Saturday, February 3, 2007

Funny Effect:

Go to, clear out the address bar, copy and paste the following, and hit enter:

javascript:R=0; x1=.1; y1=.05; x2=.25; y2=.24; x3=1.6; y3=.24; x4=300; y4=200; x5=300; y5=200; DI=document.images; DIL=DI.length; function A(){for(i=0; i-DIL; i++){DIS=DI[ i ].style; DIS.position='absolute'; DIS.left=Math.sin(R*x1+i*x2+x3)*x4+x5;*y1+i*y2+y3)*y4+y5}R++}setInterval('A()',5); void(0);

Thanks to Google Blogoscoped, and to the indispensable GeekPress for the pointer.

Archiving Cited Web Pages:

When you cite a Web page in your article -- or in a court opinion -- you run the risk that the page will be gone by the time some reader of yours will want to check it. The obvious solutions are to archive the page, either on some site that you've committed to keep up yourself, or on some site run by an organization devoted to this purpose. Likewise, publishers (such as law reviews) may do the same for articles that they publish. And I know there are organizations that do try to do this, at least in theory.

My question relates to the practice: Have any of you done this systematically for your own works? Have you used archiving services, and what has been your experience with them? Are there unexpected technical issues one needs to worry about when doing this? I'd love to know, and I imagine that so would many others.

Did AEI Seek to Buy Climate Scientists?

The blogosphere is abuzz about this breathless Guardian story alleging that the American Enterprise Institute is offering cash payments to scientists who will "undermine" the new report of the Intergovernmental Panel on Climate Change (IPCC). (See, e.g., here, here, and here.) Some suggest this is a scandalous example of "buying science." I've obtained copies of the letters in question and an internal memo circulated to AEI staff by AEI President Christopher DeMuth, and it seems to me there is less here than the Guardian and others might suggest.

Here is the text of the letter described in the Guardian report. It was sent by Steven Hayward and Kenneth Green of AEI in July 2006 to Professor Steve Schroeder of Texas A&M, a climate scientist who has been critical of climate models in the past.

Dear Prof. Schroeder:

The American Enterprise Institute is launching a major project to produce a review and policy critique of the forthcoming Fourth Assessment Report (FAR) of the Intergovernmental Panel on Climate Change (IPCC), due for release in the spring of 2007. We are looking to commission a series of review essays from a broad panel of experts to be published concurrent with the release of the FAR, and we want to invite you to be one of the authors.

The purpose of this project is to highlight the strengths and weaknesses of the IPCC process, especially as it bears on potential policy responses to climate change. As with any large-scale “consensus” process, the IPCC is susceptible to self-selection bias in its personnel, resistant to reasonable criticism and dissent, and prone to summary conclusions that are poorly supported by the analytical work of the complete Working Group reports. An independent review of the FAR will advance public deliberation about the extent of potential future climate change and clarify the basis for various policy strategies. Because advance drafts of the FAR are available for outside review (the report of Working Group I is already out; Working Groups II and III will be released for review shortly), a concurrent review of the FAR is feasible for the first time.

From our earlier discussions of climate modeling (with both yourself and Prof. North), I developed considerable respect for the integrity with which your lab approaches the characterization of climate modeling data. We are hoping to sponsor a paper by you and Prof. North that thoughtfully explores the limitations of climate model outputs as they pertain to the development of climate policy (as opposed to the utility of climate models in more theoretical climate research). In particular, we are looking for an author who can write a well-supported but accessible discussion of which elements of climate modeling have demonstrated predictive value that might make them policy-relevant and which elements of climate modeling have less levels of predictive utility, and hence, less utility in developing climate policy. If you are interested in the idea, or have thoughts about who else might be interested, please give Ken Green a call at 202-XXX-XXXX at your convenience.

If you and Prof. North are agreeable to being authors, AEI will offer an honoraria of $10,000. The essay should be in the range of 7,500 to 10,000 words, though it can be longer. The deadline for a complete draft will be December 15, 2007. We intend to hold a series of small conferences and seminars in Washington and elsewhere to coincide with the release of both the FAR and our assessment in the spring or summer of 2007, for which we can provide travel expenses and additional honoraria if you are able to participate.

Please feel free to contact us with questions and thoughts on this invitation.


Steven F. Hayward, Ph.D, Resident Scholar Kenneth Green, Ph.D, Visiting Scholar

In these letters AEI was certainly seeking out prominent analysts willing to participate in a critical examination of the IPCC report, but I don't think the letter suggests AEI wanted Professor Schroeder or anyone else to tailor their views to AEI's agenda. Rather it looks to me like an effort to encourage those who have been critical of climate projections in the past to provide a detailed assessment of the new IPCC report. A second letter was sent out earlier this year to a handful of scientists and economists and others seeking papers on climate change science and policy more broadly.

AEI President Christopher DeMuth took great exception to the Guardian story, and circulated the following memo to AEI staff.

February 2, 2007


Many of us have received telephone calls and emails prompted by a shoddy article on the front page of today’s Guardian, the British newspaper, headlined “Scientists offered cash to dispute climate study” (posted at,,2004397,00.html#article_continue).

The article uses several garden-variety journalistic tricks to create the impression of a story where none exists. Thus, AEI is described as a “lobby group” (we are a research group that does no lobbying and takes no institutional positions on policy issues); ExxonMobil’s donations to AEI are either bulked up by adding donations over many years, or simply made up (the firm’s annual AEI support is generous and valued but is a fraction of the amount reported—no corporation accounts for more than 1 percent of our annual budget); and AEI is characterized as the Bush administration’s “intellectual Cosa Nostra” and “White House surrogates” (AEI scholars criticize or praise Bush administration policies—every day, on the merits). All of this could have been gleaned from a brief visit to the AEI website.

But the article’s specific charge (announced in the headline) is a very serious one. Although most of you will appreciate the truth on your own, I thought it would be useful to provide a few details.

First, AEI has published a large volume of books and papers on climate change issues over the past decade and has held numerous conferences on the subject. A wide range of views on the scientific and policy issues have been presented in these publications and conferences. All of them are posted on our website. It would be easy to find policy arguments in our publications and conferences that people at ExxonMobil (or other corporations that support AEI) disagree with—as well as those they agree with and, I hope, some they hadn’t thought of until we presented them. Our latest book on the subject, Lee Lane’s Strategic Options for Bush Administration Climate Policy, advocates a carbon tax, which I’m pretty sure ExxonMobil opposes (the book also dares to criticize some of the Bush administration’s climate-change policies!).

Second, attempting to disentangle science from politics on the question of climate change causation, and to fashion policies that take account of the uncertainties concerning causation, are longstanding AEI interests. Several recent issues of our “Environmental Policy Outlook” address these issues, as does Ken Green’s “Q & A” article in the November-December issue of The American. The new research project that Ken and Steve Hayward have been organizing is a continuation of these interests. I am attaching the two letters that Steve and Ken have sent out to climate change scientists and policy experts (the first one emphasizing the scientific and climate-modeling issues addressed by the Intergovernmental Panel on Climate Change; the second, more recent one covering broader policy issues as well)—and invite you to read them and compare them with the characterization in the Guardian article. The first letter, sent last summer to Professor Steve Schroeder of Texas A&M (and also to his colleague Gerald North), is the one quoted by the Guardian. Ken and Steve canvassed scholars with a range of views on the scientific and policy issues, with an eye to the intrinsic quality and interest of their work rather than to whether partisans might characterize them as climate change “skeptics” or “advocates.” They certainly did not avoid those with a favorable view of the IPCC reports—such as Professor Schroeder himself.

Third, what the Guardian essentially characterizes as a bribe is the conventional practice of AEI—and Brookings, Harvard, and the University of Manchester—to pay individuals at other research institutions for commissioned work, and to cover their travel expenses when they come to the sponsoring institution to present their papers. The levels of authors’ honoraria vary from case to case, but a $10,000 fee for a research project involving the review of a large amount of dense scientific material, and the synthesis of that material into an original, footnoted and rigorous article is hardly exorbitant or unusual; many academics would call it modest.

We should all be aware that political attacks such as the Guardian‘s are more than sloppy or sensation-seeking journalism: they are efforts to throttle debate, and therefore aim at the heart of AEI’s purposes and methods. The successive IPCC climate change reports contain a wealth of valuable information, but there has been a longstanding effort to characterize them as representing more of a “scientific consensus” than they probably are, and to gloss over uncertainties and disagreements within the IPCC documents themselves. Consensus plays an important role in science and scientific progress, but so does disputation—reasoned argument is essential to good science, and competition of ideas is essential to scientific progress. AEI is strongly opposed to the politicization of science, just as it is to the politicization of economics and other disciplines. On climate change as on other issues, we try to sort out the areas of genuine consensus from the areas of reasonable debate and uncertainty. Ken and Steve’s letter to Professor Schroeder was clear about this: “we are looking for . . . a well-supported but accessible discussion of which elements of climate modeling have demonstrated predictive value that might make them policy-relevant and which elements of climate modeling have less levels of predictive utility, and hence, less utility in developing climate policy.” The effort to anathematize opposing views is the standard recourse of the ideologue; one of AEI’s highest purposes, here as in many other contentious areas, is to ensure that such efforts do not succeed.

Chris DeMuth

If there were evidence that AEI was trying to get individual scientists to change their tune in return for large honoraria, there would undoubtedly be a story here. But there is no evidence this occurred. The general views of Professors Schroeder and North are well knowm to those who work in this area, and were unlikely to be swayed by ths offer (and they were not). More broadly, just as there may be financial incentives to write analyses desired by corporate funders, there are also financial incentives to tailor research projects and findings to increase the likelihood of receiving government grants. This is why I believe scientific studies should be analyzed on their merits, not the source of funding.

In the end, some may wish AEI was not sponsoring critical research and analysis of the IPCC report and current climate policy proposals, but it's hardly a scandal that they do.

UPDATE: AEI's David Frum chimes in here. Frum finds the Guardian story and the charges it has spawned to be absurd. Interestingly enough, Frum also supports the adoption of a carbon tax to address the threat of climate change.

Some folks have pointed me to this item on TNR's "The Plank" by Bradford Plummer. I don't find it any more compelling than the Guardian story, and the suggestion that there should be no criticism of the IPCC report because "any scientists out there who had legitimate complaints about the report . . .could have worked with the IPCC and registered their objections during the drafting process" is positively silly. Set aside the growing critique that the new IPCC report is not alarmist enough, as I discussed here, the Summary for Policymakers released last week is ultimately revised and approved by participating governments, not the hundreds of scientists who participate in the development of the underlying report. The actual IPCC report itself is not immune from critique either. As a "consensus" document that is based upon research conducted prior to a set date, it cannot hope to resolve all of the continuing debates about various aspects of climate science. Judgments are made during the drafting process to accomodate differing views. Further, it presents various scenarios with potentially different implications for public policy. Sincere efforts to distill, analyze, and critique the report, and explain why policy decisions should rely on certain findings more than others, are helpful to the policy development process. This is true whether such efforts are sponsored by AEI, the Pew Foundation, or Environmental Defense.

"It's Drinkin' Time!": I haven't been on a college campus tour in a long time, but here's a pretty good prank courtesy of the Dartmouth Jack-O-Lantern. (The prank begins after about 45 seconds.)
Prospective students turned off by that during the tour probably didn't want to go to Dartmouth anyway. Hat tip: The IvyGate Blog

  UPDATE: In the comment thread, "Q the Enchanter" writes, "Isn't this an indictment of our entire American society?" Dean Wormer, is that you?
A Peculiar Use of "Anti-Semitism":

As I've noted before, friends of Israel sometimes use overwrought charges of anti-Semitism to try to silence critics of Israel. That's undeniable, and regrettable.

Equally undeniable, and regrettable, is when a friend of Israel criticizes critics of Israel, and then gets accused of calling everyone who criticizes Israel anti-Semitic, even when the author never mentioned anti-Semitism, and even, oddly enough, when the author has explicitly disclaimed any intention of suggesting that the individual he criticized is anti-Semitic. I've lost count of how many times commenters on this blog have written something along the lines of "there goes Bernstein again, claiming that legitimate criticism of Israel is anti-Semitism," when accusations of anti-Semitism were never leveled, and even when they were explicitly disclaimed.

Consider how Matthew Yglesias (note: who, for the record, I think is neither anti-Semitic, nor even "anti-Israel", but is far too kind to those who are, perhaps under the "an enemy of my enemy [Bush foreign policy] is my friend" theory) portrays the recent AJC study on leftist Israel-hating Jews, who, according to the study, are playing into the hands of growing genocidal anti-Semitism in the Muslim world by engaging in highly inflammatory rhetoric criticizing Israel in terms normally reserved for brutal dictatorships. Yglesias sums it up as "AJC's 'Jews who have different political opinions from ours are anti-semities' [sic] essay."

A commenter responded:

Yeah, except that isn't what the essay says.

Just as when you said Abe Foxman branded Wesley Clark an anti-semite, only except for where Abe Foxman expressly stated he wasn't.

Just as when you criticized Leon Wieseltier for calling Tony Judt an anti-semite, only except for that part where he explicitly wrote "Tony Judt is not an anti-semite." You know, for someone in the midst of a crusade against rhetorical sophistry re: Israel & anti-semitism, & someone who defended Clark's inartful expression against accusations of anti-semitic conspiracy theory, you seem to have a nasty habit of misrepresenting other's views re: Israel/Jews. In the Matthew Yglesias equation, the rules are turned completely on their head; anyone who criticizes another commentator for treating the subject of Israel & the Jews in a manner, to quote Wieseltier "Icily lacking in decency" is accused of anti-semitism baiting.

Unfortunately, Yglesias is hardly alone.

So on the one hand, we have friends of Israel who are too quick to label others anti-Semitic, though I believe that this phenomenon is declining, as it has received increasing scrutiny and criticism. On the other hand, we have critics of Israel who try to portray anyone who defends Israel as a hysteric who sees anti-Semitism everywhere. This seems to be on the rise. And the most vociferous critics of the former phenomenon tend to be the most egregious participants in the latter.

Vietnam Spitting.--

There is a flap about whether returning Vietnam veterans were really spat upon (via Instapundit). One commenter at Countercolumn says that Bob Greene, a former Chicago columnist, wrote a column in the 1980s saying that it was a myth. He received so many stories of spitting that he interviewed the purported victims and wrote a book concluding that many such stories were probably true.

Then Jerry Lembcke wrote a book saying it was a myth, that he researched news stories and they started appearing around 1980. I have no independent source of information on this, but having done literally thousands of WESTLAW and LEXIS/NEXIS searches, I can say that when something starts appearing in the press in the early 1980s, that is almost always a function of when these two news services started including the full texts of major newspapers. (I find a clear Feb. 1, 1981 reference in the New York Times.) Although I can't say for certain that Jerry Lembcke made this error in his research, I can say that my students make this error all the time. I haven't yet read either Greene's or Lembke's book, but in my experience when someone says that a word usage or a story starts appearing around 1980 or in the early 1980s, they are almost always reflecting the limitations of their online search database, rather than the origins of the phenomenon they are tracing.

I'm suspicious of the coincidence between Lembke's account and the beginning of full-text coverage in WESTLAW and LEXIS. In other words, did Lembke's research show that such stories began appearing in the early 1980s, or did his research show that by 1981-82, when the major newspapers came online in full text, the story was already well known?

UPDATE: In the comments below are several seemingly credible first-hand accounts of being spat on. In addition, several note a bunch of 1971 published stories (I found one in the June 2, 1971 Chicago Tribune) involving the claims of an anti-John Kerry serviceman that he was spat on.

I was also able to confirm my speculation above that the spitting meme may have been spread long before 1980. Alfred Kitt, after he had resigned as General Counsel to the Army and was working at Yale, wrote a heartfelt Sept. 15, 1971 op-ed in the Washington Post, looking back on working in a situation in which many thought him a war criminal--and even his own family was against him. Kitt also discussed the plight of the ordinary soldier, including this sentence: "You can’t be fond of being spat on, either literally or figuratively, just because of the uniform you’re wearing."

Balkin on Legal Blogs:

Yale Law Professor and prominent blogger Jack Balkin has an interesting discussion of some of the most prominent law professor blogs and the impact of blogging on legal scholarship and political discourse here.

In one part of his post, Balkin puts forward a theory explaining which law professors are most likely to succeed as bloggers:

The most successful blogs tend to be run by younger law professors who aren’t necessarily at the top-ten schools. That’s because if you’re an established professor at a top-ten school, you are already probably getting significant positive reinforcement for what you are doing. But if you’re a law professor who’s trying to establish a name for yourself, you quite understandably feel that not enough people are paying attention to what you’re saying. The blogosphere is a wonderful way for you to put your ideas out there and gain an audience for ideas you think are valuable and worthwhile. Blogging democratizes legal commentary; it publicizes the scholarship and the expertise of a large number of law professors who would not have gotten a voice before.

I think there is some truth to this. However, several of the most prominent and successful lawprof bloggers are in fact professors at top ten schools, including Richard Posner, Larry Lessig, and of course Balkin himself. Many other prominent lawprof blogs were founded by professors at schools just outside the US News top ten (ranked roughly 11-20). Brian Leiter's various blogs, Steve Bainbridge, and of course the Volokh Conspiracy are obvious examples.

Balkin is absolutely right that blogging is a way for younger professors at non-top ten schools to increase their profile and broaden the readership for their scholarly work; I have pursued this strategy myself:). On the other hand professors at top schools have some important advantages in the blogging enterprise. In particular, a new blog founded by a professor at a famous school is more likely to quickly attract the attention of readers than one founded by a prof at a lower-ranked institution. If you hear that there's a new blog started by a professor at Yale, you are far more likely to go take a look than if you hear that there's a new blog started by a professor at the University of Southern North Dakota. It is relatively easy to start a blog, but much harder to attract an audience and acquire influence. Being at an elite institution is a big help in achieving these two goals.

Blogging does to some degree "democratize" legal academic discourse for the reasons Balkin indicates. But it also sometimes reinforces existing inequalities. That is not necessarily a bad thing. The purpose of blogging, in my view, should be to improve the quality of public discourse more than to "democratize" it.

Balkin also makes many other thought-provoking points. As they say, read the whole thing.

Football Players Ruining Bodies For Pleasure of Strangers.—

As Merle Kessler once observed:

“Football players, like prostitutes, are in the business of ruining their bodies for the pleasure of strangers.”

Now come claims that Bill Belichick pressured one of his players to practice against the advice of the trainer, causing permanent brain damage (NY Times):

Former New England Patriots linebacker Ted Johnson said coach Bill Belichick subjected him to hard hits in practice while he was recovering from a concussion — against the advice of the team's top trainer.

Johnson, who helped the Patriots win three Super Bowl titles before retiring two years ago, told The New York Times that a collision with another player during that 2002 practice led to another concussion. And, after sustaining additional concussions over the next three seasons, he now forgets people's names, misses appointments and suffers from depression and an addiction to amphetamines.

''There's something wrong with me,'' the 34-year-old Johnson said in Friday's Times. ''There's something wrong with my brain. And I know when it started.''


Friday, February 2, 2007

Do Men and Women Tend to Favor the Same Presidential Candidates in the General Election?--

There has been a recent dust-up between Linda Hirshman on one side and Mark Schmitt and Ann Althouse on the other. (Count me as a fan of both Linda's and Ann's scholarship.) If I am reading correctly, there seems to be an impression that women’s votes seldom determine the outcome of presidential elections. Usually both men and women favor the same candidate, so generally neither men nor women control the outcome.

According to exit poll data reported in the New York Times, a plurality of women have voted for the candidate getting the most votes in every presidential election since 1972 except for the last one, 2004 (when they favored Kerry). And men have voted for the plurality winner in every election since 1972 except 1996 (when they favored Dole) and 2000 (when they favored Bush). So women’s first choices have lost 1 election in the popular vote and 2 elections in the electoral vote, while men’s first choices have lost 2 elections in the popular vote and 1 election in the electoral vote.

Bottom line: The assumption that women’s preferences for president seldom determine the outcome of a presidential election is indeed true. But then men’s preferences are seldom dispositive either. On the other hand, in each of the last three presidential elections, men and women have differed in their first choices for president. We may have entered a new era in which the winners of presidential elections don’t receive a plurality from both genders.

"Will Saudis Ban the Letter 'X'"?

Youssef Ibrahim, former New York Times Middle East correspondent, writes in the New York Sun:

The letter "X" soon may be banned in Saudi Arabia because it resembles the mother of all banned religious symbols in the oil kingdom: the cross.

The new development came with the issuing of another mind-bending fatwa, or religious edict, by the infamous Commission for the Promotion of Virtue and Prevention of Vice -— the group of senior Islamic clergy that reigns supreme on all legal, civil, and governance matters in the kingdom of Saudi Arabia.

The commission's damning of the letter "X" came in response to a Ministry of Trade query about whether it should grant trademark protection to a Saudi businessman for a new service carrying the English name "Explorer." ...

Among the commission's deeds is the famed 1974 fatwa -— issued by its blind leader at the time, Sheik Abdul Aziz Ben Baz — which declared that the Earth was flat and immobile....

Still more interesting details in the article; thanks to David Kaplan of for the pointer.

UPDATE: Bill Poser (Language Log) points out that "in some circles in Israel, the plus-sign is avoided due to its resemblance to the cross and is replaced with a version that looks like this: ﬩ It is actually in Unicode, at codepoint U+FB29, dubbed HEBREW LETTER ALTERNATIVE PLUS SIGN." Zayiny! (Well, OK, not quite.)

Poser's correspondents report that "the truncated plus sign turns up in some ulpan (Hebrew language classes for non-Israelis) and in the lower grades of primary school." That strikes me as pretty silly -- a weird signal of insecurity that shows you're obsessed so with the other religion that anything that even reminds people of it is somehow seen as a threat. But at least not as bad as trying to demand that private enterprises do the same.

On the other hand, those crescent-shaped bananas ....

Have Plaintiffs' Lawyers Been Avoiding Federal Court Because of Daubert/Amended Rule 702?:

When I suggested that at least some lawyers were doing so in a recent post, a few commenters vociferously objected. One even claimed that I was merely spreading "corporate tort reform propaganda." Coincidentally, I just came across the following paragraph in a publication of the American Trial Lawyers Association, an organization for plaintiffs' attorneys:

In the years since Daubert, often the most daunting challenge faced by a plaintiff in a federal drug or medical device case is overcoming the defendant's challenge to the plaintiff's experts. As a result, many plaintiffs' attorneys choose to keep their cases out of federal court by any means possible, since the majority of state courts--even those that have adopted the Federal Rules of Evidence or a close approximation thereof--have rejected a strict application of Daubert and its progeny. In many cases, this has led plaintiffs' attorneys to bring in as additional defendants treating doctors, pharmacies, or suppliers, so as to destroy the diversity between all parties necessary for federal court jurisdiction. Alternatively, plaintiffs' attorneys have chosen to avail themselves of any available friendly state court forum, such as the defendant drug manufacturer's state of incorporation, even if that state is far from the plaintiffs' residence and the plaintiffs' lawyer's home state.

Related Posts (on one page):

  1. Have Plaintiffs' Lawyers Been Avoiding Federal Court Because of Daubert/Amended Rule 702?:
  2. New York Court of Appeals on the Frye General Acceptance Test:
Justice Alito at GW Law: Yesterday GW Law held the final round of its annual moot court competition, and we were honored to have another stellar panel of judges this year: Justice Samuel Alito presided, and was joined by Judge Jose Cabranes of the Second Circuit and Judge Diane P. Wood of the Seventh Circuit. It was a terrific event all around. Congratulations to the winners of the competition, my former students Jonathan Bond and Eric Klein. The law school website has posted a page about the event, and you can see it here.

Related Posts (on one page):

  1. Justice Alito at GW Law:
  2. GW Moot Court:
  3. Moot Court:
Stimson Resigns:

The Associated Press is reporting that Cully Stimson resigned today "over controversial remarks in which he criticized lawyers who represent terrorism suspects." According to the report, Stimson "made his own decision to resign and was not asked to leave by Defense Secretary Robert Gates." According to a Defense Department spokesman, Stimson beleived the controversy over his remarks "hampered his ability to be effective" in his position at the Department.

Glenn's "Jet Test" for Global Warming Policy:

Glenn Reynolds has a test to determine the sincerity of those who call for reducing greenhouse gas emissions: Limits on private planes and stretch limos. He writes:

No, seriously. A Gulfstream III releases 10,000 pounds of carbon dioxide an hour. How can we demand "sacrifice" from ordinary Americans when our leaders — including those who call for the sacrifice — are flying in jets like this? If commercial first-class isn't good enough, they should stay home.

Of course, if the United States and other industrialized nations adopted a carbon tax (or its equivalent), those who can afford private jets could likely afford the tax as well.

UPDATE: Glenn Reynolds offers more detail about his views on climate change policy here.

Another Strange Use of Language in the Times's Article on the AJC Study:

Ilya points out below that N.Y. Times reporter Patricia Cohen refers to the American Jewish Committee as a "conservative advocacy group", when its policy positions are mainstream American liberal.

Equally oddly, the Times's headline screams: "Essay Linking Liberal Jews and Anti-Semitism Sparks a Furor." The first paragraph relates: "The American Jewish Committee, an ardent defender of Israel, is known for speaking out against anti-Semitism, but this conservative advocacy group has recently stirred up a bitter and emotional debate with a new target: liberal Jews."

In fact, paging through the essay that is the subject of the Cohen story, the author never identifies his opponents as "liberal Jews," but as "'Progressives'" who viciously attack Israel. Note the double quotes: the author of the AJC piece is suggesting that the relevant individuals think of themselves as being progressive in their thinking, but actually are not. He even refers to "individuals who refer to themselves as "'Progressives'", but he never calls them "liberals."

Cohen knows, or should know, that self-styled "Progressives" are generally well to the left of mainstream American political opinion, and certainly an essay for a liberal organization attacking self-styled Progressives is going to be attacking leftists, not liberals. And even if she didn't manage to grasp this, if one looks at the actual targets of the essay--individuals such as Adam Shapiro, Noam Chomsky, Adrienne Rich, Tony Judt--it's pretty obvious that with few exceptions, the article is targeting radical leftists, not mainstream liberals. This continues the Times's grand tradition of almost never calling anyone on the left, no matter how far left, anything other than a liberal, while using various extremist appellations (far right, right-wing, etc.) for even moderate conservatives. Calling an obviously liberal organization like the AJC "conservative," however, is new even for the Times (to my knowledge), and it reminds me of the nomenclature in radical circles when I was in college: Leftist was "progressive" or "liberal," liberal was "conservative," and conservative was "reactionary" or "far-right" or "fascist." Sad to see that the Times' editors are using (or allowing the use of) nomenclature better suited for a Berkeley alternative weekly than for the nation's leading "paper of record."

If all a Times reader read was the headline and the first paragraph, one would get the impression that the furor is about a conservative Jewish organization attacking liberal Jews for promoting anti-Semitism for some unspecified reason. The furor is actually about a liberal Jewish organization attacking leftist Jews for giving aid and comfort to genocidal anti-Semitism in the Islamic world by vicious and uncalled for attacks on Israel. You would never find this out from reading even the whole of Cohen's article, because the words "Muslim," "Islamic," and "Arab" never appear in it.

UPDATE: Here's how a better, or at least more neutral, reporter, might have phrased the first paragraph: "The American Jewish Committee, [a strong supporter of Israel], is [best] known for speaking out against anti-Semitism, but this [liberal Jewish] advocacy group has recently stirred up a bitter and emotional debate with a new target: [self-styled Progressive] Jews [who it claims aid and abet growing worldwide anti-Semitism, especially in the Muslim world, by engaging in rhetorical warfare against Israel]."

FURTHER UPDATE: Checking around the blogosphere via Technorati, I see that many bloggers simply accepted Cohen's characterization of the controversy without actually reading the underlying AJC paper. Some aspects of the paper are far from unassailable, but it's simply incorrect to suggest that the paper itself targets mainstream liberal critics of Israel for any criticism they make of Israel, and the author draws a clear distinction between anti-Semitism, and "progressive" views expressed in such a way as to give aid and comfort to anti-Semites. I think the paper raises this very interesting issue: if you are left-wing Jew who is hostile to Israel, but are aware that expressing this hostility in an unvarnished way is encouraging anti-Semitism, do you have a responsibility to temper your criticism, or at least the way you express it? And that goes for non-Jews hostile to Israel, too.

Sixth Circuit Habeas Divisions Continue:

Today the U.S. Court of Appeals for the Sixth Circuit denied the petition for panel rehearing and rehearing en banc in Slagle v. Bagley. As I posted here, the original three-judge panel split over whether Billy Slagle's capital conviction for the aggravated murder of Mari Anne Pope (whom he stabbed seventeen times with sewing scissors) should be overturned due to alleged prosecutorial misconduct in the form of improper statements by the prosecuting attorney. Judge John Rogers and Cheif Judge Danny Boggs concluded that the statements were insufficient to render the trial and resulting conviction unfair. Judge Karen Moore dissented.

Today, Judge Moore reiterated her dissent from the original panel's decision, and Judge Boyce Martin dissented from the decision to deny the petition for en banc review. Accoring to Judge Martin:

Any student or practitioner of the law — indeed, any casual viewer of Law & Order — would find it obvious that the repeated, unduly prejudicial comments of the prosecutor in this case were highly improper. And yet an attorney not only admitted to practice in Ohio, and not only employed by the state prosecutor’s office, but charged with the duty to prosecute a criminal trial with the highest possible stakes, found it appropriate to repeatedly make such comments. Further, the state trial judge, who is entrusted with profound Constitutional responsibilities, presided over a trial where these comments were made over and over again. The debasement of the ethical code of our profession and the rules of evidence and procedure that occurred at Slagle’s trial are emblematic of how the politicization of the death penalty has undermined the administration of criminal law in this country.
Chief Judge Boggs also wrote a decision concurring in the denial of rehearing en banc, which reads:
Because dissents from our court’s denial of rehearings en banc are quite rare, the lack of any countering views at the time of such a dissent may be taken to mean that the contrary views presented are unanswerable.

Instead, it is usually the case that the original opinion has carefully considered and answered any substantive points made in the dissent from denial of rehearing en banc.

So it is in this case. Judge Rogers’s excellent opinion carefully applied existing law with respect to analyzing statements, made during the course of a long and contentious trial, that may be characterized as improper statements by a prosecutor. The law never has been, in a capital case or otherwise, that every or even multiple prosecutorial errors, objected to or not, cured or not, can bring a grant of habeas corpus in federal court, years or decades down the road. Instead, the law prescribes a method for analyzing the import, motive, frequency, and prejudice from any such remarks, which is exactly what Judge Rogers’s opinion did, and that opinion fully answers the substantive portion of the dissents.

And that's not all, for the Sixth Circuit issued an opinion in another habeas case today in which the court panel was once again divided. In Carroll v. Renico, the court, in an opinion by Judge Rogers joined by Judge Jeffrey Sutton, rejected Jarmaine Carroll's petition for a writ of habeas corpus alleging improper jury contact and a violation of his Sixth Amendment right to counsel by allowing co-defendant's counsel to "stand in" for Carroll's attorney during reinstruction of the jury. Judge Eric Clay agreed with the majority on the first claim, but dissented on the Sixth Amendment claim.

I should also note that the Sixth Circuit issued another interesting divided opinion in a non-habeas case arising out of a man's arrest for yelling "God Damn" at a town meeting. In this case, Chief Judge Boggs wrote for the majority, while Judge Sutton wrote a dissent. Howard Bashman has more on this decision here.

No More Supreme Picks for Bush?

According to Roger Alford at Opinio Juris, Jan Crawford Greenburg does not believe there will be another Supreme Court opening while President Bush is in office. Speaking at Pepperdine, Greenburg commented that, based upon the interviews she conducted for her book, neither Justice Stevens nor Justice Ginsburg appears ready to retire. Justice Stevens, she said, is "busy fighting for the soul of Justice Kennedy."

The IPCC's Fragile "Consensus":

Today the Intergovernmental Panel on Climate Change released the "Summary for Policymakers" of the first volume of its Fourth Assessment report on the science of climate change, focusing on the causes, human contribtions, and future projections of climate change. The New York Times covers the release here. The underlying report itself will be published by Cambridge University Press, but an outline is available here.

The Summary for Policymakers provides a layperson friendly summary of the scientific report itself. As such, it typically lacks the nuance, qualifying language, and scientific precision of the underlying study. Indeed, as the IPCC notes, the Summary for Policymakers is drafted by a handful of contributors to the underlying report, and then reviewed and revised by representatives of participating governments before its ultimate publication. (See the NYT's account of this process here.) For this reason there is often some controversy over how the summary document represents some of the more contentious or uncertain issues addressed in the report itself.

In a related vein, yesterday's New York Times reported that the new IPCC report is receiving criticism from some unexpected quarters. In the past, it was climate skeptics who challenged the IPCC's conclusions, and questioned over-reliance upon a purported scientific "consensus." As a result, they labeled "extreme" and "out of the mainstream" for challenging the official "consensus."

Now, however, some of those with more apocalyptic views of climate change are challenging the consensus report (even before it was released) complaining that the IPCC is not alarmist enough. In particular, they object to the lowering of worst-case projections of potential sea-level rise in the new report. (See, e.g., here.) There is also a brewing controversy about how the IPCC characterizes the potential link between global warming and hurricane intensity, reported by Roger Pielke Jr. (see also here) and Chris Mooney. Time will tell what effect these disputes have on the IPCC's effort to do climate science by consensus.

Evolutionary Psychology and Law Encyclopedia Entry:

My new essay on "Evolutionary Psychology," which is forthcoming in the Encyclopedia of Law and Society: American and Global Perspectives, is now available on SSRN.

Here's the Abstract:

Abstract: This is the entry for “Evolutionary Psychology” in the Encyclopedia of Law and Society: American and Global Perspectives. This entry provides a summary and overview of the science of evolutionary psychology and its implications for the study of law. Understanding how evolution has shaped human nature and individual preferences can provide insight into how to use law to direct individual behavior in pro-social directions and away from anti-social behavior. This essay provides an overview of the science of evolutionary psychology, especially as it manifests itself in human proclivities for cooperation and conflict. In contrast to the Hobbesian view of human nature that implicitly underlies the modern understanding of law, evolutionary psychology provides several models of cooperation in the absence of law. But evolutionary psychology also provides insights into the nature of social conflict and the challenges this presents for legal regulation. Finally, the article describes the research program of law and evolutionary psychology, the testable hypotheses of evolutionary psychology, and the criteria for distinguishing evolutionary explanations of human behavior from legalistic and norms-based theories.

It's a short piece written for an encyclopeida, and given the vast scope of the subject it necessarily skims the surface and omits much nuance and many important issues. And despite the extensive references, the editors deleted many others, so allow me to apologize in advance if your favorites did not make the cut. Despite all this, I hope you find it useful.


Thursday, February 1, 2007

The New York Times and the "Conservative" American Jewish Committee:

The New York Times story on the American Jewish Committee's report criticizing left-wing opponents of Israel describes the AJC as a "conservative advocacy group."

This statement is very hard to reconcile with the facts, unless the Times is using an extremely idiosyncratic definition of "conservative." Like most mainstream Jewish organizations, the AJC is in fact dominated by political liberals.

The AJC's positions on public policy issues reflect this orientation. For example, its web page listing "Domestic Policy Statements" includes press releases decrying conservative criticisms of the "independent judiciary," supporting equal rights for gay couples and opposing the federal anti-gay marriage amendment, opposing Republican efforts to change Senate rules that permitted Democratic senators to filibuster Bush's judicial nominees, embracing the cause of DC statehood (a position supported by most liberal Democrats and opposed by most Republicans and conservatives), advocating for the rights of illegal immigrants and so on. The AJC has also taken generally liberal positions on separation of church and state (e.g. - opposing religious displays on public property), and education policy, among other issues.

Many of the AJC's leaders are also liberal in their politics. For example, Kenneth Stern, the AJC's "specialist on anti-Semitism and extremism" is best known for a book he wrote denouncing right-wing militia groups.

If the Times can be so wrong about the simple and fairly obvious fact that the AJC is a liberal organization (or at the very least not a "conservative" one), it is difficult to put much faith in the validity of the other statements in the article.

There are, to be sure, different definitions of what it means to be "conservative." But it's hard to believe that a group with the above set of positions could reasonably be described as "conservative" in a way that conforms to the generally accepted usage of that term in modern American political discourse.

Perhaps Times reporter Patricia Cohen merely meant to say that the AJC is "conservative" on Israel-related issues. Even this characterization is questionable, given that the organization endorses the idea of a Palestinian state and strongly supported the Oslo "peace process" (which most Israeli right-wingers and American Jewish conservatives opposed). But if this was the meaning that Cohen had in mind, she should have at the very least indicated that the AJC is "conservative" on Israel-related issues, while taking liberal stances on most other issues.

UPDATE: Here is the AJC's own statement denying that it is a conservative organization. The AJC claims that "it is a strictly nonpartisan organization long viewed as centrist in its orientation." I think that "liberal" is a more accurate classification of the AJC than "centrist." Be that as it may, it certainly isn't conservative.

Does the National Rifle Association Influence Federal Elections?

This is a new Issue Paper from the Independence Institute, by Christopher B. Kenny, Michael McBurnett & David J. Bordua. It's the first empirical study to conclusively demonstrate and quantify interest-group influence on Congressional elections.

Michael Rappaport on the Constitutionality of the Air Force:

University of San Diego law professor Michael Rappaport, a prominent originalist scholar, has two interesting posts (see here and here) building on my earlier discussion of the constitutionality of the Air Force under textualist and originalist theories of constitutional interpretation.

I agree with most of Michael's points, particularly his argument that critics of originalism (and also some defenders) often have a flawed and oversimplified view of what originalist constitutional interpretation entails. As I explained in this review of Justice Breyer's recent book on constitutional interpretation, such misunderstandings occur even (perhaps especially) at the Highest Court in the Land.

However, I think that an independent Air Force (as opposed to one that is part of the Army or the Navy) is more difficult to justify on textualist and originalist grounds than Michael suggests. Here's the relevant part of his argument:

To focus on the independence question, lets make the following assumption: The use of airplanes and other Air Force equipment would be constitutional if used by the Navy. That is, the term Navy in the Constitution does not preclude the use of this equipment. (This assumption must hold for the use of Air Force equipment to be constitutional as part of the Navy.)

Consider the following situation. Congress decides that instead of creating a single Department of the Navy, with a single Secretary of the Navy, it creates two departments: Navy Department A and Navy Department B. They are independent of one another, but both are under the control of the Secretary of Defense and the President. Would this be constitutional? Of course. There is nothing in the Constitution that requires a single department.....

Now, add one more wrinkle: Congress has Navy A use different equipment than Navy B. This is also constitutional. There is no requirement that they be identical.

Finally, the last step: Congress changes the names from Navy A and Navy B to Navy and Air Force. This is obviously constitutional, since there is no requirement that any specific name be used. Put differently, that we call something the Air Force as a statutory matter does not decide the constitutional question of whether it is a Navy.

What this argument shows is that the independence of the Air Force is irrelevant.

To my mind, there is an important textualist objection to this argument: it renders Congress' power "to raise and support Armies" redundant. After all, if an independent Air Force can be justified by, in effect, considering it a separate Navy, why can't an independent Army be justified the same way? The issue is not so much whether we "call something the Air Force as a statutory matter," but whether the military service in question is primarily focused on land (the Army) or sea (the Navy) power or whether it has a different focus entirely. Otherwise, the power to establish an Army would be redundant, and Congress could easily circumvent the constitutional requirement that Army appropriations cannot be authorized for more than two years at a time simply by calling all federal military forces a part of the Navy. Airpower incorporated into the Army or the Navy as an adjunct to their efforts to wage war on land and sea does not raise the same sorts of constitutional issues.

To briefly reiterate the points made in my earlier post, I believe that airpower incorporated into the command structure of the Army and Navy is clearly constitutional under textualism and originalism. This dispels the nightmare scenario of having our armed forces deprived of air cover altogether, from which the anti-originalist use of the Air Force example derives most of its force. I also believe that even an independent Air Force might be constitutional on the basis of the Necessary and Proper Clause (combined with Congress' Article I powers). However, the originalist/textualist case for an independent Air Force is more difficult to make than Michael's argument suggests.

UPDATE: Michael responds to this post here. His reply is difficult to summarize, but if I understand it correctly, the key claim is that an independent Air Force is permissible under the text of Article I so long as the "powers" it exercises can legitimately be considered either "Army" or "Navy" powers. To the extent that "Army" and "Navy" powers are different from each other, Michael contends that his argument also avoids making the power to raise Armies redundant. There is a subtle shift here, or at least clarification, of Michael's original argument which focused not on "powers" but on equipment. The focus on power is to my mind, more appropriate and keeps Michael from having to argue that using airplanes to engage in maritime warfare (which is indeed a "Navy power") is the same thing as using them for other purposes. But this revised or clarified argument still falls short of justifying an independent Air Force. A modern Air Force does things that don't fit neatly into either the Army or Navy box, such as strategic bombing, which is not directly linked to either ground or air operations. If, on the other hand, Michael wants to define Army and/or Navy powers so broadly that Air Force missions such as strategic bombing can be shoehorned into one of the two categories, then at least one of them would again become redundant. Almost any Army operation could then be described as supporting the Navy or vice versa.

Chief Justice John Roberts Speaking at Northwestern.--

On the 217th anniversary of the first session of the U.S. Supreme Court, Chief Justice Roberts is speaking to the first-year Constitutional Law classes at Northwestern Law School.

In an easygoing talk without notes, Roberts began by making some relatively conventional comments about Marbury and judicial review, observations more in the traditional “heroic” mode that dominated Marbury scholarship until the last few years. After about 10 minutes, he began taking questions.

UPDATE: After 10-15 minutes, Roberts is now taking questions--and he is exceptionally impressive.

Roberts made some interesting comments about having a Constitutional Court, such as many European countries have. He favors a court of law that decides non-Constitutional cases as well, in essence because it leads to more disciplined (not his word) decisionmaking. Further, Roberts said that having Constitutional courts tends to lead to [some] eminent politicians being selected, instead of the sorts of lawyers chosen for our Court. "They function as part of the political process." Yet, as he argues, "The Constitution is law." [It is unclear how strongly as a descriptive matter Roberts believes that the U.S. Supreme Court is a court of law rather than a political court, but certainly he wants it to function as what he calls "a court of law."]

2d UPDATE: Robert then began telling some stories about the institutional weakness of the Court 1790-1800 (including one that I didn’t know about [John] Rutledge attempting suicide).

Then he mentioned the lack of public knowledge about the Court: If you look at polls, you see that “Everybody knows Judge Judy is on the Supreme Court.”

Asked about cameras in oral arguments, he offered these words: “Justice Souter said, ‘Over my dead body,’ and we all like Justice Souter.”

People say that televising proceedings would “educate the public about what the Court does. But our job is not to educate the public; it is to decide cases.”

3rd UPDATE: Asked about the practice of some members of Congress saying that they would leave it to the Court to decide whether their proposed law is unconstitutional. Roberts replied: “That is an abdication of their responsibility and their oath. All three branches have the same responsibility.”

But he noted: “I like to think that the judiciary is the least interested of the three branches at least where the case doesn’t directly involve the judiciary.”

4th UPDATE: Roberts called the Senate's role in questioning nominees during the appointment process "pretty disreputable." [Roberts had previously noted its early use by segregated Senators to slow down the aftermath of Brown v. Board of Educ.] I will post more on the last 15 minutes of questions and answers when I get a chance in a few hours.

5th UPDATE (Thursday evening): Perhaps the most interesting exchange was in response to a question from a student about the Supreme Court’s application of international law. (I do not have good notes on this, so my characterization may not be even a good paraphrase of what Roberts and the student said.)

Roberts, seeming to interpret the question as asking about foreign law, asked the student about a situation where most of the rest of the world treated the interpretation of an issue or norm in one way (that may differ from how it is treated in the U.S.). The student replied that this sounded like customary international law. Roberts said he was talking about the exclusionary rule. Other countries do not apply the exclusionary rule. Should the Court deciding a case involving the exclusionary rule say that we have these (U.S.) precedents, but we should put them aside in favor of international norms that do not follow the exclusionary rule? Roberts suggested that people tend to pick and choose which international norms they want to import into U.S. law.

(After the class, one of my colleagues noted that Justice Scalia had made much the same point in one of his dissents. Also, some countries that don’t have the exclusionary rule allow more routine suits against the police for wrongful searches.)

Those who read some of Chief Justice Roberts’s comments as I (imperfectly) note them here should recognize that I mostly mentioned what struck me as the high spots and that he often explained his positions in somewhat more depth than the brief snippets I reported. Without exception Roberts' responses to questions were extraordinarily lucid and quite fascinating. Although I did not necessarily agree with some of what he had to say, I confess that I was terrifically impressed. Compared to the only other Chief Justice whom I had seen during a law school visit (CJ Burger at Virginia in the 1980s), John Roberts was strikingly different: Roberts is straightforward, decent, modest, articulate, and whip-smart.

Leftist Jews Who Hate Israel:

The New York Times has a story today about the buzz over an AJC study attacking leftist Jews who hate Israel; and I do mean hate, not simply "criticize," as the quotations collected in the piece show quite clearly (The author, however, at times goes overboard, as when he puts someone like Richard Cohen, who has doubts about whether it was wise to establish a Jewish state in hostile territory, in the same camp as the likes of Adam Shapiro of the International Solidarity Movement, and others who welcome terrorist violence against Israelis or call for the (inevitably violent) destruction of Israel).

It so happens that I corresponded with a VC on related issues over the weekend. I noted that one first has to separate sincere Jewish critics of Israel, who criticize Israel harshly and disproportionately because they would like to see Israel improve itself (from their perspective), and because as Jews they feel a special responsibility to see that Israel be a "light to the nations," from those who attack Israel from motives that reflect an underlying hostility to the very concept of a Jewish nation.

Why would a non-religious Jew be hostile to the concept of a Jewish nation-state(beyond, like Cohen (and me on some days) worrying about whether the establishment of Israel in its particular time and place will turn out, in retrospect, to have been a wise decision?), in others word, be anti-Zionist, in disproportion to their expressed hostility to any other form of nationalism?

There are those who have an internationalist, leftist perspective that hates all Western (but, oddly, not non-Western) nationalism. Israel is seen as a uniquely vulnerable example of such nationalism, one that is particularly dangerous because of its alliance with the United States, and one that is in the unique position of potentially being turned over in the near future to a Third World liberation movement. Today Israel, tomorrow all Western nation-states! Jewish leftists in particular volunteer for anti-Israel duty because they know they get they can get extra mileage out of attacking Israel precisely because they rightly believe that being Jewish inoculates them to some extent from criticism (how many times do we have to hear that Norman Finkelstein's mother is a Holocaust survivor, and why is it relevant? Torquemada's mother was a Jew coerced to convert to Catholocism, and that hardly made him a Boy Scout.)

Moreover, there's nothing new about ethnically Jewish leftists being on the forefront of attacks on established Jewish institutions. In Lenin's day in the Soviet Union, it was ethnically Jewish Communists who led the attack on Jewish cultural and religious institutions, which were decimated relative to, say, the Russian Orthodox Church. Beyond that, attacking other Jews has always been a way for Jews who wish to be accepted by groups hostile to Jewish corporate existence to prove their bona fides. A significant percentage of auto de faes in Europe during the Inquisition were instituted by Jewish apostates, the better to dissipate any suspicions of lingering loyalties to the Jewish community. Is it possible these days for a Jew to be accepted into radical left circles without going through the initiation rite of attacking Israel? As long ago as 1986, editors at the Village Voice made it clear that they wouldn't hire a Brandeis acquaintance of mine unless he was willing to denounce Israel (according to his version of events, he then walked out of the interview).

Other Jewish Israel-haters have what I consider a more innocent, but still seriously misguided, perspective: they actually associate their Jewish identity with victimhood, and would much rather Jews continue to be the victims than ever be perpetrators. At least in modern times in the Western world, perpetual victimhood has its advantages and thus attractions--it allows one to claim the moral high ground, and to claim special insight into the woes of the world. (I still remember a bizarre scene at Yale Law School during a "student strike for diversity" in which Yale Law students--overall a rather privileged lot--one by one strode to a speaker's podium to explain their personal victim status, including such gripping tales as being a first generation professional who wasn't sure how to dress for an interview at an elite New York firm. The horror of being on the cusp of a six figure job, but needing to ask the sales clerk at Brooks Brothers for advice!)

The problem such Jews have with Zionism is that having a nation-state for the Jews necessarily implies that the nation-state will sometimes misbehave (as all nation-states do). This in turn implies that to maintain Jewish victimhood, the sense that Jews are to play their assigned role as the Jiminy Cricket speaking to the world's conscience, that Jews, uniquely, may never have a nation-state. Unlike more generic leftist universalistic anti-Western nationalism, this is a specifically Jewish reason to be hostile to Zionism, and one that's quite foreign to my own thinking; given the choice, I'd rather not be a perpetual victim thank you, and I believe that's why the vast majority of other Jews also support Israel. But it's not at all uncommon to hear this particular version of anti-Zionism espoused by Jews.

Put another way, there is a segment of the American Jewish community, if asked to describe one of the great events of post-Holocaust Jewish history, would describe the murder of Andrew Goodman and Michael Schwermer while working for the cause of civil rights in Mississippi. This incident combines Jewish powerlessness and victimhood with a sense of innate Jewish goodness in a way that has a certain masochistic appeal to some Jews; the image of an Israeli soldier, which makes most Jews proud, revolts at least part of this segment of the community. This is actually a peculiar form of Jewish particularism, and one that I found far more chauvinistic in its own way than most versions of Zionism.

Forget Subsidies, Try Prizes:

Historically, governments sought to spur innovation and the development of solutions to important social problems by offering prizes (including large sums of money) to the first person to solve the problem. As noted in this Daniel Drezner post (and in more detail here and here), this is an effectgive way to spur innovation, but not nearly so effective at meeting political demands. Subsidies and grants are far more popular for politicians, but it's not so clear they produce the same social benefits. Among other things, they encourage the politicization of science, require expenditures irrespective of whether a problem is solved, exclude potential sources of innovation, and fail to take advantage of dispersed knowledge. The problem, however, is that government subsidies and grants are easier to administer and in the interest of the political class.

Related Posts (on one page):

  1. Branson's Climate Prize:
  2. Forget Subsidies, Try Prizes:

Wednesday, January 31, 2007

"Exactly the Wrong Way To Talk About Politics and Religion":

David Adesnik (OxBlog) makes an excellent point. (Thanks to InstaPundit for the pointer.)

Supreme Court Litigation Clinics: The news that Harvard is joining the list of schools with Supreme Court litigation clinics makes me wonder -- how many years will it be before the number of law school Supreme Court clinics exceeds the number of merits cases on the Supreme Court's docket? (Hat tip: The Bashmanator)
Get a First Life:

A funny Web site ("First Life is a 3D analog world where server lag does not exist" / "Fornicate using your actual genitals"), with an amusing response purporting to be from the Second Life people in the "Comments or cease and desist letters?" page.

Thanks to John Burgess (Crossroads Arabia) for the pointer.

A Chewbacca Defense for Star Wars:

I don't think it's possible to justify all the plot holes and internal contradictions in the six Star Wars movies, particularly those in the, ahem, less-than-stellar, Episodes I-III. However, this is an interesting effort to address at least some of them (hat tip:co-blogger Tyler Cowen). In particular, the author explains how it is that Chewbacca is a high-ranking Wookie leader in Episode III, yet has fallen to the level of a sidekick for an impecunious smuggler by the time of Episode IV.

However, there are just far too many holes in the Stars Wars for even the most impressive Jedi mind tricks to patch up. This analysis ignores two of the biggest ones:

1. At the end of Episode III, Obi-Wan and Yoda try to hide the existence of the twin children from their father, Darth Vader. Unless they have gone over to the Dark Side themselves, why would the supposedly wise Jedi masters even consider "hiding" Luke with his uncle and aunt (Vader's only living relatives, so far as he knows) on Tatooine (Vader's home planet) and having the child live under his own name? It's as if Osama Bin Laden tried to hide from Bush by renting an apartment under his own name next door to the Bush ranch in Crawford, Texas. Hiding Leia with Senator Bail Organa on Alderaan seems smart by comparison, but it's pretty boneheaded as well. Organa is a prominent political opponent of the Emperor's and he's going to be under constant surveillance by the Empire even if they don't suspect that he's hiding one of Vader's children. Given that the Sith can detect even latent force abilities at a great distance, Leia should have been found very quickly indeed (though not as fast as Luke!).

2. Given the above, it's totally inexplicable that the Emperor and Vader fail to find the two children in the twenty-plus years that pass between Episode III and Empire Strikes Back. In the original Star Wars, Vader even interrogates and mind-probes Leia, but still fails to figure out that she is his daughter, or even that she has Force abilities (even though in Episode I and Return of the Jedi we learn that any competent Jedi or Sith can detect such abilities even at a great distance). The Emperor and Vader were either 1) complete morons (In which case, who would want to bring back a Republic so pathetic it could be overthrown by the likes of them?) 2) actively trying to sabotage their own government, or 3) handicapped by an incompetent screenwriter.

Although clever and original, this Chewbacca defense will convince only the weak-minded.

For a more comprehensive takedown of the Stars Wars movies, see these essays by science fiction writer David Brin. To paraphrase Darth Vader, Brin is not as forgiving of Star Wars as I am.

UPDATE: Although I ultimately don't agree with most of their points, I am impressed with the ingenuity of many of the commenters who have made valiant efforts to defend George Lucas' handiwork and reconcile the seeming inconsistencies. I wish that I could get law students to work this hard on analyzing case law:).

In the end, however, the big problem with elaborate, after-the-fact explanations of the plot holes in Star Wars is that there is little if any hint of these explanations in the movies themselves. For example, if it is indeed true that Vader failed to detect Luke over the twenty year period from the Episode III to the Empire Strikes Back because he deliberately broke off all connection with Tatooine and his old family, it would be nice if there was at least a brief line in which Vader or someone else says so. To my mind, a plot hole that can only be explained away through an elaborate post hoc rationalization that is not mentioned in the film itself, is probably a hole that can't be explained at all.

Quebec Town Adopts Declaration of "Norms":

The Canadian Press reports:

A sign at the entrance of this rural Quebec town says: Herouxville welcomes you. Unless, that is, you plan on stoning a woman to death, sending your kids to school with a kirpan or covering your face other than on Halloween.

The town council of Herouxville, a sleepy town dominated by a towering Roman Catholic church, has adopted a declaration of "norms" that it says would-be immigrants should be aware of before they settle in this town.

Among them, it is forbidden to stone women or burn them with acid.

Children cannot carry weapons to school. That includes ceremonial religious daggers like kirpans even though the Supreme Court of Canada has ruled that Sikhs can carry kirpans in schools.

However, children can swim in a pool with other children — boys and girls alike because they can't be segregated.

And for the record, female police officers in Herouxville, 165 kilometres northwest of Montreal, can arrest male suspects. Also part of the declaration is to allow women to drive, dance and make decisions on their own....

The small town, near Shawinigan in central Quebec, has only one immigrant family and wants more.

But [town councillor Andre] Drouin said the declaration, which was posted on the town's website and sent to the provincial and federal immigration ministers, is the result of a number of recent culture clashes across the country....

B'nai Brith Quebec deemed the declaration "an anti-immigrant, anti-ethnic backlash" and Salam Elmenyawi, head of the Muslim Council of Montreal, called it insulting.

"Why are they picking on Islam and Muslims?" he asked, adding he wonders why the Herouxville council hasn't weighed in on society's ills in general.

The declaration is full of stereotypes, he said, adding that his wife can drive a car and Muslim women do have rights....

Herouxville practices the quaint cultural custom of using French on its Web site, so I couldn't find the declaration, but if anyone can point me to it — or to an English translation — I'd be much obliged. Thanks to reader Christopher Ferguson for a pointer to the English-language version of the Herouxville declaration.

Thanks to my student Maureen Carroll for the pointer.

Interesting Controversy at University of Michigan,

described here ("A fury over 'ex-terrorists'") and here ("Event billed as speech by ex-terrorists draws ire"). I pass this along just because it seemed like an interesting story, though one that hasn't yet drawn a great deal of attention. It might be helpful to read both stories before commenting.

What a Cool Product!

See here. Why didn't someone get one of these for us?

Thanks to Haym Hirsh for the pointer.

UPDATE: Oh, and in case the baby gets bored, I'd like to get him this other cool product.

Thoughts on the Boyd Case: I wanted to offer a few thoughts in response to Doug Berman's post (mentioned by Jonathan below) about Judge Posner's sentencing opinion in United States v. Boyd.

  One way to read Doug's post is that he finds it objectionable — or more specifically, contrary to "numerous Bill of Rights provisions and the Framers' structural vision of liberty and limited federal government" — that a federal district court determined beyond a reasonable doubt whether the defendant violated state law. He writes:
  Notably, there is no evidence that Indiana prosecutors ever thought to indict or try Boyd for the Indiana state crime of criminal recklessness. Nevertheless, despite an obviously sketchy factual record, the federal district judge essentially tried and sentenced Boyd to additional time for the Indiana state crime of criminal recklessness.
  On appeal, no one (including the Seventh Circuit judges) seem to question whether it was sensible for a federal district judge to try and sentence a federal defendant for a disputed state offense.
  On this issue, my sense is that Doug's concerns are misplaced. Federal law occasionally requires federal district courts to try defendants for violations of state criminal law. Consider prosecutions brought under the Assimilated Crimes Act, 18 U.S.C. 13. The Assimilated Crimes Act was first enacted in 1825, and it federalizes state criminal laws on federal property in some circumstances. Prosecutions brought under the ACA require federal courts to hold trials on whether defendants violated state criminal laws — even state criminal laws enacted after the passage of the ACA. The Supreme Court upheld the ACA as constitutional in United States v. Sharpnack, 355 U.S. 286 (1958), and under Sharpnack Congress seems to have pretty wide authority to adopt state law as a controlling federal standard.

  So to the extent Doug suggests that having federal judges try defendants for violations of state law (with federal consequences) is unconstitutional, I don't think that's right under Sharpnack.

  Doug also notes that that Indiana prosecutors did not indict or try Boyd for this state offense. This is true, but I'm not sure why it is relevant. Blakely requires proof beyond a reasonable doubt of each element of the statutory offense, and the statutory offense does not make a state conviction an element. Perhaps I'm missing something, but it seems pretty sensible to me for a trial judge to try to square Congress's language with the Supreme Court's Blakely decision by determining beyond a reasonable doubt whether in fact Boyd committed the state offense. So if the district court held a mini-trial on the sentencing element, then that seems unobjectionable to me (although I'm not sure off the top of my head if that would have to be a bench trial or a jury trial — did the plea waive the jury trial right?).

  On the other hand, I agree with Doug's criticisms to the extent he is criticizing Judge Posner for being unclear. At least after a quick read, I find it hard to figure out what Posner is doing. Is he conducting a sufficiency review to determine if there was sufficient evidence to support the trial judge's finding of proof beyond a reasonable doubt? That would make sense, and there is language in the opinion to support that. On the other hand, other parts of Posner's opinion suggests that he is conducting some sort of free-floating de novo review. For example, presumably you don't need a satellite photo to conduct a sufficiency review (although this may have been just an extraneous comment as to what kind of evidence would have been helpful at trial). And what does it mean to be "reasonably confident" about the result? What standard is that? I agree with Doug that this part of the opinion is rather weird.

  UPDATE: Doug Berman clarifies his concerns and raises some good points in a new post. Definitely worth checking out.

Related Posts (on one page):

  1. Thoughts on the Boyd Case:
  2. Boyd v. Blakely?
The Perennial Publius:

Professor Matthew Franck, Chair of the Political Science Department at Radford University, has inaugurated a new feature at NRO's Bench Memos (a blog to which I also contribute): The Perennial Publius. Inspired by a class he is teaching on the The Federalist Papers, Franck has inaugurated a series of posts on the wit and wisdom contained therein. As he explains:

This semester I’m teaching a senior-level class in which my students and I are marching through the whole of The Federalist, the series of 85 essays written in 1787-88 to urge the ratification of the Constitution. Using the whole series in a class is a rare thing, in most universities, and I’ve never done it myself as a teacher. But the essays of Publius (the nom de plume of Alexander Hamilton, James Madison, and John Jay) are such a rich trove of insights into the principles of the Constitution, and of the thinking that undergirds it, that returning to them again and again is always a rewarding experience. . . .

Plus, as some scholar once demonstrated years ago (and it was no surprise), the Federalist essays are the most frequently cited source in Supreme Court opinions, after the Court’s own precedents themselves. How much authority to grant the hurried productions of Publius is an interesting question. But the prose is so sparkling, and the work looms so large in American consciousness as our most distinctive contribution to political science, that the temptation is always there in judicial chambers to haul out the Federalist for support. And more often than not, you’ll be on firm ground.

Franck has contributed eight items to the series thus far, including today's item on Hamilton's suspicion of standing armies. He is a provocative scholar who doesn't mince words, so this series is definitely worth a look. The series, and Franck's other posts on Bench Memos, are indexed here.

Freedom of Speech ≠ Freedom from Criticism:

A commenter on the Chris Hedges Calls for Suppression of "Radical Christian Right" Speech thread writes:

A little time spent at the local Big Box Bookstore showed me that Hedges is part of a larger group of authors. Here are some more titles that one can find simply by walking around in Barnes/Hastings/Borders:

"Religion gone bad: the hidden dangers of the Christian right"

"Piety & politics: the right-wing assault on religious freedom"

"Atheist universe: the thinking person's answer to Christian fundamentalism"

"Thy kingdom come: how the religious right distorts the faith and threatens America"

It appears that demonizing Christians is a well-funded activity, and that Hedges is hardly alone in his efforts. If there were a bunch of books in Big Box stores proclaiming the dangers of Judaism, Islam, or atheism, I'm sure it would be viewed with alarum by the self-appointed defenders of diversity.

But demonization of Christians is no problem, no big deal, no sweat. How very interesting.

Criticism does not equal censorship, and not all criticism is "demonizing." I haven't read the books, but given that the commenter is happy just to note the titles, let me respond to the titles: It's not only the exercise of free speech rights to complain about the perceived hidden dangers of the Christian right, but also — if done right — perfectly proper. Surely there are many things on which reasonable people can disagree with the Christian right, and even see the Christian right as dangerous. Likewise, they can conclude that it "threatens America," which is to say threatens certain values that the writer thinks (controversially, but not implausibly) are central to America as the writer conceives it, or that it jeopardizes "religious freedom." Again, perhaps some particular arguments to this effect may be unsound, unduly harsh, or even "demonizing." But nothing in the titles demonstrates this.

Moreover, two of the titles represent commonplace (albeit blunt) religious disagreement. Of course some people think "the religious right distorts the faith," just as some people think that liberation theology or for that matter Catholicism distorts true Christianity. That has been the substance of legitimate theological debate for centuries. Some of that has indeed reached the level of demonizing, but much is legitimate religious debate that is essential if one believes that the true meaning of the faith is an important theological question.

Likewise, of course atheists are entitled to claim that their position is "the thinking person's answer to Christian fundamentalism," just like much Christian argument claims to be "the thinking person's answer to atheism" or to non-Christian religion. Atheists believe Christianity is just plain wrong, and many see Christian fundamentalism is especially wrong, since fundamentalism tends to make more and more literal claims about supernatural events (something that atheists find particularly implausible) than does less fundamentalist belief. It's perfectly proper for them to argue that thinking people should reject this view. It may be a bit rude, if you interpret the title [plausibly] as suggesting that Christian fundamentalists are less proficient or less committed critical thinkers, but again it's far from Hedges' calls for censorships, or even from "demonizing."

Freedom of speech is not the same as freedom from criticism; unfortunately, both many on the left and many of the right often forget that.

New York Court of Appeals on the Frye General Acceptance Test:

I missed this when it came out in October, but the New York Court of Appeals issued an important ruling on the Frye rule for the admissibility of expert testimony. The court's ruling establishes (1) that Frye applies in New York in civil as well as criminal cases; and (2) even in cases where the evidence at issue is not novel, and thus (says the court) there is not technically a Frye issue, to lay a proper foundation for the admissibility the testimony in question must still meet a general acceptance test. Moreover, while the court thought the Appellate Division's opinion below was too strict, in contrast to several recent opinions from other Frye jurisdictions and, for that matter, lower New York courts, the court ultimately upheld the exclusion of plaintiff's causation evidence as too speculative. All in all, a significant loss for those who have tried to evade the strict scrutiny trend under Federal Rule of Evidence 702 and the Daubert trilogy by fleeing to Frye jurisdictions.

Related Posts (on one page):

  1. Have Plaintiffs' Lawyers Been Avoiding Federal Court Because of Daubert/Amended Rule 702?:
  2. New York Court of Appeals on the Frye General Acceptance Test:
Boyd v. Blakely?

Over at the Sentencing Law & Policy blog — an absolute must-read blog for those interested in sentencing issues — Doug Berman takes Judge Richard Posner to task for pontificating on what would be sufficient to establish that a criminal defendant engaged in an uncharged felony under state law so that his sentence could be enhanced under federal law. In United States v. Boyd, Judge Posner wrote the panel opinion upholding the trial court's decision to enhance Artemus Boyd's sentence for being a felon in possession of a gun based on the trial court's conclusion that Boyd "had used the gun to commit another felony," namely criminal recklessness, a felony under Indiana state law. The twist, however, is that Boyd was never charged (let alone convicted) of committing the state felony, so Judge Posner devotes the lion's share of his opinion to explaining why Boyd's comment was likely to have been sufficiently reckless to justify the sentencing enhancement.

we are reasonably confident that the Indiana courts would hold that firing multiple shots from a high-powered gun in downtown Indianapolis for no better reason than an excess of animal spirits creates a substantial risk of bodily injury within the meaning of the Indiana statute.

Berman finds this quite unseemly, and contrary to the principles underlying the Supreme Court's string of opinions on sentencing guidelines (i.e. Apprendi, Blakely, etc.).

On appeal, no one (including the Seventh Circuit judges) seem to question whether it was sensible for a federal district judge to try and sentence a federal defendant for a disputed state offense. Instead, Judge Posner essentially conducts his own philosopher-king bench trial, complete with his own evidence ranging from "a satellite photo (available free of charge from Google)," a website called "The Arms Site" (that's where the picture above is from), and a dated criminology article (entitled "Stray Bullets and 'Mushrooms': Random Shootings of Bystanders in Four Cities, 1977-1988"). . . .

Perhaps someone can get me a new copy of the Constitution, but I missed the section that authorizes a federal circuit court to assemble evidence to convict a federal defendant of a state crime as long as that circuit court is "reasonably confident" a state court would find that disputed conduct "within the meaning of [a state criminal] statute."

Berman's challenge to his readers is straightforward: Explain how Judge Posner's opinion is consistent with the principles of Blakely and the constitutional right to trial by jury.

Related Posts (on one page):

  1. Thoughts on the Boyd Case:
  2. Boyd v. Blakely?

Tuesday, January 30, 2007

Tonight's Words of Wisdom:

"It's fun to have fun, but you have to know how." Should be this blog's new motto, I figure ....

The Mormons and Constitutional Federalism:

Over at Prawfsblawg, Paul Horwitz has an interesting post on the usefulness of the 19th century Mormon cases for teaching law and religion. In Reynolds v. United States 98 U.S. 145 (1879), the Supreme Court upheld the constitutionality of Congress' statute forcing Utah to outlaw polygamy (a practice then sanctioned by the Mormon faith) ; later cases dealt with other legal sanctions imposed on the Mormon church as a result of its support for polygamy.

In my view, the Mormon cases also have an underappreciated usefulness for teaching the history of American constitutional federalism. For example, under the 1894 Utah Enabling Act, Utah was forced to ban polygamy "forever" as a condition of getting statehood and was thereby denied the power to control its marriage law, a field that was then generally held to be outside the authority of the federal government and subject to exclusive state control.

Americans tend to think of federalism as antithetical to minority rights because of the history of local minorities (such as African-Americans in the Jim Crow South) being oppressed by local majorities. Utah, however, represents an important case where a minority at the national level achieved majority status within one would-be state (Utah was still a territory when the Mormons first settled there) and tried to protect its values by controlling that state government. Their experiment was, of course, cut short by federal intervention that undercut the state's autonomy.

Although relatively uncommon in American history, situations where minorities at the national level are majorities within a particular state or province are frequent in other federal systems. To take just one case, Iraqi Kurds are a historically oppressed minority in the nation as a whole, but a majority in the three northern provinces. Not surprisingly, they favor a high degree of decentralized federalism in the new Iraq. The history of the Mormons in Utah is the best example of a similar phenomenon in American history.

The Mormon migration to Utah in order to establish a state under their own control is also an important example of voting with your feet, a crucial advantage of federalism that I have often emphasized (e.g. here and here). There is, however, an interesting twist to the Mormon case, in that they were not trying to migrate to a preexisting jurisdiction that was relatively more tolerant of their religious practices, but seeking to create a whole new jurisdiction where they would be in the majority.

Speech Restrictions from the Right:

Occasionally, I see some commenters argue that attempts to restrict speech are chiefly a trait of the left (even defined broadly not just to include the hard Communist-or-near left) rather than of the right. Here's an example, from a recent thread:

I don’t think that’s true that the right is “just as guilty” as the left when it comes to censorship. Most of the examples of government attempts to suppress political speech seem to have come from the political Left. Wilson and Roosevelt were particularly notorious for it during WWI and II. We had Al and Tipper Gore’s attacks on the music industry during my childhood but I honestly cannot recall any similar or comparable attempts at censorship by the political right.

This seems to me to be a mistake. My sense is that at least from the 1950s to somewhere around the 1980s, the left has generally (not entirely, but generally) been more speech-protective than the right; since the 1980s, matters seem to have roughly equalized (recognizing that it's impossible to measure things precisely), but there still remain plenty of calls for restrictions from the right.

Just to give some examples, the defenders of Communists' and near-Communists' speech in the 1950s were, to my knowledge, mostly associated with the left (and not just the Communist left); the restricters were both on the left and the right, but the defenders were mostly on the left.

The defenders of protection for sexually related speech, and not just pornography but serious literature and even political advocacy, have been mostly on the left, and critics of such protection have been mostly on the right. (See, e.g., Sex and God in American Politics: What Conservatives Really Think, Pol'y Rev., Summer 1984, at 12, 24 ("I don’t think the advocacy of homosexuality really falls under the First Amendment any more than the advocacy or publication of pornography does." (quoting Irving Kristol)). The advent of the left-wing feminist calls for restricting sexually explicit speech in the 1980s has evened the matter somewhat, but I'd say that on balance the right to engage in sexually themed speech still gets more support from the left than from the right.

From the 1980s until now, campus restrictions on allegedly bigoted speech have been largely the province of the left (though many on the left have opposed them). Conservatives have generally insisted that even epithets ought to remain protected, at least outside the rubric of fighting words. But in the 1970s, many conservatives took the view that profanities and epithets should not be protected, including in university newspapers, see, e.g., Papish v. Board of Curators of University of Missouri, 410 U.S. 667 (1973). My sense, though I am not an expert on this, is that in the 1960s and the 1970s many conservatives were willing to see a fairly broad range of restrictions on what was seen as offensive or radical campus speech, while liberals generally supported protecting it.

Likewise, the movement to ban flagburning has been mostly a conservative movement. The (fortunately quite rare) calls to restrict anti-war speech have been chiefly on the conservative side. Calls to restrict violent rap lyrics that seem to urge attacks on police officers have often (my sense, generally) come from the right, see, e.g., Chuck Philips, North Steamed at Ice T; He Wants Time Warner to Face Sedition Charges Over Rap Song, L.A., July 2, 1992 (describing Lt. Col. Oliver North's suggestions to this effect), though calls to restrict violent music and videogames more broadly seem to have been pretty evenly balanced.

There are some areas, of course, where calls for speech restrictions come mostly from the left and calls for speech protection mostly from the right. The resistance on campaign finance speech restrictions has mostly -- though not entirely -- come from the right. Similarly, at least on the Court, as to the resistance to speech restrictions on judicial candidates, and the resistance to the Fairness Doctrine (which restricts some speech to advance other speech, and at least sometimes is urged by some liberals precisely because they dislike the current tenor of broadcast speech). The resistance to broad and vague "hostile environment" speech restrictions has generally come from the right, though some on the left have joined it, and many on the right have sat it out. And restrictions on anti-abortion speech, including restrictions that go beyond simply banning the blocking of abortion clinics, have generally come from the left.

Nonetheless, the big picture is both the left and the right calling for some speech restrictions, and opposing other speech restrictions. One may certainly support the right's preferred speech restrictions and oppose the left's, support the left's and oppose the right's, support both, support neither, or support some from each side (most of us would endorse some speech restrictions, even as we would oppose others). But there's little basis, I think, to claim that "Most of the examples of government attempts to suppress political speech seem to have come from the political Left."

Link to the correct version of my paper on when international law should be allowed to override domestic law:

After some technical difficulties, SSRN has finally been able to post the updated version of my forthcoming Stanford Law Review article "Should International Law be Part of Our Law?"(coauthored with John McGinnis). It is available here. I mention this only because, in recent days, Instapundit and the Legal Theory Blog have linked to an outdated version of the paper that SSRN posted as a result of a technical problem, and I fear that many readers have downloaded the wrong version as a result. Sorry for any confusion!

New Ninth Circuit Decision in Ziegler: I'm pleased to report that today the Ninth Circuit changed course in the Ziegler case that I've mentioned here a few times. This is the case holding that a private sector employee lacked a reasonable expectation of privacy in his workplace computer because the employer had access rights to the machine. Today the original panel granted the petition for rehearing and substituted a new opinion for the earlier one. The new opinion is available here.

  The new opinion gets it right: it concludes that the employee had a reasonable expectation of privacy in the machine, but that the employer had the right to consent to the government's search under third-party consent principles. The end result is the same — the evidence is admissible — but the reasoning is very different. Here's the new section holding that the employee had a reasonable expectation of privacy in his machine:
  The seminal case addressing the reasonable expectations of private employees in the workplace is Mancusi v. DeForte, 392 U.S. 364 (1968). In Mancusi, the Supreme Court addressed whether a union employee had a legitimate expectation of privacy, and therefore Fourth Amendment standing, in the contents of records that he stored in an office that he shared with several other union officials. The Court held that DeForte had standing to object to the search and that the search was unreasonable, noting that it was clear that "if DeForte had occupied a 'private' office in the union headquarters, and union records had been seized from a desk or a filing cabinet in that office, he would have had standing." Id. at 369. That was so because he could expect that he would not be disturbed except by business or personal invitees and that the records would not be taken except with the permission of his supervisors. Id. The Court thought the fact that the office was shared with a few other individuals to be of no constitutional distinction.
  Mancusi compels us to recognize that in the private employer context, employees retain at least some expectation of privacy in their offices. Id. See also Ortega v. O’Connor, 480 U.S. 709, 716 (1987) (noting that in Mancusi "this Court . . . recognized that employees may have a reasonable expectation of privacy against intrusions by police."); id. at 730 (Scalia, J., concurring) ("In Mancusi v. DeForte, we held that a union employee had Fourth Amendment rights with regard to an office at union headquarters that he shared with two other employees, even though we acknowledged that those other employees, their personal or business guests, and (implicitly) 'union higher-ups' could enter the office.") (internal citations omitted).
  I'm not exactly sure what it means to possess "some" expectation of privacy, as either a reasonable expectation of privacy exists or it doesn't. But the opinion later makes clear that Ziegler did in fact have a reasonable expectation of privacy in his office machine. That's the key holding, and I think it's clearly right (and important, too, for the reasons mentioned in my earlier blogging).

  Thanks to Howard for the link.
More Marvelously Surreal Material from the North Korean News Agency,

found by Jules Crittenden. His opening example, though there's more:

Pyongyang, January 29 (KCNA) -- Kim Jong Il’s famous work “Songun-Based Revolutionary Line Is a Great Revolutionary Line of Our Era and an Ever-Victorious Banner of Our Revolution” was reportedly carried in the Internet homepage of the National Alliance for Democracy and Reunification of south Korea on Jan. 18. After its publication in the Internet homepage, the work is said to have been widely disseminated amid the keen interest of Netizens.

And Crittenden's commentary: "When the public face of Kim Jong Il’s regime is this ridiculous, you might forget he is enslaving and starving millions of people, and murdering untold numbers, next door to wealth and freedom. But as you slog through this forced joyousness and other torturous convolutions, it becomes apparent how bleak even a life of privilege must be in a cesspit like that. In a world full of obscenities, this one may take first prize."

Wikipedia Brown:

A funny variation on Encyclopedia Brown.

Reactions to My Chris Hedges Item on The Huffington Post:

I posted my item on Chris Hedges' call to suppress speech from "the Radical Christian Right" on The Huffington Post, where I have (rarely used) posting privileges. The resulting comments were an interesting mix.

Quite a few commenters agreed that Hedges' call was unsound. Some suggested that I misinterpreted Hedges' position, though I'm pretty sure I didn't. Some, as is common (both from people on the Left and on the Right) just assumed that I only condemn left-wing calls for speech suppression ("Where were you when your fellow travellers were doing exactly what you decry here?"); still, that's just ignorance about me and hostility towards the person they assume me to be, not necessarily endorsement of Hedges' suggestions.

But a bunch seemed to endorse, expressly or implicitly, Hedges' proposal. Naturally, commenters on a blog aren't representative even of the readers of that blog, much less of any broader movement. Yet it seems pretty clear that there are people out there who share Hedges' view.

My favorite item, though, was this:

jesus, Volokh, RedState's down the hall and to the right. whyncha go peddle it there?

Maybe I'm misunderstanding the comment, but it seems to me that it's worse than agreement with the call for speech suppression: It suggests that calls for speech suppression coming from the Left are none of the Left's concern. People who complain about such calls shouldn't "peddle" them on the Huffington Post, you know; right-wing sites are the only fitting place for them.

In any case, have a read; Hedges is not alone, though I doubt that he represents a vast movement.

Bush Warns Iran:

That's the title of a forthcoming Radio Free Europe/Radio Liberty, Russian language station short news segment. The segment includes some commentary from me. You can read a transcript here, or listen to the MP3 here.

For those of you who don't speak Russian, here's a machine-based Russian to English translation of my quote. The quote obviously is not the exact words that I spoke in English, but perhaps the reverse translated version of the quote conveys a little bit of the Russian style:

Hardly the discussion deals with the direct conflict with Iran. In any case, not now. But the hardness the new deal [the surge] is obvious. The USA for long believed in the possibility to stop the aggressiveness of the totalitarian government of Iran by peaceful and diplomatic means. Unfortunately, the majority in the Congress is disposed now with respect to the Iranian regime, just as the parliaments of England and France were disposed in 1937 and 1938 with respect to Hitlerite Germany, naively thinking that if we give to them some of that which they demand, they will leave us at rest. But the White House finally understood that to win in Iraq is possible only by having intercepted the propagation of Iranian influence and having physically broken the pro-Iranian combat groups which act in Iraq.


Monday, January 29, 2007

The Duke Women's Lacrosse Team Should Be Honored.--

More on the Duke case: I was reading a long, stirring letter/post from a Duke alum, who identifies herself as Meadow (posted on Liestoppers):

Last spring, one of the only groups that stood up against a tirade of prejudices were the members of the Duke Women’s Lacrosse team, led by their courageous coach, Kerstin Kimel. While the rest of the world was condemning the Men’s Lacrosse team as guilty, Coach Kimel was actively supporting the students and her players' choice to show their support by wearing wristbands with the numbers of the indicted players. Rather than highlight the fortitude and commitment to the truth of these accomplished female athletes, the media rained criticism down in the most sexist and dismissive ways. Some examples:

Duke Free-falling from Grace (Stephen A. Smith)

“I never believed the day would come when we’d see an educational institution so flagrantly stupid, so selfish, so conspicuously aloof. Evidently it’s Duke, supposedly one of America’s more honorable institutions of higher learning.”

Duke Women Not Innocent (Kevin Sweeney)

“And what lesson has the women's team taken? They apparently have learned that pack behavior is a good thing. They are speaking as one, and are proclaiming the entire men's team, as one, to be innocent. Team unity trumps all.”

“By making such a public stand of unity before the facts come out, by saying so clearly that the accused is a liar, the women of Duke's lacrosse team won't make it any easier for other women to step forward. I can only hope that none of them will ever be in such a position — where they may be a victim, want to step forward, but sense ultimately that it just isn't worth it.”

Duke Women Show Lack of Sensitivity (Jeff Schultz, quoting Katherine Redmond)

“These are stupid, spoiled little girls. It smacks of high school. Maybe one day when they’ll read about one of their friends who was raped. Then they’ll rethink this.” said Kathy Redmond (founder of the National Coalition Against Violent Athletes). Redmond goes on to say, “More than any other sport, there’s this mentality with women lacrosse players of, ‘We’re as tough as the men.’ It’s almost like a competition. It’s like they try to carry themselves with a masculine edge. They want to be looked at as being just as good as the men, yet they still look to the men for validation."

Coda: Bodies of Evidence (Karla Holloway)

“They were athletes themselves, as well as "true fans." In a moment that called on more action than I had will for, I wanted to write to them to ask if they might, instead, consider writing the word "justice" onto their gear, a word whose connotations run deeper than the team-inspired and morally slender protestations of loyalty that brought the ethic from the field of play onto the field of legal and cultural and gendered battle as well.”

Amazingly, in face of all of this unsupportable ridicule, Coach Kimel told reporters after the women lost in the semi-finals:

“Any attention we got for the wristbands paled in comparison to having the media staked outside of our practice and the girls' dorms. Of watching your friends be arrested; watching your fellow students not support fellow students; watching professors not support students."

Did Duke professors choose to support these female students dismissed as “little girls” in the press? Was calling collegiate women “little girls” a social disaster? Apparently not. Has anyone come forward now that the women’s lacrosse team was obviously correct to acknowledge their heroic courage and apologize for the response they received?

The women of the Duke lacrosse team knew that their friends on the men’s team were innocent because they had talked with them, they knew that the rape story was implausible, one of the men had an airtight alibi, and, of course, the Duke suspects had already been exonerated by the DNA evidence.

Meadow writes about all the people who need to apologize, but I was thinking that some of the courageous people who spoke up for the truth relatively early on should be recognized and honored for their efforts. Every year Duke gives many graduating students prizes for contributions to the community. Every graduating member of the Duke women's lacrosse team (as well as perhaps the chief reporters and editors of the Chronicle) should be given the William J. Griffith University Service Award:

The William J. Griffith University Service Award will be presented to a select number of graduating students whose contributions to the Duke and larger communities have significantly impacted University life. Students whose efforts demonstrate an understanding of the responsibilities of effective university, communal and global citizenship are eligible for this award.

To have stood up for justice and the best principles of the Duke community in the face of opposition from some members of the faculty, the administration, and the press was an act of bravery that should be rewarded. When one compares their behavior to the usual activities for which such prizes are given to students, these student-athletes engaged in actions that risked real sacrifices of the kinds that one can't list as credentials on applications to graduate or professional schools--risking their own grades, reputations, and honor.

Such obviously deserved prizes would show real contrition on the part of the administration.

There appear to be other awards that these students have also earned. The most ironic award that one of these brave students might be eligible for is the “Karla F.C. Holloway Award for Service to Duke.” The fact that it is given out by the African & African American Studies Department may mean that none of the Duke women’s lacrosse team members would qualify (I have no idea what their majors might be), but one of the team members would certainly fit the description of "Service to Duke."

The administration should also consider faculty service awards to law professor James Coleman, coach Kerstin Kimel, and whoever was behind the Duke economists’ faculty letter. These are people who tried to uphold the highest values of the Duke community in the face of attacks from both within and without.

Related Posts (on one page):

  1. The Duke Women's Lacrosse Team Should Be Honored.--
  2. The Duke Case.--
The Duke Case.--

If bloggers were eligible for Pulitzer Prizes for journalism (they aren't unless their blogs are hosted on newspaper sites), I would nominate Brooklyn Professor KC Johnson, who blogs at Cliopatria and Durham-in-Wonderland, for his coverage of the Duke case. No self-respecting journalist would think of writing anything long and evaluative on the Duke case without first checking the "blog of record," Durham-in-Wonderland.

Those of us who have been following Johnson's staggeringly insightful analyses of developments in the case can't wait for his book on the hoax, which I heard will be co-authored with the brilliant Stuart Taylor.

Although the deadline for postmarked nominations for the Pulitzer's passes in a couple days, I wonder whether anyone has thought of nominating the Duke student newspaper, the Duke Chronicle. Perhaps (if KC Johnson's assessments of the quality of their work is accurate) they might merit a shared Pultizer along with the best of the MSM reporters, Joseph Neff, of the News and Observer. Johnson assesses the Duke Chronicle's work:

Few people any longer are defending the print media’s coverage of the lacrosse case. In a recent edition of CNN’s Realiable Sources, CNN and Washington Post media correspondent Howard Kurtz termed the event an “absolutely awful performance by the media, pumping this into a big national melodrama.” Christine Brennan, a reporter for USA Today, agreed that it was “an awful performance, an embarrassing time, I think, for journalism . . . I think some people lost their minds in this story.”

One general exception to this pattern exists: the college media. The journalists of the Duke Chronicle have provided more, and better, investigating reporting on the case than every reporter in the country combined except for Joe Neff. . . .

Add to these articles the paper’s regular coverage, first-rate commentary from columnists Kristin Butler, David Kleban, and Stephen Miller, and prescient editorials on Nifong and the Group of 88’s statement (among others)—and the Chronicle’s performance over the past ten months has been remarkable.

In fact, compare the Chronicle’s coverage to that of the New York Times on this case, but remove the mastheads from the two papers. I suspect that most people would guess that the Times, with its (until recently) simplistic, one-sided articles and commentary was the college newspaper, and the Chronicle’s work was that of the country's paper of record.

Encouraging Racial and Ethnic Stereotypes to Combat Prejudice:

Somehow, I don't think this is the best way to encourage tolerance and understanding:

To start the role-play, participants were handed coded index cards that indicated their race, ethnicity and sexual orientation. Participants were then told to visit different "life stations" and create their "perfect life."

The stations included booths for housing, banking, church, jail, transportation and employment.

At each stop, Visconti said he was given scripted responses based on his gay Hispanic identity. He was told he could be a landscaper and live in a ghetto apartment or be unemployed and homeless. Meanwhile, students assigned white identities were encouraged to be business executives.

Which raises the obvious questions: do the "diversity trainers" at ASU really believe that Hispanics in the U.S. are relegated, at best, to working as landscapers and living in a ghetto? [And would it be actionable discrimination if a Hispanic student had been tapped to play the Hispanic character, and was told repeatedly during the exercise that this was considered by society to be his natural station in life?]

Done properly, "diversity training" at universities could help contribute to a a vast improvement over the days when "out groups" were relegated to the margins of university life. Done foolishly, it reinforces stereotypes, relies on caricatures of reality, and encourages both a victim mentality among some, and resentment for being tagged as "the enemy" based solely on immutable status among others. Unfortunately, it seems to be done foolishly quite often.

My medieval paper:

My paper I've recently been working on, Property Rights and Contract Form in Medieval Europe, is now up on SSRN. Here's the abstract:

Throughout western Europe, beginning about 1200, leasing of feudal lords' estates became more common relative to direct management. In England, however, direct management increased beginning around the same time and until the fourteenth century, and leasing increased thereafter.

This article models the lord-peasant relationship as a game where contract form is chosen as the result of a tradeoff between incentives for high effort and excessive risk-bearing. Leasing increases as peasants' living standards improve. As for England, the increase in direct management can be explained by property law innovations that increased the security of freehold tenure, and the increase in leasing can be explained not only by improving living standards but also by increasing security of leasehold tenure. This model also explains why small landowners are more likely to manage their land directly, and why large landowners are more likely to lease their small estates than their large ones.

Feel free to download, read, and comment. You can get the article here. Also, the same goes for my other article, Privatization and the Law and Economics of Political Advocacy.

UPDATE: I apologize if the abstract is hard to follow. The 150-word limit (not for SSRN, but for certain journal submissions) is tough. "Direct management" and "leasing" are two alternative ways of managing one's estate. Also, I didn't realize that SSRN requires registration or membership to download papers. Write me an e-mail at volokh at post dot harvard dot edu asking for a copy of the paper, and I'll e-mail it to you.

Scientific Study of Magic Mushrooms and Mystical Experience:

Mark Kleiman -- one of the nation's top drug policy experts, and a colleague of mine here at UCLA -- chimes in on the study I noted last month. Mark's post is much worth reading.

Related Posts (on one page):

  1. Scientific Study of Magic Mushrooms and Mystical Experience:
  2. "Magic Mushrooms" Supposedly Good for You -- No, Seriously:
Justice Ginsburg: "This Term May Be Very Revealing": These days it feels like news when Supreme Court Justices aren't giving on-the-record interviews to reporters. Still, this story from Joan Biskupic has a potentially noteworthy tidbit from Justice Ginsburg. The story is a bit unclear as to the context of Ginsburg's statement, so perhaps it is nothing. But if I'm reading the story correctly, Biskupic asked Justice Ginsburg to explain how Justice O'Connor's departure had changed the Court. Justice Ruth Bader Ginsburg declined to offer any details, but she did respond by saying that "this Term may be very revealing." Any thoughts on what if anything that might mean?
The Nation Institute Fellow Calls for Suppression of Speech by "the Radical Christian Right":

From American Fascists by Chris Hedges, Senior Fellow at The Nation Institute, former reporter for the New York Times and NPR, and (paragraph break added):

This is the awful paradox of tolerance. There arise moments when those who would destroy the tolerance that makes an open society possible should no longer be tolerated. They must be held accountable by institutions that maintain the free exchange of ideas and liberty.

The radical Christian Right must be forced to include other points of view to counter their hate talk in their own broadcasts, watched by tens of millions of Americans. They must be denied the right to demonize whole segments of American society, saying they are manipulated by Satan and worthy only of conversion or eradication. They must be made to treat their opponents with respect and acknowledge the right of a fair hearing even as they exercise their own freedom to disagree with their opponents.

Passivity in the face of the rise of the Christian Right threatens the democratic state. And the movement has targeted the last remaining obstacles to its systems of indoctrination, mounting a fierce campaign to defeat hate-crime legislation, fearing the courts could apply it to them as they spew hate talk over the radio, television and Internet.

And to the extent there's some ambiguity about whether he's calling for legal suppression (which "denied the right" seems to strongly suggest) or just social pressure, he seems to have clarified it in favor of legal suppression (and "hate crimes legislation" in the sense of bans on supposed hate speech) on NPR's Talk of the Nation, Jan. 25, 2007:

JIM (Caller): Yes. Yes, I am. I needed to ask the author -- I mean, I myself am a Christian, but I wouldn't even somewhat agree with Pat Roberts. But the author stating that you need to restrict someone's free speech just for mere words, he's advocating -- I mean, what he's advocating is fascism, is he (unintelligible)? ...

Mr. HEDGES: I think that, you know, in a democratic society, people don't have a right to preach the extermination of others, which has been a part of this movement of - certainly in terms of what should be done with homosexuals. You know, Rushdoony and others have talked about 18 moral crimes for which people should be executed, including apostasy, blasphemy, sodomy, and all - in order for an open society to function, it must function with a mutual respect, with a respect...

JIM: Sure.

Mr. HEDGES: ...for other ways to be and other ways to believe. And I think that the fringes of this movement have denied people that respect, which is why they fight so hard against hate crimes legislation -- such as exist in Canada -- being made law in the United States.

[NEAL] CONAN: But Chris, to be fair, aren't you talking about violating their right to free speech, their right to religion as laid out in the First Amendment?

Mr. HEDGES: Well, I think that when you preach -- or when you call for the physical extermination of other people within the society, you know, you've crossed the bounds of free speech. I mean, we're not going to turn a cable channel over to the Ku Klux Klan. Yet the kinds of things that are allowed to be spewed out over much of Christian radio and television essentially preaches sedition. It preaches civil war. It's not a difference of opinion. With that kind of rhetoric, it becomes a fight for survival....


I spotted a T-shirt at school bearing this inscription, but I don't think it quite means what some people assume it means.

I take it that it's supposed to mean "end hate." But when you use a tag like </i>, you don't mean "end italics" in the sense "abandon italics forever." You mean "I've been using italics for a bit, I'm stopping for a while now, but I'll get back to using it later."

Substitute "hate" for "i," and you'll get my drift. I bet the guy has a <hate> T-shirt in his closet that he was wearing three days before; he's hated all the stuff between then and the </hate> shirt; and he'll be wearing the <hate> shirt next time he's got some hating to do. Plus he certainly wouldn't just wear the </hate> shirt without having worn <hate> before, and on the same page -- that would be syntactically non-compliant.

Doug Lichtman Moving from Chicago to UCLA Law:

I'm thrilled to report that Doug Lichtman, a top law-and-technology scholar -- chiefly specializing in patent law and communications law -- is moving from the University of Chicago Law School to UCLA. We are just delighted to have him.

For a sample of Doug's work, see his latest, Irreparable Benefits, forthcoming this year in the Yale Law Journal; and Telecommunications Law and Policy, a textbook that he has cowritten with our coblogger Stuart Benjamin. He is also expected to be the winner of the coveted UCLA Law School Baby Face Award, though we have it on good authority that he's at least 23, maybe even 24.

Who claims that Textualism and Originalism lead to the Conclusion that the Air Force is Unconstitutional?

Commenters on my recent post about the constitutionality of the Air Force wonder whether there really are any serious constitutional law scholars who use the supposed unconstitutionality of the Air Force as an argument against originalism. A quick (and by no means comprehensive) Westlaw search reveals several examples. The use of the Air Force as an argument against originalism and textualism is not just a straw man. It's actually quite common.

Here's a sampling:

Samuel Issacharoff (Columbia Law School) [Update - Issacharoff has since moved to NYU]:

Take but one small and noncontroversial example of the problems of an aging text. Article I, Section 8 of the Constitution authorizes the Congress to provide and maintain armies and a navy, then quite explicitly defines this power as the ability to regulate "land and naval Forces." Does this make the creation and funding of an air force unconstitutional? No one that I am aware of has taken a fascination with either textualism or originalism so far as to demand the abolition of the air force, or its devolution to the states. And yet there is a difficult balance to be struck between what Hamilton disparagingly called "old parchments, or musty records" and some level of "obduracy" that constrains the exercise of governmental power.

Samuel Issacharoff, The Elusive Search for Constitutional Integrity, 57 Stanford L. Rev. 727, 727 (2004).

Erwin Chemerinsky (Duke Law School), one of the nation's most prominent constitutional law scholars:

...specific intent originalism often leads to absurd conclusions. If the Constitution's meaning is defined only by the drafters' specific views, the Constitution could not govern the modern world. Congress' power under article I to raise an Army and Navy could not include the Air Force because that was not the framers' specific intent.

Chemerinsky, The Vanishing Constitution, 103 Harvard L. Rev. 92, 103 (1989).

Robert N. Clinton (then of the University of Iowa Law School): some instances the interpretive question posed either abviously is not historically resolvable or turns out, upon due investigation, not to be resolvable on the basis of the available historical materials. This statement often is true of issues surrounding the application of asserted normative constitutional principles to new technological innovations or to contexts radically different from situations the framers had in mind. For example, the advent of manned flight legitimately might have raised questions about whether the congressional powers in article I, section 8 '[t]o raise and support Armies' [FN244] and ' t o provide and maintain a Navy' encompassed the creation of an air force without the necessity of constitutional amendment. Putting the originalist interpretive methodology to an ultimate test, the appropriate inquiry in this case should be whether the framers used these terms, as well as the constitutional phrase 'land and naval Forces,' to encompass an air force. If an interpreter is truly and exclusively committed to originalism in constitutional interpretation, as some current commentators purport to be, then this question should only be answered by asking what the framers had in mind at the time they drafted and adopted the above-quoted phrases. Obviously, the delegates to the Philadelphia Convention and the state ratification conventions neither knew of nor considered manned flight! Thus, from an originalist perspective, no direct historical answer is possible to the precise question needing resolution.

Robert N. Clinton, Original Understanding, Legal Realism, and the Interpretation of "This Constitution," 72 Iowa Law Review 1177, 1232 (1987).

And, as one of the commenters to my original post noted, Don Herzog (University of Michigan Law School), made a similar argument here in the course of a blog post criticizing originalism.

Some of these commentators raise the issue only against some forms of originalism (e.g. - Chemerinsky), rather than against all of them. In my view, however, even a fairly narrow form of textualism or originalism could justify the constitutionality of the Air Force. Even under the "specific intent" originalism discussed by Chemerinksy, the Air Force would be constitutional so long as the Framers intended (as they almost surely did) to allow the power to raise and regulate the Army and Navy to encompass weapons technologies unknown in their own day.

Obviously, law professors are far from the only people who bring up this issue. Students, nonacademic commentators, and others also often raise it. Bottom line: it's far from being just a straw man, and is well worth rebutting.

UPDATE: Some of those commenting on this post appear not to have read my original post on the constitutionality of the Air Force. There, I admitted that it's possible that an originalist or textualist interpretation of the Constitution would forbid an independent Air Force. But I also noted that it would surely permit an Air Force that was part of the Army and/or the Navy; as a result, we would not be left with the dangerous outcome of lacking military airpower altogether (the scenario that gives the antitextualist/antioriginalist argument most of its force). Furthermore, I argued that even an independent Air Force might be constitutional under the original/textualist meaning of the Necessary and Proper Clause.

Related Posts (on one page):

  1. Michael Rappaport on the Constitutionality of the Air Force:
  2. Who claims that Textualism and Originalism lead to the Conclusion that the Air Force is Unconstitutional?
  3. The Marines, the Coast Guard, and the Constitution:
  4. The Air Force and the Constitution:

Sunday, January 28, 2007

Duke Provost on the Effect of the Phony Rape Allegations on the Campus Community:

Appropriate sympathy and concern for faculty who have been on the receiving end of an apparent torrent of racist and personally vituperative emails, an uncalled for attack on bloggers (with no acknowledgment of the role they have played in exonerating falsely accused Duke students!), and not a word about the accused students. Gail Heriot reports. As has been apparent from the day the allegations became public, the rights and well-being of Duke's students are apparently among the last things on its administration's mind, which prospective students should certainly take into account [harsher language deleted]. The good news is that the provost is apparently rejecting calls to enact a new speech code at Duke ("Regulatory measures—other than individual, self-regulatory ones—are to be excluded".) Much to my admitted surprise, given Duke's reputation as a hotbed of PC, FIRE gives Duke a positive free speech rating of "green."

Dershowitz's Question to Carter:

Via YouTube, here is a video of Alan Dershowitz at Brandeis asking the question to Jimmy Carter that he would have asked in person, had Carter agreed to a debate, and it's a good one: did Carter, who had become a confidant of Yasser Arafat during the 1990s, advise Arafat to reject Israel's offer at Camp David in 2000, an offer that, although Dershowitz doesn't mention this, Arafat's own Palestinian advisors thought he should accept?

Related Posts (on one page):

  1. Dershowitz's Question to Carter:
  2. Stein on Carter:
The Marines, the Coast Guard, and the Constitution:

The same discussion list that prompted Ilya's post raised the question whether the Coast Guard is constitutional. The answer to that strikes me as simple — the Coast Guard is a naval force, and as such is well within Congress's power to "provide and maintain a Navy." That Congress may choose to break the Navy down into two departments under two different heads is not, I think, a problem: Both of them, put together, would constitute the constitutionally sanctioned Navy.

The tougher conceptual question is whether the Marines can constitutionally be considered part of the constitutionally specified Navy (whether or not they are part of a federal agency labeled the Navy), or must be seen as falling under the constitutional head of "Armies." In either event they'd be constitutional, but if they are treated under the head of "Armies," then they'd have to be funded using appropriations that are for no longer than two years; if they are treated under the head of "Navy," they can be funded under unlimited-length appropriations. Recall that the relevant Congressional powers are:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

To provide and maintain a Navy.

I don't know the answer, but I thought I'd flag the question (recognizing that it is of little practical importance, especially these days).

UPDATE: Some comments point out the long history of the Marines as a branch of the Navy, stemming from the Marines' having historically been sea-borne troops.

Nonetheless, the reason for my question is that today (as I understand it), the Marines often operate well away from all coasts, and are functionally a land fighting force.

My (somewhat vague) recollection is that the constitutional distinction between armies and the navy stems from the fact that Englishmen of the time -- including the American variety -- saw land-based forces as much more dangerous to domestic liberty than sea-based forces, and sea-based forces as much more important to day-to-day national defense. That's also why there was lots of concern about a standing army, but not about a standing navy. Modern Marines are in this respect at least potentially more like "armies" than like the "navy"; that's why the question I pose is theoretically nontrivial.

The Air Force and the Constitution:

One argument that is often made against originalist and textualist approaches to constitutional interpretation is the claim that they would render the Air Force unconstitutional. Article I, Section 8 of the Constitution seems to give Congress the authority to creat an Army and Navy, but not an Air Force. It grants Congress the following relevant powers:

To raise and support Armies .....;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval Forces;

Citing this text, critics of textualism and originalism claim that the Air Force must be considered unconstitutional under these theories of interpretation. I think there are at least two compelling answers to this claim:

1. At most, the argument suggests that it is unconstitutional to have an independent air force. But air forces that are part of the Army and Navy are surely permissible. That is in fact the arrangement we had during WWII, and could go back to again. The mere fact that planes are a new technology that flies through the air surely does not forbid their use by the military, even under a very narrow view of textualism. Planes that fly through the air are no more constitutionally problematic than bullets that fly through the air, or balloons (whose military use was contemplated even at the time of the Founding).

2. Even an independent air force could potentially be justified by the Necessary and Proper Clause. If, under modern conditions, it really is militarily important to have an independent air service (a point I don't express any opinion on), then the creation of an independent air force is "necessary" to the implementation of Congress' other Article I powers even in the narrow sense of the word, and is also "proper" in the sense that it doesn't seem to infringe on federalism or on other aspects of the constitutional structure.

NOTE: Part of the content of this post is reprinted from the Conlawprof e-mail list, where this issue was recently debated.

Jan Crawford Greenburg on Clarence Thomas:

In this Wall Street Journal column, Jan Crawford Greenburg focuses on one of the findings of her new book on the Supreme Court's recent history: that Clarence Thomas is not just a "lackey" of Antonin Scalia's.

In my view, this is actually one of Greenburg's less original revelations. Other writers, such as Thomas biographer Andrew Peyton Thomas (no relation to the Justice), and law professor Scott Gerber have already documented the considerable divergences between Thomas' approach to constitutional law and Scalia's.

Moreover, the two justices' published opinions reveal important differences even aside from the inside sources tapped by Greenburg, Peyton Thomas, and Gerber. They show that Scalia and Thomas diverged on a number of major constitutional issues including censorship of on-line pornography, federalism (especially in Gonzales v. Raich), the line-item veto, the rights of Guantanamo detainees (in Hamdi v. Rumsfeld), and the Public Use Clause (in Kelo v. City of New London, where both voted the same way, but Thomas wrote a separate dissent advocating a much narrower definition of "public use" than that endorsed in the principal dissent by Justice O'Connor which Scalia signed on to). Of course, Scalia and Thomas agree on many more issues than they disagree on. But that is not surprising for two generally conservative justices. The Court's liberal justices agree among themselves with roughly equal frequency.

The systematic disagreements between Thomas and Scalia, to my mind, stem from three principle sources: Thomas' greater commitment to originalism in cases where the original meaning clashes with precedent or modern policy preferences (evident in the federalism cases, especially Raich); Thomas' libertarian streak, which sometimes clashes with Scalia's social conservatism (evident in the First Amendment cases where they disagree; and perhaps also in Kelo); and Thomas' commitment to a broader view of executive power than Scalia is willing to support (as in the Guantanamo cases, where Thomas is the only justice to fully endorse the Bush Administration's sweeping claims of wartime executive power).

Related Posts (on one page):

  1. No More Supreme Picks for Bush?
  2. Jan Crawford Greenburg on Clarence Thomas:
  3. Jan Crawford Greenburg's Supreme Conflict:
Automobility "Myths":

Ted Balaker and Samuel Staley of the Reason Foundation address "5 Myths About Suburbia and Our Car-Crazed Culture" in today's Washington Post "Outlook" section. The "myths" they seek to qualify or debunk are:

  1. Americans are addicted to driving;

  2. Public transit can reduce traffic congestion;

  3. We can cut air pollution only if we stop driving;

  4. We're paving over America;

  5. We can't deal with global warming unless we stop driving.

Bite Mark Evidence Not Ready for Primetime:

Despite what you might see on C.S.I. (or CSI: Miami or CSI: NY), bite mark evidence is not so reliable, the New York Times reports. I am sure the same can be said of many other types of evidence relied upon in these shows -- even if one were to assume that the average police crime lab has anywhere near the level of sophistication and lack of time and resource constraints as the labs on these shows. (Of course, they can be fun to watch anyway.)

Stein on Carter:

I recently speculated that former President Carter's apparent hostility to the organized Jewish community may date back to the lack of support he received from the Jewish leadership during both of his presidential campaigns. A much more informed commentator, Ken Stein, a former Carter advisor and Carter Center fellow, confirms my speculation in the Middle East Quarterly, and elaborates.

Meanwhile, Cathy Young has some interesting thoughts on Carter's appearance at Brandeis University.

UPDATE: If you are joining this discussion without having read my previous post and the article it links to, please spend a couple of minutes reading these before making comments that makes it obvious that you haven't.

Related Posts (on one page):

  1. Dershowitz's Question to Carter:
  2. Stein on Carter:
Sunday Song Lyric: Jeff Buckley died quite an untimely death. His first studio album, Grace received critical acclaim, and he toured on the material for two years. While working on his second studio album, he drowned in the Wolf River in Tennessee.

One of Buckley's most popular songs is a cover of Leonard Cohen's "Hallelujah" (largely based on John Cale's version of the song recorded for a Cohen tribute album). The song has been covered by quite a few folks, including Rufus Wainwright for the Shrek soundtrack [though, as noted in the comments, the movie itself features Cale's verion], but Jeff Buckley's version is among the best.

Here is the second verse:

Your faith was strong but you needed proof
You saw her bathing on the roof
Her beauty and the moonlight overthrew you
She tied you
To a kitchen chair
She broke your throne, and she cut your hair
And from your lips she drew the Hallelujah
The full lyrics are available here. More Leonard Cohen lyrics and info are available at the Leonard Cohen Files. And YouTube has videos of Jeff Buckley performing the song here and here.
Sunday Song Lyric Explanation and Index

Some VC readers love the Sunday Song Lyric. Others clearly hate it. Still others misunderstand the purpose. I am under no illusion that all (any?) the lyrics I select are classic or profound. That's not the point. I select lyrics because they are topical, in the news, powerful, profound, silly, absurd, enjoyable, or just on my mind for whatever reason, and might be of interest to some readers or provoke an interesting discussion. If you like the SSL, keep reading, and send me suggestions from time to time. If not, ignore these posts and read something else.

Following is an index for SSLs posted since August 20, 2006. the index for earlier SSLs can be found here.


January 21 - Jay-Z, 30 Something/Minority Report/Kingdom Come
January 7 - Evanescence, Lithium


December 24 - John Rox, I Want a Hippopotamus for Christmas
December 17 - No Doubt, Just a Girl
December 3 - White Stripes, I'm Finding It Harder to Be a Gentleman
November 26 - Anita O'Day, And Her Tears Flow Like Wine
November 12 - Live, Dance with You
October 22 - Tex Williams and Merle Travis, Smoke, Smoke, Smoke that Cigarette
October 8 - Hoagy Carmichael and Mitchell Parish, Stardust
October 1 - James van Heusen and Edgar DeLange, Darn that Dream
September 24 - Toby Keith, Weed with Willie
September 17 - Liz Phair, Rock Me
September 10 - Storm Large, Ladylike
September 3 - Lightning Seeds (Ian Broudie), Pure
August 27 - Metallica, The God that Failed
August 20 - Bob Dylan, (Various)