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Saturday, August 25, 2007

Nationwide Decline in Housing Prices Predicted for 2007:

N.Y. Times:

The median price of American homes is expected to fall this year for the first time since federal housing agencies began keeping statistics in 1950.

Economists say the decline, which could be foreshadowed in a widely followed government price index to be released this week, will probably be modest — from 1 percent to 2 percent — but could continue in 2008 and 2009. Rather than being limited to the once-booming Northeast and California, price declines are also occurring in cities like Chicago, Minneapolis and Houston, where the increases of the last decade were modest by comparison.

The reversal is particularly striking because many government officials and housing-industry executives had said that a nationwide decline would never happen, even though prices had fallen in some coastal areas as recently as the early 1990s.

As I noted over a year ago, the idea that a nationwide year over year decline in housing prices was virtually impossible, despite an unprecedented nationwide price bubble--driven by low interest rates and incredibly lax lending standards--was extremely ill-considered (okay, last time I called it "idiotic").

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On the Deductibilityof Mortgage Interest:

Allowing individuals to deduct the interest they pay on their mortgages and home equity loans, no matter what, but not on regular loans, must rank up there with the worst public policy moves of all time. The rationale for allowing tax deductions of mortgage interest payments is to encourage home ownership, which is reasonably thought to have positive societal externalities. By contrast, allowing individuals to deduct their interest payments when they refinance for a much higher sum than their original purchase price, and to deduct home equity loan interest, actually encourages individuals to put their home at risk. As a recent housing shopper with sharp internet research skills, I was amazed at how many individuals who should have had their original mortgage completely paid off instead owed hundreds of thousands of dollars from either refinancing or home equity loans, often almost as much or more than the house was currently worth. Unfortunately, many people bought into the demonstrably false mantra (wasn't anyone paying attention in the late '80s and early '90s?) that "housing prices never go down," and just kept taking more equity out of their home every so often, usually for present consumption, on the theory that they could always refinance again if they ran into trouble repaying their loan.

The newspapers are now full of stories about families that are losing their homes after refinancing or taking out home equity loans. How much dumber can a social policy be than to encourage, through the tax code, individuals to risk title to their house so they can finance SUVs, cruises, and the like? If anything, home equity loans and cash-back refinancing should not be deductible and loans for cars, boats, and vacations should be. At least then, the government would be encouraging individuals to take loans that carry much less risk to themselves and their families; having your SUV repossessed is a far cry from losing your house to foreclosure.

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The Duke Ellington Orchestra Plays "Mood Indigo": A very good performance by a wonderful band, with a particularly strong Jimmy Hamilton Russell Procope clarinet solo. (Incidentally, I would date the performance from 1950-53 based on the introductory card stating that it is a "Snader Telescription.")
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We Might Know Who You Voted For:

Via ACSBlog comes this disturbing story suggesting Ohio's e-voting machines may generate paper time-stamped paper trails that could enable election workers to determine who voted for which candidate.

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Law of the Land:

Albany law professor Patricia Salkin has a new blog on zoning and land-use law, Law of the Land. Check it out.

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Tenth Circuit Denies Rehearing in United States v. Andrus: Back in April, I blogged about the Tenth Circuit's very interesting 2-1 decision in United States v. Andrus, a Fourth Amendment case involving third party consent to search a computer. My post, "Virtual Analogies, Physical Searches, and the Fourth Amendment," is here. Yesterday the Tenth Circuit denied rehearing in the case in an order you can view here. There were several votes for rehearing -- Judges Kelly, Lucero, McConnell and Holmes, in addition to Judge McKay on the original panel -- but not quite enough.

  The two judges in the original panel majority (Murphy and Gorsuch) did add a "note" in the order denying rehearing to clarify that the decision was intended to be very narrow:
  In denying rehearing, however, the panel majority notes that its opinion is limited to the narrow question of the apparent authority of a homeowner to consent to a search of a computer on premises in the specific factual setting presented, including the undisputed fact that the owner had access to the computer, paid for internet access, and had an e-mail address used to register on a website providing access to the files of interest to law enforcement.
  Among the questions not presented in this matter, and for which there is no factual development in the record, are the extent of capability and activation of password protection or user profiles on home computers, the capability of EnCase software to detect the presence of password protection or a user profile, or the degree to which law enforcement confronts password protection or user profiles on home computers.

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Beware of Ellipses:

I recently came across the following quote on the Internet, attributed to Ariel Sharon in 1988: "You don’t simply bundle people onto trucks and drive them away. I prefer to advocate a more positive policy... to create, in effect, a condition that in a positive way will induce people to leave." The quotation is used, consistently, to suggest that Israel is continuing Sharon's policy of encouraging Palestinians to leave the West Bank and Gaza through "positive" action, by which the quoters mean making the Palestinians' life so miserable that they will want to leave.

Courtesy of Lexis-Nexis, I was able to track down the original source, at article in the Times of London in August 1988. Here is what that sources states:

He [Sharon] said: 'You don't simply bundle people on to trucks and drive them away.' Rather, he added, 'I prefer to advocate a positive policy, like enhancing the levels of technical education in the (occupied) areas to create, in effect, a condition that in a positive way will induce people to leave."

Let's first note that there are two potential problems with this quote even in its original context. Sharon was undoubtedly speaking in Hebrew, and this is an English translation, which may or may not capture the nuances of what he said, and for that matter may or may not be accurate. Second, while the author makes it look like this is one continuous quotation, it's not clear that it is; the two sentences may have been spoken well apart, changing the meaning substantially.

But let's take the London Times story at face value. What Sharon is saying is that if we make life better for the Palestinians, by, for example, increasing their levels of technical education, they will be induced to seek better opportunities abroad, and will thus leave voluntarily. "Positive," then, was meant to connote action that helps the Palestinians while at the same time serving Israelis interests by encouraging Palestinians to seek greener pastures elsewhere. One may still very reasonably object to this sentiment, but it's a far cry from the truncated version peddled on anti-Israel websites, which intentionally leaves out Sharon's one example of "positive" action, enhancing technical education, and instead makes it seem like Sharon was promoting far a more ominous form of "positive" action. [Update: Note that in the original Hebrew, this would likely have been clear even without the example, because Sharon assumedly used a Hebrew word meaning something like "favorable" or "beneficial", without the ambiguity of the English word "positive."]

I've learned over the years not to trust quotations that contain an ellipsis. (Some websites get around this skepticism by eliminating the ellipsis, and pretending they are reprinting a direct quote from Sharon.) It's not that such quotations never accurately reflect the original; I use ellipses myself. Rather, it's that such quotations are too easily manipulated, and to the extent they are used to prove something profound, the reader must simply be skeptical until he gets his hands on the entire original quotation. (Some leading scholars have even been known to ellipsis-out a "not", changing the meaning of a quotation to its exact opposite).

The Sharon example provides a perfect case where one should be presumptively skeptical--websites are using a 20 year old quotation, with a controversial figure saying something that seems completely outrageous, to prove a political point.

UPDATE: BTW, some websites even use the Sharon quote to claim that Sharon favored forcible transfer of the Palestinian population, when in context it's clear that he was arguing against such policies.

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Friday, August 24, 2007

Dating Across Ideological Lines:

A great many people believe that it is wrong to date anyone whose political views differ significantly from their own. James Kirchick challenges that view in this article (hat tip Amber Taylor, whose post led me to Kirchick's article by a circuitous route). Kirchick's piece focuses on the reluctance of many gay liberals to date gay conservatives and libertarians like himself. But the underlying issue goes beyond the gay community.

In general, I am sympathetic to Kirchick's view that much of the reluctance to date across ideological lines stems from unjustified intolerance. However, I also have some reservations. First, the reasons for agreement.

I. Why People Overestimate the Undesirability of Cross-Ideological Dating.

I suspect that the most important reason for excessive reluctance to date across ideological lines is overestimation of the extent to which people's political views dictate other aspects of their lives. Ideologies that claim that "the personal is political" (a left-wing slogan that has important analogues in parts of the "family values" right) exacerbate this tendency. In reality, most people's views on public policy have only a modest impact on the way they live their lives. For example, my libertarian views are vastly different from those of most liberal law professors. But the way I live my life when I'm not writing about ideological subjects is very similar to the way most of them live theirs.

An exception are those people who embrace ideologies that really do dictate the conduct of all aspects of their lives, such as members of certain cult groups, or communists in the days when belonging to the Party meant belonging to the sort of all-encompassing group depicted by Richard Wright in "I Tried to be a Communist." However, most people in the US today don't try to inject ideology into every aspect of their lives.

The second-biggest reason is probably the perception that certain political views are not just mistakes, but proof that the person who holds them has corrupt values. As I will argue below, this is occasionally true. But it's not true nearly as often as many believe. Partisans and ideologues routinely overestimate the extent to which political disagreements reflect differences in fundamental values rather than divergent evaluations of the best way to achieve the same or similar values. A very high proportion of the disagreements between conservatives, liberals, and libertarians in the US today fall into the latter category. There are some important exceptions, such as the conflict over abortion. But even these partly turn on divergent views of how to apply shared values to particular cases. For example, both sides in the abortion debate claim to value both life and freedom; they differ, however, over the threshold at which a person acquires a right to life sufficient to override another person's right to bodily autonomy. Moreover, at least some of the issues where adherents of the three major US ideologies really do diverge on basic values have arisen in part because the issues in question are genuinely hard (as the abortion issue surely is). If so, one can embrace the wrong values on that issue without necessarily being a moral cretin in general.

II. Defensible Limits of Political Tolerance in Dating.

At the same time, there are genuine reasons to avoid dating people with certain types of political views. Some views really are an indication of moral depravity. James Kirchick is willing to date liberals. But he probably would not date a racist or a Nazi - and for good reason. Similarly, I would not date a communist or an apologist for that system. Claims that "anyone who believes X must be evil/depraved/immoral" are made far more often than is justified. But that doesn't mean that they are never true.

There is also a more pragmatic case against cross-ideological dating. Even if you don't think that disagreement with your political views is a sign of immorality, strong disagreement can be a point of conflict in a relationship - especially if one or both partners are intolerant or don't like to have their views questioned. The problem is likely to be heightened if both people care intensely about their ideologies or if one of them is a committed activist.

Whether or not such pragmatic considerations are weighty enough to prevent a relationship will vary from case to case. However, it is important to recognize that they should in fact be judged on a case by case basis. If the potential date's views are not intrinsically evil (a category that should be defined narrowly), the mere fact of political disagreement should usually not be viewed as a categorical bar to dating, but merely as one factor to be weighed against others. For many people who are strongly interested in politics, discussing issues with someone who doesn't agree is actually sometimes more interesting and stimulating than just getting an echo chamber of your own views.

UPDATE: Commenters and others will inevitably wonder whether my views on this issue are the result of painful personal experiences of the kind described in Kirchick's article. I'm not going to discuss my personal life in detail here (very disappointing, I know...). But I will say that the answer to this question is "no." I have never been rejected by anyone I was seriously interested in because of ideological disagreement; nor have I have ever had a relationship that failed for that reason (though I have had cross-ideological relationships that fell apart for unrelated reasons).

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Atlanta Councilmembers Propose Ban on Baggy Pants:

Councilmembers C.T. Martin, Ceasar C. Mitchell, H. Lamar Willis, and Ivory L. Young, Jr. are proposing a citywide ban on "[t]he indecent exposure of [one's] undergarments." The goal: stamping out "the dress fad of wearing low hanging/saggy pants which exposes ones underwear."

Such ordinances are bad for many reasons, but consider just one set, which I blogged out when a similar law was proposed in Dallas: How does one distinguish impermissible dress from the permissible? Much underwear, after all, is not easily distinguishable from many swimsuits.

Would the rule be that it's OK to wear a boxer or a brief or a swimsuit top if you're wearing it alone, OK if you're covering it up with pants or a shirt, but not OK if it's halfway in between? (What about a woman who's wearing a swimsuit top with a shirt thrown over it, but the shirt hanging open in front, so that the swimsuit top is visible?) Would the law distinguish by fabric, on the theory that swim trunks and bikini tops tend to be made of a different fabric than briefs, boxers, and bras? Where would sport bras fit?

The councilmembers react to all this by punting: They recognize that they can't ban all exposure of undergarments, but want to ban some exposure of undergarments, so they settle on banning "indecent" exposure. But that just means that individual judges, prosecutors, and perhaps jurors have to decide which displays are "indecent."

Perhaps the term "indecent" may be sensible in those areas in which there's something of a settled socially accepted meaning for it — "indecent exposure" of one's body parts might qualify, though even there the term is problematic, and well-drafted indecent exposure laws define the prohibited conduct in detail. But I know of no such accepted meaning for "indecent exposure of ... undergarments."

Is showing the top inch of a pair of boxers "indecent" (setting aside whether it's ugly or associated with what one sees as a bad attitude)? What about letting a bra strap occasionally peek out from a string top? Does a white tanktop of the sort often worn by men in cold climates under a shirt count as an "undergarment[]" — and, if so, does wearing just such a tanktop (and pants, of course) qualify as "indecent"?

I accept that the government may sometimes ban certain kinds of offensive public behavior, simply because it's offensive in particular ways. I'd keep the zone quite narrow, but I do think that public nudity can properly be banned; even many of those who disagree with me on that would, I take it, allow bans on public sex. I also accept that some laws will inevitably be relatively vague; consider laws punishing criminally negligent homicide, for instance. But such vagueness is a weakness of laws, not their strength; it should only be accepted when it's necessary to do something really important. Banning "indecent exposure of ... undergarments" doesn't qualify.

Clayton Cramer, who is more upset by the underlying practice than I am, nonetheless shares my view about the weaknesses of trying to ban the practice. Thanks to Nolan Reichl for the pointer to the story.

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Not Everyone Has A Sense of Humor At Nixon Peabody: Despite having the phrase "Everyone's a winner at Nixon Peabody!" stuck in my head all day today — seriously, it's like a CD track on permanent repeat — I'm still kinda disappointed to learn that the firm pulled the song from YouTube. I thought they work to keep it fun, they work to keep it cool — you know, that's how the whole team spirit thrives. Oh well.

  UPDATE: Jonathan Last comments, "it's like a bad '70s used car jingle done by Earth Wind & Fire." I disagree: this is pure Pointer Sisters.
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O'Connor Bobblehead

for sale on Ebay. No bids yet.

Words and Dictionaries:

Well, it turns out that some people aren't joking in endorsing this suggestion:

Instead of creating a new word to represent someone who is receiving guidance under a mentor as a 'mentee', couldn't someone (not certain of who is responsible for adding/changing definitions to the official dictionaries) simply add an additional definition to the word protege to allow for further meaning?

Recall the context: On the "mentee" thread, some commenters suggested that "protege" was an adequate substitute for "mentee." Others pointed out that "protege" tends to have a different meaning (a protege gets patronage and support, while mentees tend to just get advice). Then came the above quote.

Wow. So here we have a word ("mentee") that has been around for several decades, that is common enough to be listed in several leading dictionaries, and that is easily understandable (especially in context), both because it's not uncommon and because it fits a common pattern of English word formation. Now I'm not saying comprehensibility is enough; "udnerstadnable" is probably understandable, too, but I'm not advising you to use it. But surely comprehensibility is pretty important.

But some people disapprove of "mentee," whether because it's a back formation that doesn't correspond to an actual verb "to ment," or because they just think it's ugly. So instead, the suggestion is to add a definition to the dictionary.

What exactly do people think will happen when this definition is added? Will it, like domain name registry entries, get automatically propagated over the following 48 hours through the minds of English speakers? Will there be public service announcements on TV telling people, "Please remember that starting 2 am Sunday, the word 'protege' will also mean someone who gets merely advice and not patronage or support"?

No: The same people who today hear "protege" and think not just someone who is being mentored, but rather someone who is being politically backed, will keep on thinking this. Perhaps over time, some of them will look up the word in the dictionary, learn the new definition, and slowly spread the definition to listeners (in contexts in which the listeners will recognize the new definition, rather than just being confused). Perhaps, and only over many years. In the meantime, the extra definition in the dictionary will in no way affect what the word actually communicates to listeners. The new meaning will not be properly comprehended.

On top of that, imagine what would happen even if the suggestion worked: We'd take a word that usually has a moderately crisp definition ("a person under the patronage, protection, or care of someone interested in his or her career or welfare"), and add to it another, materially different definition (a person who is simply receiving advice) -- thus making the word ambiguous (or at least more ambiguous). Now sometimes words do acquire new meanings that make them ambiguous, and often there's not much to be done about that. But do we really want to deliberately create extra ambiguity? Is an ambiguous "protege" really better than an unambiguous "protege" plus an unambiguous (even if ugly-sounding to some, or etymologically impure to some) "mentee," to the point that we should deliberately choose making "protege" ambiguous?

Third, and this returns in some measure to the comprehensibility point, authors of dictionary have a certain professional responsibility to readers. They should inform the readers of what a word in fact means when English speakers generally use it. They could, if they want to, inform the readers of what meanings are socially condemned, or even what meanings the dictionary authors think are in some sense "the best." But can it be right for them just to add a meaning that English speakers don't generally use, simply on the theory that English would somehow be a more elegant language if English speakers did use such a meaning?

I think that if we read a dictionary and learned a definition that, it turned out, was just the authors' own pet project rather than an actual current meaning of the word, we'd rightly feel duped. The dictionary would have made us less likely to communicate effectively rather than more.

Finally, I think all this illustrates a broader point about words and dictionaries. Dictionaries are not the language; they are useful snapshots of the language. Prescriptivists might argue that dictionaries should condemn certain aspects of the language. And indeed dictionaries do in some measure mold the language. But no-one, prescriptivist or descriptivist, should assume that the language will change just because a definition is added to the dictionary, and no-one should accept a dictionary that simply invents new definitions that the authors think might be useful. Drawing a new street on a map won't actually change the city. Adding a new definition to the dictionary won't actually change the language.

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The 82-Minute Sentence: The Associated Press reports:
  Nicole Richie was released from jail Thursday after serving 82 minutes of a four-day sentence for driving under the influence of drugs.
  The reality show star, who checked into a women's jail at 3:15 p.m., was released at 4:37 p.m. "based on her sentence and federal guidelines," Los Angeles County Sheriff's Deputy Maribel Rizo said without elaborating.
  Under a federal court mandate to manage jail overcrowding, arrestees sentenced to 30 days or less for a nonviolent offense are usually released within 12 hours, the sheriff's department said in a statement.
  Under the guidelines, Richie was "treated in the same manner as other inmates with a similar sentence," the statement said . . .
  Richie arrived at jail with her attorney Shawn Chapman Holley and her boyfriend, Good Charlotte singer Joel Madden. Her time at the Century Regional Detention Facility was spent getting booked, including taking a mugshot and submitting her fingerprints, Holley said.
  She didn't reach her jail cell.
  My criminal law class today covered utilitarian rationales for punishment, including deterrence, rehabilitation, and incapacitation. Your assignment: Discuss.
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Simple Advice for People Who Want To Get Into Law Teaching:

Before "going on the market" -- preferably a year or two before -- call your old law school. Sometimes the school will have a faculty member appointed to help people like you. Even if it doesn't, the dean's office will often be glad to get you in touch with someone who can give you some advice.

It doesn't matter that you never stayed in touch with your old faculty members. You don't need personal contacts for this (though those never hurt): Many law schools see helping alumni get into law teaching as being part of their duties, and as being in their own interests, and will help you even if no-one at the school remembers who you are.

What can the advice do? It can help you avoid going on the market too early. It can give you a more realistic sense of your chances, so you won't be too dispirited. It can help you format your resume more effectively. It can help you know what stage your new project should be in before you give it as a job talk. And once you reconnect with the school, you can get more than just advice: For instance, the school might arrange practice job talks, so that your real job talks are more effective.

I've seen quite a few people who went on the market far too early, or presented their resumes the wrong way, or made other mistakes that they might have avoided if they had some guidance. So call up the people who are most likely to be able to guide you. At worst, you'll just waste a little time -- at best, you can get some valuable help.

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Business Torts:

A question for those readers who took a second-/third-year law school class on business torts -- torts like interference with business relations, misrepresentation, bad faith breach of contract, and the like: Have you found this class useful in your practice?

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Lions, and Buffalo, and Crocodiles, Oh My!:

Awesome video.

Implications of Variation in Presidential Performance for the Debate Over Executive Power in Times of Crisis:

An important aspect of executive power in times of crisis is the large variation in presidential performance between different administrations. As I explained in my last post on this subject, the top echelon of the executive branch is usually controlled by just a small group of people - the president himself and a few trusted advisers. In addition to the points I made in that post, this reality has one more crucial implication: we can expect much greater variation in the quality of presidential performance than in that of other branches of government, especially Congress.

Basic statistical theory shows that, holding other variables constant, small samples are likely to vary more than large ones drawn from the same underlying distribution (group of people or things). Just by random chance, the former are likely to deviate far more from the mean and the median. For a technical explanation, see this discussion of the law of large numbers. In this case, the underlying distribution is, roughly speaking, prominent American politicians, and presidents are the small sample group, while members of Congress and justices of the Supreme Court are relatively larger samples (in the case of Congress, with its 535 members, much larger).

The downside of this is that it makes it far more likely that a given administration will display extremely poor performance than a given Congress. In the last 40 years alone, I would suggest that we have had at least three administrations with extremely poor performance due to incompetence at the top (Jimmy Carter, George W. Bush) or venality (Richard Nixon). Those who differ from me on the ideological spectrum will probably disagree with me on some of these cases. But few are likely to have a list of extremely poor presidents that is much shorter than mine.

The unusually high variation of presidential performance suggests that even if Eric Posner and Adrian Vermeule are right (as I believe they are) to argue that the executive is on average more competent to manage crises than Congress and the Supreme Court, it does not necessarily follow that the other branches of government should give broad deference to executive decisions. We also have to take into account the damage caused by those cases where executive decisionmaking is far worse than that of the other branches due to the fact that the administration in power is unusually incompetent, unusually venal, or both.

To be sure, the high variation in presidential performance suggests that we are also more likely to have an extraordinarily good president than an equally wonderful Congress or Supreme Court. As against Carter and George W. Bush, we can set George Washington, Abraham Lincoln, and a few others who managed crises extremely well. Ultimately, this aspect of the executive power debate comes down to a question of whether we have more to fear from extremely bad executives than hope from extremely good ones. As a libertarian, I definitely come down on the side of fear rather than hope when it comes to government power. In my judgment, a very bad president can do far more harm in a crisis than a very good president can do on the other side of the scale.

Moreover, even in a nondeferential system, an unusually competent executive will generally be able to build up sufficient political capital that Congress and the Supreme Court will be reluctant to challenge him too much in a crisis even if they retain the authority to do so. Thus, an unusually competent executive should be able to manage crises relatively well even if the other two branches retain considerable power to constrain him. On the other hand, such countervailing power can play a valuable role in limiting the damage done by an unusually bad president.

Related Posts (on one page):

  1. Implications of Variation in Presidential Performance for the Debate Over Executive Power in Times of Crisis:
  2. Systematic Shortcomings of Broad Executive Power in Times of Crisis:
  3. How Much Deference Should the President Get in Times of Crisis?
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Please Tell Me You're Joking:

On the "mentee" thread, some commenters suggested that "protege" was an adequate substitute for "mentee." Others pointed out that "protege" tends to have a different meaning (a protege gets patronage and support, while mentees tend to just get advice). But one wrote:

Instead of creating a new word to represent someone who is receiving guidance under a mentor as a 'mentee', couldn't someone (not certain of who is responsible for adding/changing definitions to the official dictionaries) simply add an additional definition to the word protege to allow for further meaning?

I so much hope that this is just a very subtle parody of prescriptivism, rather than a serious suggestion.

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Free Opus!

Apparently some newspapers are refusing to run two installments of Berkeley Breathed's comic strip.

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Show Off Your Inner Geek With A Volokh Conspiracy T-Shirt: I'm happy to announce the introduction of Volokh Conspiracy merchandise — t-shirts, a mug, even a tote bag. You can visit the VC's mechandise store here. Here's the website's computer-generated picture of what a Volokh Conspiracy t-shirt looks like:


  I purchased a t-shirt last week, and the green color is a tiny bit lighter than it appears in the picture. But the picture is otherwise pretty accurate.

  Some legal disclaimers while I'm at it. Although the products say "The Volokh Conspiracy," they are really being purchased through Cafe Press. We designed the item and we're letting CafePress sell them, but we're not involved in printing up the products and we're not making a dime off of the sales, either. Cafe Press makes the product when you place an order, and we don't see it and can't guarantee it will come out the way you like it. I can tell you that the shirt I ordered last week looks decent, but I haven't seen what the other shirts or the tote bag or mug look like. Family members of Volokh Conspirators are ineligible to win. Void where prohibited.
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Thursday, August 23, 2007

Law Firms, the Blogosphere, and Unexpected Attention: So imagine you're a partner at a large law firm, and a high-profile blogger gets a copy of an incredibly cheesy song your marketing department put together to celebrate the firm at an internal law firm event. The blogger posts a copy of the song on YouTube and it becomes a hit immediately, drawing 10,000 listens in 12 hours.

  How should you respond? Should you: (a) assert your legal rights and demand that the copies of the song be taken down, or, (b) laugh along with it and bask in the fact that thousands of lawyers and law students can't get the phrase "everyone's a winner at [your firm]" out of their minds?

Demand that the song be taken down.
Laugh along with it and let the copy stay up.
  
Free polls from Pollhost.com


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The Ben Gamla School:

While the new Arabic language school in Brooklyn has attracted national headlines and controversy, far less has been written about a new English-Hebrew language public charter school in South Florida. The school's principal is a rabbi, the food in the cafeteria is kosher, and there are allegations that the school is intended to be a Jewish day school in disguise, violating the First Amendment's ban on government endorsement of religion. If successful, with tuition at Jewish day schools generally exceeding $10,0000 in the U.S., this model could easily spread nationwide in non-Orthodox communities (the Orthodox would generally want much more explicit religious education). In places such as South Africa, Australia, and Quebec, where the government funds state schools that primarily serve Jewish students, a high percentage of Jewish students (I once read 80% in Australia) attend such schools. The American Jewish community is more assimiliated, and more committed to the ideal of "neutral" public schools, that the Jews of those countries, but nevertheless the Ben Gamla model would have great appeal to many here, especially, I'd guess, former Israelis and Russians.

UPDATE: The New York Times has a story today on the school. Interestingly, 37% of parents at the school name Hebrew as their first language, and 17% name Spanish. One problem the school seems to have is to find materials that teach Hebrew that have no religious references--such materials are usually either from Israel, where public schools teach religion, or from the U.S., where they are geared to either day schools or synagogue programs. But Hebrew has been offered as an elective in New York City public schools, and I assume elsewhere, so I doubt this problem is insurmountable. Also interesting is that the school was well oversubscribed.

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Systematic Shortcomings of Broad Executive Power in Times of Crisis:

In this post, I take to heart Eric Posner's admonition that the scope of executive power in wartime should be determined by the relative strengths and weaknesses of the presidency as an institution rather than by our evaluation of any one president. He is absolutely right that "the presidency is an institution that is occupied by a succession of persons, and the proper structure of this institution is independent of who happens to occupy it during a particular term." He is also right to emphasize that, although there have been many "mediocre" (or worse) presidents, this fact is balanced by the reality that there have also been many mediocre Supreme Court justices and members of Congress. Incompetence and mediocrity is rarely in short supply in any branch of government. I even agree with Posner's claim that the Bush administration has trampled on civil liberties far less than previous wartime administration's, such as Lincoln's, FDR's, and Lyndon Johnson's (a view also endorsed by prominent liberal civil liberties scholar Geoffrey Stone).

Nonetheless, Posner and coauthor Adrian Vermeule are wrong to draw from all this the conclusion that:

The case for giving emergency power to the president rather than Congress rests on the simple point that a multi-member body cannot act quickly, decisively, and secretly. Once we reject the assumption that the members of Congress are likely to be smarter than the president, I don’t see how any other factor would play a role.

It is true that the executive can act more quickly, decisively, and secretly than Congress or the courts. It is not true that this is the only factor that matters, even in an emergency. The comparative executive advantages stressed by Posner and Vermeule are balanced by several comparative shortcomings. Relative to Congress and the courts, the executive is more likely to fall prey to irrational small-group decisionmaking, more likely to excessively restrict civil liberties, and more likely to fall prey to a short time horizon. Let's unpack these three flaws.

I. Irrational Small-Group Decisionmaking.

A great deal of social science literature shows that, other things equal - small, like-minded groups are more likely to fall prey to error than larger groups with more diverse perspectives. For a good summary of the evidence, see this book by Cass Sunstein. Relative to Congress, the executive is far more likely to fall into the hands of a small group of like-minded individuals. In most administrations, the key decisionmakers are the president himself and a small group of advisers most of whom tend to be adherents of the same party and ideology as he is. It is easy for such a group to fall prey to ideological "groupthink" or simply to persuade themselves that whatever is in their immediate political self-interest is also good for the country.

By contrast, Congress is a much larger and more ideologically diverse body than the executive. Even the members of the president's own party in Congress are likely to be a more diverse group than the top echelon of executive branch advisers. While there are undoubtedly some deluded ideologues in Congress, it is far more difficult for a small group of such people to seize control of the institution than it is for the same thing to happen with the presidency.

Even the Supreme Court, with only nine members, is less prone to this pathology than the executive. Because Supreme Court justices are appointed by different administrations and confirmed by different Senates over a long period of time, the composition of the Supreme Court at any given point in time is likely to be more diverse than that of the executive branch.

II. Incentives to Overrestrict Civil Liberties.

If the nation is hit by a terrorist attack or suffers a military defeat, the executive is far more likely to be blamed for not doing enough to prevent it than Congress or the Supreme Court. Most voters tend to assign the lion's share of responsibility for such setbacks to the president rather than to other branches of government. In principle, the executive is also likely to be blamed for excessive violations of civil liberties. However, in times of crisis, historical evidence strongly suggests that the average voter will care far about security against attack than about even quite flagrant civil liberties violations.

As a result, a politically rational president faced with possible tradeoffs between security liberty is likely to err in favor of former. It may well be politically rational for the president to sacrifice civil liberties for the sake of possible increases in security even in cases where the cost is very high and the benefits very small. This problem is not confined to the Bush administration. Indeed, as I noted in my last post, it was far worse under many previous wartime administrations. The most notorious example is FDR's order to intern the Japanese-Americans during World War II despite the near-total absence of evidence that they posed any real threat.

Congress and the courts are not immune to this pathology. But precisely because they are less likely to be blamed for any security setbacks, they have a comparative advantage in protecting civil liberties. I do not suggest that security should always be sacrificed for the sake of civil liberties. However, it is important that Congress and the courts serve as at least a partial check on presidential excesses in this field.

III. Short Time Horizons.

Presidents are subject to election every four years, and under the Twenty-Second Amemdment, cannot serve more than eight years. By contrast, Supreme Court justices serve for life (an average tenure of 26 years), and many congressional leaders also serve for many years. So to do many rank and file senators and congressmen. Even congressmen, who are up for reelection every two years, are rarely genuinely at risk of defeat this often, because most represent "safe" districts.

For this reason, presidents have much stronger incentives than either Congress or Supreme Court justices to sacrifice the longterm to short-run political expediency. This problem is particularly important during times of war or emergency, when opportunities to score short-term political points at the expense of the long run abound. The tendency to overrestrict civil liberties for the sake of minor or even nonexistent security gains is just one of many such temptations. As a partial (though by no means complete) solution to this problem, it is important that institutions with a relatively more longterm orientation serve as a check on those with a shorter time horizon.

38 Comments
How Much Deference Should the President Get in Times of Crisis?

Opinio Juris has an interesting series of posts on Eric Posner and Adrian Vermeule's recent book Terror in the Balance, which makes a powerful case for the claim that Congress and the Courts should largely defer to presidential decisions in times of war and emergency. Posner and Vermeule argue that the president should get such deference because, on average, the executive has greater competence in making national security decisions than either Congress or the judiciary, and of course also has greater ability to act quickly and decisively. They also contend that, even when the executive goes wrong, there is - on average - little reason to expect that judges' or legislators' efforts to improve matters will make things better rather than worse. In this post, Posner makes the important point that decisions about the balance of power between the branches of government cannot be based on our evaluation of the performance of any one president (such as George W. Bush), but must instead be based on a broader evaluation of the strengths and weaknesses of the presidency as an institution.

Posner and Vermeule have made what is perhaps the strongest case so far for very broad executive power in wartime. Nonetheless, I have serious reservations about their argument, which I will develop in a followup post.

13 Comments
Federal Gents:

From the Westlaw summary of U.S. v. Alverez-Tejeda, 491 F.3d 1013 (9th Cir. 2007):

Holdings: ... (1) incident staged by federal gents was justified ...

I suspect they mean "federal agents," but I like "federal gents" better.

13 Comments
Jactitation:

Commenter Mike BUSL07 reminds me of a fabulous legal term -- "jactitation of marriage," "a cause of action which arises when a person falsely alleges that he or she is married to the petitioner," R.H. Graveson, Conflict of Laws 349 (7th ed. 1974) (quoted in Black's Law Dictionary). Few people these days engage in such misbehavior. The most recent extensive discussion I found of this in an American case comes from Sell v. Sell, 58 Mont. 329 (1920) (paragraph breaks added):

It is urged by counsel for respondent that the allegation of nonmarriage as a ground for affirmative relief is warranted by the course of procedure at common law and is in the nature of a cross-bill setting forth the grounds of complaint in an action for jactitation of marriage.

Anciently, at common law, where one person, not being married to another, pretended that a marriage existed between them and proclaimed it to others, the person against whom the claim was made, upon due proof, was entitled to a decree enjoining the offender from the false boasting. Cases of that character arose occasionally in England, but they were peculiarly within the cognizance of the ecclesiastical courts. (Blackstone, 93). The action, however, fell into disrepute in 1776, when the House of Lords in the Duchess of Kingstone's Case (20 How. St. Tr. 543) decided that the final decree was not conclusive of the fact of nonmarriage.

In this jurisdiction the power to decree a divorce is purely statutory. (Rumping v. Rumping, 36 Mont. 39, 12 Ann. Cas. 1090, 12 L. R. A. (n. s.) 1197, 91 P. 1057.) Ample provision is apparently made by our Codes for the protection of the marital relation, and the significant fact that an action is authorized to establish marriage whenever either party to it denies the existence of the relationship (sec. 3634, Rev. Codes), tends to negative the existence of the right which is now sought to be asserted.

We think it can be said in all fairness that the right of action for jactitation of marriage has never been recognized as warranted by the common law as it was introduced in and adopted by this country.

Jactitation of screwing around, on the other hand, sounds like a cause of action with a future.

18 Comments
American Constitution Society's Student Article Topic Database:

ACS just set it up, and already has 76 topics.

This is an excellent idea; I hope that people continue contributing topics, and that students use the topics. I tried something similar several years ago, and found it quite hard to get good submissions. But I wish ACS all the best with this, and commend them on trying (and, with the first batch of submissions, succeeding).

So please submit topics if you have some to recommend, and search or browse for topics if you're looking for something to write about. Naturally, the topics will largely end up being focused largely on those matters that interest ACS's largely liberal constituency, but that strikes me as perfectly fine.

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Alienation of Affections:

For a modern — April 19, 2007 — decision involving this tort, see Fitch v. Valentine.

Mississippi is apparently one of six states that continues to recognize this tort, a tort that generally covers behavior through which a spouse "is wrongfully deprived of [his or her] rights to the 'services and companionship and consortium [of the other spouse].'" In many cases, including this one, the wrongful conduct is an outsider's sexual affair with one of the spouses. In principle, though, other behavior — including persuading a person to divorce the spouse, even without having sex with the person — could be covered as well.

18 Comments
How New Words Often Come About:

The commenter who disparaged the term "mentee" wrote,

While I will reluctantly overlook the use of "Mentor" as a verb (that battle is lost), I refuse to acknowledge the existence of the verb "to ment" that "mentee" necessarily implies.

As it happens, it's true that "mentor" comes not from a verb "to ment," but rather -- according to the OED -- from "the name of a character in F. de S. de la Mothe-Fénelon's Les Aventures de Télémaque (1699), after ancient Greek [Mentor], the name of a character in the Odyssey, in whose likeness Athena appears to Telemachus and acts as his guide and adviser."

But so what? "Workaholic" doesn't come from a longstanding suffix "-aholic" meaning "addicted to"; it comes from the last syllable of "alcohol." Likewise with "telethon," which I take it stems indirectly from the place name "Marathon." We can all come up with more examples (consider the various "-gate" scandals).

True, these words tend to have a mildly humorous feel, at least at first; so does, in my view, "mentee." But accepting them hardly "necessarily implies" any particular etymology. It just necessarily implies a recognition that English words come about in lots of different ways, and that stems are often borrowed from one word into another in ways that do not fit well with the source words' own origins.

54 Comments
"Is Not a Word":

This comment on the recent thread on misspelled phrases reminds me of one of my pet peeves:

I find "mentee" so offensive that I disparage its usage at every opportunity. While I will reluctantly overlook the use of "Mentor" as a verb (that battle is lost), I refuse to acknowledge the existence of the verb "to ment" that "mentee" necessarily implies. Resumes containing this word require no further review. I recently returned a fundraising letter in its business reply envelope with the word circled and the written comment, "This is not a word." I reserve such vitriol and summary dismissal for this error alone. This is because it is what might be called a Homeric error. And I don't mean Homer Simpson. Please warn your students against this fatally discrediting usage.

Here's one thing I find so offensive that I disparage its usage at every opportunity: The use of a phrase "is not a word" -- which you'd think would have the standard meaning of, well, "is not a word" -- to mean "should not be a word" or "is a word that annoys me." English speakers use "mentee," and use it often enough that it's gotten into the OED (attested for over 40 years), as well as the Random House Dictionary and the American Heritage Dictionary. It is, which is to say "is," a word, which is to say "a unit of language, consisting of one or more spoken sounds or their written representation, that functions as a principal carrier of meaning" -- with the function and the meaning attested by the authorities in the field (dictionaries).

I have nothing against complaints that some word or phrase is inelegant or confusing, or admonitions to students that using some word or phrase will lead some readers to think the less of them. The earlier thread was all about collecting data for such admonitions.

But those complaints should, I think, be put that way. They should not be made by claiming that something is not a word when it is a word under any sensible and common definition of the term "word."

(Note that there may be an exception when the claim is clearly hyperbole, but here this exception doesn't apply: A reader may well assume that "mentee" is actually an uncommon error, rather than a usage that is common enough that it has been recognized by lexicographers as a normal part of the English language.)

63 Comments
"The Right to Romance":

Do Faculty Have a Constitutional Right to Sleep With Their Students? Heh.

27 Comments
The ESA vs. Private Conservation:

For decades land rights activists have complained that Section 9 of the Endangered Species Act punishes private conservation. Under the Act, the reward for maintaining or creating endangered species habitat is the imposition of federal land-use controls. Specifically, landowners are prohibited from modifying such land without permission from the U.S. Fish & Wildlife Service. Commented one state wildlife official in 1993, “The incentives are wrong here. If I have a rare metal on my property, its value goes up. But if a rare bird occupies the land, its value disappears.” This perverse incentive discouraged landowners from maintaining habitat. At the extreme, it induced landowners and resources users to “shoot, shovel, and shut up.”

While such claims were common, the only direct evidence that landowners responded to such incentives was anecdotal. There was no doubt that some landowners took preemptive action to destroy or degrade potential habitat before it could become subject to federal regulation – as happened in Boiling Springs Lakes, North Carolina – but there was little evidence documenting the extent of such responses to the Act’s restrictions. Defenders of the ESA could argue, with some justification, that the occasional horror did not demonstrate that there was anything fundamentally wrong with the Act.

In recent years, however, more substantial empirical evidence has started to roll in, confirming that the ESA’s perverse incentives encourage the destruction and degradation of species habitat on private land. As I detail in “Money or Nothing: The Adverse Environmental Consequences of Uncompensated Land-Use Controls,” there are now four empirical studies examining the effect of the ESA on landowner willingness to maintain habitat. All four of these studies find the predicted effect. Taken together, these studies provide powerful evidence that the ESA may be endangering endangered species on private land. Interestingly enough, only one of these studies has received any meaningful attention in the environmental law literature to date. (I searched Westlaw for all four this morning.)

Two of the four studies look at the ESA’s effect on private timber management practices and habitat for the endangered red-cockaded woodpecker (RCW). The two studies utilize slightly different methodologies, but both found that landowners have responded to the risk of ESA regulation by altering timber management practices so as to make private timberland less hospitable for RCWs. Specifically, landowners increase the rate of cutting, and decrease the age at which timber is harvested, so as to avoid land-use restrictions. This matters for the RCW. Cutting timber stands prematurely deprives RCWs of habitat because the woodpeckers rely upon older trees for nesting cavities. Cutting trees prematurely is perfectly legal. But over time it will result in a significant reduction of RCW habitat.

A third study examined landowner responses to the listing of the Preble’s Meadow jumping mouse. This study, a survey or private landowners, found that a significant number of landowners took actions to make their lands less hospitable to the mouse after it was listed as an endangered species. It also found that landowners became significantly less likely to grant wildlife biologists access to their land for research purposes. This is important because accurate data on species populations and their habitat is essential to successful conservation efforts.

A fourth study looked at preemptive habitat destruction near Tucson, Arizona. Consistent with the other studies, this study found that the threat of regulation of habitat for the Cactus Ferruginous pygmy owl accelerates the rate at which privately owned species habitat is developed. These findings are reinforced by additional data showing that the value of undeveloped land designated as critical habitat fell relative to other lands in the study area. Although as a strict legal matter, critical habitat designation is not necessary for land to be burdened by the ESA’s regulatory strictures, it provides a signal to landowners about the likelihood of future regulatory restraints.

These studies, taken together, provide powerful evidence that the ESA is discouraging species conservation on private land. They help explain why the ESA has been particularly ineffective at conserving endangered species on private land. Only a handful of species have been “recovered” since the ESA was enacted in 1973, and none of the recoveries – not one – is attributable to the enforcement of Section 9 on private land. Since most endangered species rely upon private land for some or all of their habitat, this is a particularly egregious failing of the Act. The purpose of the ESA is to conserve endangered and threatened species. Instead it appears that the Act may be endangering them.

Related Posts (on one page):

  1. The ESA vs. Private Conservation:
  2. Compensate for Conservation's Sake:
61 Comments
Bush Administration Backs Mountaintop Removal:

As has been expected, the Bush Administration is proposing to make it easier for mining companies to engage in so-called mountaintop mining aka mountaintop removal. This mining method involves blowing the tops off of mountains so as to expose coal deposits, and depositing the resulting rubble in adjacent valleys and streams. On Friday, the official day for most Bush Administration environmental announcements, the Office of Surface Mining will publish proposed regulations explicitly allowing for the practice subject to certain conditions, according to the New York Times. "The new rule would allow the practice to continue and expand, providing only that mine operators minimize the debris and cause the least environmental harm, although those terms are not clearly defined and to some extent merely restate existing law." Among other things, mining companies will be required to engage in some land reclamation after mining is complete.

Roughly half the coal in West Virginia is from mountaintop mining, which is generally cheaper, safer and more efficient than extraction from underground mines like the Crandall Canyon Mine in Utah, which may have claimed the lives of nine miners and rescuers, and the Sago Mine in West Virginia, where 12 miners were killed last year.

The rule, which would apply to waste from both types of mines, is known as the stream buffer zone rule. First adopted in 1983, it forbids virtually all mining within 100 feet of a river or stream.

The Interior Department drafted the proposal to try to clear up a 10-year legal and regulatory dispute over how the 1983 rule should be applied. The change is to be published on Friday in The Federal Register, officials said.

The Army Corps of Engineers, state mining authorities and local courts have read the rule liberally, allowing extensive mountaintop mining and dumping of debris in coal-rich regions of West Virginia, Kentucky, Tennessee and Virginia.

From 1985 to 2001, 724 miles of streams were buried under mining waste, according to the environmental impact statement accompanying the new rule.

If current practices continue, another 724 river miles will be buried by 2018, the report says. . . .

Interior Department officials said they could not comment on the rule because it had not been published. But a senior official of the Office of Surface Mining said the stream buffer rule was never intended to prohibit all mining in and around streams, but rather just to minimize the effects of such work.

Even with the best techniques and most careful reclamation, surface or underground mining will always generate mountains of dirt and rock, he said.

“There’s really no place to put the material except in the upper reaches of hollows,” the official said. “If you can’t put anything in a stream, there’s really no way to even underground mine.”

He said the regulation would explicitly state that the buffer zone rule does not apply for hundreds of miles of streams and valleys and that he hoped, but did not expect, that the rule would end the fight over mine waste.

31 Comments
White House Web Page Was Out-of-Date:

Apparently the White House web page has not kept pace with the Bush Administration's conception of executive authority. The Washington Post reports:

The Bush administration argued in court papers this week that the White House Office of Administration is not subject to the Freedom of Information Act as part of its effort to fend off a civil lawsuit seeking the release of internal documents about a large number of e-mails missing from White House servers.

The claim, made in a motion filed Tuesday by the Justice Department, is at odds with a depiction of the office on the White House's own Web site. As of yesterday, the site listed the Office of Administration as one of six presidential entities subject to the open-records law, which is commonly known by its abbreviation, FOIA.

According to the Post, the White House declined comment.

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Fourth Circuit Grants Petition for Rehearing in Al-Marri: The Fourth Circuit has granted the government's petition for rehearing in Al-Marri v. Wright, the case about the suspected Al Qaeda cell member who allegedly entered the U.S. to commit attacks here and was seized and held by the military.
19 Comments

Wednesday, August 22, 2007

Eric Posner and Adrian Vermeule's Terror in the Balance:

Opinio Juris is holding a very interesting online symposium about this new book.

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Fascinating Interview with DNI McConnell about New FISA Legislation: The El Paso Times has printed the transcript of a fascinating interview with Director of National Intelligence Michael McConnell about the need for the Protect America Act, the new FISA amendments. It's worth a full read, but here are some excerpts (with paragraph breaks added by me):
Question: How much has President Bush or members of his administration formed your response to the FISA debate?

Answer: Not at all. When I came back in, remember my previous assignment was director of the NSA, so this was an area I have known a little bit about. So I came back in. I was nominated the first week of January. The administration had made a decision to put the terrorist surveillance program into the FISA court. I think that happened the 7th of Jan. . . . . The FISA court ruled . . . and they said the program is what you say it is and it's appropriate and it's legitimate, it's not an issue and was had approval.

But the FISA process has a renewal. It comes up every so many days and there are 11 FISA judges. So the second judge looked at the same data and said well wait a minute I interpret the law, which is the FISA law, differently. And it came down to, if it's on a wire and it's foreign in a foreign country, you have to have a warrant and so we found ourselves in a position of actually losing ground because it was the first review was less capability, we got a stay and that took us to the 31st of May.

After the 31st of May we were in extremis because now we have significantly less capability. And meantime, the community, before I came back, had been working on a National Intelligence Estimate on terrorist threat to the homeland. . . . [T]hey had discovered [a safe haven for Al Qaeda] in the border area between Pakistan and Afghanistan. . . . . This area is referred to as the FATA, federally administered tribal areas, they have the recruits and now the objective is to get them into the United States for mass casualties to conduct terrorist operations to achieve mass casualties. . . .They have em, but they haven't been successful. One of the major tools for us to keep them out is the FISA program, a significant tool and we're going the wrong direction.

So, for me it was extremis to start talking not only to the administration, but to members of the hill. So from June until the bill was passed, I think I talked to probably 260 members, senators and congressmen. . . .

Q: Can't you get the warrant after the fact?

A: The issue is volume and time. Think about foreign intelligence. What it presented me with an opportunity is to make the case for something current, but what I was really also trying to put a strong emphasis on is the need to do foreign intelligence in any context. My argument was that the intelligence community should not be restricted when we are conducting foreign surveillance against a foreigner in a foreign country, just by dint of the fact that it happened to touch a wire. We haven't done that in wireless for years.

Q: So you end up with people tied up doing paperwork?

A: It takes about 200 man hours to do one telephone number. Think about it from the judges standpoint. Well, is this foreign intelligence? Well how do you know it's foreign intelligence? Well what does Abdul calling Mohammed mean, and how do I interpret that? So, it's a very complex process, so now, I've got people speaking Urdu and Farsi and, you know, whatever, Arabic, pull them off the line have them go through this process to justify what it is they know and why and so on. And now you've got to write it all up and it goes through the signature process, take it through (the Justice Department), and take it down to the FISA court. So all that process is about 200 man hours for one number. We're going backwards, we couldn't keep up.
Thanks to Marty Lederman for the link.
39 Comments
Hero:

From the official site of the allied forces in Iraq:

An Iraqi man saved the lives of four U.S. Soldiers and eight civilians when he intercepted a suicide bomber during a Concerned Citizens meeting in the town of al-Arafia Aug. 18.

The incident occurred while Soldiers from 3rd Squadron, 1st Cavalry Regiment, were talking with members of the al-Arafia Concerned Citizens, a volunteer community group, at a member’s house.

"I was about 12 feet away when the bomber came around the corner," said Staff Sgt. Sean Kane, of Los Altos, Calif., acting platoon sergeant of Troop B, 3-1 Cav. "I was about to engage when he jumped in front of us and intercepted the bomber as he ran toward us. As he pushed him away, the bomb went off." ...

"He could have run behind us or away from us, but he made the decision to sacrifice himself to protect everyone. Having talked with his father, I was told that even if he would have known the outcome before hand, he wouldn’t have acted differently."

The man's name isn't mentioned; I take it this is because of eminently reasonable concern for the security of his family, but it's too bad that we can't properly honor and remember him by name.

Thanks to InstaPundit for the pointer.

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A Phrase Judges Should Probably Avoid: "In my humble opinion." Why? First, a lot of judges are not humble. Second, if their opinions really are humble, they probably don't need to point out how humble they are. True, the phrase "in my humble opinion" can be used as a signal of courtesy rather than humility. But I don't think that meaning comes across well in judicial opinions. Opinions usually are written in a confident style; the judge tries to make his decision seem indisputably correct. Given that, the use of "in my humble opinion" suggests a false humility rather than an earnest respectfulness. (Just a thought inspired by reading this concurring opinion , where a district judge sitting by designation in the 11th Circuit writes a concurrence arguing that "in my humble opinion," the Supreme Court's 8-1 directly on point decision from a few months ago was wrongly decided. It doesn't help that the district judge's interpretation of that precedent was pretty far off the mark).
46 Comments

Tuesday, August 21, 2007

Back-to-School Blawg Review:

The syllabus is here.

3 Comments
Are Blogs Less Worthy of Various Protections Than Magazines?

I sometimes hear people argue that blogs are unworthy of various legal protections -- for instance, journalist privileges, exemptions from campaign finance laws, and the like -- because they aren't Serious Journalism. Let me offer a few thoughts about this.

1. As I've argued before, it's hard to say what "blogs are," just as it's hard to say what "books are." Blogs, like books, vary widely in topic, readership, quality, depth, breadth, and more. Most blogs, like most books ever published, aren't particularly good or useful. But if we are to evaluate blogs or books, the focus should be on the ones that do attract a broad readership, not to the great majority that are ignored.

2. We should thus focus on the most prominent blogs (not just the 10 most prominent, but still not blogs #1,000,000-2,000,000). And we should compare those blogs not against the Best of the Best, but against other media as they actually are. I've generally argued that the high-readership blogs tend to be most analogous to magazines, because both tend to offer opinion and commentary on the news (with "news" defined broadly). And in fact many special legal protections for the media include magazines alongside blogs.

3. This having been said, what are those magazines that get protection under many journalist privilege statutes, under many campaign finance statutes (including the federal one), and more? Well, here's the list of the Top 25 magazines, by circulation, based on Audit Bureau of Circulations data (note that this includes both weeklies and monthlies, and perhaps other magazines):

AARP THE MAGAZINE 23,250,882
AARP BULLETIN 22,621,079
READER'S DIGEST 10,094,284
BETTER HOMES AND GARDENS 7,627,046
NATIONAL GEOGRAPHIC 5,072,478
GOOD HOUSEKEEPING 4,675,281
LADIES' HOME JOURNAL 4,136,462
TIME-THE WEEKLY NEWS MAGAZINE 4,082,740
WOMAN'S DAY 4,014,278
FAMILY CIRCLE 4,000,887
PEOPLE 3,786,360
AAA WESTWAYS 3,733,561
TV GUIDE 3,499,746
PREVENTION 3,324,440
SPORTS ILLUSTRATED 3,208,630
NEWSWEEK 3,130,600
PLAYBOY 3,016,453
COSMOPOLITAN 2,928,041
SOUTHERN LIVING 2,822,542
VIA MAGAZINE 2,808,377
MAXIM 2,540,146
AAA GOING PLACES 2,528,014
AMERICAN LEGION MAGAZINE 2,525,264
AAA LIVING 2,411,813
REDBOOK 2,389,456

A mixed bag -- just as blogs are a mixed bag. Some news, some gossip, some lifestyle, some hobby, just as is the case with blogs.

I don't know of an authoritative list of top-visitor blogs, and I'm not sure how to evaluate the relative quality of the ones I've seen, or to judge whether top-link lists are good proxies for influence or likely visitor counts. (Please do let me know what you think are the best lists of most influential blogs.) But my guess is that the profile of the top blogs won't be radically different from the profile of the top magazines. And I'm pretty sure it won't be far "worse" -- if the criterion of quality is either focus on Important Issues, Seriously Discussed, or the credentials of the authors -- than what we see among the top magazines.

21 Comments
Most Commonly Misspelled Phrases:

"All intensive purposes." "Baited breath." "Tough road to hoe." "Free reign." These are all common misspellings. At some point, they become common enough to be correct alternative spellings, and some may be correct even now in their own way: "Free reign," especially, makes sense as a figurative phrase. But wise law students should be careful not to use such phrases, because whether or not they are in some metaphysical sense incorrect, they are likely to seem incorrect and annoying to many readers (including judges, partners, and other people you are trying to impress and persuade).

I'm looking for more examples to caution my students against, but I'm looking for ones that really are common enough to deserve caution. So my challenge: Which phrases can you come up with in which the incorrect (or, if you prefer, nontraditional) version gets at least 25% of the google hits that the traditional version gets?

Please post your answers below, with google's estimated count for the incorrect version followed by the count for the correct version, e.g.,

baited breath / 309,000 / 449,000

Please keep in mind the possibility that the seemingly incorrect phrase can actually be properly used in some contexts (e.g., "key tenant" can either be a misspelling of "key tenet" or a term of art in commercial real estate), and eyeball the results to see whether they might be mostly false positives.

195 Comments
If It Bleeds, It Leads:

A USA Today headline: "Drunken driving deaths up in 22 states."

The story below the headline:

Drunken driving fatalities increased in 22 states in 2006 and fell in 28 states, the District of Columbia and Puerto Rico, federal transportation officials said Monday.

The National Highway Traffic Safety Administration released data showing there were 13,470 deaths in 2006 involving drivers and motorcycle operators with blood alcohol levels of .08 or higher, which is the legal limit for adults throughout the country. The number was down slightly from 2005, when 13,582 people died in crashes involving legally drunk drivers.

So the number is virtually identical to what it was last year (the difference is less than 1%). It's a tiny bit lower. But the headline stresses the bad news, of course.

Thanks to Radley Balko's The Agitator and InstaPundit for the pointer. Note, though, that they also don't seem quite on target in saying (or quoting),

Incidentally, if you adjust for only those accidents where a clearly drunk driver caused the death of someone else, the real number has traditionally been about a fourth of what NHTSA reports. So figure the real number of drunk driving deaths to be around 3,000.

I agree that killings of innocent bystanders are morally different than self-inflicted deaths of those who are themselves drunk. But deaths are generally still tragic (even if somewhat less tragic or differently tragic). And in any event, they surely are "real" "drunk driving deaths."

UPDATE: Glen Whitman (Agoraphilia) points out flaws with the study's statistics, most significantly that (1) "all statistics of this nature are based on the underlying assumption that alcohol was the cause of every accident in which one of the drivers had alcohol in his system -– whether or not that driver was deemed at fault," and that (2) the government is stressing a tiny increase in the number of fatalities in which any driver had alcohol, even though the rate of such fatalities per capita (the more meaningful number) has likely slightly declined. I certainly agree that we should view such statistics (from both sides) skeptically, and with an eye towards their limitations and the unwarranted spin that's put on them.

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English Law and Hebrew:

Having coauthored an article on Yiddish and the law, I was fascinated to hear that the name of the infamous Court of Star Chamber supposedly stemmed from Hebrew. No less a luminary than Blackstone so reports (thanks to The Party of the First Part for the pointer) (paragraph breaks added):

This is said (Lamb. Arch. 154.) to haven been so called, either from the Saxon word steoran, to steer or govern; or from its punishing the crimen stellionatus, or cosenage; or because the room wherein it sat, the old council chamber of the palace of Westminster, (Lamb. 148.) was full of windows; or (to which Sir Edward Coke, 4 Inst. 66. accedes) because haply the roof thereof was at the first garnished with gilded stars. As all these are merely conjectures, (for no stars are said to have remained in the roof so late as the reign of queen Elizabeth) I shall venture to propose another conjectured etymology, as plausible perhaps as any of them.

It is well known that, before the banishment of the Jews under Edward I, their contracts and obligations were denominated in our ancient records starra or starrs, from a corruption of the Hebrew word, shetàr, a covenant. (Tovey's Angl. Judaic. 32. Selden. tit. of hon. ii. 34. Uxor Ebraic. i. 14.) These starrs, by an ordinance of Richard the first, preserved by Hoveden, were commanded to be enrolled and deposited in chests under three keys in certain places; one, and the most considerable, of which was in the king's exchequer at Westminster: and no starr was allowed to be valid, unless it were found in some of the said repositories. (Madox hist. exch. c. vii. § 4. 5. 6.)

The room at the exchequer, where the chests containing these starrs were kept, was probably called the starr-chamber; and, when the Jews were expelled from the kingdom, was applied to the use of the king's council, when sitting in their judicial capacity. To confirm this; the first time the star-chamber is mentioned in any record, (Rot. claus. 41 Edw. III. m. 13.) it is said to have been situated near the receipt of the exchequer: that the king's council, his chancellor, treasurer, justices, and other sages, were assembled en la chaumbre des esteilles pres la resceipt al Westminster. For in process of time, when the meaning of the Jewish starrs was forgotten, the word star-chamber was naturally rendered in law-french, la chaumbre des esteilles, and in law-latin, camera stellata; which continued to be the style in latin till the dissolution of that court.

Alas, the Oxford English Dictionary nixes this, reporting that it comes from "Anglo-L. camera stellata (14th c.), AF. chambre d'estoiles, des esteilles, esteillee (14th c.)," and saying:

The conjecture of Sir T. Smith (Commonw. Eng. III. iv, a 1577) that the chamber was so called ‘because at the first all the roofe thereof was decked with images of starres gilted’, appears to have no confirmatory evidence, but is highly probable. The notion, made popular by Blackstone, that the chamber had been the depository of ‘starrs’ or Jewish bonds (see STARR) has no claim to consideration.

Rats.

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Medals? Why the #!*@ Are You Giving Us Medals?

The AP reports:

Malaysia gave a hero's send-off Monday to Lucky and Flo, honoring the two DVD-sniffing dogs with medals as they ended a six-month assignment that netted 1.6 million illegal movie discs.

The two black Labradors looked puzzled when a multitude of press photographers' flash bulbs went off as Malaysia's deputy trade minister S. Veerasingham placed medals around their necks....

The world's first dogs trained to identify optical discs by the scent of their chemicals, Lucky and Flo were loaned to the Malaysian government in March by the Motion Picture Association, a U.S.-based watchdog.

This also reminds me of a line attributed to Clarence Darrow:

A story often told about Darrow is his quip to a client, who, after winning a case, said, "How can I ever show my appreciation, Mr. Darrow?" Darrow replied, "Ever since the Phoenicians invented money, there has been only one answer to that question."

Let's just say that Lucky and Flo likely also think there's only one answer, but a different one -- which doesn't involve either money or medals.

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A Possible Way to Get a Supreme Court Ruling on the Constitutionality of FISA: One frustrating aspect of debates on Presidential power and Article II is that it's so hard to get such questions squarely answered by the courts. The executive is normally in the position of choosing whether to make an Article II argument, and it can simply decline to make the argument. But I wonder — does the Protect America Act change that? I may be way off, but it seems to me that the Protect America act just might give private parties a way to raise the constitutionality of FISA all the way up to the Supreme Court.

  Imagine a telecommunications provider really doesn't like the new Protect America Act and decides he won't comply with it. Under the Act, the provider can challenge whether the government's effort to ensure compliance with the Act is unlawful. So the provider brings such a challenge, and makes the following argument: the government's directive is "unlawful," the provider argues, because FISA and the Protect America Act it modifies is an unconstitutional infringement of executive power that violates Article II. Thus a directive that is part of this unconstitutional statute has no force of law.

  Oddly, this argument would put the Executive in the position of defending the constitutionality of FISA and the Protect America Act. The Executive would need the statute to be constitutional because it's the only reason the directive would be enforceable by the FISA court through contempt sanctions.

  Now the case comes to the FISA court, which has two choices. If it rules that FISA and the Protect America Act are constitutional, then the provider can appeal to the FISA Court of Review; if the FISA Court of Review agrees that FISA is constitutional, the provider can take the case directly to the Supreme Court. At that point, the Supreme Court must squarely address whether FISA and the Protect America Act exceed article II or whether they are constitutional statutes to which the Executive is bound.

  Alternatively, if the FISA court or FISA court of review conclude that FISA as modified by the Protect Act exceed article II, then they would have to strike down the very statute under which they are operating. But because all the FISA orders go through that court, that presumably means the whole FISA process would come to halt. At that point the Justice Department would need to decide whether to defend the statute: the government could either not appeal the decision and go without the enforcement of the Protect America directive (which seems a difficult position to take politically, but is at least possible legally), or else it could appeal the case and itself bring the constitutionality of FISA to the Supreme Court.

  Am I right that this mechanism is a way to settle the Article II question, most likely through a U.S. Supreme Court ruling? One possible wrinkle is severability: I gather the government would try to make a narrow argument that the directive portion of the Protect America Act is constitutional, and would not try to defend the constitutionality of FISA as a whole. But the provider would be in the driver's seat as to what arguments were made: the provide could argue that you have to take all of FISA at once, and at the very least it would force the Supreme Court to look squarely at the question. And it would only take one provider who refuses to comply with the directive and is willing to litigate the issue all the way to the Supreme Court.

  That's my thought, at least. What am I missing? (Thanks to "cbolt" for the comment that made me think of this. Also, I altered the title of the post to make it more accurate.)
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Former Leader of the Southern Baptist Convention

calls the faithful to pray for the death of the people who filed an IRS complaint against him.

Here's the press release, from Wiley Drake:

In light of the recent attack from the enemies of God I ask the children of God to go into action with Imprecatory Prayer. Especially against Americans United for Separation of Church and State. I made an attempt to go to them via Matt 18:15 but they refused to talk to me. Specifically target Joe Conn or Jeremy Learing. They are those who lead the attack. (You can see their press release attack at www.au.org ) ...

Now that all efforts have been exhausted, we must begin our Imprecatory Prayer, at the key points of the parliamentary role in the earth where we live.

John Calvin gave the church its marching orders from Scripture. The righteous have dominion, but only through imprecatory prayer against the ungodly.

David as our Old Testament shepherd gives us many Imprecatory prayers, and can be found to be in best focus in Psalm 109. Also chapters 55, 58, 68, 69, and 83

Pray these back to God and He will answer.

Jesus in Matthew 23: 13, 15, 16, 23, 24, 27, and 29 gave us our New Testament marching orders as well.

Let us join Paul and declare anathema upon anyone" who loves not the Lord Jesus." I Cor 16:22

Church father Martin Luther, led us by saying…"If any of the enemies of God's people belong to God's election, the church's prayer against them giveth way to their conversion, and seeketh no more than that the judgment should follow them, only until they acknowledge their sin, turn, and seek God." ...

Psalm 109 says, among other things,
Let his days be few;
and let another take his office.
Let his children be fatherless,
and his wife a widow.
Let his children be continually vagabonds, and beg:
let them seek their bread also out of their desolate places.
Let the extortioner catch all that he hath;
and let the strangers spoil his labor.
Let there be none to extend mercy unto him:
neither let there be any to favor his fatherless children.
Let his posterity be cut off;
and in the generation following let their name be blotted out.
Drake echoes this in a quote in an L.A. Times story:
Drake said Wednesday he was "simply doing what God told me to do" by targeting Americans United officials Joe Conn and Jeremy Leaming, whom he calls the "enemies of God."

"God says to pray imprecatory prayer against people who attack God's church," he said. "The Bible says that if anybody attacks God's people, David said this is what will happen to them. . . . Children will become orphans and wives will become widows."

More in this EthicsDaily post by Brian Kaylor, a former pastor and "communications specialist with the Baptist General Convention of Missouri"; Kaylor reports on an interview he had with Drake, who is quoted as saying: "If they think it’s ‘outlandish,’ it doesn’t surprise me.... They’re ungodly, un-scriptural, not even Christians.... They have no reverence for the Word of God.... And if they think it’s ‘outlandish,’ don’t blame me, I didn’t write it, God did.... It really doesn’t matter what my words are ... What matters is what does God’s Word say? God’s Word says if they continue to attack God’s people, God will cause their children to become orphans and their wives to become widows. I didn’t say that, God did."

Incidentally, the Americans United complaint seems to be that Drake endorsed Republican Mike Huckabee for President using church resources, which were bought using funds derived from tax-exempt donations. As I wrote in an earlier post, organizations to which donations are tax-deductible (so-called 501(c)(3)s) -- including religious organizations, as well as many other nonprofits -- aren't allowed to expressly support or oppose the election of candidates, and are limited in their lobbying for the enactment of legislation. General public education, including advocacy, is fine, but not electioneering or (too much) lobbying; if they want to do that, they need to set up arms that collect non-tax-deductible donations (so-called 501(c)(4)s, as opposed to the 501(c)(3)s).

The Court has upheld this scheme against First Amendment challenge, reasoning that tax exemptions for contributions are a form of subsidy, and the government can impose restrictions on what this subsidy is used for, so long as they are viewpoint-neutral (i.e., no electioneering would be fine, no electioneering in favor of racist candidates would not be). Of course, there are often difficulties in deciding what's forbidden express support or opposition and what's permitted education and advocacy; the IRS has new guidance on the electioneering side of the question.

There are sensible arguments against imposing these limits on the use of tax-exempt funds, given that the tax exemption for charitable deductions is allowed to subsidize a wide range of other private speech, including highly ideological speech, and given the difficulties of drawing lines between permissible education and impermissible lobbying and electioneering. Nonetheless, it's important to recall that speakers -- including pastors -- remain free to express their views about candidates and legislation so long as they use their own money, or 501(c)(4) money.

And, more importantly, whatever one thinks of the rights and wrongs of the tax code as applied in this situation, calling for divine retribution -- apparently including death, and condemnation of children to being "continually vagabonds, and beg[gars]" -- strikes me as a little excessive.

Many thanks to Paul Caron (TaxProf Blog) for the pointer; he has more links.

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Dhimmitude and Disarmament:

In a short article forthcoming in the George Mason University Civil Rights Law Journal, I examine the work of the scholar Ba'at Yeor, the leading scholar of dhimmitude (the inferior status of Christians, Jews, and, sometimes, other religious groups) under traditional Islamic law. The article looks in particular at the effect of the Shari'a rule that the dhimmi are forbidden to possess arms, or to defend themselves against a Muslim. The final section of the article suggests that at the many American educational institutions where pretend "gun-free" zones have been created, law-abiding adults have been rendered as defenseless against marauders as were the dhimmi of earlier centuries.

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Illinois Gov. Ryan's Conviction Upheld:

A divided panel of the U.S. Court of Appeals for the Seventh Circuit today upheld the conviction of former Illinois Governor George Ryan and an associate on various criminal charges. As the Chicago Tribune reported here, Ryan was accused of substantial corruption during his terms as both Governor and Secretary of State. The panel divided over whether (in the dissent's words) a "flood of errors" relating to jury deliberations justified overturning the conviction. The majority opinion by Judge Wood (joined by Judge Manion) begins:

This appeal comes to us after an investigation that lasted for years and a jury trial that lasted more than six months. In the end, the two defendants, former Illinois Governor George H. Ryan, Sr., and his associate Lawrence E. Warner, were convicted on various criminal charges. The case attracted a great deal of public attention, and thus the district court handling the trial had to handle a number of problems, some of which were common and others less so. The fact that the trial may not have been picture-perfect is, in itself, nothing unusual. The Supreme Court has observed more than once that “taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial, and ... the Constitution does not guarantee such a trial.” . . . It is our job, in this as in any other criminal appeal, to decide whether any of the court’s rulings so impaired the fairness and reliability of the proceeding that the only permissible remedy is a new trial.

The dissent, by Judge Kanne, begins:

My colleagues in the majority concede that the trial of this case may not have been “picture-perfect,” – a whopping understatement by any measure. The majority then observes that the lack of a picture-perfect trial “is, in itself, nothing unusual.” I agree that from my experience this is a realistic proposition. There is rarely perfection in any human endeavor – and in particular jury trials. What we expect from our judicial system is not an error free trial, but a trial process that is properly handled to achieve a fair and just result. That fair and just result was not achieved in this case.

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Thanks for the Protect America Act, Although Congress Had No Power to Pass It: Marty Lederman has that and more from the Office of the Vice President over at Balkinization.
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The War on Drugs vs. the War on Terror - Redux:

Time and again, on this blog, I have warned that the War on Drugs is undermining the War on Terror in Afghanistan (see here, here, here, and here). As I explained in earlier posts, it does so in three separate ways: By diverting valuable resources away from military missions to poppy eradication; by creating a black market that provides the Taliban with the lion's share of its income; and by antagonizing rural Afghans who then start to support the Taliban or at least become less likely to provide valuable assistance and information to NATO and Afghan government forces. If the poppy eradication campaign were ended and opium production in Afghanistan legalized, legitimate businesses would begin to compete with the Taliban, and poppy growers would no longer have an incentive to support them.

In this recent Washington Post article, Misha Glenny - who is writing a book about the misguided global War on Drugs, provides further grist for my mill:

Despite the presence of 35,000 NATO troops in Afghanistan, the drug trade there is going gangbusters. According to the U.N. Office on Drugs and Crime (UNODC), Afghan opium production in 2006 rose a staggering 57 percent over the previous year. Next month, the United Nations is expected to release a report showing an additional 15 percent jump in opium production this year while highlighting the sobering fact that Afghanistan now accounts for 95 percent of the world's poppy crop....

In the past two years, the drug war has become the Taliban's most effective recruiter in Afghanistan. Afghanistan's Muslim extremists have reinvigorated themselves by supporting and taxing the countless peasants who are dependent one way or another on the opium trade, their only reliable source of income. The Taliban is becoming richer and stronger by the day, especially in the east and south of the country. The "War on Drugs" is defeating the "war on terror."

Glenny notes that the War on Drugs has had similar perverse effects elsewhere in the world. As they say, read the whole thing.

Unfortunately, the Bush Administration remains committed to waging a large-scale poppy eradication campaign in Afghanistan, and the Democratic Congress has shown no inclination to challenge this policy.

So let me once again pose two questions that I articulated in earlier posts on this topic, one to drug war supporters, and one to congressional Democrats:

1. Even if you disagree with me on the overall desirability of the War on Drugs, is fighting the Afghan drug trade really more important than fighting the War on Terror? If one gets in the way of the other, should we not sacrifice the campaign against Afghan poppies rather than the campaign against the Taliban and Al Qaeda?

2. Congressional Democrats say that they are serious about fighting the War on Terror, and have repeatedly emphasized (with some justification) that the Bush Administration has dropped the ball in Afghanistan. If you truly are serious about improving the conduct of the war in Afghanistan, why not start by denying the use of US government funds for poppy eradication campaigns in that country? Why not instead devote those funds (at least $600 million for last year alone) to military operations and infrastructure development? You can simultaneously improve the conduct of the war and repudiate a failed Bush Administration policy. What's not to like?

Yes, the general public probably won't support a complete repeal of the War on Drugs here in the US. But they are unlikely to care much (or even know about) the elimination of poppy eradication programs in Afghanistan. In any event, Congress' record-low approval rating has nowhere to go but up!

Related Posts (on one page):

  1. The War on Drugs Undermines the War on Terror Yet Again:
  2. The War on Drugs vs. the War on Terror - Redux:
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No Reason to Follow the E.U.'s Climate Path:

Today's Wall Street Journal has an interesting op-ed (subscribers only) on Europe's climate change policies, their results, and how their emissions compare with those in the U.S.:

the numbers show that if America is the Great Carbon Satan, Europe is certainly no angel.

Since 2000, emissions of CO2 have been growing more rapidly in Europe, with all its capping and yapping, than in the U.S., where there has been minimal government intervention so far. As of 2005, we're talking about a 3.8% rise in the EU-15 versus a 2.5% increase in the U.S., according to statistics from the United Nations.

What's more, preliminary data indicate that America's CO2 output fell by 1.3% from 2005 to 2006. If these numbers hold up, it would mean U.S. emissions growth is nearly flat so far this decade. Europe hasn't yet released figures for last year, but it did report in June that emissions from the participants in its carbon-trading scheme, which account for almost half of Europe's CO2 production, rose slightly in 2006.

The news gets worse for Europe when you consider that during this decade, the U.S. population has grown at roughly double the rate of the EU-15 while the American economy has been expanding about 40% faster. It seems Europe is becoming less efficient in its carbon production while U.S. efficiency is improving.

The author, WSJ Europe editorial writer Kyle Wingfield, makes clear that this is no reason for Europe to adopt the U.S. (lack of) climate policies, but it should give American policymakers pause before following the E.U.'s lead. He further explains how the E.U. carbon-trading scheme has failed to deliver.
As a measure of the gap between Europe's rhetoric and its reality, nothing beats its emissions trading scheme. The idea is that CO2-intensive companies -- chiefly those that produce power or use a great deal of it -- receive a certain number of permits to emit the gas. If they reduce their emissions and end up with a surplus, they can sell the extra permits to firms needing more allowances. In this way, market mechanisms are supposed to punish or reward companies for their carbon output, encouraging them to reduce it in the long run.

In Europe, however, the "market" consists of demand that government has created artificially and -- more important -- supply that the state distributes arbitrarily. Not surprisingly, companies lobbied hard to ensure favorable allocations when trading began in 2005. The number of permits exceeded actual emissions and prices plummeted. Today, allowances for 1,000 tons of CO2 are priced at about 11 euro cents, hardly high enough to prod a company to cut its carbon instead of just buying more permits. If you think the U.S. Congress -- whether led by Democrats or Republicans -- would be more likely to shun special interests in the name of environmentalism, then I've got some tariff-free Brazilian ethanol to sell you.

Emission trading schemes sound great in theory, but they can be very difficult to implement effectively. Among other things, the credit allocation scheme is particularly vulnerable to rent-seeking, as the E.U. experience shows. For this reason, I would prefer a revenue-neutral carbon tax (offset by reductions in other taxes) over a cap-and-trade scheme. (For more of my thoughts on this, see here.)

Carbon emission credit allocation across the pond has been a particularly thorny problem given the entrance of additional countries into the E.U. As Julian Morris noted in another WSJ op-ed from last week, several eastern European nations are challenging the E.U.'s credit allocations arguing that they are being penalized for other European nations' failure to abide by their Kyoto commitments.

Under the Kyoto Protocol, the 27 EU nations must collectively cut greenhouse gas emissions 8% below 1990 levels by 2012. When the protocol was signed in 1997, the European Union had only 15 member states, each of which accepted a specific commitment to reduce emissions. Since then, however, only two of the original EU countries have lived up to their pledge: the U.K., which switched from coal to gas-fired power stations (though the high price of gas has led to a substantial switchback in recent years), and Sweden, which is increasingly postindustrial.

Lithuania, Latvia, Estonia, Poland, Hungary, Slovakia and the Czech Republic -- the seven countries that are challenging the EU's allocation decisions -- accepted partial responsibility for the EU's Kyoto commitment when they joined the EU. Their emissions fell substantially in the early 1990s following the collapse of communism, as they replaced an aging power infrastructure and closed down inefficient industries. They therefore had reason to believe that Kyoto might be actually a good business opportunity, allowing them to sell surplus emission permits to other EU countries.

But rapid economic growth in these former communist countries also fueled their greenhouse gas emissions -- though they are still well below their 1990 levels. When the Commission cut their emission allocations far below the levels those governments had originally expected, it meant fewer permits for the new member countries to sell. This, in turn, is set to drive up the price of each permit, making everyone else in the EU pay more for their emissions.

Like me, Julian Morris thinks that some form of carbon tax, combined with investment in adaptation, makes more sense than a global cap-and-trade scheme.
A more cost-efficient and effective alternative to stem global warming would be to invest in new technologies that could cut greenhouse gas emissions in the future. One way to incentivize such investments is to impose a small but rising tax on carbon. Environmental economist Ross McKitrick has suggested a carbon tax that would be tied to the mean temperature of the tropical troposphere (a region of the atmosphere that is believed to be particularly susceptible to greenhouse gas-induced warming). If the temperature rises, the tax should rise; if it falls the tax should fall. This is an intuitively appealing idea, since a higher tax would probably spur more rapid developments of low-carbon technologies, countering further carbon-related increases in temperature.

Such a tax would also, among other things, motivate private-sector investments in climate forecasting, since companies would want to know what the tax level was likely to be in coming years. This would introduce long-needed competition and progress in a field currently dominated by government funding.

In the short term, though, the main response to climate change must be adaptation. That is because most of the problems associated with climate change are extensions of problems that we already face today -- from malaria and water-borne diseases to flooding and crop failure. If we could tackle those problems now, reducing their severity, incidence and consequences, then they would be also less of a problem in the future, with or without climate change.

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Dean's Fury:

Hurricane Dean was measured a Category 5 storm before landfall in Mexico. As Chris Mooney reports, it is one of ten most intense Atlantic hurricanes ever measured.

Dean was officially the most powerful hurricane that we’ve seen globally so far in 2007, and was by far the strongest at landfall. It was also the first Category 5 Atlantic hurricane seen in the since the record-setting Hurricane Wilma of October 2005. In fact, Dean set some records of its own. Its pressure was the ninth lowest ever measured in the Atlantic, and the third lowest at landfall. Indeed, there hasn’t been a full Category 5 landfall in our part of the world since 1992’s Hurricane Andrew. Dean was in all respects a terrifying storm, and we can only hope that the damage will somehow be less than expected as it tears across the peninsula and then, after crossing the Bay of Campeche, moves on to a presumed second Mexican landfall.

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Forget Corn, Conserve Forests Instead.

Ethanol and other "bio-fuels" require extensive amounts of land for the cultivation of crops or other source material. So much so, that the environmental costs of such fuels can be substantial. Even from a carbon-emission standpoint, bio-fuels appear to be a bad investment. New research documents that forest conservation is a more effectie way of reducing atmospheric carbon dioxide concentrations than conversion to bio-fuels. Indeed, in some cases it is better to use gasoline and plant some trees than to convert land to ethanol. More from Ron Bailey and the New Scientist.

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The Continuing Value of DDT:

Donald Roberts, emeritus professor of tropical medicine at the Uniformed Services University of the Health Sciences, writes in yesterday's NYT:

DDT, the miracle insecticide turned environmental bogeyman, is once again playing an important role in public health. In the malaria-plagued regions of Africa, where mosquitoes are becoming resistant to other chemicals, DDT is now being used as an indoor repellent. Research that I and my colleagues recently conducted shows that DDT is the most effective pesticide for spraying on walls, because it can keep mosquitoes from even entering the room.

The news may seem surprising, as some mosquitoes worldwide are already resistant to DDT. But we’ve learned that even mosquitoes that have developed an immunity to being directly poisoned by DDT are still repelled by it.

UPDATE: For more on my views about DDT, see here.

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The Man Who Would Be Queen:

The New York Times has an article about controversy over Professor Michael Bailey's book, The Man Who Would Be Queen, which reaches some rather politically incorrect conclusions about the reasons some men want to undergo sex changes.

Two quotations in the story caught my eye. First, Deirdre (formerly Donald) McCloskey, a well-known (formerly?) libertarian economist, stated:

"Nothing we have done, I believe, and certainly nothing I have done, overstepped any boundaries of fair comment on a book and an author who stepped into the public arena with enthusiasm to deliver a false and unscientific and politically damaging opinion."

Yet the article also relates that McCloskey "wrote to the Illinois state regulators, requesting that they investigate Dr. Bailey for practicing psychology without a license." That goes well beyond "fair comment" and into "trying to get the government to punish an individual I disagree with." (Meanwhile, the charming Andrea James, "a Los Angeles-based transgender advocate and consultant," "downloaded images from Dr. Bailey’s Web site of his children, taken when they were in middle and elementary school, and posted them on her own site, with sexually explicit captions that she provided.")

Second, Professor Ben Barres of Stanford (whose name has come up on this blog before, in a somewhat related context) is quoted as saying, "Bailey seems to make a living by claiming that the things people hold most deeply true are not true." The quotation is shorn of context, but apparently was meant to be critical, a conclusion supported by Barres's prior defense of political correctness on "gender" issues, linked above. If so, then I vehemently disagree with Professor Barres. Of course, if the relevant research is junk science, it can and should be criticized on those grounds. But scientists have an obligation to pursue the truth, not to worry about people's feelings, and given the climate of political correctness that the controversy over Bailey's research reflects, scientists who are willing to take on subjects that others may deem taboo deserve moral support.

Hat tip: Instapundit.

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Who are the Real Christian Fundamentalists?

CNN is broadcasting a mini-series on “fundamentalism”: Jewish, Muslim and Christian. While these forms of fundamentalism have a few things in common, the dissimilarities are so stark that carelessly juxtaposing them tends to create a false sense of similarity.

Both academics and journalists sometimes depict Christian fundamentalists in the U.S. as particularly dangerous people, but these accounts seldom report what sorts of people tend to be fundamentalists in the U.S.

The group that most disproportionately belongs to fundamentalist Protestant sects is African-American females. In the 2000-2006 General Social Surveys, 62% of African-American females (and 54% of African American males) report that they belong to Protestant denominations that the GSS classifies as fundamentalist.

When one thinks of dangerous groups in the United States, religious African-American females would not be on many people's lists. Yet of the people that I see on the streets every day, members of that demographic group are the ones most likely to be fundamentalist.

What about political party affiliation?

In the 2000-2006 General Social Surveys, 34% of Republicans are fundamentalists, compared to 30% of Democrats, not a large difference. But since there are more Democrats than Republicans, a slightly larger percentage of fundamentalists are Democrats (34%), compared to 32% of fundamentalists who are Republicans.

As to gender, in 2000-2006, 30% of women and 26% of men were fundamentalists.

So when one thinks of a typical fundamentalist in the United States in the 2000-2006 period, the image that should come to mind is that of a woman or of a Democrat. And if one thinks of which group is disproportionately fundamentalist, the exemplar is African-American females, not Republicans.

If one instead uses as a measure of fundamentalism the quintessential fundamentalist belief that the Bible is the literal word of God, the general pattern of the 2000-2006 GSS data is very similar to that based on fundamentalist religious denomination.

I'll wait to see how CNN handles Christian fundamentalism before judging the series, but I hope that this scene as described by David Bauder of the AP is not characteristic of the larger work:

The segment on Christians explores BattleCry in some depth, digging at the roots of an organization that fights against some of the cruder elements of popular culture and urges teenagers to be chaste. In noting how girls at some BattleCry events are encouraged to wear long dresses, Amanpour asks the group's leader how it is different from the Taliban.

To be a success, at a minimum the mini-series should dispel more stereotypes than it perpetuates.

CNN’s broadcast is discussed by Bauder (AP), Fifth Column, BF2S, Newsbusters, Mr. C, and Reenee.

UPDATE: More at Powerline (John), Variety, Melissa Rogers, and In From the Cold.

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Monday, August 20, 2007

"How a Dentist Assaulted a Patient and Made a Million Dollars":

Washington & Lee law professor and insurance law expert Adam Scales has a fascinating column on this at findlaw, here (part I) and here (part II).

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Superbad:

My wife, sister-in-law, niece (who's in her late teens), and I all saw Superbad Saturday and liked it a lot -- it's very funny, and often funny because it seems so honest (except when it's funny because it's absurd). The language is extremely raunchy, of course, but very effectively so. I highly recommend it.

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Virginia Tech Bleg:

Virginia Polytechnic University has a policy manual instructing employees how to deal with a violent or angry individual. Among those instructions are that if the violent/angry person has a gun, and offers to hand over the gun to the employee, the employee should not accept the gun. Instead, the employee should call security. Does anyone have a copy/cite of this policy? If so, please post the appropriate information in the Comments section. (Or if you prefer to remain completely anonymous, just send to me via the e-mail link from www.davekopel.org.) Please note that I am not looking for the Virginia Tech policy which bans all professors and students from possessing firearms on campus. Thank you.

As usual, the VC's excellent readership comes through. See the 7th comment, below, for a link to the VT policy.

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Ninth Circuit State Secrets Case:

I had the chance to watch the oral arugment before the U.S. Court of Appeals for the Ninth Circuit in one of the FISA/state secrets cases over the weekend (the Al-Haramain Islamic Foundation case, available on C-Span here). My reaction to the oral argument (not having read the briefs) is that the Justice Department's claim that the state secrets doctrine precludes further proceedings before the district court was particularly weak.

While the government would like to argue that allowing the case to proceed would threaten national security, I thought that the opposing attorney effectively rebutted the claim, pointing out that the alleged rationales for the doctrine do not apply in this case. For instance, one argument for the doctrine is that the disclosure of foreign intelligence activities is that the potential subjects of surveillance will alter their behavior, thereby undermining foreign intelligence efforts. In this case, however, the plaintiffs already believe that they were surveiled, because the government accidentally gave them a confidential document, and this is now public information. So, the subjects of the surveillance have already altered their behavior -- the damage has been done. Therefore, it seems to me, that even if one believes in a fairly robust state secrets doctrine, it does not seem to apply here.

I am not an expert on the state secrets doctrine, by any means, and there may well be more to the government's arguments in this case. That said, from what I saw in the oral argument, it seems that the government should lose, and the case should continue in the district court. Am I mistaken?

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Interesting Pieces on the New FISA Legislation: Lots of interesting articles recently on debates over the new FISA legislation. Yesterday's New York Times had this story on the reaction to the law. Over at the New Republic, Benjamin Wittes has a tentative defense of it that is somewhat similar to mine.
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NYT on Speedy (Executions) Gonzales:

Adam Liptak's latest column discusses the new Justice Department rules that will allow the Attorney General to speed up appeals in capital cases.

Under an odd provision in last year’s reauthorization of the USA Patriot Act, the antiterrorism law, the attorney general is to take on a role that has for more than a decade belonged to the courts. After the Justice Department finishes writing the regulations, Mr. Gonzales will get the job of deciding whether states are providing condemned inmates with decent lawyers.

If the answer is yes, federal litigation in capital cases from those states — one of the main reasons for the lengthy appeals — will move to a fast track. Inmates will have to file habeas corpus challenges in six months rather than a year, and judges will be subject to strict deadlines. Appeals courts, for instance, will get 120 days to decide cases.

The trade-offs themselves are not new, and they are not necessarily a problem. If states can be encouraged to provide able defense lawyers to death row inmates in state proceedings, the federal courts may indeed have less to worry about.

But giving the power to decide when a fast track is warranted to an interested party like Mr. Gonzales is a curious way to run a justice system.

Related Posts (on one page):

  1. NYT on Speedy (Executions) Gonzales:
  2. AG Involvement in Capital Appeals:
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The State of Civil Liberties:

University of Chicago law professor Geoffrey Stone, author of the excellent book Perilous Times: Free Speech in Wartime from The Sedition Act of 1798 to The War on Terrorism (among other things), believes the recent FISA amendments are unwise if not unconstitutional. Nonetheless, these legal changes must be viewed in perspective.

The legislation amending FISA is unwarranted, reckless and possibly unconstitutional. Nonetheless, the overall state of civil liberties in the US, viewed in historical perspective, is surprisingly strong. There are no internment camps for American Muslims, no suspensions of habeas corpus for American citizens, no laws prohibiting criticism of the war in Iraq. This might not seem like much, but in light of past episodes, the intrusions on civil liberties since 9/11 have been relatively modest.

UPDATE: Just to prevent any possible confusion, the point of this post is not to dismiss contemporary threats to civil liberties. (Prof. Stone would be the wrong person to cite for that proposition.) Such threats are real and warrant continued vigilance. At the same time, it is important to note that such threats are often overstated and that the federal government does not infringe upon civil liberties in the name of national security as much as it did in the not-so-distant past. We should be proud of this accomplishment, just as we should seek to protect civil liberties even more in the future.

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An Even More Confusing Presentation of the Two-Income Trap and Taxes:

In my first post on the "two-income trap" and in my Wall Street Journal column, I took note of the peculiar way in which the authors presented their data, which led them to overlook the crucial role of the rise in tax liabilities between the two periods and the impact that has on the average family's household finances. When the Warren & Tyagi compare the average family of the 1970s to the 2000s, they present the data on all expenses (mortgage, cars, health insurance) in terms of the change in the actual dollar expenditures between the two periods. The rise in the tax burden, however, is incongruously presented in terms of the percentage of household income dedicated to paying all taxes (federal, state, and local). Thus, the authors state that the percentage of household income paid in taxes increases from "24 percent" of household income to "33 percent" of household income.

As I noted, the difficulty with presenting the data in this manner is that it obscures the underlying dynamic of what is happening in the example. Adding the second worker increases household income by 75 percent--this is actually a greater increase than the expenditures on mortgage, automobiles, and health insurance, all of which increase by less than the income growth of 75 percent. The problem is that total tax obligations over this period increase from about $9000 to about $22,000--an increase of about 140 percent. Thus, assuming that the authors' argument is theoretically sound (a proposition open to question) it seems clear that the increase in tax obligations is the driving dynamic in their example.

Nonetheless, the authors apparently even confused themselves, as they completely ignore this massive growth in the tax burden on the household budget, even though use the actual dollar values in calculating the "fixed costs" portion of the average family budget. Apparently this idiosyncratic presentation style confused most readers as well, as even though the book was reviewed and featured in a large number of mainstream media outlets, it appears that none of those commentators observed the growth in the tax burden either. A list of reviews of the book, with links, is available here.

Fortunately, the authors presented all of the raw figures necessary to convert the percentages to actual dollar values, which made it possible to figure out that the importance of the growth in the tax burden.

Now I see that in May 2007, Professor Warren provided testimony before the United States Senate Finance Committee on the same topic. At the hearing, Professor Warren presents all of the data in the book in a different format--but the end result is that she actually presents the data on taxes in an even more confusing and idiosyncratic style than in the book, making it even more difficult to understand the underlying dynamic.

In her Senate testimony, Professor Warren no longer actually presents the actual dollar values for the changes in expenditures between the two periods. Instead, she presents the data for everything but taxes in terms of the percentage change in the amount expended by the household on various categories of the household budget. So, for instance, she reports that the average family now spends "32% less" on clothing, "18% less" on food, "52% less" on appliances, etc., than the family of a generation ago. They also spend "76% more" on mortgage payments, "74% more on health care" and "52% more" on automobiles than in the past (the data here is apparently updated from the presentation in the book). She also notes that families are spending more on electronics, such as DVD players, televisions, and computers. As before, she then recalibrates all of these percentages into a figure for "fixed costs" and "discretionary expenditures" that actually uses the actual dollar values, rather than these percentages. Moreover, she never indicates what percentage of the household budget each of these categories comprise, so it is difficult to figure out what impact these percentage changes in isolation have on the overall household budget.

But here's where it gets confusing. For each of these other expenditures, she present the percentage change in the actual amount of money the household actually pays for each of these obligations. If a similar measure were used for taxes, as noted above, it would indicate a massive increase of about 140% in tax obligations over the relevant period, which would make clear that this increase dwarfs the increase in every other expenditure.

But for the presentation in the change in taxes alone--Professor Warren presents the change in the "average tax rate"--the percentage change in the percentage of household income dedicated to paying taxes. So, under this approach, because tax obligations increase from 24% of household income to 33% of household income--and increase of 9 percentage points--she reports the change in "the average tax rate" between the two periods as being 25%. But had she applied the same methodology to taxes as she does to every other expenditures--i.e., the growth in actual household expenditures on various categories of goods and services, rather than the percentage change in the percentage of the household budget dedicated to a particular category of expenditures--the "apples to apples" comparison in the have been about 140%, not 25%.

If she applied to the other categories of expenditures the same methodology she applied to taxes (the percentage change in the percentage of the budget dedicated to those expenditures), then each would have actually declined or stayed approximately the same as a percentage of household income than previously, so they would be either zero or negative, while taxes would have increased by 25%. Instead, she presents a true apples to oranges comparison with absolutely no resemblance to one other for purposes of comparison.

In fact, this confusion leads to a misreporting of the data in Figure 3 of her testimony, which is labeled "Median Family Spending by Category, Percent Change, 1972-2005." She does in fact reporting the percent change in "family spending" for each of the other categories, she does not do so for taxes. But what is reported for taxes quite plainly is not the percent change in spending on taxes--it is the percent change in the percentage of the household budget dedicated to paying taxes, a completely different and unrelated number.

I don't know why all of this is presented in the way it is, but it doesn't make any sense to me. Presumably Professor Warren understands that the data she reports for taxes is not based on the same methodology as for all expenditures. And I assume that she is aware that the change in the "median family spending" on the category of taxes is actually about 140%, not 25%, such that the number reported in her Figure 3 is incorrect. More fundamentally, I don't understand why it is thought useful to put any expenditure in terms of the percentage change in the percentage of the household budget dedicated to a given category expenditure. And if that is useful, why would it be useful only for reporting taxes but not for any other category of expenditures?

Perhaps there is some logical reason why it makes sense to present the data in this peculiar and heterogeneous fashion. But if so, it is not obvious to me. As a result, it makes even more difficult to understand what is going on than even the original presentation, which already seemed to have been confusing to most readers (and perhaps even the authors themselves). I just don't understand why this one obligation--taxes--is consistently presented in a unique fashion that invariably makes it more difficult to understand what is going on with that expenditure from the household budget and thus to understand how the change in the tax burden compares to the changes in the burdens of other expenditures. And in fact, it seems likely that the average Senate Finance Committee member or staffer would be likely to look at this presentation and be misled into concluding that the increase in the tax burden is a relatively small part of the overall change in the household financial burden, when in fact it is the largest change.

Furthermore, unlike the previous presentation of the data, where one could at least replicate what was going based on the information provided (however obscurely), in this iteration the actual dollar values expended on various budget items are never presented, nor are the percentages of the household budget dedicated to certain expenditure categories (which would allow one to back out those values from the total income figures which are presented). In fact, from what I can tell, Professor Warren never even presents in her testimony the 24% and 33% figures for the percentage of the family budget dedicated to taxes, which I had to infer from her book that was where her new 25% figure of the percentage change in the percentage of income dedicated to tax payments is coming from. As a result, it is unclear in her testimony exactly how much the tax obligations rise, but the underlying expenditures on taxes seem to be basically the same as the original data on this score.

By suggesting that the increase in household expenditures on taxes is only 25%, rather than its actual increase in value of about 140%--Professor Warren's testimony unfortunately leaves the Senate with the impression that the growth in tax obligations is much smaller than the growth in categories such as mortgage and health care expenses, when in fact the growth in taxes is much, much larger and more important. Whatever the rationale for reporting the data in this fashion it appears to have once again confused the logical policy recommendations that follow. Professor Warren recommends five types of policy responses to her version of the "two-income trap," that range from the affordability of health care and college education, to improvements in education and public schools, and a novel proposal for government "safety regulation for credit products." All of these may or may not be sensible ideas, but they seem like they'd have a relatively minor impact on this particular problem when compared to the elephant in the room--taxes. This is especially so given that government at all levels could do something about the tax burden much more easily, with greater direct impact, and with fewer unintended consequences than trying to address these more difficult social problems.

Because Professor Warren either does not recognize or for some reason simply chose not to report the massive contribution of increased taxes to the overall household budget crunch, none of her policy recommendations address the dramatically increased tax burden, which as we have seen, is the underlying factor driving the whole two-income (tax) trap. Moreover, it goes without saying that if the average tax burden had increased at the same rate as income during this period (75% instead of 140%), then this would provide a huge amount of money for savings, for college, to pay for a home, or to pay for the other household expenses she enumerates. Or, at least, tax reform seems like it is worthwhile to at least consider in this context.

More generally, I still don't really understand why this data is presented in such a heterogeneous and confusing manner, especially when it consistently leads to confusion about what it actually demonstrates. Furthermore, this confusion results in policy recommendations that don't seem to follow from what the data actually show. It seems like it would be more effective to just pick a uniform presentation format and use that for all of the numbers, thereby permitting a more transparent comparison among them.

Related Posts (on one page):

  1. Robert Frank Falls For the Two-Income Trap:
  2. An Even More Confusing Presentation of the Two-Income Trap and Taxes:
  3. The Two-Income Tax Trap:
  4. Evaluating The Two-Income Trap Hypothesis:
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The Compact Disc Has Turned 25, according to the BBC. (Hat tip: Andrew Sullivan) I bought my first CD player in December 1985, and I remember thinking it was pretty much the coolest thing ever. My first two discs: Brothers in Arms by Dire Straits and No Jacket Required by Phil Collins.
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Sunday, August 19, 2007

More Bench Memos Boys v. Balkin:

The back-and-forth between Jack Balkin, on the one hand, and Matthew Franck and Ed Whalen on the other, over originalism, constitutional meaning, judicial restraint, and abortion continues apace. Here's a quick round up.

First, the Bench Memos boys respond to Balkin. Here's Ed Whalen (part I):

I accept Jack’s distinction between originalism (a theory of constitutional interpretation) and judicial restraint (a set of additional principles about how judges should exercise their judicial role, whatever the proper method of constitutional interpretation). It does not follow, however, that the principle of respect for the democratic processes needs to be confined to the question of judicial restraint. . . .I believe that a presumption (rebuttable, to be sure) against trumping of the political processes flows from Jack’s “principle of democracy” and is properly part of an originalist theory of constitutional interpretation.
Whalen (part II):
One of Jack’s primary criticisms of conventional originalism is that it supposedly can’t justify important precedents. Jack kindly asks me for my view whether various precedents are correct under the originalist approach that I am advocating. My short answer is that I don’t know, as I have not had occasion to study the relevant history with sufficient care to arrive at a conclusion. If there are important precedents that originalism can’t justify, I would submit that is because the Constitution, for all its greatness, is not, and never has been, a perfect document.
And Matthew Franck:
Balkin is right that originalism is a “theory of how people in general should interpret the Constitution.” But one thing that people in general, and judges in particular, need to ask themselves is, what is the original understanding of the purpose, function, and limits of the judicial power under Article III? Knowing that will lead, inexorably I think, to a restrained account of what judges may and may not do. Sometimes this restraint, grounded in original understanding, will result in rulings that leave intact laws and policies that no originalist should vote for if, say, he serves in Congress. That is not a mark of originalism’s failure, or of the Constitution’s. It is a mark of their success, in leaving large stretches of constitutional interpretation to the people themselves, and not to judges presuming to govern them. . . .

He evidently thinks it quite the riposte to me and Ed to inquire whether we approve of certain rulings, especially in recent history. He wants to know, for instance, whether Ed’s originalism can “explain the modern sex equality cases, or, for that matter, much of modern First Amendment jurisprudence, including the commercial speech cases.” Unless Ed tries to justify certain outcomes in these areas on originalist grounds, I don’t know why this is a question. It may be that many modern rulings would fall by the wayside if the correct version of originalism were rigorously applied. Why would this be a vice and not a virtue?

Surely it cannot be that the test of the adequacy of any version of originalism is whether it supports certain results we are predisposed to like on other grounds. Can it?

Jack Balkin replies (primarily to Franck):
For me the Constitution involves present day commands that bind current generations just as much as past ones. Therefore if one thinks that great achievements like the Civil Rights Act are an important part of our political and constitutional traditions, one can't adopt a theory of interpretation that renders most of these laws unconstitutional, even if we keep judges from remedying the unconstitutionality.

Matt strongly objects to this sort of reasoning from our existing legal traditions; he regards it as the essence of results-oriented jurisprudence. I disagree. I think that any serious theory of interpretation-- and by serious I mean one that actual judges and actual political officials living in the present can use-- has to recognize key achievements of American law as a starting point for understanding how we interpret our Constitution. Matt's version of originalism is pretty much hopeless from this standpoint.

But there is more to it than mere impracticality. The Constitution's legitimacy comes from the fact that it is our law in the present, and that Americans in the present are attached to it and regard it as their supreme law. A theory of Constitutional interpretation that holds that most of their law-- including the laws they are most proud of-- is illegal and based on a lie, cannot possibly serve the functions of political legitimacy necessary to a constitutional system. . . .

The great advantage of my model of originalism is that it can give an account of why our current structures of law-- not just Roe v. Wade, about which Matt seems particularly concerned-- but the Civil Rights Revolution, the New Deal, and the most significant achievements of the 20th century, are consistent with our constitutional traditions. It shows how we can be faithful to the original meaning of the text and its underlying principles through changing circumstances.

Matt may think these goals are relatively unimportant; he may dismiss them as result-oriented. But I disagree. I tend to think that establishing the connections between our present day laws and our constitutional traditions is what a good interpretative theory is all about.

Matthew Franck fires back:
Balkin pretty much confesses to the result orientation I have mentioned previously. "The great advantage of my model of originalism is that it can give an account of why our current structures of law— not just Roe v. Wade, about which Matt seems particularly concerned— but the Civil Rights Revolution, the New Deal, and the most significant achievements of the 20th century, are consistent with our constitutional traditions." Of course it is Balkin who is "particularly concerned" with Roe v. Wade, having spent scores of footnoted pages attempting to justify it. No, I have that backwards. He attempted to justify originalism by reference to abortion rights, and he succeeded only in destroying everything about the edifice of originalism except the sign that hung on the building, which he picked up from the rubble and slapped on the construct hitherto known as the "living Constitution."

"Our constitutional traditions" have nothing to do with Balkin's project. I'm afraid "our law school traditions" would be more accurate. When he says "we should see judicial interpretation as a special case of the citizen's perspective," he either does not see, or wants his readers not to see, that this "special case" is all about judges telling citizens they can take their "perspective" and go soak their heads.

My excerpts of this (by now voluminous) exchange may not be wholly representative, so I encourage folks to read the interlocutors' comments in their entirety.

UPDATE: Balkin bites back. A taste:

The central disagreement between Matt and myself has been my distinction between "original meaning" and "original expected application." Matt, who subscribes to originalism as "original understanding," argues that my distinction "is untenable and unacceptable" for himself "and for any other orignalists [he] can think of." . . .

My central claim has been that Matt's version of originalism, which asks how people living at the time of adoption would have understood how the constitutional text should be applied, is "untenable and unacceptable," to use his words. It is untenable and unacceptable because no one living today could consistently use his model of originalism to guide their conduct in politics or in law. . . .

Most Americans would be appalled at the consequences of the original understanding approach in both areas of rights and powers. That is true both of the readers of Balkinization, and the readers of National Review Online. It is true of liberals and conservatives, Democrats and Republicans. Original understanding originalism of the kind Matt is preaching, faithfully and consistently applied, does not legitimate the Constitution; it thoroughly delegitimates it.

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Sunday Song Lyric: This morning Hurricane Dean is bearing down on Jamaica. The impact could be devastating. The Cayman Islands could get their turn on Monday, followed by . . . ? Whether the U.S. or Mexico takes the next hit is still an open question. Will Dean be another Ivan or a Gilbert?

Chris Mooney's blog, The Intersection, is a great place to follow hurricanes and related development. Mooney, author of Storm World: Hurricanes, Politics, and the Battle over Global Warming, provides regular updates and commentary hurricanes and related issues. Mooney and I often disagree, but his site is worth regular visits. I've also just started Storm World, and I expect I'll have better things to say about it than his last book.

For a recent book event, Mooney posted a hurricane party playlist of songs with "hurricane" in the lyrics. It includes lots of obvious tracks, and a few surprises. There are also has some omissions. One hurricane song Mooney forgot (but a commenter remembered) is "Eye of the Hurricane" by The Alarm. "Rain in the Summertime," off the same album, might be more appropriate today, as I listen to the pattering on my patio, but this is a hurricane post. So, here's a lyrical selection from "Eye of the Hurricane":

The view from the hill looks bleak from where I stand
The waters are come in unto my soul
I can't cry no more my eyes are bone dry sore
There's a river of tears flowing down to the sea

I'm a desolate soul on a desolate shore
Destined to walk alone
Into the crucifix night
The storm of a cross
I live to love again and again
All my life

Oh eye of the hurricane
I walk away in the wind and the rain
Into the eye of the hurricane
Face to face
The full lyrics are available here.
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