Saturday, November 25, 2006
I don't know who's paying for this service, but my wife just called Israel with it:
FREE INTERNATIONAL CALLS You can now call any of 50 countries from the United States, free. Talk as long as you like. You pay only for a call to the access number in Iowa, which is 712-858-8883; if you use your cellphone on nights or weekends, even that’s a free call.
There’s no contract, no ads, nothing to sign up for. At the prompt, press 1 for English. Then punch in 011, the country code and the phone number. The call rings through immediately.
Fine print: In some countries, you can reach only landlines, not cellphones. And in part because FuturePhone's lines have been flooded, its success at placing calls is not, ahem, 100 percent.
Hat tip: NY Times.
[See Second Update Below]
ANOTHER UPDATE: Radley's latest post makes clear that my earlier post badly misunderstood his position. My apologies. In its Fourth Amendment cases, the Supreme Court routinely refers to "invasion" of a home to mean any physical access, and I assumed Radley was using the word in the way the Supreme Court does, not to refer only to no-knock paramilitary raids. Radley seems to think my misunderstanding was in bad faith; it wasn't. In any event, I regret the misunderstanding.
If the police storm in and you — not being a drug dealer and consequently having no reason to think the police might break into your home — mistake them for criminal intruders and meet them with a gun, you are at fault. I guess your crime is living in an area where drug dealers could use your porch while you aren't home, or being a too trusting, frail, old woman. Sorry about your luck.
On the other hand, if the police break into your home and they mistake the blue cup, TV remote, the t-shirt you're holding to cover your genitals because they broke in while you were sleeping naked, or the glint off your wristwatch for a gun — and subsequently shoot you (all of these scenarios have actually happened), well, then no one is to blame. Because, you see, SWAT raids are inherently dangerous and volatile, and it's perfectly understandable how police might mistake an innocent person holding a t-shirt for a violent drug dealer with gun.
Do you see the double standard, here? If the warrant is legit, they are allowed to make mistakes. You aren't.
This discrepancy grows all the more absurd when you consider that they have extensive training, you don't. They have also spent hours preparing for the raid. You were startled from your sleep, and have just seconds to make a life-or-death decision. To top it all off, many times they've just deployed a flashbang grenade that is designed to confuse and disorient you.
What's the solution? It isn't to encourage people to start shooting raiding cops to kill. That kind of talk is foolish, and needs to stop. But it isn't to encourage to people to refrain from defending their homes, either. Both of those suggestions will lead to more people dying — both police and citizens.
The solution is actually pretty simple: Stop invading people's homes for nonviolent offenses.
UPDATE: In response to Orin's post above, let me make two points. First, I think it is a reasonable claim that, as a practical matter, the legal system is more lenient on police officers who overstep their bounds in these sorts of raids than it is on those who respond with force to no-knock raids out of a fear for their lives. Just because the law on the books is even-handed does not mean it will be applied in an even-handed fashion. If there is empirical data suggesting Radley Balko's characterization of how the law of self-defense and civil liability for police officers is applied in these sorts of circumstances, I would be quite interested in seeing it.
Second, when Balko advocates that police "stop invading people's homes for nonviolent offenses," I believe he is referring to the sort of no-knock, military-style raids about he so often writes. As I understand Balko's recommendation, these are the sorts of "invasions" to which he objects, and he is not recommending that police lose all ability to execute warrants and search peoples homes for evidence of non-violent crimes. Balko's recommendation may still, on the margin, make it more difficult for the police to collect evidence of certain crimes. The question is then whether this is worth the reduced likelihood of police and civilian casualties caused by excessive reliance on military tactics in law enforcement. From what I have read to date, I think it is, but I would certainly be interested in arguments to the contrary.
Radley Balko has more here.
In a rare show of agreement, both liberal constitutional law scholar Sandy Levinson and conservative Michael Rappaport argue that the the 1947 presidential Succession in Office Act should be amended to allow the Secretary of State to be third in line for the presidency after the president and vice president (hat tip Instapundit). Under the current system, the line of succession first goes through the Speaker of the House of Representatives and the President pro tempore of the Senate.
As Sandy and Michael both point out, the status quo creates the potential for serious problems. A president who dies, becomes incapacitated, is impeached, or forced to resign might be succeeded by a politician from another party. For example, if Dick Cheney is unable to serve, George W. Bush would be succeeded by incoming Democratic Speaker Nancy Pelosi. From 1995 to 1998, Democrat Bill Clinton could have been succeeded by his political archenemy, Republican House Speaker Newt Gingrich. Divided government is now the normal state of affairs in American politics, so such scenarios are likely to be common.
There is also another weakness in the current system, one that Michael and Sandy don't consider in their posts. Fourth in line under the 1947 act is the president pro tempore of the Senate. By tradition, the president pro temp is the longest-serving Senator of the majority party. The current PPT is Republican porker Ted Stevens of Alaska - soon to be replaced by the Democrats' own "King of Pork," Bob Byrd of West Virginia. In addition to their other shortcomings, both Stevens and Byrd are in their 80s (83 and 89 respectively). This is not accidental. By its very nature, the presidency pro temp is likely to be held by elderly and often infirm politicians. Senators who last for decades are also likely (by virtue of their seniority) to be heavily implicated in porkbarreling and other dubious practices of the world's greatest deliberative body. For these reasons, among others, the PPT should not be included in the line of presidential succession.
Friday, November 24, 2006
UPDATE: Commenters, as usual, have gotten bogged down in a general Israelis versus Palestinians debate. What I meant to point out is that the terrorist groups try to exploit any vulnerability on the Israeli side, regardless of what that means for the quality of life of the Palestinians they claim to represent. The elderly, children, and women, used to get more or less a free pass at Israeli checkpoints, because the terrorists used only young men. But once the terrorists figured out that young men would be checked thoroughly, they started using children, women, and now even elderly women. Which means that Israel will have no choice, security-wise, but to now check these groups thoroughly, too, making their lives more unpleasant (and opening them up to the abuse that unfortunately occurs whenever you give 19 year olds with guns discretionary authority). Similarly, whenever Israel tries to open up the Gaza border crossing, and he Erez industrial zone that used to provide thousands of jobs for Palestinians, the terrorists attack there almost immediately. The saddest thing is that "the terrorists" are not some fringe group, but the Palestinian government, as well as the opposition factions. And of course, they then turn this, actions they intentionally provoked, into a propaganda victory: "look at Israel 'harass' old women at checkpoints! look at Israel refusing employment to Palestinians!"
Japanese authorities are aghast at what passes for Japanese food in much of the rest of the world, today's Washington Post reports.
A fast-growing list of gastronomic indignities -- from sham sake in Paris to shoddy sashimi in Bangkok -- has prompted Japanese authorities to launch a counterattack in defense of this nation's celebrated food culture. With restaurants around the globe describing themselves as Japanese while actually serving food that is Asian fusion, or just plain bad, the government here announced a plan this month to offer official seals of approval to overseas eateries deemed to be "pure Japanese." . . .
So beware, America, home of the California roll. The Sushi Police are on their way.
Responding to the Stern Review, Jerry Taylor and Peter Van Doren of the Cato Institute argue that adopting measures to stabilize greenhouse gas emissions is not (yet) a good deal for us or future generations.
Not to be flip about it, but why should the relatively poor (us) sacrifice for the relatively rich (our children and grandchildren)? The Stern Report argues that the emissions cuts necessary to stave off disaster will likely cost about 1 percent of global GDP every single year, or about $1,154 in current dollars per household in the United States. A small price to pay, we're told, when GDP losses will likely total 5-10 percent of global GDP every year if we do absolutely nothing.
But even with a 10% reduction in GDP relative to what it would have been, 100 years from now, people will still be extraordinarily well off by current standards. For example, since 1950 real U.S. GDP per capita has increased by about 2% a year. Given that growth rate, real GDP per capita one hundred years hence would be $321,684, or more than 7 times higher than it is at present ($44,403). If global warming cuts GDP by 10% a year beginning about 50 years from now, then GDP per capita will be $289,515 in 2106 rather than $321,684.
Would anyone, let alone liberals, ever propose a 1% tax on those who make $44,000 to create benefits for those who make $289,000? In short, paying now to head off warming is a regressive intergenerational tax that takes from the poor and gives to the rich.
Nobel laureate economist Thomas Schelling has often made a similar point, arguing that intergenerational equity need to account for the likelihood that future generations (particularly in the developing world) are likely to be significantly wealthier than current generations.
Meanwhile, the European Union's industry commissioner, Günter Verheugen, is warning his colleagues that the EU's "environmental leadership could significantly undermine the international competitiveness of part of Europe’s energy-intensive industries and worsen global environmental performance by redirecting production to parts of the world with lower environmental standards."
Thursday, November 23, 2006
In August, in Getsy v. Mitchell, a divided panel of the U.S. Court of Appeals for the Sixth Circuit held that inconsistent jury verdicts for different defendants accused of the same crime were unconstitutionally arbitrary. I discussed the case here, and agreed with Orin's assessment that the case was a likely candidate for en banc review. It seems a majority of judges on the Sixth Circuit agree, as yesterday the court granted a petition for en banc review, vacating the initial panel decision. The order granting the petition was reported at Crime and Consequences and the Ohio Death Penalty Information blog. Thanks to a reader for the heads up.
For Thanksgiving 2004, I posted an account of the Massachusetts Pilgrims’ first Thanksgiving in 1621.
Last Thanksgiving, the New York Times ran a bizarre op-ed by Professor James E. McWilliams of Texas State University at San Marcos on our anachronistic views of the food served at the first Thanksgiving.
McWilliams in the 2005 New York Times:
But the colonial minister Charles Woodmason quoted by McWilliams was not a Pilgrim writing in the 1620s. Woodmason was a famously prejudiced Anglican missionary to backcountry Carolina, describing the habits of Irish and Scots-Irish settlers in his diary during 1766-68, over 140 years after the Pilgrim’s Thanksgiving. Here is the sort of food that Woodmason was complaining that the poor Appalachians were eating (and not eating):
They Held Their Noses, and Ate
No contemporary American holiday is as deeply steeped in culinary tradition as Thanksgiving. Not only is the day centered on a feast, but it's also a feast with a narrowly proscribed list of foods - usually some combination of turkey, corn, cranberries, squash and pumpkin pie. Decorated with these dishes, the Thanksgiving table has become a secular altar upon which we worship America's pioneering character, a place to show reverence for the rugged Pilgrims who came to Plymouth in peace, sat with the Indians as equals and indulged in the New World's cornucopia with gusto.
But you might call this comfort food for a comfort myth.
The native American food that the Pilgrims supposedly enjoyed would have offended the palate of any self-respecting English colonist — the colonial minister Charles Woodmason called it "exceedingly filthy and most execrable." Our comfort food, in short, was the bane of the settlers' culinary existence.
"Clabber, butter, fat mushy bacon, cornbread," [Woodmason] wrote, "as for tea and coffee they know it not . . . neither beef nor mutton nor beer, cyder or anything better than water." . . . Woodmason noted that "the people are all from Ireland, and live wholly on butter, milk, clabber and what in England is given to hogs.”
So Woodmason’s derisive comments, quoted by McWilliams, refer not to the diet of the Pilgrims, but to the very different diet common in Appalachia on the eve of American Revolution. Clabber (a form of sour milk somewhat like cottage cheese or yogurt) was a common food in Northern England, but was treated as only fit for animals in Southern England. I located no evidence that the Plymouth pilgrims ate this staple of the Carolina backcountry diet. While the pilgrims had brought some bacon and butter on the Mayflower, the voyage was so poorly provisioned that it has been speculated that it was quickly gone after arriving. The Pilgrims probably had little or no milk, since they had no cows, though there is a small chance that they had a goat. And Woodmason’s complaint that the settlers had no coffee or tea would never have been made by a 1620s pilgrim since they had probably never tasted either one. In 1620, tea had not yet been introduced into England, and England’s first coffeehouse was founded in 1650 (there were 3,000 such shops by 1675).
Woodmason also complained that the food in 1767 backcountry Carolina was all boiled, but the Pilgrims favored roasting. And Woodmason was disgusted by the whisky drinking in western Carolina in the 1760s, while the Pilgrims didn’t drink whisky.
As for Indian corn, which was a staple of the Pilgrim’s diet, the sources I consulted do not support the notion of revulsion to that food either. In the very December 11, 1621 letter that described the 1621 Thanksgiving, Edward Winslow advises the next group of settlers not to bring more rice than they will need for the voyage because of the attractiveness of Indian corn:
Our Indian corn, even the coarsest, makes as pleasant meat as rice; therefore spare that, unless to spend by the way.
McWilliams goes on:
Understanding this paradox requires acknowledging that there's no evidence to support the holiday's early association with food — much less foods native to North America. Thanksgiving celebrations occurred irregularly at best after 1621 (the year of the supposed first Thanksgiving) and colonists observed them as strictly religious events (conceivably by fasting).
It wasn't until the mid-19th century that domestic writers began to play down Thanksgiving's religious emphasis and invest the holiday with familiar culinary values.
If you read the original account of the first Pilgrim Thanksgiving, you can see that McWilliams is wrong: there is “evidence to support the holiday's early association with food,” in particular, “foods native to North America.”
We set the last spring some twenty acres of Indian corn, and sowed some six acres of barley and peas, and according to the manner of the Indians, we manured our ground with herrings or rather shads [here Winslow apparently means alewives], which we have in great abundance, and take with great ease at our doors. Our corn did prove well, and God be praised, we had a good increase of Indian corn, and our barley indifferent good, but our peas not worth the gathering, for we feared they were too late sown, they came up very well, and blossomed, but the sun parched them in the blossom.
Our harvest being gotten in, our governor sent four men on fowling, that so we might after have a special manner rejoice together after we had gathered the fruit of our labors; they four in one day killed as much fowl, as with a little help beside, served the company almost a week, at which time amongst other recreations, we exercised our arms, many of the Indians coming amongst us, and among the rest their greatest King Massasoit, with some ninety men, whom for three days we entertained and feasted, and they went out and killed five deer, which they brought to the plantation and bestowed on our governor, and upon the captain, and others. And although it be not always so plentiful as it was at this time with us, yet by the goodness of God, we are so far from want that we often wish you partakers of our plenty.
Winlow’s letter goes on to describe some of their other foods, many of which may well have been served at the first Thanksgiving:
We know that venison and fowl were served, both of the native American variety. We know that turkeys were plentiful in the early days, though we don’t know whether they were among the fowl served at the 1621 Thanksgiving. Since the holiday celebrated and followed the “fruit of our labors,” the account implies that Indian corn and barley were served in some form. Squash is reputed to have been common in the area at the time, but I believe that there were few mentions of it in early years of the Plymouth Colony, so a relative of a pumpkin may not have been served at the 1621 Thanksgiving. Given Winslow’s account of the Pilgrim’s diet, probably grapes, berries, or plums were served, and fish was probably served as well. As to cranberries, it is thought that Native Americans in the area were familiar with them, but since there is no mention of them, there is no reason to suppose that they were brought to the feast.
I never in my life remember a more seasonable year than we have here enjoyed; and if we have once but kine [cattle], horses, and sheep, I make no question but men might live as contented here as in any part of the world. For fish and fowl, we have great abundance; fresh cod in the summer is but coarse meat with us; our bay is full of lobsters all the summer and affordeth variety of other fish; in September we can take a hogshead of eels in a night, with small labor, and can dig them out of their beds all the winter; we have mussels and othus at our doors: oysters we have none near, but we can have them brought by the Indians when we will; all the spring-time the earth sendeth forth naturally very good sallet [salad] herbs: here are grapes, white and red, and very sweet and strong also. Strawberries, gooseberries, raspas [raspberries], etc. Plums of three sorts, with black and red, being almost as good as a damson: abundance of roses, white, red, and damask; single, but very sweet indeed.
McWilliams goes on:
The earthy victuals that Thanksgiving revisionists arranged on the Pilgrims' fictional table were foods that Pilgrims . . . would have rather avoided. . . . English migrants recoiled upon discovering that the native inhabitants hunted their game, grew their grain haphazardly and foraged for fruit and vegetables. Squash, corn, turkey and ripe cranberries might have tasted perfectly fine to the English settlers. But that was beside the point. What really mattered was that the English deemed the native manner of acquiring these goods nothing short of barbaric. Indeed, the colonists saw it as the essence of savagery.
From the colonists' perspective, Native Americans grew crops in an entirely corrupt manner. They typically prepared fields by setting fire to the underbrush and girdling surrounding trees. Afterward, they planted corn, gourds and beans willy-nilly across charred ground, possibly throwing in fish as fertilizer. . . . But the English, blinded by tradition, never got it - they just looked on in horror.
. . . And those fish! Why not salt them down and export them to Europe for a tidy profit? What was wrong with these people? The collective English answer - "everything" - honed the colonists' distaste for foods, especially corn and squash, that they quickly judged best for farm animals.
A similar culinary misunderstanding developed over meat. To be sure, the English frequently hunted for their meals. But hunting was preferably a sport. When the English farmer chased game to feed his family, he did so with pangs of shame. To resort to the hunt was, after all, indicative of agricultural failure, poor planning and laziness. Thus the colonists reacted with extreme disapproval when they saw Indian men adorned with paint disappearing into the woods for weeks at a time to track down protein. . . . The elk, bear, raccoon, possum and indeed the wild turkeys that the men hauled back to the village were, for all these reasons, tainted goods reflective of multiple agricultural perversions.
McWilliams offers absolutely no evidence for this supposed Pilgrim disgust with hunting. The accounts of the Pilgrim’s first years in the colony are replete with pride over their use of guns. Winslow describes how, at Massasoit’s request he shot a duck at 120 paces, and how, at the Native Americans’ request, the Pilgrims shot a crow at 80 paces who had been damaging the Native Americans’ crops.
And the idea that the 1621 Pilgrims were hesitant to plant fish with their corn is nonsense, directly contradicted in Winslow’s letter (as quoted above). Without some evidence, McWilliams' notion that the Pilgrims would have thought it was feasible to export tiny alewives to England rather than plant them to fertilize their corn strikes me as just plain ridiculous.
McWilliams stumbles on toward his conclusion:
As we have seen, contrary to McWilliams’s claims, Winslow, later governor of the colony, “highlighted his adherence to native American victuals” and their first Thanksgiving holiday was “a genuine culinary event.”
And under the circumstances no status-minded English colonist would have possibly highlighted his adherence to native American victuals — even if the early Thanksgiving holiday had been a genuine culinary event.
In researching this post, the only other blogger to have noticed that something was amiss in McWilliams’s account last year was Clayton Cramer, who noted some of the nonsense about guns.
So if you want to read about the experiences of the early Pilgrims, I’d recommend skipping the New York Times op-ed page and the 1767 source cited in the Times as a description of 1621 Pilgrim life (but which actually discusses the foods favored by poor Irish settlers in western Carolina in the 1760s). Read instead the original sources published in the 1620s, such as Mourt’s Relation and Edward Winslow’s Good Newes.
and my enjoyment was significantly diminished by the fact that every time "Kramer" appeared, it reminded me of Michael Richards' disgusting racist rant last week. After a while, I just turned it off.
The spread of a pesky Asian immigrant, the emerald ash borer, has prompted the Department of Agriculture to expand the existing quarantine barring interstate transport of ash trees to include Ohio, Indiana and Illinois. (Michigan was already covered.) The borer was first found in the United States in 2002, and is already blamed for the destruction of 25 million ash trees in six states, according to this report.
The Environmental Protection Agency is preparing to regulate nanotechnology under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) for the first time. Specifically, the Washington Post reports, the EPA will adopt new regulations on the use nanoparticles of silver as germ-killing agents.
The decision -- which will affect the marketing of high-tech odor-destroying shoe liners, food-storage containers, air fresheners, washing machines and a wide range of other products that contain tiny bacteria-killing particles of silver -- marks a significant reversal in federal policy. It also creates an unexpected regulatory hurdle for the burgeoning field of nanotechnology, which involves the creation of materials just a few ten-thousandths the diameter of a human hair.
Given the nature of FIFRA, the EPA will only regulate products containing "nanosilver" if the manufacturer makes germ-killing claims.
Under the new determination, first reported on Tuesday by the Daily Environment Report, a Washington publication, and confirmed yesterday by the EPA, any company wishing to sell a product that it claims will kill germs by the release of nanotech silver or related technology will first have to provide scientific evidence that the product does not pose an environmental risk. . . .
[The EPA's] Jones said the final rules will be spelled out in the Federal Register sometime in the next few months. He acknowledged, however, that the EPA oversight will apply only to products advertised as germ-killing -- a detail that at least one major retailer has apparently noted.
The Sharper Image, which until recently advertised as anti-microbial several products containing nanosilver, has dropped all such references from its marketing materials.
In such cases, Jones said, the EPA will not act. "Unless you're making a claim to kill a pest, you're not a pesticide," he said.
Wednesday, November 22, 2006
Charges of public indecency were dropped Tuesday against an ex-city prosecutor because of a paperwork problem.I wonder if Dwyer is telling the truth, and the the decision to charge was based on the proper version of the offense. It's certainly possible: officials will often file an information based on a "go by," an example used in a prior case, and someone just may not have checked to see if the law was updated in the form that was filed. On the other hand, it's also quite possible that the Sheriff's office just goofed from the beginning, and that charges were filed based on a mistaken understanding of the law. Stay tuned.
But officials said they would re-file the case against Scott Blauvelt, who has been accused of walking through public buildings after hours in the nude.
"A technicality is causing us to re-file the paperwork," Butler County Sheriff's Chief Deputy Anthony Dwyer said Tuesday.
Blauvelt's lawyer, Mike Gmoser, railed against some officials' use of the term "technicality," and hung up on a reporter who sought more information.
Blauvelt had pleaded not guilty by reason of insanity to two counts of public indecency in Municipal Court, where he worked from March 2005 until he was fired last month. A judge dismissed the charges Tuesday after authorities acknowledged they were filed under an outdated section of law.
A city computer system printed out the old law when charges were filed in Blauvelt's case, Dwyer said, and sheriff's Capt. Katie McMahon didn't notice the problem at the time.
Under an update of the law last year, the offense of public indecency must occur in "physical proximity" to another person who is unrelated to the suspect, officials said. Therefore, Gmoser argues, it is insufficient for a suspect to be caught on videotape, as Blauvelt allegedly was.
Dwyer said sheriff's officials feel confident that the current, updated law applies to Blauvelt's case. Sheriff's officials reviewed the correct section of law when deciding what charges to lodge, he said.
Roger Pielke Jr. is astounded that "the overwhelming majority of scientists, the media, and responsible advocacy groups have remained mute" about "the repeated misrepresentation of science related to disasters and climate change."
More than anything else, even the misrepresentations themselves, the collective willingness to overlook bad policy arguments unsupported (or even contradicted) by the current state of science while at the same time trumpeting the importance of scientific consensus is evidence of the comprehensive and pathological politicization of science in the policy debate over global warming. If climate scientists ever wonder why they are looked upon with suspicion among some people in society, they need look no further in their willingness to compromise their own intellectual standards in policy debate on the issue of disasters and climate change.Interestingly enough, Pielke particularly is concerned about the misrepresentations of those who (like Pielke himself) support immediate policy action to address climate change, not the so-called "denialists" or "skeptics."**
[**Why the scare quotes? Because most so-called "denialists" or "skeptics" do not deny the reality of anthropogenic contributions to global warming nor are they skeptical about the basic science of clmate change. Rather, most folks tarred with these labels are, to some degree or another, skeptical of the evidence for certain apocalyptic claims and the need for particualrly dramatic policy measures and particularly vocal about their concerns.]
Publication of the Stern Review on the Economics of Climate Change appears to have had a significant impact on the climate policy debate. Yet there has been significant criticism of some of the report's assumptions and conclusions (as I noted here).
Among the more recent critiques is this assessment by Yale's William Nordhaus (link via Prometheus). Nordaus notes that the Stern Review reached significantly different conclusions from most prior economic assessments, particularly with regard to the optimal rate and timing of emission reductions. Nordhaus concludes in his "summary verdict" of the Review:
The radical revision of the economics of climate change proposed by the Review does not arise from any new economics, science, or modeling. Rather, it depends decisively on the assumption of a near-zero social discount rate. The Review’s unambiguous conclusions about the need for extreme immediate action will not survive the substitution of discounting assumptions that are consistent with today’s market place. So the central questions about global-warming policy – how much, how fast, and how costly – remain open. The Review informs but does not answer these fundamental questions.For a more sympathetic assessment of the Stern Review, see this CT post.
UPDATE: See also Richard Tol's comments on Nordhaus and Stern here.
An article in the Oct. 19th issue of the journal Nature [subscription only, I'm afraid] pointed to the proliferation of online archives collecting together the papers of a number of well-known scientists, both historical (Einstein, Darwin, Lamarck, Newton, Lavoisier) and more recent (Pauling, Crick). One small item caught my eye; some of the archivists dealing with recent material were quoted as saying that their fears of copyright liability led them to omit incoming letters from the material that they were making publicly available; their reasoning was that copyright in those letters belongs to the authors, not the recipients, of the letters, that it would be prohibitively costly to try to obtain permissions from, say, everyone who ever wrote a letter to Francis Crick, and that without obtaining permission they were afraid of lawsuits and liability if they went ahead and put that material online.
It's a perfectly rational and reasonable decision on their part -- and a sad commentary on the current state of copyright law. Surely the overwhelming majority of authors of letters to Linus Pauling, say, or to Francis Crick, have absolutely zero interest in asserting their copyright in those letters to prevent re-publication -- indeed, the overwhelming majority of those letter-writers probably are not even aware that they own the copyright in those letters. And yet the possibility that there may be a few authors out there who would claim infringement keeps this trove of wonderful material, in its entirety, out of the hands of scholars and the public at large.
It's unfortunate and entirely perverse; this is not what copyright is supposed to be about or the purpose it is supposed to be serving. It is also entirely avoidable. In the "old days," (before 1976) U.S. copyright holders had to take certain affirmative steps -- placing a notice of copyright on documents, for example, or renewing the copyright when the initial 14- or 28-year period of protection was expiring -- to protect their works. The presence or absence of these steps signaled to the world at large whether the author had any interest in protecting his/her copyright and, in turn, made it relatively easy to determine which works could, and which works could not, be duplicated by others without the authors' permission.
Alas, we have, over the past several decades, eliminated all of those requirements, and this situation points out the cost that imposes upon us as a result. Larry Lessig (among others) has suggested bringing these requirements back -- his proposal calls for a short (5 or 10 years) initial term of copyright, after which copyright holders would be required to pay a very small fee (say $5) to renew their copyright. The vast majority of authors, having no interest whatsoever in enforcing their copyrights going forward, would allow their material to fall out of copyright; at the same time, those authors who wanted to continue to exploit their copyrighted works would be able easily to do so. The more I think about it, the better the idea looks to me.
Tuesday, November 21, 2006
In a recent decision, the High Court of Israel has ruled that the Israeli government must recognize gay marriages contracted by its citizens abroad and extend to them the same benefits granted to heterosexual marriages. The decision does not mean that Israeli gays and lesbians can enter into homosexual marriages in Israel itself. The Israeli state does not have any system of civil marriage, and - to my knowledge - none of the state-certified religious authorities (Jewish, Muslim, and Christian) endorse gay marriage. Moreover, the decision is based on statutory interpretation rather than constitutional grounds (Israel does not have a written constitution). Therefore, the Knesset (Israeli parliament) could potentially override the holding by amending its marriage recognition law.
However, under the new decision, Israeli citizens can enter into gay marriages in foreign jurisdictions that allow them (such as Canada, Massachusetts, and some European countries), and have them recognized by the Israeli state. Given the large number of Israelis who travel and/or live abroad, it is likely that many Israeli gays and lesbians will be able to take advantage of the court's decision. And while the Knesset can indeed override the decision if it chooses to do so, it is far from clear that such a measure can get through Israel's fractious parliament anytime soon.
In any event, as Andrew Sullivan points out: "The contrast with the murderous homophobia in the Arab-Muslim Middle East could not be starker."
Jeremy Wallace at the Herald-Tribune reports:
David Shapiro ... has quietly been refusing to concede in his race for [Florida] State House District 70 since Nov. 7.
On election night, Republican Doug Holder led the contest by just 756 votes. After provisional ballots and overseas ballots were finally tallied last week, Holder still held a 749-vote edge.
Shapiro said he called Holder’s campaign office and left a concession message on the answering machine....
This, courtesy of Frank Cammuso and Hart Seely on Slate. It's probably not so funny if you're not (as I am) a crazed obsessive when it comes to Frank Capra's "It's a Wonderful Life" -- but very, very clever if you are. Best part: "Condeleeza's pebbles."
The Faculty Blog (U. Chicago Law School) runs a group blog session on my colleague Kal Raustiala's and Chris Sprigman's paper The Piracy Paradox: Innovation and Intellectual Property in Fashion Design. Lots of interesting posts from top scholars; much worth reading if you're interested in intellectual property.
Here's Prof. Sprigman's summary of the paper:
The Piracy Paradox is about the challenge that the fashion industry presents to the orthodox theories of IP. Advocates for strong IP rights argue that absent such rights copyists will free-ride on the efforts of creators and stifle innovation. Yet fashion presents a significant empirical anomaly: the industry produces a huge variety of creative goods without strong IP protection in one of its biggest markets (the United States), and without apparent utilization of nominally strong IP rights in another large market (the countries of the European Union). Copying and derivative re-working are rampant in both the U.S. and E.U., as the orthodox account would predict. Yet innovation and investment remain vibrant.
Why, when other major content industries have obtained increasingly powerful IP protections for their products, does fashion design remain mostly unprotected --and economically successful? The fashion industry is a puzzle for orthodox IP theory.
Our paper explores this puzzle.
Lawprof Rick Hasen (Election Law) urges it, and makes a forceful case. I'm sometimes skeptical of proposals for "nonpartisan" administration, since people who are facially nonpartisan often do have partisan sentiments, and since at least in some situations having overt party affiliation helps inform voters about officials' likely attitudes and loyalties. But in the context of the administration of the election machinery, Rick's argument seems quite strong.
Justice Johnson's interment whereabouts are unknown. Although there is a memorial dedicated to him in St. Philip's Church in Charleston, S.C., there are no records indicating that his remains are actually there. After his death in 1834, his remains were supposed to be transported from New York to South Carolina, but they never arrived.Maybe somebody should have filed a habeas corpus petition.
Thanks to How Appealing for the link.
In a recent post (linked below), Jonathan Adler cites evidence that the Heritage Foundation, a prominent conservative think thank has "banned" conservatives and libertarians critical of the Bush administration from its events. I don't know enough to comment on Heritage's alleged banning of Bruce Bartlett and Ryan Sager (referenced in the links in Jonathan's post). If Heritage did indeed refuse to invite them to events because of their criticisms of Bush, it is a serious mistake on their part.
I can, however, testify about my own experience. Like Bartlett and Sager, I have been very critical of the Bush administration's big government conservatism, even praising Bartlett's own analysis here and here, and calling for the defeat of Bush's political allies in Congress during the recent election. That has not prevented me from being invited to events at Heritage, including a recent conference on judicial reform for which I received a small fee for my participation. Heritage invited me to that event at the recommendation of a George Mason colleague who has also been highly critical of the Bush Administration. Moreover, the Heritage Foundation has itself issued publications criticizing Bush's big-spending ways on grounds similar to those argued by Bartlett, Sager, and myself. As far back as 2003, Heritage issued a report denouncing what it called Bush's unprecedented "spending spree." They have also criticized numerous other Bush domestic policy initiatives, including his most important new policy - the massive 2003 prescription drug plan, which a March 2004 Heritage study characterized as "a huge mistake."
Again, I don't know if Heritage really did ban Bartlett and Sager from its events. Perhaps the people who made the decision to invite me are not the same ones who decided to ban them. However, it would be strange if Heritage were to start banning people for making criticisms of Bush very similar to those advanced in its own publications.
UPDATE: Bruce Bartlett e-mails:
The Heritage event to which I was uninvited due to my criticism of Bush’s policies was not some ordinary one of the type Heritage hosts every day. It was specifically to commemorate the 25th anniversary of the 1981 tax cut. As far as I am aware, every major living figure involved in the enactment of this legislation was invited except me. I seriously doubt that any are paying contributors to the Heritage Foundation. The organization knows full well about my involvement in the 1981 tax cut because I was a senior fellow at Heritage for three years back in the 1980s before leaving to work for Ronald Reagan in the White House. I was, in fact, the staff person on Jack Kemp’s congressional staff who drafted the original Kemp-Roth tax cut, upon which the Reagan bill was based, back in 1977. Many others also contributed. Some of those invited to the Heritage event did not. People can draw their own conclusions about these facts.
There's no question that it looks fishy. At the same time, it still seems strange to me that Heritage would uninvite Bartlett for criticizing Bush on essentially the same points that Heritage's own publications attacked Bush on. If they didn't want to be associated with a person making those kinds of criticisms, why would they make very similar arguments themselves? Still, either Heritage engaged in petty vindictiveness, or there is some kind of misunderstanding.
In this recent article, Martin Kramer of the Washington Institute for Near East Policy criticizes the famous John Mearsheimer and Stephen Walt argument against the the US-Israel alliance from the standpoint of their own "realist" theory of international relations. Kramer and other commentators, including the VC's own David Bernstein, have pointed out numerous flaws in the Mearsheimer-Walt thesis that US foreign policy in the Middle East has been hijacked by a powerful "Israel" lobby. But, to my knowledge, these critics have ignored a major contradiction between Mearsheimer and Walt's theory of the Israel lobby's role in US foreign policy and their broader realist explanation of international politics. The former explains US policy in the Middle East primarily as an extension of domestic politics; the latter claims that domestic politics generally doesn't matter as far as international relations is concerned.
The realist theory of international relations, of which Mearsheimer and Walt are among the leading academic advocates, claims that the structure of a state's domestic politics has little or no impact on its foreign policy, especially on vital security issues. All that matters is the size, relative power, and geographic location of states in the international system. All states, say realists, either act defensively to maximize their security (as Walt argued in previous scholarship), or possibly try to maximize their relative power (as Mearsheimer claimed in his previous work). Ideology, political structure, and other domestic political forces have little or no impact.
Thus, during the Cold War, realists (including both Mearsheimer and Walt) claimed that, so far as international relations was concerned, it didn't matter that the Soviet Union was a communist state. A Soviet government with a different socioeconomic system or ideology would have behaved much the same way (in foreign policy) as Lenin, Stalin, and their successors did. Today, they claim that Iranian and North Korean nuclear proliferation should not concern us much more than the possession of nuclear weapons by France, Britain, or Israel. The fact that the former are authoritarian or totalitarian states and the latter democracies will have little impact on the way they use their nukes (or don't use them). Early realist scholar A.J.P. Taylor, in his book The Origins of the Second World War, even went so far as to argue that Adolf Hitler and Nazi ideology had little impact on the course of German foreign policy in the 1930s; any other German government would have behaved similarly, given the same international situation.
The "Israel Lobby" thesis is utterly at odds with realist theory. If Mearsheimer and Walt are correct, then US foreign policy towards a vital region of the world has been "captured" by a powerful domestic lobby whose interests are at odds with U.S. national interests, as realists define them. It has led the US into a major unnecessary war (Iraq) and currently risks another, equally unneccessary conflict with Iran (a confrontation that Mearsheimer and Walt also attribute in large part to the influence of the Israel Lobby). Moreover, this "capture" is not, according to them, an anomaly of the Bush era. It stretches back some forty years, through multiple administrations of both parties, even through Republican administrations (such as those of Nixon, Ford, Bush 41, and Reagan) that had little or no dependence on Jewish political support. Mearsheimer and Walt even claim that "the Lobby’s influence has been bad for Israel," as well as the United States, preventing Israel from seizing allegedly desirable opportunities to make peace. If so, this implies that Israeli foreign policy too has been captured by a domestic political lobby.
If a key element of US (as well as Israeli) foreign policy could be so completely captured for so long by a domestic lobby, it turns out that domestic politics matters greatly to international relations and the realist theory must be rejected, or at least radically revised. The US is a democratic political system with extensive checks and balances and many competing interest groups. If American foreign policy can nonetheless be captured by a narrow clique with an agenda at odds with the realist view of the national interest, such capture is even more likely under other forms of government. For example, most dictatorships are dominated by a small group whose interests are often at odds with those of the nation as a whole. A self-interested or ideologically motivated dictator can hijack his country's foreign policy far more easily than any interest group can capture the foreign policy of a democracy. To take just one example, while it may not be in the national interest of Iran (as realists define it) to risk starting a regional nuclear war after acquiring the bomb, such a step may turn out to be in the interest of the ruling clerical oligarchy, at least as they themselves conceptualize that interest. If so, Iranian nuclear proliferation is a much more serious problem than realists would have us believe.
The bottom line: It is logically possible that the the realist theory of international relations is correct, and it is also possible that Mearsheimer and Walt are right about the Israel Lobby's influence on U.S. foreign policy. It is not, however, possible for both to be right simultaneously. On the other hand, it is possible for both to be wrong. This third option is actually my own view. But in this post, I limit myself to showing that there is a deep contradiction between realism and the theory that the Israel Lobby dominates US Middle East policy. Like Mearsheimer and Walt, many critics of US foreign policy unthinkingly embrace both theories simultaneously. Unfortunately for them, you can't have your realist cake and then proceed to eat it whenever the subject of Israel comes up.
Commenter Sparky reports, and the Oxford English Dictionary confirms: The term "taser" comes from "Tom Swift's Electric Rifle." "Yup, THAT Tom Swift," writes Sparky; "He had an electric rifle in a 1911 story."
Sparky (and Wikipedia) report that it comes from "Thomas A. Swift Electric Rifle" (Wikipedia: "The 'A' is gratuitous; the character's middle name was never provided"), though the OED doesn't say so.
This afternoon I am speaking on a panel at the American Enterprise Institute on Massachusetts v. EPA, which presents the questions whether the Environmental Protection Agency can or is required to regulate greenhouse gases under the Clean Air Act. The case will be argued before the Supreme Court next week. As it happens, today's event is scheduled to be broadcast live on C-Span at 2pm.
As I noted last week, I believe Massachusetts v. EPA "is easily the most important environmental case before the Supreme Court in several years." Why? For several reasons. First, this case could initiate the federal regulation of greenhouse gases. Although specifically focused on the control of GHGs from motor vehicles, such a precedent would likely lead to judicially-mandated regulation of GHGs from other sources as well (such as stationary sources covered by New Sources Performance Standares (NSPS)), and perhaps even a Quixotic effort to set GHG National Ambient Air Quality Standards (NAAQS). This is so because the conclusions that would require the EPA to regulate automotive emissions are not easily contained to those provisions of the Act.
Even if the petitioners lose, the case would be quite significant. Any decision is likely to raise the political salience of the climate change issue, and rejecting the petitioners' claims would place cimate change policy back in the lap of the political branches. Also, depending upon the reasoning adopted by the Court, a win for the Environmental Protection Agency could have a substantial impact on the level of EPA discretion to take certain types of other actions under the Clean Air Act and/or enhance the force of Brown & Williamson-style arguments that courts should not presume Congress has delegated highly significant policy decisions to regulatory agencies in the absence of explicit statutory commands.
The case is also significant because of the standing issue it presents. Climate change affects everyone. This raises the question whether climate-based claims are generalized greivances of the sort not fit for judicial resolution (because, among other things, the claim of injury is not sufficiently concrete and particularized), or whether petitioners can establish standing by alleging that climate change is impacting them in a particularly unique way. Lower courts are divided on the burden parties must meet to establish standing when raising climate-related or other generalized environmental claims, so this case should make the Court refine or clarify the requirements for Article III standing (and, in the process, give us a better indiciation of Chief Justice Roberts and Justice Alito's views on the subject). Whichever way the Court goes, I believe this will also be quite significant.
I have oversimplified the issues in this post, but I wanted to provide a bit more background in response to reader questions. In the meantime, those interested can peruse the various briefs here, and tune in to today's program as well.
UPDATE: C-Span's video of the event should be available here. It is also scheudled to re-air Wednesday evening at 6pm on C-Span 2.
In honor of Thanksgiving Day football, I note an entertaining short documentary on the famous 1940 Dartmouth-Cornell "Fifth Down" game. A charming look at a sportsmanship in different era of college sports (perhaps the most amusing part, however, is that the Cornellians thought that Dartmouth would refuse their offer to forfeit the game). YouTube also has a clip from the 1990 Colorado-Missouri fifth down game which had a somewhat different conclusion. Jeffrey Hart provides a written description of the game here. (HT: Dartlog).
If you are a conservative or libertarian who criticizes the Bush Administration, Andrew Sullivan reports (and Ryan Sager confirms) you are not welcome at the Heritage Foundation, even for dinner. (LvIP)
UPDATE: The Heritage Foundation's Tim Chapman comments here. His post includes Heritage's "official response":
Failure to invite a non-member to a members-only event is not an exercise in blackballing. Declining to host an event when an alternative venue is available is not blackballing.That's not exactly a denial of the allegations. Meanwhile, Bruce Bartlett writes:
The Heritage event to which I was uninvited due to my criticism of Bush’s policies was not some ordinary one of the type Heritage hosts every day. It was specifically to commemorate the 25th anniversary of the 1981 tax cut. As far as I am aware, every major living figure involved in the enactment of this legislation was invited except me. I seriously doubt that any are paying contributors to the Heritage Foundation. The organization knows full well about my involvement in the 1981 tax cut because I was a senior fellow at Heritage for three years back in the 1980s before leaving to work for Ronald Reagan in the White House. I was, in fact, the staff person on Jack Kemp’s congressional staff who drafted the original Kemp-Roth tax cut, upon which the Reagan bill was based, back in 1977. Many others also contributed. Some of those invited to the Heritage event did not. People can draw their own conclusions about these facts.Heritage is free to invite whom they choose to their events and offer or decline the use of their facilities by outside groups for whatever reason they please -- but there is nothing "un-libertarian" about criticizing the exercise of that choice.
Monday, November 20, 2006
The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.(emphasis added)
Does the italicized sentence mean that the Bush v. Gore opinion is functionally nonprecedential? Flanders writes:
[T]he use of the familiar device of "limiting a case to its facts" in Bush v. Gore has a significance that has been almost universally missed in the flood of commentary on the case. When the Supreme Court limits a case to its facts, it is on the way to overruling it, by nullifying the principle that decided the case. Thus, in an entirely typical use of the phrase, Justice Thomas wrote in M.L.B. v. S.L.J. that "[e]ven if the Griffin line [of cases] was sound, Mayer was an unjustified extension that should be limited to its facts, if not overruled." Sometimes a concurring Justice will say that the majority opinion was limited to its facts as a way of expressing a disagreement with the principle of the majority, even though the Justice agreed with the result. But Bush v. Gore is wholly unique in using limiting language to (apparently) nullify the principle of an opinion, not in a concurrence to the opinion, but in the majority opinion of the very case. It is no wonder that Bush v. Gore has caused such confusion in the lower courts. It is as if the Supreme Court had written an opinion, and then, in a bow to René Magritte, put as its last sentence: "This is not an opinion." What is a lower court to do?I wonder, though, what's the evidence that there is something "wholly unique" about the limiting phrase in Bush v. Gore? Flanders writes that the uniqueness is that the limiting language was used "to (apparently) nullify the principle" of the opinion. But what authority supports that reading? Maybe I'm missing something, but I don't see it in the opinion. Granted, this is a reading that some critics have taken in order to skewer the opinion; the argument is that if the Court effectively made its decision nonprecedential, then it's further evidence that the decision was lawless. But this is a gloss made by critics, not a reading that seems to be justified by the opinion itself.
To be clear, I am not defending Bush v. Gore; I find the per curiam opinion highly unpersuasive. However, it seems to me that the limiting phrase in that case is no different from limiting phrases in lots of other Supreme Court majority opinions. The Supreme Court often makes case-by-case decisions, in which it announces an outcome for the present circumstances without indicating how far it might take that reasoning in other cases. But this isn't a sign that the Court is on the road to overruling anything; whether it's justified or not, this is a relatively routine type of minimalist move. As a result, it seems to me that the question of whether Bush v. Gore has any precedential effect is relatively easy to answer: like other decisions with similar limiting language, the case has precedential value on its facts with uncertain influence once you wander from those facts.
Thanks to PrawfsBlawg for the link.
"WHEREAS, the Pahrump Town Board are United States Citizens and uphold and protect the Law of the Land we are Patriots of this Great Town, State and Country." That's what the second paragraph of Pahrump Town Ordinance No. 54 says (no changes on my part). The ordinance itself provides for several things, but I'll focus on this one:
8. Flying of Flags on residential and business property including land. The Official Flag of the United States of America shall be flown in accordance to United States Code, Title 4. No other flag or pennant may be placed above or, if on the same level, to the right of the flag of the United States of America. And, if flown from the same halyard in this order from top to bottom:
a. The Official Flag of the United States of America.
b. The Official Flag of the State of Nevada.
c. The Official Flag of the Town of Pahrump.
d. The Official Flag of our Military Forces.
e. Any other flag or pennant an individual whishes to fly other than a flag of a foreign nation.
f. A flag of a foreign nation cannot be flown by itself, and must always be flown with the Official Flag of the United States of America, union first, from separate staffs. No person shall display the flag of the United Nations or any other national or international flag, equal, above, or in a position of superior prominence or honor to, or in place of, the flag of the United States.
For the purposes of subsections a. through e. these flags can be flown by themselves.
Three thoughts, one constitutional, and two not:
1. This is one of the rare ordinances that not only violates the Court's First Amendment precedents, but actually violates the very first Supreme Court decision to hold that a law facially violated free speech, Stromberg v. California (1931). Stromberg held that people have a constitutional right to fly a red flag as a symbol of anarchism. It's hard to see why one wouldn't have an equal right to fly a foreign flag, as a symbol of affection for or even loyalty to that country. And of course Stromberg, while old, is hardly obsolete: It's been reaffirmed and broadened since 1931. That's a mighty strong constitutional tide that Pahrump is swimming against.
2. Not to derogate Pahrump's patriotism as to the great town, state and country, what about people whose patriotism leads them to want to fly military flags above the flag of the Great Town of Pahrump? Are those people just Pahrump-hating unpatriotic carpetbaggers?
3. More broadly, I take it that some citizens of Pahrump are entirely patriotic, and yet want to fly another country's flag -- perhaps because they are patriotic citizens of that other country. (Nothing horrid about that, no?) Is there anything so horrible about a patriotic Pole wanting to fly the Polish flag, even when he lives in America? Or not wanting to fly the American flag, because, happy as he may be to live (or visit) here, he understandably doesn't feel that it's his flag?
Thanks to Sean Sirrine (Objective Justice) for the pointer.
The California Supreme Court just held, in Barrett v. Rosenthal, that Internet users who post (to Web sites or discussion groups) material created by others are immune from liability.
Federal law, 47 U.S.C. § 230, provides that "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." The California Supreme Court held that this protects not just service providers whose sites are used to post material without the provider's intervention, but also users who personally select which material (written by others) to post. (The Ninth Circuit held the same three years ago, in Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003).) The court also noted:
At some point, active involvement in the creation of a defamatory Internet posting would expose a defendant to liability as an original source. Because Rosenthal made no changes in the article she republished on the newsgroups, we need not consider when that line is crossed. We note, however, that many courts have reasoned that participation going no further than the traditional editorial functions of a publisher cannot deprive a defendant of section 230 immunity.
A long line of cases had already held that when a user posts material on a site, the operator of the site (or of the computer), can't be held liable, even when it's notified of the potentially tortious nature of the activity. Thus, for instance, we wouldn't be liable for libels posted in our comments. But this case, as well as Batzel and some others, apply this principle even to immunize those who actively repost material, rather than just serve as passive conduits for what others post. This means that if a commenter posts excerpts from others' work, even the commentator himself would be categorically immune from liability for the contents of those excerpts, at least unless he's "active[ly] involve[d] in the creation of [the] posting," or unless he's conspiring with the original author.
Note that when I say "immune from liability" or "can't be held liable," this is shorthand for "immune from liability except under intellectual property law, communications privacy law, or federal criminal law," see 47 U.S.C. § 230(e)(1).
The American Enterprise Institute is kindly putting on a lunch-time talk titled "Is There a Constitutional Right to Medical Self-Defense?," from 12:15 pm to 2 pm on Friday, December 8. The panelists will be Chicago Prof. Richard Epstein, GW Prof. Jeff Rosen (who's also the legal affairs editor for The New Republic), and me; Ted Frank of AEI will moderate, and Sally Satel of AEI will introduce us.
Free lunch (at 11:45 am) will be included, if you define "free" as meaning "you're obligated to provide only your time, not your money." To register, go here.
On Friday, the FDA lifted most restrictions on the sale of silicone breast implants, almost fourteen years after FDA chairman David Kessler ordered the implants off the markets, in a decision motivated by politics, not evidence.
Indeed, the end of the FDA ban marks the conclusion of what amounted to a massive scams. Political activists, politicians, trial lawyers, and media sensationalists joined forces to promote the view, wholly lacking in scientific support, that implants caused systemic disease. First, they claimed it caused cancer; when studies rejected that assertion, they claimed it caused immune system diseases; when that was debunked, they moved on to the claim that it caused "atypical" immune system diseases. The latter claim had the advantage of being very difficult to disprove, because no ever ever defined what these "atypical" diseases were. Nevertheless, the best evidence available rejects that claim, as well. It should be emphasized that there was never any sound scientific evidence supporting any of these claims; that didn't stop plaintiffs and their attorneys from collecting $10 billion or so in damages.
The victims of the scam included implant manufacturers (which, admittedly, were not exactly poster children for corporate responsibility) and their shareholders, such as the Dow Corning Corporation, which went bankrupt; women who, frightened by media reports about "dangerous" implants, had unnecessary surgery to explant their implants, or avoided pregnancy to prevent injury to their unborn children from "toxic" silicone; biomedical research, which for a time seemed in danger of collapse due to the phony claims against silicone implants--who would test and market any product to be used inside the body, much less one involving silicone, if invented claims with no scientific basis could result in billions of dollars of liability for breast implant manufacturers?; and public trust in the American legal system, which quite properly suffered severe criticism for doling out billions for no good reason.
Perhaps not surprisingly, I have seen no sign of contrition from any of the actors who were most responsible for the breast implant fiasco. For example, the Times reports that "Dr. Sidney Wolfe, chief of Public Citizen's Health Research Group, which claimed in the 1980s that breast implants cause cancer, called the implants “the most defective medical device ever approved by the F.D.A. The approval makes a mockery of the legal standard that requires 'reasonable assurance of safety.'"
You can read my review of the whole mess, including substantiation of what I wrote in the first three paragraphs of this post, in "The Breast Implant Fiasco," 87 California Law Review 457 (1999). An earlier version is posted at SSRN.
This is an opportunity for constructive bipartisanship. The election is over. Instead of defaulting to the blue-ribbon-commission model, we should ask Congress to work on this problem. Let's ask the leadership to create a special select committee, made up of the chairmen and ranking minority members of the Armed Services, Foreign Relations, Intelligence and Judiciary committees, to work together for six months. They should assemble a panel of advisers consisting of politicians and jurists of excellent reputation -- people such as Sandra Day O'Connor, Sam Nunn, John Danforth and John Glenn.This is a very interesting idea, albeit one that obviously would be opposed strongly by the Bush Administration. I'm half-way through John Yoo's new book, War By Other Means: An Insider's Account of the War on Terror; if Yoo's views are any sign of the views held by bigwigs in the Bush Administration, the chances Hamre's proposal would get their support are essentially zero. As Yoo describes it, the other branches need to step out of the way when it comes to fighting wars: only the Executive Branch is competent in this arena, and any restrictions on its authority imposed by Congress or the courts are unwise if not unconstitutional.
More on Yoo's book when I finish it, which should be in a few days.
As I noted below, I have little helpful to add about the UCLA tasering incident, because I know little about the subject. But I do know something about privacy and free speech, and the video recording of the incident (through a student's video cell phone, if I'm not mistaken) reminds me of this post of mine from a while back, called "A Sad Tale of Privacy Law."
The short summary: The laws of some states -- most clearly, Massachusetts -- make it a crime to "secret[ly]" record what others say, even when the recording is in public and the speakers are police officers who are arresting a suspect. This would certainly outlaw someone's recording the incident using a hidden audio or audio/video recorder (for instance, because the person is afraid that the police will retaliate if he reveals that he's recording them). It may also outlaw the recording if the recorder isn't literally hidden, but also isn't clearly visible to the police (for instance, if a student with a cell phone is in a crowd, and the police don't know what he's doing).
Fortunately, California law is limited to situations that involve "confidential communication[s]," and excludes communications "made in a public gathering . . . or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded"; that law may still pose problems, but it's not as bad as the Massachusetts law.
In any case, here's my earlier post:
Sonia Arrison's TechCentralStation.com column points out, among other things, that some surveillance technology can actually help detect and prevent police abuse: "In California's Orange County, where video cameras were installed in patrol cars to protect against false accusations of excessive force, the tapes have been used to prosecute abusive police officers." (I love the column's title, by the way -- "Watching the Detectives.") I found the column via a post on [Radley Balko's] The Agitator, which pointed out that "the police brutality videotapes we've seen in the news are a good example of how civilians too can use surveilance to keep a check on power. When authorities start preventing us from accessing the same technology they're using, well, then it's time to start getting antsy."
Well, here's a story for you: Many states have laws that ban people from taping conversations without the speakers' permission. Some of them prohibit only taping conversations in which the taper isn't involved (the classic eavesdropping situation); I have no problem with that.
But others prohibit taping conversations unless all parties consent. I can see why this is done, but I can also see why it's troublesome: If you're being blackmailed or threatened, or if someone is saying something that acknowledges that he's guilty of some crime, it seems to me that you have a strong claim of entitlement to record this. The laws are justified by a desire to protect "privacy," but it's far from clear that we should value this privacy when it amounts to my right to deny later what I say now -- especially when what I say now might show that I'm trying to endanger you (or someone else).
And here's an extreme scenario, which happened under a law that seems to be among the broadest in the nation. I quote from last year's decision by the Massachusetts Supreme Judicial Court in Commonwealth v. Hyde:
This case raises the issue whether a motorist may be prosecuted for violating the Massachusetts electronic surveillance statute . . . for secretly tape recording statements made by police officers during a routine traffic stop. A jury in the District Court convicted the defendant on four counts of a complaint charging him with unlawfully intercepting the oral communications of another . . . . We conclude that [the state interception law] strictly prohibits the secret electronic recording by a private individual of any oral communication, and makes no exception for a motorist who, having been stopped by police officers, surreptitiously tape records the encounter. Accordingly, we affirm the judgments of conviction.
. . . On October 26, 1998, just after 10:30 P.M., an Abington police officer stopped the defendant's white Porsche, because the automobile had an excessively loud exhaust system and an unlit rear registration plate light. Three other Abington police officers arrived shortly thereafter and the stop quickly became confrontational. During the course of the stop, which lasted approximately fifteen to twenty minutes, the defendant and his passenger, Daniel Hartesty, were ordered out of the automobile, and Hartesty was pat frisked.
One officer reached into the automobile, picked up a plastic shopping bag that lay on the floor by the passenger seat, and looked inside. (The bag contained compact discs.) At one point, the defendant stated that the stop was "a bunch of bullshit," and that he had been stopped because of his long hair. One officer responded, "Don't lay that shit on me." Later, another officer called the defendant "an asshole." The defendant was asked whether he had any "blow" (cocaine) in the car.
At the conclusion of the stop, the defendant and Hartesty were allowed to leave. No traffic citation was issued to the defendant, and the defendant was not charged with any crime. According to the testimony of one police officer, the defendant was "almost out of control" and the stop "had gone so sour," that it was deemed in everyone's interest simply to give the defendant a verbal warning. Unbeknownst to the officers, however, the defendant had activated a hand-held tape recorder at the inception of the stop and had recorded the entire encounter.
Six days later, the defendant went to the Abington police station to file a formal complaint based on his unfair treatment during the stop. To substantiate his allegations, he produced the tape recording he had made. A subsequent internal investigation conducted by the Abington police department, which concluded on February 1, 1999, exonerated the officers of any misconduct.
In the meantime, the Abington police sought a criminal complaint in the Brockton Division of the District Court Department against the defendant for four counts of wiretapping in violation of [the state law].
So there you have the dark side of "privacy" -- the law aimed at protecting privacy ends up quite improperly restricting people's liberty, and people's ability to protect themselves against police misconduct. Here's part of the court's rationale:
We reject the defendant's argument that the statute is not applicable because the police officers were performing their public duties, and, therefore, had no reasonable expectation of privacy in their words. The statute's preamble expresses the Legislature's general concern that "the uncontrolled development and unrestricted use of modern electronic surveillance devices pose[d] grave dangers to the privacy of all citizens of the commonwealth" and this concern was relied on to justify the ban on the public's clandestine use of such devices.
And this protection of "privacy" extends not just to allegedly misbehaving cops but also to . . . kidnappers calling in ransom requests: "In Commonwealth v. Jackson, this court rejected the argument that, because a kidnapper has no legitimate privacy interest in telephone calls made for ransom purposes, the secret electronic recording of that conversation by the victim's brother would not be prohibited . . . ."
Now this incident isn't necessarily an indictment of all such laws; perhaps such a law could be properly drafted to exclude audiotaping of conversations with the police, or with people who one reasonably believes are trying to extort something from you or threaten you. But it is a warning that not all laws proposed in the name of "privacy" are good, especially when they try to protect one person's privacy by constraining another's liberty to record conversations to which one is lawfully a party.
Details in theTimes.
This is much less than the plaintiffs were seeking, but approximately $2 billion more than should be spent in the absence of fundamental reforms of the school system. I grew up around many New York City school teachers, and there are fundamental problems with the schools that more money will not address. Some of these are idiosyncratic to New York City (crazy union contracts that make it almost impossible to, e.g., even get a light bulb changed in a timely fashion in a classroom), to ones that are relatively typical of major public school systems (it's almost impossible to fire a bad teacher). All the younger teachers I knew were smart and ambitious, which meant that their immediate goal was to get out of the classroom, and into first the "resource room" and then into administration. The older teachers had often started out idealistic and hardworking, but after seeing their incompetent, lazy colleagues get raises in exact lockstep with them, gradually decided that they were being suckers for trying so hard. Finally, in many high schools, junior high schools, and even some elementary schools, security was utterly lacking, students could virtually not be expelled for misbehavior, even violent misbehavior. As a result, teachers often gave over control of their classrooms to the students after being subject to violence, or threats thereof.
You would think that activists and courts faced with such problems, and with a system that already spends prodigiously (and has increased spending dramatically over the years) would focus on some of these fundamental problems.
A bunch of people have e-mailed me asking that I post about the UCLA library tasering incident. A few have gone so far as to more or less demand that I post about it.
If I had special factual or legal knowledge related to the subject, I'd have been happy to blog about it, whether or not it involved UCLA. (See, for instance, my posts criticizing a UCLA dorm speech code, a UCLA administration Web site that I thought violated the Establishment Clause, and proposed UCLA general speech code.) Here, though, I lack any such special knowledge, nor do I have the time to acquire it, especially given that this is the sort of fact-dependent incident about which one needs to know a good deal to know even a little.
It's also the sort of blogging topic that risks consuming most of my spare time if I am indeed to venture serious opinions, given that I'd then be called on to respond to all the criticisms of my opinions, criticisms that may well be quite plausible given that my opinions are unlikely to be well-informed. (There is a video, but for obvious reasons it leaves many questions unanswered.) My tentative and highly unexpert thinking -- as opposed to a serious opinion -- is that at least some of the police officers' actions were likely unjustified, but what benefit is such tentative and highly unexpert thinking to my readers? Perhaps the outside investigation of the incident will reveal more, but for now I find I have very little to add to the inquiry.
As I do find things I think I might add to the discussion, I probably will post them, though they're likely to be quite tangential to the core "what happened here and what is to be done about it" questions that others are rightly focused on. For now, just so that there's something substantively helpful in the post, let me pass along the UCLA Police Department's Taser Policy, which (apparently unlike some other departments' policies) allows the use of tasers as "pain compliance techniques" in some situations. I can't speak in any helpful detail to what pain compliance techniques (as opposed to techniques aimed at more direct officer self-defense, rather than aimed at mere compliance) should be allowed: My tentative sense is that some are invariably allowed, and should be allowed, since even simply forcibly handcuffing a suspect usually relies on the threat of pain as a means of ensuring compliance, but that doesn't tell us whether tasering should be among such techniques, at least outside unusual cases. But I thought that at least passing along the policy might help produce informed opinions from readers who are more knowledgeable than I am about police enforcement matters.
In the post immediately below, I describe some of the arguments in Arthur Brooks’s, Who Really Cares: America’s Charity Divide; Who Gives, Who Doesn’t, and Why It Matters.
There were, however, some things that troubled me.
Although the liberal v. conservative split is the hook for the book, the data are not nearly as stark as the hype surrounding the book might indicate.
Consider this passage (pp. 21-22):
When it comes to giving or not giving, conservatives and liberals look a lot alike. Conservative people are a percentage point or two more likely to give money each year than liberal people, but a percentage point or so less likely to volunteer [citing the 2002 General Social Survey (GSS) and the 2000 Social Capital Community Benchmark Survey (SCCBS)].
But this similarity fades away when we consider average dollar amounts donated. In 2000 [citing 2000 SCCBS data], households headed by a conservative gave, on average, 30 percent more money to charity than households headed by a liberal ($1,600 to $1,227). This discrepancy is not simply an artifact of income differences; on the contrary, liberal families earned an average of 6 percent more per year than conservative families, and conservative families gave more than liberal families within every income class, from poor to middle class to rich.
I am skeptical of basing so much on the SCCBS, in large part because it reports that liberal families make more money than conservatives (it is not clear from Brooks’s book whether the survey is of a representative national sample). In the 2000, 2002, and 2004 General Social Surveys, which are representative samples of the US, conservative families make $2,500 to $5,600 a year more than liberal families in each one. Although I don’t have the ANES data handy, my recollection is that the economic differences between conservatives and liberals are usually in the same direction and even larger in the ANES than in the GSS. Further, in each of these 3 GSSs, the lowest income families were the political moderates, who usually made substantially less than either liberals or conservatives.
This raises another problem with Brooks’ analysis: the contrast in Who Really Cares is frequently made between liberals (about 30% of the population) and conservatives (about 40% of the population), but I find that often the group that contrasts most strongly with conservatives is not liberals (who share with conservatives higher than average educations), but political moderates (about 30% of the population).
This problem comes to a head in Brooks’s probit and regression models analyzing SCCBS data (pp. 192-193). After controlling for a lot of things that you might not want to control for (i.e., being religious or secular), Brooks concludes that “liberals and conservatives are not distinguishable” in whether they have made any donation in the last year. This is literally true, but he fails to note that in the model liberals give significantly more than moderates, if a traditional .05 significance level is used, while conservatives do not differ significantly from moderates. Yet in Table 6, the significance level used as a threshold for identification with an asterisk is .01, not .05, as he uses in some of the other tables. In one table (p. 197), Brooks even reports significance at the .10 level, as well as at the .05 and .01 levels.
I can’t rule out the possibility that Brooks changed his reporting of the significance level so he wouldn’t have to explain why, after lots and lots of controls, liberals were more likely to have made a donation than moderates, while conservatives did not differ significantly from either liberals or moderates.
Brooks’s somewhat misleading reporting continues when he presents the results of the model predicting the dollar amount of donations. Brooks says that in the continuous dollar model, “conservatives are slightly (but distinguishably) more generous than liberals.” (p. 192) Again, this appears to be literally true. But what the model actually shows is that liberals give significantly more money than moderates, while conservatives give significantly more than both moderates and liberals. Moderates would seem to be the ungenerous ones, not liberals.
This problem of treating liberals and conservatives (who share similar levels of education) as the outliers — when moderates often are the outliers — is a common one in conservatism research, whether that research is done by liberal or conservative researchers. Here it can make liberals look as if they are at the opposite end of the spectrum in donations from conservatives, but from the data that are presented by Brooks, it’s often hard to tell whether moderates (not liberals) really are the outliers.
My first post related to Brooks’s book concerned, not liberals, moderates, and conservatives, but those who favor income redistribution v. those who don’t. Here the answer is more consistent: those who oppose income redistribution tend to be less racist, more tolerant of unpopular groups, happier, less vengeful, and more likely to report generous charitable donations. In most years of the GSS (but not 2004), political moderates tend to be nearly as redistributionist as liberals, so it’s important not to see redistribution as a simple issue of liberals v. conservatives.
On the whole, I think that Who Really Cares is a valuable book with much sound analysis, but it appears that some of its main conclusions are based on the 2000 Social Capital Community Benchmark Survey, some of whose demographics don't appear to match national representative samples such as the GSS and ANES. And in Brooks's book, sometimes liberals are accused of being ungenerous when it appears that they may be more generous than political moderates. Generally, his otherwise strong analysis is weakened by focusing too little on what I have called the forgotten middle: moderates
Related Posts (on one page):
- THOSE WHO FAVOR INCOME REDISTRIBUTION ARE MORE LIKELY TO EXPRESS RACIST VIEWS.
- Concerns About Arthur Brooks's "Who Really Cares."--
- What Arthur Brooks's "Who Really Cares" is About.--
- Those Who Favor Income Redistribution Are Less Happy and Less Generous.--
I have been working through Arthur Brooks’ new book, Who Really Cares: America’s Charity Divide; Who Gives, Who Doesn’t, and Why It Matters. Some parts I’ve read carefully, while some parts I’ve merely skimmed.
On balance, I think it is a good book, but that doesn’t mean that I don’t have some problems with the argument. In this post I will briefly describe some of the book's main contentions.
The book argues, among other things:
(Ch. 1) Conservatives give more money to charities than liberals.
(Ch. 2) Religion is involved, even accounting for more giving to secular institutions.
(Ch. 3) Redistributionists are less generous personally than anti-redistributionists.
(Ch. 4) Government intervention (including welfare) suppresses giving.
(Ch. 5) Families with children are more generous and that patterns of giving are taught to children.
(Ch. 6) Generally, Americans are more generous than people in other countries, in donating both money and time.
(Ch.7) Charity has great benefits for the giver (or as the chapter is extravagantly titled: “Charity Makes You Healthy, Happy, and Rich”).
(Ch.8) Charity can be encouraged, and should be encouraged, by better laws, policies, and practices.
(Appendix)The book ends with a 24 page appendix summarizing the main databases used and providing tables showing some of Brooks’ regression and probit analyses.
Written for a general educated audience, the book is quite accessible. Even to someone like me who had discovered some of the patterns that Brooks identifies, I found much that I hadn’t seen or thought about. He is much more sanguine about the good that charitable giving does than I would even dream of being. And I hadn’t considered the benefits to the giver (including developing social capital) that Brooks so enthusiastically endorses. But then, my research focuses more on attitudes, than on self-reported behavior.
I liked the maps comparing the states that voted for Kerry in 2004 with the states that are below average in charitable giving (p. 23). The correlation is very close.
The comparison that starts off Chapter 2 is quite stark as well: Families in San Francisco give about the same amount to charity as families in South Dakota: $1,300. Yet the SF families have average incomes of about $80,000, compared to only about $45,000 in South Dakota.
I discuss some problems with Who Really Cares is the post immediately above this one.
Related Posts (on one page):
- THOSE WHO FAVOR INCOME REDISTRIBUTION ARE MORE LIKELY TO EXPRESS RACIST VIEWS.
- Concerns About Arthur Brooks's "Who Really Cares."--
- What Arthur Brooks's "Who Really Cares" is About.--
- Those Who Favor Income Redistribution Are Less Happy and Less Generous.--
Just to focus things a bit, let's stick with charitable causes that are not political candidates or religious organizations such as churches and synagogues.
Sunday, November 19, 2006
Last fall and winter, I circulated a paper on the relationship of people’s views on income redistribution and capitalism to traditional racism and to intolerance for unpopular groups. I presented it to Gary Becker’s and Dick Posner’s Rational Choice Workshop at the University of Chicago and to the Law, Economics, and Organization Workshop at Yale.
With the publication of Arthur C. Brooks’ new book Who Really Cares (tip for the news story to Instapundit), which presents data showing that conservatives tend to be more generous than non-conservatives, I decided to put a full PDF copy of my paper on SSRN. It appears that our analyses directly overlap only slightly, though they are certainly generally complementary.
In the field of social psychology, it is commonly believed that people support capitalism and oppose greater income redistribution because they are racist or want to dominate other people or groups. Indeed, a study of college students in the United States and secondary students in Sweden found that attitudes supporting capitalism were positively associated with racism and an orientation toward social dominance (Sidanius & Pratto, 1993). In my draft article I expand and test this thesis using 16 nationally representative General Social Surveys conducted by the National Opinion Research Center between 1980 and 2004.
In later posts, I will discuss my main results, but in this post I want to confirm one of Brooks’ findings (in chapter 3 of his book)--those who oppose greater government income redistribution tend to give much more to charity. What follows is a shortened version of one small section of my paper (the paper includes relevant charts).
In the 1996 General Social Survey, about 900 respondents were asked: “On how many days in the last 7 days, have you felt . . .” happy, sad, lonely, calm, anxious, angry, tense and angry, and twelve other emotions. These results were compared to the results on an income redistribution question:
EQWLTH: “Some people think that the government in Washington ought to reduce the income differences between the rich and the poor . . . . Think of a score of 1 as meaning that the government ought to reduce the income differences between rich and poor, and a score of 7 meaning that the government should not concern itself with reducing income differences.”
Strong redistributionists (category 1) reported that they “worried a lot about little things” on about one more day a week than strong anti-redistributionists (category 7). They also reported being “lonely” and being unable to “shake the blues” on about an additional day a week. Strong redistributionists (category 1) also reported about one fewer day a week on which they were “happy,” “contented,” and “at ease.”
In terms of relative odds, strong redistributionists (category 1) had about two to three times higher odds of reporting that in the prior seven days they were “angry” (2.0 times higher odds), “mad at something or someone” (1.9 times), “outraged at something somebody had done (1.9 times), sad (2.1 times), lonely (2.3 times), and unable to “shake the blues” (3.5 times). Similarly, anti-redistributionists had about two to four times higher odds of reporting being happy (3.8 times) or at ease (2.1 times). The data are consistent with redistributionists in the general public being more angry, sad, lonely, worried, and restless, and less happy, at ease, and interested in life.
Not only do redistributionists report more anger, but they report that their anger lasts longer. Further, when asked about the last time they were angry, strong redistributionists were more than twice as likely as strong opponents of leveling to admit that they responded to their anger by plotting revenge. Last, both redistributionists and anti-capitalists expressed lower overall happiness, less happy marriages, and lower satisfaction with their financial situations and with their jobs or housework.
But do these attitudes have behavioral consequences? In other words, are the data consistent with the hypothesis that anti-redistributionists are more generous or altruistic? Data from self-reports appear to support the notion that those who oppose income redistribution are somewhat more altruistic in their behavior than redistributionists. Compared to those favoring greater income redistribution, anti-redistributionists are more likely to report that they donated money to charities, religious organizations, and political candidates (p<.000000001). This hypothesized effect remains significant (p=.001) after controlling for race, gender, age, income, and education. Anti-redistributionists were also more likely to report having returned money after receiving too much change, and to have looked after plants, pets, or mail while someone was away. The one sort of altruistic behavior the redistributionists were more likely to engage in was giving money to a homeless person on the street. Thus, it appears that those who wanted the government to promote more income leveling were less likely to be generous themselves in their patterns of charitable donations and some other altruistic behaviors.
Among the blogs noting or discussing the philanthropy issue are:
Blogs of War,
American Conservative Daily,
Truth About Everything.
UPDATE: Below some commenters speculate that the pattern of greater donations to charity by anti-redistributionists is trivial in size or simply a function of religion. But anti-redistributionists give more to secular (non-religious) charities as well. Brooks reports (p. 56) that strong anti-redistributionists gave 12 times more money to charity than strong redistributionists, and 9 times more to secular (non-religious) causes.
In my own analysis of donation (which was simply part of a paragraph in a much longer paper), I expected to find larger donations and a greater frequency of donation for anti-redistributionists, but I expected that to disappear entirely when one controlled for income. As expected, the effect is lessened but to my surprise, it still remains statistically significant.
2D UPDATE: The insightful Ralph Luker at Cliopatria briefly comments:
Arthur C. Brooks' new book, Who Really Cares: The Surprising Truth About Compassionate Conservatism, is likely to be controversial and his data needs to be tested. But would it be surprising if rightists placed greater trust in private initiatives to do what leftists expect of government?
Mirror of Justice (Greg Sisk),
Political Pit Bull.
Related Posts (on one page):
- THOSE WHO FAVOR INCOME REDISTRIBUTION ARE MORE LIKELY TO EXPRESS RACIST VIEWS.
- Concerns About Arthur Brooks's "Who Really Cares."--
- What Arthur Brooks's "Who Really Cares" is About.--
- Those Who Favor Income Redistribution Are Less Happy and Less Generous.--