Saturday, November 11, 2006

Tax evasion:

A commenter to my previous post asked if I would think it was cool if people started coming up with creative ways to evade their taxes. Well, I think this is a cool way to induce tax payment.


Federalism and the Abortion Case: Reading over the transcript from last Tuesday's Supreme Court argument involving the federal partial-birth abortion ban, I was interested to see that both Justice Stevens and Justice Ginsburg appear to have become sensitized to the scope of federal power and the role of the states in our federal system:
JUSTICE GINSBURG: . . . [U]p until now, all regulation on access to abortion has been state regulation and this measure is saying to the states, like it or not, the Federal Government is going to ban a particular practice and we are going to take away the choice from the states, in an area where up until now it's, it's been open to the states to make those decisions. How should that weigh in this case? And it is something new.

GENERAL CLEMENT: Well, I mean I don't think it should figure in this Court's decision. I mean principally because the other side in neither case makes a challenge based on the Commerce Clause, and I suppose there is two reasons for that. That legal reason that they don't bring the challenge is because there is a jurisdictional element that I think would address the challenges as a doctrinal matter. The practical reason I think is because this isn't the only instance in which the Federal Government has gotten involved to address issues related to the abortion context. . . .

JUSTICE STEVENS: General Clement, That brings up a question I was intending to ask you. I notice the finding says nothing about interstate commerce but the statute says any physician who in or affecting interstate commerce performs the procedures. Does that mean that the procedure is performed in a free clinic, as opposed to a profit organization, it would not be covered?

GENERAL CLEMENT: Justice Stevens, I don't think we have taken, the Federal Government hasn't taken a definitive position on that. I think it could be interpreted either way. I think my understanding is the face context, a free clinic would be covered. There's not a jurisdictional element in the face statute. So there may be differences as, in application.

JUSTICE STEVENS: But how could the Commerce Clause justify application to a free clinic? I don't understand.

Israeli Security and Palestinian Students:

There has been a bit of a brouhaha lately over the decision of Israeli security officials to ban students from the Palestinian territories from Israeli universities. The Israeli government has been criticized by Israeli university presidents for this decision, as well as by various international bodies, including the AAUP. The decision strikes me as unwise, but then again, I don't have the same information as the security officials.

Unfortunately, Israeli leftists (not unlike some of their American counterparts) like to brand as "racist" anything they disagree with. Thus, an Israeli professor (visiting at an American university) accused some of his American Jewish colleagues on an email list to which I subscribe of defending the Israeli government's "racist" policy, racist because it "profiles" all Palestinian students as potential terrorists.

I responded (in an email the moderator chose not to publish) that while Israel's decision may be unwise, improvident, or whatnot, it is by no means racist to bar students from an enemy entity from one's universities. I added Hamas that is the governing authority of the P.A. Hamas is clearly in a state of war with Israel. Even with regard to Fatah, the opposition party, several component groups (e.g., Al Asqa Martyrs Brigade) are at war with Israel. The idea that Israel is "profiling" all Palestinians as terrorists is ludicrous. It's like saying that banning all German student applicants to American universities during WWII because of fear that some might be Nazi saboteurs was "racist" profiling (all German and Italian students present in the U.S. during WWII were either deported or interned for the duration of the War). Wouldn't it be plausible that even someone who generally had very warm feelings towards Germans might conclude that (a) some German students might be susceptible to being recruited for sabotage and (b) the German government might send some saboteurs to the U.S. under the guise of students? It's actually a more dramatic situation with regard to the Palestinians, because, as I understand it, they are seeking to "commute" from the enemy terroritory to Israel daily, which means that even if they are cleared as a security risk at first, there would still be the danger of their ideological or other circumstances changing thereafter.

Clearly, there are Palestinian terrorists, many of them are young, and terrorist groups would have no compunctions about using "students" to further their aims, just like they sent a woman with medical issues a few months ago to the Israeli border with Gaza to try to perpetrate a terrorist act at a hospital (a woman who, btw, had previously received Israeli medical aid at the very same hospital). It could be that the Israeli security officials are overreacting, and that it would be better to consider things on a case-by-case basis. But it also needs to be considered that having to vet students case-by-case requires resources that could be spent on other security matters, and is inherently far from foolproof. To reduce this to an issue of "racism" is simply puerile and insulting to those who disagree with the professor who made the accusation. Again, I'm in favor of allowing Palestinian students (remember, we are not talking about Israeli citizens, but essentially nationals of an enemy foreign entity) to study in Israel, if it could be done in a way that would not jeopardize security. But to assume that anyone who defends giving the security agencies the discretion to implement a ban based on their conclusion that security can't be guaranteed, at least at an acceptable price, is defending racism, is simply uncalled for.

Do You Want To Be a Law Professor?

I'm about to return from a long blogging hiatus, but let me begin with an announcement that may be of interest to those who plan a career in legal academia. Duke Law School has established a program to bring aspiring law teachers into the law school as visiting assistant professors. Visiting assistant professors spend two academic years at the law school (to give them time to work on scholarship in anticipation of their entry on the law school teaching market). Each visiting assistant professor is provided with an office and is invited to participate in faculty activities open to visiting professors. Each has a very light teaching load – one course per year. Selection for participation in this program is competitive, based on potential for success in an academic career. The website for this program is at


Future of NSA Surveillance Legislation: President Bush has urged the lame-duck Congress to pass legislation restructuring the Foreign Intelligence Surveillance Act and explicitly permitting the NSA Terrorist Surveillance program. As you might expect, Democratic leaders are, um, unenthusiastic about the plan: they have suggested that they'll filibuster any attempt to pass the legislation before the new Congress.

  Today the AP is reporting that the Bush Administration isn't giving up:
  The Bush administration has a backup plan. In speeches over the next few weeks, the Justice Department will launch a new campaign for the legislation by casting the choice as one between supporting the program or dropping it altogether - and appearing soft on al-Qaida.
  Attorney General Alberto Gonzales will make the eavesdropping program the focus of a Nov. 18 speech at the U.S. Air Force Academy. Kenneth L. Wainstein, assistant attorney general for the national security, will make a similar pitch Wednesday to the American Bar Association.
  The problem with this "backup plan," it seems to me, is that authorizing the Terrorist Surveillance Program is only one of several goals of the NSA legislation. The legislation does much more than authorize the program; it amounts to a dramatic shift in the relationship between executive and legislative power in the area of intelligence surveillance, and authorizing the TSP is only one consequence of that shift. I hope that Gonzales and Wainstein won't suggest that the choices are to pass this particular legislation or shut the program down. There are a lot of other options.

The Georgetown "Apostles":

This is cool.


Friday, November 10, 2006

Payment for Organs, Medical Self-Defense, and the Risk that the Poor Would Be Unduly Pressured Into Selling Organs:

I continue the excerpts from my Medical Self-Defense article, by rebutting arguments that banning payment for organs is necessary to avoid very grave harms. In this post, I deal with the argument that banning payment is needed to keep poor providers from being improperly exploited. In earlier posts, I've discussed the risk of organ robbery, and the argument that banning payment is needed to keep rich patients from "jumping the queue." In future posts, I deal with the argument that organ payment bans are needed to avoid supposedly inherently improper "commodification" of the human body, and with some other arguments that have come up in the comments. As before, please recall that the footnotes are available here, so if you wonder where I got some of the data, you might check there first.

Note also that this argument is a small part of what must be at most a 30-page essay; I thus can't get into it in too much detail. At the same time, I may have room to add a few paragraphs here or there, so if you think there are important items that need adding, I'd love to hear about that.

Some argue that allowing organ sales would unduly pressure poor providers to put their health and their lives at risk. Yet the risk is modest. Giving a kidney carries a 0.03% risk of death or irreversible coma, a less than 2% risk of complications, and some unknown but not high increase in susceptibility to kidney disease. Giving part of a liver (livers regenerate, so giving part is possible) has been associated with a 0.25% incidence of provider death, plus some risk of nonfatal complications. Marrow donation is safe, though temporarily painful.

Such risks may justify mandatory counseling, waiting periods, and requirements that part of the compensation include insurance against medical complications. [Footnote: These regulations may slightly increase the cost of organs, but likely not enough to substantially burden recipients’ self-defense rights.] But they surely don’t justify the current ban, which applies even to compensation for cadaveric organs. [Footnote: Allowing compensation for cadaveric organs would actually help protect the health of living donors, because it would make living donations less necessary.] And in my view they are too small to justify even a ban limited to organs provided by the living. If someone thinks the prospect of making tens of thousands of dollars is worth a small health risk, the government’s interest in protecting him against being overtempted by the money shouldn’t suffice to trump the medical self-defense rights I’ve discussed.

Yet even if I’m wrong, recognizing that the organ sales ban limits patients’ rights should invalidate such a serious burden on their rights if the law can prevent the harm through lighter burdens. For instance, the law might exclude living providers who we think are unduly tempted by a $30,000 per-organ payment -- say, the very poor (perhaps they’re too desperate), young adults aged 18 to 24 (perhps they’re too present-centered), or poor parents of minor children (perhaps they may feel unduly pressured to risk their health for the sake of feeding their family). [Footnote: Even under the current system, there’s often strong family pressure on people to donate organs for relatives (even ones to whom the provider might not feel close). This isn’t identical to the pressure of an offered $30,000, but in many ways it might be stronger. Allowing compensation for organs will diminish this pressure, as more non-relative organs become available.] Better a small decrease in potential organ providers than the large decrease caused by today’s total compensation ban. And even these exclusions may leave enough providers to supply the medical self-defense needs of all Americans whose organs are failing.

True, some might balk at such limitations. Aren’t 21-year-olds adult enough that we shouldn’t treat them as second-class citizens who can’t make intelligent choices? Why should very poor people, or people who are trying to improve their children’s lives, be denied a money-making option that richer people have -- and be denied it precisely because the money is especially valuable to the poor and to parents?

But if such objections are right, they only show the problem with a paternalistic system that interferes with recipients’ self-defense rights and providers’ freedom of choice. The response to these objections should be to let all adult, competent would-be organ providers decide whether to sell their organs -- as they now have the right to decide whether to give the organs away -- not to bar everyone from doing so.


"Naked Man Arrested for Concealed Weapon":

Yep, that's exactly where it was. Police comment, "You can't get much more concealed than that."


Crescat and Wikipedia by Holbo:

This is beautiful. Be sure and read the updates. And the comments.

Related Posts (on one page):

  1. Crescat and Wikipedia by Holbo:
  2. Crescat Sententia has moved:

Happiness Is . . .

. . . divided government. I must say that I'm pretty happy about Tuesday's results, because it returns us to the state in which I think we function best: with Congress and the Presidency in the hands of different parties. It's more common than one might suppose; in 34 of the 54 years since Eisenhower was elected for his first term ('52), at least one branch of Congress was in hands different than the executive branch, and for my money the years in which that has not been the case (60-68, 76-80, 93-94, and 2001-06) have not been distinguished by great statesmanship or great policy-making. It's something of a cliche, I know, but it's also true -- when the government's divided, everybody is fighting for the Center, and the Center is the place, in my book, where solutions are most likely to be found to most problems (if they can be found at all).
[Welfare reform is probably the best illustration of the phenomenon; Clinton never gets that through a Democratic Congress, because it pisses off too many of the Democrats' core constituents. But they need the Center -- and now, 10 years on, it looks like they've got it -- temporarily, at least].
It is weird -- to me, anyway -- to contemplate that this result is precisely the one that parliamentary systems cannot ever reach (because by definition the executive and legislative branches must all be in the same hands).


Payments for Organs, Medical Self-Defense, and the Risk of the Rich Buying Up All Available Organs:

I continue the excerpts from my Medical Self-Defense article, by rebutting arguments that banning payment for organs is necessary to avoid very grave harms. In this post, I deal with the arguments that banning payment is needed to keep rich patients from "jumping the queue." I've already discussed the risk of organ robbery; in future posts, I deal with the arguments that banning payment is needed to keep poor providers from being improperly exploited, or to avoid supposedly inherently improper "commodification" of the human body.

As before, please recall that the footnotes are available here, so if you wonder where I got some of the data, you might check there first.

[C]onsider the concern that allowing payment for organs would let rich patients buy up all available organs, and leave poorer patients without the chance of a transplant. This result can similarly be avoided with regulation rather than prohibition.

Organ transplants are expensive. They are already available only to those who have health insurance, government-provided health care, or their own funds. All people, rich or poor, who are up for transplants thus already have some health care funders paying for their care.

And long-term care used while transplants are unavailable is even more expensive than transplants; for kidneys, transplants cost on average about $100,000 less than long-term dialysis. Health care funders would save money by paying up to $100,000 per kidney, again whether the patient is rich or poor. This means we can still maintain the current need-based system, but just have the health care funder for each person who’s next in line pay for the person’s new organ; the result will likely be savings for the funders, a greater pool of available organs, and no extra advantage for the rich.

Even if for some organ, transplants wouldn’t save money, and the health care funder would have to pay $30,000 per organ to compensate providers, this will hardly be a huge burden to absorb. Each year, about 15,000 Americans are added to the nonkidney transplant waiting lists; even if that number doubles once organs becomes more available, that would still only constitute .012% of the 250 million Americans with health insurance. If each organ cost $30,000, and this price wasn’t offset by any savings in alternative treatment costs, this would mean an increase in insurance costs of $4 per year per insured.

The “rich outbidding others” concern only arises if (1) the rich or their insurers pay so much that other health care funders can’t keep up, and (2) the other funders’ payments don’t suffice to make enough organs available for all patients. Even if we think this is likely -- if we think the rich would pay $200,000 per kidney, other health care funders wouldn’t pay more than $100,000, and this payment wouldn’t yield enough organs for everyone -- this only supports capping payments at the level that all funders would pay, likely the level at which they’ll still be saving money by getting an organ instead of paying for long-term dialysis.

Of course, even the lesser burden created by a payment cap may still be substantial, if the capped payment yields fewer organs and thus leaves some extra people on the waiting list. And this burden may be improper if we conclude that preventing inequality isn’t reason enough to interfere with medical self-defense. Where other matters -- private schooling, hiring a criminal lawyer, most forms of free speech, hiring of guards, spending money on highest-quality medical care -- are concerned, we generally don’t have the government impose such payment caps, despite egalitarian concerns.

Part of the reason for this is a general respect for property rights, notwithstanding the inequality they necessarily cause, and the view that substantive rights (to educate one’s children, speak, get an abortion, or hire a lawyer) include the right to spend money to exercise the right. And part is the fact that there’ll be much less provision of valuable services, such as education, legal assistance, or medical care, if those services must be provided subject to a price cap. Equality achieved by leveling everyone down to the same low protection is often, at least in the organ transplant context, the equality of the graveyard.

Nonetheless, perhaps I’m wrong: Perhaps the interest in keeping the rich from getting preferential access to organs is strong enough to trump the medical self-defense right, and would therefore justify barring rich patients from paying extra for such organs. But this equality interest can justify only a cap on payments to organ providers, not the much more burdensome total ban on such payments.


Thursday, November 9, 2006

Payments for Organs, Medical Self-Defense, and the Risk of Organ Robbery:

I continue the excerpts from my Medical Self-Defense article, by rebutting arguments that banning payment for organs is necessary to avoid very grave harms. In this post, I deal with the risk of organ robbery; in future posts, I deal with arguments that banning payment is needed to keep rich patients from "jumping the queue," to keep poor providers from being improperly exploited, or to avoid supposedly inherently improper "commodification" of the human body.

Throughout all this, remember: The constitutional, moral, and policy question isn't just whether some possible harm may flow from payment for organs, but rather whether avoiding the harm is reason enough to interfere with people's right to protect their own lives, and to support a system under which thousands of people die each year -- the best source I could find reported 8000 deaths -- for lack of an available organ.

The risk of organ robbery, for instance, cannot justify the ban on compensation for organs. Consider by analogy the risk that some will mask murder by falsely pleading self-defense. The risk might justify rules requiring that defendants prove self-defense by a preponderance of the evidence, though such rules burden people’s legitimate self-defense rights by raising the risk that legitimate defenders will be erroneously convicted. But the risk doesn’t justify flatly rejecting self-defense, even though such a rejection may more efficiently deter and punish murders; courts must still resolve self-defense claims case by case. Some sacrifice of the interest in preventing murder of people who are falsely said to be attackers must yield to the constitutional and moral interest in preventing murder (or rape or serious injury) of people who are truly being attacked.

The same preference for case-by-case identification of abuse rather than blanket prohibition of a form of self-defense should apply to the similar argument that paying for organs will prompt murder of people for their organs. There’s no need to flatly ban compensation, when regulation of organ transfer could do a very good job, for instance if the law required that (1) all organs be extracted by a well-established hospital, (2) a living organ provider, or the relatives of a deceased provider, approve the provision by signing a document in front of some official, (3) the provider’s blood sample be taken and securely stored so the organs’ DNA can be matched against the provider’s, and (4) all organ transfers be tracked, and done among well-established institutions. [Footnote: The law might also bar importation of organs from countries where these rules aren’t followed. Allowing a regulated organ market may also dry up the international black market in organs, which exists largely because dying people can’t buy organs legally.] And if some rare transplant-related murders still happen despite this, that isn’t reason enough to maintain a system that causes 8000 deaths a year through lack of available organs.

[Footnote: A body’s organs, put together, are unlikely to be worth more than $100,000. Only very rare American doctors would risks punishment for conspiracy to murder for $100,000, especially when organs are closely tracked. Heirs, to whom $100,000 might be worth more, might still kill a spouse, parent, or child to sell off the organs. But this is just a rare cousin of the existing temptation to kill a relative to collect insurance or inherit property, yet we don’t ban life insurance or inheritance, relying instead on the criminal law to deter the murder (especially because the greedy relatives know they’ll be among the first suspects).... ([T]he average American life insurance policyholder has about $150,000 in coverage); ... the median net worth of American families in which the family head is 45 or older is over $150,000.) Even a risk of providing an incentive to murder isn’t enough to justify interfering with families’ economic well-being—and neither should it be enough to interfere with organ recipients’ ability to protect their lives.

The risk that payment for organs will give some an incentive to commit suicide so as to leave money to their families, is likewise just a rare analog of the incentive provided by life insurance. Many life insurance policies cover suicide, especially when the suicide is more than two years after the policy is bought.]


"Republicans Blame Election Losses On Democrats": Read about it in The Onion, via Kos.

Medical Self-Defense and Bans on Payment for Organs:

As promised, I'm moving on to what is likely the most controversial part of my Medical Self-Defense article -- that bans on payment for organs violate patients' medical self-defense rights (which I argue are both constitutional rights and moral rights that legislatures ought to respect).

Here's the argument that the right is indeed implicated here, and that bans on payment for organs are therefore presumptively unconstitutional, at least unless the bans are the least burdensome means of avoiding very serious harms. In the next few days, I'll respond to some arguments that the bans are indeed necessary to avoid such harms.

To live, Olivia needs a kidney transplant. Though kidney dialysis is keeping her alive for now, each year on dialysis she faces a 6% risk of death: If Olivia is in her twenties, her expected lifespan on dialysis is 30 years less than her expected lifespan with a transplant.

But Olivia is one of the 67,000 people on the American kidney transplant waiting lists. (Twenty five thousand more wait for other organs.) The median wait for adult recipients added to the list in 2001-02 was over four years. Each year, only 6500 living Americans donate kidneys, and only 45% of the 26,000 usable cadaveric kidneys -- kidneys gathered from the bodies of people who die from accidents or other causes that leave their organs young and healthy -- are donated.

Nor should this shortage be surprising: Since 1984, “receiv[ing] or . . . transfer[ing] any human organ for valuable consideration for use in human transplantation” has been a federal felony. Price controls diminish supply. Setting the price at zero diminishes it dramatically.

Lack of compensation naturally makes living donors less likely to incur the pain, modest risk, lost time, and lost wages that accompany extraction of an organ. The relatives of the recently dead have less to lose tangibly from authorizing extraction of the decedent’s organs; but even they may be put off by what strikes many as a macabre idea, may refuse consent if they’re not positive what the decedent wanted, or may not want to discuss the matter in their time of grief. [Footnote: Similarly, people who don’t sign a donor card may be turned off for emotional reasons, though far less intense ones. The prospect of essentially getting a free modest life insurance policy for one’s relatives may be enough to help overcome such emotional objections.] The prospect of (say) $100,000 [for all their organs, to be used] for their children’s college education[,] may lead them to overcome these barriers. [Footnote: Many people, of course, wouldn’t sell a kidney during their lives, even if you offered them $100,000. But that’s not a problem for an organ market; even if only 0.01% of adult Americans are willing to sell an organ each year, that would still bring an extra 25,000 organs into the system every year -- likely enough to clear out the waiting list, when added to the increased number of available cadaveric organs.]

Some people do donate organs. Though living donations are almost always for relatives, friends, or other known recipients, a few living donors (1.5% of the total) and many next-of-kin of the recently dead donate to anonymous strangers.

Yet kindness to strangers is generally not as strong a motivation as the desire for financial reward, or a combined desire to help strangers and at the same time put money aside for your children’s education. [Footnote: The concern about the children’s education may be especially strong if the organ provision is made possible by the death of a parent who was the children’s main source of support, and the spouse is now facing raising the children alone.] We pay hospitals and surgeons well for their parts in the transplant. If we didn’t, there’d likely not be nearly enough transplant services provided, though many hospitals are charitable institutions and many doctors routinely donate their time to free medical care. Why should we expect organ suppliers to provide enough organs based solely on charity to strangers? We’d likely get far better results if we offered organ providers compensation -- or, more precisely, offered them the choice of keeping the compensation, forgoing it, donating it to a familiar cause of their choice (for instance, their church) rather than to a total stranger, or spending it on their children.

Olivia is little different from Alice. To defend their lives, both need medical assistance. If the government may not interfere with Alice’s getting this assistance, even in the service of protecting the life of a viable fetus, it shouldn’t be allowed to substantially restrict Olivia’s ability to get such assistance -- at least absent evidence that Olivia’s actions would cause grave harm that can’t be averted any other way. Limits on Sales as Substantial Burdens: So though the organ sales ban isn’t a total transplant ban, it is a substantial obstacle to people’s medical self-defense. It substantially reduces the number of available organs, and substantially increases the chance that the recipient will die before a matching organ is found.

Where most other constitutional rights are concerned, bans on using money (either from your bank account or from an insurance policy that you’ve bought) to help exercise a right are obviously substantial burdens on the right. Say a legislature let people privately educate their children, engage lawyers in their criminal cases, or get abortions -- but only if these services were provided free. Of course this payment ban would constitute a substantial burden on the underlying constitutional right: It would dramatically reduce the number of private schools, criminal defense lawyers, and abortion providers, and some people would thus be unable to exercise the right. Restrictions on paying money to speak have likewise been repeatedly struck down, because they burden speakers’ ability to effectively convey their message. And if a ban on paying for one scarce input into the exercise of a constitutional right (teachers’, lawyers’, doctors’, or authors’ time, or space for a political ad in a newspaper) substantially burdens the right, then a ban on another scarce input (providers’ organs) does as well.

A few such restrictions on paying money to exercise a right may be constitutional because there are very strong government interests justifying them. That was the Court’s reason for upholding some modest restraints on spending money related to candidate elections.

A few other restrictions may be constitutional when the right is aimed at promoting goals that are served only by noncommercial exercise of the right: Consider the Compulsory Process Clause right to subpoena witnesses, the Due Process Clause right to call willing witnesses in criminal cases, and the Lawrence v. Texas sexual autonomy right. [Footnote: Lawrence does protect purely casual noncommercial sex, but I think it does so because the law can’t distinguish such sex from emotionally significant sex.] I assume the law could ban paying witnesses or paying for sex on the grounds that such conduct tends not to advance the constitutional purpose of the rights -- procuring accurate testimony and helping develop emotional relationships. [Footnote: If I’m mistaken on this, then presumably the reason for upholding the bans on payment would be that there’s a very strong government interest justifying the ban.] Paid-for testimony and paid-for sex aren’t constitutionally valuable in the way that the unpaid conduct is.

But paid-for books, educations, legal counsel, abortions, and organs are constitutionally valuable, because they do serve the purposes of the underlying rights -- and more reliably than if these goods or services could only be provided for free. “It is not from the benevolence of the butcher, the brewer, or the baker that we expect our dinner, but from their regard to their own interest.” Relying solely on the benevolence of lawyers, doctors, teachers, or organ providers likewise offers little protection for our rights. So long as a ban on compensating organ providers keeps many patients from getting the organs they need to live, it constitutes a substantial burden on the right to medical self-defense. Limits on the Right: The self-defense right, like other rights, isn’t absolute. Modest regulations (informed consent requirements, waiting periods, and the like) that don’t substantially interfere with the right should be permissible. The right may well be limited to situations where self-defense is necessary to avoid threat of death, or perhaps of very serious injury. The right is inherently limited to cases where it doesn’t directly infringe the rights of others who are not threatening the person’s life.

Moreover, the self-defense right may be limitable in other ways, if the harm from allowing it is too great; in the lethal self-defense context, for instance, this is the foundation for many pro-gun-control arguments. [Footnote: I’m skeptical of these arguments on empirical grounds, and I think it should take a great deal of harm to justify interfering with people’s right to defend themselves, but I agree that in principle the right to possess the tools for lethal self-defense may be limitable. To give an example, felons may need to defend themselves at least as much as nonfelons; yet restrictions on felons’ (especially violent felons’) gun ownership are constitutional and morally permissible.] Likewise, the D.C. Circuit in Abigail Alliance remanded the case for the district court to hear arguments about whether the FDA rules were narrowly tailored to some compelling government interest.

Yet, as the abortion-as-self-defense and lethal self-defense examples show, self-defense ought only be limitable for the most pressing reasons. Protecting a viable fetus isn’t enough. Protecting the life of an animal isn’t enough. Protecting the life of an attacker, even one who’s not morally culpable (for instance, because he’s insane) isn’t enough. These reasons can’t justify denying people the right to protect their own lives. And even if there is a strong enough reason for restricting self-defense rights, the restriction ought to be narrowly limited so as to minimize the burden on the rights.


Survey For Current and Former Internet Poker Players: A student of mine, Ben Maro, is writing a paper on the deterrent effect of the new Unlawful Internet Gambling Enforcement Act, the recently passed law prohibiting Internet gambling transactions. He has designed a survey to get a sense of whether the Act has actually deterred the playing of one specific type of online gambling, Internet poker. If you play Internet poker, or used to before the new law was passed, and you live in the United States, please consider taking the survey. We realize that the results are going to be highly unscientific, but we figured that even an unscientific survey might be better than none at all.

  You can take the survey here.

BAMN Files a Lawsuit Against the MCRI

claiming that the anti-preference initiative violates the Equal Protection Clause of the Fourteenth Amendment (in part because it bans only certain types of preferences), is preempted by federal civil rights laws (because it prevents universities from using the only effective technique they have at hand to integrate), and violates the First Amendment of public universities as recognized by Grutter "to determine their academic standards and to determine the criteria for admission to the university." The latter argument is especially interesting because if it emerged victorious it would, e.g., implicitly call for the reversal of the Bob Jones University and Grove City College cases, and more generally allow any public or private university to discriminate in any way so long as they could claim they were doing so for "academic" reasons. (Okay, for public universities there might be an argument that the 14th Amendment still prohibits invidious discrimination, but certainly private schools would henceforth have a First Amendment right to discriminate in admissions).

Another interesting aspect of the complaint is that all of the defendants opposed the MCRI, making one wonder if the court will allow intervenors who have an incentive to defend the law. A link to the complaint can be found on Bamn's website.


Enforcing Law Online: I have just posted a draft of a book review, Enforcing Law Online, forthcoming in the University of Chicago Law Review. It is a short review (17 pages) of the new book by Jack Goldsmith & Tim Wu, Who Controls the Internet? Illusions of a Borderless World.

  Here is the introduction:
  "Who Controls the Internet" is an entertaining and engaging book. Professors Goldsmith and Wu have written a short and accessible work that makes a straightforward and persuasive argument about the enforceability of law over the Internet. The book’s brevity and anecdotal approach means that it overlooks a lot of detail; the dynamics of Internet regulation are more complicated than this short volume suggests. Whether this is a blessing or a curse depends on the reader’s taste. It makes the book a fun read, but it also keeps the authors from grappling fully with the dynamics of the topics they cover. Either way, "Who Controls the Internet" is an important addition to the literature that deserves to be widely read.
  This review begins with a summary of the book, and next discusses the cyberutopian vision of the Internet that it targets. It then considers what seems to be the deeper question underlying the book: When can law successfully regulate the Internet? It suggests that the effectiveness of a legal regime designed to regulate Internet transactions will depend heavily on four factors: who the law regulates, the cost and political viability of enforcement strategies, how much compliance is needed for the law to achieve its goals, and which side is winning the technological arms race at any given time.
  Comments welcome, as always. Also, I'd be interested in reader feedback on the SSRN "stamp" that SSRN is now requiring on all new papers posted to SSRN. You can see it along the left-hand side of each page. SSRN says that they intend this at least in part as a service to readers, but that they may remove it if it annoys readers instead. I'd be interested to know if readers like the stamp, or would rather have SSRN remove it.

Borat--An Israeli Pretending to be a Kazakh:

Having just seen "Borat," I'm afraid it turns out that the Jews have played another hoax on the Kazakh people. The Kazakh documentarian Borat is actually an Israeli! Despite his rugged Kazakh looks and cunning Kazakh accent, when he is not speaking English in the movie, he is actually speaking Hebrew! Those Jews will stop at nothing to undermine the good name of Kazakhstan.

In all seriousness, Borat is really speaking Hebrew, usually at least a rough translation of what the English subtitles say. Turns out that Sacha Baron Cohen spent a year in Israel as a young man, according to his Wikipedia biography.


Wednesday, November 8, 2006

When Oral Argument is A Crime: Would you like to argue a case at the United States Supreme Court? If you get the chance, you better hope that the Justices ask you lots of questions and keep interrupting you. Why? Well, check out 40 U.S.C. 6134:
It is unlawful to discharge a firearm, firework or explosive, set fire to a combustible, make a harangue or oration, or utter loud, threatening, or abusive language in the Supreme Court Building or grounds.
That's right: It's illegal to make an oration in the Supreme Court building! So be careful out there, folks.

Democrats Take the Senate: The Associated Press is declaring Jim Webb the victor in the Virginia Senate race, and with it, control of the United States Senate appears to have shifted to the Democrats. As I understand it, the Chairmanship of the Senate Judiciary Committee will now pass back to Vermont Senator Patrick J. Leahy.

Medical Self-Defense and a Right of the Terminally Ill to Use Experimental Medical Treatments:

So far, the excerpts from my Medical Self-Defense, Prohibited Experimental Therapies, and Payment for Organs article have focused on the established constitutional right to abortion-as-self-defense, and the established common-law, statutory, and possibly constitutional right to lethal self-defense. Now I turn to the places where my medical self-defense arguments would make a difference; I will soon turn to the most controversial item — the impropriety and unconstitutionality of the ban on compensation for organ transplants — but for now I start with a right of the terminally ill to use experimental medical treatments:

Let us turn to Ellen, who is terminally ill. Existing therapies, doctors say, are useless. An experimental drug offers some hope, and FDA Phase I tests suggest that it’s safe; but it is banned by federal drug law, because it has not yet been shown effective.

Ellen’s right to medical self-defense should exempt her — and the doctors and pharmaceutical companies whose assistance she needs — from the ban. Alice may kill her viable fetus to protect her life, and may enlist her doctor’s help to do so. Katherine may kill her attackers, whether guilty humans, morally innocent (for instance, insane or mistaken) humans, or morally innocent animals. Ellen should have at least an equal right to ingest potentially life-saving medicines, without threatening anyone else’s life.

This is not a general autonomy argument, premised on the theory that all people should be free to ingest whatever they choose into their body. Rather, it’s an argument specifically focused on the right to self-defense, a right supported both by the Court’s caselaw (Roe and Casey) and by the longstanding acceptance of the right to lethal self-defense.

What justification can the government have for limiting Ellen’s rights? Ellen’s use of experimental drugs might jeopardize what little time she has, and cost her money that may prove wasted. Yet if people may protect their lives even by taking a viable fetus’s life or an attacker’s life, they should be as free to risk their own short remaining spans in trying to lengthen those spans. [Footnote: Compare cases such as In re Guardianship of Browning, 568 So.2d 4, 14 (Fla. 1990), which conclude that where a patient has an incurable disease, the state’s interest in preserving his life isn’t compelling enough to trump the patient’s right to refuse treatment (a right protected by Cruzan v. Director, 497 U.S. 261, 278 (1990)). If the state may not use the interest in preserving life to trump the patient’s right to end his life through refusing treatment, it should be even less able to use the interest in preserving life to trump the patient’s right to try to prolong his life through experimental treatment.] Paternalistic government interests suffice where no constitutional rights are involved, but they shouldn’t justify blocking a person’s right to protect her own life.

Terminally ill patients’ right to use experimental drugs might also interfere with randomized clinical drug studies. It’s possible that so many patients will insist on getting a not fully tested but promising drug that researchers will be unable to scientifically test the drug’s effectiveness. If people can just buy the drug, they may not want to enroll in a study in which they might get a placebo instead of the drug.

Yet even if the need-to-test argument justifies some limits on the use of experimental drugs even by the terminally ill, it doesn’t mean that people lack medical self-defense rights — it merely means that these rights may sometimes be trumped by a strong enough justification. Moreover, the argument justifies limiting medical self-defense only when such limits are really necessary for conducting clinical studies, and when no other alternatives will do. For instance, if the studies require 200 patients, and there are 10,000 who seek the experimental therapy, there’s little reason to constrain the self-defense rights of all 10,000. Likewise, if the drug is being studied now only on people who suffer from a particular kind or stage of a disease, it shouldn’t be legally barred to those who would fall outside those studies in any event. If we must strip people of self-defense rights to save many others’ lives in the future, this tragic constraint should be imposed on as few people as possible and to as small an extent as possible.

There is one difference between Alice and Ellen: Ellen’s experimental therapy is much less likely to be successful than Alice’s therapeutic abortion would be. Yet there’s no reason why self-defense rights should be limited to sure self-defense. Lethal self-defense is allowed even though it is often not completely reliable — even if Katherine tries to use lethal force, she may be overcome by the home invader. Similarly, imagine a woman who is sure to die without an abortion, but who may still die even with one. Her abortion-as-self-defense right should remain even if the therapeutic abortion will increase the chance of survival only by a fairly small (or uncertain) amount. [Footnote: At most, some people might reach a different result if the fetus is likely to survive the woman’s death: As between a 100% chance of maternal survival and fetal death and a 100% chance of maternal death and fetal survival, they would choose allowing the woman to abort; but as between a 10% chance of maternal survival coupled with sure fetal death and a 100% chance of fetal survival coupled with sure maternal death, they would choose protecting the fetus. Yet even they would justify this conclusion by saying the woman’s right to self-defense is trumped by the need to protect a viable fetus’s life — not by claiming that the woman’s right vanishes because her defensive tactics aren’t certain to succeed.]

The D.C. Circuit’s decision in Abigail Alliance [which reached the same result I argue, but which was a 2-1 decision that might yet be overturned on en banc review or by the Supreme Court] rested in part on the traditionally recognized right to defend one’s own life; yet it didn’t cite the close analogy to abortion-as-self-defense, or discuss the state constitutional protections for the right to self-defense. These analogies, I think, substantially add to the case the Abigail Alliance panel made.

Finally, some might respond that courts generally shouldn’t recognize unenumerated constitutional rights. The right to abortion — even abortion-as-self-defense — ought not have been constitutionalized, they’d argue, and ought not be broadened by analogy. Lethal self-defense ought to be seen as a legislatively trumpable common-law or statutory right, not a constitutional right. Let’s stick with judicial minimalism on unenumerated rights, and leave matters to the democratic process.

This is a plausible argument, but not one the Supreme Court has adopted. The Court has continued to endorse abortion rights and family rights. It has recognized rights to sexual autonomy and to refuse unwanted medical treatment. There’s little profit in reprising the whole unenumerated rights/Ninth Amendment/substantive due process debate here. My point is simply that the Court’s process for recognizing unenumerated rights by analogy remains active, and there is a strong case for using this process to recognize a right to medical self-defense.

And regardless of whether medical self-defense should be recognized as a constitutional right, the arguments given above should offer a strong moral case for the legislature’s respecting such a right. American legal traditions properly recognize people’s rights to protect their lives, even when that requires killing. The law ought to do the same when a dying person simply seeks an opportunity to risk slightly shortening her life in order to have the chance of substantially lengthening it.

I'd love to hear people's thoughts on this. One request, though: I realize — as the last three paragraphs make clear — that there's a hot and eminently legitimate debate about whether courts should recognize unenumerated constitutional rights; and the previous posts in this post chain have drawn many comments focused on that very debate. I'd like to ask that we set aside that general issue for the comments to this post and the coming ones, simply because it has already been dealt with in such detail (and already with some repetition) in the comments. Naturally, the specific issue of whether this unenumerated right should be recognized (among many other issues) remains entirely fair game.


Libertarian Party in Montana:

Did anyone else notice that the Libertarian Party in Montana (Stan Jones, who received 3%) provided far more than the margin of victory between Tester and Burns? Assuming that the LP candidate drew more from Burns than Tester, this means that the LP essentially played a kingmaker role in creating a Democratic Senate.

As a related matter, I thought that the comments by David Boaz leading up to the election were quite provocative and challenging, especially to the Republicans. I'll be interested to see if the MSM makes anything more of this going forward.


MA Gov.-elect Deval Patrick--Enemy of the First Amendment?:

I didn't know that Deval Patrick was running for governor of Massachusetts, or I would have posted this sooner. Patrick makes a brief cameo in my book You Can't Say That!, and this cameo suggests that he has, or at least had, little understanding of, or sympathy for, freedom of speech.

The background is that during the Clinton Administration, HUD filed a series of civil rights lawsuits against community groups that opposed the placement of halfway houses in their neighborhoods. The only illegal activities the groups allegedly engaged in were such clearly protected activities as holding meetings, organizing petitions, publishing newsletters and the like. The underlying theory, however, was that, for example, by opposing a rehabilitation facility for drug addicts, the groups were violating the Fair Housing Act by making it more difficult for the handicapped (which by statutory definition includes recovering drug addicts) from getting housing.

Following truly awful publicity, HUD backed down, announcing that it would no longer investigate "any complaint . . . that involves public activities directed toward achieving action by a governmental entity or official; and do not involve force, physical harm, or a clear threat of force or physical harm to one or more individuals." More generally, HUD would no longer prosecute behavior protected by the First Amendment.

This was not good enough for then-assistant AG Patrick:

[T]he new policy was opposed by Assistant Attorney General Deval Patrick of the Justice Department, which prosecutes lawsuits under the Fair Housing Act. Patrick ignored HUD's new guidelines and ordered the Justice Department to bring new lawsuits against community activists. He contended that "Congress intended the [Fair Housing Act] to proscribe any speech if it leads to discrimination prohibited by the FHA." Two years after HUD acknowledged that prosecuting neighborhood activists for expressing their political viewpoints was unconstitutional and unwise, Patrick continued to defend the Justice Department’s attempted squelching of free speech in a Fair Housing Act case in Fort Worth, Texas. In doing so, he analogized political leaflets to baseball bats, remarking that bats “are perfectly legal too. But if you wield one to keep people out of the neighborhood, we are going to use the bat as evidence of your intent to violate the civil rights laws.” ....Luckily, the federal judge overseeing the Ft. Worth case had a better grasp of the First Amendment than did Patrick and rejected the latter’s theory. The judge held that "leafleting, petitioning, and soliciting against the placement of a group home in one’s neighborhood are actions protected by the First Amendment.

Patrick's baseball bat analogy is one of the dumbest, and scariest, interpretations of freedom of speech I've ever seen from a person in a position of federal authority. I hope Patrick's respect for freedom of speech has evolved in the meantime.

UPDATE: Of course, it's possible that Patrick didn't actually believe that any court was going to buy his argument, but instead just wanted to keep the litigation going to intimidate the homeowners. Even if the homeowners eventually emerged victorious in litigation, as they did, they still had to face the threat of prosecution and enormous legal fees. Ironically, it was Patrick who was using the metaphorical baseball bat, the threat of (state) violence, to violate the homeowners' rights.


Rumsfeld Is Out: Well, that was fast: Donald Rumsfeld is resigning. I'm most of the way through Bob Woodward's new book State of Denial, and if that book is at all accurate, this is very good news indeed. The nominee to replace Rumsfeld is former CIA chief Robert Gates; Wikipedia's entry about Gates is here.

University of Michigan to Sue to Overturn MCRI Preferences Ban:

Detroit Free Press:

University of Michigan President Mary Sue Coleman says the school will explore its legal options after the state’s voters approved a ban on affirmative action programs that offer preferences to women and minorities. Coleman says she has questions as to whether the ban is lawful, particularly as it pertains to higher education. She said this morning she will ask the courts to allow U-M to keep using its admission system for now until the question is decided.

The chances that the university would ultimately win such litigation approach zero. Any argument that UM could make that it's unconstitutional to ban affirmative action preferences in higher education (e.g., academic freedom) would also mean that it would be unconstitutional to ban discrimination more generally in higher education, and no court is going to accept such an argument. But with clever forum shopping, the implementation of the MCRI can be delayed.

Thanks to reader Hans Bader for the link.

UPDATE: President Coleman, in the midst of lengthy remarks expressing her dedication to "diversity," added, "Of course the University of Michigan will comply with the laws of the state." Her devotion to a cause she believes just is admirable, but I think it would have been appropriate for her to recognize, even if briefly, that out of a student body of 40,000, and an alumni body of hundred thousands, there are many thousands of people of good will who disagree. The actual remarks, however, suggest that the only good member of the Michigan community is someone who supports "diversity" policies.

Related Posts (on one page):

  1. BAMN Files a Lawsuit Against the MCRI
  2. University of Michigan to Sue to Overturn MCRI Preferences Ban:
  3. Michigan Civil Rights Initiative Passes Easily:

"Brooklyn-Style" Pizza:

The N.Y. Times takes a look at Domino's new "Brooklyn-style" pizza, which not surprisingly only faintly resembles actual Brooklyn pizza.

One thing the article doesn't mention, and which, as a native of Queens (right on the Brooklyn border) astounds me, is the proliferation of Domino's and (worse yet)Pizza Hut outlets throughout New York City, including Brooklyn. Okay, I'm a pizza snob. But really, in New York (outside, perhaps, Manhattan, where the pizza situation has become dire) you are rarely more than a few blocks away from at least decent New York pizza. And decent New York pizza is, for example, better than anything I'm able to find in the entire D.C. metropolitan area. Why would anyone in Brooklyn, ever order the dreck they sell at Domino's?

UPDATE: IMHO, the best pizza in Brooklyn, in order, is Di Faro's (Midwood), Tottonno's (Coney Island) and Grimaldi's (DUMBO). I like My Little Pizzeria in Brooklyn Heights/Downtown Brooklyn for a quick slice, and, if you find yourself in Queens, you can't go wrong with the unheralded but excellent Carlo's in Middle Village. Rosa's, a few blocks down, is also quite good. I used to like Gino's in Howard Beach, but had mediocre pizza there recently; a good friend is highly partial to the pizza at New Park Pizza, which unfortunately is best known for a horrible racist incident in the 1980s that tangentially involved the pizzeria.



to my Democratic friends on winning the House and, as seems likely, the Senate, and best wishes to the Democratic leadership in their legislative tasks. If they embarrass themselves like the Republicans often have in the past years, the tide may easily turn against them; but if they succeed, then voters in 2008 will quite properly reward them.


Same-sex marriage and the election (Part 2):

Much more important to the politics of gay marriage than the national election results are the results in (1) popular votes on state constitutional gay-marriage bans and (2) the results in state legislative races. Both suggest that we may be headed for more state legislative action toward the recognition of same-sex relationships in the form of civil unions and domestic partnerships (less so, for now, in the form of full marriage). This post will address the first development.

State constitutional gay-marriage bans

There are two huge stories in the votes on gay-marriage bans around the country. First, for the first time ever a gay-marriage ban has been rejected by the voters of a state, Arizona. It's not the same as an endorsement of gay marriage, but it's an unprecedented and potentially significant defeat for opponents of gay marriage. Still, I am at a loss to explain the precise reason for the result in Arizona. It could have been driven by demographics, individual state issues, differences in the pro- and anti-amendment campaigns, or the generally more libertarian political climate in the state. (By the way, I think this election could fairly be described overall as a libertarian rebellion.)

Second, average support for the bans in the seven states where they passed was down dramatically from previous elections. Here are the latest numbers on the proposed state constitutional amendments:

Arizona: Defeated 51%-49%

Colorado: Passed 56%-44%

Idaho: Passed 65%-35%

South Carolina: Passed 84%-16%

South Dakota: Passed 52%-48%

Tennessee: Passed 84%-16%

Virginia: 58%-42%

Wisconsin: 59%-41%

See here for state-by-state marriage amendment votes in this and past elections.

There are some remarkable things about these numbers. In the seven states where the amendments passed, average support was down to about 61%. That’s about 8-10% less than average support for these amendments in past elections. Of the eight states, support for the bans was held under 60% in five; that had previously happened in only one state out of twenty. Prior to this election, the low-water mark for a ban was 56% (in Oregon in 2004). Three states (Arizona, Colorado, and South Dakota) were at or under that mark this year.

What produced these surprisingly good results for gay-marriage supporters? Several things may be happening:

(1) Voters are getting habituated to the idea of gay marriage, even if they don’t quite accept it, and so are less likely to vote to ban it (and similar unions).

(2) Voters are starting to catch on that these proposed amendments are about much more than gay marriage. They ban civil unions (which pluralities now favor), domestic partnerships, and potentially much, much more. And they do not simply stop judges from imposing gay marriage; they apply even to state legislative action.

(3) Individual state races and issues skewed the results. South Dakota, where support for the amendment was an astonishingly low 52%, is the most obvious example. There, the result was probably affected by the presence of a sweeping anti-abortion ballot measure, which brought out lots of pro-choice and anti-anti-abortion voters.

(4) It was a very bad night for Republicans for reasons unrelated to gay marriage (the Iraq war, perceived corruption), which produced a drag on support for the amendments. In almost every state (except Arizona) the marriage bans did better than most Republicans in state-wide races. Virginia is the clearest example of this, where the amendment passed with 59% support yet amendment supporter Sen. George Allen got just 49%. Gay-marriage bans can’t save Republicans when the tide is this overwhelming.

Gay-marriage supporters will emphasize the first two factors; opponents will emphasize the second two. I do think it’s fair to say that gay-marriage bans are starting to fizzle as a potent political weapon. Just as gay-marriage litigants are running out of friendly state judiciaries, gay-marriage opponents are starting to run out of very friendly state electorates (though I do think we’ll end up with about 32-35 states with amendments when all is said and done).

The declining potency of this issue will likely have two effects. First, it will probably embolden more state legislators to reject state amendment proposals, preventing them from reaching the ballots in states where legislatures must approve them.

Second, the erosion of public support for marriage bans also suggests, I think, that both sides are going to have to start focusing more on legislation in the states. Neither will be able to deploy the trump card of judicial supremacy, on the one hand, or constitutional amendment, on the other. That’s a healthy development since it means we'll have more actual legislative debate and compromise on the issue, outside of the cool confines of judicial chambers and the hothouse of popular referenda. It also means incremental change will be permitted, where judicial action and constitutional amendment on this issue entail a priori, all-or-nothing policymaking.

On that score, this election produced signs that the tide is turning in the legislative arena toward more recognition of gay relationships. That’s the subject of the next post.

Related Posts (on one page):

  1. Same-sex marriage and the election (Part 2):
  2. Same-sex marriage and the election (Part 1):

In anti-Republican deluge, Second Amendment just gets a little damp:

In an article this morning for National Review Online, I analyze how the Second Amendment fared in last night's election. Results: Almost no net change in Senate seats (-1) or governorships (-1.5). In the House, a loss of 14 seats — less than half the size of the 32-seat Republican loss. The incoming freshman classes in the U.S. House and Senate include a plentiful supply of pro-gun Democrats, a very important positive long-term trend.

That said, Speaker Pelosi and Judiciary Chair Conyers will make it nearly impossible to pass constructive legislation on the Second Amendment issues, except perhaps as appropriations riders.

Perhaps the starkest difference between the Republican results and the Second Amendment results were in Ohio. There, pro-gun Democrats picked up two formerly Republican open seats in the House. Three endangered pro-gun Republican Congresspersons defeated anti-gun Democratic challengers. Anti-gun retiring Republican Governor Bob Taft was replaced by strongly pro-gun Democrat Ted Strickland, while anti-gun Republican Attorney General Betty Montgomery was defeated by pro-gun Democrat Mark Dann. The Buckeye Firearms Association reports that in the Ohio House, "the pro-gun majority is firmly in place", and the state Senate has improved significantly. Prospects look good for progressive legislation in Ohio, starting with statewide preemption of local gun bans.

I'll be talking about the election results on the NRA News radio program tonight.

ONE MORE THING: Today's Atlanta Journal-Constitution includes an op-ed I wrote on the dangers of mandatory gun lock laws.


"the duty of the losing party": There are better and worse ways to lose elections. This statement by Mike Pence (via Glenn & the Corner) seems to be among the better.

WASHINGTON, DC - U.S. Congressman Mike Pence released the following statement today on the GOP's midterm election loss:
Election day 2006 will be remembered as a turning point in American political history. Twenty-five years after the Reagan Administration came to Washington with a conservative agenda of limited government, the American people chose a different course.

It is the duty of the losing party in a free election to humbly accept defeat and to acknowledge that the people are sovereign in the People's House.

As we examine the results of this election, it is imperative that we listen to the American people and learn the right lessons.

Some will argue that we lost our majority because of scandals at home and challenges abroad. I say, we did not just lose our majority, we lost our way.

While the scandals of the 109th Congress harmed our cause, the greatest scandal in Washington, D.C. is runaway federal spending.

After 1994, we were a majority committed to balanced federal budgets, entitlement reform and advancing the principles of limited government. In recent years, our majority voted to expand the federal government's role in education, entitlements and pursued spending policies that created record deficits and national debt.

This was not in the Contract with America and Republican voters said, "enough is enough."

Our opponents will say that the American people rejected our Republican vision. I say the American people didn't quit on the Contract with America, we did. And in so doing, we severed the bonds of trust between our party and millions of our most ardent supporters.

As the 110th Congress convenes next year, Republicans must cordially accept defeat and dedicate ourselves to advancing our cause as the loyal opposition knowing that the only way to retake our natural, governing majority, is to renew our commitment to limited government, national defense, traditional values and reform.


Ten states pass anti-Kelo referendum initiatives:

During this fall's elections, voters in twelve states considered anti-Kelo referendum initiatives that sought to ban or curtail the condemnation of private property in order to promote "economic development." Ten of the twelve passed, all by lopsided margins ranging from 55% to 86% of the vote. For a complete list, see here.

The only two anti-Kelo initiatives that failed were proposals in California and Idaho that were tied to complex and highly controversial "regulatory takings" proposals which would have required the government to compensate landowners whenever the value of their property is reduced by various types of government regulations; a stand-alone regulatory takings initiative was also defeated in the state of Washington. Tying anti-Kelo referenda to the much less popular regulatory takings referenda has turned out to be a serious political mistake.

More importantly, of the ten anti-Kelo initiatives that passed, at least six (Arizona, Florida, Louisiana, Nevada, North Dakota, and Oregon) and possibly seven (counting Michigan) are well enough worded to provide strong protection to property owners that would succeed in banning all or most economic development takings in those states. This is a much better batting average than that of post-Kelo reforms enacted by state legislatures, most of which tend to provide little or no protection for property owners (see, e.g., my analysis here, here, and here, and Tim Sandefur's excellent article on the subject).

Why are the anti-Kelo referendum initiatives so much more effective than most of their legislative cousins? I suspect because the former are usually drafted by property rights activists rather than by state legislators. As I discuss in more detail in the posts linked above, politicians often have incentives to give voters the impression that they are "reforming" eminent domain without actually doing so. Activist groups have few if any such incentives and the reforms they draft are therefore likely to have fewer loopholes and be more effective in eliminating economic development takings.

If time permits, I hope to produce a more detailed summary of the state of post-Kelo reform soon.


The Fall of Milberg Weiss:

The Nov. 3 Fortune has a gripping account of the fall of leading plaintiffs' class action firm Milberg Weiss. My Yale classmate and current colleague (as a visiting professor) Tony Sebok comments at Findlaw.


Same-sex marriage and the election (Part 1):

On the eve of the election, anti-gay-marriage commentator Stanley Kurtz assessed the likely impact of the results on the future of same-sex marriage politics. First, he suggested, there were important immediate implications for New Jersey, where the state supreme court had just ordered the legislature to grant equal rights to gay families.

If Menendez wins by four points or more, that sends the message that New Jersey’s gay marriage decision had no harmful political effect on the Democrats. And that will tend to free New Jersey state legislators to risk approving full-fledged same-sex marriage. If, on the other hand, Kean defeats Menendez, that will be read as a message from New Jersey voters rejecting the court decision. Victory for Kean would maximize the chances that New Jersey’s state legislature would approve “only” civil unions. And a big Kean upset might even push Democratic legislators, fearing for their seats in 2007, to join with Republicans to approve a state constitutional amendment defining marriage as the union of a man and a woman. So a great deal hangs on the outcome of the Kean-Menendez battle.

Menendez won, 53%-45%. That's double the margin that Kurtz predicted would "free New Jersey state legislators to risk approving full-fledged same-sex marriage" when they take up the issue in the next six months.

Second, he suggested a possible national impact:

Although there are many more complicating factors at the national level, the same political calculus does apply (or will be applied) nationally, though certainly to a lesser degree. If, in the wake of the New Jersey decision, the Democrats take over both the House and the Senate, it will be said that the gay marriage issue has lost its power to motivate voters. That in turn will embolden state judges to follow New Jersey’s lead, and will make a Democratic congress far less likely to pass a federal marriage amendment in the event that New Jersey or some other state provokes a crisis by legalizing gay marriage, thus becoming a national gay “Las Vegas” some time in the next two years.

If, on the other hand, the Republicans come back at this late date and narrowly retain both houses of Congress, it will be said that the New Jersey decision helped to energize the voters. That will tend to keep activist judges bottled up, and will lay the political groundwork for a federal marriage amendment, if and when gay marriage spreads to more states.

The Democrats took the House. The Senate is up for grabs, but the Democrats have a slight edge.

There were even bigger and more direct messages about the politics of gay marriage in this election. I'll have more to say about that soon.

Related Posts (on one page):

  1. Same-sex marriage and the election (Part 2):
  2. Same-sex marriage and the election (Part 1):

Michigan Civil Rights Initiative Passes Easily:

The Michigan Civil Right Initiative, banning race and sex preferences in higher education and government contracting, passed easily, with 58% of the vote:

Mary Sue Coleman, president of the university [of Michigan]issued the following statement Tuesday night — before final results were in: "We defended affirmative action all the way to the Supreme Court because diversity is essential to our mission as educators. We must keep the doors of opportunity open to all. Regardless of what happens with Proposal 2, the University of Michigan will remain fully and completely committed to diversity. I am determined to do whatever it takes to sustain our excellence by recruiting and retaining a diverse community of students, faculty and staff."

One thing obviously missing from President Coleman's statement is a commitment to obey the law. Hopefully, she will make it clear that future diversity efforts will be pursued in accordance with Michigan law. To his credit, Dean Evan Caminker of the law school made it clear many months ago that the law school intends to obey the law:

Caminker said the Law School would not break the law if it passes in Michigan. "What is clear is that if a school is disabled by state law from taking race into account, it is disabled from taking race into account, period," Caminker said.

I tend to think that measures like the MCRI are too heavy-handed, but I have no doubt that state officials are under an obligation to abide by them.


Is the Senate within the Margin of Litigation?

Rick Hasen explores this question on the Election Law blog.


Evolution Wins in Ohio:

How to teach evolution and whether to teach "Intelligent Design" were big issues in the race between incumbent Deborah Owens Fink and challenger Tom Sawyer for the 7th District seat on the Ohio Board of Education. Fink argued there was no scientific consensus in support of the theory of evolution, and thought state education standards should reflect that, if not also call for the mention of non-scientific alternatives. Sawyer was supported by a large group of scientists, including many of my colleagues at Case, who sought to ensure that Ohio science education standards would be science based.

Like the bitter school board battles in Kansas last summer, the Ohio board races produced high drama. Voters were treated to the unusual sight of Kenneth Miller, a nationally renowned biologist, stumping like a ward-heeler for pro-evolution candidates, and Pastor Ernie Sanders, an evangelical radio host, blasting Sawyer as a merchant of sin.

In the end, however, Sawyer won handily. This was not an isolated event, as it appears that the pro-science/pro-evolution candidates won across the board.

Related Posts (on one page):

  1. Evolution Wins in Ohio:
  2. Evolution on Election Day:

Ohio Voters Choose Dem Pols, GOP Judges:

The GOP has dominated Ohio politics for years. Going into last night, there were no statewide elected Democrats other than one member of the state Supreme Court (for which party affiliation is not noted on the ballot). No longer. The Democrats won all but one of the non-judicial statewide races. Given that most of these races were not particularly close, it seems clear that voters were sick of the corruption, incompetence, and unprincipled governance of the Ohio GOP during the Taft years.

Interestingly enough, Republicans won both state Supreme Court races, creating an all-Republican Court. One candidate, Terrence O'Donnell, was running for reelection. The other, Robert Cupp, won an open seat. The Court's lone Democrat, Justice Resnick, had not sought reelection, largely due to a DUI scandal. While the court will continue to be divided along ideological lines on many issues, such as school funding and tort reform, many cases that would have been 4-3 are now likely to be decided 5-2.

What explains the GOP success in judicial races? Is it due to judicial candidates lack of party identification on the ballot? Or is it something else peculiar about judicial races, such as the lack of issues (or, perhaps, lack of media attention)? Or do Ohio voters intuitively prefer more conservative jurists even as they give more liberal politicians a try? I am not sure, but it is an interesting aspect of last night's outcomes.


Executive Power and the Election of 2006: With the Democratic takeover of the House, and the continuing possibility of a Democratic takeover of the Senate, we're obviously going to see a lot more friction between Congress and the President in the next two years. Am I right in thinking that this is likely to lead to a series of new judicial precedents on the scope of executive power?

  The GOP Congress was eager to get along with the President, but the Democratic House (and possibly Senate) obviously won't be. For example, I assume the House will have lots of hearings and demand lots of documents from the Executive; when this happens, we can be pretty confident that the Executive will assert broad claims of executive privilege. These claims presumably will be resolved by the courts, and neither side is likely to back down. Both will want to litigate the issue to the fullest.

  I would guess, on the whole, that this isn't good news for proponents of strong executive power. I think it's fair to say that the Executive Branch's credibility on executive power claims is relatively low these days among the folks with Article III appointments. For better or worse, this isn't the most friendly judicial environment in which to push a strong Article II. Of course, a single retirement might alter the balance at the Supreme Court; the Hamdan Five might become four. However, the confirmation process to fill an open seat would need to go through the new Senate first.

Where Was Osama?: Is anyone else surprised that there was no pre-election message from Osama bin Laden this time around? I don't know if it means anything, but it seems worth noting.

Missouri Polls Closed for 5 Hours, Still not one vote from Kansas City.--

The Missouri polls have now been closed for 5 hours. There are still no votes from Kansas City.

Overall, nearly 2/3rds of the Missouri precincts are reporting.

Democracy at work!

Tuesday, November 7, 2006

Webb leads in VA counties with 3 or more precincts still out.

The votes are coming in very slowly now.

One county in VA (Craig County) has no reported votes yet (11 precincts). But Webb leads in all other VA counties with 3 or more precincts still out. I don't know enough about Virginia (I lived there only 2 years) to know whether this is just a coincidence, but it is quite striking. From looking at the straggler counties, I think that by noon on Wednesday, Webb will have a small lead.

Expect a recount, no matter who wins.

In Missouri, there is still not a single vote out of Kansas City. Amazing!

The Virginia Race Continues to be close.


With more precincts in, Webb now leads by 7,800 votes. My crude model now predicts an eventual 8,200 Webb lead, which if the last four hours is any indication, is a significant under-estimate.


With 99.6% of the precincts in, the Webb lead is growing even faster than my crude model is predicting. Webb's lead is now 4,700 votes, but my model (see below) is now predicting an eventual 5,700 vote margin for Webb. It will probably be nontrivially more.


With 99.47% of the precincts in, the very rough estimate (see below) is that Webb's lead of about 1500 will grow to about 3400.


With 99.26% of the votes in, Webb leads by less than 2,000 votes. If missing precincts exactly match reporting precincts, then the Webb lead should eventually grow to a rough estimate of 3,850 votes. That should be enough to withstand a recount.

It is interesting how such a simple model could correctly predict that a 13,000 vote Allen lead with over 95% of the vote would eventually lead to a small Webb lead when nearly all the votes came in. It appears that the precincts that were being withheld were even more likely to go toward the county's majority than the earlier reporting precincts.


Both MSNBC and FOX are showing that Webb is leading by 2,400 votes with 100% of the precincts reporting.


The four localities with more than 2 precincts outstanding are ALL in localities that are voting Democratic: Fairfax county, Loudoun county, Prince William county, and Richmond City. When 100% of precincts are in, it should be much closer or Webb should take the lead.


Even though Allen still leads by a few thousand votes with 97.7% of the vote in, the trend in Webb's direction continues. If the missing precincts match the reported precincts in each VA county, Webb would win by 399 votes.

11:27pm: Welcome Instapundit readers. You will note that I am not predicting that Webb will win by 550 votes. Obviously, the race is too close to call. What I have been doing is computing the final results IF the missing precincts vote exactly like the nonmissing precincts in the rest of that county.


With 95.58% of the vote in, Allen leads by 13,000 votes. If every missing precinct is exactly like the other precincts in that county, then my computations now predict a Webb victory of 550 votes.

A recount is almost certain.


I ran the estimates (using the assumptions earlier in this post) with almost 94% of the vote in and came up with an Allen lead of 136 votes. Five of the last 6 Arlington precincts just came in (I haven't analyzed them yet). The last 3 Fairfax precincts have been still out, with nothing coming from that county in well over an hour.


With 93.21% in, Allen leads by 18,000 votes (0.86%).


Most of the Arlington County votes came in about an hour ago (at about 9:17), but not a single Arlington precinct has come in for the last hour. From my experience in watching Chicago election returns, very long gaps in reporting often lead to huge surges for the more popular candidate in that county.

I have been running county by county numbers in Virginia, on the assumption that the precincts not reporting are of the same size and vote the same way as the rest of that county's precincts vote. When about 85% of the votes were in, this method projected a Webb win by a few hundred votes, while with about 90% of the votes in, this method projects an Allen win by a few hundred votes.

Unfortunately, that means that the election may be close enough that voting irregularities or litigation might determine the outcome.

Allen up slightly with over 70% of the votes counted.--


George Allen is up by 2.06% with 73.8% of the votes counted.

The main worry for the Allen camp is probably that Democratic stronghold Arlington County has been among the counties that have been slow in turning in results.


Well, most of the rest of Arlington county just came in. With 78.9% of the precincts in, Allen's lead is now 0.64%.


With 86.7% of the vote in, Allen now leads by 1,333 votes, 0.06%.


In Ohio and Missouri, No last minute shift to Republicans in late exit polls.--

In Ohio and Missouri, unlike Virginia, there have been no last minute shifts toward the Republicans in late exit polls v. early exit polls.

The mid-afternoon exit polls showed Democrats leading 50-48 in Missouri and 57-43 in Ohio.

My recomputations from CNN's page show the final exit polls (computed from the age and gender breakdowns) at 41.7%-42.0% for DeWine v. 58.0-58.3% for Brown. In Ohio, the early difference of 14% widened to 16%.

In Missouri, the final exit polls were 48.0-48.2% for Talent and 50.0-50.2% for McCaskill, unchanged from the early exit polls. On the other hand, the percentage of women polled was fairly high (54%).


Election Blogging at Point of Law:

The Point of Law blog (to which I occasionally contribute) has been having an election roundtable discussion, focusing on how the election will effect legal reform.

Virginia Senate Race Now Closer Than Earlier Estimates.--

On the CNN webpage, they break down the Webb-Allen race Exit Results by age and gender.

With some simple algebra, one can compute the exit totals at 47.9% for Allen and 51.1% for Webb from the gender splits and 48.2% to 51.0% from the age splits.

Remember that the mid-afternoon exit poll had Webb ahead of Allen by 5%.

Also, remember that the exit poll results are updated by later exit polls and actual precinct results when these become available. If the Virginia exit polls moved from a 5% Democratic advantage to a 3% advantage in just a few hours, that suggests that the later exit polling might be turning toward the Republicans.


Late Deciders Breaking Democratic.--

US News repeating FOX reports:

Fifty-seven percent of late deciders, the Fox exit polls show, are breaking for the Democrats, and 39 percent for Republicans. This is a very important harbinger.


Second Amendment Election live-blog:

Net pro-rights tally so far, based on decided races. Senate: (-1.25) Missouri, Vermont.
House (-14). Losses: AZ 5. CA 11. CO 7. CT 2. FL 16 (1/2). IA 1. KS 2. KY 3. NH 1, 2. PA 7, 8, 10. NY 20, 24 (1/2). WI 8. Gain: IL 6 (1/2). VT (1/2).
Governor: (-1.5). Gains: Ohio. Losses: Colorado, Maryland, New York (1/2 point).

Alaska: Pro-gun Palin wins.

Arizona: Behaviorally pro-gun (except for one veto) Democratic Governor Napolitano re-elected. Pro-gun Sen. Kyl re-elected. CD 1, pro-gun inc. Renzi wins again. CD 5, pro-gun J.D. Hayworth defeated. CD 8, anti-gun Gabrielle Giffords wins open seat, in part because the national Republican party trashed the Republican candidate for disagreeing with Bush's semi-amnesty immigration plan.

California: Usually pro-gun Gov. Schwarznegger re-elected. CD 4, pro-gun inc. Doolittle wins. CD 11, pro-gun inc. Pombo trails by 6% with 79% in.

Colorado: As expected, very anti-gun Bill Ritter is far ahead for the open governor seat. CD 4, Marilyn Musgrave, founder of the U.S. House Second Amendment caucus, leads by 3% with 87% counted. CD 5, pro-gun leader Doug Lamborn has been declared the winner in an open seat. CD 7, anti-gun (with occassional pro-gun votes) Ed Perlmutter wins open seat.

Connecticut: Anti-gun (but, more importantly, anti-jihad) Joe Lieberman re-elected. Nancy Johnson (D+ rated) defeated by Chris Murphy. CD-2, pro-gun inc. Rob Simmons trails by 200 votes, with 97% counted.

Georgia: Pro-gun Governor Perdue re-elected.

Florida: Pro-gun Crist wins tough race for open Governor seat. Pro-gun, but generally authoritarian, Bill McCollum beats a D-rated candidate for Attorney General. CD 13, pro-gun inc. Buchanan turns back tough challenger. CD 22, Shaw (C+) loses to challenger Klein (F).

Idaho: Pro-gun Butch Otter leads for Governor, by 13%, with 76% in.

Illinois: Terrible governor Blagojevich re-elected. CD 6, pro-gun Roskam wins open seat, replaces Henry Hyde (with a mediocre records on guns); net +.5 open, close. CD 8, anti-gun inc. Bean wins re-election.

Indiana: CD-2, pro-gun inc. Chocola loses to pro-gun D Donnelly. CD 7: anti-gun incumbent Julia Carson survives last-minute scare. CD 9: pro-gun incumbent Sodrel loses to pro-gun former incumbent Hill.

Iowa: Pro-gun Dem. Chet Culver wins governorship. CD 1, Anti-gun Braley wins open seat. CD 2, inc. Jim Leach (C-) is 600 votes behind David Loebsack (?) with 99% in.

Kansas: CD 2, pro-gun inc. Ryun defeated.

Kentucky 3d CD: Northrup pro-gun loss.
Louisville's anti-gun "Mayor for Life" Jerry Abramson is cruising to an easy re-election.

Maryland: Cardin wins. No net loss, since he replaces Sarbanes. Do-nothing but nominally pro-gun Gov. Ehrlich defeated by anti-gun O'Malley.

Michigan: Pro-gun (by behavior, if not by inclination) Governor Granholm is headed to re-election, as is anti-gun Senator Stabenow. The Michigan Civil Rights Initiative has passed!!

Minnesota: Anti-gun Klouchbar wins open seat. Pro-gun inc. Gov. Pawlenty wins. CD 1, pro-gun inc. Gutknecht is defeated by pro-gun challenger Walz. CD 2, pro-gun inc. Kline smashes his challenger Colleen Rowley. CD 6, Bachmann (A) defeats Wetterling (F).

Missouri: Anti-gun McCaskill leads by 1%, with 84% in.

Montana: Pro-gun challenger Tester leads by 5% over pro-gun incumbent Burns, with 59% in. Nevada: Inc. pro-gun Sen. John Ensign defeats the son of Pres. Carter. Pro-gun Gov. Gibbons wins.

New Hampshire: Anti-self-defense Governor Lynch re-elected. Not a surprise. CD 1: Shea (A incumb., R) loses to bad challenger Bradley. CD 2: Bass (A NRA, B- Gun Owners of Amer.)loses to challenger Hodes (not rated by NRA; C by GOA).

New Jersey: Incumbent anti-gun extremist Menendez defeats anti-gun extremist challenger, as the state embraces the culture of corruption.

New Mexico: Pro-gun Democrat Governor Richardson re-elected. CD 1, pro-gun Wilson leads by 1,200 with 99% in.

New York: Very anti-gun Elliot Spitzer replaces moderately anti-gun Governor Pataki. CD 20, pro-gun inc. Sweeney defeated by Gillibrand. CD 24, anti-gun Acuri (F)wins open seat formerly held by Sherwood Boehlert (D+), so only a minor net loss.

North Carolina: Not a gun race, but worth noting--unethical Duke "rape" prosecutor Mike Nifong re-elected.

Ohio: Strickland wins the governorship. Like his opponent, he was pro-rights. He will be a major improvement over outgoing Governor Taft. Brown wins Senate; very slight improvement over the terrible DeWine. Pro-gun Dem. AG challenger Mark Dann ahead of anti-gun incumb. Betty Montgomery. CD 1, pro-gun Chabot wins. CD 2, pro-gun inc. Schmidt wins. CD 6: pro-gun Dem. Charlie Wilson wins open seat. CD 12: Tiberi (A) wins comfortably. CD 15: Pro-gun inc. Deborah Pryce wins re-election. CD 18: pro-gun Dem. Zach Space (great name) wins open seat created by disgraced Bob Ney. I suggest that reason that endangered Republican incumbents in Ohio are doing well, while their brethren in Indiana were defeated, is the Indiana Democratic challengers were pro-gun, and Ohio challengers were not.

Oklahoma: Pro-gun Democratic Governor Henry defeats pro-gun R challenger.

Oregon: Anti-gun inc. Gov. Kluganowski re-elected.

Pennsylvania: Pro-gun leader Santorum defeated by pro-gun lightweight Casey. CD-4 pro-gun leader Melissa Hart ousted by A-rated Altmire. CD-6, Gerlach (A) leads by 2,000 with 94% counted against by Murphy (F). CD-7, scandal plagued Weldon (A) loses to Sestak (F). CD 8, pro-gun Fitzpatrick narrowly defeated. CD 10, scandal-plagued Sherwood (A) throws away this heavily Republican district to Carney (F).CD 18, inc. Murphy (A-) turns back challenge from Kluko (B).

Rhode Island: Chafee loses. One anti-rights aristocrat replaced by another. Pro-gun inc. Gov. Carcieri wins by 2%.

Tennessee: Pro-gun Corker has been declared the Senate winner.

Vermont: A-rated Democrat Peter Welch wins Sanders' open seat. C- rated Sanders replaces retiring B-rated Jeffords in Senate, 1/4-step loss.

Virginia: Pro-gun inc. Sen. George Allen defeated by pro-gun (and very anti-p.c.) Jim Webb.

Washington: CD 5, pro-gun inc. CD 5, McMorris wins. CD 8, pro-gun inc. Reichert leads by 2%, with 49% in.

Wisconsin: Anti-gun inc. Gov. Doyle wins re-election. This may delay concealed carry in Wisconsin for 4 more years. Close race in open seat for CD 8; anti-gun (refused to answer questionaires) Kagan wins open seat.

Wyoming: Pro-gun Democrat Governor Freudenthal re-elected. NRA Board Member and incumb. With 457 of of 486 precincts in, Barbara Cubin leads her B-rated challenger by 400 votes.


NRO: Democrats Leading in Exit Polls for Senate.--

CNN just reported some more exit poll results that sounded very bad for Republicans.

The Corner is passing on what they've heard are more specific Exit Poll Results.

Remember, after the problems in 2002 and 2004, these should be taken with some skepticism.

Democrats leading:

Virginia (52-47)

Rhode Island (53-46)

Pennsylvania (57-42)

Ohio (57-43)

New Jersey (52-45)

Montana (53-46)

Missouri (50-48)

Maryland (53-46)

Republicans leading:

Tennessee (51-48)

Arizona (50-46)

If there is a 2-4% bias toward Democrats in these polls, then it would suggest that the crucial race may be Missouri, followed by Virginia.

ABC Says that Exit Polls are Bad for Bush.

ABC's take on the Exit Polls:

Nov. 7, 2006 — Preliminary exit poll results indicate that nearly six in 10 voters today disapprove of the way President Bush is handling his job.

About four in 10 approve. That's down from 53 percent approval in 2004, and 67 percent just before the 2002 midterm elections.

About four in 10 "strongly" disapprove of the president's work, more than double the number of strong approvers. . . .

The war in Iraq is a serious concern. In preliminary exit poll results, nearly six in 10 voters disapprove of the war, while about four in 10 approve. Approval of the war was higher, 51 percent, in the 2004 election. And about four in 10 now "strongly" disapprove of the war, up from 32 percent two years ago.


FOX is hinting at a Blowout in the House.--

FOX is hinting at a big blowout of 30 seats or more moving to the Democrats in the House.


CNN: Exit polls show strong evidence of "Broken Government."

CNN: Hint, Hint: CNN said that the exit polls show strong evidence of "Broken Government."

One CNN reporter seemed giddy over the Democrats' chances of taking the House. She reported that Nancy Pelosi and her staff are contemplating whether to move into new digs.


CNN Blogging Conference.--

CNN just teased their blogger conference and focused the camera on Ann Althouse as they went to commercial.



NPR has been running a series on "some of the language that's become part of our everyday vocabulary since September 11, terms such as war on terror and Islamic Fascism." The first item was on "the various meanings of the word jihad." So this is a whole story on language, and in particular on one word, "jihad."

One sentence, though, struck me:

Ten years ago, few people in America had heard the word jihad. It's so common now it has its own entry in the Oxford English Dictionary.

It turns out, though, that the word "jihad" appears even in the First Edition of the Oxford English Dictionary; the volume containing the word "jihad" was published in 1901. What's more, the First Edition gives both the literal meaning, "A religious war of Muslims against unbelievers in Islam, inculcated as a duty by the Koran and traditions," with attestations from 1869, 1875, and 1880, and a figurative meaning, "A war or crusade for or against some doctrine, opinion, or principle; war to the death," with attestations from 1880 and 1886.

Now mistakes happen, and this one isn't terribly material to the story's broader points. I strongly suspect that the term jihad has indeed become more common over the last decade.

But the mistake reminded me in mind of a claim that I read in Far from the Madding Gerund, the wonderful collection of Language Log blog posts: Media stories routinely make elementary mistakes about language matters, mistakes that could easily have been remedied with just a quick dictionary check. (Here's one post in which the Language Loggers make this point, though they've also provided many other examples.) Of course media mistakes happen in lots of other contexts, and the Language Log people find them especially often as to linguistics for obvious reasons. But it is striking that the errors are routinely made even when adequate checking is so straightforward.


CNN hinting that the exit polls favor Democrats.--

As I interpret what CNN is saying, it appears that CNN is hinting that the exit polls just released to the networks favor the Democrats.

Because the exit polls were so inaccurate the last time around, I think that people will rightly take them with more than a grain of salt.

5:25pm: Ken Mehlman (R) on FOX says that he has not heard any leaks on the exit polls, but that one of the other networks has been hinting at results. Mehlman says that the Republican voter turnout effort is going slightly better for them than in 2004.

5:30pm: CNN just said that one exit poll question regarding general disapproval of Congress boded ill for the Republicans' retaining control of the House. I considered that a strong hint that the exit polling favored the Democrats taking control of the House.


Amicus Brief in Watters v. Wachovia:

Later this month, the Supreme Court will hear arguments in Watters v. Wachovia Bank, which deals with the question of the propriety of the preemption by the Office of the Comptroller of the Currency of so-called "anti-predatory lending laws" enacted in various states, and in this situation, Michigan.

I was pleased to be invited to join with several distinguished economists and law professors in an amicus brief filed last week endorsing the policy benefits of the dual banking system and the robust competition it brings about for the benefit of consumers. For those who are interested, the press release describing the argument of the brief is available here and the brief in pdf format is available here.

The brief focuses on the policy aspects of the case, and especially the unintended consequences that generally accompany consumer lending regulation, rather than precise questions of administrative law. Among other sources, the brief relies on an article I published a few years ago, "The Economics of Credit Cards" (which is available here). In part, the brief responds to an amicus brief submitted in the case by AARP, other interest groups, and several law professors.

As the brief notes, from a policy perspective it is important that the Supreme Court uphold the OCC's authority here and preserve the integrity of the dual banking system. Overbroad or misguided consumer lending regulations can have extremely negative effects on consumer choice and consumer protection. The most notable example of the benefits of the dual banking system and the preemption of state consumer lending laws is the Supreme Court's opinion in Marquette National Bank v. First Omaha Serv. Corp. in 1978. That case permitted "exportation" of interest rates on credit cards, thereby essentially negating archaic usury regulations on credit cards. The effect was to unleash an era of extraordinary competition and pro-consumer financial innovation. Marquette spurred competition and innovation, leading to vast improvements in payment card services for consumers along with the elimination of annual fees on cards, lower interest rates, and the beneficial uncoupling of retail and credit transactions, thereby permitting the rise of the Internet and small businesses. Misguided regulation of mortgage lending can be especially expensive and burdensome to consumers, and especially lower-income and younger borrowers, because of the inability to meaningfully shop for better terms among jurisdictions because of the nature of the loan itself. I discuss the Marquette effect extensively in my article.

The brief was filed by the Competitive Enterprise Institute on behalf of G. Marcus Cole of Stanford Law School, Christopher DeMuth and Peter J. Wallison of the American Enterprise Institute, Richard Epstein of the University of Chicago, Robert E. Litan of the Brookings Institution, Michael E. Staten of George Washington University, and Todd Zywicki of George Mason University.


How Exit Polling Works in 2006 at

There is a great description of exit polling at

A quick summary of how exit polls work: The exit pollster begins by drawing a random sample of precincts within a state, selected so that the odds of any precinct being selected are proportionate to the number that typically vote in that precinct. The National Election Pool (NEP) consortium, which is conducting the exit polling for the six major networks, will send exit pollsters to more than 1,000 precincts across the country today. . . .

The selected voters receive a one-page paper questionnaire to fill out. In the past, the questionnaire included approximately 25 questions (see an example from the 2004 exit polls), although this year the exit pollsters have worked to prepare a shorter questionnaire. Respondents fill out the survey privately then place it in a clearly marked "ballot box" so they know their identities cannot be tracked and their answers remain confidential.

The logistics of transmitting all the results to a central location quickly and accurately provides the biggest challenge. To facilitate the process, interviewers will take a 10 minute break during the day to tabulate responses. Interviewers have typically stopped to call in their tabulations at three approximate times during the day: 9:00 a.m., 3:00 p.m. and shortly before the polls close. . . .

After the polls close, the network analysts also begin to look at estimates based on larger samples of approximately 2,000 randomly selected precincts where NEP personnel obtain official vote tallies as they become available. The networks typically use this larger system of tabulations and estimates — rather than the exit polls alone — to call close contests after the polls close. But when the vote is really close, as it is likely to be tonight in states like Missouri and Virginia, even the larger samples of hard returns will be inadequate. The analysts will have to watch the complete vote count, just like the rest of us.

In years past, hundreds of producers, editors and reporters would have access to the mid-day estimates starting at about noon, and preliminary exit poll cross-tabulations (like this one) would inevitably leak out. This year the networks have taken steps to prevent such leaks, creating a "Quarantine Room" where, as the Washington Post's Howard Kurtz reports, "two people from each of the networks and the Associated Press" will be allowed "entree to a windowless room in New York [where] all cellphones, laptops and BlackBerrys will be confiscated. The designated staffers will pore over the exit polls but will not be allowed to communicate with their offices until 5 p.m."

So there you have it folks. At 5:00 p.m. the data will be flowing to newsrooms as it always does and the usual leaks will presumably commence shortly thereafter. One rationale for the delay is that the data available at that hour will be more representative and not just based on those who vote in the morning.

So if this process is so sophisticated and the late afternoon numbers are better, why can't we rely on the leaked "numbers" that will undoubtedly leak after 5:00 p.m. today?

1) It is still just a survey . . . .

2) Early or absentee voting . . . .

3) Past Errors favored Democrats . . . .

4) Limited Data on the House elections . . . .

Expect heavy hinting by the networks after 5pm ET today.


Very Funny:

Pre-school political advertising. Persuaded me!


The Politics of Ignorance:

I have an election day op ed on political ignorance in The Jurist. A brief excerpt:

Nancy Pelosi may soon become the new Speaker of the House of Representatives. But 67% of Americans admitted in a recent survey that they don’t know enough about her to have an opinion. Fifty-five percent say the same thing about her political rival Dennis Hastert, the current Republican Speaker of the House. These findings are not surprising to experts; indeed, they are consistent with decades of research showing uniformly low levels of political knowledge in the American electorate. Moreover, such ignorance is not primarily the result of laziness or stupidity, but is usually caused by perfectly rational behavior. Not only does political ignorance lead to low levels of information acquisition, it also leads many voters to make poor use of the knowledge they do have. There is probably no way to eliminate political ignorance in the foreseeable future. But its harmful effects could be mitigated by reducing the size and complexity of government.

Also check out this excellent piece on political ignorance by George Mason economics professor Bryan Caplan.


The Phanerozoic Debate:

Today's NYT has a very informative and balanced story on the scientific debate over the relationship between carbon dioxide levels and global termperatures during the Phanerozoic era (roughly 550 million years ago to the present). One thing William Broad does particularly well in the story (and he was given ample space by his editors in which to do this) is to identify precisely where paleoclimatologists and geologists agree and disagree — something much popular reporting on climate science fails to do. It also points out the potential relevance of this dispute for contemporary climate change policy discussions. Here is a taste:

In recent years, scientists have made sizable gains in what was once considered an impossible art — reconstructing the history of Earth’s atmosphere back into the dim past. They can now peer across more than a half billion years. . . .

The discoveries have stirred a little-known dispute that, if resolved, could have major implications. At issue is whether the findings back or undermine the prevailing view on global warming. One side foresees a looming crisis of planetary heating; the other, temperature increases that would be more nuisance than catastrophe.

Perhaps surprisingly, both hail from the same camp: scientists who study the big picture of Earth’s past, including geologists and paleoclimatologists. . . .

the experts who peer back millions of years, though they may debate what their work means, do agree on the relevance of their findings. They also agree that the eon known as the Phanerozoic, a lengthy span from the present to 550 million years ago, the dawn of complex life, typically bore concentrations of carbon dioxide that were up to 18 times the levels present in the short reign of Homo sapiens. . . .

Where the specialists clash is on what the evidence means for the idea that industrial civilization and the burning of fossil fuels are the main culprits in climate change.

The story also notes that as paleoclimatic research becomes more relevant to policy debates, politics rears its ugly head.

Skeptics say CO2 crusaders simply find the Phanerozoic data embarrassing and irreconcilable with public alarms. “People come to me and say, ‘Stop talking like this, you’re hurting the cause,’ ” said Dr. Giegengack of Penn.

Those interested in climate policy should read the whole thing.


The Constitutional Status of Lethal Self-Defense:

Do we have a constitutional right to use deadly force in defense of life (or defense against rape, kidnapping, serious bodily injury, and perhaps more)? Oddly enough, the matter hasn't been settled, and has been little studied by scholars. Fordham lawprof Nicholas Johnson has a forthcoming article on the subject, but unfortunately I couldn't find a draft of it on the Web; George Mason lawprof Nelson Lund has a response. There's a smattering of other material on it, but quite little. Here's my short section on the subject; for footnotes, see here:

Lethal self-defense is so broadly accepted that courts have rarely had occasion to confront grave restrictions on it, and thus haven’t squarely decided its constitutional status. Some lower court opinions have said that there is such a right, and a recent four-Justice plurality opinion -- authored by Justice Scalia, usually no friend of unenumerated constitutional rights -- suggested the same. And the Court’s unenumerated rights caselaw provides a strong case for recognizing a presumptive federal constitutional right to self-defense.

The right to self-defense is important to people’s lives, and firmly rooted in longstanding American tradition. Framing-era sources refer to it as a natural right. Blackstone wrote of the right to prevent “any forcible and atrocious crime,” even with lethal force, as “justifiable by the law of nature”; St. George Tucker, one of the leading American commentators of the first half of the nineteenth century, described “[t]he right of self defence” as “the first law of nature.”

The right has been as broadly accepted as the rights to bear and raise children and to live with one’s family members, and more broadly accepted than the right to an abortion or even the right to use contraceptives. Even if due process or the Ninth Amendment is interpreted as protecting only those rights that were recognized as important common-law rights in 1791 or 1868, self-defense would qualify. The right has never been absolute, but in this respect it is like most constitutional rights, enumerated or unenumerated.

The right is also secured by forty-four state constitutions. Twenty-one of these, dating back to the 1776 Pennsylvania Bill of Rights, expressly secure the right to “defend[] life.” Forty, dating from 1776 to 1998, secure a right to keep and bear arms in defense of self, which presupposes at least the traditional core of lethal self-defense.

Two court of appeals decisions have expressly rejected a constitutional right to lethal self-defense, but with little analysis, and in the course of upholding two rules that may well be constitutional even if the constitutional right is recognized: prison disciplinary rules categorically rejecting prisoner self-defense claims, and the rare state rules requiring defendants to prove self-defense by a preponderance of the evidence. Even if prisoners ought to lack a constitutional right to self-defense, this says little about the right outside prison -- prisoners are subject to far greater constraints on most of their constitutional rights than are nonprisoners. And even if defendants may be required to prove self-defense, one can have a constitutional right and yet bear the burden of proving that the conditions for its exercise are satisfied. When the Supreme Court upheld laws placing the burden of proving self-defense on the defendant, it did so without opining on whether there’s a constitutional right to self-defense.

Finally, if the Court concludes that the Second Amendment secures an individual right aimed partly at self-defense, thus endorsing the view expressed by Congress and by the White House Office of Legal Counsel, though only by a minority of federal circuit judges, then some right to self-defense might be inherently protected through the Second Amendment. But, as I argue above, a right to self-defense (though potentially limitable by gun control laws) should be recognized even without reliance on the Second Amendment.


Lethal Self-Defense, Medical Self-Defense, and Imminence:

More from my Medical Self-Defense paper; see the original for footnotes, should you want it. Thanks also for your comments: Among other things, they've persuaded me that I need to explain in more detail why I use the self-defense defense as an analogy instead of the necessity defense -- I think I have a good justification for it, but it sounds like I'll need to make it explicitly, and I'll do that on-blog and likely in the article as well. In the meantime, a brief discussion of imminence, to be followed shortly by a discussion of the constitutional law and self-defense:

Lethal self-defense is generally allowed only in response to imminent threats of harm, usually measured in minutes; medical self-defense would often be used to prevent a death that’s likely in months. But for medical self-defense, it makes sense to treat imminence as simply requiring a present medical condition that seriously threatens life in the relatively near future -- that is to say, as an application of a necessity requirement -- not as requiring that death be likely within the hour.

The imminence requirement in lethal self-defense is aimed at serving several functions. First, imminence is a rough proxy for necessity of lethal response: Lack of imminence is correlated with the presence of alternatives (escape, calling the police, and the like) and the possibility that the threatener’s anger will cool. Second, the imminence requirement diminishes erroneous claims of necessity, since judgments about long-term threats tend to be less accurate than judgments about short-term threats. Third, the risk of false claims of self-defense would be especially high if “he had told me some time before that he wanted to kill me” were justification enough for killing. Fourth, insisting on tools that help show necessity and help weed out false claims is especially important because unnecessary self-defense causes unnecessary death.

For medical self-defense, all these functions would best be served by seeing imminence as simply requiring a present medical threat. The best proxies for necessity are the present medical threat (your kidneys are actually sick) and the lack of a satisfactory permitted therapy. You can’t flee kidney disease that can be cured only through a transplant, or call the police to protect you. Present medical threats of future harm are generally more reliably diagnosable than human threats. There is little risk of insincere claims of danger, especially since the diagnosis is made by a trained and objective medical expert. And even if an error happens, it will likely endanger others far less than erroneous lethal self-defense would.

These reasons help explain why the law doesn’t distinguish a woman who gets a post-viability abortion to protect her life against immediate danger (her pregnancy was threatening likely immediate death) from a woman who gets a post-viability abortion to protect her life against real but not immediate danger (her pregnancy was threatening likely death in a month). So long as the dangerous medical condition currently exists, the woman may defend herself against the risk right away, especially since waiting may increase the danger. The same should apply to other forms of medical self-defense.


Democrats Favored in Betting on Individual Senate Races, But Not for Taking the Senate.--

Late Monday Night, Nov. 6

According to the betting at Iowa Electronic Markets, the Republicans have about a 70% chance of retaining the Senate.

According to the betting at Tradesports, the Republicans have a 66-69% chance of retaining the Senate, which is down from a few days ago.

Yet the Democrats are ahead in all of Tradesports’ closest Senate races (probabilities are approximate, within the bid/ask spreads):

Implicit Probability of Democratic Victory in contested Senate Races:

VA: 57%
MO: 60%
RI: 66%
MD: 73%
MT: 77%

The closest race in which Republicans are leading is TN: 15% probability of Democratic victory.

I look at such things because I'm terrible at predicting elections myself. If I were inclined to bet on this election, I would take the 7 to 3 odds and bet on a Democratic takeover of the Senate, since I think that the chance of the Democrats taking the Senate is closer to 50/50, even though the Iowa Markets are almost always correct.


I hope Nancy Pelosi's check is in the mail:

This post details some of the payments various bloggers are getting from political campaigns this fall. Other bloggers, including the famous Daily Kos were taking money from politicians as far back as the 2004 campaign.

Sadly, Nancy Pelosi has not yet paid me for my rousing endorsement of her bid to become Speaker of the House. Without the critical support of the VC vote, she would not be poised to take over Dennis Hastert's job right now. So I just want to say that it's not too late for the soon-to-be Speaker of the House to send some well-earned dough my way.

More seriously, I'm not convinced that taking money from politicians is the right way to go for bloggers. At the very least, all such payments should be prominently disclosed either on the title page of the blog or as part of any posts that comment on the campaign. If Nancy Pelosi does send me some money, you can be sure I'll let you know!

UPDATE: It seems to me that many of the commenters are reading a lot more into this post than is actually there. I did not say that all (or even most) of the bloggers on the list I linked to had failed to disclose. Nor did I claim that disclosure is required even years after the fact. I do believe that disclosure is required if you 1) take money from a campaign, and 2) blog about that race while it is still going on. Other situations are in more of a gray area and I'm not interested enough in this issue to do a detailed post on which of them require disclosure and which don't. Finally, it should be obvious that I did not say that this problem is solely confined to liberal bloggers.

UPDATE #2: For those interested in this subject, more details on the employment of both liberal and conservative bloggers by campaigns and interest groups are available in these two National Journal articles, here and here.


Federalism and the "Banishment" of Criminals:

GMU Economist Alex Tabarrok writes:

Today I am in Florida giving a seminar to a group of Federal judges on the law and economics of Federalism and Crime. One of the surprising things that I discovered in my research is that cities, counties, and even most states can legally banish criminals from their borders. I say most states because, for example, the Georgia state constitution makes banishment illegal. Georgia judges, however, have found a way around the law they have imposed "158-county" banishment. (If you guessed that Georgia has 159 counties give yourself two points.)

Banishment is a particulary noteworthy example of a negative spillover - banishment benefits the state doing the banishing but only at the expense of other states. I will suggest to the Federal judges, therefore, that state banishment should be illegal.

As readers of this blog know, I am generally very supportive of federalism and decentralization. In this case, however, there is a strong argument for federal government intervention to prevent banishment, just as in cases where state governments dump pollution onto the land or waterways of neighboring states. By "banishing" criminals, state governments save themselves the cost of imprisoning them and also ensure that the cost of any future crimes these individuals commit (as well as the cost of punishing any such future crimes) will fall on other states. Indeed, banishment may actually reduce state government incentives to combat crime, because some of the costs of crime can be exported to their neighbors by banishing the criminals.

Some of Alex's commenters argue that banishment should be retained because it is a relatively cheap and convenient way of punishing some types of criminals. This may be true, to some extent. But there are many other forms of punishment that cost much less than prison, yet do not have the perverse incentives created by banishment. Fines and community service are just two of many examples.

UPDATE: This post by Corey Yung of the Sex Crimes Blog provides evidence that interstate banishment may not be as common as Alex suggests.


Monday, November 6, 2006

More on the Penn Halloween Controversy:

Saad Saadi, who has become notorious for dressing up as a suicide bomber for a Halloween Party at the university president's house, has issued the following statement:

My friend, Jason, and I express our condolences and sympathy to all offended by our costumes. We wish to make it clear that we do not support terrorism, violence, or anything that is against society. There is no agenda or statement associated with our behavior shown in these pictures. The costumes are meant to portray scary characters much like many other costumes on Halloween. We are deeply sorry for anyone who has been hurt or upset. Additionally, we strive for all societies to instill healthy non-violent values.


The Political Weakness of the Poor - An Argument for Limiting Government Power:

One of the strongest traditional arguments for expanding government power in a democracy is that doing so can improve the lot of the poor by enabling them to use their voting power to promote redistributive policies. Yet numerous recent studies (primarily by left of center scholars) show that, in fact, the poor have very little influence over public policy. Recent empirical studies by political scientists Martin Gilens and Larry Bartels actually conclude that the poorest 20-30% of Americans have almost no political influence at all. In his 2003 book, The State of Democratic Theory (which I reviewed here), prominent liberal political theorist Ian Shapiro summarized the evidence that democratic governments generally achieve little in the way of net redistribution to the poor. Indeed, the biggest spending programs in most advanced democracies (notably old-age pensions and farm subsidies) tend to benefit wealthy and upper middle class interests, partly at the expense of the poor. The latter pay for Social Security through regressive payroll taxes, don't collect as much Social Security as the more affluent because they die much younger, and also suffer disproportionately from the increase in food prices caused by farm subsidies that promote cartels and restrict production below free market levels.

The relative political weakness of the poor is not surprising. Studies have long demonstrated that the poor are less likely to vote than the rich, less likely to participate in politics in other ways, have lower political knowledge, and of course make fewer and small campaign contributions.

Shapiro, and to a much lesser extent Gilens and Bartels, argue that the political weakness of the poor should be overcome by limiting the power of the rich through "campaign finance reform." I am skeptical. Any reform measures must be enacted by incumbent legislators. Yet what incentives do such legislators have to enact reforms that might imperil their own reelection by empowering groups that contributed little or nothing to their initial election? In fact, as John Samples shows in this excellent new book, real-world campaign finance measures mostly strengthen incumbents and powerful interest groups rather than the poor.

In my view, the political weakness of the poor is an argument not for campaign finance reform, but for reducing the role of government in society. If big government is not a good way to redistribute wealth to the poor and instead tends to transfer wealth to wealthy and middle class interest groups (sometimes at the expense of the poor), that undercuts one of the main arguments for the the massive modern state.

Obviously, the more affluent members of society also have superior buying power in the free market. However, the difference is much smaller than in the political arena. While each individual poor person has relatively little purchasing power in the market, collectivey they have a great deal. Many of the world's most successful businesses (notably Wal Mart) have made enormous profits precisely by finding ways to sell cheap, yet reasonable quality, products to the poor. In the political arena, by contrast, politicians can either ignore the wishes of the poor entirely (as Gilens and Bartels claim they usually do), or exploit their severe political ignorance by enacting symbolic "feel good" policies that do little or nothing to actually benefit poor people, and in some cases even harm them.

I do not claim that this consideration by itself justifies libertarianism, nor am I categorically opposed to all government redistribution to the poor. Indeed, I think that some redistributive programs for the poor are both justifiable and necessary. If it were up to me, I would prefer a constitution that forbids all or most redistribution to the wealthy and middle class, while permitting redistribution to those below the poverty line.

At the same time, however, the political weakness of the poor is a strong argument against claims that big government is justified by the need to fight poverty and empower the disadvantaged. Quite the opposite may well occur in cases where expanded government power means transferring authority to an entity over which the poor have almost no influence.


Justice Stevens on Justice Rutledge: Justice John Paul Stevens clerked for Justice Wiley Rutledge in 1946-47, and about a decade later he wrote an essay about Justice Rutledge as a chapter in a book, "Mr. Justice," edited by Allison Dunham & Philip Kurland. A copy of the 25-page essay has been posted online, and you can read it here.

A real boy:

I am now a lawyer.


Nem mikh mit tsu der ball game:

In Flood v. Kuhn (1972), where the Supreme Court reaffirmed that baseball wasn't subject to antitrust law, Blackmun wrote:

Then there are the many names, celebrated for one reason or another, that have sparked the diamond and its environs and that have provided tinder for recaptured thrills, for reminiscence and comparisons, and for conversation and anticipation in-season and off-season: Ty Cobb, Babe Ruth, Tris Speaker, Walter Johnson, Henry Chadwick, Eddie Collins, Lou Gehrig, Grover Cleveland Alexander, Rogers Hornsby, Harry Hooper, Goose Goslin, Jackie Robinson, Honus Wagner, Joe McCarthy, John McGraw, Deacon Phillippe, Rube Marquard, Christy Mathewson, Tommy Leach, Big Ed Delahanty, Davy Jones, Germany Schaefer, King Kelly, Big Dan Brouthers, Wahoo Sam Crawford, Wee Willie Keeler, Big Ed Walsh, Jimmy Austin, Fred Snodgrass, Satchel Paige, Hugh Jennings, Fred Merkle, Iron Man McGinnity, Three-Finger Brown, Harry and Stan Coveleski, Connie Mack, Al Bridwell, Red Ruffing, Amos Rusie, Cy Young, Smokey Joe Wood, Chief Meyers, Chief Bender, Bill Klem, Hans Lobert, Johnny Evers, Joe Tinker, Roy Campanella, Miller Huggins, Rube Bressler, Dazzy Vance, Edd Roush, Bill Wambsganss, Clark Griffith, Branch Rickey, Frank Chance, Cap Anson, Nap Lajoie, Sad Sam Jones, Bob O'Farrell, Lefty O'Doul, Bobby Veach, Willie Kamm, Heinie Groh, Lloyd and Paul Waner, Stuffy McInnis, Charles Comiskey, Roger Bresnahan, Bill Dickey, Zack Wheat, George Sisler, Charlie Gehringer, Eppa Rixey, Harry Heilmann, Fred Clarke, Dizzy Dean, Hank Greenberg, Pie Traynor, Rube Waddell, Bill Terry, Carl Hubbell, Old Hoss Radbourne, Moe Berg, Rabbit Maranville, Jimmie Foxx, Lefty Grove. The list seems endless.

Wowsers. Roger Ian Abrams of Northeastern Law School reveals the origin of the list in his article Blackmun's List.


Post-Election Litigation?: Over at Election Law, Rick Hasen has an interesting post on the prospects for post-election litigation following Tuesday's voting.

Monday Afternoon Baby Blogging:

Natalie Bernstein, almost thirteen months (click photo for larger size).

What's The Present Value of Future Freedom?: Over at Decision of the Day, Bob is blogging about a very interesting new criminal law decision by Judge Frank Easterbrook.

Live-blogging the Election:

Tuesday evening, I will be live-blogging the election returns, with a focus on the implications of the results for Second Amendment rights. As I detailed last week in National Review Online, the Senate results look likely to be no more than +1 or -1 for Second Amendment rights. In the House, losses are certain, but may be fairly small. The net House loss on Second Amendment issues might be approximately 1/2 of the net Republican losses -- but a lot will depend on where the Republican losses occur. For example, if Democratic challengers win all six key House races in Connecticut and Indiana, the anti-gun lobby gains only a single seat. In contrast, all four of the vulnerable Republican seats in eastern Pennsylvania, and three of the four vulnerable Republican seats in New York State, would result in gains for the gun control lobby.


Voting, Pleasure, and the Brain: In response to Jim's argument that people vote because they find it pleasurable, my co-blogger Ilya writes:
I am skeptical about Jim's suggestion that the benefit voters get from casting a ballot is like " like going to a movie or a football game." Movies and football games are entertaining and fun (at least to fans). Voting is not. Very few people regularly choose to stand in line or fill out forms as a leisure activity.
  I wonder if the insights from Daniel Gilbert's terrific book, Stumbling on Happiness, might be helpful here. Gilbert, a psychology professor at Harvard, points out that our brains measure happiness differently when dealing with events that are far away in time as compared to events that are near in time. When an event is far away, we tend to ignore the practical consequences of it and instead latch on to a very incomplete vision of what the event may be like. So if a co-worker says, "do you want to go to Vegas with me 6 months from now?," you might be happy to accept because the abstract mental image of going to Vegas seems great. It's not until the trip is around the corner that you realize that the trip will be expensive, you have other things to do, you don't necessarily want to spend time with your co-worker, and the like.

  Applying this idea to voting, it suggests to me that Jim may be right about why people vote even if Ilya is right that people don't like to wait in line and fill out forms. When people think about voting in the abstract, they focus on the rush of it; the feeling of participating, of taking responsibility, and the excitement of not knowing who is going to win. Sure, they don't like to wait in line and fill out forms. But when they decide to vote they aren't thinking about that, just like they aren't thinking about what a pain it is to go to Vegas when the trip is six months away. And because voting is a repeated activity, the far-away vision tends to dominate the near-term vision. Looking back on it, people are glad that they voted in past elections because they remember the rush and the feeling of responsibility; the length of the line and the time filling out forms is quickly forgotten.

  Obviously this doesn't explain all of why people vote (or don't), but I think it suggests that the question isn't answered simply by a measure of objective costs and benefits; how the brain imagines future events seems to play an important role.

Lethal Self-Defense and What It Tells Us About Medical Self-Defense:

I build my Medical Self-Defense argument partly on the right to abortion-as-self-defense, but partly on the analogy to lethal self-defense.

The broad acceptance of the abortion-as-self-defense right should be no surprise. Protecting one’s life has long justified violating many laws, whether against homicide, battery, discharging firearms, cruelty to animals, killing endangered species, or destroying another’s property. If a person or animal is threatening you with death, serious physical injury, rape, or kidnapping, you may defend yourself through otherwise unlawful violence. Likewise with therapeutic abortions: As a 1939 English case held, in reading a “life of the mother” exception into an abortion ban that didn’t include such an exception, “as in the case of homicide, so also in the case where an unborn child is killed, there may be justification [meaning a self-defense justification] for the act.”

The analogy between lethal self-defense and medical self-defense is necessarily not as close as the analogy between one form of medical self-defense (via abortion) and another. But, I’ll argue, it’s close enough. My hope is that people who feel strongly about the right to lethal self-defense (as do I), but who are skeptical of what they see as newly minted rights such as medical rights justified on pure autonomy grounds, will come to agree that the moral case for medical self-defense is at least as strong as the case for lethal self-defense. The Legal Status of Lethal Self-Defense -- Generally: American law has consistently recognized people’s rights to kill attackers to protect themselves against death or serious physical injury, and generally against rape or kidnapping as well. This right covers even killing those who caused the danger through no moral fault (or minimal moral fault) of their own. You may kill those who are threatening your life negligently, or through an unfortunate nonnegligent accident. You may kill attackers who are insane and thus not morally culpable. You may use self-defense against animals, even when such actions would otherwise violate endangered species law, animal cruelty laws, or laws barring destruction of others’ property.

Moreover, the legality of lethal self-defense endangers even those who aren’t attacking anyone. Say I cold-bloodedly want to murder you. If the self-defense defense didn’t exist, I would know that if physical evidence linked me to the attack, I would likely be convicted.

But allowing self-defense may help me escape: “He threatened me, and I thought he was reaching for a gun,” I would falsely say, and the only other witness -- you, the victim whom I am painting as the attacker -- won’t be there to contradict me. Some jurors might be persuaded beyond a reasonable doubt that I’m lying, but some might not, especially if I’m a sympathetic character (say, a police officer) and the person I killed is not. Lethal self-defense is thus a right that’s protected even though it can sometimes lead to serious harm, including harm to innocent people. And if I may kill someone to protect my life, why shouldn’t I be presumptively free to protect my life using medical procedures that don’t involve killing, of the guilty or of the innocent? Limits on Lethal Self-Defense: The right to lethal self-defense is in some ways limited, as are other rights, and as the right to medical self-defense would be as well. First, the right is uniformly accepted only when self-defense is necessary to defend one’s life, or at least prevent serious harm to oneself: You generally can’t kill to prevent a bruise or a petty theft. Similarly, I am arguing for medical self-defense against deadly or at least radically debilitating threats (such as paralysis or dementia), not the common cold.

Second, the right to lethal self-defense, like other rights, doesn’t in my view include the right to injure the life, liberty, and property rights of people who aren’t threatening your life. If I’m starving to death on a lifeboat, I have no right to kill and eat my fellow passengers. If a criminal forces me to kill someone, my actions won’t be legally justified. Even taking another’s property to save my life isn’t, I think, part of my self-defense rights, though the law may still decline to punish some of these actions due to sympathy towards my predicament.

This limitation, though, doesn’t affect the standard medical self-defense scenarios I discuss. Ellen doesn’t want to steal the drugs from the pharmaceutical company. Olivia doesn’t want to kidnap someone to cut out his organs. Even Alice is killing the fetus who threatens her life, albeit threatens it with no moral culpability.

Finally, some American jurisdictions burden people’s ability to practice lethal self-defense by constraining their access to the tools that are often needed for effective self-defense: guns. One jurisdiction (D.C.) generally bars people from possessing any loaded firearms. A dozen states bar most people from carrying concealed loaded firearms in public places. Felons, drug addicts, the insane, and children are generally barred from possessing guns altogether.

Yet even these laws do not cast doubt on the existence of lethal self-defense rights. To begin with, in most states, the law endorses most people’s ability to defend themselves even using guns, despite the substantial harm that guns cause to innocents. Most high-profile firearms restrictions, such as bans on so-called “assault weapons,” don’t substantially burden people’s ability to have guns for self-defense, since they leave people free to use many other guns. All jurisdictions but D.C. let law-abiding adults possess loaded shotguns for home defense. Thirty-eight states let law-abiding adults carry guns for self-defense in most places outside the home either without a license or with a license that the police are generally required to issue.

Even when someone is generally barred from possessing firearms, self-defense against an imminent threat is usually a valid defense. In some states that don’t automatically allow law-abiding adults firearms carry licenses, even nonimminent danger -- so long as it’s well above what the average person faces -- is a factor in favor of granting the license, or of rendering the license requirement inapplicable. In other states, the concealed weapons restrictions are waived for people who show sufficient threat from an identifiable potential attacker.

Moreover, even when gun laws do substantially burden people’s ability to use lethal self-defense, the reason given is generally that gun bans are necessary to protect innocent lives, because any lesser regulations wouldn’t do the job. This fits well with the lethal self-defense right I describe -- a right that (a) is generally accepted, (b) presumptively may not be substantially burdened, but (c) may be substantially burdened when the danger to others’ lives is seen as being so grave as to overcome the right’s value in protecting lives.

One can thus support gun bans and yet oppose restrictions on lifesaving medical procedures. It’s much harder to justify the opposite position, at which our legal system has arrived: the position that people should be free to own a gun for lethal self-defense, but not free to engage in medical self-defense.

Later today or tomorrow -- a brief discussion of the "imminence" limitation on lethal self-defense, and then a discussion of whether lethal self-defense is a constitutional right or only a broadly recognized common-law and statutory right.


Phillie Phanatic At the Supreme Court Via Howard we learn that if the Supreme Court needs the Phillie Phanatic, Justice Breyer's chambers does the calling — and yes, the Phanatic will come:
  The Phillie Phanatic paid a visit to Phillies fanatic Samuel Alito during a recent Supreme Court party for its new justice.
  The Phanatic, and his best friend Tom Burgoyne, were called by Justice Stephen Breyer's office and were asked to surprise Alito at the party. There, Burgoyne says, the Phanatic gave Alito a hug and then high-fived the rest of the Supreme Court justices, who seemed into the lovable green goofball's antics.
Of course, the warm reception is what you would expect given what it takes to become a Supreme Court Justice.

Civic duty and "pleasure" as explanations for voting:

Both Jim Lindgren and many commenters on our earlier posts on voting suggest that the real explanation for why people vote is that they they feel they have a duty to do so. This is the standard explanation for voting in the academic literature and it makes intuitive sense. If you ask people why they voted, most will indeed probably say that it was because they had a civic duty to do so.

However, the question remains, why would people think they have a duty to do something that makes no difference? We don't normally believe in a duty to do futile acts. The reason why people feel they have a duty to vote is because they tend to believe that voting makes a "difference," even if a very small one. If they thought otherwise, very few would still believe they had a duty to vote. To be sure, an alternative explanation is that they think they have a duty to vote because they have been indoctrinated into believing this by the government, particularly in the public schools. While that may be true to some extent, mass voting long predates large-scale indoctrination of this kind, and indeed long predates the existence of public schools (which were not established in most of the United States until the mid to late nineteenth century). Moreover, it would be hard to understand why this kind of indoctrination is so much more successful than other such efforts in relatively free societies.

The same point applies to arguments that people vote because they get "pleasure" from it. I highly doubt that many people enjoy the actual process of voting, which mainly consists of standing in line and then filling out a form. For that reason, I am skeptical about Jim's suggestion that the benefit voters get from casting a ballot is "like going to a movie or a football game." Movies and football games are entertaining and fun (at least to fans). Voting is not. Very few people regularly choose to stand in line or fill out forms as a leisure activity. The real "pleasure" that people get from voting (to the extent that they get any) is the sense that they have done their duty. But this in turn merely gets us back to the question of why they think they have such a duty in the first place.

UPDATE: In response to this post, Orin Kerr writes:

When an event is far away, we tend to ignore the practical consequences of it and instead latch on to a very incomplete vision of what the event may be like. So if a co-worker says, "do you want to go to Vegas with me 6 months from now?," you might be happy to accept because the abstract mental image of going to Vegas seems great. It's not until the trip is around the corner that you realize that the trip will be expensive, you have other things to do, you don't necessarily want to spend time with your co-worker, and the like.

Applying this idea to voting, it suggests to me that Jim may be right about why people vote even if Ilya is right that people don't like to wait in line and fill out forms. When people think about voting in the abstract, they focus on the rush of it; the feeling of participating, of taking responsibility, and the excitement of not knowing who is going to win. Sure, they don't like to wait in line and fill out forms. But when they decide to vote they aren't thinking about that, just like they aren't thinking about what a pain it is to go to Vegas when the trip is six months away

The problem with Orin's argument is that, unlike the trip to Vegas, the decision to vote can easily be reversed, even at the last minute. There are no nonrefundable airline tickets, hotel reservations, etc. Therefore, even if it is true that, in thinking about a decision months ahead of time, people don't focus on the costs (which I'm skeptical about), they surely do realize the costs by the time election day comes around. Moreover, I highly doubt that most people even think about the decision whether or not to vote many months in advance.

UPDATE #2: Frank Cross, one of the commenters to Orin's post writes:

I think the comparison to voting for all stars, or American Idol, or other polls is suggestive.

Ilya's theory doesn't apply well in these cases, I don't think the selection of a player to the all star game will yield benefit for many other Americans, and I don't think my single vote for the player will likely make a difference in the outcome.

On American Idol, people can vote simply by calling in on a toll-free line while watching the show. There is therefore virtually no cost to doing so; assuming you would be watching the show during that time period anyway, the only possible "cost" is the diversion of part of your attention way from the TV screen for 30 seconds or so. If you had to take an hour to go to a polling place to vote on AI, I think very few people would do so (even those who like the show). The fact that the producers have created a toll-free line for callers suggest that they realize that the voters are unwilling to pay even a very small cost to participate (a 1 minute long distance call probably costs no more than 10 or 15 cents).

Voting for sports all-stars is a very different phenomenon from political voting. The people who fill out all star ballots generally have a strong interest in the sport in question and actually enjoy the process of thinking about which players should get in and which ones shouldn't. All-Star ballot voters are a small minority of the public, probably even of sports fans. Moreover, all star game voters can legally "stuff the ballot" by voting many times, which greatly increases the chance of affecting the outcome. Casting several hundred or even several thousand votes for your favorite player is a much stronger incentive to vote than being able to cast just one. Major League Baseball deliberately encourages ballot-stuffing because they know it increases "turnout" and interest in All Star game elections.

A small minority of people are "political fans" and feel the same way about politics as sports fans do about sports. But the vast majority of people who vote do not in fact have this kind of strong interest in politics, and of course stuffing the ballot in a political election can land you in jail!


The Oregon State Bar Journal and Military Advertising:

The Oregon State Bar, which publishes a magazine for its members, generally refuses to accept advertising from employers who discriminate based on (among other things) sexual orientation. In early 2005, an Oregon lawyer objected to a National Guard attorney recruitment ad -- the Guard had "published ads from the Guard once or twice a year for the past five years at a cost of $30 each" (Oregonian, July 16, 2005) -- and the bar president "pulled the Guard's ad from its April issue and referred the issue to the group's board of governors." The board then voted not to exempt the Guard from the ban, but referred the matter to the bar's policy and governance committee. The committee voted 5-1 to recommend an exemption for the military; but in August, the board voted 11-3 not to create such an exemption.

Some people who want to allow military advertising are now circulating a petition asking the Bar to submit the matter to a vote of all Oregon bar members. I'm not an Oregon bar member, but if I were, I would sign the petition, and I would vote to exempt the military, for much the same reason as I've given with regard to law schools' failing to exempt military recruiting from their no-sexual-orientation-discrimination rules:

"Perspective," my New Shorter Oxford Dictionary says, is "a mental view of the relative importance" of things. The debate about whether law schools should exclude the military from interviewing on campus is ultimately not about gay rights. It's about perspective.

Generally, I think that a person's sexual orientation is none of the government's business. There are decent pragmatic arguments for why the military is different; and these arguments might be right, though I'm not expert enough to tell. But let's stipulate for now that the military is wrong to discriminate against gays, and that patriotic gays should be fully welcomed by the military, rather than being told that they must conceal their preferences or risk discharge. [EV adds: My tentative and non-expert thinking is that this stipulation is indeed correct, and that the military should repeal its policy.]

So what? So the military is wrong -— why should law schools therefore exclude the military from recruiting? Many excluded the military before the government threatened to withdraw federal funds from them; and many faculty members would like to do this even now. But why?

Some boycotts are purely instrumental: They aim to make things costly for some entity, so that the entity changes its ways to avoid those costs. But surely this isn't the issue here. If the military changes its policy, it won't be because they're having a slightly harder time recruiting lawyers; the boycott just can't make that sort of practical difference. What's more, officers coming from (say) Yale Law School would likely be more tolerant of homosexuality than the average officer. As a purely practical matter, discouraging Yalies from joining the military may make the military slightly less gay-rights-friendly.

So, of, course the boycott isn't really about practical questions —- it's about morality and symbolism. Even if our boycott will be completely ineffective, the theory goes, it's still the right thing to do: The military's recruitment policies are wrong, so we must refuse to help the military recruit.

And here is where we come to perspective. Let's assume the military's discriminatory practices are bad. But isn't the military also doing something good?

The military, after all, protects all of us -— straight and gay -— from foreign attack. That's pretty good. All the rights we have, we have because members of the military have bled to protect them. That's pretty good. During World War II, the American military was racially segregated, which was bad. But it defeated Japan and helped defeat Hitler, which was good. Perspective is what tells us that the good the military does vastly exceeds the badness of its discriminatory practices.

So as a moral matter, excluding the military isn't just remaining pure of complicity with discrimination. Rather, it's remaining pure by shunning the institution that protects our liberty, our equality, and our lives from forces far worse than "Don't Ask, Don't Tell" can ever be.

And as a matter of symbolism, the symbolic message isn't "We detest discrimination." Rather, it's "Discrimination is so bad that we must wash our hands of the military, in spite of all the good the military does." The boycotters have weighed the military in the balance, and they have found that on balance it should be excluded, rather than included. The symbolism of that is pretty clear.

Only a sense of perspective, a mental view of the relative importance of things, can keep one from making this mistake. Equal treatment without regard to sexual orientation may be important. But what our soldiers, organized into a fighting force, do to defend us is far more important. If that's so, then you can't treat the military as a pariah, focusing on its small error and not on its great virtue.

When I've made this argument before, some people have responded "Well, we wouldn't let a law firm interview if it discriminated against gays; why should we let the military do so?" Yup, that's right, the military, it's just another bigoted law firm. Jones & Smith, the U.S. Army, same difference. That's what the logic of antidiscrimination-above-all tells us.

But perspective reminds us that those institutions that defend our lives deserve slightly more accommodation -— yes, even despite what we may see as their vices -— than institutions that don't. And any morality and any symbolism that fails to keep this proper perspective is not a morality or symbolism to live by.

I've put the PDF file containing the petition, ready to be signed and sent in, here, but here's the text:


WHEREAS, ORS 9.148 provides:

"(4) Active members of the state bar, by written petition signed by no fewer than five percent of all active members, may request that the board of governors submit to a vote of the members any question or measure. The board of governors shall submit the question or measure to a vote of the members of the bar if the question or measure is appropriate for a vote of the members. The initiative petition must contain the full text of the question or measure proposed."

The undersigned, being active members of the Oregon State Bar, request, pursuant to ORS 9.148, that the Board of Governors of the Oregon State Bar submit the following question to a vote of the membership:

Should the Board of Governors immediately allow the Armed Forces of the United States of America to advertise in the Oregon State Bar Bulletin, notwithstanding anything to the contrary in Article 10 of the Oregon State Bar Bylaws, or any other bylaw provision, rule, or policy of the Oregon State Bar?
It is further requested that: 1) the Board of Governors shall take all steps which may reasonably be required in order to conclude the vote of the membership no later than April 30, 2007; and 2) if the majority vote of the membership is in favor of allowing the Armed Forces of the United States of America to advertise in the Bulletin, that the Board of Governors shall take all steps which may reasonably be required to implement the will of the membership, including but not limited to amendment of the Oregon State Bar Bylaws.

[Space for signatures here]

(Please return signed petitions to: Velda Rogers, 1115 Madison Street NE, No. 118, Salem, OR 97303. When sufficient signatures are collected, this petition will be submitted to the OSB Board of Governors.)

Sponsored By: Thomas Boardman (Portland); George L. Derr (Eugene); Stephen D. Finlayson (Burns, HOD Region 1); Gary M. Georgeff (Brookings, HOD Region 3); Diane L. Gruber (West Linn, HOD Region 6); CDR William P. Haberlach (JAGC) USNR-R (Medford, HOD Region 3); Eugene J. Karandy (Albany, HOD Region 3); Peter J. Mozena (Portland, HOD Region 5); Victor C. Pagel (Salem); Velda Rogers (Salem, HOD Region 6); Craig O. West (Tualatin, HOD Region 4).


Duke Power Oral Argument:

Last week, SCOTUSBlog posted two assessments of the oral argument in Environmental Defense v. Duke Power Corp., a case concerning when power plant modifications or repairs trigger federal "New Source Review" regulations that require new and modified stationary sources to adopt state-of-the-art pollution control equipment.

Paul Guterman of Akin Gump observed that the argument "meandered" and, interestingly, that

none of the Justices show[ed] much respect for the jurisdictional arguments raised by the Petitioners or, surprisingly, for the legal reasoning of either the 4th Circuit opinion by Judge Motz or the 7th Circuit opinion by Judge Posner.
Guterman further noted that the justices repeatedly focused on the potential ambiguity of the EPA's regulations; "While seemingly mundane, the issue of whether the regulations are ambiguous has paramount importance for both the substantive and jurisdictional arguments." If the regulations are ambiguous, then it is more difficult to argue both that Duke Energy and other utilities clearly violated federal law when they modified their facilities and that lower courts err when they evaluate the EPA's interpretation of its regulations in the context of an enforcement action.

Baker & Hoestetler's David Rivkin (who authored the amicus brief in which I participated) echoed some of Guterman's observations about the court's focus on the jurisdictional questions.

After Wednesday’s oral argument in Environmental Defense v. Duke Energy Corp., it is clear that if the Supreme Court really accepted certiorari to defend the D.C. Circuit’s prerogative to decide the validity of agency action (a claim made by many an environmental pundit in the last several months), the Court spent an awful lot of time trying to figure out the answer to merit questions that the government and environmental groups allege it shouldn’t even be deciding. And, while it is uncertain which party will ultimately prevail in Duke Energy, it is clear that the case will not be the cakewalk for petitioners that many observers had predicted when the Supreme Court accepted the case for review over the government' and Duke Energy’s objections.
Both Guterman and Rivkin seem to think the outcome is uncertain. Whatever the result, the decision could have significant economic, environmental, and legal implications. Several other NSR enforcement cases are still in the courts, and while the EPA has proposed to rewrite the relevant regulations, it is likely the agency will have to defend these changes in court as well.

In closing, Rivkin offered this assessment:

depending on how you view the issue, the government either can’t win or can’t lose. As has been well publicized, the government has pursued its NSR enforcement actions simultaneous with attempts to promulgate legislative rules that make the conduct in which the enforcement action defendants engaged legal. So if the government loses Duke Energy, it will very likely succeed in its attempts to reform the NSR program, and if the government prevails in Duke Energy, its attempts to reform the NSR program might be dealt a blow, but it will be in a better position in the enforcement actions.


Campaign Infiltration in Ohio?

Ohio political blogs are buzzing about a series of posts (1, 2, 3) on the Buckeye State Blog suggesting an effort to infiltrate Republican get-out-the-vote efforts. (See also here.)

This may well be a hoax or put-on designed to send right-leaning blogs into a tizz. (If so, it worked.) Nonetheless, if this were real, would infiltration of this sort be illegal? Bizzyblog notes the following Ohio Revised Code provisions.


(A) No person, during the course of any campaign for nomination or election to public office or office of a political party, shall knowingly and with intent to affect the outcome of such campaign do any of the following:

(1) Serve, or place another person to serve, as an agent or employee in the election campaign organization of a candidate for the purpose of acting to impede the conduct of the candidate’s campaign for nomination or election or of reporting information to the employee’s employer or the agent’s principal without the knowledge of the candidate or the candidate’s organization;

Whether this provision would apply to the alleged (and as-yet unconfirmed) infiltration effort would seem to depend on whether a party-run get-out-the-vote effort would qualify as an "election campaign organization of a candidate" under the statute. Certainly the purpose of the statute is served by s uch a broad reading of the text, but I do not know whether this is the interpretive approach Ohio courts have used in similar contexts. In addition, the state would also have to demonstrate that any alleged infiltrators (or infiltration organizers) acted with the requisite intent: "knowingly and with intent to affect the outcome of such campaign."

There is also the question of how actual infiltration efforts of this sort could actually be detected. Given the nuber of people involved in get-out-the-vote phone banks and door-to-door efforts, I would think it is very difficult to ensure that those whovolunteer for such efforts are sincere. So, whether or not this campaign is real, I would not be surprised if partisans on both sides of the aisle have sought to infiltrate opposing operations in the past, even if only to get a better handle on the opposition's tactics. But that does not make it proper or legit.

UPDATE: I posted on this issue, as opposed to others (e.g. fake robocalls), because it's getting lots of attention on local blogs here in Ohio, and I thought it presented an interesting legal question. As for the fake robocalls, if they are as described they are a deplorable campaign tactic. The two things I am curious about (and have not yet seen) are a) the actual text of the calls, and b) why such calls would be illegal under current law. I welcome any comments that elucidate either of these points.

FURTHER UPDATE: The folks at Buckeye State Blog and Plunderbund claim their efforts to solicit infiltrators was "a purely psyops operation" designed to see how the right-wing blogosphere would respond. Write the folks at BSB: "what we really infiltrated was their paranoid minds. In fact so successful was this infiltration that it actually affected the GOP's GOTV effort."


Still More on Rational Voting - 2nd Reply to Jim Lindgren:

Jim Lindgren's most recent post is a rejoinder to my original reply. To recap, I argued that Jim's initial argument against my theory of rational voting doesn't refute it because Jim assumes that, for my theory to be correct, there must be a linear relationship between "the amount of money you are willing to give up to benefit others and the amount of benefit they receive from the sacrifice... That is, if you are willing to give up $1 so that your neighbor will get $1000, you are also willing to give up $1.5 billion in order to give your fellow Americans $1.5 trillion." To my mind, there is a big difference between the willingness to make relatively small, even trivial sacrifices and very large ones. The person who is willing to sacrifice $10 to give his fellow citizens an expected benefit of $15,000 (the tradeoff in the equation from my paper) won't necessarily be willing to sacrifice $1.5 million to give them $1.5 trillion.

Jim replies:

But Ilya, surely you understand that it is YOUR EQUATION that is linear. If you run the numbers through your own equation, you get EXACTLY the results I reported. You assume that each and every voter on average would value a guarantee of his own preference for president at $5,000 for one person’s benefit and altruistically internalizes 1.5 billion dollars of the benefit of others.

Dividing the $1.5 billion altruistic utility that your equation and example say that each voter on average acts on in choosing to vote by 100 million to generate a benefit of $15 does not make your equation any less linear, a fact that you surely know. If the relationship is not “purely linear” (or even remotely linear), then your equation is dead wrong because your equation is purely linear.

Yes, the equation is purely linear. That is because I did not consider, in setting up the model, cases where the decisionmaker must decide whether to make a very large sacrifice rather than a small one. Quite likely, I was wrong to ignore that scenario, although I don't think that it is relevant to an analysis of the utility of voting (almost always an act that requires only small sacrifices). But building it into the equation would not significantly alter the result. For example, one could change the cost term in the equation (cost of voting) to include an additional variable that accounts for the fact that the tradeoff will change as C (the dollar cost of voting) becomes an increasingly high percentage of the potential voter's total wealth. Thus, the Total Cost (TC) of voting=C + (CxP), with P representing the percentage of the voter's wealth that $C is. For most people, however the cost of voting (which I assumed to be $10) will be a tiny percentage of their total wealth, and thus CxP will be utterly insignificant in real world terms (at least when dealing with voting). For example, if $10 is an unrealistically high 0.1% of the person's total wealth, then CxP will be $1.

One could even posit a geometric rather than arithmetic increase in the value of CxP as C rises, since sacrificing 50% of your wealth may well pinch a lot more than fifty times as much as the suffering you feel from sacrificing %1.In technical economic terms, the marginal utility of income may go down as your wealth increases, but it may actually go up as your wealth decreases. Losing $100 is a small sacrifice for me, but perhaps a big one for a very poor person. An implication of this point is that very poor people will have lower turnout rates than others (because they are the only ones for whom CxP might be significant), and the evidence of numerous turnout studies does indeed bear this out.

In sum, the unwillingness of people to make very large sacrifices to vote, in my view, says little about their willingness to make very small ones. However, Jim's analysis does highlight the need to deal with this point explicitly in future versions of the model (sadly, it is too late to incorporate in this particular publication, which will soon be going to press).

Lastly, Jim, I think, continues to make the mistake of conflating dollar cost with utility, that I pointed out in my previous post. In the paper, I use hypothetical dollars as a convenient symbol for total utility, but I also emphasized that, in the real world, monetary cost is just one part of the total utility of voting.

UPDATE: Here's a simpler way of making my point that occurred to me after I'd already written the body of this post:

Many people routinely contribute small portions of their income to charity, say $100, in order to produce benefits for others. Let's say that a $100 donation produces 100 units of utility for those who benefit from the charity. Most of those who are willing to donate $100 to charity in order to produce 100 utiles would not be willing to donate $50,000 to produce 50,000 utiles. Yet this is not irrational; it simply represents the fact there is a nonlinear relationship between people's willingness to make small sacrifices for others and their willingness to make large ones. Many people are willing to be moderately generous, but very few are willing to be martyrs for a cause.

The same point applies to voting. The person who is willing to sacrifice the equivalent of $10 in order to give his fellow citizens an expected value of $15,000 is not necessarily irrational if she is simultaneously unwilling to sacrifice $1.5 million in order to give them $1.5 trillion, or even to sacrifice $35,000 in order to do so (as in one of the examples Jim analyzes).

Related Posts (on one page):

  1. Still More on Rational Voting - 2nd Reply to Jim Lindgren:
  2. Rational Voting: Second Lindgren Post (Responding to Somin).--

Rational Voting: Second Lindgren Post (Responding to Somin).--

I can see that Ilya Somin and I will probably go a couple more rounds in our discussion of rational voting.

Nonetheless, I confess that I was surprised by Ilya’s response in a post below.

Here is Ilya’s first point:

I assumed, in my analysis, that they value benefits to fellow citizens on average, 1/1000 as much as they value benefits to themselves. Jim argues, however, that:

Ilya's equation assumes that, if a voter could guarantee a victory for his preferred candidate, a typical voter would be willing to pay only $5,000 for one person's benefit (presumably his own), but that the same voter would be willing to pay about $1.5 billion dollars to benefit others ($5,000 x 300 million people / 1000). In other words, Ilya assumes that a rational voter when voting values the total utility of other Americans 300,000 times more than he values his own total non-altruistic utility ($1.5 billion to $5,000). Moreover, even leaving aside the comparative valuation, it can’t be that (because of altruism) the utility to each person voting of having one’s preferred candidate certain to win would be $1.5 billion dollars. To say that these are extraordinarily implausible assumptions is an understatement.

I have two responses to Jim's point, one technical, the other intuitive. Let's take the intuitive point first: Jim's analysis assumes that the relationship between the amount of money you are willing to give up to benefit others and the amount of benefit they receive from the sacrifice is purely linear. That is, if you are willing to give up $1 so that your neighbor will get $1000, you are also willing to give up $1.5 billion in order to give your fellow Americans $1.5 trillion. To my mind, the second doesn't necessarily follow from the first. Jim has shown that my analysis becomes implausible in cases where the voter/citizen is called upon to make very large sacrifices. When we're talking about voting, we're generally talking about a very small sacrifice.
But Ilya, surely you understand that it is YOUR EQUATION that is linear. If you run the numbers through your own equation, you get EXACTLY the results I reported. You assume that each and every voter on average would value a guarantee of his own preference for president at $5,000 for one person’s benefit and altruistically internalizes 1.5 billion dollars of the benefit of others.

Dividing the $1.5 billion altruistic utility that your equation and example say that each voter on average acts on in choosing to vote by 100 million to generate a benefit of $15 does not make your equation any less linear, a fact that you surely know. If the relationship is not “purely linear” (or even remotely linear), then your equation is dead wrong because your equation is purely linear.

Really, you can forget about whether the supposed $1.5 billion converts to income in a linear fashion, since my critique does not actually depend on whether you are now partially undercutting your earlier claim that the utility you posit has direct dollar equivalents.

As my own speculative example hinted at, I doubt that most voters valuing a win for their preferred candidate at $5,000 (your assumed utility value) would altruistically value and internalize into their own decisionmaking the utility of victory for others at more than $5,000-50,000, certainly nothing even close to the $1.5 billion value for altruism you posit as being present on average.

Remember, you need such a huge altruistic value for total utility or your hypothesized rationality doesn’t appear. Would someone rationally incur a $10 loss to gain a 0.005 cent to 0.05 cent gain in utility, as my more reasonable assumption of total utility would generate? Even if your model had assumed nonlinearity or nonequivalence in money (neither of which you actually assumed in your article), there still would be a massive gap between the 1.5 billion in total internalized utility that you assume on average and the $5,000 to $50,000 total internalized utility that I would assume on average.

I guess I’ve persuaded you that your equation is wrong, because in your response you appear not to think that each and every voter on average values the winner at 1.5 billion dollars, which is the number that your equation and your hypothetical example yields.

Related Posts (on one page):

  1. Still More on Rational Voting - 2nd Reply to Jim Lindgren:
  2. Rational Voting: Second Lindgren Post (Responding to Somin).--

Cute Law Review Article Title:

Dave Hoffman's The Best Puffery Article Ever.


Sunday, November 5, 2006

More on the Rationality of Voting - Reply to Jim Lindgren:

Co-blogger Jim Lindgren has a thoughtful response to my analysis of the rationality of voting. To briefly recap, I argue that voting is rational if 1) voters value the utility of their fellow citizens as well as their own, and 2) they perceive a big enough difference between the "right" candidate and his or her opponent. In reply, Jim makes the point that I may overestimate the extent to which people value the utility of others relative to their own. I assumed, in my analysis, that they value benefits to fellow citizens on average, 1/1000 as much as they value benefits to themselves. Jim argues, however, that:

Ilya's equation assumes that, if a voter could guarantee a victory for his preferred candidate, a typical voter would be willing to pay only $5,000 for one person's benefit (presumably his own), but that the same voter would be willing to pay about $1.5 billion dollars to benefit others ($5,000 x 300 million people / 1000). In other words, Ilya assumes that a rational voter when voting values the total utility of other Americans 300,000 times more than he values his own total non-altruistic utility ($1.5 billion to $5,000). Moreover, even leaving aside the comparative valuation, it can’t be that (because of altruism) the utility to each person voting of having one’s preferred candidate certain to win would be $1.5 billion dollars. To say that these are extraordinarily implausible assumptions is an understatement.

I have two responses to Jim's point, one technical, the other intuitive. Let's take the intuitive point first: Jim's analysis assumes that the relationship between the amount of money you are willing to give up to benefit others and the amount of benefit they receive from the sacrifice is purely linear. That is, if you are willing to give up $1 so that your neighbor will get $1000, you are also willing to give up $1.5 billion in order to give your fellow Americans $1.5 trillion. To my mind, the second doesn't necessarily follow from the first. Jim has shown that my analysis becomes implausible in cases where the voter/citizen is called upon to make very large sacrifices. When we're talking about voting, we're generally talking about a very small sacrifice.

Second, the technical point. Jim has (understandably) conflated the distinction between dollar income and utility. My analysis assumes that people value the utility of others at 1/1000 of their own, which is not the same thing as valuing the added dollar income of others at 1/1000 of the rate at which you value adding dollars to your income. When we're talking about making a sacrifice of $35,000 out of a $50,000 annual income (to use Jim's example), we're talking about a vastly greater loss of utility to the donor than when we're talking about sacrificing $10. And the difference between the two may well be much greater than $35,000/10. The $10 sacrifice is essentially trivial, while the $35,000 may wreck the donor's life for months or years to to come.

The slightly altruistic donor/voter of my model might well reason that this massive sacrifice on his part outweighs the utility gain to the rest of the population from having the right candidate win, so long as he discounts the latter by a factor of 1000. It's worth noting, however, that there are in fact people who sacrifice the equivalent of 70% of one year's income to try to ensure that their preferred candidate will win an election. Many campaign volunteers do precisely that. I suspect that there would be more such people if they could be assured that their sacrifice would guarantee victory, rather than just increase the likelihood somewhat at the margin.

In a large and diverse electorate, the 1/1000 figure is best viewed as a rough average rather than as a precise estimate of every individual voter's degree of altruism. In reality, some people are much less altruistic than this and others more so.


The Possible Rationality of Voting; Another View.--

My co-blogger and former (visiting) colleague Ilya Somin has an interesting article on the rationality of voter ignorance forthcoming in Critical Review, which he blogged about yesterday. On empirical matters, Ilya and I usually agree, often using some of the same data sources to make our points. But here, we seem to differ on a theoretical matter based on a difference in modeling assumptions.

In his post, Ilya argues that, because of altruism, voting is rational in order to increase the probability that your preferred candidate will win. As I will explain below, I think that one can come up with a story consistent with rational voting, but probably not the story that Ilya tells.

Ilya summarizes his argument in his post:

The key insight is that the traditional rational choice theory of voting implicitly assumes that the voter cares only about their own self-interest, narrowly defined. But if you care even slightly about the potential benefits to fellow citizens of ensuring that the "right" candidate wins, then the sum total of those benefits might well outweigh the (generally low) costs of voting even after discounting for the fact that there is only a minute chance that your vote will make a difference. . . .

This theory is not entirely original to me; it was in fact proposed by philosopher Derek Parfit in his 1984 book Reasons and Persons (pp. 73-75); what I have done is explore its implications for voting theory more generally. Until now, Parfit's theory has been largely ignored by academic scholars of voting, perhaps because Parfit is not an economist or political scientist, and his book is primarily devoted to other subjects.

Of course, perhaps the other reason that Parfit’s theory has been largely ignored is that it is appears to be wrong.

Ilya’s Equation

In doing his modeling and making what he says are “plausible assumptions,” Ilya assumes that the odds of casting the deciding vote are 100 million to 1 and that people value their own utility 1000 times more than each other individual’s utility.

The equation on the rationality of voting that Ilya refers to is this (Somin manuscript, page 4):

(((Expected Difference in Welfare per person if the preferred candidate wins) x (300 million people) / 1000) / 100 million)) - Cost of Voting = Expected Utility of Voting

Ilya assumes that the cost of voting is $10, and the expected benefit per person of the preferred candidate winning is $5,000. If you plug in these numbers, the result is:

($5000 x 300,000,000 / 1000) / 100,000,000) – $10 = $5 (net expected value of voting).

Accordingly, Ilya concludes that voting would be rational because the expected benefit of $15 is larger than the expected cost of $10, leaving a net expected benefit of $5 for voting.

A Serious Problem With One Assumption

One of the nice things about equations is that their assumptions are usually explicit. Look more closely at Ilya’s equation and what it says about voter preferences BEFORE the 1 in a 100 million discount is applied.

Ilya's equation assumes that, if a voter could guarantee a victory for his preferred candidate, a typical voter would be willing to pay only $5,000 for one person's benefit (presumably his own), but that the same voter would be willing to pay about $1.5 billion dollars to benefit others ($5,000 x 300 million people / 1000). In other words, Ilya assumes that a rational voter when voting values the total utility of other Americans 300,000 times more than he values his own total non-altruistic utility ($1.5 billion to $5,000). Moreover, even leaving aside the comparative valuation, it can’t be that (because of altruism) the utility to each person voting of having one’s preferred candidate certain to win would be $1.5 billion dollars. To say that these are extraordinarily implausible assumptions is an understatement.

I think, for example, that if most individuals were given a choice between half a billion dollars for one's own bank account and certain victory for one’s preferred presidential candidate, most individuals would be willing to switch allegiances and take the half billion dollars. Indeed, I suspect that a majority of individual voter’s allegiances could be purchased for a secret political consulting job paying much less than $200,000 per person (assuming certain victory for the candidate doing the hiring).

So let’s make a much more rational assumption, but still one that is unrealistically generous to Ilya’s position. Let’s assume that a typical voter has a family gross income of $50,000 and a take-home pay of $35,000, and like Ilya, let’s assume that the voter would be willing to pay $5,000 just for one person's benefit (his own) to guarantee a win for his preferred presidential candidate. Now let’s be extraordinarily generous to Ilya’s position and assume that the typical voter is highly altruistic and would be willing to pay another $35,000 (an entire year of his family’s take-home pay) just to benefit others, not himself, by having his preferred candidate win.

Plugging this into Ilya’s analysis, the expected benefit to each person of voting would be $40,000, divided by 100 million (the probability of casting the deciding vote), which is only 4 one-hundredths of a penny. Obviously, voting would be highly irrational, since the expected benefit to even a highly altruistic voter of just 0.04 cents is much less than Ilya’s assumed cost of $10 for voting. Thus, even for an extraordinarily altruistic voter, voting is highly irrational if its purpose is to influence the outcome of a presidential election.


Voting and the Wisdom of Crowds:

Several commenters on my post on the rationality of voting brought up James Surowiecki's interesting book, The Wisdom of Crowds. It so happens that I wrote a review of the Wisdom of Crowds last year, where I explained why his argument that large numbers of individually ignorant decision-makers can make seeemingly well-informed collective choices does not work well in the context of voting. For those interested, the review is available here.


Right to Speak About Detainee Treatment?: The Washington Post reports on an argument made in court recently by the Justice Department in detainee treatment cases:
The Bush administration has told a federal judge that terrorism suspects held in secret CIA prisons should not be allowed to reveal details of the "alternative interrogation methods" that their captors used to get them to talk.

The government says in new court filings that those interrogation methods are now among the nation's most sensitive national security secrets and that their release — even to the detainees' own attorneys — "could reasonably be expected to cause extremely grave damage." Terrorists could use the information to train in counter-interrogation techniques and foil government efforts to elicit information about their methods and plots, according to government documents submitted to U.S. District Judge Reggie B. Walton on Oct. 26. . . .

The government, in trying to block lawyers' access to the 14 detainees, effectively asserts that the detainees' experiences are a secret that should never be shared with the public.

Because Khan "was detained by CIA in this program, he may have come into possession of information, including locations of detention, conditions of detention, and alternative interrogation techniques that is classified at the TOP SECRET//SCI level," an affidavit from CIA Information Review Officer Marilyn A. Dorn states, using the acronym for "sensitive compartmented information."
  Marty Lederman has posted the brief here, and the affidavit here.

  As best I can tell, the context of the argument is that counsel for the petitioners, who are now at Gitmo but previously were detained in CIA secret prisons, proposed a regime for access to their clients that is modeled off of the regimes used in other Guantanamo cases. In this brief, DOJ argues that the court should not allow counsel to see the petitioners for two reasons. First, the court has no jurisdiction over these cases under the jurisdiction-stripping provisions of both the Detainee Treatment Act of 2005 and the Military Commissions Act of 2006, and, in any event, the court should resolve those jurisdictional issues first. Second, even if the court has jurisdiction, the procedures proposed by counsel are inadequate because the petitioners have top secret information about the CIA secret prisons. There needs to be special procedures put in place to make sure those secrets aren't leaked.

  I don't have much reaction to the first argument, but the government's brief on the second argument is notable for the paucity of citation to pertinent legal authority. The DOJ brief has the usual citations to general claims of the importance of the Executive Branch, but it seems to cite nothing with any direct relevance to the actual legal arguments the brief is attempting to make. Even more strangely, footnote 21 states that if the court wants to enter a protective order and allow access, it "should permit respondents a reasonable time to propose such a regime, confer with petitioners’ counsel regarding it, and present a proposal to the Court." I suppose this is better than simply arguing the jurisdictional point exclusively, but the reader can't help but wonder what kind of regime DOJ has in mind. If the facts of what happened to the petitioners are top secret, how does DOJ expect the attorneys to put on a defense?

Crescat Sententia has moved:

It's now at, instead of at its previous home at dot org. Please visit it there! (The version currently up at dot org is a fake. Ignore it!)

Compare to: "Homestarrunner dot net. It's dot com!"

Related Posts (on one page):

  1. Crescat and Wikipedia by Holbo:
  2. Crescat Sententia has moved:

Waiting for the Saddam Verdict.--

4 AM ET: The first defendant has now been brought into court into Iraq:

Chief Judge Raouf Adbul-Rahman called for defendant Mohammed Azawi Ali to be brought into court first. He was a Baath Party official in Dujail and is one of the lesser-known defendants. The order in which the defendants were being called indicated Saddam would be last.

4:07 AM ET: One defendant found not guilty, several others convicted:

Chief Judge Raouf Adbul-Rahman called for defendant Azzawi to be brought into court first.

He was a Baath Party official in Dujail and is one of the lesser-known defendants.

Former Iraqi vice president Taha Yassin Ramadan received a life sentence.

Three other Baath Party officials were sentenced to 15 years in jail for willfull killing.

The judge also sentenced them to seven years each for torture but they will serve the sentences concurrently.

4:09 AM: Saddam found guilty and sentenced to death by hanging. Saddam starts yelling in response.

Why it's (often) rational to vote:

The upcoming election raises the important question of whether it's rational for you to vote. You might think that the answer is obviously "yes." But economists and other rational choice theorists have long argued that voting is irrational. Why? Because there is only an infinitesmally small chance that your vote will make a difference. In a U.S. presidential election, the chance that one vote will decide the outcome is less than 1 in 100 million, and it is still extremely small even in elections for the House or Senate. Thus, the 30 or 40 minutes of time that it takes to vote is probably far more valuable than whatever benefit you hope to derive from the "right" candidate winning, if the latter is divided by the ludicrously tiny chance that your vote will be decisive.

Critics of rational choice theory, of course, have had a field day arguing that rational explanations of human behavior are invalidated by the obvious fact that millions of people do vote, despite its being irrational to do so. The critics are, quite rightly, not swayed by arguments that voting is rational because people feel they have a "duty" to go to the polls. After all, why would it be rational believe you have a duty to do something that makes no difference? Duty-based explanations don't rescue rational choice theories of voting; they just add another layer of irrationality to the mix.

In fact, however, both sides are wrong. It is indeed rational for many people to vote, and therefore the existence of widespread voting is not evidence against the validity of economics or rational choice theory. For a detailed explanation, complete with equations, see my forthcoming article here.

The key insight is that the traditional rational choice theory of voting implicitly assumes that the voter cares only about their own self-interest, narrowly defined. But if you care even slightly about the potential benefits to fellow citizens of ensuring that the "right" candidate wins, then the sum total of those benefits might well outweigh the (generally low) costs of voting even after discounting for the fact that there is only a minute chance that your vote will make a difference. Real-world voters, of course, probably don't go through detailed calculations of the sort that I describe in the article. But they do likely realize that their is little chance that their vote will make a decisive difference, while also caring at least slightly about the welfare of their fellow citizens. And the combination of these two assumptions is enough, for many people, to make a rational decision to vote.

Of course, under these assumptions, it will be rational to vote only if you perceive a significant difference between the two opposing candidates or parties. And, as I note in the paper, studies do indeed show that those who perceive a big difference between the two sides are far more likely to vote than those who don't.

This theory is not entirely original to me; it was in fact proposed by philosopher Derek Parfit in his 1984 book Reasons and Persons (pp. 73-75); what I have done is explore its implications for voting theory more generally. Until now, Parfit's theory has been largely ignored by academic scholars of voting, perhaps because Parfit is not an economist or political scientist, and his book is primarily devoted to other subjects.

Not all the implications of the Parfit model are reassuring. As I show in my article, despite the fact that it is rational to vote, it is also rational for most people to be poorly informed about politics (primarily because acquiring and processing political information is much more costly and time-consuming than voting). For the minority that is well-informed, it may well be rational to analyze the information they do have in a biased and illogical way. Thus, a rational population is likely to have a large number of people who choose to vote but also tend to be ignorant and/or illogical about politics.

UPDATE: Some commenters argue that it's rational to vote because of the chance that, even if your vote isn't decisive, it can send a "message" about the degree of support for a particular candidate, policy, or party. But the same logic applies here. The chance that the "message" will be "received" is only infinitesmally greater if Candidate X gets 10 million votes than if he gets 9,999,999. The impact of any one vote on the probability of successfully sending a message is unlikely to be much greater than its impact on the probability of winning the election.


Are the Democrats Likely to Take One Chamber or Two?--

I’ve been looking at which party is going to control the Senate after the election, and I’m a bit surprised at some of the juxtapositions.

The Friday prices on the Iowa Electronic Markets show a 83.5% chance of Democrats gaining control of the House and a 33% chance of gaining control of the Senate (i.e., the Republicans having fewer than 50 Senate seats).

The Saturday evening TradeSports line is similar: the Democrats have an 87-88% chance of taking the House and a 31.6-31.9% chance of taking the Senate.

The House races are too numerous for me to make much sense of, but as I read RealClearPolitics, the Democrats need to pick up 6 seats to control the Senate, assuming that the probable 2 independents (Lieberman and Jeffords['s independent replacement Bernie Sanders]) caucus with them.

Likely pickups are PA (Casey +11.2%) and OH (Brown +11.2%).

Leaning Democratic is RI (Whitehouse +9.2%).

The other three possible pickups are listed as tossups (MO, MT, and VA), but the Democrat is ahead in the RCP poll averages in each race by 0.6% to 1.7%.

The Saturday night TradeSports bid/ask spreads also support Democratic victories in each individual race:

MO: DEM: 50.3% - 55%; REPUB: 46.1-48%.

MT: DEM: 65% - 68%; REPUB: 35-39.8%.

VA: DEM: 55.2% - 58%; REPUB: 43.3-48.2%.

So if each individual race breaks as currently polled, the Democrats win the Senate.

There is an outside chance that the Democrats could pick up one of the other two Republican seats that RCP lists as leaning Republican (AZ, 8%, and TN, 6.5%), even if it lost one of the seats listed above.

If each race individually goes according to the current polls and current betting line, the Democrats win both houses of Congress. But since so many races have to go toward the Democrats for them to win control of the Senate, both TradeSports and the Iowa Electronic Markets reflect about a 2 to 1 odds of the Republicans keeping the Senate.

I find this an interesting example illustrating joint probabilities: combining even highly correlated multiple probabilities more than 50% yields a joint probability significantly less than 50%.


Women and Role-Playing Games:

Sociologist E. Cabell Hankinson Gathman has an interesting article on women and role-playing games, trying to explain why so few women play RPGs.

OK, the article may well be interesting primarily to those of us who spent a lot of time in high school playing Dungeons and Dragons. But I suspect that RPG veterans are, ahem, disproportionately represented among the learned VC readership.

To me, another fascinating aspect of the article is the way in which the RPG culture is now primarily focused on online gaming, as opposed to the "real world" interaction that was the only game in town in the preinternet era when I played D&D.