Saturday, September 2, 2006

"For New Lawyers, the Going Rate Has Gone Up": The Saturday New York Times has a story on how starting salaries are up for 1st year associates at many big New York law firms. The "going rate" at top New York firms is apparently $145,000 a year these days. I see that even Anonymous Law Firm is in on the act. By comparison, starting salaries at top NY firms a decade ago were $86,000 in 1996 dollars, if I recall correctly, which as best I can tell is roughly $110,000 in today's dollars.

Friday, September 1, 2006

Global Warming and Hurricanes, Problems in Recent Research.--

After my post on ABC’s coverage of the threat of global warming, I read through some interesting bits of the evidence on issues I raised. Several commenters pointed me to an interesting blog, Real Climate, which seemed to be a reasonable treatment of issues written by those who generally accept the orthodox view of man-made global warming. [In the comments, Bruce McCullough points me to a blog that disagrees with the prevailing orthodoxy, Climate Audit.]

Real Climate pointed to an interesting scholarly article on the hurricane debate: Curry, Webster, & Holland, "Mixing Politics and Science in Testing the Hypothesis That Greenhouse Warming Is Causing a Global Increase in Hurricane Intensity" in the current Bulletin of the American Meteorological Society (BAMS). Although I found the paper mostly persuasive that there had been a very large increase in category 4 hurricanes since 1970 (with drops or no change in the other categories of hurricanes), I see three problems with the paper.

Starting at 1970. First, the paper dismisses concerns that the choice of 1970 as a starting point may give a misleading account because of the evidence that there was global cooling from 1940 to 1970. They [combine] treat this legitimate concern as [with] a logical fallacy [and attack that fallacy], but they never explain [deal adequately with the implications of] coherently what’s fallacious about potentially choosing start or cut-off dates that are unrepresentative of larger trends or that give misleading measurements of the strength of any overall trend. [The authors justify their choice of 1970 because of the pooorer data quality before that date, which is fine, but they do not fully recognize the possible implications of that choice for the generalizability of their results.]

Double Counting 1994 Hurricanes? Second, if the authors actually did what they report having done with their data, then the BAMS paper should never have been published. In two charts showing the main hurricane trends, they report the data in five year periods, except for 1994, which is included in two periods, 1990-94 and the six-year period 1994-99. This may be just a typographical error, but they make this error three times in the paper (in most of the most important charts). And exactly the same error appears in another paper they published in Science in 2005 using related data, so it may well not be a typo. If these are not merely typographical errors, and they did what the article reports that they did (i.e., double counted 1994 hurricanes), then the paper should never have been published. [Just to be crystal clear, if I had to bet, I'd bet that the authors just made repeated typographical errors. And even if the error is substantive, obviously it wouldn't have been intentional.]

False Statements to the Public About Category-5 Hurricanes. Third, although the article ended with a substantial discussion of responsible argumentation over the issue of hurricanes and global warming in the mainstream press, as an apparent model they pointed to their own public commentary:

In our AAAS press release . . ., given the recent devastation associated with Hurricane Katrina, the main public message that we wanted to communicate was

The key inference from our study [in Science released along with the press release] of relevance here is that storms like Katrina should not be regarded as a “once-in-a-lifetime” event in the coming decades, but may become more frequent. This suggests that risk assessment is needed for all coastal cities in the southern and southeastern U.S. . . . The southeastern U.S needs to begin planning to match the increased risk of category-5 hurricanes.

Just to remind people: Katrina was a category-5 hurricane at its peak, but it was a category-3 hurricane when it hit the Gulf Coast, and it was only a category-1 hurricane at New Orleans (95 mph), though it was just below the threshold for a category-2 hurricane. The damage at New Orleans probably occurred, not because it was such an unusual hurricane but because the levees were in appalling condition (whether you fully buy Wizbang’s provocative account or not).

But the data presented in the BAMS paper show what looks to be a very small and statistically insignificant rise in category-5 hurricanes from 1970 through 2005 (these data include some Pacific as well as some Atlantic hurricanes). The big increase shown in the BAMS paper is almost a tripling of category-4 hurricanes; other classes of hurricanes seem to show significant drops or no significant changes.

A 2005 Science article co-authored by the same group as the BAMS paper--Webster, Holland, Curry, & Chang, "Changes in Tropical Cyclone Number, Duration, and Intensity in a Warming Environment"--does look at Northern Atlantic hurricanes 1970-2004 separately from Pacific ones, but lumps category-4 and category-5 storms together, showing an increase for the combination, not reporting anything on category-5 hurricanes alone. I went to the data source cited in the 2005 Science paper and this is what I found for 1960-2004 hurricanes (the Science study covered 1970-2004, excluding the first two rows below and the 4 category-5 hurricanes that occurred after the period of their data, in 2005):

Category 5 Hurricanes in the North Atlantic:

1960-64 . . 4
1965-69 . . 2
1970-74 . . 1
1975-79 . . 2
1980-84 . . 1
1985-89 . . 2
1990-94 . . 1
1995-99 . . 1
2000-04 . . 2

As you can see, in the data they claimed to have used in their Science article (as I counted the events), there is absolutely no trend in category-5 hurricanes in the period of their study: 1970-2004. Indeed, the 1990s showed insignificantly fewer hurricanes than either the 1970s or 1980s. Thus, all of the increase in the North Atlantic category 4-5 storms reported in the 2005 Science article must be due to an increase category-4, not category-5 storms.

Neither paper reports any data that would show a statistically significant increase in category-5 storms that would form the scientific basis for their public claim, made along with their release of the 2005 Science article: “The southeastern U.S needs to begin planning to match the increased risk of category-5 hurricanes.”

What increased risk?

If they have the data to support that claim, they should make it public. Anyone reading that claim would think that their Science paper showed such a significant increase. But it didn’t. Even after I added the 2005 data on category-5 hurricanes, which they did not use because the season wasn’t over yet, the quick regressions I ran didn't show any statistically significant increase in category-5 storms.

Did they just fabricate this claim of "increased risk" of category-5 storms?

If they don’t have such data—-and it appears that they don’t—-then it’s irresponsible for a scientist to imply a scientific basis for such a fear-inducing claim released along with a scientific paper. And it’s particularly odd that the authors of the 2006 BAMS paper actually discuss and criticize the mainstream press for poor environmental reporting that gives too much weight to critics of the environmental orthodoxy. The authors tell us that their scrupulousness put themselves at a disadvantage in public debate because they restricted themselves to making claims that were supported by peer-reviewed articles and data. Yet their own peer-reviewed data would seem to me to show that they had no scientific basis for saying that “The southeastern U.S needs to begin planning to match the increased risk of category-5 hurricanes.”

Bottom line:

1. The new BAMS article shows persuasive evidence of a huge jump in category-4 hurricanes 1970-2004, but declines or flat trends in the numbers of stronger and weaker hurricanes.

2. The BAMS article does not deal adequately with whether its choice of a relative cool period (1970) as a starting time influenced the results.

3. In both their 2005 Science article and their 2006 BAMS article, the authors appear to double count data from 1994, but it may just be the result of repeated typographical errors in both journals.

4. In the BAMS article, the authors criticize others for irresponsible public statements on global warming and praise their own caution, yet the press release they quote asserts an “increased risk” of category-5 hurricanes threatening the southeastern U.S., but neither their own two articles, nor the data they claim to have used, show any such statistically significant trend.

5. If the quality of peer review and editing in this field is only as careful as it seems to be on the BAMS paper, then I think it prudent for educated lay people to continue to be skeptical about the research and public assertions of climate experts, especially those who tell you to just trust them or who insist that they are just relying on what their data show. Wouldn’t expert reviewers of the BAMS paper already know that there had been no increase in category-5 hurricanes in the North Atlantic, and thus that the public statements that the authors proudly trumpet were irresponsible? Certainly, this brief foray into the literature leads me to be less confident of the conclusions of climate researchers, no matter how fervently they are asserted.

UPDATE: I emailed Judith Curry, the first author on the BAMS paper, pointing out the double listing of 1994 and requesting her 1970-2005 data by year by basin by hurricane category, which should allow me to resolve some oustanding questions.

There is a lot of back-and-forth discussion in the comments, particularly here, here, and here.

2d UPDATE: Judith Curry responded at RealClimate here and here. I have submitted a response, which has yet to appear there.

Overall, my criticisms seem to be pretty well confirmed. After thanking Judith Curry for her prompt response, I review where the exchange stands.

1. I am happy that you have confirmed the “1994” errors I found in your two papers, and I am also happy that they are typographical, rather than substantive.

2. You justify your choice of 1970 as the starting date for your study. My criticism was not whether the starting date was the best one (it probably was), but rather how choosing a relative minimum as the start date should affect the interpretation and generalizability of your results. I think we have both said our piece on this issue; I doubt that further discussion will resolve things any further.

3. I was pleased that you acknowledged that, as I had pointed out, the data on cat-5 hurricanes shows no significant trend, an observation that was the main focus of my comments (at post #212). On this point, you wrote:

With regard to category 5 storms, there is no point to trying to identify a trend only in the category 5 storms, owing to the small numbers and the uncertainties in classifying storms with the strongest windspeeds.
Of course, statistical significance is determined not only by sample size, but by the strength of any relationship and the variability in the data. From eyeballing your data, it appears that, if the relationship for cat-5 storms worldwide had been as strong as the powerful relationship that you nicely established for cat-4 storms, then the sample size of cat-5 storms was probably large enough to show statistically significant results. So the fact that there is no significant trend in cat-5 storms is due to the absence of a strong relationship in the data, as much or more than to the relatively small sample sizes.

As for my criticizing your assertion of an increase in the risk of cat-5 storms, which you now acknowledge that your data do not show, you wrote:

In terms of our statements in the press release issued in sept 2005, specifically the Q&A from Science, we had NO IDEA that anyone would even pay much attention this, particularly a year later. We never anticipated this paper and subject to become such a big deal. We were as careful as we could be (given our inexperience with press releases and media in general, and specifically were very careful not to overplay the global warming issue). . . .

The key statement of contention was in our Q&A with Science, which was made in response to the following direct question:

Given that increased intensity, what are the possible ramifications for policy-makers, generally? Would your research have any bearing, at least potentially, on decisions regarding the rebuilding of New Orleans and Gulf Coast?

It is not a statement that we made in our Science paper, nor in the news release issued from Georgia Tech. Rather, it was a statement made on a short time fuse at a request from Science, to respond to policy makers and to the catatstrophe [sic] in New Orleans. In hindsight, I don't thing we would change a word that was said. What is said by a scientist in peer reviewed publications in done in a very different context from interacting with the media. Scientists are expected to respond to questions outside of their field that they are ill prepared to deal with, and do not directly follow from their scientific research. This is the so-called value gap between scientists and policy makers that was addressed in the BAMS article.
I did not rummage through your group’s responses to the press to unearth something your co-authors said in dealing with the press back in 2005. In your 2006 BAMS article, which I was commenting on, you purported to quote just three sentences from your group’s 2005 dealings with the press. These were the sentences that your new 2006 paper chose to emphasize. These were the three sentences that I quoted, taking issue with the last sentence:

“The southeastern U.S. needs to begin planning to manage the increased risk of category 5 hurricanes.”

Since, as you now kindly acknowledge, your data show no increased incidence of cat-5 hurricanes--indeed, you argue that “there is no point to trying to identify a trend only in the category 5 storms”--I objected to your group’s use of the phrase “the increased risk of category 5 hurricanes.”

My criticism thus seems eminently sound, with one strange, but important caveat.

Judith, you write that the passage I criticize was said in response to a question posed by Science about precautions for hurricanes and you quote those questions. But the phrase that I objected to--“the increased risk of category 5 hurricanes” --does not appear in the interview you referenced. Webster referred instead to “the risk of category 5 hurricanes.” In the interview, Webster later refers to “this increased risk,” but in context he appears to be referring to a range of risks from cat-3 through cat-5 that the public needs to address, so there is nothing objectionable about such a reference.

Judith, can you point me to any place where Webster or anyone in your group actually uttered or wrote the words that you quote in your 2006 BAMS article?

Or did someone (mistakenly) rewrite Webster’s answer to add a scientific assertion that is not supported by the data you present (i.e., “the increased risk of category 5 hurricanes”)?

You write: “In hindsight, I don't thing [sic] we would change a word that was said.” But if you just pointed us to the right source for the text you quoted, it appears that someone (mistakenly) did “change a word that was said”--and changed it to something unwarranted by the scientific data your group presents.

Is there any way to correct the online version of the 2006 BAMS paper so that the charts are labeled correctly and so that you don’t make a claim of an “increased risk of category 5 hurricanes” if Webster didn’t actually say that in the passage you purport to quote.

Here are some fun stories

I came across during my research on collusion in auctions, from "Bidding Markets" by Oxford economics professor Paul Klemperer:

One of the biggest problems faced by firms who wish to collude or predate is how to signal their intentions to rivals when ordinary communication is illegal. Unfortunately for regulators, the formal rules of auctions often solve firms' problem by defining a "language" that bidders can use to communicate with each other.

Klemperer (2002a) gives many examples, including a multi-license US spectrum auction in 1996 to 1997, in which US West was competing vigorously with McLeod for lot number 378 — a license in Rochester, Minnesota. Although most bids in the auction had been in exact thousands of dollars, US West bid $313,378 and $62,378 for two licenses in Iowa in which it had earlier shown no interest, overbidding McLeod, who had seemed to be the uncontested high-bidder for these licenses. McLeod got the point that it was being punished for competing in Rochester, and dropped out of that market. Since McLeod made subsequent higher bids on the Iowa licenses, the "punishment" bids cost US West nothing (see Cramton and Schwartz, 2000).

This is at page 16 (paragraph break added, footnote omitted). Also, from page 17, footnote 54:

Another favourite example of bidders' ability to "collude" in a "one-off" ascending auction was provided by the 1999 German DCS-1800 auction: ten blocks of spectrum were sold, with the rule that any new bid on a block had to exceed the previous high bid at least 10 per cent. There were just two credible bidders: the two largest German mobile-phone companies, T-Mobil[e] and Mannesman[n]; and Mannesman[n]'s first bids were DM18.18 million per megahertz on blocks one to five and DM20 million per MHz on blocks six to ten.

T-Mobil[e] — who bid even less in the first round — later said "There were no agreements with Mannesman[n]. But [we] interpreted Mannesman[n]'s first bid as an offer" (Stuewe, 1999, p. 13). The point is that 18.18 plus a 10 per cent raise equals 20.00. Clearly T-Mobil[e] understood that if it bid DM20 million per MHz on blocks one to five, but did not bid again on blocks six to ten, the two companies would then live and let live with neither company challenging the other on the other's half. Exactly that happened. So the auction closed after just two rounds with each of the bidders acquiring half the blocks for the same low price, which was a small fraction of the valuations that the bidders actually placed on the blocks.

This is how to have fun with secret decoder rings!

UPDATE: Klemperer adds (p. 18) that the danger of such collusion can be exaggerated. "[B]idders often seem more imaginative in their attempts to signal than in their understanding of others' signals — as usual, something is much more obvious after it has been explained."

First footnote (59): "It is often entertaining to hear after an auction what bidders thought they were communicating. Though I'm not sure I fully believe the southern European bidding team who explained that its bid in a major auction had an obvious interpretation from the Bible, the dumbfounded and horrified reactions of the northern European consultants who had spent considerable effort trying to decode the bid at the time were a treat to behold. Culture matters."

Second footnote (60): "Another problem is when there is more than one bidder who thinks it is, or should be, the leader coordinating the others. See Klemperer (2002d, 2003a)."

Can Encryption Create A "Reasonable Expectation of Privacy"?: I have just posted an early paper I wrote that still seems to generate some interest: The Fourth Amendment in Cyberspace: Can Encryption Create a "Reasonable Expectation of Privacy"?, 33 Conn. L. Rev. 503 (2001). (33 pages, .pdf) This was a really fun paper to write, as the argument is highly counterintuitive, sets up lots of fun puzzles, and also ultimately sheds light on important but underappreciated aspects of the Fourth Amendment.

  Here's the abstract:
Does encrypting Internet communications create a reasonable expectation of privacy in their contents, triggering Fourth Amendment protection? At first blush, it seems that the answer must be yes: A reasonable person would surely expect that encrypted communications will remain private. In this paper, Professor Kerr explains why this intuitive answer is entirely wrong: Encrypting communications cannot create a reasonable expectation of privacy. The reason is that the Fourth Amendment regulates access, not understanding: no matter how unlikely it is that the government will successfully decrypt ciphertext, the Fourth Amendment offers no protection if it succeeds. As a result, the government does not need a search warrant to decrypt encrypted communications. This surprising result is consistent with Fourth Amendment caselaw: it matches how courts have resolved cases involving the reassembly of shredded documents, recovery of deleted files, and the translation of foreign languages. The Fourth Amendment may regulate government access to ciphertext, but it does not regulate government efforts to translate ciphertext into plaintext.
  I should add that the broader Fourth Amendment framework I offer in the article (between what I then called "rights-based" and "statistical" approaches) has changed significantly in the last five years. I'm working on a piece now that I think has a much more helpful framework, and also situates the argument of this early effort more accurately. Despite that, though, I still think the argument in this early article is correct.
Wall Street Journal on Proposed Dartmouth Alumni Constitution:

Today's Wall Street Journal weighs in on the proposed new Dartmouth alumni constitution (subscription required). Here's an excerpt:

[T]he new document is plainly designed to prevent outsiders from gaining still more Trusteeships. Most significant is a provision that would require prospective candidates to submit petitions before the official nominating committee selects its candidates. Not only would this vitiate the entire rationale for petition candidacies -- a last resort to express dissatisfaction with the status quo -- but it would allow the nominating committee to shape its slate against external challengers and split votes. These rules, like those in a casino, would game the odds in any given election in favor of the house.

The constitution is promoted as a measure to increase fairness and transparency, but in reality it would do neither. While the Alumni Council -- already a bureaucratic labyrinth -- is to be reorganized, it would actually become less representative, with more unelected positions with more power to pick Trustees than under the present arrangement. The revisions would also increase set-aside seats for groups defined by race or sexual orientation.

As if to redouble the throbbing of the tell-tale heart, the alumni executives recently "postponed" the elections for their own offices, in violation of their own bylaws, until after the constitution is given an up-or-down vote by the full alumni body. If it passes, the maneuver would entrench the leadership as currently comprised until at least 2009. Alumni would be left without democratically elected executives, let alone a say in Trustee nominations.

And so a pattern emerges at Dartmouth, one interminably replicated on other campuses: The academic establishment wants to consolidate its authority and exclude those who might deviate from the party line. But in a democracy, the results are not supposed to be foreordained. The new constitution will be put up for ratification by the alumni on September 15. Despite Dartmouth's troubles in recent years, we trust its graduates are bright enough to see this power play for what it is.

For those who want more information on the Constitution a new web site has been established, that provides detailed commentary on the document as well analysis by students and alumni.

There is also a new open forum for discussions by Dartmouth students and alumni on this and other matters of concern to Dartmouth at

Paying for Performance - The Economics of Student Achievement:

Harvard economist Roland Fryer is undertaking an impressive experiment in education reform: paying students for performance. According to Scientific American:

Can educators find ways to encourage students to engage in the kind of effortful study that will improve their reading and math skills? Roland G. Fryer, Jr., an economist at Harvard University, has experimented with offering monetary rewards to motivate students in underperforming schools in New York City and Dallas. In one ongoing program in New York, for example, teachers test the students every three weeks and award small amounts--on the order of $10 or $20--to those who score well. The early results have been promising.

As Fryer explained back in 2004, "for years white parents have been giving their kids money for As, now we are trying the same system for black kids." He also notes that preliminary findings show that no other change in education policy increases student test scores so much per dollar invested.

Financial incentives for students are a possible solution to a crucial problem in education: students must be motivated to do the work despite their generally short time horizons. Most of the benefits of a good education won't accrue to children until years after the fact. Yet children and teenagers have notoriously short time horizons and many are unwilling to work hard today for rewards that they can't enjoy until many years later. Fryer's financial incentives represent one possible way to give students more immediate rewards for studying hard. As he points out, middle and upper class parents have often used such rewards for studying for their own children, so the idea is not completely novel.

Like Fryer (see link below), I have a special personal interest in this subject. Similar to him (but with much less excuse) I was a terrible student for much of my school career. Although I knew that good grades were important for getting into college, this was too distant a reward to motivate me very much. What turned my situation around was high school debate. If I worked hard on a debate topic for 2 or 3 weeks, I could win a prize at a tournament at the end of that time. And I could go to as many as 10 or 12 tournaments each academic year, which meant getting as many as 10 or 12 prizes, and (more importantly) the prestige that went with them. Although tournament trophies (like Fryer's $10 cash prizes) are trivial in value compared to the long-term benefits of education, they were an immediate reward that provided quick gratification to my teenage mind. Over time, learning to work hard on debate issues also led me to study harder in other classes.

It would be wrong to generalize from my potentially atypical experience. But if Fryer's experiment continues to produce good results, it might more generally validate the theory that paying for performance works in education as well as in other areas of life.

Obviously, it might be better if students loved learning for its own sake or if they were willing to work hard just for long-term rewards. Unfortunately, however, much of what students need to learn in school is not likely to be interesting to all students, and I highly doubt that we can persuade the average child or teenager to radically alter their short term orientation.

For more information on Fryer and his research, see here.

NOTE to GMU students: To head off the inevitable question - no I won't be instituting this policy in my law school classes. I hope that by the time students get to GMU Law, they have longer time horizons than I did when I was in high school!


Thursday, August 31, 2006

Bush on Global Warming: Speaking of global warming, there's an intruiging item in the latest Time Magazine on the subject:
Previewing the final quarter of Bush's presidency, [Administration] officials disclosed to Time that the Administration is formulating a huge energy initiative designed to "change the whole nature of the discussion" and challenge the G.O.P., Democrats, the oil and electricity industries, and environmentalists. An adviser said Bush's views about global warming have evolved. "Only Nixon could go to China, and only Bush and Cheney--two oilmen--can bring all these parties kicking and screaming to the table," the adviser said.
  It's hard to tell if this means anything in terms of actual policy changes, but it still seemed pretty interesting.
Two Democratic Leaders Call For Universal Service by Young Adults.--

Remember those phony stories that individuals and the press were spreading about Republican plans to bring back the draft after the 2004 election. Fraudulent emails were sent to college students laying out supposed Republican plans, and some in the press covered them, not as the hoax they were, but simply as a seemingly plausible story that party officials were denying. As I wrote in September 2004:

[L]ast night on the CBS Evening News, reporter Richard Schlesinger used fake documents to spread an internet rumor that has been long debunked. The document, which CBS showed on the screen much as it had the phony Burkett Guard documents, purports to be an email from someone in the Department of Defense, but it is actually a chain email hoax letter.

In order to scare voters, particularly the young, into voting Democratic, there have been emails circulating that point to HR163 and S89, bills proposing national service for both men and women. Both bills are proposed and co-sponsored solely by Democrats, a fact that the emails fail to mention. Although some [bloggers and internet] commentators have suggested that "members of both parties have introduced bills to reinstate" the draft, I have not been able to locate any introduced by Republicans in the current Congress by following the links to the supposed evidence. . . . The most that has been pointed out so far is the statement of one Republican Senator (Chuch Hagel) favoring a draft, no actual Republican bills.

These emails usually, however, go further, sometimes claiming that there are plans to call up both men and women on June 15, 2005 and that "The administration is quietly trying to get these bills passed now," which is flatly false. . . .

[Despite reporting denials,] by showing phony documents and repeating phony facts, the email hoax is presented as plausible. Nowhere do they report that this is an already debunked email hoax.

Well, it's now 2006 and once again prominent Democrats are calling for universal national service, though only for three months and involving training for civil defense, rather than for the military. The proposal comes from Rahm Emanuel, chair of the Democratic Congressional Campaign Committee, and Bruce Reed, President of the Democratic Leadership Council :

A new social contract, or what you can do for your country and what your country can do for you.

The economy of the twenty-first century demands new skills and will require all of us to live up to new responsibilities. We believe that four mutual obligations that follow should represent the first terms of a new contract between the people and their country.

Universal Citizen Service

If you forget everything else you read in these pages, please remember this: The Plan starts with you. If your leaders aren't challenging you to do your part, they aren't doing theirs. We need a real Patriot Act that brings out the patriot in all of us by establishing, for the first time, an ethic of universal citizen service. . . .

John Kennedy was right: A nation is defined not by what it does for its citizens but by what it asks of them. If your leaders aren't challenging you to do your part, they aren't doing theirs. We need a real Patriot Act that brings out the patriot in all of us by establishing for the first time an ethic of universal citizen service. All Americans between the ages of 18 and 25 should be asked to serve their country by going through three months of basic civil defense training and community service. This is not a draft, nor is it military. Young people will be trained not as soldiers, but simply as citizens who understand their responsibilities in the event of a natural disaster, an epidemic or a terrorist attack. Universal citizen service will bring Americans of every background together to make America safer and more united in common purpose.

What do you think of the merits of the Emanuel/Reed proposal?

UPDATE: In the course of a post about Rahm Emanuel's criticisms of and George Soros, Betsy also noticed that Emanuel was calling for universal service.

Math bleg:

Can anyone recommend to me any simple functions with the following properties: f(0)=0, f(infinity)=1, and f'(0)=infinity? I.e., a function that could be used for the probability of getting a policy change as a function of your lobbying expenditures; but I'd like to have that first-derivative condition so I'm guaranteed to have an interior solution when I maximize af(x)-x for any a.

UPDATE: Oops! I meant f(0)=0, not f(x)=0. That's corrected now.

UPDATE 2: Thanks, folks. Aaron Bergman suggested 1 + e^(-x^2)(sqrt(x)-1). Unfortunately, I forgot to specify that I also wanted f'(x)>0 for all x; and that function goes above 1 and then dips back down so f(infinity)=1. While I'm at it, I also wanted f"(x)<0 for all x. Syd suggested sqrt(x)/(sqrt(x)+1)), which works fine. Chrismn suggested 1-e^(-sqrt(x)), which also works fine. Maniakes suggested the logistic function, but I don't think I can make that match all three of my conditions. Chrismn suggested the constant absolute risk aversion -e^(-ax)+1, but that violates f(0)=0. Aaron Bergman, finally, suggests (2/pi) atan(sqrt(x)), which looks cool.

UPDATE 3: Aaron Bergman also suggests an ingenious method, which I was unaware of, to generate all the functions like that you want! Just take a function g such that g(0)=0, g(infinity)=1, and g'(0) is finite (he doesn't say it, but perhaps you also need it to be nonzero). Then for any r in the interval (0,1), define f(x)=g(x^r). That way, first, f(0) = g(0^r) = g(0) = 0. Second, f(infinity) = g(infinity^r) = g(infinity) = 1. And, third, f'(x) = r x^(r-1) g'(x^r), so f'(0) = r 0^(r-1) g'(0^r) = r infinity g'(0) = infinity. All three functions I liked above are special cases of this. Thanks, Aaron!

UPDATE 4: Reader Paul Edelman suggests another function: sqrt(x/(1+x)). This illustrates a similar way of generating such functions: Take a function g defined as in Update 3, then define f(x)=[g(x)]^r. That way, f(0)=0 and f(infinity)=1 obviously. Also, f'(x) = r g'(x) [g(x)]^(r-1), so f'(0)=infinity. Now that's not the way Paul found the function. He used yet another way, which is also nice: Look for a function g such that g(0)=0, g'(0)=0, and g has a vertical asymptote at 1. Then take the inverse of that function, and that's your f. So x^2 definitely has value and first derivative 0 at 0, and if you stick a (1-x^2) denominator on it, you get yourself an asymptote. So g(x)=x^2/(1-x^2) works, and f(x)=sqrt(x/(1+x)) is its inverse function.

UPDATE 5: Sadly, these functions don't have closed-form solutions, if, say, I want to take the inverse of the derivative!

Leaders of the Crimson Guard:

Fun fact of the day -- did you know that the President and Prime Minister of Poland are identical twin brothers? (They also co-starred, at age 13, in a children's movie called The Two Who Stole the Moon.) Query: If both of them are evil, would it be appropriate for one of them to call the other "my evil twin"?

The End of the World, according to ABC News.--

ABC News had a special report Wednesday night on the end of the world. I caught little more than the last segment, which focused on what was presented as the greatest threat to human existence: global warming.

Among the claims that were repeated multiple times (by Al Gore and others) were that there was no scientific debate over whether the cause of global warming was humans. Not only did ABC liken those scientists who did not accept this orthodoxy to Holocaust deniers and to scientists who claimed that cigarettes were not associated with cancer, but ABC actually showed witness after witness for tobacco companies claiming that tobacco did not cause cancer, as if it were not enough merely to mention the analogy in passing. (Query whether that airtime could have been devoted to at least one reputable expert who disagreed with ABC's smugly certain experts?)

ABC showed experts claiming that the reason that scientific dissenters were unwilling to accept the orthodox opinion is that they were being paid by major polluters to take those positions.

ABC also reported increased hurricane activity as if it were an established scientific fact that there were now more hurricanes and that they were caused by global warming.

ABC trotted out various group studies about the impending environmental disaster, as if ABC was unaware of just how inaccurate group environmental predictions had been in the 1970s and 1980s.

Last, ABC's experts seemed quite confident that global warming could be solved by human changes, as if the main question were a lack of will. The ABC report never considered whether the drastic GNP losses associated with steps that would be predicted to make a significant difference would cause more death, poverty, and destruction than the likeliest global warming scenarios.

I was struck by how different ABC's report was than Alex Beam's latest Boston Globe column on "MIT's Inconvenient Scientist," Richard Lindzen:

In the debate over climate change, [Stanford climatologist Stephen] Schneider said [to reporters 10 years ago], there simply was no legitimate opposing view to the scientific consensus that man-made carbon emissions drive global warming. To suggest or report otherwise, he said, was irresponsible.

Indeed. I attended a week's worth of lectures on global warming at the Chautauqua Institution last month. Al Gore delivered the kickoff lecture, and, 10 years later, he reiterated Schneider's directive. There is no science on the other side, Gore inveighed, more than once. Again, the same message: If you hear tales of doubt, ignore them. They are simply untrue.

I ask you: Are these convincing arguments? . . . What am I not supposed to know?

Here's the kind of information the "scientific consensus" types don't want you to read. MIT's Alfred P. Sloan professor of meteorology Richard Lindzen recently complained about the "shrill alarmism" of Gore's movie "An Inconvenient Truth." Lindzen acknowledges that global warming is real, and he acknowledges that increased carbon emissions might be causing the warming--but they also might not.

"We do not understand the natural internal variability of climate change" is one of Lindzen's many heresies, along with such zingers as "the Arctic was as warm or warmer in 1940," "the evidence so far suggests that the Greenland ice sheet is actually growing on average," and "Alpine glaciers have been retreating since the early 19th century, and were advancing for several centuries before that. Since about 1970, many of the glaciers have stopped retreating and some are now advancing again. And, frankly, we don't know why." . . .

I decided to check out Lindzen for myself. He wasn't hard to find on the 16th floor of MIT's I.M. Pei-designed Building 54, and he answered as many questions as I had time to ask. He's no big fan of Gore's, having suffered through what he calls a "Star Chamber" Congressional inquisition by the then senator. He said he accepted $10,000 in expenses and expert witness fees from fossil-fuel types in the 1990s, and has taken none of their money since.

He's smart. He's an effective debater. No wonder the Steve Schneiders and Al Gores of the world don't want you to hear from him. It's easier to call someone a shill and accuse him of corruption than to debate him on the merits. . . .

For no apparent reason, the state of California, Environmental Defense, and the Natural Resources Defense Council have dragged Lindzen and about 15 other global-warming skeptics into a lawsuit over auto-emissions standards. California et al. have asked the auto companies to cough up any and all communications they have had with Lindzen and his colleagues, whose research has been cited in court documents.

"We know that General Motors has been paying for this fake science exactly as the tobacco companies did," says ED attorney Jim Marston. If Marston has a scintilla of evidence that Lindzen has been trafficking in fake science, he should present it to the MIT provost's office. Otherwise, he should shut up.

"This is the criminalization of opposition to global warming," says Lindzen, who adds he has never communicated with the auto companies involved in the lawsuit. Of course Lindzen isn't a fake scientist, he's an inconvenient scientist. No wonder you're not supposed to listen to him.

Several aspects of this comparison of stories were striking to me.

First, I found Lindzen's claim that "the evidence so far suggests that the Greenland ice sheet is actually growing on average" to be shocking--and (in my ignorance) implausible after everything I've read or heard in the press (including in ABC's report). Obviously, I'm not an expert, but I'd like to see Lindzen's support for this claim.

Second, Lindzen must be speaking metaphorically, rather than literally, when he claims that scientific dissent is being criminalized.

Third, I thought it questionable for ABC to present as evidence of man-made global warming an increase in category 4 hurricanes. Our weather satellites are much better than they were 30 years ago (thus missing fewer large storms), our wind recording instruments are much more widely dispersed, and the annual natural variation in big storms must be large. It is good that scientists are beginning to explore in the scholarly literature whether there might be more storms today, but for ABC to present both the supposed phenomenon and its possible cause as if they were established seemed to me to go too far--especially since it was presented along with saying that anyone who disagreed with the science they presented was like a holocaust denier or a denier of a link between cigarettes and cancer.

Fourth, from the public debate it appears that the number of reputable scientific experts who think that global warming may not be primarily man-made is small but not trivial. No historical expert believes that the holocaust did not occur. Some climate experts do not think that the evidence that global warming is primarily man-made is yet persuasive (and a few even doubt that any uncommon warming is occurring). Thus ABC's analogy to holocaust denial is inapt.

Arguments that the scientists who disagree with ABC's experts are being paid by polluters to say what they are saying is irresponsible and false if Lindzen is telling the truth. Paying someone 11 years ago to be an expert witness does not mean that he is being paid now to express opinions discussing data, some of which were compiled long after he was paid for his expertise. Generally, scientific experts are hired because of their pre-existing opinions, not the other way around.

Further, as Michael Crichton argues in Aliens Cause Global Warming, science does not work by consensus. It is based on evidence. Those scientists who try to intimidate other scientists, such as some of ABC's experts, show such little respect for the norms of science that it is hard to take their scientific opinions as seriously as they probably merit. Heavy-handed attempts to bludgeon dissident scientists into submission does not advance the cause of science, even if (as seems more likely than not to me) those doing the bludgeoning are probably correct about the main cause of global warming. And, of course, even if much of the orthodox view of global warming eventually turns out to be correct, the cure for global warming may be worse than the disease.


Wednesday, August 30, 2006

OK, Give the Man Credit for Good Pitching:

Just got an e-mail from David Lat, formerly Article III Groupie from Underneath Their Robes, who's promoting his new Above the Law: A Legal Tabloid:

Hi all. It's David Lat here, with some shameless self-promotion of my latest venture:

Sorry to clutter your inbox as you're hoping to clean it out before the Labor Day weekend! But it's a compliment: you're simply too influential in the blogosphere for me NOT to spam you...

Well, since you put it that way, the pitch is hard to resist....

YouTube as Whistleblowing Medium:

The Washington Post reports:

Michael De Kort was frustrated.

The 41-year-old Lockheed Martin engineer had complained to his bosses. He had told his story to government investigators. He had called congressmen.

But when no one seemed to be stepping up to correct what he saw as critical security flaws in a fleet of refurbished Coast Guard patrol boats, De Kort did just about the only thing left he could think of to get action: He made a video and posted it on

"What I am going to tell you is going to seem preposterous," De Kort solemnly tells viewers near the outset of the 10-minute clip. Posted three weeks ago, the video describes what De Kort says are blind spots in the ship's security cameras, equipment that malfunctions in cold weather and other problems. "It may be very hard for you to believe that our government and the largest defense contractor in the world [are] capable of such alarming incompetence and can make ethical compromises as glaring as what I am going to describe." In response to De Kort's charges, a Coast Guard spokeswoman said the service has "taken the appropriate level of action." A spokeswoman for the contractors said the allegations were without merit.

I most certainly can't vouch for the quality of De Kort's criticisms; perhaps they are entirely or mostly misguided. But whether or not they're sound, De Kort's use of YouTube as the medium for expressing his views, and the publicity that the charges have therefore gotten, seem quite noteworthy.

De Kort "is unemployed after being laid off by Lockheed Martin days after he posted the video. Lockheed said that the video did not influence the decision to lay off De Kort and that he had had been notified earlier this year that he would be out of a job."

I'm Delighted To Report

that my Same-Sex Marriage and Slippery Slopes (33 Hofstra Law Review 1155) has received one of the 2006 Dukeminier Awards for articles on sexual orientation law.

I feel particularly glad because the award is named after Jesse Dukeminier, a titan of property law and wills and trusts law. It was a great honor and privilege to be a colleague of his, and we at the UCLA Law School miss him greatly.

ABOVETHELAW.COM: Big news in the legal blogosphere today: David Lat's new site,, is now online. Even better, David has lots and lots of posts that are up already. If you were a fan of Underneath Their Robes, you won't want to miss
"Time Immemorial" :

I'll bet you thought that's just one of those colorful terms for "a very long time." But it actually means -- at least in one dialect of legalese -- "since before September 3, 1189," as set forth in the English Statute of Westminster (1275). The phrase is also sometimes written as "time out of mind" and "the time whereof the memory of man runneth not to the contrary."

Ted Frank (Overlawyered) Fact-Checks a Newspaper Article About a Large Tort Verdict,

and seems to find vast and important omissions (and some errors). Here's part of Ted's conclusion:

[I]n this case a complainant did win a small fortune after abusing a lawn mower in an extensively negligent way (if not as colorfully as the fictional hedge-trimmer), yet the story is sold to the public with barely a hint of that negligence as a tale of a "defective mower". It is far more common for a reporter to parrot a plaintiffs' attorney's fictional version of a case than to be fooled by a circulating e-mail account of fictional wacky lawsuits, but somehow the media is more likely to engage in soul-searching over the latter. This is just the story of one case I managed to fact-check with the assistance of about $10 in PACER searches. How many other media reports of lawsuits would yield similar surprises?

Here's the coda: it took me less than an hour of digging to find most of this out (including the name of the case as filed). I did not see any evidence in the piece that the reporter had even contacted the defense attorney for comment, even though the story was a lengthy feature piece, rather than a one-paragraph barebones summary.

Stuart Taylor on the Duke Lacrosse Rape Allegations:

I haven't been following this case, but I have followed Taylor's writings, and have come to respect his work a great deal. Here's his Slate piece on the case, which strongly criticizes not only the prosecution but the New York Times coverage.

Great Slate Item:

From the Human Nature column (go to the column for a link to the original news story):

Scientists are trying to stop fetal sharks from eating each other in the womb. A mother gray nurse shark carries 40 or so embryos in her two wombs. But once an embryo develops jaws, it starts eating its siblings. Results: 1) Only one embryo survives in each womb. 2) The species is endangered. Solution: Scientists are developing "artificial uteruses" so each embryo can grow without being eaten by others. Crunchy spin: We're saving another of nature's creatures. Extra crunchy spin: This shark's been around for 70 million years. Don't you think nature knows what it's doing? Anti-crunchy spin: This is even dumber than paroling repeat felons.

The Volokh Conspiracy (and Its Comments) Cited in The New York Times,

in an interesting article by Linda Greenhouse on this year's relative paucity of women among Supreme Court clerks. The lines I most agree with from the article are, "Unaware of the overall drop in numbers, Justice Souter said he assumed it reflected no more than a random variation among this year's applicants. That was also the assessment offered by Justice Breyer ...." One swallow does not make a summer, and one year's data — especially when the data involves ten people who hire a total of 37 clerks — doesn't make a usefully analyzable phenomenon.

UPDATE: Two commenters' suggestions lead me to add a link to the earlier post, and expressly note that the earlier post was prompted by Amber (Prettier than Napoleon).

Also, there's an error in the graphic accompanying the Times table (though the Times generally deserves praise for providing the raw data): In 2001-02, Thomas hired three women clerks, not two: Margaret Ryan, Neomi Rao, and Sigal Mandelker. I assume the Times people were misled by the fact that the name of one, Sigal Mandelker, is not obviously feminine -- at least to someone unfamiliar with Israeli names -- but she is indeed female. (I know Neomi and the fourth clerk, Matthew Berry, quite well, and know Sigal through them.) Not a big deal by any means, but I thought I'd note this for people who are really interested in the data.


Tuesday, August 29, 2006

Post Article on "Targeted Killings":

The Washington Post had a fantastic article [update: Howard Kurtz calls it "the best reporting I've ever seen on a very difficult subject"] a few days ago on Israel's policy of assassinating terrorist leaders. In contrast to the all-too-typical portrait of Israel as an "Old Testament society" exacting an "eye for an eye",* or worse, as some bloodthirsty barbaric state, this article shows Israeli leaders agonizing over (Palestinian) civilian casualties, struggling with related moral issues, learning disparate lessons from the Holocaust, insisting on obeying the rules laid down by their legal advisors, and otherwise behaving the way one would expect leaders of a moral, Western nation to behave. However, I still think the Israeli government made its biggest mistake in many years by being so sensitive about civilian casualties that it lost the opportunity to wipe out most of Hamas's leadership in one fell swoop in 2003, an episode recounted in detail in the article. Ultimately, more Israeli AND Palestinian civilians will die because of this decision, which strikes me as a case of certain Israeli leaders failing in their obligations as leaders so they could sleep better at night.

* something I've seen even friends of Israel like former Sec. of State George Schultz, among other American officials assert, in defending Israeli military actions ("you have to understand, Israel is an Old Testament society"). The eye for an eye metaphor gets used amazingly often when it comes to stories on Israel. In the late Lebanon War, various reporters and editorialists accused Israel of taking more than an eye for an eye. And one can find some truly absurd usages. Here's one story from the Boston Globe, back in 1991 by Curtis Wilkie, Jerusalem correspondent: "Prime Minister Yitzhak Shamir is diplomatic about the issue. Rather than speaking in Old Testament terms of 'an eye for an eye,' Shamir likes to say that Israel will not be drawn into a Ping-Pong match with Iraq." Why would Shamir speak in "Old Testament" terms? He's not an ancient Hebrew! Not even a religious Jew! Sure, Israelis occasionally use biblical allusions, but it's hardly what one expects on a day to day basis from the Prime Minister, unless you are pretty ignorant of both Jewish religion and Israeli culture.

Let's get this straight once and for all: modern Judaism, even among the most Orthodox, is not an "Old Testament religion"--religious law is based almost entirely on Talmudic and other rabbinic interpretations, extrapolations, and just plain inventions, which often stray very far from the text of the Torah and are more recent than the "New Testament". An eye for an eye was itself interpreted many centuries ago to mean merely "the punishment shall fit the crime." Moreover, most Israelis are not religious in any event. The idea that Israel supposedly acts more aggressively because of the Torah and it's eye for an eye mentality, as opposed to the Christian nations which implicitly must be turning the other cheek when attacked (ha!), is a remnant of anti-Jewish prejudices (or at least notions of Christian moral superiority), and survives even in the mind of those like Schultz who I'm sure didn't intend to promote any such prejudice.

Feds Use Border Search Exception to Nab Pedophile: Federal law enforcement officials have been using some recent Fourth Amendment caselaw to nab pedophiles who are traveling off to Thailand and other countries to engage in sexual activities with children. The strategy: using the Fourth Amendment's border exception to search through the suspect's computer and electronic storage devices.

  Recent decisions by the Fifth Circuit, Fourth Circuit, and Ninth Circuit have approved computer searches under the "border exception" to the Fourth Amendment, which permits the suspicionless search of property entering and exiting the county. The feds are taking advantage of the fact that computers store so much information, including pictures, and are searching through suspects' computers at the airport before the suspects depart on (or when they arrive from) international flights. When the feds find child pornography on the computer or any storage devices held by the suspect, they arrest the suspect on child porn charges.

  The latest example of this is an arrest at the Dulles Airport today of a professor at the University of Pennsylvania's Wharton School. The story is here, via the AP. Conveniently for the government, the suspected decided to fly in to an airport in the Fourth Circuit; the Fourth Circuit has already approved the use of the border search exception to search a computer.
The End of Israeli Disengagement from the West Bank:

A few weeks ago, I argued that, if the Israelis did not win a clear victory over Hezbollah, there would be little if any prospect of further Israeli withdrawals from the West Bank. That prediction has now been borne out, as Israeli Prime Minister Ehud Olmert, until now the leading advocate of withdrawal, now concedes. Moreover, Palestinian terrorists say they have learned from Hezbollah's strategy of relying on missile attacks, and are planning to a acquire more and better missiles themselves:

Abu Nasser, a commander of the Al-Aqsa Martyrs Brigades, the military wing of Palestinian Authority Chairman Mahmoud Abbas' Fatah faction, said his group had learned from Hizballah that missiles make the difference.

"If [we] achieve expertise in this field, we won't make do with the simple rockets we have," Abu Nasser was quoted as saying by the Israeli Internet site YNET. "There is no doubt we can subdue Israel."

This makes any future Israeli withdrawals even less likely, since the Israelis cannot and should not give up territory that will then be used against them as a platform for missile launches.

UPDATE: A typo in the original post made it seem as if I meant to say that Israel had won a clear victory over Hezbollah. In fact, however, they did not do so, and that has undermined support for Olmert's disengagement policy to the point where he has had to shelve it (as I had predicted he would). The typo has now been corrected.

Glenn Reynolds & Helen Smith Interviewing Judge Posner,

linked to here. Cool.

Evolutionary Biology Is Back:

The Chronicle of Higher Education reports here and here that the Department of Education has corrected the list of fields eligible for SMART Grants to include those fields that were “inadvertently omitted."

The American Constitutional Order After 9/11: The American Political Science Association Annual Meeting is being held this week in Philadelphia, and I'm going to be on a panel on Saturday that some readers may find of interest: The American Constitutional Order After 9/11. The moderator will be Howard Gillman, and the panelists are Jack Balkin, Louis Fisher, Kim Lane Scheppele, Marty Lederman, and myself. (Viet Dinh is on the original program, but unfortunately won't be there.) It should be a terrific discussion, so if you're at the meeting please consider dropping by.
Chen's Genesis for the Rest of Us:

Jim Chen defends his characterization of Justice Scalia's dissent from denial of certiorari in Tangipahoa Parish Board of Education v. Freiler as "the most scientifically irresponsible passage in United States Reports."

The most serious efforts to defend Justice Scalia's performance in Tangipahoa invariably deflect attention toward the seamier aspects of the Scopes trial. In a comment posted at Jurisdynamics and an earlier post at the Volokh Conspiracy, Jim Lindgren has detailed the racist and eugenicist cant of the textbook at issue in the Scopes trial. Edward Larson's reconsideration of Scopes, likewise aimed at defusing the cultural power of the admittedly fanciful Inherit the Wind, was deemed worthy of a Pulitzer Prize.

Whether couched as serious condemnation of early twentieth century social Darwinism or as a thinly veiled apology for creationist politics, efforts to deflect the debate to the particulars of the Scopes trial are beside the point. It's one thing to rehabilitate the misunderstood William Jennings Bryan, as Michael Kazin has heroicallly attempted. It's affirmatively noble to set the record straight on a hotly contested episode in American history. But it is downright disgraceful to write, as Justice Scalia did in Tangipahoa, that a school has any business "suggesting to students that other theories besides evolution -– including, but not limited to, the Biblical theory of creation -– are worthy of their consideration." I stand by what I wrote in Tangipahoa (the Jurisdynamics post) and in my article, Legal Mythmaking in a Time of Mass Extinctions.

Jim recognizes this subject is unlikely to die — just look at the repeated debates over the scientific (in)validity of "intelligent design" in the relevant comment threads on the VC. So, he is planning to offer something of a Festivus Genesis:

I shall now undertake an extended series on evolution, natural history, and naturalism as a source of inspiration, even religious satisfaction, for a world all too ready to rip itself apart over minute, offensively irrelevant theological differences. In a spirit no less playful than Seinfeld, I'll call the series Genesis for the Rest of Us. Those who know me intimately understand how profoundly my life has been shaped by the question, ¿Respecte usted la Virgen?, and how I answered it. This is not about what I believe or what anyone else believes. This is about the beauty and the power and the glory of the story of life, told as we best understand it to be the truth.

I look forward to Jim's series, and any discussion it may provoke.

UPDATE: For those who would like to know more about the Scopes Trial, check out Orin Kerr's review of Summer for the Gods here.

Mearsheimer and Walt Update:

As someone who has been highly critical of Mearsheimer and Walt (authors of the infamous "Israel Lobby") paper, but who gave them more of the benefit of the doubt than some of their critics (you can find some of my previous posts on them here), my eyebrows were raised when I saw that they had agreed to speak at a forum sponsored by the venomously anti-Israel and pro-Islamicist Council on American-Islamic Relations [update: irony alert: criticizing the "Israel lobby" for acting contrary to American interests before a group that, at the very least acts as an apologist forIslamicist terrorism]. After all, M & W had piously refused to debate their thesis with academics who pointed out flaws in their methodology, errors in their facts, and their use of highly tendentious sources. Mearsheimer, moreover, told the Forward that

"I don't have an agenda in the sense of viewing myself as proselytizing or trying to sell this," Mearsheimer told the Forward. "I am a scholar, not an activist, and I am reticent to take questions from the media because I do believe that this is a subject that has to be approached very carefully."

This is a bit difficult to square with his performance at CAIR, as reported by Dana Milbank in the Washington Post, (hat tip: Instapundit) which includes this gem: Before leaving for an interview with al-Jazeera, Mearsheimer accepted a button proclaiming "Walt & Mearsheimer Rock. Fight the Israel Lobby." "I like it," he said, beaming.

Milbank detected an anti-Semitic flavor to their remarks, but having not been there, I'll just pass his impression along without comment.

In any event, far from maintaining their posture as "objective" scholars, which would, for example, entail actually responding to academic criticism of their work, M & W seem well on their way to joining the Norman Finkelstein school of professional (and disreputable) critics of Israel.

Meanwhile, an interview published in Mother Jones in July provides further evidence of how infinitely malleable, and ultimately weak, M & W's thesis is. Mearsheimer says, "Regarding Iraq, we argue that the lobby—and here we are talking mainly about the neoconservatives—was pushing hard for a war against Iraq from early 1998 on." Putting aside the accurcay of this statement (my own strong recollection is that push for "regime change" in Iraq among conservatives, neo and otherwise, dated back to Saddam's invasion of Kuwait), Mearsheimer apparently thinks that "the lobby" can be used interchangeably with "neoconservatives," even though, by any measure, neoconservatives are only a tiny portion of Israel's U.S. supporters, and their agenda of international democratization, by force if necessary, is far, far broader than anything narrowly pro-Israel. By M & W's logic, apparently any foreign policy position taken by any group or indvidual that is pro-Israel can be considered an action by the nefarious Israel lobby. Liberal Jewish organizations coming out against genocide in Bosnia or Sudan? Ignore them, just part of the Israel lobby. An evangelical Christian organization protests against persecution of Christians in Muslim countries? Israel lobby. And so on. In case you wonder why there has been such a firestorm over the M & W paper there's a significant part of it; if their thesis is accepted, anyone who is pro-Israel is going to have their views on any issue even tangentially related to Israel dismissed as yet more shilling for Israel.

UPDATE: Here's a transcript of the CAIR event. I withdraw the comparison to Finkelstein; M & W aren't that bad. On the other hand, they continue to assert that the war in Iraq was a neoconservative plot, and as such, a plot of the "Israel lobby", subject to the same obvious criticisms I note above. Mearsheimer also manages to discuss what he considers excessive U.S. support for Israel in the Lebanon war without ever mentioning that Hezbollah has killed more Americans than any other terrorist group other than Al Qaeda, that Hez's sponsors Syria and Iran are causing the U.S. all sorts of trouble in Iraq, that Hez has played a large role in destabilizing relatively pro-U.S. forces in the Palestinian territories, and that Hez is the mortal enemy of relatively pro-American forces in Lebanon. Why wouldn't the U.S. want Israel to utterly defeat Hezbollah?

U.S. Citizens Barred from Entering U.S.:

The New York Times reports:

Federal authorities have prevented two relatives of a father and son convicted recently in a terrorism-related case from returning home to California from Pakistan unless they agree to be interviewed by the F.B.I.

It is unclear whether the men, Muhammad Ismail, 45, and his son Jaber, 18, have a direct connection to the terrorism case or if they have been caught up in circumstance....

The United States attorney’s office in Sacramento declined Monday to answer questions about the Ismails beyond confirming that the men had not been permitted to fly into the United States and that the Federal Bureau of Investigation wanted to question them.,,,

The Ismails live in Lodi, Calif., a small farming town south of Sacramento, where their relatives Umer Hayat and his son, Hamid, were arrested last summer as part of what federal prosecutors said was an investigation into terrorist links.

The Hayats are the only people to have been charged. Hamid Hayat, the nephew of Muhammad Ismail and the cousin of Jaber, was convicted in April of supporting terrorists by attending a training camp in Pakistan. Umer Hayat, in a deal reached with prosecutors after jurors deadlocked on terrorism charges, pleaded guilty in May to lying to the authorities about carrying $28,000 to Pakistan from California....

If the government has probable cause to believe that the Ismails are guilty of a crime, then it can certainly arrest them. But to my knowledge, the government can't bar citizens — both Ismails are citizens — from returning to the country. The government generally may not strip citizens of their citizenship (subject to narrow exceptions not relevant here); and it seems to me that the right to return to the country of your citizenship is one of the most basic aspects of citizenship.

It's possible that the government is simply barring them from flying into the U.S.; this might be permissible on the theory that the government may bar from flights people who might endanger those flights, and they would then just have to fly into Mexico or Canada (if those countries allow them to do so, which presumably they would, unless they share the U.S. government's misgivings) and then drive across the border. But the article suggests that they are being barred from entering the U.S. through any means.

If you know more about the facts of the case, or about the applicable legal rules, please do post a comment. Many thanks to lawprof Eric Freedman for the pointer.

UPDATE: See also Trop v. Dulles, which I neglected to link to originally. Thanks to commenter Mark Field for reminding me.

FURTHER UPDATE: Some commenters think the article clearly points to the prohibition being only on flying in to the U.S., and not to flying into Mexico or Canada and then driving into the U.S. Here's why I think it's ambiguous: The article does say "the men had not been permitted to fly into the United States" (and variants of that), but it also says the men were on the "government's no-fly list of people not allowed to enter the United States," which suggests a prohibition on entry (imprecisely referred to as "no-fly") rather than just a prohibition on flying (which would presumably apply to purely domestic flights, or to flights leaving the United States, as well as flights entering the United States). The lawyer, Julia Harumi Mass, is also paraphrased as having said "the men were told these conditions had to be met before the authorities would consider letting them back into the United States"; and of course the opening paragraph says "Federal authorities have prevented two relatives of a father and son convicted recently in a terrorism-related case from returning home."

That's why I think wrote that "[i]t's possible that the government is simply barring them from flying into the U.S.[,... b]ut the article suggests that they are being barred from entering the U.S. through any means." I wish the article had been more precise, but it wasn't.

DOJ's Crusade Against Privacy: The Washington Post has a story on a man who was sentenced to a six-year prison term for privacy. I'm not sure, but I'm thinking that there must be a section in the Patriot Act that made this a crime. The story is here: Florida Man Gets Six Years in Prison For Software Privacy.

  Thanks to Ted Metzler for the link.

Monday, August 28, 2006

Telling Bloggers About Formatting Glitches in Their Posts:

I appreciate it when people tell me about formatting glitches in my posts, and I'm sure other bloggers do, too.

But if you see such a glitch, it would be best if you e-mail the blogger about it rather than posting it in the comments. First, I may not read the comments for a while. Second, if the glitch is something clearly visible, such as an unclosed italics or bold tag, I will have already seen it before I read the comments (since to see the comments I also have to see the full post).

Google Before You Condemn:

Commenter Malvolio on the Very Nice ACLU Brief in a Student Free Speech Case thread pooh-poohs the ACLU's participation in the case, and writes "let me just say I'll be impressed when the ACLU defends Wal*Mart or Phillip Morris." A quick google search for "ACLU tobacco advertising" reveals that the national ACLU has indeed spoken up against broadcast restrictions on tobacco advertising. So before just assuming that your view of the ACLU is correct, you might want to do a bit of research.

The google search also reveals lots of people criticizing the ACLU for getting contributions from tobacco companies. My guess is that tobacco companies support the ACLU because they like the ACLU's position on commercial advertising generally (which goes back to the late 1970s, in cases such as Bates v. State Bar [attorney advertising] and Linmark Associates v. Willingboro [placing of "For Sale" signs in front of one's home]), and the ACLU's position on commercial advertising naturally leads to protect for commercial advertising of tobacco. But whatever is going on there, the ACLU does indeed defend Philip Morris.

Interesting News from the ABA re Accreditation:

Via Taxprof, I learn that William Rakes, the new chairperson of the ABA Section of Legal Education and Admission to the Bar, has charged an 11-person task force to recommend changes to the ABA accreditation process. Rakes letter to the members of the task force, bolded in appropriate places, follows:

You are asked to consider the relevant concepts and broad issues of accreditation. Your focus should be on what is a sound program of legal education and measure against that. I think the goal of accreditation should be to provide for a system based on standards which provide for the least possible amount of intrusion on the schools, recognize that one size does not fit all, and provide for maximum flexibility on the part of the schools. I would not want the Task Force to get bogged down in the details of the Standards or in drafting. Policy analysis and recommendations are what is desired.

I ask that you a) review the standards for accreditation used by other accrediting groups, b) determine what the Department of Education requires of accrediting bodies [I pointed out recently that the ABA has implicitly admitted that it has been violating DOE standards, see link below], and c) formulate an agenda which will address those issues that raise concerns as to whether it is appropriate and necessary for our accreditation standards to prescribe conduct on the part of law schools which tend to limit innovation and impose requirements which are not basic to the goals of accreditation. It has been suggested that the standards should focus more on measurement and assessment of outputs and less on inputs.

In other words, you are asked to take a fresh look at accreditation from a policy perspective. Please provide status reports of your progress as you see fit and submit your report in time for the Council to consider it at its June 2007 meeting.

I hope this is a serious effort by the ABA to fixed its incredibly flawed accreditation process, which has been captured by various activist groups in the legal academy who have sought to use the accreditation process to require law schools to adopt their agenda (tenuring clinical and legal writing faculty, admitting more minority students and hiring more minority faculty, keeping teaching loads low, etc.), regardless of the costs and benefits to the law school consumer. The other possibility is that this is a token effort aimed at persuading the Department of Education to recertify the ABA as an accrediting body in December, after which nothing will change.

Related Posts (on one page):

  1. Interesting News from the ABA re Accreditation:
  2. Startling Confession by the ABA:
The Crisis of Conservative Judaism and the Perils of Moderation:

Slate's Samantha Shapiro documents the recent decline of Conservative Judaism, which despite its name is actually a moderate denomination that seeks to carve out a middle ground between liberal Reform Judaism and traditionalistic Orthodoxy. Conservatism has lost its previous status as the largest single Jewish denomination in the United States to Reform, and has also lost ground to Orthodoxy. Shapiro argues that Conservatism's problems are partly due to its inability to carve out coherent positions on important religious and moral issues:

[T]he JTS [Conservative rabbinical seminary] never figured out a way to generate the kind of passion that is evident at most Orthodox yeshivas. The logical extension of Conservative Judaism's academic scholarship is that to obey Halakha [Jewish religious law] just because "God says so" is intellectually dishonest. But if that's the case, then why not throw over religious law, like Reform Jews do? The middle-ground movement has come up with no satisfactory answer. It makes do with guilt and a sort of schmaltzy ode to tradition a la Fiddler on the Roof.

Take the issue of the ordination of gay rabbis. It's a no-brainer for Reform Jews, who allow it because they place precedence on personal choice above biblical mandates, and for the Orthodox, who bar it because they believe that the Torah strictly prohibits gay sex. But for Conservatives, it's a crisis, because the movement lacks a clear theology to navigate between the poles of tradition and change, even as the gap between them becomes ever wider....

. . . Conservative Judaism has never adequately explained how its rabbis or congregants should decide which aspects of modern times are worth adjusting the law to, and which aren't. The decision in 1972 to ordain women rabbis at JTS wasn't advocated by the institutions' Talmudic scholars but by a committee of lay people. They made many strong moral and ethical arguments for ordaining women, but they couldn't ground their stance coherently in Jewish law.

The problems of Conservative Judaism are similar to those faced by moderate political movements. Scholars such as political scientist Moe Fiorina have repeatedly demonstrated that most voters hold relatively moderate, nonideological views. But studies have also repeatedly shown that political activists, intellectuals, and of course academics tend to be attracted to more extreme views because they are more coherent and provide a clear worldview. The same seems to be true of the Jewish rabbinical students described by Shapiro - the religious analogues of political activists. Neither political nor religious movements are likely to succeed in the long run without committed activists and intellectuals. But attracting their support will often mean sacrificing moderation for the sake of ideological coherence. For this reason, both the Republican and Democratic parties tend to be significantly more extreme than the median voter in the general population. Successful religious denominations also tend to avoid the theological center.

This need not be a bad thing. As a libertarian and an atheist, I'm by no means convinced that moderation is always the way to go in either politics or religion. But it does promote a higher degree of both political and religious polarization than we might have otherwise.

UPDATE: Commenter Joel B notes: "It sounds as though Conservative Judaism is suffering from much the same problems the mainline Protestant denominations suffer from." Yes, I agree.

Non-Jewish American Politicians of Jewish Descent:

Madeleine Albright, John Kerry, Barry Goldwater, Wesley Clark, Casper Weinberger, William Cohen, and, apparently, George Allen. All prominent non-Jewish politicians with recent Jewish heritage. This makes me wonder about how many Americans there are who have at least one Jewish grandparent, but who aren't Jewish, and about how many of these Jewish parents or grandparents hid their origins from their families, as did Albright's parents, John Kerry's grandparents, and perhaps Allen's mom. It seems like hiding this information was not uncommon in prior generations; one of my grandfather's first cousins had a falling out with his family, changed his name, moved to the Midwest, married a Christian, and never told his children or grandchildren about his origins, though they knew that "something was funny" about their family history (we found this out when a cousin was tracking people down for a family reunion.) I don't begrudge anyone who leaves the Jewish fold for whatever reason, but there is something downright creepy (because it suggests either shame or fear) about going out of one's way to avoid telling your kids that your family was Jewish.

The Sun Has Indeed Set on the British Empire:

Just got a piece of scam spam that treats England as if it were Liberia or some such. It's from "Hon Andy Reed. []" ([sic]'s all around), and it says, in plain text:

House of Commons,
London SW1A 0AA


From the Desk of ( Andy Reed Esq,MP ) Member,Head of the Foreign Affairs Committee London UnitedKingdom.I have contacted you to partake in a Business that will favour the both of us.

Presently the Contract Investigation Committee London-United Kingdom under the House of Commons has just reached a new resolution to Pay all their Pending Foreign Contractors this contact year 2006.

So I will demand for your information to enlist you among the unpaid contractors that will be paid this year, Andafter your information has been alleged and acknowledged by the board of director in charge; the sum of £10 Million Pounds will be paid into any Bank Account which you provide.

NOTE: For your Assistance in this Transaction; I am willing to compensate you with 10% of the total funds after conclusion of the Transaction.


[1] NAME: __________________

[2] ADDRESS: ____________________________

[3] AGE: _________________________________

[4] SEX: ________________________________

[5] TELEPHONE: __________________________

[6] FAX: _________________________________

[7] OCCUPATION STATUS: _ _______________

Also be informed that this Transaction will take us just 15 working days to accomplish beginning from when I receive your details.

Best regards,
Andy Reed Esq,MP

So the senders expect that some readers (1) will assume that English Members of Parliament have a e-mail address, and (2) will think that English Members of Parliament, or their staffs, lack a grasp of English punctuation, capitalization, and usage. Sir Winston Churchill's rate of rolling over in his grave has just increased by three revolutions per second.

Very Nice ACLU Brief in a Student Free Speech Case,

co-drafted by my former student Stephanie Christensen. The case is Smith v. Novato Unified School District, and here's a summary from the Student Press Law Center, which cosigned the brief:

The ACLU of Southern California, the Student Press Law Center and the law firm Caldwell Leslie Newcombe & Pettit submitted a friend of the court brief with the California Court of Appeal today in support of the free speech rights of student journalists.

"California law does not permit school districts to censor student speech simply to avoid controversy or because the speech is unpopular or even offensive," said ACLU/SC staff attorney Christine P. Sun. "Instead of stifling debate over controversial topics, school officials should support and encourage students to consider ideas that are different from their own."

Andrew D. Smith, a former student at Novato High School and current U.S. Marine, authored two opinion pieces for his school's student newspaper, The Buzz. The articles were originally approved by the school principal, but after publication school officials confiscated copies of The Buzz and said the editorials violated school policy after other students and parents complained about the content of the articles. Smith sued the school district and the Superior Court issued a ruling against him, which, if not reversed, will almost certainly chill future speech by sending the message that school officials can prevent or punish students for publishing certain views, Sun said.

Mark Goodman, executive director of the Student Press Law Center said this case is important because even though Smith's articles were provocative -- one expressed unfavorable opinions about Latino immigrants and a second piece repeated numerous unflattering racial stereotypes in support of an argument against affirmative action -- California law does not favor one brand of political speech over another.

"Andrew Smith's speech -- while offensive to many in his community -- was nonetheless speech on matters of public concern and thus entitled to the highest level of protection," Goodman said. "Andrew's experience of censorship is not an isolated one -- the Student Press Law Center receives requests for assistance from hundreds of high schools students each year who are being censored or punished by school officials for expressing unpopular or 'politically incorrect' ideas."

The amicus brief cites both the California Constitution and California statutory law that expressly provide that high school students the same rights to free speech and freedom of the press as they have outside school.

The brief states that: "Consistent with these rights, school administrators have a duty to protect the right of students to express unpopular views (even when school administrators may disagree with those views) to avoid chilling not only that student's speech, but the speech of any student who might express a controversial view."

The case, Smith v. Novato Unified School District, is also significant because the ACLU of Southern California is seeking a similar ruling in Bakersfield. The ACLU brought that case on behalf of students and student journalists at East Bakersfield High School who were prohibited by the principal from running articles about gay, lesbian, bisexual and transgender students on campus. While the articles were eventually published last year, the students are seeking a court order to ensure similar censorship is not repeated in the future.

"Online 'Banker' Runs off with Cash, Avatars Cry Foul":

ars technica reports:

The location was EVE Online -- a science-fiction-based MMORPG, and the bank was the Eve Intergalactic Bank -- a privately run in-game institution that for several months convinced EVE Online players to deposit their spare "money" into accounts with the enticement of accruing several points of interest per month. That seemingly virtuous idea came to a crashing halt when the proprietor of the EIB, known to the game universe as "Cally," absconded with around 790 billion ... ISK -- the currency of the EVE Online world.

EIB was supposed to function much as a real bank would, turning its assets into investment capital, then using the returns to pay interest to bank clients and provide a tidy profit to the bank itself. Instead, it functioned more like a 1980s-era savings and loan, with no FSLIC to protect the clients. In short, Cally got away scot-free, even leaving behind a (rather boring) 10 minute video (download) to taunt those whose "fortunes" were lost....

[T]here has been some musing on how real-world laws might be applied in the future to bring such "criminals" to justice (we're talking about the actual human players here, not the in-game avatars).... [But] NO ACTUAL MONEY WAS STOLEN.... It is up to EVE Online to reprimand Cally -- if in fact, it is determined that he did something against the rules set forth in the EULA....

It is indeed important (though not necessarily dispositive, especially if we're talking about civil remedies) that no actual money was stolen. But there's also another important point, on which the EULA, which is to say the End-User License Agreement for the game, might be relevant though would often be silent: In games, the risk of such dishonesty may be a legitimate part of the game, just as misleading, lying, and breaking promises may in some situations be legitimate parts of offline games (certain card games, Diplomacy, and more). My guess is that most courts would and should stay out of such matters, at least unless the agreements were quite explicit that certain behavior was prohibited and would be actionable in real courts as fraud or breach of contract or the like.

Thanks to reader Jeremy Tunnell for the pointer.

Dallas School Trustee Recommends City-Wide Ordinance Banning Low-Rise Pants in Public:

The Dallas Morning News reports:

A proposal to ban saggy pants in Dallas gained steam Wednesday as City Council members discussed how to deal with the popular clothing trend.

Several council members voiced support and asked the city attorney's office to research whether such a rule is enforceable.

Dallas school trustee Ron Price recommended the ban at Wednesday's council meeting, following through on a plan he announced Tuesday. Mr. Price wants the city to create an ordinance to allow police to cite people who wear their pants too low.

"Too low," he said, allows too much underwear to show....

The article doesn't mention any proposed language for the ordinance, likely since no ordinance has yet been formally proposed. But I wonder just how the city council would implement this, even if it decides it wants to. Would swimsuits qualify? Would there then be an exception for waterparks, public pools, and sidewalks on the way from the parking lot to the public pool? How about for people walking in their swim trunks from a private pool to their house, maybe stopping in their driveway to get something from their car? Kids, including teenagers, running through the sprinklers on a hot day?

Or would the ordinance try to distinguish boxers/briefs worn to swim from boxers/briefs worn for other purposes? How exactly? Based on the kind of fabric? Or is it that it's OK to wear a boxer or a brief if you're wearing it alone, OK if you're covering it up with pants, but not OK if it's halfway in between? Would there be an exception for people who are bending over sloppily, or people whose T-shirt rides up when they stretch for something, exposing an underwear waistband?

Is this really what the Dallas City Council should be doing?

Thanks to Marc Levin for the pointer.

UPDATE: Some commenters were confused, so I ought to clarify: The school trustee is the one suggesting the ordinance, but the ordinance is not limited to schools -- it would cover public places throughout the city. (I've revised the title to point to that more clearly.)

The Meat Market Pyramid: There's an interesting thread at the Greedy Clerk's board about the AALS "meat market," the annual conference where law schools host first-round interviews for entry-level professorships. A bunch of the questions concerned how many interviews schools schedule, and when, how many 1st-round interviews lead to second-round, second-round to offers, etc.

  I thought I would add in my two cents on this. Practices vary, of course, but in my experience, most schools interview anywhere from 15 to 50 candidates, and invite around 20% of the AALS interviewees for a second-round full day interview (for a total of anywhere from 3 to 10 full-day interview for each school). At most schools, the chances of getting an offer once you have a full-day interview (aka the jobtalk) is probably around 1 in 3. These odds vary tremendously, obviously, based both on different candidates and different schools. For example, I know someone who had something like 11 AALS interviews, and ended up with an offer from every school but one. But on the whole, a rule of thumb might be that if you have an AALS interview with school X, your chances of getting a permanent offer from school X are probably in the neighborhood of 10%.
Maryland Constitution:

I just learned that article XI-C of the Maryland Constitution has to do with off-street parking. No joking.

Thanks to Prof. David Lublin (Maryland Politics Watch), who pointed this out as an aside on a discussion list that I'm on.

More on Heat Transfer and Thermal Imagers: A number of commenters took issue with my claims about Justice Scalia's discussion about thermal imaging devices in Kyllo, and I wanted to blog more about it. I realize that there may be only 4 or 5 readers who actually care about this, but please pardon my geeking out: I spent five years before law school studying mechanical engineering, specializing (near the end) in heat transfer and fluid mechanics, so I'm probably a lot more sensitive to what I take to be Scalia's misstatement. But for whatever reason, it strikes me as an interesting issue.

  A number of commenters agreed with Scalia's suggestion that a thermal imaging device tells you the relative heat of various rooms in a house, because hot rooms will mean hot walls, cool rooms will mean cool walls, etc. To be clear, I think that this is often true. That why police might want to use thermal imaging devices, of course; they may ultimately want to collect evidence that might help make a showing about what's hapening inside the the home. Certainly that was the subjective intent of the officers in Kyllo: they wanted to learn something about the inside temperature of the home. But the issue here is physics, not the intent of some narcotics investigators in a particular case, and as a matter of phsyics it seems to me that Scalia's statement is often untrue. The fact that it is often untrue is what I think makes the claim scientifically irresponsible.

  For example, imagine a simple two-room house that is being monitored on a very cold day. Imagine we're looking at the house side by side, with room 1 on the left and room 2 on the right. Further, imagine that the walls on the left side of the house (around room 1) are very well insulated, that the walls on the right side of the house (around room 2) are very poorly insulated, and that the house has central heating that pumps an equivalent anount of heat into each room. If the police direct a thermal imaging device at the house, the device will tell them that the exterior of room 1 is relatively cold, but the exterior of room 2 is relatively hot.

  Does this mean that the interior of room 1 is relatively cold, and the interior of room 2 is relatively hot? It seems to me that the answer is no — in fact, the opposite is true. In room 1, the well-insulated room, the heat is being kept inside; it is heating the room, not pumping lots of heat to the exterior of the walls. As a result, the room with the cooler exterior will be warmer inside. On the other hand, the poorly insulated room, room 2, will have hotter walls but be colder inside. Now imagine that the homeowner brings a space heater into the poorly-insulated room, room 2, to bring it to the same interior temperature as room 1. The space heater will heat the exterior of the walls around room 2 even more: the exterior walls around room 2 would be significantly warmer than the walls around room 1. But the interior temperature of the rooms would be the same. As a result, the thermal imaging device won't tell the police anything about the relative interior temperature of the rooms; in this case, it will just tell the police about the relative insulation of the walls.

  As I said earlier, none of this is necessarily relevant to the constitutional issue. But it seems to me that Scalia's statement about what the imaging device necessarily does is really about what it can often be used to do, subject to a set of assumptions, and he was wrong to dismiss Stevens' point as somehow factually incorrect.

  UDPATE: Commenter T. Gracchus has a very good point:
"Scientifically irresponsible" seems a rather agressive dscription. Your case about inaccuracy does nothing to establish that Scalia was irresponsible. In neither post have you given a hint of what you intend by "irresponsible." Do you just mean inaccurate?
Excellent point; the phrase "scientifically irresponsible" was Jim Chen's, and I was interpreting it to mean only "scientifically inaccurate" without the suggestion of a moral wrong that might be associated with the concept of irresponsibility. My apologies if that caused confision.
Check out my colleague

John Mikhail's post on universal moral grammar on the Georgetown Law Faculty Blog.

Most Scientifically Irresponsible Passage in U.S. Reports:

How about this one, from Plessy v. Ferguson: "Legislation is powerless to eradicate racial instincts, or to abolish distinctions based upon physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation." Here you have three incorrect, and quite damaging, "scientific" propositions: (1) That there are "racial instincts"; (2) That "physical differences" account for policies like segregation; (3) and that overturning a law that requires segregation will somehow inevitably result in exacerbated racial tensions. Note that the latter view was consistent with the view of many "Progressive" southerners of the late 19th century, who believed that by separating the races, government-ordered segregation would reduce racial tensions and ultimately benefit African Americans. Of course they were wrong, and the Supreme Court was even more wrong to make this into a scientific proposition. The Court could have, for example, simply state "some people believe this, so we'll defer to legislative judgment." The outcome would have been just as bad, but the Court would not have been endorsing a fallacious "scientific" proposition.

A Contender for "Most Scientifically Irresponsible Passage": In his post below, Jonathan asks, "What is the most scientifically irresponsible passage in the United States Reports?" There are lots of contenders, but one nominee might be another contribution by Justice Scalia, footnote 2 in Kyllo v. United States.

  Kyllo considered whether pointing an infrared thermal imaging device at a home constitutes a "search" under the Fourth Amendment. Justice Scalia concluded that it did, it part because the device allowed the police to gather information about the interior of the home, namely, its temperature. In dissent, Justice Stevens argued that using the device was not a "search," in part because the device only revealed information about the exterior of the home. Justice Scalia responded to Stevens in footnote 2:
The dissent’s repeated assertion that the thermal imaging did not obtain information regarding the interior of the home, post, at 3, 4 (opinion of Stevens, J.), is simply inaccurate. A thermal imager reveals the relative heat of various rooms in the home. The dissent may not find that information particularly private or important, see post, at 4, 5, 10, but there is no basis for saying it is not information regarding the interior of the home.
  Whether Scalia or Stevens had the better legal argument is debatable. But my understanding is that as a matter of physics, Scalia was wrong and Stevens was right. My research into this suggests that infrared radition is surface radiation: it emanates from surfaces, down to a depth of about 1/1,000 of an inch. See MIKE LLOYD, THERMAL IMAGING SYSTEMS 2-5 (1997). As a result, an infrared image only reveals the temperature of a surface, not the temperature of the space behind the surface. So the device really did reveal only the exterior temperature of the home, not the interior of the home.

  Of course, it is possible to draw reasonable inferences about the likely interior temperature of a home from the home's exterior temperature profile. Assuming a steady state system, we can make reasonable assumptions about how houses are usually built (for example, that there are no heat sources in the walls themselves) to find out information about the interior temperatures. But that information is only as good as the assumptions themselves. For example, if someone made a wall that had an good insulator and then a heat source on the exterior, the exterior would be hot even though that temperature would tell us nothing about the interior of the home.

  None of this necessarily means that Scalia was wrong as matter of law, of course, but I believe he was wrong as a matter of physics. That's my best sense, at least; I hope readers will let me know if I'm the one who is wrong here. (Of course, if it turns out that Scalia was right, I suppose I'll have to designate this "the most scientifically irresponsible blog post at the Volokh Conspiracy"...)

Sunday, August 27, 2006

Libertarians and Science Fiction:

Tyler Cowen asks: "Why do libertarians love science fiction?"

He provides several possible answers, and there are more interesting ideas in the comments. It's also worth noting that not only do libertarians tend to like SF, but a disproportionate number of top SF writers have been libertarians (e.g. - Robert Heinlein, L. Neil Smith, Larry Niven, etc.). As one of those libertarians who do indeed love science fiction, I would be interested to see a study that examined the competing explanations rigorously to see which of them hold up.

Of course I also like fantasy literature even more than SF, despite the fact that it has much less ideological affinity with libertarianism, and many fewer libertarian writers. For a fascinating exploration of libertarian themes in today's most popular fantasy series, see this article by U of Tennessee lawprof Ben Barton.

UPDATE: I have corrected an earlier error in identifying Ben Barton's institutional affiliation.

Porkbusting and Political Ignorance:

Porkbusters from across the political spectrum are lining up to support Senator Barack Obama's Federal Funding Accountability and Transparency Act, bill that would establish an internet data base describing all federal grants and contracts (see, e.g., here and here). The bill is co-sponsored by conservative Republican Sen. Tom Coburn and "staunch liberals, determined conservatives and self-professed moderates" in the Senate have all endorsed it. Supporters of the bill hope that it will have a major impact in curtailing porkbarrel spending. Unfortunately, I am more skeptical.

The real problem is not that we have too little information. It is that we can't effectively use the information we already have. The main reason why porkbarrel projects get approved is not so much that information about them is unavailable, but that ordinary voters have little incentive to read it and process it. As I have argued in many of my academic writings (e.g. - here and here), most citizens are "rationally ignorant" about politics and often don't know even very basic political information. For example, some 70 percent of the public did not know that Congress had enacted President Bush's massive $500 billion prescription drug bill, the most important new spending program in decades (source documented here). It is highly unlikely that any significant number of voters who couldn't be bothered to learn about the massive medicare bill will have either the time or the incentive to spend large amounts of time studying the new data base created by the Coburn-Obama Bill. Few will take the time to determine which of thousands of federal grants are wasteful pork and which are legitimate expenditures. Even those voters who do study the database could well be misled by creative labeling. For example, even a clear case of porkbarrel spending such as the notorious "bridge to nowhere" is unlikely to be labeled as such in the data base. Rather, creative congressional staffers could call it something like "spending for essential transportation infrastructure." To be sure, experts will not be fooled, but ordinary voters easily could be unless they devote many hours to the task of smoking out the truth. While they may be willing to do so for a few particularly notorious and highly publicized projects, that is unlikely to happen in the case of the vast majority of porkbarrel grants. To be sure, activist organizations could do some of the spade work for the voters. But reading reports prepared by these organizations and determining which ones are accurate and credible is still a difficult and time-consuming task that few voters are likely to take on.

Lack of information is not the principal cause of widespread porkbarrel spending. There are already numerous articles and studies that analyze wasteful spending, and even a longstanding public interest organization (Citizens Against Government Waste) specifically devoted to documenting it and combatting it (check out their annual Pig Book).

Indeed, the very fact that so many senators are flocking to support the Coburn-Obama bill in itself makes me suspicious. If they genuinely believe that it will lead to the demise of their favorite porkbarrel projects, I would expect much stronger opposition (the fact that one anonymous senator has placed a hold on the bill is far less opposition than should be expected to a bill that really busted pork).

I'm not opposed to the Coburn-Obama bill, and I believe that it might improve things at the margin. But any real solution to the problem of pork must lie elsewhere.

"The Most Scientifically Irresponsible Passage":

What is "the most scientifically irresponsible passage in United States Reports"? According to Jim Chen it is "Justice Scalia’s gratuitous swipe at evolutionary biology" in his dissent from denial of certiorari in Tangipahoa Parish Board of Education v. Freiler. Drawing upon his article "Legal Mythmaking in a Time of Mass Extinctions: Reconciling Stories of Origins with Human Destiny" from the Harvard Environmental Law Review, Chen lambastes Scalia in this Jurisdynamics post:

In Tangipahoa Parish, a Louisiana school board had declared that lessons on "the Scientific Theory of Evolution" would "be presented to inform students of the scientific concept and not . . . to influence or dissuade the Biblical version of Creation or any other concept." The U.S. Court of Appeals for the Fifth Circuit duly invalidated the school board’s disclaimer. Public expressions challenging the scientific validity of evolution have no chance of withstanding the Supreme Court’s leading decisions regarding legal efforts to restrict the teaching of evolution. This is routine, settled law, a straightforward application of Epperson v. Arkansas, 393 U.S. 97 (1968), and Edwards v. Aguillard, 482 U.S. 578 (1987).

Justice Antonin Scalia, however, took extreme pains to dissent from this decision. He derided the appeals court’s reasoning — and, by extension, that of his colleagues who voted to deny urther review — as "quite simply absurd." He found no reasonable prospect of treating the school board’s "reference to . . . a reality of religious literature" as an unconstitutional "establishment of religion." After expressing seeming disapproval of Epperson and Edwards, Justice Scalia berated his colleagues for advancing further "the much beloved secular legend of the Monkey Trial."

Justice Scalia’s allusion to the 1925 prosecution of John Scopes for teaching evolution in a Tennessee high school represented a transparent political appeal to the shockingly powerful lobby that opposes the teaching of evolution in American public schools.Justice Scalia’s dissent in Tangipahoa Parish deserves condemnation because no other legal authority comes as close to supporting the teaching of creationism. The creationist lobby goes by the name "intelligent design" these days, but the enemy deserves to be called by its proper name: creationism. Justice Scalia’s shameless pandering gives judicial aid and comfort of the highest order to the creationist lobby.

Here is the relevant portion of Justice Scalia's opinion:

The only aspect of the disclaimer that could conceivably be regarded as going beyond what the rehearing statement purports to approve is the explicit mention–as an example–of “the Biblical version of Creation.” To think that this reference to (and plainly not endorsement of) a reality of religious literature–and this use of an example that is not a contrived one, but to the contrary the example most likely to come into play–somehow converts the otherwise innocuous disclaimer into an establishment of religion is quite simply absurd.

In Epperson v. Arkansas, 393 U.S. 97 (1968), we invalidated a statute that forbade the teaching of evolution in public schools; in Edwards v. Aguillard, 482 U.S. 578 (1987), we invalidated a statute that required the teaching of creationism whenever evolution was also taught; today we permit a Court of Appeals to push the much beloved secular legend of the Monkey Trial one step further. We stand by in silence while a deeply divided Fifth Circuit bars a school district from even suggesting to students that other theories besides evolution–including, but not limited to, the Biblical theory of creation–are worthy of their consideration. I dissent.

I don't know if Scalia's opinion qualifies as the most scientifically irresponsible passage ever — I am not sure that the scientific soundness of a school board policy is the proper measure of its constitutionality — but I see no defense of the reference to the Scopes trial. At best, it was an ill-considered rhetorical flourish. At worst, it reflected a shocking level of scientific illiteracy for such an esteemed and intelligent jurist.

If Justice Scalia's Tangipahoa Parish opinion is not the source of "the most scientifically irresponsible passage" ever to appear in a Supreme Court opinion, what is? Are there any nominations?

UPDATE: Several commenters have suggested that Justice Scalia's reference to "the much beloved secular legend of the Monkey Trial" was disparaging the historically inaccurate conventional narrative of what occurred at the Scopes trial. As Hans Bader notes in the comments, the trial was the product of a "collusive arrangement" to challenge a rarely enforced state statute. Moreover, as Jim Lindgren has noted, the pro-evolution textbook in question was horribly racist and tied evolutionary theory to eugenics and social darwinism.

Under this reading, the "secular legend of the Monkey Trial" to which Scalia refers is the myth that Creationists are (in Hans Bader's words) "a mortal threat to education and a free society," and the legend is "push[ed] . . . one step further" by excluding any reference to creationism from public schools. This is a reasonable interpretation of the reference, but I don't think it gets Justice Scalia off the hook. In the next sentence he suggests that evolution is simply one among many competing theories, "including, but not limited to, the Biblical theory of creation." This suggestion is certainly scientifically irresponsible, and was not necessary for Justice Scalia to make his doctrinal point. When placed in this context, I unconvinced that Justice Scalia's reference to the Scopes Trial was as benign as some suggest, though I open to being persuaded on this point.

Sunday Song Lyric: In 1950, Harper & Brothers published The God that Failed, edited by Richard Crossman, a collection of essays by prominent writers explaining their rejection of Communism. The contributors were all literary giants of their time: Ignazio Siolne, Richard Wright, Arthur Koestler, Louis Fischer, Stephen Spender, and Andre Gide. Each essay chronicled the author's initial commitment to, and eventual turn away from, Communism as a guiding ideology. While most remained men of the Left, they all firmly rejected the Communist ideal. Given the intellectual currents of the time, the book made an important statement and helped fuel the growth of anti-communism among intellectuals. As the New York Herald Tribune commented, the book made "an important contribution to our understanding of Communism in its full dimensions and awful depths."

In 1991, Metallica released the song "The God that Failed" on their self-titled album (sometimes referred to as their "black album"), one of the greatest heavy metal works of all time. Roling Stone called it an "exemplary album of mature but still kickass rock & roll," and that it is. While some long-time fans rejectd the album -- largely for extending the band's musical and lyrical range beyond the territory covered in prior albums (and achieving commercial success) -- it catapulted Metallica to true rock stardom.

Whereas the writers in Crossman's volume targeted Communism, James Hetfield and Lars Ulrich trained their sights on Christian Science (if not Christianity as a whole) after Hetfield's mother died of cancer having refused medical treatment due to her religious beliefs. The song is hardly the literary or intellectual equivalent of the essays in The God that Failed , but it does capture the pain and anger of disillusionment suggested by the title, and makes a powerful statement.

Pride you took
Pride you feel
Pride that you felt when you'd kneel
Not the word
Not the love
Not what you thought from above

It feeds
It grows
It clouds all that you will know
Decide what you believe

I see faith in your eyes
Never you hear the discouraging lies
I hear faith in your cries
Broken is the promise, betrayal
The healing hand held back by the deepened nail
Follow the God that failed

Find your peace
Find your say
find the smooth road on your way
Trust you gave
A child to save
Left you cold and him in grave