Saturday, December 9, 2006

Paperweights: The American Heritage dictionary defines a "paperweight" as "a small, heavy, often decorative object that is placed on loose papers to hold them down." In popular usage, the word is most often mentioned in a joking way: if something is completely useless, you might joke that "you can always use it as a paperweight." The joke works in part because no one really uses paperweights these days. You just don't need a weight to hold down papers. Papers placed on a table or desk generally just sit there.

  So I wonder: Did people actually used to use paperweights, and if so, why? Were they just decorative, something used to show off the fact that you were literate and had paper? Or maybe they were more useful in an age before air conditioning and central heating, when you might expect more indoor air circulation that could blow your papers around? I looked around online, but I couldn't find anything directly on this. Any ideas?
Russell Kirk, Libertarianism, and Fusionism:

It is somewhat ironic that Steve Bainbridge would cite Russell Kirk's ideas as a basis for a renewed conservative-libertarian fusionism. Kirk himself despised libertarians, whom he called "chirping sectaries" in the title of one of his essays. In that same essay, he wrote that "[t]o talk of forming a league or coalition between these two [conservatives and libertarians] is like advocating a union of ice and fire." He even claimed that a socialist-conservative alliance was a more viable possibility than a libertarian-conservative one:

Conservatives have no intention of compromising with socialists; but even such an alliance, ridiculous though it would be, is more nearly conceivable than the coalition of conservatives and libertarians. The socialists at least declare the existence of some sort of moral order; the libertarians are quite bottomless.

The essay also displays a number of typical shortcomings of Kirk's work, including the difficulties he had in understanding ideas opposed to his own (not just libertarianism, but also others), and a tendency to resort to ad hominem attacks.

Unlike such conservatives as Frank Meyer and Bill Buckley, Kirk was an opponent of fusionism, not a supporter of it. To the extent that conservatives embrace his ideas, the chances of a revival of fusionism are reduced.

UPDATE: In fairness to Bainbridge, I should note that he also cites Meyer in his post, more prominently and extensively than Kirk. However, he cites the latter's critique of the Bush 41 administration as part of the possible basis for a new fusionism without considering Kirk's lifelong hostility to libertarianism and fusionism.

Bainbridge on Bush and Fusionism:

Professor Bainbridge offers his thoughts on how President Bush's policies fractured fusionism and drove away libertarian-minded conservatives:

The GOP succeeded in breaking out of 40+ years as a minority party because people like Ronald Reagan and, yes, Newt Gingrich consistently embraced a fusionist approach to policy that enabled libertarians, social conservatives, and fusionists to live together more or less peaceably under the same big tent. Bush's departures from fusionism broke the back of that coalition.
How did Bush do this? Utopian foreign policy, profligate spending, and the embrace of big government programs like "No Child Left Behind."

Interestingly, Bainbridge cites conservative thinker Russell Kirk repeatedly in his discussion of fusionism. Yet Kirk never embraced Meyer's fusionist philosphy. Indeed, Meyer and Kirk were often at odds. Indeed, in a 1955 article for The Freeman, "Collectivism Rebaptized," about Kirk and other "new conservatives," Meyer concluded:

Only the principles of individual freedom--to Dr. Kirk the "conservatism of desolation"--can call a halt to the march of collectivism. The New Conservatism, stripped of its pretensions, is, sad to say, but another guise for the collectivist spirit of the age.
As a result of this essay, Kirk did not wish to join the National Review masthead once Meyer became a senior editor in 1957.

UPDATE: Bainbridge has more here. I agree with him that Kirk was an important figure in post-war conservative thought. I respectfully disagree that Kirk was a particularly reliable friend of liberty, and would add that Kirk also expicitly rejected Meyer's fusionist philosophy as "weary liberalism of the nineteenth century."

The Economic Case for Scrooge:

This holiday season, it's worth considering economist Steve Landsburg's humorous, but also telling, defense of Scrooge:

Here's what I like about Ebenezer Scrooge: His meager lodgings were dark because darkness is cheap, and barely heated because coal is not free. His dinner was gruel, which he prepared himself. Scrooge paid no man to wait on him.

Scrooge has been called ungenerous. I say that's a bum rap. What could be more generous than keeping your lamps unlit and your plate unfilled, leaving more fuel for others to burn and more food for others to eat? Who is a more benevolent neighbor than the man who employs no servants, freeing them to wait on someone else?....

In this whole world, there is nobody more generous than the miser—the man who could deplete the world's resources but chooses not to. The only difference between miserliness and philanthropy is that the philanthropist serves a favored few while the miser spreads his largess far and wide....

Saving is philanthropy, and—because this is both the Christmas season and the season of tax reform—it's worth mentioning that the tax system should recognize as much. If there's a tax deduction for charitable giving, there should be a tax deduction for saving. What you earn and don't spend is your contribution to the world, and it's equally a contribution whether you give it away or squirrel it away....

Great artists are sometimes unaware of the deepest meanings in their own creations. Though Dickens might not have recognized it, the primary moral of A Christmas Carol is that there should be no limit on IRA contributions...

If Christmas is the season of selflessness, then surely one of the great symbols of Christmas should be Ebenezer Scrooge...

Of course, Scrooge is still vulnerable to ethical criticism, even if Landsburg's argument is correct. Ayn Randian "virtue of selfishness" libertarians (of whom, by the way, I am not one) could criticize him for neglecting his own self-interest by consuming so little. Utilitarians could argue that overall social utility might be increased if Scrooge consumed more. Communitarians could argue that Scrooge doesn't involve himself in the community enough (though his miserliness leaves more resources available for community involvement by others). However, Scrooge definitely has a strong case against the standard view that he harms others by being too miserly. Moreover, there is also a left-wing environmentalist case for Scrooge, in so far as he minimizes his use of nonrenewable resources and energy sources (e.g. - coal) that create pollution. Thanks to Scrooge, nineteenth century London had more resources and less air pollution!

I present to you: Ebenezer Scrooge - benefactor of the poor, conservationist, and environmentalist!


Friday, December 8, 2006

Your Money or Your Land: Didden v. Village of Port Chester - An important Post-Kelo eminent domain case:

Didden v. Village of Port Chester is potentially the most important federal public use eminent domain case since Kelo v. City of New London.

I recently coauthored an amicus brief on behalf of myself and seven other legal scholars specializing in property and eminent domain, urging the Supreme Court to hear this case. The brief is available here. Among the signatories are Richard Epstein (University of Chicago), Jim Ely (Vanderbilt), Viet Dinh (Georgetown), Ben Barros (Widener); Eric Claeys (St. Louis University); Adam Mossoff (Michigan State); and my colleague Steve Eagle. Here is a brief description of the facts:

[T]wo Port Chester [New York] property owners joined with the Institute for Justice (the public-interest law firm that litigated the Kelo case) to ask the Supreme Court to look again at the issue of eminent domain abuse and ensure that lower courts do not read Kelo to completely eliminate judicial review. The case illustrates the dangerous results of the Kelo decision and asks what should be an easy question: Does the Constitution prevent governments from taking property through eminent domain simply because the property owners refused to pay off a private developer?

In 2003, private developer [Gregg Wasser] approached Bart Didden and Domenick Bologna with a modest proposal: they could either pay him $800,000 or give him a 50 percent interest in their proposed business, or he would cause the Village of Port Chester to take their property from them through eminent domain. Outraged, they refused. The Village condemned their property the very next day.

Bart and Domenick filed suit in federal court, arguing that the taking violated the Fifth Amendment of the U.S. Constitution, which only allows property to be taken for a “public use.” Shockingly, the trial court threw out their case, and the Second Circuit agreed. Because their property lay within a “redevelopment area,” a region the Village had designated as subject to its eminent domain power, the Constitution didn’t protect them from condemnation, even though they had alleged that they were condemned solely because they resisted the developer’s attempted extortion....

“What the developer and Village of Port Chester did is nothing short of government-backed extortion,” said Didden. “I had an agreement to develop a pharmacy, a plan fully approved by the Village, and in the eleventh hour I was told that I must either bring this developer in as a 50/50 partner or pay him $800,000 to go away. If I didn’t, the City would condemn my property through eminent domain for him to put up a pharmacy. What else can you call that but extortion? I hope the Supreme Court sets things right.”

The crucial legal issue involves an ambiguity in Kelo. It's not clear whether or not Kelo permits pretextual condemnations within "redevelopment areas." Kelo held that condemnations for "economic development" purposes should get nearly absolute deference from judges so long as they are part of an "integrated development plan;" moreover, courts are not supposed to "second guess" the quality of the plan, so even very poor plans that have little chance of achieving their objectives and blatantly favor private interests can still immunize condemnations from challenge. However, Kelo also emphasized that "pretextual" takings - where the stated public interest rationale is just a cover for the true purpose of benefiting a "private party" - are still forbidden. In an important concurring opinion to the 5-4 decision, Justice Kennedy called for heightened judicial scrutiny of condemnations where there is a legitimate suspicion of "favoritism" towards a private party.

It's hard to find a more blatant example of pretextual condemnation and "favoritism than the Didden case. The plaintiffs' property was only condemned because they refused to pay $800,000 to Wasser. Had they given in to Wasser's threats and paid him the money, there would have been no public benefit, because the money would have gone into Wasser's pocket, not the Village treasury. Moreover, Wasser's planned use for the property - building a Walgreens pharmacy - is almost exactly the same as the current owners (who plan to open a CVS). So there is no potential economic gain to the community from transferring the land to Wasser; indeed, the area's taxpayers will be net losers because they will have to foot the bill for the condemnation. Nonetheless, the condemnation did occur within a designated "redevelopment area," so the Second Circuit Court of Appeals held that it is immunized from legal challenge under Kelo.

In our amicus brief, the other property professors and I argue that Kelo should not be interpreted as a blank check for pretextual takings in redevelopment areas. Otherwise, private interests across the country could follow Wasser's example and use the establishment of redevelopment areas as a tool to extort money from area property owners. There are hundreds, if not thousands, of redevelopment areas around the country, so there is a great deal of potential for abuse if the Second Circuit's approach to this issue prevails.

Even if the Supreme Court reverses Didden, it will eliminate only some of the most blatant cases of eminent domain abuse. Kelo and most of the harmful takings it authorized would still continue in place. However, overruling Didden would still be an important step forward in combatting blatantly pretextual takings.

CONFLICT OF INTEREST WATCH: The property owners in this case are represented by the Institute for Justice, the libertarian public interest law firm that also represented the New London property owners in Kelo. As I have mentioned on this blog in the past, I worked for IJ as a summer law clerk in 1998 and have done several pro bono amicus brief projects for them since then.

UPDATE: In addition to the professors who signed on to the brief, I would also like to recognize the contributions of Nazish Agha of Cadwalader, Wickersham & Taft, who helped prepare the brief and also arranged for her firm to finance the printing and filing of the brief as a pro bono project. As experienced appellate lawyers know, it costs a good deal of money to print and file a Supreme Court brief, so CWT's assistance was extremely helpful.

Related Posts (on one page):

  1. Your Money or Your Land II - The Pacific Legal Foundation Amicus Brief in Didden v. Village of Port Chester:
  2. Your Money or Your Land: Didden v. Village of Port Chester - An important Post-Kelo eminent domain case:
Tragedy At Chicago Law Firm: There was a deadly shooting at an office building in downtown Chicago today, and UPI is reporting that the shooting happened in the office of a law firm.
[Joanne Jacobs (guest-blogging), December 8, 2006 at 6:18pm] Trackbacks
Do the right thing

Over at Chalkboard, Joe Williams has a great post challenging the idea that we need to close the achievement gap in order to compete in the global economy. He's responding to an otherwise good New York Times editorial that calls for enforcing the teacher quality provisions of No Child Left Behind.

Why do I think this is the wrong reason for closing the gap? I’m not entirely convinced the “create a supply of good workers” line is as emotionally/intellectually compelling as “maintain an equal, just, democratic society” in terms of the primary reason we should care about the future of impoverished black and brown children.

If producing more high-tech workers is the number one goal, we'd do better working on improving mediocre suburban schools rather than tacking inner-city schools, Williams argues. The reason to close the achievement gap is that providing educational opportunity to all Americans is the right thing to do.

I agree.

I gave up a lucrative (by newspaper standards) job as an op-ed columnist to report and write a book, Our School, about a San Jose charter school created to educate left-behind students. Students — 90 percent are Hispanic — enter ninth grade with fifth-grade reading and math skills, on average. All graduates go on to college. About 81 percent in the first three graduating classes remain on track to complete a four-year degree, a remarkable accomplishment for disadvantaged students. (Half of all students who start college never earn a degree and the record is far worse for low-income, Hispanic and black students.) Downtown College Prep grads may not be out there competing in the global economy. They'll be productive workers, informed citizens and education-minded parents. These young people deserve the chance to choose a school that meets their needs. They deserve a chance.

I'd like to thank Volokh Conspiracy for giving me a chance to guestblog this week. It's been fun to communicate with a new bunch of readers. Drop on over to, nominated as best education blog in the 2006 Weblog Awards.

The Sixth Circuit's "Lethal Mess":

Sentencing Law & Policy's Doug Berman reports on the "lethal mess in Ohio" created by the Sixth Circuit's inconsistent approach to death penalty cases.

Yale Law School and Conservatives:

I don't have any idea whether the gossip about Yale Dean Koh refusing to honor Justice Alito (or perhaps just being very intent on honoring Linda Greenhouse), linked to by Jonathan below, is true, but I do know that I met a bunch of Yale Law Federalists a few weeks ago, and they were quite dispirited about goings-on at the law school. They could barely believe it when I told them that in my day ('88-'91), during the Guido Calabresi era, Yale was considered a much friendlier place for conservative and libertarian students than was Harvard. And for faculty, too, with the Yale hiring Ellickson, Schwartz, Romano, Langbein, and perhaps others whom I am forgetting. Kudos to Dean Kagan of Harvard for reversing this equation.

You Think You've Got Bad Luck?:

Some of you may recall the weird story of a few years ago, when one of the giant balloons at the Macy's Thanksgiving Day parade in New York (the 60-foot tall "Cat in the Hat," in fact) came loose, crashed into a streetlamp, and fractured the skull of one of the onlookers below. And most of you surely recall that last October a small plane co-piloted by Yankees pitcher Cory Lidle slammed into an apartment in a building on New York's Upper East Side. What you may not know (and what I didn't know until recently) is that these accidents both happened to the same woman. (I was pretty sure this must be one of those silly urban legends that make the rounds from time to time, but according to the NY Daily News, MSNBC, and others, it is in fact true). It truly boggles the mind -- making the front page of the New York Times twice for falling victim to two of the most freakish, random, and improbable events one can imagine. The likelihood of this happening to the same person? Obviously, not zero (since it happened), but surely about as close to zero as one gets; what odds would you have given someone in 1998 if someone had been willing to bet on its occurrence? It's like . . . well, I can't really think of what it's like; I can't come up, off the top of my head at least, with anything remotely like it.

New developments in scholarship:

For those who are interested in law and music, and the (really!) fascinating question of what musical interpretation has to teach us about statutory interpretation, check out Ian Gallacher's Conducting the Constitution: Justice Scalia, Textualism, and the Eroica Symphony. It's fun -- and even contains snippets of score! -- but not, I think, altogether fair to the textualist perspective. (For example: Who says a legal textualist should think textualism even desirable in music?) A better contribution to the genre, as I recall (it's been maybe ten years since I read this), is Sanford Levison's and J.M. Balkin's Law, Music, and Other Performing Arts, 139 U. Pa. L. Rev. 1597 (1991).

And, for those of you whose interests tend either to tax law or to silly jokes about buffalo, check out Erik M. Jensen's Wheir's the Beef?: Buffalo Law and Taxation, 36 N.M. L. Rev. 517 (2006). This is really one where you have to read the footnotes.

[Joanne Jacobs (guest-blogging), December 8, 2006 at 11:54am] Trackbacks
Truant parents

Threatened by "jail time," Philadelphia parents of chronic truants showed up at a group meeting to hear a lecture on truancy from Mayor John Street. The city sent letters to parents of 6,000 truant parents; about 4,000 people came to hear the mayor's pitch, accompanied by threats. The Inquirer reports:

From now on, (Street) said, Philadelphia School District students with more than three unexcused absences will get a home visit from a truant officer. And parents whose children rack up eight or more illegal absences could find themselves in weekend parenting classes, hauled before a judge, or even in a jail cell.

For years, teachers have been complaining that they're held accountable for the progress of students who don't bother to show up every day. They want parents held accountable. But how? Following through on the mayor's threats will be an expensive proposition. For a start, Philadelphia is hiring 400 new truant officers.

Some parents clearly are reluctant to accept responsibility.

. . . the threat of a fine she can't afford or of jail time was enough to get (Krissy Jackson) to the meeting.

"It's $500, or you could go to jail," Jackson said. "I don't want to do that."

Jackson said she does her part. She faulted the schools for not being able to keep students in class.

"What should we do?" she asked. "We're a lot of single parents. I give them [SEPTA] tokens and send them to school - I can't do anything else."

Chronic truants start missing class in elementary school. By high school it may be too late for parents to assert control. Education Gadfly has more on "anti-poverty paternalism."

A lesson from Canada?

The new Conservative government in Canada has lost its promised attempt to repeal same-sex marriage. The vote was even more favorable to gay marriage than it was in 2005, with more Conservatives voting for it than last time. This appears to end the matter in Canada:

Prime Minister Stephen Harper said he heard the message and will respect it.

“We made a promise to have a free vote on this issue, we kept that promise, and obviously the vote was decisive and obviously we’ll accept the democratic result of the people’s representatives,” Harper said.

“I don’t see reopening this question in the future.”

The question put to MPs was whether they wanted to see legislation drafted to reinstate the traditional definition of marriage, while respecting the existing marriages of gays and lesbians.

That Conservative motion failed 175-123. . . .

Ultimately, more MPs supported same-sex marriage than in the last vote on the issue in June 2005.

During that charged vote last year, only three Tories voted in favour of expanding the definition of marriage. Today, the number who approved the status quo was 13, including high-profile politicians such as Foreign Affairs Minister Peter MacKay, Transport Minister Lawrence Cannon and International Development Minister Josee Verner. . . .

The action in Canada follows what may become a familiar pattern. Same-sex marriage emerges (sometimes through judicial action, sometimes not), which is followed by strong political resistance that weakens over time as the jurisdiction grows accostomed to the idea and sees no ill effects from recognizing gay families in marriage.

The House of Commons has been dealing with the issue of same-sex marriage in earnest since 2002, when the Commons voted overwhelmingly to support the traditional definition of marriage. In 2003, however, the Ontario Court of Appeal ruled that barring same-sex couples from marriage was unconstitutional.

Gays and lesbians began marrying in the province, and soon other jurisdictions faced similar rulings and began issuing licences.

About 12,000 gay Canadians, as well as foreign visitors, have been married in the last three years.

The previous Liberal government took the further step of consulting the Supreme Court on whether its own legislation would infringe upon freedom of religion. The court responded that the Charter would protect churches from having to officiate such marriages.

A similar pattern emerged in Massachusetts after the Goodridge decision in 2003. There was a swift and strong political resistance to the decision, manifested in a strong initial vote to repeal gay marriage by constitutional amendment in the state legislature. The next year, after an election in which opponents of gay marriage lost seats in the state legislature, there was much less support for repeal and the effort was overwhelmingly rebuffed. Seeing they no longer had the votes in the state legislature, opponents of gay marriage then tried the tactic of forcing a popular vote on the issue. That may still happen, but it probably won't succeed if it does. Almost three years into the recognition of gay marriage, with no evidence of ill effects, polls in the state show majorities now supporting gay marriage.

Vermont followed a similar pattern, too. In 2000, when the state supreme court ordered the state legislature to give gay couples equal benefits, there was strong legislative and popular resistance to the idea. In that fall's election several supporters of civil unions were defeated. But the furor subsided and is now over.

In states where the recognition of gay relationships emerged legislatively -- like California and Connecticut -- popular resistance seems to have been even lower. An effort to place the issue on the ballot in California has so far failed. There has been little or no organized resistance in Connecticut that I'm aware of.

It will be interesting to see whether New York, New Jersey, and Washington state, whose legislatures will likely be dealing with the issue in the coming months, meet much resistance, and if so, whether that resistance also subsides after the state gains actual experience with recognizing gay families in law.

What Is (or Was) "Fusionism"?

With all of this talk about the demise of the conservative-libertarian "fusion," and the potential for "liberaltarianism," I thought it would be worthwhile saying a little bit about the origins and content of "fusionism."

In post-war American conservatism, the term "fusionism" is most closely associated with Frank S. Meyer, a conservative intellectual who was a senior editor at National Review, where he penned the column "Principles & Heresies." Meyer argued American conservatism was a distinct philosophy that blended a traditional conservative emphasis on value, virtue, and order, with a libertarian political outlook. Whereas some post-War conservatives argued that virtue was a necessary precondition for freedom, Meyer maintained that virtue required free choice. Wrote Meyer, "the belief in virtue as the end of men's being implicitly recognizes the necessity of freedom to choose that end." And:

acceptance of the moral authority derived from transcendent criteria of truth and good must be voluntary if it is to have meaning; if it is coerced by human force, it is meaningless.
Freedom means freedom: not necessity, but choice; not responsibility but the choice betwen responsibility and irresponsibility; not duty but the choice between accepting and rejecting duty; not virtue, but the choice beween virtue and vice.
Meyer was no "I'm okay, you're okay," relativistic libertarian - he endorsed traditional conservative notions of virtue and morality - but he nonetheless desired a minimal state in which individual freedom had the widest range of potential expression.

Meyer's philospohy, dubbed "fusionism" by Brent Bozell, was outlined in his best-known book In Defense of Freedom: A Conservative Credo (available from Liberty Fund in this collection of Meyer's writings edited by William C. Dennis). The aim of the book, in Meyer's words, was "to vindiciate the freedom of the person as the central and primary end of political society." Yet Meyer saw his work as both prescriptive and descriptive, and believed "fusionism" was a distillation of a unique American variant of conservatism that embraced America's founding on classical liberal ideals.

Here for the first time a polity was established based upon the freedom of the person as its end and upon firm limitation of the powers of hte state as the means to achieve that end.
Meyer believed American conservatism was based upon seven principles:
  • "the existence of an objective moral order based on ontological foundations;
  • the primary reference for political thought and action is the individual, not the collective";
  • anti-utopianism;
  • the limitation of government power;
  • opposition to state control of the economy;
  • "firm suppord for the Constitution of the United States as originally conceived";
  • anti-communism.
Meyer, a former Communist himself, wrote at the height of the Cold War. No doubt that influenced his thinking, and may have some bearing on whether his fusionism remains a relevant political philosophy today. But before anyone writes fusionism's obituary, it is worth exploring what was meant by the term.

Merit Selection:

How does Yale Law School determine who should receive the school's prestigious Award of Merit? Davit Lat has some amusing speculation.


Thursday, December 7, 2006

Does Shaming Punishment Work?: The Associated Press has this interesting story about a shaming punishment imposed for burglary. Thanks to SL&P for the link.
Why Few Grants in Sentencing Law?: Over at Sentencing Law & Policy, Doug Berman has a very interesting post wondering why the Supreme Court is less likely to hear cases in the area of sentencing law, especially after the 2005 blockbuster in Booker. He writes:
I dispute the notion that there is a "paucity of cases that meet the court's standard criteria" for review. (Linda attributes this view to the Justices and Orin Kerr seems to agree.) There are numerous circuit splits on Booker issues that impact thousands of cases every month. Right after Booker, we had a crazy three-way circuit split over Booker plain error the Court refused to consider. And, as I have detailed here, even after the Court considers reasonableness review in Claiborne and Rita, there are at least three other major circuit splits on how advisory guidelines are supposed to work. . . .

Significantly, while the SCOTUS docket has shrunk dramatically over the last 20 years, the size of federal and state criminal justice systems have increased dramatically. There are literally millions more criminal justice cases in the system now than there was two decades ago. In my view, the problem is not the lack of worthwhile cases, the problem is a Supreme Court which has altered its view on what sorts of cases seem worth its time and energy.
  We're both just speculating, of course, but my own sense of what's going on is a bit different. My guess is that the Court's reluctance to resolve splits that have emerged in the last year under Booker has more to do with the nature of 5-4 constitutional revolutions than with any new reluctance to take cases or any lack of interest in sentencing law.

  Here's my thinking. When a bare majority of Justices decides to introduce dramatic constitutional change that has a ripple effect through the legal system — as happened with Blakely/Booker — the conditions are ripe to get a lot of lower court confusion that the Supreme Court won't initially agree to settle. This is true for a few reasons, I think. First, 5-4 decisions are more likely than other decisions to leave open loose ends, as some compromise may be needed to secure a fifth vote. Those loose ends will lead to a lot of uncertainty below. Second, the five Justices in the majority may not have a strong sense of where to go next. If they altered the law because they wanted to change the dynamic of a particular area, they may feel they need to see how it's working out in the lower courts before they know how to proceed.

  Third, with a bare majority, the Justices in the majority may want to proceed particularly cautiously, as losing one of the five may gut the original set of changes. Fourth, the four Justices on the losing end of 5-4 revolutions may be considerably less likely to vote to grant follow-up cases that further cement the decision they think is a wrong turn. If at least some of these dyanamics are accurate, you would expect 5-4 revolutions to lead to a lot of short-term confusion without a lot of grants to help settle them.

  Measuring this claim empirically should be straightforward, although to do it right you'd need to go back and look through some of the the Justices' papers (such as the Blackmun papers) to see if my intuitions match up with past practice. I did do one quick check, though, which obviously is woefully incomplete but at least may be suggestive: I took a look at what the Supreme Court did after its blockbuster 1966 decision in Miranda v. Arizona. In some ways, Miranda and Blakely are similar: a 5-4 majority of the Court introduced a new set of rules that had to be followed in many criminal cases, affecting thousands of cases at a time.

  It turns out that after Miranda, the Supreme Court waited for three years to decide its first Miranda case, Orozco v. Texas, 394 U.S. 324 (1969). (I'm ignoring Johnson v. New Jersey, 384 U.S. 719 (1966), which ruled that Miranda wasn't retroactive and was argued and decided in the same week as Miranda itself). I haven't gone back and read through what was happening in the lower courts after Miranda, but my vague recollection is that Miranda introduced a ton of uncertainty pretty much immediately. But the Court took its time, taking the cases over a period of many years rather than all at once.

  It's hard to tell if the Miranda example is typical, but it's consistent with my sense that the Court will often take a while to work through the implications of its 5-4 revolutions. Of course, who knows what would have happened back then if there had been Yale Kamisar's Interrogation Law & Policy blog to keep everyone up on the latest developments.
Lessons of Pearl Harbor:

An appropriate way to mark the 65th anniversary of Pearl Harbor is to reconsider one if its key lessons: the difficulty of predicting an enemy's strategy and tactics, and problems this poses for a primarily defensive national security strategy. As Roberta Wohlstetter showed in her classic study, Pearl Harbor: Warning and Decision , US intelligence actually had a great deal of evidence suggesting the possibility of a Japanese attack on Pearl Harbor even before December 7, 1941. In fact, the US, through its MAGIC program, had broken the Japanese military and diplomatic radio codes, and so was reading many Japanese communications in "real time." Yet US officials still failed to predict the attack in large part because the evidence pointing in the right direction was balanced by lots of other evidence suggesting that Japan would pursue other options (such as attacking the Phillipines, attacking British and Dutch possessions in the Far East while leaving the US alone, etc.). Only after the fact was the US able to separate what Wohlstetter called the "signals" from the "noise."

The 9/11 Commission report suggests that signals and noise issues also played a role in intelligence failures prior to 9/11, though we did not have as good intelligence on Al Qaeda prior to 2001 as the US did on Japan prior to Pearl Harbor.

As the MAGIC example dramatically demonstrates, there are serious limits to even the best intelligence. A reasonably smart enemy will deliberately send out contradictory signals and "noise" before any attack. This point applies with special force to modern terrorists, who have a large number of potential targets to choose from. Sooner or later, they will catch us by surprise again.

For these reasons, among others, we cannot win with a purely or even primarily defensive orientation. Ultimately, we have to engage in offensive operations, in order to destroy the enemy before they are able to implement their own attack plans, and so we ourselves can exploit the advantages of surprise and confuse the enemy's own intelligence. Offensive strategies certainly have their own risks, and are not a panacea. However, even more than 9/11, Pearl Harbor demonstrates that an exclusively defensive orientation is a guarantee that our enemies will take us by surprise sooner or later - with potentially devastating results.

UPDATE: Many of the commenters have, perhaps predictably, immediately gone into a debate over the Iraq War. The point of this post is both broader and narrower than Iraq. Narrower because the balance between offense and defense is just one of many factors that needs to be considered in assessing the decision to overthrow Saddam Hussein. Broader because the point of the post applies to other conflicts too. In particular, it applies to the debate between those who believe that we can best counter terrorism and other threats through defensive "homeland security" measures and those who believe in a more aggressive offensive approach. In my view, the former strategy is likely to break down over time because 1) the enemy has an almost infinite range of targets to pick from, making it difficult to predict which one they will hit, and 2) the "signals/noise" problem ensures that we will periodically have intelligence failures similar to Pearl Harbor - especially if we don't have information comparable in quality to what MAGIC provided back in 1941. Does that mean that offense is a once size fits all solution to all national security threats? Of course not. But it's an important point to consider that I think is too often ignored.

Judges Packing Pistols: Who needs a gavel when you have a Glock?
"Authentic" Judaism:

An article I was reading the other day reminded me how irritated I get when Haredim (ultra-Orthodox Jews) claim that their brand of Judaism is "authentic" Judaism, as it's been practiced for thousands of years; everyone else's brand of Judaism is thus "inauthentic."

One doesn't need to go back thousands of years to rebut such claims; a few hundred years will do. Here are some of the innovations the ultra-Orthodox have brought to Judaism since the 18th century:

(1) Cults of personality for rabbinical leaders, such that in some communities, the rabbis are not only spiritual leaders, but offer advice (or even demand adherence to their views on) various secular matters, such as whom to vote for, whom to marry, and so forth. A case in point: in a recent Ha'aretz article on a proposed boycott of El-Al by the Haredim, an international business man was quoted as stating that "my rabbi says this is my last flight on El-Al." For the unitiated, "rabbis," unlike say, priests, have no particular standing in Judaism as traditionally practiced; anything a rabbi can do, including marriages, bar mitzvahs, and what have you, can be done by any Jew. The idea of rabbi as holy man/guru is a recent innovation.

(2) Various additions to Jewish law that have no basis in traditional Jewish sources. For example, some Hardedim will only eat "glatt kosher" food; the normal laws of kashrut are not sufficient.

(3) Despite the traditional Jewish ban on superstition, superstitions are not only tolerated in many Haredi communities, they are positively a normative part of communal practice. Consider the practice of Kapporot--placing the burden of one's sins before the high holidays on a hapless chicken.

(4) Attire: where in traditional Jewish sources can one find a requirement to dress in the garb of 18th century Polish or Lithuanian nobility?

(5) Perhaps most dramatic, traditional Judaism always encouraged rabbinic scholars not to be a burden on their communities, and to have remunerative employment. Great rabbis of the Talmud are often referred to by their occupations--Rabbi so and so the blacksmith, Rabbi so and so the tailor, and so forth. Maimonidies, of course, was a physician. Today, in some Haredi communities, not only are the leading scholars of the community expected not to work, and instead study Talmud all day, the normative baseline is that all men, and especially younger men, should spend all their time studying Talmud, and working to support one's family is a last resort.

None of this is meant to disparage Haredi Judaism (though I have to say that I shake my head a bit when I see Haredim in B'nai B'rak wearing long black coats day after day in 90 degree heat), which has its own charms and appeals to its followers. But the idea that any of the above recent innovations they have made to Judaism would be recognizable to say, Maimonidies, much less Moses, defies credulity. The lesson is that even among the ultra-Orthodox, the religion has and continues to involve, and claims of "authenticity" based on total stasis makes powerful propaganda, but has little historical basis.

Moment of Silence to Remember Pearl Harbor: Via the Associated Press:
Nearly 500 survivors of the Japanese attack on Pearl Harbor observed a moment of silence Thursday to remember those who died in the surprise attack that pulled the United States into World War II.

The survivors bowed their heads at 7:55 a.m., the minute planes began bombing Pearl Harbor 65 years ago.

Many veterans were treating the gathering as their last, uncertain whether they would be alive or healthy enough to travel to Hawaii for the next big memorial, the 70th anniversary, in five years.
Federal Torture Indictment:

The federal government has indicted one Roy M. Belfast, Jr. for engaging in torture, and thereby violating 18 U.S.C. 2340A. As Robert Chesney notes (via Steve Vladeck), this is the first such federal indictment.

Given the controversy about what does, or does not, constitute torture under U.S. law, Vladeck notes the issuance of this indictment raises some interesting questions:

does this mean that the government will have to advance a theory of what, precisely, is "torture" under U.S. law? If so, wouldn't that open the door for the defense to invoke every single argument the Bush Administration has ever made about what torture isn't? . . .

for an Administration that has tried so hard to avoid a meaningful national debate over what is and what is not "torture," this case strikes me as likely to force the issue in very direct, and perhaps very powerful, ways.

This one will be worth watching.

Honoring Borlaug:

Via Jurisdynamics comes word that Cognress has approved bestowing a Congressional Gold Medal on Norman Borlaug. Once President Bush signs the legislation, this will be an honor well-deserved.

[Joanne Jacobs (guest-blogging), December 7, 2006 at 12:22pm] Trackbacks
Smart girls, slow boys

Remember the girl crisis? These days educators are trying to redesign classes to engage boys but it wasn't long ago that all the talk was about how to keep girls from being ignored, silenced and turned off to math and science. On The Quick and the Ed, Sara Mead reviews a 1993 Washington Post Magazine article on the problem of "smart girls" who are "hesitant to speak up out of fear that they'll look foolish if they're wrong." Newsweek's boy-crisis story raised the same point:

Middle-school boys will do almost anything to avoid admitting that they're overwhelmed. "Boys measure everything they do or say by a single yardstick: does this make me look weak?" says Thompson. "And if it does, he isn't going to do it."

Mead asks:

(Would it be too radical if I suggest that everybody, regardless of gender, really dislikes and tries to avoid appearing wrong, foolish or weak?)

Montgomery Blair, the high school attended by the exceptionally "smart girl" in the story, "added group work and downplayed competition to attract girls." Now schools are "being urged to do the opposite in order to better serve boys," Mead writes.

Most significantly, both the boy crisis and girl crisis stories seem to rely heavily on rather dubious research and anecdotal reports about individual boys and girls whose experiences, while they make for compelling narrative, are often not representative. Today the girl crisis issues that garnered so much attention in the 1990s are often dismissed as wrongheaded analysis based on bad research that has since been debunked, or folks say that the achievement gains girls have made mean whatever problems there were have been resolved. Reading this 13-year-old article, I couldn't help but wonder if, 13 years from now, we'll see today's boy crisis hype largely the same way.

The difference is that stories about the problem with girls focused on high-achieving girls with the potential to become leaders in science, technology and business. The boy problem is about low-achieving boys, who "aren't obtaining the basic skills and knowledge they need to make a decent life for themselves in the mainstream economy today."

In The Trouble with Boys and Girls, released earlier this year, Mead looked at the data. Overall, boys are doing about the same in school, but girls are doing much better.

I wonder how much of the problem for non-achieving boys stems from the absence of fathers in so many families: Boys find it difficult to learn self-control without a responsible male role model. (Girls are hurt too but in other ways.)

I never bought into the idea that girls are "silenced" in adolescence or that they lose confidence. Girls grow up faster than boys and abandon grandiose ambitions at younger ages. Smart girls are competing successfully with smart boys. We need to worry about the average and left-behind boys who aren't meeting new and higher expectations.

Single-sex education can work for some students — especially in middle school when the hormones are raging — but it's not going to be the solution. (It's a lot more likely to be the fad we look back on 13 years from now.) We have to do a better job with boys and girls.

Selective Appeals to Consensus:

Roger Pielke Jr. catches climate scientist Michael Mann of RealClimate being a bit selective in his reliance upon the scientific consensus on climate change. For those who work on this issue, he offers this advice.

Now that the WMO [World Meteorlogical Organization] has issued a consensus statement on the state of climate science, scientists should be careful in how they characterize the overall state of the science. I have complete respect for scientists who have strong views on what the data, models, and theory shows, and fully expect them to make their case to their colleagues and others. However, scientists also should be careful not to represent their own views as in fact representing a consensus of the community when they do not, especially when making arguments for political action. . . .

For scientists wanting to use the notion of consensus as a tool of political advocacy, they risk being perceived as inconsistent when their actions change when they are the ones on the outside looking in.

When Michael Met David:

The Chronicle of Higher Education sat Michael Berube and David Horowitz down for lunch. This is what transpired. (Spoiler: Neither was hospitalized or arrested.)

Berube has additional comments here. Henry Farrell sums it up here.


Wednesday, December 6, 2006

Scalia and Breyer Debate: Justices Scalia and Breyer recently sat down with Jan Crawford Greenburg to discuss constitutional interpretation and the role of the Supreme Court. You can watch a video of the 90-minute event here. I've watched just a few minutes of it so far, and what I have seen is excellent. Both Justices have made these points before, but I suspect a lot of people will find this discussion a fantastic introduction to debates on constitutional interpretation. Check it out.
The Shrinking Supreme Court Docket: Linda Greenhouse takes a look here.

  UPDATE: My favorite line from the story: "In private conversations, the justices themselves insist that nothing so profound is going on, but rather seem mystified at what they perceive as a paucity of cases that meet the court’s standard criteria." I think this is right; I'm not aware of any juicy cases with clear splits and no vehicle problems that the Court inexplicably turned away. But even more interesting is the fact that Greenhouse would not only think to ask Justices their views of this problem, but would actually get answers from them for the paper. Now that's access.
Very Cool Article: The new issue of the Yale Law Journal is out, and this article caught my eye: Mary Sarah Bilder, The Corporate Origins of Judicial Review. From the introduction:
This Article traces a new historical account of the origins of judicial review. It argues that judicial review arose from a longstanding English corporate practice under which a corporation's ordinances were reviewed for repugnancy to the laws of England. This English corporation law subsequently became a transatlantic constitution binding American colonial law by a similar standard of not being repugnant to the laws of England. After the Revolution, this practice of bounded legislation slid inexorably into a constitutional practice, as "the Constitution" replaced "the laws of England." With the Constitution understood to embody the supreme authority of the people, the judiciary would void ordinary legislation repugnant to this supreme law. Over a century later, this practice gained a new name: judicial review. The widespread acceptance of this name eventually obscured the degree to which the origins of the practice lay in older practices regarding the delegated nature of corporate and colonial authorities, rather than in a new constitutional theory of judicial power.
Looks fascinating. I feel sorry for the law review editors who had to check the footnotes, though.
Did the ETS Suppress Research for Fear it Would Undermine the University of Michigan's Legal Defense of Race-Conscious Admission?:

Here's a story from the Nov. 10 Chronicle of Higher Education that hasn't gotten nearly as much attention from the MSM as one might expect.

A prominent higher-education researcher says scholars at the Educational Testing Service may have discovered a substitute for race-conscious college-admissions policies back in 1999, but their research project was suppressed -- and eventually killed off -- before they could put their findings through peer review and make them public.

A spokesman for the testing service says the study was dropped because it was "bad research."

Anthony P. Carnevale, a former vice president for assessment, equity, and careers at ETS, says he and other ETS researchers concluded in the summer of 1999 that it was theoretically possible for selective colleges to maintain or increase their black and Hispanic enrollments without giving extra consideration to applicants based on their ethnicity or race.

The researchers had developed a formula for using students' background data to identify "strivers" -- those who had overcome adversity to an impressive extent -- and had fine-tuned the formula to a point where it showed the promise of producing larger black and Hispanic enrollments at selective colleges than were being obtained through race-conscious admissions, says Mr. Carnevale, now a senior fellow with the Education Sector, a think tank in Washington, D.C.

Mr. Carnevale alleges that College Board officials put pressure on ETS to squelch the entire "striver" line of research, mainly because it added a new layer to the interpretation of SAT scores and they feared it would give federal courts reason to question colleges' need for race-conscious admissions policies.

Because the research was squelched midway, the researchers never got a chance to determine conclusively -- and then demonstrate to ETS and the College Board -- that they had found what they were looking for: a way to achieve racial and ethnic diversity at selective colleges without using affirmative action.

"The work never saw the light of day," Mr. Carnevale says.

In an e-mail message last week, Thomas Ewing, a spokesman for ETS, denied Mr. Carnevale's account of what transpired, saying "there was no pressure from the College Board to discontinue" the striver study. He said the study had been discontinued because "it was widely viewed at ETS as simply bad research," and the president of ETS, Kurt M. Landgraf, and the ETS research staff thought it "attempted to alter an objective measure (the SAT) inappropriately."

But some education researchers who were not involved in the strivers study said last week that they viewed the research as sound, and would like to see it continued.

Thanks to Paul Caron of the TaxProf blog for alerting me to this story.

[Joanne Jacobs (guest-blogging), December 6, 2006 at 4:33pm] Trackbacks
Parenting by police

In South Carolina, a mother had her 12-year old son arrested for unwrapping a gift early. Mom is 27. The boy's great-grandmother is 63. The mother said she's unable to control her child, who's been in trouble before, and wants to the juvenile justice system to take over.

When I was writing on welfare reform for the San Jose Mercury News, I interviewed a mother who'd gotten her son arrested for writing gang graffiti on her notebook. He was 12 too and out of control. She didn't know what to do to get his attention. The arrest got the boy a parole officer, who signed him up for Little League. He traded gang life for baseball and football. Last I heard he was close to a high school diploma and thinking about enlisting in the Marines. The mother, who'd gone on welfare at 17 when her first child was born, has been working happily for many years now.

Translating Geographical and Ethnic Designations:

Every so often, one hears debate about what is "the right name" for some country, city, language, or ethnicity.

Sometimes this happens when the rulers of a country rename it (with or without popular acclaim in that country), as with Burma becoming Myanmar. Sometimes this happens when there's a move to adjust the English name, whether as to the root or just as to the spelling or pronunciation, to be closer to the name in the local language.

Sometimes it happens when people simply object to the supposed "mispronunciation" of a place name that's derived from a foreign language, as a friend of mine did with regard to "Los Angeles" (the claim was that it should be pronounced "Los Anheles," much as "La Jolla" is pronounced "La Hoya" and not "La Dzhol-la"). And sometimes the argument takes a tone of grievance, for instance when the claim is that the English names for Canadian Indian languages are wrong because they improperly depart from the languages' own names. (Prof. Bill Poser [Language Log] has an interesting article on this latter question.)

What puzzles me is that these claims that certain English names are "wrong" seem inconsistent with the reality that geographical and ethnic designations are translated from language to language much as other words are. Deutschland is Germany in English, and Allemagne in French; the German language is also Nemetskiy in Russian and, I'm told, "lingua tedesca" in Italian. China is China in English and Kitay (cognate to the archaic English term Cathay), though to my knowledge neither of these is related to the Chinese term for China — both rather stem from the names of particular dynasties that have ruled China.

And of course even when the roots remain the same, even the spellings of names and most certainly the pronunciations change from language to language. Roma becomes Rome and London becomes Londres. Magyarorszag, Shqiperia, and Ellas become — well, I leave that as exercises for the reader, but I should note that they're in Europe, so it's not just dead white males oppressing the place names of color. People who complain about Los Angeles don't start calling Detroit Detrwah, though that would have been the pronunciation used by those who named the Detroit River, from which the city name flows. This is the way languages operate, and to say that it's "wrong" to call Beijing "Peking," to call Myanmar "Burma," or to call Los Angeles "Los Angeles" reflects a meaning of "wrong" that is at the very least not a linguistic meaning.

What can we say, then, about what geographical and ethnic terms (including the terms for the languages) are "correct" in English and which aren't?

1. As a matter of linguistics, those English names that are broadly in use, and that are generally understood, are correct terms for the thing named, just as the word "cat" is the correct term for a pet feline. At some point, the terms may become archaic enough that they stop being correct, in that either many people stop understanding them or they come across as so archaic that they interfere with communication more than advancing it. Cathay and Abyssinia are two examples.

2. Various people may for various reasons, whether political or esthetic, wish to insist that we change what we call certain things. Their desire to have us change how we speak does not itself impose on us any obligation, whether as a matter of morals or manners. Russians may not rightly insist that the English say Moskva instead of Moscow (though they are of course free to ask, if they so wish).

3. More broadly, there is nothing inherently demeaning or insulting in not using the foreign name for a foreign country, city, language, or ethnicity.

4. Sometimes, some new names refer to somewhat different locations than the original ones; then, it is misleading and, I'd say, incorrect to use the old name to refer to the new entity. The Czech Republic shouldn't be called Czechoslovakia — but because it's only part of the original Czechoslovakia, not because somehow the Czechs are just entitled to insist that we use the term they prefer. (There may also have been a similar Cathay/China distinction in English, though in Russian Kitay refers to all of modern China.)

5. For political reasons — whether grand politics or small politics — some people may choose to go along with some new name. That may make a lot of sense in certain contexts, for instance in diplomacy or business; but it doesn't create an obligation (moral, manners, or just general "correctness") on others to follow suit, at least until the old name becomes sufficiently unfamiliar or archaic (see item 1).

6. A rule that a name change becomes obligatory on English speakers would impose pretty substantial costs on people, as well as being inconsistent with past practice (not just in English but in other languages). First, telling people that they have to change how they speak is generally something of an imposition on the speakers.

Second, people will often continue to use the term they learned when they were young, just out of habit. If the use of the new word is seen as obligatory, such unintentional uses of the old word become seen as insulting (because they violate one's supposed obligation to the subjects of the word). The consequence is that the attempt to diminish supposed offense to the subjects will end up increasing actual offense, since what would otherwise be seen as an alternate name begins to be labeled offensive (even when it's not intentionally used this way).

Third, some proposed name changes create more confusion than they would resolve. "Native American" replaces one ambiguous term ("American Indian") with another, and in a context where the ambiguity may actually be more commonly sensed. Likewise, as Prof. Poser points out, many Canadian Indian tribes refer to themselves as some variety of "Dene," which means "people"; adopting those names would be confusing.

7. In certain situations, a particular term is so often used as a deliberate pejorative that subjects of the term reasonably assume that most uses of the term are pejorative; "nigger," "Nip," "Yid," and the like are classic examples. These terms do become improper, but only because they lead a reasonable listener to assume that some offense is intended. This is very rarely so at the level of standard geographical and ethnic names, as opposed to nicknames; I mention it here for the sake of completeness.

8. In the meantime, which name is right? Both the old and the new, so long as the new and the old are both familiar enough to be understood, and the old isn't so rare as to be archaic. People who use the old name should tolerate people who use the name without making a fuss about it; likewise, people who use the new name should tolerate those who use the old.

And when someone faults you for using the "wrong" name, where all they mean is the name that's different from that in the original language or different from what the country uses as its own name, well, you'll always have Paris — and Londres, Moscow, China, and Greece.

[Joanne Jacobs (guest-blogging), December 6, 2006 at 1:04pm] Trackbacks
Math divisions

Are graphing calculators introduced too early? Most of the would-be math teachers in ed class thought so, reports "John Dewey." Then a contrarian classmate spoke up.

. . . he really couldn’t see what cognitive value of teaching students the procedure for multiplying 36 x 7 when calculators were available. I was unable to keep my mouth shut. “Don’t you think that students need an understanding of basic procedures and that place value is an important concept?” “Why?” he remarked and went on to the uselessness of learning long division at which I drew the line and said “How can you say that? Don’t you think the distributive property is worth talking about?”

“Who cares?” he pointed out.

"Dewey" is planning to retire from his job and start a second career as a math teacher.

In Portland, the student representative to the school board objects to the new constructivist math curriculum based on CPM textbooks. The curriculum director responded:

"In the past you just had a calculator, a book," (Marcia) Arganbright said. "This has strings and blocks and hooks and rubber bands, it's more like a lab."

Ah, the good old days when students just had a calculator and a book.

Meanwhile, educators in Maryland and Washington, D.C. are trying to focus the math curriculum on the main concepts students should learn rather than introducing dozens of math topics without teaching any of them to mastery.

In the fourth grade, for example, Focal Points trims the list to three essential skills: multiplication and division; decimals; and two-dimensional shapes.

Virginia lists 41 "learning expectations" for fourth-grade math students in its statewide Standards of Learning. Maryland lists 67 in its Voluntary State Curriculum. The District has 45 standards.

Math educators are looking closely at Singapore, Japan and other countries where students can multiply 36 x 7 without a calculator. Or a 738-page textbook.

Pro-Life Speech Excluded from General Funding Program at Carleton University (Ontario):

The proposal I discussed here was enacted last night, by a vote of 26 to 6:

The motion affirms a woman’s right to choose her options in the case of pregnancy, and would prohibit any group or person seeking to “limit or remove a woman’s right to choose” from using CUSA [Carleton University Students Association] resources and space or from receiving recognition and funding.

The motion, as it was originally tabled at a Nov. 21 council meeting, aimed at restricting groups with an “anti-choice” mandate on the basis of discrimination against women.

CUSA defined anti-choice as actively campaigning for the re-criminalization of abortion.

The motion was amended during a meeting of the CUSA constitutional policy board early Dec. 4, but was amended again during the Dec. 5 council meeting to remove the words “anti-choice.” ...

During the meeting, the CUSA executives were repeatedly questioned about their right to make a decision of this nature. They responded by saying they are a political organization, and as such, are allowed to take a stand on political issues....

Surely the CUSA is allowed to take a stand on political issues. The question is whether they are allowed to deny student groups that take other stands equal access to space, resources, and funding. CUSA isn't just a student group like some hypothetical Carleton Conservatives or the Carleton Pro-Choice Organization. All students are automatically enrolled in CUSA. It spends fees collected from students (though apparently there is an opt-out option), and administering access to university property that is supposed to be available to all students. Its Clubs & Societies Web page tells us a little about how it operates:

Clubs are a great way to get involved with your Carleton University Student Association. There are over 150 clubs and societies on campus with something for everyone. Check out the clubs listing to see what club and/or society is for you. Can’t find one? Then create your own, it only takes you and 9 others to create a club.

The details are easy, simply visit the clubs office on the 3rd floor of University centre or download the Clubs Application package online. Once certified, you will have the opportunity to apply for a maximum of 1000 dollars in funding.

This year the Clubs and Societies budget has been increased by 10 000 dollars to allow more clubs the opportunity to further enrich our community. So whether your club would like to raise funds for AIDS research, unite those who enjoy playing chess, or organize cultural events there is an opportunity for everyone.

Better add a clause at the end: "there is an opportunity for everyone, unless you want to campaign to change the law in a way that we dislike."

Related Posts (on one page):

  1. Pro-Life Speech Excluded from General Funding Program at Carleton University (Ontario):
  2. Canadian University Womyn's Centre Trying To Exclude Pro-Life Groups
Ninth Circuit Decision Allows School to Exclude Non-Native Hawaiians:

In a closely divided 8-7 en banc opinion (eight Democrat appointees in the majority, six Republican and one Democrat appointees in dissent), the Ninth Circuit reversed an earlier panel ruling and held that the private Kamehameha Schools in Hawaii can prefer people of Native Hawaiin ancestry for admission, which effectively means that no one without such ancestry can attend the heavily subsidized schools. The opinions are 110 pages long, so I haven't had time to read them closely, but I do have the following observation. In the 1960s, the Supreme Court, in an effort to help the civil rights movement along, came to the rather remarkable conclusion that the 1866 Civil Rights Act's requirement that all citizens shall have the same right to make and enforce contracts as white citizens meant that discrimination in private contracting based on race was illegal. This was remarkable for several reasons. First "white citizens," as such, had no right to be free from private discrimination in 1866 or thereabouts, as any Irishman of the era could testify. Second, the law was clearly intended to ensure that courts would uphold and enforce contracts made by and with blacks. Third, the Court's interpretation of the Act made the private sector employment provisions of the Civil Rights Act of 1964, and the attendant controversy over them, somewhat superflouous. It turned out, said the Court, that blacks were protected from private sector discrimination all along, and indeed had more protections than the '64 Act gave them, because the 1866 Act doesn't require going to the EEOC first to get permission to sue.

The most famous use of this interpretation of the 1866 Act (now Section 1981) was in the 1976 case of Runyon v. McCrary, in which the Supreme Court held that a private school that accepted no public money is banned from discriminating by race. The Court made it clear in another opinion that same day that Secton 1981 bans discrimination against whites as well as against members of minority groups. This was a logical necessity, because, as noted, whites had no common law right to be free from discrimination in contracts, and if "white citizens" had no statutory freedom from discrimination, non-whites could not possibly claim such a right under the Act (not that the Court was exactly sticking to the plain meaning of the text anyway, but there are always some limits to legal gymnastics).

Fast forward to the Ninth Circuit's decision. The Kamehameha Schools receive no public money, and are the beneficiaries of a $6 billion private endowment set up to educate Native Hawaiins. But what about Section 1981? If the school in Runyon couldn't discriminate based on race (or ethnicity), why may Kamehameha? According to the New York Times, school attorney (and Stanford dean) argued that "their discrimination is remedial, meant to address historical wrongs; the beneficiaries are indigenous peoples; and the program has met with Congressional approval."

Those are all plausible public policy arguments in favor of the schools, and they have my libertarian sympathy as well. But the 1866 Act seems to suggest that whatever rights it gives, they must be given equally to whites and others. The Ninth Circuit, on my preliminary reading, tries to get around this by engaging in an amazing feat of legal alchemy (admittedly, in reliance on precedents from other circuits), under which the 1866 Act not only rendered much of the '64 Act superfluous, but that it has exactly the same tolerance for remedial affirmative action programs as Title VII of the '64 Act. Thus, the two acts are not just complimentary, but co-extensive. But again, if you look at the text of the 1866 Act, if everyone has the same right to make and enforce contracts as white people, and white people have no right to be free from discrimination in private school education, doesn't that mean that non-white people also have no right to be free from such discrimination? Which means that the Ninth Circuit is implicitly overruling Runyon by logical necessity, though it claims not to be. I guess all things are possible if you ignore the language of the statute you are supposed to be interpreting.

I should also note that while the Ninth Circuit relies on Supreme Court precedents upholding remedial affirmative action programs, the Court has never even come close to upholding what amounts to a 100% quota for a particular racial/ethnic group, and the Bakke majority explicitly rejected a much smaller quota for minority students at a state medical school under Title VI of the '64 Act. [Update: Commenter Hans Bader points out that the Supreme Court reiterated that Title VI bans quotas in a footnote in the 2003 Gratz case.]

I suspect the Supreme Court will agree to hear this case, unless Congress intervenes in the meantime by passing legislation affirmatively exempting Kamehameha Schools from Secton 1981. The case has the potential to not only rewrite the law of Section 1981, but for the Court to potentially reconsider its approval of remedial affirmative action programs under Title VII.

As I said, my libertarian sympathies lie with the school, and given relevant Hawaiian history, I don't have any particular distaste for the Schools spending money left by a Hawaiian princess for Native Hawaiian education on Native Hawaiians. But I think it's too clever by half for courts to hold that minorities are protected from discrimination by a law that grants them the same rights as "white citizens", if "white citizens" (among others) do not have these rights to begin with. Put another way, it's hard to read the language of the 1866 Act as doing anything other than creating legal parity between whites and others. Any interpretation of the Act that disrupts that parity with regard to any right that is perceived to come within the protections of the Act lapses into incoherence.

Thanks to reader Hans Bader for the pointer. John Rosenberg also comments.

Professor's Lawsuit Against Several of the Major Jewish Organizations of Ontario:

A professor suing a host of Jewish organizations, along wth York University, for allegedly conspiring against him and defaming him by accusing him of anti-Semitism, has put out a press release. It states that he is suing the "Israel Lobby," and asserts that this "Israel Lobby" is composed of several major provinicial Jewish organizations, i.e., "Hillel of Greater Toronto, the United Jewish Appeal Federation of Greater Toronto, and the Canadian Jewish Congress, Ontario," and "their agents." He further alleges in the press release that "These rich and powerful people pretend to be friends of higher learning but are in fact its worst enemies. They think they have bought themselves a university [York]."

The background:

In 2004, Noble distributed flyers around campus, which made claims that directors and members of [York University] foundation had ties with pro-Israeli groups. The pamphlets [entitled, "The Tail that Wags the Dog", and, which, according to an article in 2004 in the Globe and Mail, "names members of the [York University]foundation's board of directors and their affiliation with Jewish groups"] also claimed that the university was biased and favoured Israeli groups. After the distribution of the flyers, a fax was sent by Hillel of Greater Toronto to the university with their concern that the flyers insinuated that "Jews control York University." Noble denied this was in the material he distributed. In response, a press release was shortly issued by the university, in which [university president] Marsden condemned the literature. The press release did not name Noble individually but did quote Dori Borshiov, the former president of Hillel at York, who expressed concern with the material that was handed out stating, "it is unacceptable for any students to be exposed to this type of bigotry."
Also see this story from the Toronto Star.

I haven't seen the original flyers, and I generally think university presidents should refrain from taking sides on speech-related controversies on campus, but I can't imagine how anyone could ever interpret any remarks made by the plaintiff as insinuating that Jews control York University. And it's not like the plaintiff had ever engaged in any other actions that even remotely suggest hostility to the Jewish community.

[Joanne Jacobs (guest-blogging), December 6, 2006 at 8:30am] Trackbacks
Relentless leadership

As superintendent of one of New York City's poorest regions, Kathleen Cashin has raised test scores significantly in three years. She isn't empowering principals to do their own thing, observes the New York Times. She's making them do her thing, which includes using the Core Knowledge curriculum and teaching students to read non-fiction and write essays.

“We are relentless,” Dr. Cashin said in a recent interview. “The secret is clear expectations. Everything is spelled out. Nothing is assumed.” She provides her principals, for instance, with a detailed road map of what should be taught in every subject, in every grade, including specific skills of the week in reading and focus on a genre of literature every month.

. . . “You need to expand the knowledge base, expand the vocabulary, expand the experience base, and that only comes with good instruction and a rich curriculum,” she said.

Every school in Region 5 uses a graphic organizer to teach children -- starting in first grade -- to write a five-paragraph essay.

While the city’s reading program focuses on story books, Dr. Cashin layers on lots of nonfiction. And, responding to research showing that impoverished children often lack vocabulary and basic facts, she has adopted a curriculum called Core Knowledge, which teaches basics like the principles of constitutional government, events in world history and well-known literature.

The superintendent is using proven tactics for educating high-need students: Raise and clarify expectations, put money where your goals are, strengthen curriculum, teach knowledge and skills, give students structure. The stress on writing is interesting. In my newspaper days, I interviewed a test specialist who said the most effective way to raise test scores is to develop students' writing skills; it even helps with math because students learn to think logically and sequentially.

The Times frames Dr. Cashin as an insider who's "bucking school reform." The story uses Region 5's success to criticize the idea that bringing in outsiders and empowering principals are what's needed to shake up the system. Surely, she's an insider who's become a mover and shaker of the status quo. How many strong, innovative leaders survive the district bureaucracy?

Recreating "A Christmas Story":

Another reason to visit Cleveland.

Sherwin-Williams, "No. 1 Terrorist Organization"??

In recent weeks I've received postcards attacking the "terrorism" of Sherwin-Williams. With "Sherwin-Williams No. 1 Terrorist Organization" emblazoned across the top, each postcard makes vague allegations that the company "steals copyrighted product," and seeks "to slander, defame, file false testimony," and file legal proceedings "to deny Miles his 1st and 6th Amendments." Sherwin-Williams and its "co-conspirators" are "aborting the Bill of Rights," the postcards declare.

After receiving several of these postcards, I'm still left with the question of what is it, precisely, that Sherwin-Williams is supposed to have done? How precisely is a private company denying someone his constitutional rights? How does this make Sherwin-Williams a "terrorist" organization? And who is "Miles"? Any insight on ths would be appreciated.

UPDATE: I should add that part of what peaked my interest in these postcards is that they are pre-preprinted, sent with printed labels, and each one is identical (save one that included a hand-written note that did not add any clarity). From this I concluded this is not a one-off odd letter (I get penty of those), but something that is being mass mailed to lots of people -- presumably some of whom know more about this than I do.

Burning Forests to Make Biodiesel:

Yesterday's Wall Street Journal reported (link for subscribers) on how the boom in biodiesel and other renewable fuel sources is having unintended environmental consequences around the world. On the island of Borneo, for example, Indonesians are setting forest fires to clear land for palm oil plantations (palm oil can be used to make biodiesel). The result is a "thick haze" that envelopes neighboring communities, contributing to some of the same environmental problems biodiesel is supposed to solve.

The bluish smoke is at times so dense that it leaves the city dark and gloomy even at midday. The haze has sometimes closed Pontianak's airport and prompted local volunteers to distribute face-masks on city streets. From July through mid-October, Indonesian health officials reported 28,762 smog-related cases of respiratory illness across the country.
Other nations are clearing forests to make way for energy-producing crops as well, with consequent impacts on water and wildlife.

The biodiesel boom is part of a larger rush of investment into "alternative" energy sources. Many investors believe that the push for stringent measures to address air quality and climate change will signficiantly expand the market for alternative fuels and investing accordingly. Yet these investments are largely driven by expectations of what new environmental policies will require, rather than which energy sources represent a genuine environmental improvement. All energy sources have potentially negative environmental impacts, and not every "alternative" to carbon-based fuels represents an environmental improvement.


Tuesday, December 5, 2006

An Israeli (Economic) Tiger?:

Story here.

[Joanne Jacobs (guest-blogging), December 5, 2006 at 5:45pm] Trackbacks
Of mice and mold

In response to an American Federation of Teachers' campaign, Build It Up, teacher-bloggers are writing about physical conditions of their classrooms and school buildings.

Ms. Cornelius writes of mice and mold.

They put flat roofs on buildings in areas that get a goodly amount of snow and rain, then wonder why the roof leaks. Idiocy. It may have been cheaper in the beginning, but I guarantee it has cost more in upkeep over the years to repair the leaks. I once had a room that leaked so badly I had to cover my computer with a tarp when I went home at night. It leaked so badly that we had an actual waterfall flowing down the wall. It leaked so badly that one of the ceiling tiles completely disintegrated overnight, and walked in in the morning to find a sodden pile of pulp and rivulets of water extending all the way to the wall. It took 8 years to get it fixed.

A San Jose teacher, Mr. AB, teaches in a well-built school -- except it's impossible to lock classroom doors from the inside. Teachers at his school spent two hours practicing for a "Code Red." On police advice, they tried to build barricades to block their classroom doors.

During the drill, my best efforts at a barricade took many minutes to set up and only slowed the intruder by a matter of moments. We simply don’t have enough time and enough heavy objects to really seal off a door without locks.

Mr. AB suggested "a set of deadbolts on each door, requiring a teacher’s key to lock from the inside and a safe-secured key to unlock from without." Sure, it's paranoid, he writes. But if the Amish can be attacked by a homicidal nut, who's safe?

I've seen children learn in third-rate facilities. In the first years of the charter school I write about in my book, Our School, students learned biology in the multipurpose room, which also was used as the reading room, assembly room and cafeteria. There was no lab equipment of any kind, though the nearby kitchen had a sink. When teachers met with small advisory groups, some had to meet in the halls. Counselors talked to students outside; there was no private place to have a conversation inside. The outside lunch and recreation area was a driveway that had been blocked off.

There were no locks on the doors because most classrooms didn't have doors or walls: Space in an old church and a former fitness center was blocked off with dividers or curtains. Students who had trouble paying attention in the first place had to learn to focus on their own class and ignore the very audible activities in the class on the other side of the curtain.

The charter school was skimping on facilities to spend more on teaching and counseling students. Teachers didn't feel neglected. Students grumbled about setting up and taking down the lunch tables each day, but the shared adversity became a point of pride.

Of course, if school leaders, teachers and students don't believe they're working together to fulfill a mission, then mold, mice, leaks and unlockable doors become a sign that nobody cares.

"Thousands Voted Illegally":

The Cleveland Plain Dealer reports:

Nearly 12,000 people in Cuyahoga County cast votes illegally on Election Day, without signing the election books or, likely, showing identification as required by a new state law.

In 533 of the 570 voting precincts in Cuyahoga County, more voters cast ballots Nov. 7 than signed in, according to board records.

With some polling places, the numbers were off by more than 100. But the differences at 144 of the locations were fewer than 10 each.

The article does not claim widespread fraud, but instead a simple failure to enforce Ohio's voting rules.

What elections officials said happened is that voters arrived and saw lines waiting to vote.

Officials said that people then just got on the end of the lines, not realizing they had to sign in first.

Then, poll workers assigned to give voters computer cards to operate the touch-screen voting machines failed to make sure that the voters had signed in and showed identification.

No Trans-Fats in NYC:

The New York City Board of Health approved a ban on artificial trans-fats in local restaurants today. Other cities, such as Chicago, have considered such policies, but New York is the first city to adopt a complete ban. According to the NYT:

The new requirements will mean that the city’s 20,000 food establishments, from high-end bistros to neighborhood delis, will be barred from using most frying oils containing artificial trans fats by July 1, 2007, and will have to eliminate the artificial trans fats from all of their foods by July 1, 2008. The establishments have to switch to oils, margarines and shortening that meet the limits and bring their menus into compliance.

The new rules, however, will allow restaurants to serve foods that come in the manufacturer’s original packaging, even if they contain traces of trans fats.

The health department’s new limits, which were advocated by Mayor Michael R. Bloomberg, will make New York the first large city in the country to strictly limit the chemically modified ingredients that were once considered a benign alternative to the saturated fats in butter.

The Times story also notes that when city health commissioner Thomas R. Frieden asked restaurants to voluntarily halt the use of trans-fats last year, approximately half did so.

UPDATE: At Concurring Opinions, Frank Pasquale raises the possibility of a "soft paternalism" alternative.

Rough Ride for Law School Accreditor--A Bizarre Aspect of the Story:

According to the Inside Higher Education story on the ABA and the Department of Education co-blogger Todd links below, while the DOE staff recommended that the ABA be subject to stringent oversight of its new "diversity" standard,

Pruitt ultimately saved the ABA’s diversity standard, pointing out that while the council's track record on inconsistency is, well, consistent, there's no record of any complaint in its application of the diversity standard — making the department's preventative measure calling for the ABA to submit to onerous reporting requirements documenting its implementation of the diversity standard "a dangerous precedent" for other accrediting agencies seeking to enhance diversity.

If this representation of what happened is correct, it's absolutely bizarre. First, the new diversity standard only went into effect in August, so I don't see how Pruitt expects there to have been any complaints as of this past Fall. To the extent that Pruitt was referring to the OLD diversity standard, I'm not sure why that is relevant, because the old standard did not contain the provisions that of the new standard that have drawn the ire of critics like myself.

Even putting all that aside, I'm not sure what Pruitt means that "there's no record of any complaint" about how the ABA enforced the old standard. It's well-known in the legal academy that despite the lack of textual support for such enforcement, after Grutter the ABA informally applied the old standard to require massive affirmative action preferences. The ABA's aggressive policy in this regard was unpopular, especially at law schools that found it difficult or impossible to recruit the number of minority students the ABA "expected," at least if they wanted their consciences to be clear in terms of only admitting students who had a reasonable chance to both graduate and pass the bar. As far as a record of complaints about ABA enforcement, I certainly complained about it to a public hearing of the U.S. Civil Rights Commission.

If Pruitt means that there have been no formal complaints to the DOE from law schools about enforcement of the old standard, that may well be true, but what law school dean is going to stick his neck out to oppose application of an ABA diversity standard? Besides the negative publicity for the dean's school that this would cause, it would invite retaliation from the ABA Legal Education people, who are certainly not above such tactics. From personal experience, I can affirm that there are many people who complain about how the ABA applied its earlier, officially much more forgiving, diversity standard; since I wrote about the new standard last February, I have heard about such complaints directly from several law school deans, and a larger number of law professors. Again, assuming the relevant story is accurate, you would think that Pruitt would have actually investigated matters before making such sweeping statements.

One good thing that has come out of the controversy over the new "diversity" standard is that ABA officials have consistently and publicly denied that it requires law schools to violate state laws prohibiting racial prefrences (and indeed the standard was amended to state this), and have also publicly stated that law schools are not required to use preferences to meet the standard. Unfortunately, however, the ABA refuses to say what IS required to meet the standard, and, moreover, the ABA continues to focus solely on inputs (how many minority students are admitted), and, at least for accreditation purposes doesn't care a whit about outputs (what percentage of these minority students actually graduate and ultimately pass the bar).

UPDATE: Indeed, as I've noted before, new ABA rules require law schools to exclude most students whom they believe will not succeed in law school and on the bar; however, the rule is waived for students admitted in pursuit of diversity. In other words, law schools are forbidden to accept white students who are likely to fail, but are required to admit minority students who are likely to fail, if that's what's need to create a "diverse" class.

Related Posts (on one page):

  1. Rough Ride for Law School Accreditor--A Bizarre Aspect of the Story:
  2. "Rough Ride for Law School Accreditor":
"Rough Ride for Law School Accreditor":

Inside Higher Ed reports:

The National Advisory Committee on Institutional Quality and Integrity, which advises the education secretary on accreditation, found the ABA’s Council of the Section of Legal Education and Admissions to the Bar to be systematically guilty of a pattern of ambiguity and inconsistency, as recommended in a report prepared by the education department’s staff. But, in a startling series of events, the advisory committee overruled the staff finding that the ABA council had overstepped its authority in introducing a newly revised and broadly written “equal opportunity and diversity standard” ( Standard 212, formerly known as 211) requiring law schools to “demonstrate by concrete action” their commitment to a diverse student body.


While the council was spared on the diversity issue, it was sacked on a lot of other fronts. Rather than having its authority extended for the typical five-year period, its recognition was extended for just 18 months. The council was criticized for, among other things, inconsistent and unclear measures regarding acceptable bar passage rates and insufficient training for accrediting teams.

Related Posts (on one page):

  1. Rough Ride for Law School Accreditor--A Bizarre Aspect of the Story:
  2. "Rough Ride for Law School Accreditor":
Moo with me:

So we're going to have a base on the South Pole of the Moon. That can only mean one thing. Moon penguins. (For more, see here, and especially here and here.)

Wisdom from the school race cases:

Dahlia Lithwick writes:

Outside the court this morning, hundreds of protesters swarm the plaza chanting what sounds to me like: "Roberts, Alito, Scalia, and Thomas … bladah yappa lappa doop."


Lopez v. Gonzales:

Today the Supreme Court held, 8-1, in Lopez v. Gonzales that conduct made a felony under state law is not a “felony punishable under the Controlled Substances Act” that could trigger deportation under the Immigration and Naturalization Act if it is not punishable as a felony under the CSA. Justice Souter wrote the majority opinion. Justice Thomas dissented "[b]ecause a plain reading of the statute would avoid the ambiguities and anomalies created by today’s majority opinion." SCOTUSBlog has more here.

[Joanne Jacobs (guest-blogging), December 5, 2006 at 9:15am] Trackbacks
Uniformly stupid

To protest mandatory school uniforms, a fifth grader and a seventh grader in New Jersey began wearing "Hitler Youth" buttons with a slash over the photo and the words "no school uniforms." Their parents have sued the district to block their threatened suspension. One of the mothers, Laura DePinto, issued a statement:

"I've gotten overwhelming support from MANY people that tell me that they absolutely agree with what the image depicted, an ominously homogenous group of blindly cooperative children," the statement said.

"That image showed no swastikas, no weapons, and Hitler himself wasn't depicted," she wrote. "The picture makes a profound statement about what can happen when we turn children into 'uniform' followers."

My view: (1) They have a free-speech right to protest the uniform policy. (2) The argument that a school uniform turns students into mindless drones is stupid.

Update: Under Tinker, students have free-speech rights on campus unless they're disrupting the school. A princpal would have no trouble arguing that swastika badges are disruptive. A button with a slash sign over Hitler Youth and a "no school uniforms" message doesn't seem inflammatory to me.

School uniforms can help create a sense of community in a school. My book, Our School, profiles a charter school that requires high school students to wear uniforms: khaki pants or skirts and black, gray or white polo shirts. Students hate it, but it makes it possible to eliminate all gang clothing and colors (red and blue).

"Be Wary of the Pied Piper of Pragmatic Adjudication": Over at Balkinization, Brian Tamanaha offers this very good response to Richard Posner's claim that many court of appeals cases are and should be decided based on the judges' normative views. It seems to me that this is Tamanaha's key point:
Posner has in effect given us two tests to be used together: if the law is clear, the judge must follow it, but if the law is unclear (which he says happens a lot), then the judge can rule in favor of what the judge deems reasonable, unless that particular outcome is clearly prohibited by the law. Sandwiched between these two tests is the large body of cases in which the law is less than clear, but one result is more legally compelling or defensible than any alternative interpretation. Unlike pragmatic adjudicators, who in these cases will decide for the reasonable result (as determined by their own lights) unless it is clearly ruled out, judges committed to following the law will feel duty-bound to render the most legally compelling decision.

Monday, December 4, 2006

Building a Cheese Factory on the Moon:

Orin's post about NASA's plan to build a permanent base on the Moon reminds me of this quote by former Texas Senator Phil Gramm:

If the Senate voted this afternoon on building a cheese factory on the Moon, I would no doubt vote against it. But if the Senate decided, in its collective lack of wisdom, to build a cheese factory on the Moon, I would want engineers from Texas to design that cheese factory. I would want a construction company from Texas, since we have the best construction companies in the world, to build that cheese factory. If we were going to use milk from earthly cows, I would want milk from Texas cows to be used to make the cheese in the factory on the Moon, and I would want the celestial headquarters for it in Texas. But am I for a cheese factory on the Moon? No.

Perhaps NASA is about to make Gramm's hypothetical cheese factory on the Moon a reality. More likely, we will get lots of juicy contracts for Texas (or perhaps - thanks to Bob "King of Pork" Byrd's return to the Appropriations Committee Chairmanship - West Virginia), engineers, construction companies and cows, but no actual moonbase that can do anything useful.

Related Posts (on one page):

  1. Moo with me:
  2. Building a Cheese Factory on the Moon:
  3. NASA Shoots For the Moon:
Making Atlas Shrug in Venezuela:

State Department folk are undoubtedly scratching their heads over what to do about the looney anti-American leader of Venezuela, Hugo Chavez. Here's a suggestion, only partly tongue-in-cheek: Chavez claims that his brand of populist socialism is superior to Yankee capitalism. Well, let the people vote with their feet. Venezuela has a population of approximately 25 million. How about letting any Venezuelan who can pass a basic English test and get ahold of, say, twenty thousand dollars, emigrate to the U.S.? As more and more productive Venezuelans move to the U.S., and Chavez ceases to benefit from the spike in oil prices (which can only work in the long term so long as oil prices climb), Venezuela will inevitably sink into economic straits of Chavez's model, Cuba, and become about as much of a strategic threat to the U.S. as Cuba currently is. And the U.S. will gain a few million productive and grateful citizens, happy to escape Venezuela before it becomes another Cuba. And wouldn't it be fun to watch Venezuelans line up for English classes for the chance to emigrate to The Great Imperalist Enemy?

NASA Shoots For the Moon: Maybe I'm just too skeptical about our federal government, but I have a feeling that NASA's announcement today of a plan to set up a permanent base on the moon won't go much beyond NASA's announcement today of a plan to set up a permanent base on the moon.

Related Posts (on one page):

  1. Moo with me:
  2. Building a Cheese Factory on the Moon:
  3. NASA Shoots For the Moon:
Brink Lindsey's Liberal-Libertarian "Fusionism":

The full text of Brink Lindsey's proposal for a libertarian-liberal alliance is now available free of charge here.

Interestingly, he describes the proposal as one for a liberal-libertarian "fusionism," similar to the liberal-conservative "fusionism" that began in the 1960s and is now undergoing a crisis. I agree with Lindsey that a liberal-libertarian fusion would be desirable. But, as he points out, figuring out how it would work is a "daunting task." To my mind, the potential room for agreement involves a combination of liberals opposing the many big government programs that redistribute to the rich and middle class from the poor,libertarians accepting redistribution that benefits the genuinely destitute, and both sides placing greater emphasis on those personal liberties issues on which they already agree. Lindsey's proposed program seems similar.

However, for reasons outlined in my post on "Libertarians and Liberals" the political and even intellectual obstacles to this vision are very great. If it happens at all, it will only be over a long period of time. Meanwhile, libertarians should not abandon efforts to work with small government conservatives to put the GOP back on a small government track.

Libertarians and Conservatives:

My discussion of the prospects for a libertarian-liberal alliance is probably incomplete without some attention to the troubled relationship between libertarians and conservatives.

As I argued in the previous post, at the level of fundamental principle, libertarians have more in common with liberals than with conservatives. However, there are important countervailing factors that may make a revival of the libertarian-conservative alliance more feasible than any likely libertarian-liberal coalition. Some of these factors operate at the level of intellectual elites, and others at the level of practical politics.

Intellectual Commonalities.

At the level of intellectual elites, there is much less disagreement between libertarians and conservatives than at the mass level. Most libertarian intellectuals find, say, Jerry Falwell and Pat Robertson, to be repulsive. I know I do. However, most serious conservative intellectuals are far more supportive of limited government and probably less prone to support government interventions in social affairs than he is. My sense is that most conservative intellectuals continue to favor major reductions in the size and scope of government despite President Bush's movement in the opposite direction. Many of them even favor reductions in the government's role on some "social" issues. For example, there are probably more conservative intellectuals than liberal ones willing to endorse the abolition of the War on Drugs - by far the most important civil liberties issue from the standpoint of most libertarians. The National Review,probably the most prominent conservative opinion journal, has supported drug legalization for decades, for example. Obviously, this is cold comfort if conservative politicians don't heed NR's advice on this point. However, it does help explain why many libertarian intellectuals continue to view conservatives as allies. The conservatives we deal with on a day-to-day basis are far more likely to be National Review types than the type who watch the 700 Club.

Practical Politics

At the level of practical politics, there is no question that the GOP, under George W. Bush, has turned in a pro-big government direction, and that is one reason why many libertarians, myself included, wanted them to suffer a defeat in the recent election. However, most of George W. Bush's big government policies - such as the Medicare prescription drug plan, the No Child Left Behind Act, and the steel tariffs, were enacted purely for the sake of political expediency. Much of the Republican Party base hated them, and it is no accident that many Republicans are calling for a return to small government principles in the aftermath of their defeat in November. Unlike in the case of the Democrats, there is a real chance that the GOP will return to (relatively) small government principles in the near future, just as it did in the aftermath of the political defeat of its last two big government presidents - Richard Nixon and George Bush I. The political failure of Bush II may well lead Republicans to reconsider whether "big government" conservatism really is the way to go.

Civil Liberties and Social Issues

Most of those who argue against a libertarian-conservative coalition focus heavily on the issue of civil libeties. It is indeed the case that even most pro-limited government conservatives differ with libertarians on social issues such as censorship of pornography and gay rights. These differences are not going to go away. As a matter of philosophical principle, these differences are very grave. However, they matter less as a matter of practical politics because the ability of government to seriously constrain these kinds of freedoms in the modern world is quite limited. All the efforts of social conservatives over the last forty years have had little impact on people's ability to consume pornography, nor have they significantly slowed what I think is the natural and inevitable evolution towards greater social and legal acceptance for homosexuals.

The one major area where conservative policies do pose a truly grave threat to civil liberties is the War on Drugs. However, the Democrats don't show any more enthusiasm for curtailing drug prohibition than Republicans do. And, as noted above, there are probably at least as many anti-drug war conservative intellectuals as liberal ones.

While I oppose the Bush Administration's claims of virtually unlimited executive war powers, the administration's abuses in the War on Terror are not enough of a threat to civil liberties to justify a libertarian-liberal alliance on these grounds. As I discussed in more detail here, only a relatively small number of genuinely innocent people have been victimized by these policies (see also these two posts by Megan McCardle). Certainly far fewer than are harmed by the War on Drugs or by numerous policies favored by the Democrats. Moreover, Bush's more extreme claims for unlimited executive power have been repudiated by the Supreme Court and by Congress. That does not mean that libertarians should simply support pro-Bush conservatives on these issues or that there is no reason for concern. Far from it. It does suggest, however, that the issue is not enough to justify a libertarian-liberal alliance.

Whether the libertarian-conservative coalition can be saved remains to be seen. Much depends on the future course of the GOP. For the moment, however, it remains a more viable option than a libertarian-liberal alliance of the sort proposed by Brink Lindsey, Daily Kos, and others.

Libertarians and Liberals:

Brink Lindsey's proposal for a libertarian-liberal alliance (described here and here), has produced a lot of debate, including Todd Zywicki's post (linked below).

In my view, it is important to differentiate the theory of intellectual coherence between liberalism and libertarianism from the much more dubious possibility of a political alliance. In my view, liberal and libertarian ideologies have much in common. But that commonality is unlikely to lead to a political alliance anytime soon.

At the level of ideology and political theory, libertarians and liberals have much in common, probably more than libertarians and most conservatives do. Both groups value individual liberty; both believe that the government should generally stay out of religious and "values" issues, which should be left to individual choice (though there are some countervailing strands of thought on this among some "communitarian" and feminist liberals); both place no special value on tradition; and both want to maximize individual happiness and utility. Some conservatives also share these values, but there are a great many who do not because their version of conservatism stems from either an adherence to traditionalism for its own sake or fundamentalist religious principles.

Setting aside foreign policy (about which libertarians have deep internal differences), this ideological commonality can translate into some important areas of agreement on public policy. In particular - as a matter of ideological theory - liberals and libertarians should be able to agree to restrict government efforts to undermine "personal" liberties and also to oppose the many government interventions into economic affairs that redistribute to the wealthy and/or middle class at the expense of relatively poorer segments of the population. Such policies are extremely common, especially given that the poor have relatively little influence over the political process.

In practice, however, real-world liberal politicians are unlikely to move in this direction in the near future because of the Democratic Party's heavy dependence on interest groups - such as public employees unions - that have a vested interest in extending the size and scope of government regardless of whether the poor are harmed. For this reason, I doubted that the "libertarian Democrat" movement promoted by Daily Kos and others would ever amount to much. In principle, ideological liberals should support such libertarian economic policies as reducing farm subsidies, free trade, school vouchers, eliminating pork, and eliminating Social Security and Medicare payments that go to relatively wealthy seniors. All of them would increase personal freedom, and curtail government redistribution from the relatively poor to the relatively rich. In practice, the Democratic Party is unlikely to embrace any of these because of its dependence on powerful interest groups that find them inimical.

In addition to these interest-based concerns, many liberal intellectuals and policy analysts are simply unwilling to place any major emphasis on those non-civil liberties issues where they agree with libertarians. For example, most liberal intellectuals will, if pressed, agree that farm subsidies, porkbarrel spending, and the like are bad. But few consider their elimination a major priority. For reasons that I don't fully understand, most of them are much more enthusiastic about those parts of the liberal agenda that require expanding government than those that imply contraction. This has slowly changed over the last thirty years, as more liberal thinkers have begun to appreciate some of the virtues of markets and civil society. But the pace of change has been quite slow, and there has even been some backsliding in recent years.

There is, perhaps, a deeper problem here: most liberal intellectuals are reluctant to attribute flawed government economic policies to inherent shortcomings of the political process as opposed to the machinations of specific "evil" or "greedy" politicians and interest groups. There is a strong tendency to believe that most such flaws could be cured if only the "bad guys" such as George Bush were removed from office. I hope that, over time, liberal thinkers will bring to government economic policy the same kind of skepticism and realism that they apply to government policy on civil liberties; few of them believe that government could be trusted to regulate our sex lives or engage in warrantless searches merely because the Democrats are in office rather than the Republicans. But this too will be a slow and gradual process, if it happens at all.

None of these points precludes alliances of convenience between liberals and libertarians on particular issues. And it is possible that liberal thought will over time move further in the relatively promarket direction outlined above (and also by some "New Democrat" groups). For the foreseeable future, however, there is unlikely to be a broad libertarian-liberal alliance.

Dujail Judgment in English:

Groatian Moment: The Saddam Hussein Trial Blog, hosted by the Cox Center for International Law at Case Western Reserve University School of Law, has posted an English translation of the complete 298-page opinion of the Iraqi High Tribunal in the Dujail trial of Saddam Hussein. This is the first place a complete translation of the opinion was made available to the public. In coming days, the blog will post commentary on the opinion as well.

Government Responses to Religious Organizations' Views on Secular Issues:

Earlier this year, the San Francisco board of supervisors condemned Catholic approaches to adoption by homosexual households, in this nonbinding resolution:

Resolution urging Cardinal William Levada, in his capacity has head of the Congregation for the Doctrine of the Faith at the Vatican, to withdraw his discriminatory and defamatory directive that Catholic Charities of the Archdiocese of San Francisco stop placing children in need of adoption with homosexual households.

WHEREAS, It is a insult to all San Franciscans when a foreign country, like the Vatican, meddles with and attempts to negatively influence this great City's existing and established customs and traditions such as the right of same-sex couples to adopt and care for children in need; and

WHEREAS, The statements of Cardinal Levada and the Vatican that "Catholic agencies should not place children for adoption in homosexual households," and "Allowing children to be adopted by persons living in such unions would actually mean doing violence to these children" are absolutely unacceptable to the citizenry of San Francisco; and,

WHEREAS, Such hateful and discriminatory rhetoric is both insulting and callous, and shows a level of insensitivity and ignorance which has seldom been encountered by this Board of Supervisors; and

WHEREAS, Same sex couples are just as qualified to be parents as are heterosexual couples; and

WHEREAS, Cardinal Levada is a decidedly unqualified representative of his former home city, and of the people of San Francisco and the values they hold dear; and

WHEREAS, The Board of Supervisors urges Archbishop Niederauer and the Catholic Charities of the Archdiocese of San Francisco to defy all discriminatory directives of Cardinal Levada; now, therefore, be it

RESOLVED, That the Board of Supervisors urges Cardinal William Levada, in his capacity as head of the Congregation for the Doctrine of the Faith at the Vatican (formerly known as Holy Office of the Inquisition), to withdraw his discriminatory and defamatory directive that Catholic Charities of the Archdiocese of San Francisco stop placing children in need of adoption with homosexual households.

I opined that the resolution was constitutional, though troubling on certain nonconstitutional grounds. But the Catholic League for Religious & Civil Rights went further, and sued, claiming that the resolution violated the Establishment Clause. Last week, federal district court Judge Marilyn Hall Patel rejected that lawsuit (2006 WL 3462879); here's a particularly telling excerpt:

Accepting plaintiffs' position would mean that any religiously-initiated debate even on a political issue could not be joined by a publicly-elected body's response without resulting in excessive entanglement. The [Considerations Regarding Proposals To Give Legal Recognition To Unions Between Homosexual Persons] document [issued by the Catholic Church's Congregation for the Doctrine of the Faith] not only states the Vatican's position with regard to homosexual unions, but also instructs Catholic politicians as to their duties as Catholics. Article IV, section 10 of the document states that

If it is true that all Catholics are obliged to oppose the legal recognition of homosexual unions, Catholic politicians are obliged to do so in a particular way, in keeping with their responsibility as politicians. Faced with legislative proposals in favour of homosexual unions, Catholic politicians are to take account of the following ethical indications.

When legislation in favour of the recognition of homosexual unions is proposed for the first time in a legislative assembly, the Catholic law-maker has a moral duty to express his opposition clearly and publicly and to vote against it. To vote in favour of a law so harmful to the common good is gravely immoral. When legislation in favour of the recognition of homosexual unions is already in force, the Catholic politician must oppose it in ways that are possible for him and make his opposition known; it is his duty to witness to the truth.

Section 10 goes on to state that it is the duty of the Catholic politician to seek the total abrogation, or at least the partial repeal, of legislation in favor of homosexual unions.

The Congregation for the Doctrine of the Faith provoked this debate, indeed may have invited entanglement, by its Considerations statement. This court does not find that our case law requires political bodies to remain silent in the face of this provocation. Elected officials are certainly free to express their electorates' views. Ordinarily this is done in the form of a resolution or similar statement adopted by the political body.

In view of Article IV, section 10, of the Considerations statement, Resolution 168-06 is a measured response. It does not constitute excessive entanglement under existing case law. There is no regulatory enforcement, no law adopted nor other action taken by virtue of the Resolution. It is merely the exercise of free speech rights by duly elected office holders. In sum, Resolution 168-06 does not create an impermissible entanglement between government and religion. Because plaintiffs have also failed to establish that Resolution 168-06 lacks a primarily secular purpose or a primarily secular effect, plaintiffs have failed to plead a cause of action under the Establishment Clause.

I'm not sure the court was right to rely so clearly on the Congregation's Considerations statement; I think the Board of Supervisors would have been equally free to express its views even had the statement never been issued. Nonetheless, the court was correct to point out that debate between religious entities and others, including government actors, on issues that have a secular dimension (i.e., aren't purely theological, or focused on scriptural interpretation) should be free to both sides. The Church is free to express its views on San Francisco's stands; and the Establishment Clause does not bar San Francisco from expressing its views on the Church's stands.

Albion Tourgee and the Second Amendment:

A post by Eugene notes the publication of a new biography of the great 19th century civil rights lawyer Albion Tourgee. Undoubtedly, some VC readers are waiting for the secondary consipirators to explain what Tourgee thought of gays, guns, and Israel. So I will do my part, on the second topic.

Tourgee's book about the Ku Klux Klan explained that during the 1870s, in Southern areas where the black militias lost and the Klan or other white groups took control, "[A]lmost universally the first thing done was to disarm the negroes and leave them defenseless." Albion Winegar Tourgee, The Invisible Empire (Baton Rouge: Louisiana State University Press, 1989)(1st ed. 1880), pp. 54-55. Of course the Klan's objective in disarming the blacks was to leave them unable to defend their rights. Ku Klux Klan Conspiracy vol. 5 (Washington: Government Printing Office, 1872), p. 1672 (reprint of Testimony Taken by the Joint Select Committee into the Condition of Affairs in the Late Insurrectionary States (South Carolina, vol. 3), 42d Congress, 2d Session), cited in Kermit L. Hall, Political Power and Constitutional Legitimacy: The South Carolina Ku Klux Klan Trials, 1871-72, 33 Emory Law Journal 921, 945 (1984).

Related Posts (on one page):

  1. Albion Tourgee and the Second Amendment:
  2. Albion Tourgee:
Promises the Justices Can't Keep?: I have a post up over at the Chicago Faculty Blog that begins:
Once in a while, Supreme Court Justices write dissenting opinions in which they announce that they not only disagree with the majority's ruling, but that they disagree so strongly that they will never recognize the decision as binding precedent. I wonder, how often do the Justices stick with these promises?
You can read the rest of the post here.

Sebastian Mallaby's column in today's Washington Post directed me to this article by Cato's Brink Lindsey in the New Republic posing a question that has been posed around here occasionally, whether libertarians should reconsider their traditional affiliation with the conservative movement and move toward the Democratic Party. I know that many libertarians do not consider themselves to be part of the "conservative movement," but I think it is generally true as a descriptive matter.

Both Mallaby and Lindsey focus on the level of specific policies, but I think there is a more fundamental question here about philosophies.

I often have pondered whether in the post-Cold War era a more natural alignment of American political parties are along the general lines of libertarian v. populist, rather than the traditional conservative v. liberal distinctions.

Many have remarked on the tension in the coalition of religious traditionalists and libertarians on social views. But I've never really understood why religious voters would be partial to free market economic policies. There seems to be an obvious distrust of the amorality of the market there, especially as it often produces what religious voters obviously consider to be immoral entertainment and other products. Nor have I ever seen among religious folks a particular appreciation of the invisible hand process of the market, as their worldview seems much more comfortable with a constructivist rationalism than spontaneous order systems. To the extent that there is a coherent economic philosophy here, it seems to me that it is more naturally communitarian than free market. This is consistent with the more specific policy observations that religious voters seem perfectly content with economic policies like farm subsidies, steel tariffs, immigration limits, and distrust of the WTO and other international trade organizations. Note also that during this past election, support for ballot initiatives that increased the minimum wage drew overwhelming support in the red states on which they were proposed. That doesn't seem very consistent with a free-market worldview.

On the flip side, it has never been clear to me why wealthy urban and entrepreneurial people would support heavier taxation and regulation as the baggage for the social policies that they like from liberal movement.

So why have the current "conservative" and "liberal" coalitions proven so sticky? My hunch is that it is captured in the distinction in Thomas Sowell's Conflict of Visions. I suspect that what distinguishes the two groups today are unspoken and unrecognized implicit assumptions about human nature and the way they manifest themselves. So it is not policies, nor is it governing philosophies, so much as it is the differences between the "constrained" and "unconstrained" visions of man, as described by Sowell. If Sowell is correct, and I think a strong case can be made that he is, then the "conservative" v. "liberal" distinction may be sustainable.

I know that many libertarians dislike Sowell's classification because libertarians do not seem to fit well within it. I have heard this criticism, but I think it misses the point of Sowell's analysis. My impression just from hanging around libertarians for the past 20 years is that at root, most libertarians actually bring either a constrained or unconstrained vision to the table. Hayek/Friedman economics libertarians generally have a constrained vision, Rand/Nozick natural rights libertarians have more of an unconstrained vision. Some, like Rothbard, seemingly resist categorization, but having read a lot of his work, it seems to me that he is more likely to fudge his economics to fit his philosophical priors than vice-versa, so I would actually place him in the unconstrained category.

Regular readers of this blog will note these sorts of tensions among the various conspirators here. I suspect that if pushed most of us would generally identify ourselves with the "conservative movement" generally speaking and have been known to frequent Federalist Society gatherings with some regularity, although it may at times be difficult to identify what exactly is the common glue that holds together even our little group.

Which seems to leave us with the ultimate question--on what basis do people, and libertarians specifically, choose their political affiliations? At the level of policy, governing philosophy, or human nature? My sense is that in order to answer the Mallaby/Lindsey question of whether libertarians eventually will migrate out of the conservative movement, or whether the parties will migrate toward different policies and philosophies, depends on the answer to that more basic question.

The Methane Mystery:

Over the past few decades, atmospheric methane levels have stopped increasing and leveled off. This is significant because methane is a particularly potent greenhouse gas, significantly more so than carbon dioxide. The question is what accounts for this trend, and whether it will continue. An article in the November/December issue of American Scientist discusses the mysterious trend and various potential implications.

This happy development wasn't entirely unanticipated, given that the rate of increase has been slowing for at least a quarter-century. Yet the United Nations Intergovernmental Panel on Climate Change has predicated many of its conclusions on scenarios in which methane concentrations would continue growing for decades to come. Thus the recent stabilization of methane levels is something that some scientists are trying very hard to explain.

If current trends continue, then the emission projections embodied in the IPCC's climate projections are significantly overstating the contribution of atmospheric methane to future warming. (Other analysts have suggested the IPCC has grossly overestimated future contributions from CO2, by overestimating likely future CO2 emission trends as well.) All this makes answering the methane industry of more than mere academic import.

Albion Tourgee:

InstaPundit notes a new book about Albion Tourgee, the lawyer for the anti-segregation side in Plessy v. Ferguson (the 1896 Supreme Court "separate but equal" case). Tourgee was also the author of the book that bears one of my favorite titles, A Fool's Errand, by One of the Fools.

Are Wild Fish "Organic"?

Today's New York Times has an interesting editorial on the budding controversy over how to apply "organic" labels to fish, in particular wild caught salmon. Farm-raised salmon can be labeled as "organic" if produced in accord with USDA guidelines, but what about fish that come from the sea?

The Department of Agriculture routinely distinguishes between organic carrots and the regular kind when it decides whether to grant an “organic” label. But it has gotten into trouble recently over how to decide whether a fish — especially a fish like salmon — is organic or not. The fishing industry is eager to call wild salmon “organic,” as a way of denoting quality to consumers.

There is something perverse about all this. The USDA "organic" label is seen as an indicator of quality — so much so, apparently, that some companies would rather call their salmon "organic" than "wild caught."

A wild salmon is a glorious thing, and every bit as delectable as its cousins raised in fish farms that are, or are not, organic. But to call a wild salmon organic is to demean it, since it comes from a place where the word has no meaning.

UPDATE: Jacob Sullum comments on Hit & Run.

"The Board's Goal Is That You Do Not Use the Term 'Nurse'

in Your Advertisements": That would make a lot of sense if the advertiser were, say, a health care establishment that didn't hire trained nurses, but only people who dressed as nurses. It doesn't make much sense if the advertiser is the Heart Attack Grill, a restaurant in which the waitresses wear skimpy nurse outfits, and are labeled "nurses" in a way that is highly unlikely to mislead the reasonable consumer. Yet the board's demand is right there in a letter from the Arizona State Board of Nursing to the Grill:

In Arizona State A.R.S. § 32-1636, only a person who holds a valid and current license to practice professional nursing in this State ... pursuant to Sections 32-1668 may use the title "Nurse" .... It would be appreciated if we could work together to resolve these complaints [referring to the "5-6 complaints" the Board had received]. The Board's goal is that you do not use the term "Nurse' in your advertisements or in the business establishment unless the persons meet the statutory requirements of A.R.S. § 32-1636.

The Grill doesn't seem to be budging, either to the legal arguments or to the objections from Sandy Summers of the Center for Nursing Advocacy, who reportedly complains (I borrow the quote from a Baltimore Sun article) that "The endless association of sex and nurses leads people to believe that maybe nurses really are available to provide for the sexual needs of patients and physicians. It degrades the professional image, it demoralizes practicing nurses and drives any self-respecting person away from considering the profession."

Reforming Institutional Review Boards:

Institutional Review Boards (IRBs) are boards comprised mostly of faculty at an educational institution that review and approve/disapprove research involving human subjects to ensure that the research meets minimum ethical guidelines demanded by the institution and/or by federal regulations when the research is federally funded. While the most obvious concerns involve medical experimentation, the jurisdiction of IRBs extends to social science research as well, including not just behavioral studies but also journalism and historical research. I have written a new paper that can be downloaded here arguing that IRBs have gone too far in the regulation of social science research, limiting and chilling potentially important research for dubious gains in human protection. From the abstract:

It is time to rethink the role of Institutional Review Boards (IRBs) in approving social science research. While most law professors conduct their research in an almost unregulated environment – poring through cases, statutes, and each other's articles, all without the kind of human interaction subject to IRB regulation – their colleagues elsewhere in the university have been coping for decades with an increasingly intrusive bureaucracy that sometimes undermines basic academic values.

Three things seem very clear. First, there are a lot of IRBs – at least 4,000 – and their numbers are growing. Second, they have recently increased their scrutiny of social science protocals and all indications suggest even more scrutiny is imminent. Third, social scientists are increasingly frustrated, annoyed, and upset by IRB decisions, inconsistencies, delays, and misunderstandings.

There is much less consensus on what, if anything, should be done about these developments. Some experts favor even more IRB oversight, expanded IRB jurisdiction, and larger budgets and staffs for IRBs. The cure for the ills of IRBs, on this view, is more IRBs.

In this article, I suggest a different and more liberalized path. In Part I, I describe the regulatory metastasis of IRBs and some problems it is causing for social science research. In Part II, I offer some thoughts on the ways in which these problems might arise from the pro-regulatory incentives to which IRBs are exposed.

Finally, in Part III, I outline some modest liberalizing reforms to counter the effects of these pro-regulatory incentives. The reforms I propose broadly fall into three categories: IRB membership and structure, substantive IRB jurisdiction, and institutional liability. In the first category, IRB membership and structure, I propose that we should require basic First Amendment training for IRB members and include a First Amendment expert as a member of the IRB; that we should require that more than one, perhaps even a majority, of the members of the IRB have the expertise and competence to evaluate the risks and benefits of the particular research being reviewed; and that every research institution using IRBs should establish separate boards for biomedical and social science research.

In the second category, substantive IRB jurisdiction, I propose that oral history and other interview-based research should be exempt from IRB approval; that IRBs should be permitted to prohibit or alter research in the social sciences only where the risks of the research substantially outweigh the anticipated benefits; that rather than have IRBs screen social science research before it is performed, they should review it (and enforce internal discipline on researchers, if necessary) only after ethical breaches cause some harm; and that social science researchers themselves, rather than IRBs, should determine at the threshold whether their research is exempt from prior IRB approval.

In the third category, institutional liability, I propose that evidentiary rules in civil trials should exclude evidence of a university's failure to adopt the [federal guidelines] for non-federally-funded research.

Many details of these proposals will need to be worked out, but I offer them in this Article as a starting point for reform efforts.

The paper will be published in an upcoming IRB symposium issue of the Northwestern Law Review, to which co-Conspirators Jim Lindgren and Todd Zywicki have also contributed. Please take the time to download and read the paper before commenting. I especially welcome comments and suggestions sent to my email address,

Swastika, Ontario:

I didn't know this. Thanks to commenter Anderson for the pointer.

[Joanne Jacobs (guest-blogging), December 4, 2006 at 11:46am] Trackbacks
Desegregation before education

In Louisville and Seattle, students may be denied admission to neighborhood schools on the basis of race in order to integrate schools. The Supreme Court is hearing arguments today on the two cases. AP reports:

The Bush administration is siding with parents against the school districts, arguing the policies are an unconstitutional, albeit well-meaning, "racial balancing" without a compelling justification. "A well-intentioned quota is still a quota," the administration said in a brief submitted on the Kentucky case.

Civil rights advocates say it's impossible to achieve "diversity" without taking race into account in school assignments. And they're probably right. The question is whether integrating school enrollments is so great a benefit that it overrides everything else.

In Louisville, the average bus ride is 45 minutes. Some students get on a bus at 5:35 am for a 90-minute ride. That's got to make it harder to learn.

In Seattle, 10 percent of students "were denied the school of their choice because of their race," AP reports.

"We stand for all the school districts in this country that believe Brown v. Board of Education still applies," said school district lawyer Shannon McMinimee.

"Communities are still segregated, either by the history of racism in America or by current circumstances like the affordability of housing. This is about what a school board can do to remedy the effects of past segregation," McMinimee said.

I thought Brown was about assigning black kids to their all-white neighborhood school instead of sending them across town because of their race. Silly me.

Seattle public schools recently declared valuing individualism and planning for the future are examples of racism. In response to critics, the district's equity and race relations director retracted the statement but went on to declare the failure of melting pot or color-blind mentality.

Sometimes, integration supports education, but not necessarily. My book, Our School, is about a San Jose charter school, Downtown College Prep, that's 90 percent Mexican-American. The school recruits students who earned D's and F's in middle school -- ninth graders average fifth-grade reading and math skills -- and focuses intently on teaching them the basic and advanced skills they'll need to succeed in college. The school works because it's not diverse. Most students share a set of educational challenges, such as a limited English vocabulary. They buy into a single mission: Prepare for college.

In Cross X, the story of a successful debate team at a nearly all-black Kansas City high school, author Joe Miller describes a school that's given up on educating students. Even the star debaters who are quoting Foucault in national debate competitions graduate without being taught college-prep writing or math skills. In a court-ordered desegregation scheme starting in 1985, Kansas City schools received $2 billion over 12 years to create programs that would lure suburban whites into inner-city schools. Some of the money created a massive and hugely inefficient district bureaucracy, Miller writes. The rest paid for lavish physical facilities, thousands of computers and magnet programs designed with no regard for the interests or needs of urban black students. Teachers weren't trained to develop courses for the special programs to which they were assigned. When the court ended the plan in 1997, the schools were more segregated than ever and test scores were just as low. That's what happens when getting the ideal racial mix becomes a higher priority than educating the students you've got.

"If Supreme Court Justices Were Rock Stars,"

from Jack Balkin. Thanks to InstaPundit for the pointer.

[Joanne Jacobs (guest-blogging), December 4, 2006 at 10:31am] Trackbacks
Citizenship test:

The new citizenship exam is supposed to focus less on trivia and more on understanding democratic values. Instead of just naming the three branches of government (executive, legislative, judicial), would-be citizens may have to explain why there are three branches (balance of power).

For example:
1. Name one important idea found in the Declaration of Independence.
Acceptable answers include: People are born with natural rights; the power of government comes from the people; the people can change their government if it hurts their natural rights and all people are created equal.

Applicants must answer correctly six questions out of 10 chosen from a master list of 100.

It's not hard to memorize answers to the current list of questions without understanding much about this country's values. The new test is more challenging. But some of the proposed questions are awfully picky too. Why should new citizens have to know the minimum wage ($5.15 an hour), the highest mountain (McKinley) or which World War II general went on to become president (Eisenhower)? A few questions are confusing:

What is one thing only a state government can do?

Acceptable answers are: provide schooling and education; provide protection (police), provide safety (fire departments); give a driver's license and approve zoning and land use.

Except for issuing a driver's license, are these exclusively state functions? Most people see education, police, fire and zoning as local decisions.

When the San Jose Mercury News asked current citizens — including a law professor who was on O.J. Simpson's legal team, a close-the-border activist, a newly naturalized immigration lawyer and San Jose's police chief and mayor-elect — to take the test, they struggled with questions such as "how many times has the Constitution been amended?"

The test takers said the Mississippi River is the longest river in the U.S., which is listed as the correct answer. In fact, the longest river is the Missouri River.

Well, the 144 questions on the list will be tested on volunteers and winnowed down to 100. Presumably, the least relevant questions will go, leaving questions that ask would-be citizens to learn a bit more about their new country's history and form of government. I don't think it's too much to ask.

Joanne Jacobs Guest-Blogging:

I'm delighted to say that we're being joined this week by Joanne Jacobs — education blogger, former Knight Ridder op-ed columnist and San Jose Mercury News editorial writer, and the author of Our School, which tells the story of a San Jose charter school's struggles to prepare students (most from Mexican immigrant families) to succeed in college.

Alexander Hamilton Center Canceled:

In contrast to Clemson, which just dramatically increased the educational opportunities available to its students, I see that Hamilton College has canceled plans for the Alexander Hamilton Center for the Study of Western Civilization:

Update: Alexander Hamilton Center

Hamilton College has announced that the Alexander Hamilton Center will not be established at this time due to a lack of consensus about institutional oversight of the Center as a Hamilton program. The College administration and trustees believed the Alexander Hamilton Center to have significant potential to enhance the educational experience of Hamilton students and regret that it is not going forward. We are hopeful that -- even in the absence of a formal center structure -- some of the programming that was envisioned can still be realized.

The Hamilton College Alumni for Governance Reform provide the details. Steve Balch and Armavirumque translate.

Clemson Institute for the Study of Capitalism:

I see that Clemson University has started the Clemson Institute for the Study of Capitalism, which describes its mission as follows, "The mission of The Clemson Institute for the Study of Capitalism is to examine and to increase public awareness of the moral foundations of capitalism." The faculty and program are extremely impressive.

The New York Sun recently published an article on the Center here.

What a splendid and unique educational opportunity this Institute will provide for Clemson students and faculty. I received a Masters Degree in Economics from Clemson University in 1990, but more importantly, I received an extraordinary education, especially in law and economics and public choice theory.

From Stumbling on Happiness

by Daniel Gilbert:

[P]sychologists . . . take a vow, promising that at some point in their professional lives they will publish a book, a chapter, or at least an article that contains this sentence: "The human being is the only animal that . . ." . . . Most of us wait until relatively late in our careers to fulfill this solemn obligation because we know that successive generations of psychologists will . . . remember us mainly for how we finished The Sentence.

[T]hose psychologists who finished The Sentence with "can use language" were particularly well remembered when chimpanzees were taught to communicate with hand signs. And when researchers discovered that chimps in the wild use sticks to extract tasty termites from their mounds (and to bash one another over the head now and then), the world suddenly remembered . . . every psychologist who had ever finished The Sentence with "uses tools." So it is for good reason that most psychologists put off completing The Sentence for as long as they can, hoping that if they wait long enough, they just might die in time to avoid being publicly humiliated by a monkey.

I have never before written The Sentence, but I'd like to do so now, with you as my witness. The human being is the only animal that thinks about the future. . . . I do recognize that nonhuman animals often act as though they have the capacity to think about the future. But as bald men with cheap hairpieces always seem to forget, acting as though you have something and actually having it are not the same thing, and anyone who looks closely can tell the difference.

[E]very autumn the squirrels in my yard . . . act as though they know that they will be unable to eat later unless they bury some food now. . . . [T]hey have regular squirrel brains that run food-burying programs when the amount of sunlight that enters their regular squirrel eyes decreases by a critical amount. Shortened days trigger burying behavior with no intervening contemplation of tomorrow, and the squirrel that stashes a nut in my yard "knows" about the future in approximately the same way that a falling rock "knows" about the law of gravity—which is to say, not really.

Until a chimp weeps at the thought of growing old alone, or smiles as it contemplates its summer vacation, or turns down a Fudgsicle because it already looks too fat in shorts, I will stand by my version of The Sentence. We think about the future in a way that no other animal can, does, or ever has, and this simple, ubiquitous, ordinary act is a defining feature of our humanity.

(Paragraph breaks added.) The sentence about bald men with cheap hairpieces is not only funny but also connects with long-standing debates about modeling human behavior in economics. For a longer excerpt, see here.

UND v. NCAA and Related Events at Dartmouth:

A few weeks ago I noted that the University of North Dakota had won its action for an injunction in its case with the NCAA allowing it to host a first-round NCAA Division II playoff game. I was subsequently directed to this "Open Letter to the NCAA" from the President of the University of North Dakota, Charles E. Kupchella from last year. As Joe Malchow (who directed me to this letter) aptly describes the tenor of the letter, "The NCAA Is Apprised of Where it Might Put It."

Substantively, Kupchella's letter seems similar to the earlier complaints issued by William & Mary about the arbitrary decision-making processes of the NCAA. You will recall that UND decided to take the NCAA to court, raising private funds to fund the litigation, whereas William & Mary decided not to litigate.

Joe Malchow, a Dartmouth '08, also has the most extensive coverage of the most recent round of similar controversies that have broken out at Dartmouth in the past few weeks. For those who are interested, he has collected all of his posts on the whole affair in a special section of Dartblog.

For those who may be curious, the Fighting Sioux won big in that home playoff game, then won again the next week on the road, only to lose this weekend on the road to Grand Valley State, 30-20.

The War on Drugs vs. the War on Terror - Again:

In recent months, I have repeatedly blogged about how our misguided War on Drugs is undermining the War on Terror in Afghanistan by alienating Afghans who depend on poppy cultivation for their livelihoods and by providing the Taliban with a ready-made source of income (see here and here, for my previous posts on the subject). Now, as the conservative British paper, the Daily Telegraph reports, the Bush Administration seems intent on making the problem worse by introducing new poppy eradication measures that are likely to alienate Afghans and help the Taliban even more than previous campaigns. Among other things, the new policy may cause great damage to legal crops as well as to poppy growing, thereby angering even those Afghan farmers who are not engaged in the drug trade:

The Afghan government is to launch a campaign of herbicide spraying of opium poppy for the first time following intense American pressure for a more radical approach to the country's burgeoning drugs problem.

Spraying, which will be undertaken by ground-based Afghan security units, is widely seen as a stepping stone to the still more controversial use of aerial spraying....

Spraying would allow eradication of the crop that dominates the world's heroin trade to begin earlier than the cutting and ploughing of fields which has been hitherto performed by Afghan security forces. The eradication technique is widely feared by farmers and viewed with great scepticism within the international community.....

A senior diplomat in Kabul said that spraying would be expensive and spur health scares and fears of wider contamination, potentially pushing farmers towards the Taliban. He added: "Aerial spraying would almost certainly be a disaster for Afghanistan given that poppy is grown in small portions of farmers already limited holdings. It would destroy legal crops more than illegal."

The article indicates that the new spraying program is not scheduled to start for another two months and that there may still be a chance that it will be shelved. However, I am not optimistic that the Administration will soon see the light of day on this issue.

Therefore, I have a suggestion for the new Democratic Congress: If you are serious about improving the conduct of the War on Terror, a good way to start would be to pass a bill banning the use of U.S. government funds for poppy eradication activities in Afghanistan. You can repudiate a Bush Administration policy and simultaneously increase our chances of winning in Afghanistan, which Democrats have repeatedly claimed we should be focusing on more. What's not to like?


Sunday, December 3, 2006

Sunday Song Lyric: I find it hard to believe I've never posted a White Stripes song lyric. The Detroit duo of Meg and Jack White have produced some incredible albums. Their lo-fi garage-rock recordings are simultaneously raw and rich, and their song-writing revelas a deep appreciation for American music forms, particularly blues, punk, country, and post-War pop. (How many alt-rock faves have recorded a Bert Bachrach cover?). Ostensibly brother and sister, it turns out the two were married and divorced in 2000.

Virtually all of the bands lyrics and tabs are available on Broken Bricks. Selecting just one lyric is difficuly, I have many White Stripe favorites but for some perverse reason, today I'm stuck on "I'm Finding It Harder to Be a Gentleman."

Well, I'm finding it harder
To be a gentleman every day
All the manners that I've been taught
Have slowly died away
But if I held the door open for you
It wouldn't make your day

You think that I care
About me and only me
When every single girl needs help
Climbing up a tree
I know it don't take much
To satisfy me

Maybe it's whatever's in my head
That's distracting me
But if I could find emotion
To stimulate devotion
Well then you'd see

Well, I'm finding it hard to say
That I need you twenty times a day
I feel comfortable so baby
Why don't you feel the same?
Have a doctor come and visit us
And tell us which one is sane

I never said I wouldn't
Throw my jacket in the mud for you
But my father gave it to me so
Maybe I should carry you
Then you said, "You almost dropped me"
So then I did, and I got mud on my shoes.
Don't know the White Stripes? Well, their big single was "Seven Nation Army" (here live on Conan) but everyone should be familiar with this ground-breaking Lego video for "Fell In Love With a Girl." And don't forget this appearance on The Simpsons.
Wiccan Symbol in Veterans' Cemetery:

Howard Friedman (Religion Clause) reports:

[F]riends and family of a Nevada soldier killed over a year ago in Afghanistan, gathered today for the dedication of the first Wiccan pentacle symbol in a military cemetery.... While the U.S. Department of Veterans Affairs has still failed to act on requests by Wiccan families, the pentacle was placed on the Veterans Memorial Wall at the Northern Nevada Veterans Memorial Cemetery in Fernley because in September the Nevada Office of Veteran Services that has jurisdiction over the state cemetery approved the plaque.

Go to the post for links and some more details. As I noted a few months ago, the government already provides a wide range of religious symbols for different religious.