6) While some of this can be taught in terms of the process, and while practice and improving one’s memory helps, for the most part this is an innate skill. I have had this as long as I can remember. In fact, I was quicker with this when I was much younger and had fewer other things to think about and more time and interest in utilizing these skills.

7) Anyway, it’s strange, but I’ve rarely talked about this (and certainly never written about it) before, certainly never close to in this level of detail or at this length. It is interesting to see what people think.
"Death to Caps Lock":

A new movement, and it's about time -- the Caps Lock key does very little good, and plenty of accidental harm.

Bush on Iraq: "We're Not Leaving So Long as I'm President": In a press conference today, President Bush seemed to rule out the possibility of an exit from Iraq at some point in the next two-and-a-half years. [but see update below] The key exchange:
Q . Mr. President, I'd like to go back to Iraq. You've continually cited the elections, the new government, its progress in Iraq, and yet the violence has gotten worse in certain areas. You've had to go to Baghdad again. Is it not time for a new strategy? And if not, why not?

* * *

THE PRESIDENT: The strategy is to help the Iraqi people achieve their objectives and their dreams, which is a democratic society. That's the strategy. The tactics — now, either you say, yes, its important we stay there and get it done, or we leave. We're not leaving, so long as I'm the President. That would be a huge mistake. It would send an unbelievably terrible signal to reformers across the region. It would say we've abandoned our desire to change the conditions that create terror. It would give the terrorists a safe haven from which to launch attacks. It would embolden Iran. It would embolden extremists.

No, we're not leaving. The strategic objective is to help this government succeed. That's the strategic — and not only to help the government — the reformers in Iraq succeed, but to help the reformers across the region succeed to fight off the elements of extremism. The tactics are which change. Now, if you say, are you going to change your strategic objective, it means you're leaving before the mission is complete. And we're not going to leave before the mission is complete. I agree with General Abizaid: We leave before the mission is done, the terrorists will follow us here.
(emphasis added)

  UPDATE: A few commenters suggest I may be misinterpreting this. The video is here, and the exchange appears about 1/3 the way through; after watching it a few times, I think the commenters may be right. In context, the President may be saying, in effect, "we're not leaving prematurely, so long as I'm President" rather than a flat statement that we're not leaving, period.
What will the Sixth Circuit Do on Appeal in the NSA Surveillance Case?: The criticism of Judge Taylor's opinion on the NSA surveillance program has been met by a flurry of criticism of the criticism, much of it making the point that the quality of Judge Taylor's opinion is irrelevant because DOJ should have lost anyway, even if for reasons that Judge Taylor didn't expain.

  Weirdly, however, I haven't actually seen an analysis of the why that is the case. To be clear, I have seen (and participated in) tons of discussion on the merits of DOJ's defense of the surveillance program as an abstract matter. But I haven't seen much on the merits of the Taylor case as an actual legal dispute, with all of the procedural and evidentiary steps such cases have. The two are quite different, of course: I find the DOJ's defense of the program to be weak, for example, but the substantive merits of those arguments are only a very small part of the actual case before Judge Taylor.

  Part of the problem is the current procedural posture of the case. As I understand it, DOJ's response to the motion for summary judgment filed in the case was to assert the state secrets privilege, which basically put the case on hold until the state secrets privilege issues were worked out. In other words, DOJ said, "we're not going to even respond to the merits of the issues in this suit because it shouldn't go forward under the state secrets privilege, and that has to be resolved first." After resolving the state secrets privilege issues mostly against the government, however, Judge Taylor didn't then move on to discovery, or let the government brief the merits. Instead, Judge Taylor just held that the govermment lost on all of the merits -- before any discovery occurred, indeed, before any of those legal issues were even briefed by the government. (Glenn Greenwald suggests that this is correct because the DOJ's failure to address the merits should be seen as a tacit admission that the ACLU's position is correct; this seems quite bizarre to me, as surely the assertion of a legal privilege as to why a question should not be answered does not constitute an admission.)

  So imagine you're a Sixth Circuit judge, and imagine (to make the case interesting) that you agree with Judge Taylor that the state secrets privilege should not block the suit. What then? It seems to me that it's way too early to just resolve all of the legal issues in the case without briefing; presumably you would want to send it back to the district court for discovery and fact-finding, or for resolution of the many difficult procedural issues in the case.

  What are those procedural matters? Well, a few come to mind. For example, does FISA permit injunctive relief? If not, does the Administrative Procedure Act permit courts to make an end-run around this failure to provide for injunctive relief? Article III standing aside, can a court grant injunctive relief for Fourth Amendment violations without first finding that the plaintiffs' own Fourth Amendment rights were violated? What about FISA and the Wiretap Act, which all incorporate the same "aggrieved person" standard designed to mirror the Fourth Amendment standing inquiry rather than the Article III standing inquiry? If an injunctive remedy is permissible and merited, what is the proper scope of that remedy -- should the injunction stop the illegal parts of the program, or the program as a whole that happens to have some illegal parts? It seems to me that there were lots and lots of legal issues like this that had to be answered before Judge Taylor could reach the merits and (potentially) enjoin the program, even assuming that DOJ's defense on the merits is weak and the states secrets privilege doesn't apply.

  What does this suggest about what the Sixth Circuit will or should do on appeal? Well, to me in suggests that the Sixth Circuit should reverse, whether on the state secrets privilege (if the judges agree with DOJ on that) or simply on the procedural impropriety of bypassing discovery and briefing on the law and all of the procefural and substantive issues raised (if the judges don't). Even assuming that DOJ's arguments are weak, there are still a lot of procedural hurdles to jump through in this case.

  That's my sense, at least. I'm not an expert in the area of civil litigation, so please help me out if you think I'm wrong. Also, for the comment thread, please understand that I'm not trying to score points or try to make one side or the other look bad or good; I'm just trying to figure out a lawsuit, and I really don't care who the parties are or what the political consequences may be.
Originalism Debate Update: In a post entitled Constitutional Authority and Theories of Constitutional Interpretation, Larry Solum responds to several recent contributions to the debate over originalism triggered here on the Volokh Conspiracy. I highly recommend Larry's latest post, in which you will also find links to the various responses that have been posted elsewhere in the blogosphere.

Because I am now completely enmeshed in finishing a draft of my con law casebook before moving to DC next week, I cannot take the time now to post on this issue myself. Nor can I respond to the accuracy of my colleague Marty Lederman's recent characterization of my explication of originalism. Of course, I disagree with Brian Leiter's claim that "Originalism, I'm afraid, is still the theory of interpretation without a theoretical justification." I imagine what he means by this is that originalism lacks an adequate justification that he finds persuasive. Fair enough. I feel the same way about nonoriginalist methods of interpretation. But Brian's choice of wording also suggests, perhaps unintentionally, that no originalist has undertaken to provide such a justification. Given my lengthy normative defense of originalism in my book, Restoring the Lost Constitution, I cannot accept the accuracy of this claim, if it is this was indeed his original intent.

(civil comments only please)
A Troubling Prosecution:

Michael Berry and I analyze the implications of United States v. Rosen in this NRO column. Here's the introduction:

Can journalists be prosecuted for knowingly reporting classified information related to the War on Terror? What about Washington lobbyists who pass on secret information concerning defense matters or foreign affairs? Some would be inclined to say that except in the most exceptional circumstances such communications are protected by the First Amendment, but a recent decision by a federal court in Virginia seems to conclude otherwise. The decision sends a clear warning to reporters who cover the war on terrorism, as well as scholars, think-tank analysts, and lobbyists who study, write, and advocate about issues bearing on the national security. Read broadly, the decision could sanction federal prosecution of anyone who willfully communicates classified national defense information to the public. Fortunately, the decision also contains limiting language that provides some safeguard for First Amendment values and makes it more difficult for federal prosecutors to convict potential defendants engaged in constitutionally protected activity, journalists and non-journalists alike.


Sunday, August 20, 2006

A Question about FISA and Injunctive Relief: In his comment at Balkinization about Judge Taylor's NSA surveillance opinion, Laurence Tribe writes:
Had I been in [Judge Taylor's] place, I never would have reached the difficult First and Fourth Amendment issues that she disposed of so summarily when a powerful, and indeed all but impregnable, statutory path to decision at least appeared to be available under the FISA.
This raises a question I've been wondering about: Does FISA permit injunctive relief? Maybe this question is completely and utterly obvious to civil litigation types out there, and I'm just missing the obvious because I'm a criminal law persion. If so, I'll just tuck my tail between my legs and scamper off. But I began to wonder about this when I was looking at FISA's civil remedies provision, 50 U.S.C. 1810, which states:
An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801 (a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recover—
(a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;
(b) punitive damages; and
(c) reasonable attorney’s fees and other investigation and litigation costs reasonably incurred.
As a matter of text, injunctive relief is not included, unlike the analogous provisions of the Wiretap Act (which states explicitly that a court can provide "such preliminary and other equitable or declaratory relief as may be appropriate" in a Wiretap Act civil suit). I guess the civ pro/fed courts question is, does the existence of a damages remedy automatically give judges the authority to provide injunctive relief in appropriate cases as well? Thanks for any guidance you might have.

  (Incidentally, I found cases indicating that injunctive relief is disfavored in cases with national security or foreign affairs implications, but the issue here is more about whether injunctive relief is permitted rather than whether it is favored or disfavored.)
Advice for New Part-Time Law Students?:

As Ilya notes below, there is tons of advice floating around the Internet for new law students. I'm wondering, however, if readers have any advice to share specifically for part-time evening students, who are likely to be older, have a full-time job, and perhaps a family. Obviously, much of the advice for full-time students will apply to these part-timers as well, but advice on, e.g., balancing work and law school, keeping family harmony while working, studying, etc., 80+ hours a week, and the like would be most welcome. FWIW, many of my best students at George Mason have been evening students (as was co-blogger Jonathan Adler, who was number one in the entire class), many with job, spouse, and kids, and after eleven years of teaching, I still am in awe of them.

The Illusionist:

My wife and I saw the movie The Illusionist last night, and much enjoyed it. We liked both the script and the acting, though Paul Giamatti seemed particularly good (or at least his character was particularly interesting).

An interesting detail: The Illusionist was born with the last name Abramowitz, which pretty clearly marks him as Jewish; in the Austro-Hungary of the time, this would makes the Duchess's attraction to him especially scandalous, yet the movie (as best I recall) doesn't do anything with it. I suspect that the character's name was just preserved from the short story (which I haven't read, but which I'm told touches on the character's Jewishness more); and it's a slight enough reference that I doubt that it's intended as a background item for people to note even without further development -- my guess is that only a tiny fraction of the audience will note it. Still, I wonder whether there was any extra twist on this that I was missing, or whether this was just the gun in the first act that never went off in the third.

Note: I'd bet that the comments will have plenty of spoilers. (Nothing above really qualifies, since it's hardly a surprise that Abramowitz and the Duchess will be involved in some way.)

Advice for Entering Law Students Roundup:

U of Cincinnati law professor Paul Caron of Taxprofblog has a fairly comprehensive roundup of advice for entering law students from a wide range of law professors (myself included), current students, and others here.

I don't endorse all of the advice given, but it's good to get a wide range of perspectives. One last piece of advice, that I think too many law school applicants ignore:

Don't go to law school unless you're fairly sure that you have a real interest in the law or in one of the other professions to which a J.D. is a gateway. There are lots of unhappy lawyers out there who went to law school simply as a kind of default option because they couldn't think of anything better to do. It's no surprise that many such people end up disliking the practice of law. The same point, of course, applies to entering any other profession, but law is particularly susceptible to this problem because of the fact that pretty much anyone who did well as an undergraduate can get into law school. Admission to most other professional schools or PhD programs requires demonstrated competence in specific fields of study or a longstanding interest in the subject in question.

I don't object to people going to law school simply because they want to enter a high-paying profession. But if you go into law primarily to make money, then you should expect that you may not like the work and not be too disappointed if it turns out to be boring or unpleasant.

More on Originalism: Jim's query on the original meaning of the Fourth Amendment has provoked yet another round of debates on originalism. In addition to Ilya's post below, Larry Solum has the update here, along with his response to recent posts by originalist Jack Balkin and nonoriginalist Brian Leiter.

I share Larry's opinion that Jack has raised an important issue for originalist theory: the distinction between "original expected applications" and "original public meaning." In my view, while nonoriginalists have tended to attack straw men that have long been discarded by thoughtful originalists, originalists for their part have paid far too little attention to the normative and interpretive theory underlying their practices. I consider Jack Balkin's recent embrace of one version of originalism to be highly significant for a number of reasons, including that it promises to stimulate the constructive development of originalist theory.

(Civil comments only please.)
Sunday Song Lyric - Dylan Edition

Given the number of Sunday Song Lyrics I've posted since 2004, it seems a Bob Dylan lyric is long overdue. The only problem is selecting which one. He has written so many songs -- and there are so many potential lyrics -- that the prospect of singling out a single song for the Sunday lyric is a bit overwhelming. So, this week, I thought I would rely upon the VC's readership. What are your favorite (or even least favorite) Dylan lyrics? Which lyrics are most important? Were most influential? Or simply the most interesting? Please post your answers below.

Note: has a searchable database of Dylan lyrics here.

Sunday Song Lyric Index:

At the request of some readers, here is an index of past Sunday Song Lyrics, including the first run of SSLs that I posted as Juan Non-Volokh in 2004 (and two stray lyrics from 2005).

August 13 - Panic! at the Disco, Build God, Then We'll Talk
August 6 - Bowling for Soup, 1985
July 30 - Fort Minor, Right Now/Cigarettes/Kenji
July 23 - Depeche Mode, Black Celebration
July 16 - The Doors, The Unknown Soldier
July 9 - Ben Folds, Rockin' the Suburbs (Over the Hedge version)
June 25 - Morrissey, Alsatian Cousin
June 11 - Chevelle, Vitamin R (Leading Us Along)
June 4 - Roy Zimmerman, Let's Go After the Bhuddists
May 28 - Dixie Chicks, Not Ready to Make Nice
May 21 - Peter Townshend, Won't Get Fooled Again [again]
May 14 - Live, Heaven
May 7 - Tears for Fears (Roland Orzabal), Mad World

- November 6 - Nine Inch Nails, Right Where It Belongs
- August 21 - Neil Diamond, America

- December 19 - Jay-Z, 99 Problems
- September 12 - John Fogerty, Fortunate Son
- September 5 - George Gershwin, Summertime
- August 29 - The Dead Kennedys, Holiday in Cambodia
- August 22 - The Hives, Dead Quote Olympics
- August 15 - Pearl Jam (Nick Didia), Olympic Platinum
- August 8 - Frank Loesser, Luck Be A Lady
- August 1 - Madness, It Must Be Love
- July 25 - Everlast, What It's Like
- July 18 - Peter Townshend, Won't Get Fooled Again
- July 12 - Jet, Lazy Gun
- July 4 - Francis Scott Key, Star-Spangled Banner
- June 27 - R.E.M., Cuyahoga
- June 27 - Nina Simone, Mississippi Goddam
- June 13 - Midnight Oil, Back on the Borderline
- June 6 - Jesus Jones, Right Here, Right Now
- May 23 - P.O.D., Alive
- May 16 - Something Corporate, If I Were a Terrorist (I'd Bomb Your Graduation)
- May 9 - Pink Floyd, Mother
- May 3 - The Police (Stewart Copeland), On Any Other Day
- April 25 - Maroon 5, Shiver
- April 18 - Bob Dorough, Devil May Care
- April 11 - Patsy Cline (Willie Nelson), Crazy
- April 4 - Cole Porter, Every Time We Say Goodbye
- March 28 - Duke Ellington, Prelude to a Kiss
- March 21 - Nine Inch Nails, The Fragile
- March 14 - Incubus, Megalomaniac
- March 7 - Rush, The Trees
- February 29 - Oingo Boingo, Only A Lad
- February 22 - Bob Mould, Heartbreak a Stranger
- Feb. 15 - Yaz, Ode to Boy
- Feb. 8 - Joe Jackson, Obvious Song
- Feb. 1 - The The, December Sunlight
- Jan. 25 - Hank Williams, I'm So Lonesome, I Could Cry

Evaluating Billy Beane and Moneyball:

This analysis of Oakland A's general manager Billy Beane's famous "Moneyball" picks in the 2002 major league draft concludes that the Oakland GM's use of statistical methods to evaluate players has had mixed results. In my view, evaluating Moneyball based on the performance of just seven draft picks is a weak methodology, given the small numbers involved and the great influence of chance factors, such as fluke injuries, on individual player performance. Moreover, focusing on just one year's draft picks ignores the fact that Beane has actually been GM of the A's for 7 years. It also ignores the reality that he uses statistical analysis to evaluate free agent signings as well as draft picks.

A better measure of the Beane/Moneyball record is how well the A's have done overall during his tenure relative to the available financial resources. This approach considers the full impact of all of Beane's player acquisition decisions during his time in Oakland. Here, I compare the A's record during Beane's 7 full seasons as A's GM (1999-2005), to that of the New York Yankees and Boston Red Sox, usually regarded as the 2 most successful American League teams of the era.

From 1999 to 2005, Yankees won an average of 97 (of 162) games per season, for a total winning percentage of .602. The A's won 94 games per year for a winning percentage of .581. The Red Sox, in turn, won 92 games per year, for a .567 winning percentage. The A's made 4 playoff appearances during that time and narrowly missed the playoffs in two other seasons, exactly the same as the Red Sox; the Yankees reached the playoffs in all 7 years. Thus, the A's record under Beane is slighly worse than that of the Yankees and slightly better than that of the Red Sox. Quite impressive for the A's considering the strength of the comparison group.

But here's the kicker: During the period in question the Yankees payroll averaged $138 million per year, the Red Sox $103 million, and the A's a mere $42 million (figures calculated from data available here). The A's achieved roughly the same results as the other two teams, while spending only one third as much as the Yankees and about 40% of what the Red Sox shelled out. To put it another way, the A's during Beane's tenure spent $450,000 per win, while the Yankees spent $1.42 million and the Red Sox spent $1.12 million. Given that the Yankees and Red Sox are both regarded as well-run franchises among the best in baseball, Beane's vastly superior use of resources compared to them is extremely impressive.

To be sure, the above analysis is oversimplified. Ideally, we should compare Beane's A's to all other AL teams and not just to the Yankees and Red Sox. I do not have time to do all the calculations right now, but I highly doubt that any of the other AL franchises even comes close to the A's performance in wins relative to spending (a quick eyeball analysis suggests that only the White Sox, Angels, Twins, and possibly Indians could even approach the Yankees and Red Sox). National League teams are not a good comparison group because they rarely face AL teams in regular season games and so are not playing against the same competition.

Another potential methodological flaw is the implicit assumption that the relationship between increased spending and wins is linear. In reality, doubling spending will not double your wins even if the money is spent optimally. Nonetheless, there is no doubt that Beane got far greater bang from his bucks than the Yankees and Red Sox did from theirs, even if we take nonlinearity into account.

It is also true that not all the A's success can be attributed to Beane. However, Beane did pick nearly all the players, and the few left over from the prior regime were picked by his predecessor Sandy Alderson, who had begun to use statistical analysis himself and chose Beane as his successor in part because of the latter's interest in the new methods.

Finally, naysayers will point to the A's relatively weaker playoff performances during this time period. Both the Red Sox and Yankees did much better in the playoffs than the A's, who lost all four of their first round series. However, as Billy Beane himself pointed out in Moneyball, playoff series outcomes are heavily influenced by chance because of the small number of games involved and the high degree of randomness in baseball. The A's lost all four series by narrow 3-2 margins and several times were victimized by very bad luck. Had they been slightly luckier, their playoff record might have been much better.