Saturday, November 4, 2006
The four military papers — the Army Times, Air Force Times, Navy Times and Marine Corps Times — will on Monday call for the resignation of Donald Rumsfeld (tip to Instapundit). These papers are owned by a subsidiary of Gannett, so that represents little more than the opinion of their editorial staff or the publisher.
We will have to see whether any news coverage of the endorsements will make clear that the newspapers are privately published. Ordinarily, the endorsements of newspapers other than in local races get very little attention from other news outlets, and I can't remember ever hearing about whom the four military papers endorsed in the past. This is the sort of things that blogs, the cable news stations, and the biggest national newspapers might cover in passing, but if it makes the national or local nightly news programs (with their shortage of time to cover hard news), that would be unusual for private newspaper endorsements.
As I write this on Saturday, Nov. 4, I can’t help but think that we might be in for a big November surprise that may bode ill for the Republicans in the 2006. The focus of the news on Sunday and Monday might look very different than it does today.
According to news reports, the verdict in the first of many Saddam Hussein trials is due tomorrow, the Sunday just before the US elections:
U.S. and Iraqi forces drastically tightened security across Baghdad on Saturday in advance of the expected guilty verdict against Saddam Hussein, and the Iraqi prime minister said he hoped the ousted dictator will "get what he deserves." . . .
The highly anticipated verdict, planned for Sunday, is expected to set off further bloodshed, underscoring the trial's failure to bring reconciliation to a country fractured ever deeper along sectarian lines.
Lawyers for Saddam have asked for a delay in the verdict, which if granted might push the verdict to a date after the November US election.
If a verdict of “Not Guilty” is rendered on Sunday, that would be an obvious public relations disaster for the Bush administration, even though Saddam would be tried on other grounds. The Republicans would be likely to lose a lot of support in the voting booth.
If the verdict is “Guilty,” as expected for Sunday, there are a number of possibly bad consequences for the Republicans in any event.
First, it will look to many voters as if the Republicans orchestrated the verdict to come down immediately before the U.S. November election, especially if the Democrats and the Monday talk show hosts publicly accuse the Republicans of just such a move. While I don’t think the Administration is necessarily above playing politics in such a way, I don’t think that Karl Rove and company would be foolish enough to schedule a verdict so close to the US election, even if such an outcome were within their control.
Second, a reminder of just how slow progress has been in Iraq would not help the Republicans, just as Jimmy Carter’s attempt to influence the 1980 election with a last-minute claim that an Iranian hostage deal was imminent backfired on him, though such a strategy had worked beautifully before each major primary in the spring of 1980 to help him defeat Ted Kennedy.
Third — and most important — a verdict of guilty is expected by many to lead to considerable unrest in Iraq, and perhaps an orgy of violence. If that happens, the press will — and should — cover the violence extensively. I wouldn’t expect the press to downplay any significant increase in violence in the way that they did the Bin Laden message sent on the eve of the 2004 election (most major news organizations never disclosed that Bin Laden appeared to be threatening states that voted for Bush). If riots or mass murders in Iraq dominate the news on Sunday and Monday, it could spell real trouble for the Republicans.
I live in Virginia and am looking at various Allen/Webb materials. But suppose I don't care about Allen's business interests, use of racial slurs, or Jewish heritage, or about Webb's graphic novels. Does anyone have any input on whether -- based on his policy positions -- Allen is one of the best of the Republican lot in the Senate, one of the worst, or middling?
Friday, November 3, 2006
Roanoke, Virginia City Code Sec. 21-144(a) provides that "It shall be unlawful for any person to administer, for hire or reward, to any person of the opposite sex, any massage, any alcohol rub or similar treatment, any fomentation, any bath or any electric or magnetic treatment." Another section excepts medical massages (assuming that this exception is clear enough and narrow enough to avoid swallowing the rule), and "barbers or beauticians who give massage to the scalp, face, neck or shoulders only." Constitutional, or a violation of the Equal Protection Clause prohibition on sex classifications?
Note that a man and a woman were recently convicted for violating this ordinance; their massage seemed sexual, but the ordinance isn't limited to sexual massages. Same-sex marriage naturally played a role in the legal analysis. Thanks to Ben Winograd for the pointer.
The Introduction to my Medical Self-Defense article attracted enough interest that I thought I'd serialize the article on the blog; and the Harvard people were kind enough to let me do that. So let me follow the Introduction with a brief discussion of the Court's existing recognition of a constitutional medical self-defense -- the (surprisingly uncontroversial) right to get even late-term abortions when needed to protect the mother's life. (I do not rely on the more controversial right to get such abortions to protect the mother's health, including possibly emotional or psychological health, or on the right to get particular abortion procedures such as those at issue in Stenberg v. Carhart.) Recall that I'm arguing here both that the Court should recognize a constitutional right to medical self-defense, by analogy to the Court's past precedents, and that even if no such constitutional right is recognized, legislators and voters ought to recognize a moral right to medical self-defense.
Roe and Casey hold that the Constitution protects the right to an abortion. But this right actually consists of two different rights -- different in scope, justification, and popular support.
The first is the highly controversial right to abortion as reproductive choice, which generally allows pre-viability abortions on demand. The second is the right to abortion after viability when necessary “to preserve the life or health of the mother.” This is not the right to abortion on demand, since a woman must show a particular reason for a post-viability abortion. Nor is the right justified by the woman’s right to choose whether to bear a child: If the medical danger hadn’t arisen, the woman would have been obligated to bear the child to term.
Rather, the right is a right to medical self-defense -- the right to protect your life using medical care, even when this requires destroying that which is threatening your life. This right exists despite the interest in protecting the viable fetus’s life, an interest Roe and Casey held compelling enough to trump the abortion-as-choice right. Yet this right is largely uncontroversial, endorsed even by Chief Justice Rehnquist’s Roe dissent, by all the restrictive abortion laws in effect when Roe was decided, and by public opinion. Only 9% to 15% of Americans endorse the view that abortions should be banned even when the woman’s life is in danger. Compare this to the 42% to 58% of Americans who endorse the view that abortion should be generally banned, and available at most to protect the woman’s life or in cases of rape or incest, and the 33% to 46% who endorse a similar view but without even a rape or incest exception.
The medical self-defense right has been expressly recognized just in abortion cases. Yet it can’t be logically limited to situations where the defensive procedure is abortion, and rejected in cases where the woman needs to defend herself using experimental drugs or an organ transplant. Nothing about therapeutic postviability abortion makes it more deserving of protection than any other medical self-defense procedure.
One can’t distinguish postviability abortions on the grounds that they involve the woman’s reproductive choice. After viability the time for that choice has passed, and the ability to get a therapeutic abortion is a side-effect of the woman’s medical self-defense right, not her abortion-as-choice right. Nor can one distinguish therapeutic abortions on the grounds that they involve control over the woman’s own body. A patient’s adding substances (such as medicines or an organ) to her body, as well as removing substances from her body (say, through drugs that kill cancer cells), involves her control over her body as much as does a doctor’s inserting a surgical instrument to remove a fetus.
The medical self-defense procedures may cause some harm. Ellen’s experimental drug may shorten Ellen’s already short expected lifespan. It may also cost her money for what the government thinks may well be a false hope (though note that the pharmaceuticals in the Abigail Alliance case were merely not proven effective, rather than proven ineffective). Likewise, as I discuss [below], allowing compensation for organs has been said to potentially cause various other harms.
Yet Roe and Casey demand far more than a showing of some conceivable risk to some government interests before Alice’s right to abortion-as-self-defense may be restricted. Even the compelling interest in protecting the life of a viable fetus -- a fetus that is in many ways indistinguishable from a born baby -- isn’t enough to overcome Alice’s rights.
The same should hold for other medical procedures used to protect one’s life. Modest burdens on the right to medical self-defense, such as an informed consent requirement or a short waiting period, would be constitutional. But to impose a substantial burden on the patient’s right to protect her life through medical procedures, the government should have to show an extremely powerful reason for burdening the right, and to show the burden is genuinely necessary because the government’s goals can’t be achieved in less burdensome ways. And even when the interest is powerful in the abstract, it might still sometimes be rejected in favor of a right to protect one’s life, as the interest in protecting fetal life is rejected under the abortion-as-self-defense right.
There is, of course, an important limit to the right to medical self-defense (or to lethal self-defense): The right is constrained by the rights of others who aren’t threatening the woman’s life. No woman has a constitutional right to force a doctor to perform an abortion, even to save her life. Likewise, Ellen’s constitutional right to medical self-defense wouldn’t entitle her to steal experimental drugs.
But this is no different from the way other indisputably recognized constitutional rights operate. My First Amendment rights don’t let me steal a printing press, speak on your lawn, or trespass on private property to worship at the site of an alleged miraculous apparition (even if Employment Division v. Smith were overturned).
This is not because property rights are more important than free speech rights, free exercise rights, or self-defense rights; rather, it’s because even important rights are bounded by the rights of others. Naturally the exact scope of those rights of others -- for instance, whether they include the right to freedom from defamation, emotional distress, offense, or interference with business relations -- has long been the subject of debate. But in our legal system an inherent, and I think necessary, aspect of constitutional rights is that they are bounded by at least some rights of others. The existence of such boundaries doesn’t contradict the existence of the right, or weaken the right’s force when exercise of the right does not conflict with the rights of others.
Next week, I'll talk more about lethal self-defense, and then get to the payoffs, which have to do with experimental drugs and compensation for organ transplants.
All Related Posts (on one page) | Some Related Posts:
- "Singapore to Compensate Kidney Donors":
- Professor Robert Nagel Criticizes My Medical Self-Defense Article,
- Be Careful Believing Your Own Metaphors:...
- Lethal Self-Defense and What It Tells Us About Medical Self-Defense:
- The Two Abortion Rights, and Therapeutic Abortions as Medical Self-Defense:
- Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs:
I think people are often too quick to charge others with hypocrisy; a lot of the "He said A here, but did B there" is explicable by some quite sensible distinctions between A and B. But I'm especially bugged by overconfident claims of hypocrisy -- "He said A, but I'm positive he would have done B there had the situation only happened." This is especially so when the claims name some particular person. If you're going to accuse someone of being a hypocrite, it seems to me that you ought to have pretty solid foundations for your accusation. Your guess as to how the person would have reacted in a hypothetical situation will only rarely qualify.
A concrete example: My post about the Halloweengate press release drew this comment:
By the way, I wonder how many people (ahem--Instapundit) would have taken the exact opposite stance on this issue if this had come out first.
A request for some clarification yielded this from the same commenter:
As we discussed in the prior thread, there is no obvious political valance or statement involved in this costume. So, I think what likely would have happened is that people who were looking for an excuse to bash an Ivy League university president would have become outraged at her taking offense and issuing a statement about it.
In fact, here was Instapundit's last line of his last update:
"I remain skeptical that a Klansman costume would be received in the same fashion, or that an Ivy League university President would be comfortable being photographed with someone wearing a Klan costume."
What I think we would have been reading instead is something like:
"I remain skeptical that a Fidel Castro costume would be received in the same fashion, or that an Ivy League university President would be uncomfortable being photographed with someone wearing a Castro costume."
OK, is there any real justification for assuming that Glenn Reynolds would have "taken the exact opposite stance on th[e] issue" if the press release had come out first, by "becom[ing] outraged at her taking offense and issuing a statement about it"? Is Reynolds noteworthy for thinking in other contexts that suicide bomber costumes are great, and that it's outrageous for university presidents to take offense at them? Is there any real support for the suggestion that Reynolds would have behaved this way?
And this isn't just this comment; I see it all the time, about what the ACLU or the Left or the Right or who knows who would surely have done in some hypothetical scenario. These people or groups are apparently so bad that we can accuse them of likely inconsistency even without their having actually done half of the internally inconsistent pair.
In rare circumstances, the targeted person is indeed so predictable that such a prediction is likely right. But my sense is that much of the time (including here) this just isn't so. The claims of hypothetical hypocrisy are based simply on the claimant's hostility to the target, rather than on any real evidence that the target would have indeed acted the way claimant alleges. It's basically argument by a presumption of bad faith -- not, in my view, the most enlightening form of discourse.
From a New York trial court decision, May 15, 2006 (paragraph break added):
This petition, to change the surname of a three-year-old minor and amend the child's birth and baptismal certificates, by the child's father, her non-custodial parent, is replete with accusations about the mother's alleged reprehensible and irresponsible conduct, as contrasted with the father's self-suffering [sic] assertions of religious devotion, piety, and upstanding behavior. Petitioner's histrionics are worthy of a Harlequin Romance novel or what was once known in Hollywood as a "four hankie" movie....
It is undisputed that Sean Wilson and Caroline Kilkenny had a relationship from late 2001 to August 2002, and that Ms. Kilkenny became pregnant with Mr. Wilson's child, Claudia Rose Kilkenny, who was born on April 29, 2003 at Lawrence Hospital, Bronxville, New York. The infant has resided continuously with her mother, at the mother's residence in Yonkers, New York....
Petitioner's grounds for changing the child's name include that the father: has an M.B.A. degree and is a C.P.A.; is a practicing Roman Catholic; and, is a member of the "Ancient Order of Hibernia" [sic]. Further, petitioner claims that "[m]y family heritage stems from Ireland and has a depth of history and vitality that procures immediate respect and good will in that region by the mere mention of my surname, Wilson."
He then claims that the name change would: save Claudia "the embarrassment associated with being a fatherless child"; "avoid any feelings of alienation arising in the child from having a different surname from that of Petitioner"; and, "prevent scorn and contempt from befalling Claudia as being associated as a societal bastard' child." ...
As you might gather, the court denies the petition. (The careful reader, incidentally, will have noticed that the request for an order to change the baptismal certificate, which is to say for an order that the Catholic Church change the baptismal certificate, seeks a remedy foreclosed by the First Amendment. The court noticed it, too.)
In a post on proposals to raise the minimum wage, Kevin Drum comments:
"it's worth noting that virtually all the evidence on the anti-minimum wage side is either anecdotal or theoretical. The evidence on the pro-minimum wage side is concrete and statistical."
Yet the very story he cites as the basis for this proposition reports otherwise.
In a new report, economists David Neumark of the University of California at Irvine and William Wascher of the Federal Reserve Board say a review of more than 90 studies in more than 15 countries since the early 1990s shows nearly two-thirds of the studies find a "consistent" though not always statistically significant negative impact on employment. Fewer than 10 found a consistently positive impact. While there's "no consensus," they say, "the weight of empirical evidence" supports the traditional view.
UPDATE: I am not sure, but this appears to be the Neumark-Wascher study referred to in the WSJ story. From the conclusion:
In general, our results provide evidence that minimum wages tend to reduce employment rates among the youth population. A clear negative correlation between the level of the minimum wage and youth employment-to-population ratios appears both in the raw data, and in time-series cross-section regressions relating employment rates to minimum wages, with controls for overall economic conditions and cross-country variation in labor market policies and institutions. The disemployment effects also appear in models that control for country-specific factors (including country-specific time trends), indicating that the results are not solely driven by cross-country differences in minimum wage levels and youth employment rates.
The WSJ editorializes on the recent indictments of four Acorn voter registration workers in Missouri for submitting fraudulent registrations.
We wish this were an aberration, but allegations of fraud have tainted Acorn voter drives across the country. Acorn workers have been convicted in Wisconsin and Colorado, and investigations are still under way in Ohio, Tennessee and Pennsylvania.
The good news for anyone who cares about voter integrity is that the Justice Department finally seems poised to connect these dots instead of dismissing such revelations as the work of a few yahoos. After the federal indictments were handed up in Kansas City this week, the U.S. Attorney's office said in a statement that "This national investigation is very much ongoing."
Each year, the president hosts a Halloween party for Penn students. More than 700 students attend. They all crowd around to have their picture taken with me in costume. This year, one student who had a toy gun in hand had his picture taken with me before it was obvious to me that he was dressed as a suicide bomber. He posted the photo on a website and it was picked up on several other websites.
People have since complained to me that the costume was offensive. But for Pete's sake, this is a Halloween party, with a bunch of college kids trying to be creative, including trying to be creative with a theme of "dressing as scary evil things." Suicide bombers are scary evil things. Maybe they're too scary evil, or scary evil in the wrong way, or who knows what. But there's no rule book that he should have consulted on the subject; it's a matter of taste and judgment on which reasonable people can differ. Cut him some slack. I say again, it's a Halloween party; even if he went over the fuzzy line, how much public outrage does it merit?
Oh, whoops, sorry -- that was the statement that Penn's president issued in my dreams. Here's the statement she issued in reality:
Each year, the president hosts a Halloween party for Penn students. More than 700 students attend. They all crowd around to have their picture taken with me in costume. This year, one student who had a toy gun in hand had his picture taken with me before it was obvious to me that he was dressed as a suicide bomber. He posted the photo on a website and it was picked up on several other websites.
The costume is clearly offensive and I was offended by it. As soon as I realized what his costume was, I refused to take any more pictures with him, as he requested. The student had the right to wear the costume just as I, and others, have a right to criticize his wearing of it.
OK, Dr. Gutmann, he had a right to wear the costume, you have a right to criticize the wearing of it, and I have the right to criticize your and everyone else's taking this so seriously. (Of course, they also have the right to criticize my taking their taking it so seriously so seriously.) Only mildly, mind you, especially in your case, since University President is not a job that generally allows "Oh, calm down already" press releases. I suppose you did what you had to do.
But, boy, I wish you'd put out my version of the press release instead.
Related Posts (on one page):
- More on the Penn Halloween Controversy:
- Ah, Yes, the Press Release:
- Dressing as a Suicide Bomber to a Halloween Party:
A friend of mine asked me about this -- why do we say "the alarm went off" when the alarm, or at least the sound, goes on?
I infer that this is related to a gun or a bomb going off, that when something is ready to go it is somehow seen as "on," and then when the trigger turns that readiness into actual firing or detonation the device is seen as "going off." But can anyone tell me more precisely how the phrases came to be this way?
HBO's "Hacking Democracy," a documentary that purports to show that "the top-secret computerized systems counting the votes in America's public elections are not only fallible, but also vulnerable to undetectable hacking, from local school board contests to the presidential race" premiered last night. I haven't had the chance to watch it yet, but I hope to in the next few days. Votelaw's Ed Still says "It's a thrill a minute -- well, maybe every few minutes."
According to this report (also via Votelaw), Diebold claims that the documentary is inaccurate and asked HBO to pull it from the air. See, for instance, here and here. HBO stands by the accuracy of the program. Given that Diebold's pre-broadcast complaints appear were based upon their "understanding" of the program's content -- rather than viewing the program itself -- I will be curious to see what, if any, post-airing response Diebold produces. (Diebold's releases on this and related issues are available here.)
Like Glenn Reynolds, I don't see what's so wrong about paper ballots, and if "Hacking Democracy" lives up to the hype, I expect I will hold ever more strongly to this view.
Following the U.S. Court of Appeals for the Sixth Circuit continues to provide a crash course in the current controversies concerning the availability of habeas relief in federal courts. This week, the Sixth Circuit is once again divided -- this time 7-7 on a petition for rehearing en banc -- over whether a habeas petition should have been granted to a capital defendant.
Last June, in Slaughter v. Parker, a three judge panel reversed a district court decision granting James Slaughter's habeas petition claiming ineffective assistance of counsel. Judge Batchelder wrote the majority opinion for herself and Chief Judge Boggs. Judge Cole dissented.
On Wednesday, an evenly divided Sixth Circuit denied Slaughter's petition for rehearing en banc. Judge Cole wrote a dissent, which begins:
We are uneasy about executing anyone sentenced to die by a jury who knows nearly nothing about that person. But we have allowed it. We are also uneasy about executing those who commit their crime at a young age. But we have allowed that as well. We are particularly troubled about executing someone who likely suffers brain damage. We rarely, if ever, allow that—especially when the jury is not afforded the opportunity to even consider that evidence. Jeffrey Leonard, known to the jury only as “James Slaughter,” approaches the execution chamber with all of these characteristics. Reaching this new chapter in our death-penalty history, the majority decision cannot be reconciled with established precedent. It certainly fails the Constitution. This Court’s seven to seven stalemate regarding the en banc petition, however, leaves this precarious decision intact.As Robert Loblaw at Decision of the Day notes, Cole's dissent was joined by Judges Martin, Daughtery, Moore, and Clay, leaving the identities of the other two judges who voted in favor of en banc review a mystery.
The 5th and final excerpt from War Made New: Technology, Warfare, and the Course of History, 1500 to Today, by Max Boot:
Technological advance will not change the essential nature of war. Fighting will never be an antiseptic engineering exercise. It will always be a bloody business subject to chance and uncertainty in which the will of one nation (or sub-national group) will be pitted against another, and the winner will be the one that can inflict more punishment and absorb more punishment than the other side. But the way punishment gets inflicted has been changing for 500 years and it will continue to change in strange and unpredictable ways.
In assessing the future conduct of conflict, most analysts tend to fall into one of two camps. One group stresses the dangers of terrorists and guerrillas who use cheap, simple weapons like AK-47s, machetes, or explosives. Another group stresses the danger of high-tech weapons such as cruise missiles and killer satellites proliferating around the world and into the hands of states such as China and North Korea. The former school (associated with ground-combat arms) stresses the need for better warriors; the latter school (associated with air and naval forces), the need for better machines. The reality is that both high-intensity and low-intensity threats are real and that both more superlative people and first-rate equipment are needed to counter them. Michael Evans of the Royal Military College of Australia offers sage advice when he writes: “In a dangerous and unpredictable world, military professionals and their political masters must … be ready to tame the big wildcats and not simply the vicious rodents, to be able to fight troops like Iraq’s former Republican Guard as well as Taliban, al-Qa’ida militia, and terrorists.”
Today, the U.S. is much further along in figuring out how to tame the Republican Guard than Al Qaeda, and it needs to place more emphasis on making up for its deficiencies in irregular warfare rather than simply enhancing its already substantial lead in conventional warfare. While the Information Revolution has decreased the number of weapons and soldiers needed to defeat a conventional adversary, occupation duty and nation-building—the prerequisites for turning a battlefield triumph into a long-term political victory--continue to demand lots of old-fashioned infantry. Therefore, the U.S. and its allies would be making a mistake if they were to seriously stint on force size in order to procure more high-tech systems.
But that doesn’t mean that the U.S. can simply ignore the dangers of major warfighting or the dictates of technological change. That was the mistake Britain made before 1914 and again before 1939. The British had the world’s best “small war” force—an army well-trained and equipped for fighting bandits and guerrillas—but it was ludicrously insufficient to deter German aggression or to defeat Germany once a world war broke out. That mistake, symbolized by deficiencies in tanks and aircraft carriers, hastened the end of the Pax Britannica.
Today, the possibility of conventional inter-state war is lower than at any time in 500 years, but it has not disappeared altogether. Because Americans and other citizens of Western democracies no longer seem willing to suffer the same level of casualties experienced by their ancestors, their armed forces must be able to defeat adversaries at scant cost in lives. That argues for keeping the qualitative edge that the U.S. gained in the Information Age--an edge that cannot be preserved by standing still. It will be necessary to keep innovating since, as previously indicated, some of the technologies and techniques employed by the U.S. are starting to be negated by their dissemination around the world. Innovation must be organizational as much as technological, and it needs to focus on potential threats across the entire spectrum, from low-intensity guerrilla wars to high-intensity conventional conflicts.
In any case, the boundaries between “conventional” and “unconventional,” “regular” and “irregular” warfare are blurring. Even non-state groups are increasingly gaining access to the kinds of weapons—from missiles and landmines to chemicals and perhaps even atomic bombs—that were once the exclusive preserve of states. And even states will increasingly turn to unconventional strategies to blunt the impact of American power.
Two colonels of the Chinese People’s Liberation Army envision “unrestricted warfare” encompassing not only traditional force-on-force encounters but also financial warfare (subverting banking systems and stock markets), drug warfare (attacking the fabric of society by flooding it with illicit drugs), international law warfare (blocking enemy actions using multinational organizations), resource warfare (seizing control of vital natural resources), even ecological warfare (creating man-made earthquakes, tsunamis, or other disasters). In a clever bit of ju-jitsu, many of these strategies turn the strengths of Information Age countries against them. Al Qaeda is pursuing similar strategies.
Countering such threats will require much more than simply buying more advanced aircraft, tanks, or submarines. Such traditional weapons systems may be almost entirely useless against adversaries clever enough to avoid presenting obvious targets for precision-guided munitions. To fight and win the wars of the future—wars that may more closely resemble a series of terrorist attacks or hit-and-run raids than traditional force-on-force armored, aerial, or naval engagements--will require reorganizing conventional militaries to emphasize such skills as cultural awareness, foreign language knowledge, information operations, civil affairs, and human intelligence. It will also require cutting away the bureaucratic fat to turn bloated Industrial Age hierarchies into lean Information Age networks capable of utilizing the full potential of high-tech weapons and highly-trained soldiers.
Whether the U.S. is ready for such challenges will determine whether it can keep its position as the lone superpower or whether the world will see another power shift of the kind that accompanied the Gunpowder Revolution, the First Industrial Revolution, the Second Industrial Revolution, and the early stages of the Information Revolution. The course of future history will turn on the outcome.
In Virginia Race, Women May Be the DeciderGiven that Virginia has about 1.9 million registered female voters, compared with 1.6 million registered male voters, that prediction seems pretty safe. Of course, the Washington Post was all over this story last week.
By Robin Toner
FAIRFAX, Va., Nov. 1 — There is, unquestionably, a striking amount of testosterone in the Virginia Senate race between Senator George Allen, football-tossing Republican conservative, and Jim Webb, Democrat, Vietnam veteran and chronicler of the warrior tradition.
But the real struggle in this exceedingly tight contest, one of a handful that will determine control of the Senate, may be decided by how women vote.
Thursday, November 2, 2006
Democracy Project is upset by this incident. InstaPundit seems to think the suicide bomber might be anti-Semitic. But this is a Halloween party, no? In recent years, people dress up as positive things for Halloween, too (my boys were Pooh and Tigger) but I had thought the tradition was to dress up as scary, often nasty people. One of the kids in the neighborhood this year was dressed as a '20s gangster, complete with a plastic machinegun. Pirates are pretty common.
You're told to dress as someone scary. A suicide bomber is scary. It should probably be scarier than a skeleton or a ghost. Sounds like you did your Halloween duty. And I don't think that wearing a costume for Halloween endorses the likely sentiments of the person being depicted, be he pirate, bomber, gangster, or zombie.
Now there is a more complex argument, I suppose, that could be made: wearing a costume suggests that the depicted person's activity is a laughing matter. I take it that this would be a possible objection to people's dressing as Nazis for Halloween. I should say that I wouldn't object myself to people's dressing as Nazis for Halloween; still, I assume the sensible argument wouldn't be "by dressing as a Nazi you're endorsing Nazism" but "by dressing as a Nazi you're suggesting that it's OK to use Nazis as a subject of light-hearted fun." Yet even this isn't that persuasive an argument in my book. There are contexts in which light joking about suicide bombers or Nazis might be strikingly inapt; a Halloween party, on the other hand, doesn't seem to me to be one.
UPDATE: Instapundit asks: "Would a university President really pose for photos with someone in a Klan outfit, or wearing blackface? I find that hard to imagine. And if not, why is the suicide bomber outfit OK?"
Two thoughts: First, I would likewise defend someone who came to a party as a Klansman. Same theory — Klansmen are scary; Halloween is about scary costumes; Halloween is not about endorsing the characters you're dressing as. (I'm not keen on the blackface taboo, at least when used to forbid all attempts by whites to try to play black characters at parties; but for this post I'd like to focus on costumes that fit with the Halloween theme precisely because they represent scary evil characters.)
Second, I don't know the details of the pose with the university president, but let's not assume that she deliberated much about the matter. A Halloween party at the university president's house to which students are invited is likely to be a huge affair. I suspect that Saadi wasn't the first person who posed with her.
The president's main job at the party is not to police costume choices but to be nice to the attendees. If she's asked to pose with someone, the default reaction is "OK, let me get this over with quickly, and move on to mingle," not "Let me think about the person's costume to see whether it's suitable for a Picture With Moi." Even if you think that on careful reflection she should have said "No, I won't pose with you because I find your costume in bad taste," I doubt that careful reflection should be expected here.
And, no, I don't think that now that she has had time for careful reflection she should put out a formal apology / clarification / statement praising peace and distancing herself from terrorists or those who would wear inappropriate terrorist costumes. It's a student dressing up for a Halloween party, for heaven's sake.
FURTHER UPDATE: In the paragraph marked "First," I meant to include one more item, but with the lateness of the hour forgot. It may well be that dressing as a Klansman to a Halloween party would have caused a fuss, from a refusal to pose to protest marches to disciplinary measures. But because people have lost a sense of perspective as to some set of costumes doesn't mean that we should encourage them to do the same as to others. One can certainly condemn those who use a double standard (though it's a little harder if you're just conjecturing that they'd have a double standard, since you have only a hypothetical case to compare against). For the reasons I gave above, however, we shouldn't avoid double standards by having a single standard of outraged condemnation.
from a Daily Bruin article:
An isolated incident like this one of course doesn't tell us much about the incidence of such attitudes. But it's still good for those of us who -- like me -- have almost never encountered anti-Semitism in their Los Angeles lives to remember that this stuff is out there.
Thanks to Omri Ceren for the pointer, and for the pointer to a story about a seemingly similar incident at UC Irvine.
The Stern Review is not getting favorable reviews from environmental economists. A sample:
The Brennan Center has released an Investigator's Guide to "Voter Fraud". It details a series of questions that should be answered when assessing claims of voter fraud, and notes that many claims of "voter fraud" are overstated. (I suspect much the same can be said of many claims of "disenfranchisement.")
This is a new essay of mine, which should be coming out in April 2007 in the Harvard Law Review. The article, lean and trim (by my standards) at 30 pages, is available from this page. In the meantime, here's the Abstract:
Three women lie in adjoining hospital rooms. A fourth lives a block away. All are in deadly peril.
Alice is seven months pregnant, and the pregnancy threatens her life. Her fetus has long been viable, so she no longer has the Roe/Casey right to abortion on demand. But because her life is in danger, she has a constitutional right to save her life by hiring a doctor to abort the viable fetus. She would even have such a right if the pregnancy were only posing a serious threat to her health, rather than threatening her life.
Katherine lives nearby. A person breaks into her home and seems about to try to kill her (or perhaps seriously injure, rape, or kidnap her). Just as Alice may protect her life by killing the fetus, Katherine may protect hers by killing the attacker, even if the attacker isn’t morally culpable, for instance if he is insane. And Katherine has a right to self-defense even though recognizing the right may let some people use false claims of self-defense to get away with killing the innocent.
Ellen, back in the hospital, is terminally ill. No proven therapies offer help. An experimental therapy seems safe, because it has passed Phase I FDA testing, yet federal law bars its use outside clinical trials because it hasn’t been demonstrated to be effective (and further checked for safety) through Phase II testing. Nonetheless, under Abigail Alliance for Better Access to Developmental Drugs v. Eschenbach, decided in 2006 by the D.C. Circuit, Ellen has a constitutional right to try to save her life by hiring a doctor to administer the therapy.
Olivia is dying of kidney failure in the room next to Alice’s and Ellen’s. A kidney transplant would likely save her life, just as an abortion would save Alice’s, lethal self-defense may save Katherine’s, and an experimental treatment may save Ellen’s.
But the federal ban on payment for organs sharply limits the availability of kidneys, so Olivia will likely die if she must wait for a donated kidney. Barring compensation for goods or services makes them scarce. Alice and Ellen would be in jeopardy if doctors were only allowed to perform abortions or experimental treatments for free. Katherine likely wouldn’t be able to defend herself with a gun or knife if weapons could only be donated. If organ providers or their heirs could be compensated, many more organs would be available, and Olivia would be much likelier to get the life-saving kidney. But federal law bans organ sales, and thus frustrates Olivia’s ability to protect her life.
My claim is that all four cases involve the exercise of a person’s presumptive right to self-defense — lethal self-defense in Katherine’s case, and what I call medical self-defense in the others.
This is a constitutional right: I will argue in Part II that Roe and Casey secure not just a pre-viability right to abortion as reproductive choice, but also a separate post-viability right to abortion as medical self-defense when pregnancy threatens a woman’s life. And given that Alice has such a right to defend herself by getting an abortion, Ellen and Olivia should have the same right to defend themselves through other medical procedures. Alice is free to have surgery in which a doctor inserts devices into her body to excise a fetus that, tragically, threatens her life. Ellen should likewise be free to have a procedure in which a doctor inserts chemicals into her body to destroy a tumor that threatens her life. And the government should not place substantial obstacles in the way of Olivia’s having a procedure in which a doctor inserts an organ into her body to replace a failing organ that threatens her life. It can’t be that a woman has a constitutional right to protect her life using medical procedures, but only when doing so kills a viable fetus.
I will also argue, in Part III, that the right to medical self-defense is supported by the long-recognized right to lethal self-defense: the right to protect your life against attack even if it means killing the attacker. The right has constitutional foundations, in substantive due process, state constitutional rights to defend life and to bear arms, and maybe the Second Amendment. But even if it’s treated as just a common-law and statutory right, our accepting it should lead us to accept a similar common-law or statutory right to defend one’s life against medical threats as well as against human or animal threats. Even if the Court stops recognizing unenumerated constitutional rights, legislatures should presumptively protect people’s medical self-defense rights just as they protect people’s lethal self-defense rights, and as the public overwhelmingly supports women’s abortion-as-self-defense rights. While a legislature need not fund people’s self-defense, it generally ought not substantially burden people’s right to defend themselves.
In Parts IV and V, I’ll apply the abortion-as-self-defense and lethal self-defense analogies in more detail to experimental drugs and to compensation for organs. I’ll argue that the right of medical self-defense offers an extra foundation for the Abigail Alliance holding that there is a constitutional right to use experimental therapies to protect one’s life. And I’ll argue that the right makes the organ sales ban presumptively improper and unconstitutional when the organs are needed to protect people’s lives; some concerns about organ markets may justify regulations of such markets, but not prohibition.
I will also argue that, while this presumption is potentially rebuttable, it should take much to rebut it. Recognizing the right to medical self-defense as a constitutional right or a moral right means that the government should have a very good reason to substantially burden the right, and that the restriction should be as narrow as possible.
In particular, while the right may be regulated in some ways — for instance, to prevent the killing of people by organ robbers — such regulations can and should be far less burdensome than a total ban on organ sales would be. We respect and value self-defense rights enough that we allow lethal self-defense, even given the risk that false claims of self-defense can be used as a cloak for murder: Rather than prophylactically banning all use of lethal force, we make certain uses illegal and rely on case-by-case decisionmaking to discover these improper uses and to deter them. The same should apply to payments for organ transplants.
Finally, in Part VI, I’ll argue that a right to medical self-defense is not only logically supportable, but also potentially successful both in political debate and in the judicial process. Both liberal and conservative judges and voters should be potentially open to it; and I hope that the analogies I offer in this Essay can be used to help persuade them.
All Related Posts (on one page) | Some Related Posts:
- "Singapore to Compensate Kidney Donors":
- Professor Robert Nagel Criticizes My Medical Self-Defense Article,
- Be Careful Believing Your Own Metaphors:...
- Lethal Self-Defense and What It Tells Us About Medical Self-Defense:
- The Two Abortion Rights, and Therapeutic Abortions as Medical Self-Defense:
- Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs:
The New Jersey Lawyers Chapter and Seton Hall Law School Chapter of the Federalist Society are hosting a panel discussion on the recent New Jersey marriage decision. It will take place this coming Monday, Nov. 6, 5:30-7:00 p.m. at Seton Hall Law School, Rm. 373, One Newark Center, Newark, NJ.
The panelists will be the Hon. Richard A. Merkt, assemblyman and parliamentarian of the NJ state assembly; Lawrence Lustberg, counsel for the gay couples in the case; and me. The moderator will be Professor John Wefing of Seton Hall law school. Food and refreshments will be available. If you're a reader of the VC come up and say hello.
RSVP no later than Nov. 3 to Tom Weisert at firstname.lastname@example.org or by phone at 973-656-1600.
Using the results from formal economic models, the Review estimates that if we don't act, the overall costs and risks of climate change will be equivalent to losing at least 5% of global GDP each year, now and forever. If a wider range of risks and impacts is taken into account, the estimates of damage could rise to 20% of GDP or more.
In contrast, the costs of action — reducing greenhouse gas emissions to avoid the worst impacts of climate change — can be limited to around 1% of global GDP each year."
You should read both the executive summary of the Stern Report and Lomborg's review.
The report on climate change by Nicholas Stern and the U.K. government has sparked publicity and scary headlines around the world. Much attention has been devoted to Mr. Stern's core argument that the price of inaction would be extraordinary and the cost of action modest.
Unfortunately, this claim falls apart when one actually reads the 700-page tome. Despite using many good references, the Stern Review on the Economics of Climate Change is selective and its conclusion flawed. Its fear-mongering arguments have been sensationalized, which is ultimately only likely to make the world worse off. . . .
Mr. Stern sees increasing hurricane damage in the U.S. as a powerful argument for carbon controls. However, hurricane damage is increasing predominantly because there are more people with more goods to be damaged, settling in ever more risky habitats. Even if global warming does significantly increase the power of hurricanes, it is estimated that 95% to 98% of the increased damage will be due to demographics. The review acknowledges that simple initiatives like bracing and securing roof trusses and walls can cheaply reduce damage by more than 80%; yet its policy recommendations on expensive carbon reductions promise to cut the damages by 1% to 2% at best. That is a bad deal. . . .
The most well-recognized climate economist in the world is probably Yale University's William Nordhaus, whose "approach is perhaps closest in spirit to ours," according to the Stern review. Mr. Nordhaus finds that the social cost of CO2 is $2.50 per ton. Mr. Stern, however, uses a figure of $85 per ton. Picking a rate even higher than the official U.K. estimates--that have themselves been criticized for being over the top--speaks volumes. . . .
But nowhere is the imbalance clearer than in Mr. Stern's central argument about the costs and benefits of action on climate change. The review tells us that we should make significant cuts in carbon emissions to stabilize the concentration of atmospheric carbon dioxide at 550 ppm (parts per million). Yet such a stark recommendation is not matched by an explicit explanation of what this would mean in terms of temperature.
The U.N. Climate Panel estimates that stabilizing at 550 ppm would mean an increase in temperature of about 2.3 degrees Celsius in the year 2100. This might be several degrees below what would otherwise happen, but it might also be higher. Mr. Nordhaus estimates that the stabilization policy would reduce the rise in temperature from 2.53 degrees Celsius to just 2.42 degrees Celsius. One can understand the reluctance of the Stern review to advertise such a puny effect.
Most economists were surprised by Mr. Stern's large economic estimates of damage from global warming. Mr. Nordhaus's model, for example, anticipates 3% will be wiped off global GDP if nothing is done over the coming century, taking into account the risk for catastrophes. The Stern review purports to show that the cost is "larger than many earlier studies suggested." . . .
Faced with such alarmist suggestions, spending just 1% of GDP or $450 billion each year to cut carbon emissions seems on the surface like a sound investment. In fact, it is one of the least attractive options. Spending just a fraction of this figure--$75 billion--the U.N. estimates that we could solve all the world's major basic problems. We could give everyone clean drinking water, sanitation, basic health care and education right now. Is that not better?
We know from economic models that dealing just with malaria could provide economic boosts to the order of 1% extra GDP growth per capita per year. Even making a very conservative estimate that solving all the major basic issues would induce just 2% extra growth, 100 years from now each individual in the developing world would be more than 700% richer. That truly trivializes Mr. Stern's 10% to 13% estimates for South Asia and Sub-Saharan Africa.
I did find one part of Lomborg's critique unrealistically sanguine. Lomborg accepts the UN's estimated cost of providing even the most "basic" health care to the world, $75 billion, which strikes me as awfully low: How could $12 a year per person per year pay for basic health care, education, and clean drinking water where it is not now provided?
Overall, I will never understand why the very real problem of global warming turns otherwise sensible people into fear-mongers.
Federal indictments have issued against four individuals who had been working on ACORN voter registration drives in Missouri. These indictments are supposedly part of a national investigation into fraudulent voter applications. Unlike prior reports of dead-people voting, here there are allegations of actual fraud. Gateway Pundit has more.
Perhaps because I grew up in Philadelphia at a time when vote fraud was all too common, I see potential vote fraud as a serious concern (and one that supporters of either party may commit). This does not mean that I dismiss concerns about disenfranchisement, quite to the contrary. Those who are eligible to vote should be able to do so without interference, but I have seen elections stolen through fraud, and believe it can still happen today.
Ohio papers, including the Cleveland Plain Dealer and Cincinnati Enquirer are reporting that the lawsuit over Ohio's new Voter ID rules has been settled, at least in regard to next Tuesday's election. According to these reports, it seems the rules will be somewhat loosened so as to allow voters without photo ID's to provide other means of identification (such as the last four digits of their social security number). Here is the consent order, and here is some initial commentary from Ohio State's Dan Tokaji.
The Associated Press is reporting:
Conservative columnist Ann Coulter has refused to cooperate in an investigation into whether she voted in the wrong precinct, so the case will probably be turned over to prosecutors, Palm Beach County's elections chief said Wednesday.
The Associated Press is reporting:
A federal appeals court has blocked a landmark judgment against the tobacco industry, allowing the companies to continue selling "light" and "low tar" cigarettes until their appeals can be reviewed.The story reports that the panel was split 2-1. Judges Sentelle and Randolph were in the majority. Judge Tatel dissented. Written and oral arguments in the appeal have yet to be scheduled.
The decision by the U.S. Court of Appeals for the D.C. Circuit also allows the companies to continue for now the advertising campaigns that a federal judge in August ruled were misleading.
Without comment, the appeals court granted the tobacco companies' request to put Judge Gladys Kessler's order on hold.
This development should not be particularly surprising. Judge Kessler's rulings on claims against tobacco companies have repeatedly met with resistance from the D.C. Circuit, in this and other cases. This is just the latest example.
Part 4 of excerpts from War Made New: Technology, Warfare, and the Course of History, 1500 to Today, by Max Boot:
The major theme that runs throughout War Made New is the importance of not missing out on the next big change in warfare. History is driven by many factors, but in academia’s rush to focus on economics, race, class, sexuality, geography, germs, culture, or other influences, it would be foolish and short-sighted to overlook the impact of military prowess and especially aptitude in taking advantage of major shifts in war-fighting. Of course a country’s success, or lack thereof, in harnessing change cannot be divorced from such underlying factors as its economic health, scientific sophistication, educational system, political stability, and so forth. But, contrary to Napoleon, God is not necessarily “on the side of the big battalions.” Even big and wealthy countries often lose wars and head into longterm decline through a lack of military skill.
The considerable gains of the Axis during the early years of World War II came, after all, against a coalition of Allied states that in aggregate had 40% greater GNP and 170% larger population. That the Axis ultimately lost goes to show that military skill can sometimes be trumped by greater resources if a war drags on long enough and if the side with greater resources shows sufficient wisdom in their employment. But even in a long coalition war the side with the greater resources does not always prevail. The alliance of Britain, Hanover, and Prussia was dwarfed in economic and demographic resources by its adversaries in the Seven Years' War (1756-1763)--France, Austria, Russia, Sweden, Saxony, and (near the end) Spain—but still managed to win largely because of the superlative skill of the Prussian army and the British navy. War Made New chronicles many other examples of the poorer side emerging victorious—Britain beat the Spanish Armada (1588), Sweden beat the Holy Roman Empire at Breitenfeld and Lutzen (1631-32), Prussia beat the Habsburg Empire at Königgrätz (1866), and Japan beat the Russian Empire in 1904-1905. More recent instances might be cited of the poorer power winning, such as North Vietnam’s defeat of the United States or the Afghans’ defeat of the Soviet Union.
These were not anomalies. In a statistical analysis of 20th century wars, the side with the larger GNP, population, armed forces, and defense expenditures won only a little more than half the time, making these factors about as useful in predicting military outcomes as flipping a coin. Political scientist Stephen Biddle, who analyzed these statistics, writes that “Superior numbers can be decisive or almost irrelevant depending on the two sides’ force employment. This in turn means that states’ relative economic, demographic, or industrial strength are poor indicators of real military power: gross resource advantages matter only if they can be exploited via modern-system force employment, and many states cannot do so…. How forces are used is critical.”
The ongoing proliferation of destructive technology means that the link between economic and military power is more tenuous than ever. Al Qaeda, whose entire budget would be insufficient to buy a single F-22, can inflict devastating damage on the world’s richest country. Advances in biological and cyberwar promise to put even more destructive potential into the hands of ever smaller groups—as does the continued proliferation of nuclear weapons.
Imagine the devastating consequences of a mega-terrorist attack. Not only could millions die but international travel and commerce—the lifeblood of the global economy--could be severely disrupted. Such a scenario reveals the falsity of economic determinist arguments which counsel that military strength is unimportant and that it is feasible to stint on military preparedness in order to strengthen the economy. On the contrary, there can be no long-term prosperity without security. The entire world today depends, no matter how begrudgingly or unwittingly, on the protection provided by the United States, whose armed forces keep open air and sea lanes, safeguard energy supplies, and deter most cross-border aggression.
Dreamers can convince themselves that military power no longer matters, that economic interdependence has consigned war to the dustbin of history, and that a country need only wield “soft power,” but history is likely to deliver a stark rebuke to such wishful thinking. As a matter of fact, it already has. The attacks of September 11, 2001 put an end to a decade of talk about the “end of history,” a “strategic pause,” the inexorable flow of “globalization,” and the “peace dividend.” The incidence of war may have declined for the moment, but great dangers still loom ahead. Santayana had it right: “Only the dead have seen the end of war.”
Next (and final) installment: Fighting Wildcats and Rodents
Wednesday, November 1, 2006
The big story on some of the local TV news shows tonight is about Barack Obama's ties to Rita Rezko, the wife of Tony Rezko, Illinois Governor Rod Blagojevich's former chief fundraiser. Tony Rezko has been indicted in a massive scandal involving giving government jobs and contracts to Blagojevich's contributors. Apparently, the Rezkos live in a mansion in the suburbs north of Chicago, but on the same day that Obama bought a $1.6 million house on the south side of Chicago, Rezko's wife bought the vacant lot next door. Then Obama bought 10 feet of the Rezko lot, and Obama has now been paying for the mowing of all of the Rezko lot, though he says that he has been meaning to divide the costs.
Here is part of the Chicago Tribune article (registration required) that launched the story:
The same day last year that Obama and his wife, Michelle, closed on a $1.65 million home, Antoin "Tony" Rezko's wife, Rita, closed on a $625,000 vacant lot next door, the Chicago Tribune reported in Wednesday's editions. Both lots had once been part of the same estate, but were listed for sale separately by the owner. . . .
Obama said he had discussed the home with Rezko, but didn't know when Rezko became interested in the vacant lot.
In January, Obama paid Rezko $104,500 for part of the lot to balance the space between his house and the fence.
"I told them if you can spare another 5 or 10 feet, I'd be happy to purchase it from you," Obama said. "They came back and said they could sell us up to 10 feet."
A city ordinance required Rezko to fence the line between the properties, but the Obamas paid for an attorney and architects to inquire about the fence with the Commission on Chicago Landmarks, partly because Obama's wife once worked there and because they wanted to ensure it was done properly, Obama said. Rezko was to pay $14,000 for the fence, although that bill has not been paid, the fence company told the Tribune.
Obama said he took special care to ensure any financial arrangements with Rezko were ethical, because Rezko was widely reported to be under investigation by a federal grand jury. . . .
Rezko and his companies donated at least $19,500 to Obama's state Senate campaigns and federal fund; Obama has said he would divest the federal donation.
Obama said he didn't know how much he spent on the work that led to the fence permit for Rezko.
"My suspicion is that it would probably be a couple of thousand dollars. On the architectural side it might be more," Obama said.
Obama has the landscaper who mows his lawn also mows Rezko's 7,500-square-foot yard, Obama said.
"My intention was to have the landscaper figure out some pro-rata cost for that mowing and send that bill to Rezko. I just haven't had time to do it," Obama said.
To say that this is small potatoes by the standards of Illinois political scandals is an understatement. It is not clear to me that Obama has done anything that is clearly improper, though I confess that I have been voting for Obama since he was representing my district in the state legislature.
over publisher's decision to raise the institutional subscription price to $1,665 for one year (six issues). The New York Sun reports on this.
Thanks to Paul Caron (TaxProf) for the pointer.
The New York Times reports:
Researchers at the Harvard Medical School and the National Institute on Aging report that a natural substance found in red wine, known as resveratrol, offsets the bad effects of a high-calorie diet in mice and significantly extends their lifespan. . . .
Resveratrol is found in the skin of grapes and in red wine and is conjectured to be a partial explanation for the French paradox, the puzzling fact that people in France tend to enjoy a high-fat diet yet suffer less heart disease than Americans.
A reader passed along to me this item from a USA Today article last week:
Witold Walczak, legal director for the American Civil Liberties Union of Pennsylvania, defended Flaherty and other students who were expelled and punished by schools for statements they made online from their home computers.
He agrees that districts should punish students who post admissions of illegal activity — such as high-schoolers who post pictures of themselves drinking, doing drugs or committing other criminal acts. He also agrees that racist remarks or postings that promote or predict violence should be punished.
The reader, Brian Teague, wrote: "I would be very interested to read your comments in the VC regarding this article from today's USA Today, especially the excerpt below detailing the ACLU's distorted (in my mind) view of the apparent limits of the first amendment [referring to the 'racist remarks ... should be punished' item]."
I too was puzzled by Mr. Walczak's paraphrased position, but thought I'd e-mail Mr. Walczak first to clarify his views. Mr. Walczak was kind enough to promptly get back to me, and reported that the paraphrase actually misdescribed his position, which is this:
Schools might be able to punish students who post admissions of illegal activity, not for the speech but for admitting the illegal activity [I take it referring to the use of speech as evidence of the activity -EV]. The law is unsettled in this area which is why I say might.
If a student threatens violence or uses racial epithets against another student or teacher while in school, he might be punished under the Bethel v. Fraser standard. Again, the line between harassing and protected speech is unclear.
In any case, since the issue came up, I thought I'd pass along Mr. Walczak's correction. It's hard to tell for sure whether the reporter misheard, misunderstood, or mistranscribed what was said (something that reporters, like others, sometimes do), or whether Mr. Walczak misspoke. But I thought it might be helpful to know that, one way or the other, the legal director of the ACLU of Pennsylvania doesn't endorse the view that was ascribed to him in the article.
Check out claim 9 of this patent application:
9. The method of providing user interface displays in an image forming apparatus which is really a bogus claim included amongst real claims, and which should be removed before filing; wherein the claim is included to determine if the inventor actually read the claims and the inventor should instruct the attorneys to remove the claim.
Thanks to Michael Barclay for the pointer.
[T]here is one TV ad benefiting Democratic congressional candidate Darcy Burner that is beyond the pale, not because of what it says but because it violates a copyright of TVW, Washington's public-affairs network.
Burner, who is challenging incumbent GOP Rep. Dave Reichert in the 8th District, is not responsible for the ad. The Democratic Congressional Campaign Committee (DCCC) is running the ad attacking her opponent. The TV ad depicts Reichert at a meeting saying GOP leadership comes to him and tells him how to vote, and he'll take the vote.
It omits his next line: "There are some times when I say, 'No, I won't.'"
Sounds pretty bad — classic and improper quoting out of context. But that's not why the ad is "beyond the pale," according to the Times:
Our criticism goes beyond the ad's inaccuracy, however. Rather, it is about the use of copyrighted TVW footage without permission, which would never have been granted in this case.... [Burner] might not be responsible directly for the ad, but she benefits. Burner should denounce the ad and call for its removal.
1. It's far from clear to me that using the footage is indeed copyright infringement. It is certainly copying, and even heavily state-funded nonprofits (or for that matter even state-run groups, which TVW isn't) may own copyrights. But this might well be a classic in which the copier has a valid fair use defense ("fair" here is a copyright term of art, which has little to do with the fairness of the ad). The use is noncommercial, it's for purposes of political commentary, it's copying material that's predominantly factual, it's copying only a part of the material (that may well be the problem), and it doesn't seem to be in any meaningful sense affecting the commercial value of the copyright owner's work or denying the copyright owner licensing revenues. It's hard to tell for sure without seeing just how much of TVW's broadcast was taken, but from what I've heard about the controversy the fair use defense is quite strong.
Notably, the Times editorial doesn't even hint at the existence of the fair use defense, and makes it sound like any copying for rebroadcast of TVW's work is categorically copyright infringement. That itself seems a little misleading, in my view, unless there are some factual details I'm missing.
2. The Times says the ad is indeed "inaccura[te]," and from the Times's description, it certainly seems to be so out-of-context as to be inaccurate. If that's so, the Democratic Congressional Campaign Committee is deliberately distorting a candidate's position in the days before an election in order to sway voters. Can it really be that this is within the pale, but copyright infringement — even if it were indeed copyright infringement — is what places the ad beyond the pale? (Note that even if this were infringement, it wouldn't even be technically criminal copyright infringement.)
I surely agree that the parties ought to follow the law, and ought not commit torts. But aren't we losing perspective a bit when we see them as having a greater civic duty (or even an identical civic duty) to respect copyrights than to be accurate when attacking a rival candidate? And shouldn't newspapers focus more on policing the accuracy of political debate — something on which media reaction is often the only effective remedy — than on calling foul on alleged copyright infringers, which the courts can handle just fine by themselves?
I should note that item 1 strikes me as probably more important here than item 2, since if I'm right in my analysis the Democratic Congressional Campaign Committee is not at all guilty of copyright infringement but indeed guilty of inaccuracy. Moreover, on item 1, the analysis is likely clearer and more objective than on item 2. Still, I wanted to bring up both points.
Thanks to Venkat Balasubramani for the pointer.
Michele Bachmann, a Minnesota Congressional candidate, belongs to the Wisconsin Evangelical Lutheran Synod, which is apparently the third-largest Lutheran group in the U.S., with over 300,000 communicants. My sense is that American Lutheranism is a relatively calm, polite religion, though perhaps that comes from hearing too much Garrison Keillor. Maybe the Wisconsin Evangelican Lutheran Synod is a departure from that -- please let me know if that's so -- but I haven't seen much evidence on that score.
Yet Luther, of course, was not calm or polite about religion, nor were the early Lutherans. And the Synod's Statement on the Antichrist reflects this, reaffirming that "the Pope is the very Antichrist." Not just bad or theologically wrong, mind you, but the very Antichrist.
Now on to modern political debates: FaithfulDemocrats.com has pointed out that Michele Bachmann, a Republican candidate for Congress in Minnesota, belongs to the Synod. Bachmann was asked in a televised debate whether the Synod regards the Pope as the Antichrist, and whether she agrees. Bachmann said the allegation about the Synod was "a false statement," that her pastor agrees and "was absolutely appalled that someone would put that out," that she loves Catholics, and that her "church does not believe that the Pope is the Antichrist."
So what is a sensible voter, and especially a sensible Catholic voter to do? Here's my guess, subject of course to revision if I hear more about Bachmann or about the Synod (and if I were living in her district, I'd probably have heard at least somewhat more about both). Bachmann probably does love Catholics no less than she loves fellow Lutherans. Her church probably does not believe that the Pope is the Antichrist in the sense that the majority of church members, and of church leaders, don't really think much in Antichrist terms, especially about particular people who haven't done anything tangibly bad (whether Popes, rabbis, or atheists).
Many church members probably aren't even aware of the Pope-is-Antichrist teachings; perhaps they've heard of them at one point, but they likely haven't thought about them in decades, and certainly haven't really absorbed them as part of their lived sense of what the Church is about. They might well be shocked to hear that their church takes this view, though this shock might be less if they spent a little more thinking about the Lutheran-Luther connection. Lots of religions have musty articles of faith that are not actual present-days article of genuine, emotionally felt or even intellectually considered faith on the part of most of their members.
Yet Bachmann's reaction to the question doesn't speak that well of her -- either she isn't being candid, or her research has been quite weak. And it's hardly irrational for Catholic voters to consider the possibility that hostility to Catholicism is indeed a live article of faith for Synod members rather than just a dead one.
My sense -- again, tentative, and subject to change if one learns more about the actual current practices and attitudes of Bachmann or of the Synod -- is that 500-year-old theological disagreements, even ones that a church feels obligated to stick with, shouldn't be an important factor. Rightly or wrongly, people are pretty good at compartmentalizing their religion's theological assertions from their day-to-day actions. Belief in the Virgin Birth doesn't actually impair even most true believers' abilities to be sensible, practical-minded obstetricians. Views about the Papacy and the anti-Christ, or for that matter about damnation of those who don't believe as you do, in practice (at least among most Americans today) don't much affect one's behavior with regard to Catholics or non-believers.
A candidate's lack of candor about such disagreements, even if there is lack of candor here, is a more serious matter, but probably not that serious by the standards of American political life. You'd probably be better off looking at how candid and how tolerant the candidate has actually been in the past, and how much you agree with them on substantive political issues, and ignoring theological disagreements.
Still, if I'm right about this, this is because people do separate theology from daily actions -- and because modern Lutherans are indeed very far from Martin Luther in actual beliefs. I'm rather pleased by that, but I suspect Martin Luther wouldn't be.
Alberto Gonzales dropped by GWU Law School yesterday, surprising 40 students in the criminal procedure class. The attorney general talked about military commissions, terrorist surveillance and the Patriot Act and took questions for 40 minutes — before vanishing as mysteriously as he arrived. Turns out this was all his idea: Gonzales just got a hankering for legal chat with some students, and his staff tracked down a willing prof, former DOJ lawyer Renee Lerner. "I guess he really likes teaching," she said. "The students, of course, were delighted to have him." Is the AG mulling a move to academia? "He is not ruling any options out in terms of future careers," said Justice spokeswoman Tasia Scolinos . Any more stealth visits to law schools planned? "I wouldn't rule it out."Pretty cool, I think. A photo of the visit is here. My colleague Renee is a former Deputy Assistant Attorney General at the Office of Legal Counsel in the Bush Administration, where she served from 2003 to 2005.
William Eskridge and Darren Spedale, coauthors of the book "Gay Marriage: For Better or For Worse? What We've Learned From the Evidence" (Oxford University Press, 2006), have looked at marriage rates and other evidence of the social effects of recognizing same-sex relationships in the 17 years since Scandinavian countries began doing so.
In an op-ed in the Wall Street Journal, (subscriber only) they summarize their findings as follows: Seventeen years after recognizing same-sex relationships in Scandinavia there are higher marriage rates for heterosexuals, lower divorce rates, lower rates for out-of-wedlock births, lower STD rates, more stable and durable gay relationships, more monogamy among gay couples, and so far no slippery slope to polygamy, incestuous marriages, or "man-on-dog" unions. From the op-ed:
[T]here is no evidence that allowing same-sex couples to marry weakens the institution. If anything, the numbers indicate the opposite. A decade after Denmark, Norway and Sweden passed their respective partnership laws, heterosexual marriage rates had risen 10.7% in Denmark; 12.7% in Norway; and a whopping 28.8% in Sweden. In Denmark over the last few years, marriage rates are the highest they've been since the early 1970s. Divorce rates among heterosexual couples, on the other hand, have fallen. A decade after each country passed its partnership law, divorce rates had dropped 13.9% in Denmark; 6% in Norway; and 13.7% in Sweden. On average, divorce rates among heterosexuals remain lower now than in the years before same-sex partnerships were legalized.
In addition, out-of-wedlock birthrates in each of these countries contradict the suggestion by social conservatives that gay marriage will lead to great increases in out-of-wedlock births and therefore less family stability for children. In Denmark, the percentage of out-of-wedlock births was 46% in 1989; now it is 45%. In Norway, out-of-wedlock births jumped from 14% in 1980 to 45% right before partnerships were adopted in 1993; now they stand at 51%, a much lower rate of increase than in the decade before same-sex unions. The Swedish trend mirrors that of Norway, with much lower rates of increase post-partnership than pre-partnership.
Is there a correlation, then, between same-sex marriage and a strengthening of the institution of marriage? It would be difficult, and suspect, to establish a cause-and-effect relationship between these trends in heterosexual marriage and marriage rights for gays and lesbians. But the facts demonstrate that there is no proof that same-sex marriage will harm the institution of marriage, or children. An optimistic reading of the facts might even suggest that the energy and enthusiasm that same-sex couples bring to the institution of marriage may cause unmarried heterosexual couples to take a fresh look at marriage as an option.
The authors' caution here about gay marriage as a boon to heterosexual marriage is warranted. Correlation is not causation, and it would presume too much from a mere correlation to conclude that a small number of gay marriages in these societies had a significant positive impact on marriage itself, just as it would presume too much from the opposite correlation (if one existed) that they had a significant negative effect on marriage. But it is at least possible from these numbers to say that gay marriage has not led to any significant harm to marriage as an institution (pace Stanley Kurtz). Every year that goes by adds to the strength of this conclusion.
Eskridge and Spedale also find benefits to gay relationships:
Our research has also uncovered additional social benefits. In dozens of interviews with partnered couples and through other sources, we found that marriage rights had an important beneficial effect not only on the couples themselves, but on their local and national communities as well. Couples reported that their relationships were stronger and more durable, that relationships with family members had deepened, that co-workers had become more tolerant and supportive, and their children felt greater validation by having married parents. Many couples reported a greater emphasis on monogamy, which may be reflected by the fact that national rates of HIV and STD infections declined in each of the Scandinavian countries in the years after they passed their partnership laws.
These are exactly the sorts of effects I'd predict from legal and social recognition of gay families. But I'd be cautious about concluding very much from a series of interviews. There are possible methodological weaknesses in this technique, including small sample size, selection and representativeness of the interviewees, problems in questions and interpretation of answers, dishonesty from interviewees who may tell an interviewer what they think the interviewer wants to hear, etc. An opponent of gay marriage could probably rather easily find same-sex couples who got married and were not monogamous, who divorced quickly, etc., and then write a book based on such interviews. A more systematic and long-term study of gay married couples is needed, but findings like these from Eskridge and Spedale are promising. They are at least developments we should all hope for.
Fears about slippery slopes, commonly expressed whenever there has been a change in marriage policy, have also proven unfounded so far:
Finally, what about the "slippery slope" argument — that same-sex marriage would start a dangerous movement toward legal recognition of socially unacceptable relationships? This hasn't happened in Scandinavia; 17 years later, there are still no calls for recognizing polygamy, incestual marriage or marriage to animals. Danes you ask about the slippery slope think you are joking. They realize that same-sex marriages serve essentially the same goal as opposite-sex marriages: lifetime commitment to your better half, the person who completes you.
Yes, you can find advocates for polygamy and other changes in marriage in Scandinavia and among queer theorists and academics in the United States. But there have always been such advocates, going back to the days of the "free love" movement among radicals in the U.S. in the early 20th century. You can find advocates for anything, complete with a Yahoo group and an organization of the like-minded. Google has been a great resource for slippery-slope fearmongering. But the fact is, neither polygamy nor these other destinations down the slope have caught on as serious legal reform as a result of protecting gay families anywhere in the world.
Eskridge and Spedale conclude:
Rather than scapegoating gay couples as the attackers from which marriage needs "defending," pundits and politicians alike should look to no-fault divorce, prenuptial agreements and legal recognition of heterosexual cohabitation as the real culprits of weakened marriage. As the evidence indicates, societies where gay couples have the rights of marriage seem to be doing just fine.
The debate over gay marriage for the past two decades has largely been a duel of abstractions, hopes and fears, unsupported claims, and hypotheticals. That's been true on both sides of the debate, though for gay families the stakes are far from theoretical. With several countries now recognizing gay marriages, and with almost 1/5 of the U.S. population living in states with gay marriages or civil unions, this period of abstract debate is coming to an end. The debate will start to become an empirical one.
What we can say with confidence so far, based on the evidence, is that the sky doesn't immediately fall when a society recognizes gay relationships. As time passes without the sort of cataclysmic consequences predicted by opponents of gay marriage, we will be able to say more. We may soon be able to say, with good evidence to back it up, that recognzing gay marriage leads to greater stability in gay families, with benefits to gay couples, children raised in gay families, and communities. The signs so far are pointing in the right direction.
Today the Supreme Court hears oral arguments in the first of the term's big Clean Air Act (CAA) cases, Environmental Defense v. Duke Energy Corp.:. The case arises out of claims by the U.S. Environmental Protection Agency that Duke Energy Corporation violated the CAA when made modifications to a number of its power plants without first obtaining New Source Review permits. Duke claims that the modifications were exempt from such requirements under the CAA as it had been historically applied. The EPA argued that the modifications required permits because they extended the hours of the plants could operate, resulting in greater emissions.
Duke Energy won below in the U.S. Court of Appeals for the Fourth Circuit, and the Justice Department declined to file for certiorari. Indeed, the Solicitor General's office opposed certiorari when the intervenors, Environmental Defense, filed a petition arguing both that the Fourth Circuit was wrong on the substance and the the Fourth Circuit's opinion violated jurisdictional provisions of the Clean Air Act that grant the U.S. Court of Appeals for the D.C. Circuit exclusive jurisdiction over challenges to most nationally applicable CAA rules. (This latter argument is likely what led the Supreme Court to grant cert.)
The Supreme Court accepted cert on both the substantive question of when plant modifications trigger CAA permitting requirements and the jurisdictional question. In the latter case, Duke Energy and its amici (of which I am one) will argue that regulated entities must be able to challenge the EPA's regulatory interpretations inthe context of enforcement actions such as this, otherwise they could be denied any meaningful opportunity to challenge an agency's interpretation of a given regulation. Environmental Defense, the Justice Department (now back on the other side as a respondent supporting the petitioner), and their supporting amici counter that Duke is really challenging the EPA's regulations (or, at least, that the Fourth Circuit's opinion favoring Duke effectively invalidated the regulations), and that such challenges must be brought in the D.C. Circuit when the rules were issued.
Sound complicated? It is. I've oversimplified things quite a bit (though I hope not at the expense of accuracy). While the result will turn on questions of statutory interpretation and administrative law, it is an important case. Environmental Defense argues the outcome will determine whether thousands of facilities may continue polluting without effective controls. The electric power industry, on the other hand, points to this study indicating that a loss for Duke will result in dramatically higher electricity prices and reduced reliability for many communities around the nation
UPDATE: This WP report suggests things went well for Duke Power at the oral argument (as one commenter below suggests as well). The transcript is here. I hope to comment on it and the jurisdictional question later tonight or tomorrow.
Part 3 of excerpts from War Made New: Technology, Warfare, and the Course of History, 1500 to Today, by Max Boot.
A British army colonel noted in 1839: “In no profession is the dread of innovation so great as in the army.” Successful adaptation to major technological shifts requires overcoming that dread and changing the kinds of people who are rewarded within a military structure. The rise of railroads and steamships in the 19th century elevated the importance of logisticians and engineers—technocrats who were initially looked down upon by traditional army and navy officers. In the Imperial German Navy, engineering officers were sent to a separate school, they wore less gaudy uniforms without the sashes and imperial crowns sported by regular officers, and they were not allowed to dine in the officers’ mess. They even had to endure the indignity of having their wives addressed as “women,” not “ladies.”
Today, the U.S. Air Force faces difficult dilemmas as it figures out how to integrate unmanned aerial vehicles: Should someone controlling a Predator from a trailer thousands of miles away be a certified pilot? Should control time count as “flying” hours? This may seem a picayune matter, but it looms large in a service where the fastest advancement has always gone to fliers. If the Air Force doesn’t give greater promotion opportunities to UAV operators, it cannot attract and keep the best people for these jobs, but if it advances them ahead its fighter-jock culture will inevitably change.
This is part of a broader challenge confronting all Information Age militaries: How to make room for those who fight with a computer mouse, not an M-16. Will traditional warriors--men with shaved heads and hard bodies--continue to run things, or will nerds with bad posture and long hair, possibly even women, assume greater prominence? Two Chinese strategists write that “it is likely that a pasty-faced scholar wearing thick eyeglasses is better suited to be a modern soldier than is a strong young lowbrow with bulging biceps,” but, even if that is true, reordering any military along those lines presents a far more profound and problematic challenge than questions about which tank or helicopter to buy. As Eliot Cohen writes: “The cultural challenge for military organizations will be to maintain a warrior spirit and the intuitive understanding of war that goes with it, even when their leaders are not, in large part, warriors themselves.”
War Made New surveys many instances where militaries had to change or die. Those armed forces that did not successfully integrate the gun, the long-range bomber, precision-guided munitions, or other important innovations experienced the agony of their members dying in great numbers. But War Made New also looks at some instances of militaries too eager to change in the wrong way. In the 1930s, the U.S. Army Air Corps and the Royal Air Force placed too much faith in the ability of unescorted bombers to win a future war—a doctrinal mistake that cost the lives of tens of thousands of air crews over Europe. In the 1940s Hitler poured vast resources into the development of the V-1 and V-2 that might better have been employed on his conventional forces. And in the 1950s the U.S. Army, Navy, and Air Force did so much to rearrange themselves around the demands of the nuclear battlefield that they were not ready for the actual threat they wound up confronting in the jungles of Vietnam.
There is no rule-of-thumb to suggest how much or how little a military should change in response to technological developments. Each revolution raises painful questions of prioritization such as those that the United States and other countries confront today: Should they pay for more traditional infantrymen and tanks, or push resources into “transformational” programs like surveillance satellites, wireless broadband networks, and directed-energy weapons? Each path has major risks and trade-offs: Paying for larger standing forces can make it easier to respond to today’s threats; cutting force strength and using the savings to pay for high-tech hardware can make it easier to respond to tomorrow’s threats.
History indicates that the wisest course is to feel one’s way along with careful study, radical experimentation, and free-wheeling war games. Paradoxically, revolutionary transformation often can be achieved in evolutionary increments. The Germans did not shift over their entire army to panzer divisions in the interwar years. In 1939-40 only about 10% of German forces were composed of armored units, and the Wehrmacht had more ponies than panzers, but this was enough to produce breakthroughs from Poland to France.
A corollary is that a military revolution does not necessarily sweep aside all old weapons and old ways of doing things. Battleships may have been dethroned as queen of the seas in 1941 but they continued to perform a valuable auxiliary role as a shore bombardment platform into the 1980s. Sweden’s King Gustavus Adolphus (1594-1632) did not simply toss out pikes in order to make way for muskets and cannons; he used a combination of weapons, old and new, to achieve maximum effect. Indeed, bayonets continue to be fixed onto rifles (though rarely used) hundreds of years after edged weapons lost their primacy on the battlefield.
This offers a counterpoint to skeptics who deny the existence of an Information Revolution simply because not everything has changed: It never does. On the other hand, this also offers a cautionary lesson that some modern-day J.F.C. Fullers or Billy Mitchells anxious to scrap the tank, the aircraft carrier, and the manned airplane should keep in mind: Introducing “transformational” systems does not necessarily mean getting rid of all “legacy” platforms. Rather, it means readjusting the balance between the two.
“You need to think about how to make a transition,” counsels Andrew Marshall of the Pentagon’s Office of Net Assessment, “not about how to eliminate current weapons.”
Next: Why Military Power--Not Just Economic Power--Still Matters.
In this campaign, I have focused on the future. I have run on my plan to make America great. Sure, I could have talked about persistent rumors that my opponent is a pedophile. But I haven't talk about that, and I pledge not to talk about it. Instead, I have let the authorities take care of my opponent's crimes against children, and I have focused on his record. The bottom line is, my opponent has no record. He has no plan. In contrast, I have a plan. I have a vision. I'm going to reach across the aisle to get things done.
My opponent has tried to confuse the electorate by bringing up old news about an alleged FBI investigation into bribes paid by my family business. These reports were leaked by political enemies, no doubt with the urging of my opponent. But the reports are false. Not only is there no publicly-documented proof of an investigation, but for technical reasons I don't even have a "family" business. It's kind of a long story, actually, and my lawyer told me not to discuss the details. But the key point is that voters face a choice in this election. Either we can move forward, or we can go back. I think we should move forward.
I'll be honest with you. I realize my opponent will get 100% of the pedophile vote. But unlike my opponent, I want the votes of Americans who love freedom and our country. I want the votes of people in my district who work hard and pay taxes, and who remember the $12 million in federal funding I secured last year to put up highways signs directing tourists to our district's famous Ear Wax Museum. That's a really great museum, and now tourists aren't going to get lost trying to find it. Empowering the American people to find their way; that's what this campaign is all about, and everything my opponent stands against.
(####) 2/1/06 (####)
Tuesday, October 31, 2006
Co-blogger Tyler Cowen has an excellent post on the looming crisis facing the Western European model of social democracy over at Crooked Timber.
I agree with most of Tyler's points. Unfortunately, however, I think that the risks posed by social democratic policies are in some respects even greater than he argues. The combination of high unemployment, low growth, and severe tensions between Muslim immigrants and native-born citizens (partially a result of the first two factors) has the potential for bringing political extremists to power in one or more European countries. In the first round of the most recent French presidential election, the far right (the racist National Front and similar groups) and far left (trotskyites, communists, and others) combined for some 40% of the vote. Extremist parties have also gained strength in recent years in Italy, Germany, several Scandinavian nations, and elsewhere in Western Europe.
If European governments fail to improve the anemic economic performance described by Tyler, and remain unable to assimilate Muslim immigrants effectively, there is a real chance that voter frustration will increase, and the far right or far left will successfully exploit it and eventually come to power in one or more major European nations - with potentially disastrous results. Many of those Europeans who vote for extremist parties are probably just "protest voting" and do not actually endorse their platforms in full. But the same was probably true of many of the Germans who "protest-voted" for the Nazis and Communists during the Weimar Republic (as Richard Evans suggests in this recent book). The results this time around probably will not be as bad as what happened in the 1920s and '30s, but neither will it be pretty.
I hope that Western European nations will head off this potential catastrophe (as well as the risks highlighted by Tyler) by adopting more market-oriented policies, as Ireland has recently done with great success. I fear, however, that many governments will prefer to try to muddle through with current policies rather than pay the short-term political costs of alienating labor unions, government employees and other powerful interest groups that support the status quo.
All of this is not to say that US policies don't have their own flaws; indeed, they have many. But, for the reasons Tyler emphasizes, as well as others, the US economic system at this point in time is doing considerably better than Western Europe. In part because of greater economic opportunity, we are also more successful in assimilating immigrants, including Muslims.
Some of today's respondents have expressed skepticism about my assertion that having a better bureaucracy was the key advantage enjoyed by England over Spain in the 1580s or by the U.S. over Iraq more recently. If it didn't have a better bureaucracy--i.e. one capable of producing a more effective navy, with better ships, better cannons, better sailors, and better commanders--it is hard to know how England could possibly have defeated the Spanish Armada, when Spain was considerably richer and bigger than England. For the record, here is a very brief excerpt from Chapter One of my book which gives a partial overview of the English bureaucratic advantage (there is much more on this in the book itself):
"The Royal Navy was ready to meet them [i.e., the Spanish warships]. It had ancient roots, but as an official body it had existed for only half a century. In medieval times English kings would raise fleets from among the merchant marine when necessary in time of war, and few if any ships were built expressly for fighting. Even the king’s personal ships, when not needed in a campaign, would be used to transport Bordeaux wine or other goods for the royal household. Henry VIII (r. 1509-1547), Elizabeth’s father, had pioneered among European monarchs a standing fleet belonging to the crown, and, as important, a standing department to administer it. This was part of what is sometimes called the Tudor Revolution, which gave England the prototype of a modern bureaucracy long before Spain possessed one. Under Henry VIII and his energetic ministers, Thomas Wolsey and Thomas Cromwell, the center of English administration shifted away from the royal household and toward new governmental departments.
"To manage the navy, officials were appointed with such titles as Master of Naval Ordnance, Lieutenant of the Admiralty, Treasurer, Controller, Clerk of the King’s Ships, and General Surveyor of the Victuals for the Seas. Beginning in 1546, many of these senior managers sat together on the Council of the Marine, popularly known as the Navy Board, direct ancestor of the modern Admiralty. The slightly older Ordnance Board was responsible for procuring weapons and everything needed to operate them. Together, these two organizations provided England with more efficient naval administration than that of any contemporary state, with the possible exceptions of Portugal and Venice. The Spanish navy was a virtual one-man operation by comparison, and that man was the overworked King Philip II, isolated in his gloomy cell at the Escorial.
"Spain had nothing like the royal dockyards and storehouses that had sprung up around southern English ports like Portsmouth, Woolwich, and Deptford. Nor did it have officials, as England had, who carefully drew up mobilization plans to make full use of its maritime might. England, not yet possessing lucrative colonies, was much poorer than Spain (Elizabeth’s ordinary revenues were a tenth of Philip II’s ) and could not keep a large fleet mobilized for long periods. It needed accurate intelligence and ready contingency plans to defend itself when danger materialized. There was no margin of safety. As part of this planning, the Elizabethan navy launched an ambitious program of construction in the 1560-1570s to take advantage of a (so to speak) sea change in warship design."
As for the U.S. and Iraq, there was no question that the U.S. was much bigger than Iraq so it should have defeated Iraq--if the bigger power were guaranteed to come out on top. But it isn't. We found that out in the Vietnam War. We're finding it out today in Iraq. Iran learned the same lesson when it failed to defeat Iraq during their war in the 1980s even though Iran has about three times as many people. The U.S., of course, is even bigger and richer than Iran, so the odds are that we would defeat Iraq no matter what--but no one expected that coalition forces would win the 1991 Gulf War as easily or cheaply as they did. That was a tribute to American skill at warfighting--especially to the changes made in the previous decade to incorporate new technologies (e.g., stealth and smart bombs) and new organizational models (the all volunteer force, Goldwater Nichols, etc.). The result: one of the most lopsided defeats in military history. The reason the U.S. proved more effective, I would argue, is that it had a more efficient organization for marshalling military power. Whereas Saddam frittered away his military capabilities with a perverse organizational model designed NOT to field powerful armies--for fear that they would rise up against him.
More often than not, I disagree with conservative National Review columnist John Derbyshire. I do, however, endorse his argument that being religious does not in and of itself make you a better person:
Q. Do you believe religion is good for people?
A. You’d think so, wouldn’t you? I thought so for the longest time. All those Golden Rules, those injunctions to charity, compassion, neighborliness, forbearance, and so on. Not only does the proposition seem obvious in itself, but we all know people whose lives were messed up, but were then straightened out after they got religion...
Evelyn Waugh . . . was religious, but he was also a nasty person, and knew it. But: “If not for my faith,” he explained, “I would be barely human.” In other words, even a nasty religious person would be even worse without faith.
I have now come to think that it really makes no difference, net-net. You can point to people who were improved by faith, but you can also see people made worse by it. Anyone want to argue that, say, Mohammed Atta was made a better person by his faith? All right, when Americans say “religion” they mean Christianity 99 percent of the time. So: Can Christianity make you a worse person? I’m sure it can. If you’re a person with, for example, a self-righteous conviction of your own moral superiority, well, getting religion is just going to inflame that conviction. Again, I know cases, and I’m sure you do too. The exhortations to humility that you find in all religions seem to be the most difficult teaching for people to take on board. Mostly, I think it makes no difference.
As Derbyshire implies, whether or not your moral beliefs are religious is far less important than the substantive content of those beliefs. Some religious ideologies justify freedom, fairness, and charity, but others just as forcefully promote slavery, the oppression of women, and terrorism. Witness the Atta case. The same, of course, is true of secular and atheistic ideologies. The Soviet communists were atheists, but so too were many of their most courageous opponents, such as dissident leaders Andrei Sakharov and Vaclav Havel.
As I noted here, the empirical evidence shows that nonreligious individuals do not have higher rates of social pathology (criminal activity, irresponsible behavior, etc.) than religious ones, and majority atheist nations such as Japan, Sweden, and the Czech Republic are no worse in these respects than those where the majority of the people are religious.
Ultimately, the key question is not whether you are a "person of faith," but what is it that your faith tells you to do.
UPDATE: I should clarify that I do NOT necessarily agree with all the other things that Derbyshire says in his article.
The U.S. Court of Appeals for the Sixth Circuit has posted the three-judge panel's three opinions in Northeast Ohio Coalition for the Homeless v. Blackwell. Here is the opinion of the court, the separate concurrence, and the separate opinion concurring in part and dissenting in part/a>. Rick Hasen has some commentary here, and Election Law @ Moritz is following all other developments.
until you fall to the ground, definitely don't fight back with lethal force. After all, maybe he's insane, and quite possibly not morally responsible for his actions. You wouldn't want to kill someone like that. And maybe he'll stop short of killing you or seriously injuring you while you're lying there on the ground, right?
According to Seattle police, a woman called 911 at 11:08 a.m. Saturday to report that a man [Danny Culotti] was acting erratically, yelling at passers-by and randomly assaulting strangers near Boren Avenue and Pine Street. Officers sent to the scene couldn't find the caller, the man or any victims, police spokeswoman Debra Brown said.
Twenty-three minutes later, police dispatchers radioed that shots had been fired at Fifth Avenue and Pine Street, she said. Moments earlier, witnesses told police, a man in his 20s apparently attacked the 52-year-old man, punching and kicking him until he fell to the sidewalk. The older man pulled out a .357-caliber Ruger revolver [which he was licensed to carry] and fired one round, striking the man in the abdomen.
The older man "was not winning the fight" — the other man "just starts attacking him, he's on the ground and a shot is fired," Brown said, describing witnesses' accounts.
Ms. Brown also said that the man told the victim "I am going to kill you" before he started the attack.
Culotti, it turns out, had been mentally ill for years; in 2001, he burnt down his mother's house — having "doused the floors inside the house with gasoline." The mother was running a day-care center from the house, though fortunately "Culotti's mother, several child-care providers and seven children escaped unharmed." He was sentenced to less than two years in prison, and was released after nine months, having been labeled a Dangerous Mentally Ill Offender under state law. He had also "failed two drug tests shortly after his release from prison in October 2002", and "told his probation officer he had used crack cocaine regularly 'to help ease the stress.'" Culotti's victim, of course, had no way of knowing this, though I'm sure he wouldn't have been surprised by Culotti's past history. Now mental illness is of course a tragedy, and if indeed the illness was so severe as to render Culotti not morally culpable for his acts, Culotti's death would be a tragedy, too. (Different people draw the line for moral culpability at different places, but surely there are some mental illnesses that are so severe that they negate a person's moral culpability — for instance, if someone is operating under a sincerely felt insane delusion that it is the victim who is attacking him.)
Yet tragic as the situation may be, surely the one person that should not be blamed is the victim of Culotti's attack; yet that's exactly what an item published as "The Reader's View," and written by Culotti's uncle, a professor of molecular and medical genetics, says:
Witnesses say Danny's attack appeared random, but it was Danny who was shot dead. Initial reports painted Danny as a dangerous person who deserved it and the shooter as the victim.
Put aside the fact that Danny was a beautiful, intelligent child who became schizophrenic at age 18 through no fault of his own; then ask how you would respond to someone attacking you with his fists.
Most normal people would respond by instinctively running or using their hands to defend themselves.
However, the shooter was not what we would think of as normal — he was carrying a gun and his immediate instinct was to shoot his attacker.
Many "normal" people are capable of killing another person in a brief moment of extreme anger, but this is uncommon because most of us do not carry lethal weapons and our bodies are not killing machines — a .357-caliber Magnum is.
Schizophrenia, amazingly, affects one of a hundred people. Its major symptom is hearing voices, often telling the person to perform abnormal acts. Its cause is not understood, but it can strike anyone and is one of the worst scourges of modern society.
There is no doubt that Danny acted erratically that day, but he did have a diagnosed mental illness.
I am certain he would admit that what he did was wrong, if he were alive, but he was taken from us by a misguided man with a gun.
Danny won't be here to rejoice in a cure for schizophrenia, which we all hope will one day be found. May Danny rest in peace.
What a "misguided" and non-"normal" 52-year-old that was: A 25-year-old jumps him for no reason, punching and kicking until he falls to the ground, and he "misguided[ly]" and "[ab]normal[ly]" concluded that he was legally and morally entitled to defend himself rather than "using [his] hands to defend [himself]" or "instinctively running" while lying on the ground. After all, though "[t]here is no doubt that Danny acted erratically that day," "he did have a diagnosed mental illness." How dare the 52-year-old conclude that protecting his own life justified killing this potentially mentally ill attacker?
I sympathize with Dr. Culotti's grief, and I can understand why the grief would lead him to focus on the death of his beloved nephew to the exclusion of his nephew's potentially lethal attack on a stranger. Yet I hope that the editors who chose to publish the article, and the readers who read the article, aren't confusing this grief with moral insight. Maybe that makes me abnormal and misguided, but there it is. Doubtless it's a moral illness on my part, to those who share Dr. Culotti's perspective.
By the way, I acknowledge that I'm relying here on newspaper reports, which may well be quite flawed. But I've looked at several reports, which seem consistent; and nothing in Dr. Culotti's item states that any of the reports are mistaken. Thanks to Clayton Cramer for the pointer.
in the London Review of Books, translated and summarized by David Bernstein: "American liberal intellectuals should always agree with me on foreign policy. They don't; some of them even supported the Iraq War. How could we explain the fact that even though I'm so obviously right, and that American liberals claim to share the same general world outlook on the world as I have, that they sometimes disagree? It's because they are overwhelmingly Jews or run in Jewish circles, and their views of foreign policy have been perverted by their irrational attachment to the evil State of Israel. But I'll be very careful never to use the word 'Jews' in my essay, so I can immunize myself from charges of encouraging prejudice." Cf. Ottolenghi on Anti-Semitism in Europe (which, if I could retitle the post, for reasons I explain in the comments, I'd call "Ottolenghi on anti-Jewish prejudice in Europe.")
UPDATE: How intellectually dishonest is Judt's essay? He writes, "Not every liberal cheerleader for the Global War against Islamo-fascism, or against Terror, or against Global Jihad, is an unreconstructed supporter of Likud: Christopher Hitchens, for one, is critical of Israel." I'd challenge Judt, or anybody else, to come up with even a handful of American intellectuals who can reasonably be described at (1)liberal; (2) "cheerleaders" of the sort Judt suggests; and (3) "unreconstructed supporters of Likud." But of course "Likudnik" or "supporter of Likud" has become the general term of disopporbium on the far left for any Jew who disagrees with the far left's view of Israel.
And how about this one: "Thus Paul Berman, a frequent contributor to Dissent, the New Yorker and other liberal journals, and until now better known as a commentator on American cultural affairs, recycled himself as an expert on Islamic fascism .... [he had never] previously shown any familiarity with the Middle East, much less with the Wahhabi and Sufi traditions on which they pronounce with such confidence." Unlike, say, Tony Judt, professor of European history, who would obviously never write about anything outside his area of academic expertise, such as Israel, American intellectuals, or American policy in Iraq!
FURTHER UPDATE: I should have noted that I first came upon Judt's essay via this rather tepid response penned by Bruce Ackerman and Todd Gitlin, and signed by many prominent liberals.
Reader Ivan adds:
David, you missed a fun claim of Judt's: "Since its inception the state of Israel has fought a number of wars of choice (the only exception was the Yom Kippur War of 1973)." Sure, Israel had the choice not to become a country in 1948 and could have avoided that one (except not really, since attacks had begun). Or it could have chosen to wait a little longer in 1967, to be attacked first. One could even raise questions of the two Lebanon conflicts (since hostilities were commenced by Hizb'Allah), but we don't have to go there to mock Judt's claim. So many wars of choice Israel has fought. Why couldn't they just be peaceful, like their neighbors?
Ivan, you left out the War of Attrition, another non-war of choice, fought by Israel against Egyptian attacks between the Six Day and Yom Kippur wars.
Today the D.C. Circuit became the first federal appellate court (that I know of) to address the question. The D.C. Circuit concluded that no, the Fourth Amendment decision in Hudson eclipses the statutory suppression remedy that existed pre-Hudson. Here's the key passage in the opinion by Judge Randolph, joined by Judges Williams and Griffith:
The short of the matter is that § 3109 and the Fourth Amendment have merged both in the standards governing entries into the home and in the remedy for violations of those standards. There is now one uniform knock-and-announce rule. We are thus faced with a conflict between Supreme Court decisions, a circumstance outside the Rodriguez decision requiring lower courts to follow a Supreme Court precedent directly on point even if later decisions have undercut its rationale. See Mozee v. Am. Commercial Marine Serv. Co., 963 F.2d 929, 935 (7th Cir. 1992). As to which line should be followed, we think it plain that Hudson, not Miller and Sabbath, now must control. Not only is Hudson the Court’s most recent pronouncement about whether evidence should be excluded as a remedy for knock-and-announce violations, but it is also the Supreme Court’s only thorough analysis of the issue.I don't think that's a persuasive argument, for the reasons I discuss in my post back in July. But I'm glad the argument is being made, and I wouldn't be surprised if another panel in another circuit will find it more persuasive than the D.C. Circuit did here.
Here is more evidence:
Elephants can recognize themselves in a mirror and use their reflections to explore hidden parts of themselves, a measure of subjective self-awareness that until now has been shown definitively only in humans and apes, researchers reported yesterday.
The findings confirm a long-standing suspicion among scientists that elephants, with their big brains, complex societies and reputation for helping ill herdmates, have a sufficiently developed sense of identity to pass the challenging "mirror self-recognition test."
[Note: As those who know me can attest, I have a fondness for elephants wholly apart from (indeed, often in spite of) their association with certain political agendas.]
Part Two of excerpts from War Made New: Technology, Warfare, and the Course of History, 1500 to Today, by Max Boot:
Taking advantage of major innovations usually requires what James Q. Wilson calls a “change-oriented personality”--someone like John Hawkins, Gustavus Adolphus, or Curtis LeMay who is not afraid to shake up conventional ways of doing things. Fundamental changes can be preached from the outside but seldom imposed by civilians on a professional military. Consider the lack of success that J.F.C. Fuller and Basil Liddell Hart had in the 1930s preaching the gospel of armored warfare to the British army.
The most successful innovators have tended to be people like Field Marshal Helmuth von Moltke (chief of the Prussian General Staff during the 19th Century Wars of German Unification), Admiral William Moffett (father of American naval aviation in the 1920s), General Hap Arnold (chief of the U.S. Army Air Forces in World War II), and General Heinz Guderian (the blitzkrieg pioneer): insiders not outsiders. At best, civilians can play a supporting role in aiding military mavericks against their bureaucratic foes, though popular accounts tend to overstate the influence of flamboyant rebels such as Billy Mitchell.
Western states have been the most successful military innovators over the past 500 years. Having a relatively liberal political and intellectual climate, of the kind that the West developed toward the end of the Middle Ages, helps to create an atmosphere in which innovation can flourish. The Soviet Union’s lack of freedom ultimately sabotaged its attempts to keep pace in the Information Age, just as the lack of freedom in Spain and France made it difficult for them to keep pace in a naval arms race with first the Netherlands and then Britain.
But we should be wary of simple-minded democratic triumphalism. History has offered many examples of autocratic states that proved more adept than their democratic rivals at exploiting military revolutions. The success of the Prussian/German armed forces between 1864-1942 and of the Japanese between 1895-1942 shows how well even autocratic systems can innovate. All that is required is some degree of openness to change, a commitment to meritocracy, and an ability to critically examine one’s own mistakes—all disciplines in which the illiberal German General Staff excelled. In fact, most democracies, which tend to be less militaristic than autocracies, face a disadvantage in taking advantage of military innovations because they are less inclined to be generous to their armed forces in peacetime: a problem that plagued all of the nations of the West during the 1930s.
Nor is there much evidence to suggest that soldiers fight better for a democracy than for a dictatorship. Man for man, the Wehrmacht was probably the most formidable fighting force in the world until at least 1943, if not later. German soldiers were even known for showing more initiative than the soldiers of democratic France, Britain, and America. Meanwhile, Soviet soldiers stoically endured privations and casualties far beyond anything suffered by their Western allies.
But if democracies do not have an advantage in creating formidable war machines, they do seem to have an intrinsic edge in figuring out how to use them. Autocracies tend to run amok because of the lack of internal checks and balances. Philip II, Gustavus Adolphus, Louis XIV, Frederick the Great, Napoleon, Wilhelm II, Hitler—they all built superb militaries but ultimately led their nations into ruinous wars. They had no sense of limits, and no other politician was strong enough to stop them. Their tactics may have been superb, but their grand strategy was lousy, the best examples being Napoleon’s and Hitler’s foolhardy invasions of Russia. Democracies sometimes overreach too (witness the Boer, Algerian, and Vietnam Wars), but they tend to avoid the worst traps because they have a more consensual style of decision-making.
The key to successful innovation, whether for a dictatorship or a democracy, is having an effective bureaucracy. This was the chief advantage enjoyed by Elizabeth I over Philip II in the Battle of the Spanish Armada (1588), Emperor Meiji over Czar Nicholas II at the Battle of Tsushima (1905), Adolf Hitler over Édouard Daladier in the Battle of France (1940), and the two George Bushes over Saddam Hussein. Prussia’s secret weapon in the 19th century was not the needle gun or the railroad or the telegraph. It was the general staff, which figured out how to utilize these innovations.
Bureaucracies are so important because, as War Made New has repeatedly stressed, the realization of a Revolution in Military Affairs requires far more than simply revolutionary technology. It also requires revolutions in organization, doctrine, training, and personnel. That is what the Swedes achieved in the early 17th century when they crafted mixed-arms formations made up of pikemen and musketeers, what the Prussians achieved in the mid-19th century when they figured out how to rapidly mobilize and move large numbers of riflemen by railroad, what the Japanese achieved in the 1930s when they decided to group aircraft carriers together in strike groups, and what the Americans achieved in the 1980s when they integrated smart bombs, sensors, stealth, and professional soldiers in the AirLand Battle doctrine.
Bureaucratic innovation can seldom be limited to the military alone because armed forces are always a reflection, however refracted, of the broader society. Each military epoch comes with its own distinctive system of governance. The rise of the Gunpowder Age fostered the growth of absolute monarchies. The First and Second Industrial Ages fostered giant welfare and warfare states. The Information Age is leading to a more decentralized, flatter form of government and the rise of more powerful non-governmental groups. States that fail to keep up with these transformations risk getting run over by those that do.
In lieu of the right bureaucratic structures, the possession of modern weaponry is of dubious utility, as the states of the modern Middle East have found out. No matter how great the Arab preponderance in men and materiel—and against Israel in 1948, 1956, 1967, and 1973 their advantage appeared, on paper at least, to be insuperable—they have continuously contrived to snatch defeat from the jaws of victory.
The armies of Russia and the United States were far more competent, but in Afghanistan and Chechnya, Vietnam and Iraq, they, too, found themselves stymied by smaller, poorer adversaries, largely because their armed forces were not properly configured for counter-guerrilla warfare. This does not mean that modern military hardware is useless—only that by itself it is not enough to guarantee victory against a clever, determined adversary. When combined with the right organization, doctrine, training, leadership, etc., however, sophisticated weaponry can confer a decided advantage even in battling irregular foes.
Next: the danger of too little change--and too much.
According to the headlines on the internet, a new study by Todd Kendall of Clemson University (using regression analyses of panel data) finds that having computer access to the internet at home, and thus better access to internet porn, is consistent with the hypothesis that more porn REDUCES the incidence of rape (tip to Instapundit).
What neither the author of the study nor online commentators seem to have noticed is that the data also are consistent with the hypothesis that owning a computer INCREASES the incidence of rape. Indeed, the observed rape increasing effect of computer access is even more highly significant than the observed rape decreasing effect of internet access (p. 43).
Since by 2003 87% of households with computers had access to the internet, and since the two effects are about even in size, the “rape reducing” effects of internet access (-.730, p. 43) are almost completely offset by the “rape increasing” effects of owning a computer (.641, p. 43). Since it appears that everyone in the study who lived in a household with computer internet access also lived in a household with a computer, the net effect on rape of having household access to a computer and household access to the internet was nearly zero and probably not even close to being significant.
The supposed rape reducing effect of internet access that the study and commentators are talking about is the effect of household internet access, CONTROLLING for the observed rape inducing effect of household computer access. That these two highly intercorrelated variables tend to have implausible offsetting effects when significant is supported by other models in Kendall’s paper; for example, one model shows a huge increase in prostitution arrests associated with computer access and a huge offsetting drop in prostitution arrests associated with internet access (p.51).
Without noting that internet and computer access go together and that the observed effects seemingly offset each other, one might wrongly conclude (as Todd Kendall appears to do) that his reported regression analyses of rape are consistent with the hypothesis that internet access reduces the measured incidence of rape. IMO, he should rerun his analyses using his internet access variable WITHOUT including the variable computer access, and then post all the coefficients in his main models. I would be interested in seeing those results.
It is amazing how many scholarly papers I’ve read in the last year either fail to report, misreport, or misleadingly present the use of control variables.
Just to be clear, the title of this post is tongue-in-cheek. Just from Kendall's regression analyses, I am skeptical of any meaningful effect one way or the other.
UPDATE: There are some excellent comments below, and a few that don't fully understand the main problem with the Kendall study. Although it is possible to have a 10% increase in internet access without ANY increase in computer access, that is extraordinarily unlikely.
Since by 2003 about 87% of those with computer access have internet access, what would be the likely effect on the incidence of rape of a state having a 10% increase in computer access and a corresponding 8.7% increase in internet access? One would multiply .641 by 10 and add it to -.730 multiplied by 8.7. The result would be an insignificant INCREASE in the incidence of rape. With different assumptions, one can get a slightly different net result, but there is no plausible combination that should lead to an overall effect that significantly reduced or increased the incidence of rape.
Monday, October 30, 2006
One of the many voter initiatives on the ballot in Ohio is Issue 2, the "Ohio Fair Wage Amendment," a proposal to enshrine an ever-increasing minimum wage in the Ohio state constitution. If it passes (and polls suggest it will by a large margin) the Ohio minimum wage will rise to $6.85 an hour in 2007, and increase with inflation thereafter.
There's no need to rehash the economic arguments about the minimum wage here. (For those interested, see my NRO commentary on Issue 2 here). There are several other aspects of Issue 2 that are worth comment. First, for a constitutional amendment, Issue 2 is quite unweildy. Only a small portion of the thousand-plus-word amendment concerns wage rates. The rest details employer record-keeping, reporting, and disclosure requirements, and provides for a private cause of action against employers who fail to comply with the new law.
Issue 2 opponents have focused their efforts on portions of the amendment that they claim threaten workers' privacy. A group called Ohioans to Protect Personal Privacy, for instance, argues that the amendment's "fine print can also make your payroll records public: how much you make, when you worked, where you live."
This charge is overstated. According to Ohio State's Peter Swire OTPPP's claims are "wrong" and display an "an ignorance of actual privacy law." That said, I believe Issue 2's non-wage provisions are still cause for concern.
Issue 2 requires employers to maintain payroll records for all employers for three years after their employment. Under the Amendment, "Such information shall be provided without charge to an employee or person acting on behalf of an employee upon request." An individual "acting on behalf of an employee" is presumably someone like an attorney or authorized union representative, and herein lies the potential problem.
Another provision of Issue 2 provides that:
An action for equitable and monetary relief may be brought against an employer by . . .an employee or person acting on behalf of an employee or all similarly situated employees . . . for any violation of this section or any law or regulation implementing its provisions.This provision, read in conjunction with the rest of Issue 2, seems to create the possibility that an attorney retained by a current or former employee could bring a class-action suit on behalf of all "similarly situated employees," and then seek the relevant employment records by claiming that they are acting on their behalf. Why would they do this? Perhaps to facilitate a litigation strategy or union organizing campaign.
This is not the only potential interpretation of Issue 2, but it is hardly an unreasonable one either. So, while some privacy-based complaints are overstated, there is a reasonable basis for concern -- and reason enough, in my mind, why someone who would like to increase the minimum wage might still have misgivings about a constitutional amendment like Issue 2.
Related Posts (on one page):
- When "The Weight of Empirical Evidence" Is Only "Anecdotal or Theoretical":
- Worker Privacy and Ohio's Issue 2:
Thanks to everyone for your interesting responses to my post based on my new book, War Made New, which I've been reading while in Houston today on my book tour. (Tomorrow am off to Dallas followed by Kansas, where I'm speaking at the Army's Command and General Staff College.) My plan is to continue to post excerpts from the concluding chapter all week. You will see that future excerpts will address many of the points raised in today's postings.
For instance, a number of commentators suggest that economic power is more important than military prowess, with the most commonly cited example being World War II: Wasn't the outcome determined by the greater economic and demographic resources of the Allied powers over the Axis? I address this point at length in my book and will address it in very short form in an excerpt planned for Thursday.
But in short the answer is: No, World War II doesn't make the case for economic determinism. In the early stages the Axis had tremendous success against a coalition of states that were much larger in aggregrate but much less prepared for war in the Second Industrial Age. Thanks to their early success, Germany, Italy and Japan overran much of Europe and East Asia, which should have allowed them to compete in a war of resources with the Allies. That they failed is in part because the Soviets and the American exhibited greater skill in mobilizing the resources of their societies.
It was also because, after making terrible tactical blunders early on, the Allies learned their lesson and managed to utilize tanks, aircraft carriers, bombers, submarines, and other important technologies as skillfully as their enemies did. If they hadn't, not even the Allies' superiority in materiel would necessarily have been sufficient to prevail. (For greater elaboration of this point, see Richard Overy's excellent book, Why the Allies Won.)
In War Made New, I chronicle numerous instances of the smaller, poorer power defeating a bigger, richer adversary, starting with the Battle of the Spanish Armada: In 1588 Spain was much bigger and richer than England but lost anyway because it had not yet mastered sail and shot tactics as effectively as the English had. We are seeing a similar story play out in the present day, with ragtag Iraqi insurgents defeating the armed forces of the world's No. 1 economic power. You can argue that what we're suffering in Iraq is a political, not a military, defeat, but what's the difference? The point of military action is to achieve political results and if you don't get the results you want, you've been defeated, even if (as in Vietnam or Iraq) you win every single battle.
George Mason Law School will be hosting a debate this Wendesday at noon on the proposed Virginia Marriage Amendment. The debate has been contentious and somewhat confusing as to the possible effects of the Amendment. Details and directions are here. A brief description of the program:
ARLINGTON, VA – On Wednesday, November 1, at 12:00 p.m., the George Mason University School of Law will host a panel discussion to explore the meaning and likely impact of Virginia's proposed constitutional amendment to define marriage (Ballot Question #1). Cato Institute Senior Fellow in Constitutional Studies Mark Moller will argue that the measure threatens rights and protections currently offered to unmarried persons under Virginia law. Nelson Lund, Mason Law Vice Dean and Patrick Henry Professor of Constitutional Law and the Second Amendment, will argue that the amendment should not be interpreted to threaten these rights. Mason Professor Joyce Lee Malcolm will moderate this engaging and thought-provoking scholarly discussion
Ballot Question #1 will go before Virginia voters on November 7.
All students are encouraged to attend this event, which is free and open to the public.
Republican political veterans go easy on ideology, but they're tough on incompetence. They see Mr. Bush through the eyes of experience and maturity. They hate a lack of care. They see Mr. Bush as careless, and on more than Iraq--careless with old alliances, disrespectful of the opinion of mankind. "He never listens," an elected official who is a Bush supporter said with a shrug some months ago. Along the way the president's men and women confused the necessary and legitimate disciplining of a coalition with weird and excessive attempts to silence Republican critics. They have lived in a closed system. They now want to open it but don't know how. Listening is a habit; theirs has long been to suppress.
. . . The Republican establishment, the Republican elite, . . . sense, in their tough little guts, that the heroic age of the American presidency is, for now, over. No president is going to come along and save us, and Congress isn't going to save us. Events will cause a reckoning, and then we'll save ourselves. And in this we will refind our greatness.
I agree with a great deal of what Larry says, although I think he is overlooking something important: j-o-b-s. By a month into their second year, many students (and almost all at a school like Stanford) are going to have lined up summer jobs at law firms. As long as they don't act like freaks over the summer, they will get full-time job offers. As a result, the rat race is effectively over for many students the moment they accept their summer positions; they pay less attention than before because, well, they can.
NPR ran a story Friday on the 20th anniversary of the crack cocaine sentencing rules — rules under which the weight thresholds for crimes involving crack cocaine are set 100 times lower than the thresholds for crimes involving powder cocaine (so that dealing 5 grams of crack will be treated comparably to dealing 500 grams of powder). There surely are important criticisms of these rules; I'll implicitly touch on one below.
But, boy, the NPR story seemed weak, in pretty obvious ways. I'm not a drug policy expert, which is why I almost never blog about the subject, but the story's weaknesses are so clear that it seems to me one needn't be an expert to spot them. A few examples:
The U.S. Sentencing Commission has recommended reducing the differential between crack and powder cocaine since 1995.
It's found that 83 percent of the people in prison under the law for crack cocaine are African-Americans, even though many users of crack cocaine are white.
Let's begin with the comparison — 83% of the people in prison for crack cocaine are black, though many users are white. How many? "Many" could mean 5% of a large number, or 20% of a large number, or 60%. I've certainly heard that the actual percentage is enough to make for a substantial disparity between the demographics of imprisoned crack criminals and the demographics of users. But the story doesn't even assert that, much less that demonstrate that with numbers.
Second, it's far from clear that there's anything sinister in treating drug dealers more harshly than drug users; the premise of most controlled substances laws has been precisely that. (Even critics of drug laws rarely argue that the solution is to impose the same long sentences on users as on dealers.) If the Mafia were running drugs to predominantly black neighborhoods, you'd hope that the great majority of drug prisoners were of Italian extraction even if the great majority of users were black. Even if drug users were punished to some extent, they'd probably be sentenced to shorter terms, which would lead to the disproportion between the demographics of prisoners and of users. Likewise if crack cocaine distribution is mostly a black business and crack cocaine buyers are mostly white.
Now if you think racial disproportions matter, you might compare crack dealers to dealers in other drugs, and see whether black drug dealers were getting much higher sentences than white drug dealers (controlling for the harmfulness of the drugs). I can't tell you what those numbers would show. But those aren't the numbers that the NPR story gave, or, more precisely, hinted at (given its 83% vs. "many" comparison).
Here's the next sentence:
And it's found that most of those imprisoned are street dealers or drug couriers, not kingpins.
Most of those imprisoned aren't kingpins? So what? Under any sensible definition of kingpins, kingpins would be only a tiny fraction of the distribution pyramid. Even if the war on drugs is perfectly proper, and even if it is conducted in the most efficient and racially evenhanded way, and even if law enforcement tries much harder to get kingpins than it does to get the lower-level, medium-level, and the sub-kingpin-high-level participants, of course kingpins would constitute only a small minority of those imprisoned. (If you have a hard time imagining such a scenario, because you so reject the war on drugs, imagine an attempt to fight only those who are distributing highly addictive drugs to minors, or an attempt to fight extortion rackets.)
The only way you can get a situation where "most of those imprisoned are kingpins, not street dealers or drug couriers" is if you virtually eliminate any prosecution of street dealers or drug couriers. That's hardly a sensible strategy of fighting the war on drugs (as opposed to of abandoning it). Again, maybe there's a serious criticism hiding behind the vague assertions, for instance that the rules are highly ineffective against kingpins (or that no matter how many kingpins you lock up, some others will rise to take their place). But if that's what you're trying to say, say it. Don't give a vague assertion that, even if completely correct, would tell us nothing about whether the law is working well.
Then the story goes on:
[M]ore voices are calling for change. Senator Jeff Sessions, the conservative Republican from Alabama, is one of them. He's introduced a bill that would reduce the differential between crack and powder cocaine from a hundred to one; to 20:1.
Senator JEFF SESSIONS (Republican, Alabama): And now we have had nearly 20 years of experience and I think, legitimately, based on my experience as a federal prosecutor, that the crack sentencing guidelines are too heavy. And there's — it's not necessary to have as long of sentences for some of these offenses as we now have. And it's appropriate if Congress is going to move in to this area, that it review what it's done and — and make adjustments as time goes by.
OK, so 100:1 is supposedly bad — but how are we to decide whether the 20:1 would be any better? Why not 5:1? Why not 1000:1? Are we just supposed to figure out the ratio at which the racial demographics of prisoners and users match (the main criticism of the 100:1 disparity that the story had pointed to so far)? Or are we just supposed to figure out the ratio at which the majority of prisoners will be kingpins, in which case why would a ratio help at all?
Now as I've mentioned above, there are some sensible factors one can consider, if both crack and powder cocaine are to be outlawed, and we're looking for the right weight equivalence ratio. Most important of them, it seems to me, would be how dangerous crack is per gram compared to cocaine.
The theory for calibrating punishment to weight more generally, even within the same drug, is that 1000 grams of cocaine are thought to be more dangerous than 10 grams, because they represent more doses. (Again, if you think that neither is dangerous enough to justify the war on drugs, think of what policy you'd use for deciding how to punish people who were trying to sell cocaine to children.) One reasonable theory for calibrating punishment to drug type would be if some drugs were thought to be more dangerous per dose than others. If one gram of crack yielded approximately as much harm as 100 grams of cocaine, whether because of difference in dose size or dose harm (recognizing of course that any such matters are only estimates), then the 100:1 disparity may well be sensible. If our best guess of the harm ratio is that 1 gram of crack yielded as much harm as 1 gram of cocaine, then, unless there are some other factors that the harm analysis doesn't take into account, there shouldn't be a disparity at all. If the harm-per-gram ratio is 20:1, then we might want to consider a 20:1 weight ratio.
But even if I'm wrong in this analysis, at least it's an example of how one can think of the matter in a way geared to actually reach a sensible policy result, rather than just reporting on a proposed number with no explanation for it, or quoting people who would replace one number with another, with no explanation for the reasoning that might support either. Some such sensible analysis, whether the one I offer or a better one, would be more helpful to listeners than "lots of people say 100:1 is too much, and it leads to racial disparities of a magnitude that we'll only hint at, so let's try 20:1."
UPDATE: In the last paragraph, I originally wrote "picking numbers out of thin air" instead of "reporting on a proposed number with no explanation for it" and "who would replace one thin-air number with another" instead of "who would replace one number with another, with no explanation for the reasoning that might support either"; this post by Doug Berman reminded me that my formulation wasn't quite right -- I meant to fault NPR's reporting for giving numbers with no explanation, but my "thin air" reference erroneously suggested that the numbers had no explanation at all. I can't speak to that latter question; for all I know, for instance, Sen. Sessions' 20:1 proposal is eminently sensible and well-supported -- my point is simply that NPR gave us nothing to explain the numbers, which for all we were told appeared out of thin air. My apologies for the error, and my thanks to Prof. Berman for prompting me to correct this.
Since, as I say, I see no sense in the public-private distinction, neither do I see what precisely it consists of.
Richardson v. McKnight, 521 U.S. 399, 422 (1997).
O.K., so it's taken out of context. But what a fun sentence to take out of context!
Stefan Zweig and Elizabeth Charlotte Zweig, his wife, died by their own hands at Petropolis, Brazil, on February 23, 1942. This was Mr. Zweig's last message:Now that's classy.Before parting from life of my free will and in my right mind I am impelled to fulfil a last obligation: to give heartfelt thanks to this wonderful land of Brazil which afforded me and my work such kind and hospitable repose. My love for the country increased from day to day, and nowhere else would I have preferred to build up a new existence, the world of my own language having disappeared for me and my spiritual home, Europe, having destroyed itself.
But after one's sixtieth year unusual powers are needed in order to make another wholly new beginning. Those that I possess have been exhausted by long years of homeless wandering. So I think it better to conclude in good time and in erect bearing a life in which intellectual labor meant the purest joy and personal freedom the highest good on earth.
I salute all my friends! May it be granted them yet to see the dawn after the long night! I, all too impatient, go on before.
I've noticed a couple of interesting news stories lately involving the College of William & Mary that relate to some ongoing debates in higher education. My wife is a William & Mary alumna, and while she is not as obsessive about W&M as I am about Dartmouth (few are, I suspect) various William & Mary news storied do come across my radar screen occasionally.
Joe Malchow reports that William & Mary's leadership has sparked a great deal of controversy by its decision to remove a long-present cross from the historical Christopher Wren Building. Efforts to announce the decision on the sly appear to have failed. Malchow has all the details and links.
In other William & Mary news, the NCAA has rejected W&M's appeal of its decision on its "Tribe" logo. According to the NCAA, the moniker the "Tribe" is ok. The problem is that the logo has two feathers on it which still renders it "hostile and abusive." Why? Because the NCAA has decided so--no explanation given. The NCAA set up an appeals process to permit indian-themed mascots and logos if the relevant group approved of it. The problem is that William & Mary uses the generic name "Tribe," so there is no identifiable group to approve it, so there was no meaningful right to appeal. And still no explanation has been given why "Tribe" is ok but two feathers is not. It appears that the NCAA has never tried to define "hostile and abusive" in any meaningful or justiciable manner, it is just a subjective conclusory statement by some NCAA bureaucrats.
As William & Mary's President observed:
The reference, of course, is to mascot for the Florida State Seminoles. FSU won its appeal with the NCAA to use the mascot.
Present NCAA determinations of mascot policy--what is allowed and what is forbidden--are neither comprehensible nor capable of being sensibly defended.... An interpretation that penalizes the College of William and Mary while embracing the depection of a brave on horseback, in war pain, plunging a flaming spear into the turf at midfield, to the delight of 85,000 chanting, tomahawking fans, is, at best, enigmatic.
Despite the absurdity and indefensible nature of the NCAA's ruling, W&M's President has announced that they will not bring a lawsuit, primarily because of the damage that the NCAA could do to W&M and its athletic program during the pendency of the lawsuit. I'm not sure that this is wholly persuasive as surely the College could file a lawsuit seeking a preliminary injunction against the NCAA and given the arbitrariness of the NCAA's decision, I would think that the College would have a reasonable possibility of winning the injunction. But W&M appears ready to drop it.
Leaving aside the merits of the decision, the way in which the NCAA has handled this whole issue has been simply appalling from the beginning. How can the NCAA possibly believe that this is an issue that they are empowered to decide? And to do it in such an arbitrary and dictatorial matter? What we see in the W&M President's letter deciding not to appeal is the utter fear of the absolute lawlessness of the NCAA. What is amazing is that the NCAA refuses to even consider that it has overreached on this matter and it is obvious that the NCAA in fact would be willing to punish the students during the pendency of any litigation on this matter. The arbitrariness of NCAA decision-making and the fear it strikes into unquestionably clean programs like William & Mary seems like a frightening combination when you consider the financial and educational impact its actions have on students and universities.
My impression is that the NCAA's approach to this issue, as with almost everything else the NCAA does, is utterly risible. I've been reading Michael Lewis's new book, "The Blind Side" (which is an utterly fascinating read, by the way), and the absurd and sanctimonious attitude of the NCAA toward recruiting issues is really just appalling. Am I wrong in thinking of the NCAA as a complete joke? Is the NCAA better than I'm giving it credit for?
Related Posts (on one page):
- UND Wins Injunction Versus NCAA on "Fighting Sioux" Nickname:
- Crosses and Feathers at William & Mary:
My new book, War Made New: Technology, Warfare, and the Course of History, 1500 to Today (Gotham Books), tells the story of four Revolutions in Military Affairs over the past 500 years: the Gunpowder Revolution (c.1500-1700), the First Industrial Revolution (c. 1750-1900), the Second Industrial Revolution (c. 1900-1945) and the ongoing Information Revolution (c. 1970 to the present). These are all periods of momentous change when new technologies combined with new tactics and new organizational structures to reshape the face of battle and the global balance of power.
Near the end I examine forthcoming innnovations, such as the spread of nanotechnology, genetically engineered viruses, space war, robotic warfare, and cyberwar, that have the potential to radically change the nature of conflict in the future. While the U.S. has been dominant so far in the Information Age, there is no guarantee that its streak will continue. A challenger, whether a rival state like China or even a non-state group like Al Qaeda, could utilize new ways of war (or, in the case of nuclear weapons, not-so-new) to alter the balance of power. Cheap to produce and easy to disseminate, germs, chemicals, and cyber-viruses are particularly well-suited for the weak to use against the strong. If any of them become common and effective tools of warfare, especially terrorist warfare, the U.S. and its allies could be in deep trouble.
History is full of examples of superpowers failing to take advantage of important Revolutions in Military Affairs: the Mongols missed the Gunpowder Revolution; the Chinese, Turks, and Indians missed the Industrial Revolution; the French and British missed major parts of the Second Industrial Revolution; the Soviets missed the Information Revolution. The warning that appears at the bottom of mutual fund advertisements applies to geopolitics: Past performance is no guarantee of future returns. The end can come with shocking suddenness even after a long streak of good fortune.
Perhaps especially after a long streak of good fortune. The longer you are on top, the more natural it seems, and the less thinkable it is that anyone will displace you. Seldom do dominant powers innovate. Typical is the case of the Ottoman Empire, which mastered only one major military revolution—gunpowder—and then only its early years. One of the few exceptions to this rule is Britain, whose Royal Navy stayed No. 1 from the age of sail to the age of steel. But not even the Royal Navy could successfully navigate the next major shift, from battleships to aircraft carriers—a failure that hastened the fall of the British Empire. (Business history is replete with the same story. Not a single maker of minicomputers—not Digital Equipment Corporation, not Data General, not Prime, not Wang: all seen as invincible giants as recently as the 1980s—made a successful transition to personal computers.)
History, alas, does not offer a blueprint of how the process of military innovation occurs. There is no single model that covers all cases, and War Made New book has made no attempt to develop one. As James Q. Wilson noted in his magisterial study of bureaucracies: “Not only do innovations differ so greatly in character that trying to find one theory to explain them all is like trying to find one medical theory to explain all diseases, but innovations are so heavily dependent on executive interests and beliefs as to make the chance appearance of a change-oriented personality enormously important in explaining change. It is not easy to build a useful social science theory out of ‘chance appearances’.”
To the limited extent that we can generalize about 500 years of history, it seems fair to say that the most radical innovations come from outside of formal military structures. There are some recent exceptions, such as the atomic bomb, the satellite, and the stealth airplane, but most of the key inventions that changed the face of battle since the Middle Ages—the cannon, musket, three-masted sailing ship, steam engine, machine gun, rifled breech-loader, telegraph, internal combustion engine, automobile, airplane, radio, microchip, laser, wireless telephone—were the products of individual inventors operating more or less on their own: geniuses such as Robert Fulton, Hiram Maxim, and Guglielmo Marconi. Some had military applications in mind; most did not.
Even where government has played a big role in the development process, as with the Internet and the electronic computer, the key advances were usually made by people not on its payroll: William Shockley, John Bardeen, and Walter Brattain (the transistor); Jack Kilby and Robert Noyce (the microchip); Ted Hoff (the microprocessor); Paul Allen and Bill Gates (MS-DOS and Windows); Tim Berners-Lee (the World Wide Web); Marc Andreessen and Eric Bina (the Mosaic browser); and many others.
While government and corporate R&D programs have grown exponentially since World War II, fundamental technological innovation (as opposed to small-scale, incremental improvement) is simply too erratic and mysterious a process to be at the beck and call of any institution. “We can no more ‘explain’ the breakthroughs inside the minds of a Montgolfier or a Westinghouse,” notes economist Joel Mokyr, “than we can explain what went on inside the head of a Beethoven when he wrote the Eroica.”
Because creativity is so unpredictable, no country can count on making all, or even most, major scientific and technological breakthroughs.
Moreover, few if any technologies, much less scientific concepts, will remain the property of one country for long. France matched the Prussian needle gun less than four years after the 1866 Battle of Königgrätz; Germany matched the British Dreadnought three years after its unveiling in 1906; the USSR matched the U.S. atomic bomb four years after Hiroshima and Nagasaki. It is a truism that new technology, if it proves effective, tends to disseminate quickly. Today, key American inventions such as computers, night-vision goggles, and GPS trackers are rapidly passing into the hands of friends and foes alike.
The way to gain a military advantage, therefore, is not necessarily to be the first to produce a new tool or weapon. It is to figure out better than anyone else how to utilize a widely available tool or weapon. That will be the subject of tomorrow's post.
I'm delighted to say that Max Boot will be guest-blogging here this week. Max is a Senior Fellow in National Security Studies at the Council on Foreign Relations in New York, a weekly foreign-affairs columnist for the Los Angeles Times, a contributing editor to The Weekly Standard, and a regular contributor to The New York Times, The Washington Post, and Foreign Affairs.
Max will be blogging mostly about his new book, War Made New: Technology, Warfare, and the Course of History, 1500 to Today (Gotham Books); he's also the author of The Savage Wars of Peace: Small Wars and the Rise of American Power (Basic Books), which was selected as one of the best books of 2002 by The Washington Post, The Los Angeles Times and The Christian Science Monitor, and won the 2003 General Wallace M. Greene Jr. Award, given annually by the Marine Corps Heritage Foundation for the best nonfiction book pertaining to Marine Corps history. For some excerpts from reviews of the book, see here.
Sunday, October 29, 2006
The Ohio State election law blog reports that the U.S. Court of Appeals for the Sixth Circuit has stayed the TRO blocking enforcement of the state's new voter ID requirement.
The three-judge panel (Gibbons, McKeague, Tarnow [by designation]) stated that it "will issue an opinion shortly.” While analysis of this ruling must await the opinion, it would appear that, by preserving the ballots, the stay does not preclude a subsequent challenge to allegedly unequal disqualification of ballots for lack of ID. Rather, its immediate effect apparently is to permit, contrary to the TRO, the continued collection of ID information as part of the absentee balloting process. The status of absentee ballots submitted without ID during the time in which the TRO was in effect is not immediately clear, although perhaps their disqualification would be open to challenge subsequently, along with (for example) those that contained the wrong driver's license number.
Documents and more details here.
UPDATE: The Sixth Circuit's order is available here. An opinion will follow "shortly."
An analysis of state-wide records by the Poughkeepsie Journal reveals that 77,000 dead people remain on election rolls in New York State, and some 2,600 may have managed to vote after they had died. The study also found that Democrats are more successful at voting after death than Republicans, by a margin of four-to-one, largely because so many dead people seem to vote in Democrat-dominated New York City. (Link via Ed Still's VoteLaw.)
UPDATE: Contrary to the suggestion of some commentators, I made no claim of fraud. It's obvious that dead people are not actually voting (at least, obvious to those of us who reject claims of the paranormal). So, to repeat a finding that dead people are voting simply means that either a) live people are casting fraudulent votes in the name of dead people, or b) live people casting their own votes are wrongly listed as being dead. As some commentators noted, the story swuggests the latter is as, if not much more, likely than the former. Either way, official records show people voted who are supposed to be dead. In any event, I wrote that "some 2,600 dead people may" have voted, but I probably should have said "up to" or "as many as" to be more precise.
For much more on this than you may want to read, see Mark Kleiman's post here.
Today's Washington Post reports that the American Civil Liberties Union is dropping its lawsuit challenging the constitutionality of provisions of the USA Patriot Act, citing "improvements to the law" recently made by Congress.
"While the reauthorized Patriot Act is far from perfect, we succeeded in stemming the damage from some of the Bush administration's most reckless policies," Ann Beeson, the New York-based associate legal director of the ACLU, said in a written statement.
UPDATE: The ACLU press release is here.