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Saturday, September 8, 2007

New Kopel stuff:

In today's Rocky Mountain News media column, I praise the Denver Post's new website, PoliticsWest.com, which uses blog power to expand the paper's coverage of politics throughout the Rocky Mountains. My previous column dealt with a topic which I had first raised on the VC (and on which the comments provided good insight): the law and ethics of a talk radio host encouraging the videotaping of patrons of a swinger's club.

On my father's website, there's a new article which uses Labor Day to remember the Colorado state government's massacre of the striking coal miners at Ludlow, Colorado. In another column, he details the battle between then-Republican Governor Bill Owens and former Republican Secretary of State Natalie Meyer over casino regulation. Owens won in the short term, but Democratic Governor Bill Ritter is now carrying out Meyer's program for more regulatory employees.

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The Center Cannot Hold:

That is the title of a new book by Elyn R. Saks, law professor at USC, and it seems now a psychology and psychiatry professor there as well.

I was very taken by the gripping narrative of this book. The subtitle is My Journey Through Madness. Here is one short review. Here is an excerpt.

Oliver Sacks liked it too. He called it "The most lucid and hopeful memoir of living with schizophrenia I have ever read."

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Luciano Pavarotti, R.I.P.

There was a lot that was cartoonish, and even occasionally embarrassing, about Pavarotti and his career -- the hankie, the big smile, the mediocre crossover stuff he performed in the late stages of his career ... he was a little too much, sometimes, like the Italian Tenor right out of central casting ...
But man, could he sing . . . In the Fall of 1976, I had just moved back to New York after graduate school. My mother had a couple of tickets that she couldn't use to a "gala" fundraising concert at Carnegie Hall in honor of the (late) great American tenor Richard Tucker, and a friend and I took the tickets. Though we were both pretty serious (amateur) musicians, and had great passion for a pretty wide range of music, neither of us had ever paid much attention to vocal music or to opera. The concert (a succession of opera singers who came out and did one or two numbers each) was terrific, but Pavarotti, who came on last (if memory serves me), was beyond terrific -- he was incandescent. It was like nothing I had ever heard, and like nothing I had ever even imagined; I had absolutely no idea the human voice could sound so beautiful. He performed a couple of Neapolitan songs, and then "Nessun dorma" from Turandot (which later became his "signature" piece). I had never heard it before, let alone live in the concert hall, let alone sung like that. When he finished, we all went into a semi-hysterical state, screaming and shouting and generally going into a frenzy. It changed my life -- once you have an experience like that, how can you not want to have it again?
So I will take a moment today to thank him for that, and to mourn his passing and our loss.

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Why the Debate Over Socialism Isn't Over:

Many commenters on my post on "Israeli Kibbutzim and the Failure of Socialism" argue that socialism is a dead issue. Why, they ask, should we bother arguing against an ideology that is already so completely discredited? Their point is not without some merit. In most of the world, socialism has far fewer adherents today than at any time in the last 100 years.

Nonetheless, there are still some good reasons to continue the debate over socialism, and to explore the reasons why that ideology proved so disastrous in both theory and practice. First, to state the most obvious, there are still at least two governments that continue to practice full-blown socialism: Cuba and North Korea. It is important to understand the reasons why the people of those two nations live under such horrible oppression.

Second, it is far from impossible for socialism to stage a political recovery in the future. Especially when packaged with nationalism, socialist rhetoric still has tremendous appeal to many people. Hugo Chavez's political success in Venezuela is an example of how some of the most disastrous socialist policies can be successfully sold to the people if combined with nationalism - a lesson first taught by Hitler and Mussolini. Political entrepreneurs in other Third World nations may well try to emulate Chavez's successes; the same could even occur in parts of the developed world if economic conditions deteriorate sufficiently. And, as Bryan Caplan shows in this excellent paper (scroll down to the link marked "The Totalitarian Threat"), several likely future technological and political developments may increase the viability of socialist totalitarianism and render its reemergence more likely.

Third, full-blown socialism continues to have some important and respected advocates in the intellectual world. Yale economist John Roemer and Oxford political theorist G.A. Cohen are two of the most sophisticated, and both are leading scholars in their fields. There are other academic advocates of socialism who enjoy considerable followings despite the fact that their work is far less impressive than Cohen's and Roemer's, or is even downright dishonest (as in the case of Noam Chomsky's political writings). By contrast, there are virtually no intellectually respectable advocates of fascism (in the true, rather than the purely pejorative, sense of the word) or racism left in the Western world.

Fourth, even among those who agree that socialism has been an abject failure to date, there is disagreement about the reasons for that failure. Some defenders of socialism claim that it failed in the USSR and elsewhere only because of insufficient ideological fervor, negative attributes of Russian culture, the hostility of capitalist states, or other causes that do not discredit the ideology's core ideas. As I explained in my previous post, the failure of the Israeli kibbutz model is important precisely because it helps rule out some of these arguments.

Finally, some, though by no means all, of the shortcomings of full-blown socialism are shared by more moderate interventionist policies. The problems of knowledge, incentives, and political ignorance that undermines democratic control of big government are particularly important here.

For all these reasons, the debate over socialism is far from over. The spectre that once haunted Europe and the world may have been defeated and discredited. But we have not yet completed the task of driving a stake through its heart.

UPDATE: To avoid confusion, I should emphasize that in this post, as in the previous one, I use the term "socialism" to refer to government control of all or most of the means of production, not to more moderate departures from the free market, such as welfare statism or government regulation of industries that remain privately owned.

Related Posts (on one page):

  1. Why the Debate Over Socialism Isn't Over:
  2. Israeli Kibbutzim and the Failure of Socialism:
98 Comments

Friday, September 7, 2007

"Fixing" the Clean Water Act After Rapanos:

The audio of yesterday's Federalist Society program, "Enforcement of the Clean Water Act," discussing whether Congress needs to "fix" the Clean Water Act to extend federal regulatory jurisdiction after the Supreme Court's decision in Rapanos v. United States is available on-line here. I plan to post some of my thoughts about the program over the weekend.

Related Posts (on one page):

  1. "Fixing" the Clean Water Act:
  2. "Fixing" the Clean Water Act After Rapanos:
  3. Should Congress Overturn Rapanos?
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The Questions for Senator Thompson:

Below are the questions from VC readers which I just sent to Senator Thompson, purusant to his invitation. The readers came up with an excellent variety of questions, and I would be interested in Senator Thompson's answers to almost all of them. The campaign had only asked for 4-5 questions, and I streched by submitting 6; if there had been more questions, I would have included some of the questions on telecom policy, shrinking the federal government, and illegal immigration. I aimed for questions that were fairly specific, so as to elicit an answer (I hope) which reveals substance, rather than something that can be answered with broad platitudes. For example, Giuliani and Thompson both claim to strongly support the Second Amendment, and the Court of Appeals ruling in the DC ban on handguns and on armed self-defense; so I picked a gun question that invites a precise answer, and which could reveal differences between the candidates. In general, I aimed for forward-loooking questions ("what would you do" rather than "what would you have done?" questions). For almost all the questions, I made slight editing changes (and some I added a subquestion to get some precise information about future policy).

In general, I think that all of the questions raise important issues, and that most of them are unlikely to get asked in a standard debate format. If any other Presidential candidates want to solicit questions from VC readers, they are of course welcome to do so!

1. What is your view of civil asset forfeiture in the absence of a criminal conviction? Would you make any changes in current executive branch policies, or propose any changes in federal forfeiture laws?

2. Do you believe that Gonzales v. Raich was correctly decided? If you were President, would your Department of Justice take action against patients and providers of medical marijuana who were acting in compliance with state law?

3. If Roe v Wade were overturned, would your commitment to federalism compel you to veto a congressional bill banning abortion? Or in a post-Roe world would you seek to ban abortion by federal law regardless of the wishes of the individual states?

4. Which Attorney General do you most admire? Why?

5. Which, if any, federal gun control laws do you support repealing?

6. You were instrumental in securing passage of McCain-Feingold. Have your views on either the law's effectiveness or constitutionality changed in the years since it was passed, and what would you do about the continually-increasing purview of the Federal Elections Commission? Would you favor new legislation to protect the Internet or non-profits from McCain-Feingold?

Related Posts (on one page):

  1. The Questions for Senator Thompson:
  2. Ask Fred Thompson a question:
23 Comments
Religious Endorsement Case Heading to the Supreme Court?

I just read the Ninth Circuit's decision from yesterday in Buono v. Kempthorne, and it strikes me as having a good chance of going up to the Supreme Court. Buono is the latest decision in the Mojave Sunrise Rock cross case:

A Latin cross sits atop a prominent rock outcropping known as “Sunrise Rock” in the Mojave National Preserve (“Preserve”). Our court previously held that the presence of the cross in the Preserve -- which consists of more than 90 percent federally-owned land, including the land where the cross is situated -- violates the Establishment Clause of the United States Constitution. We affirmed the district court’s judgment permanently enjoining the government “from permitting the display of the Latin cross in the area of Sunrise Rock in the Mojave National Preserve.”

During the pendency of the first appeal, Congress enacted a statute directing that the land on which the cross is situated be transferred to a private organization in exchange for a parcel of privately-owned land located elsewhere in the Preserve. That land exchange is already in progress and would leave a little donut hole of land with a cross in the midst of a vast federal preserve. The issue we address today is whether the land exchange violates the district court’s permanent injunction. We conclude that it does, and affirm the district court’s order permanently enjoining the government from effectuating the land exchange and ordering the government to comply with the original injunction.

The government, you may recall, argues that the cross is a constitutionally permissible war memorial, rather than an attempt to endorse Christianity. The Ninth Circuit has rejected this view, and has consistently -- including in this latest decision -- concluded that the government action has endorsed Christianity, and thus violated the Establishment Clause.

Here's my thinking on the chances of Supreme Court review:

(1) The Ninth Circuit expressly acknowledges that it disagrees with the Seventh Circuit on when the government's sale of a religious monument eliminates any Establishment Clause problems. There's a split here not only with Freedom from Religion Foundation, Inc. v. City of Marshfield, 203 F.3d 487 (7th Cir. 2000), which generally adopted a presumption that "a sale of real property is an effective way for a public body to end its inappropriate endorsement of religion" yet still found an Establishment Clause violation, but also with Mercier v. Fraternal Order of Eagles, 395 F.3d 693 (7th Cir. 2005), which applied the presumption and found no Establishment Clause violation. Buono could be factually distinguished from the other cases, especially since Establishment Clause jurisprudence has gotten so fact-dependent. But the reasoning of the Ninth Circuit's and Seventh Circuit's approach is sufficiently inconsistent that I think a Court would see a serious circuit split here, and the presence of such a split is generally a factor in favor of Supreme Court review.

(2) The Ninth Circuit expressly holds unconstitutional an Act of Congress, not just an executive branch action. Such a split among federal branches -- the legislature and the executive going way and a circuit court going the other -- is also a factor in favor of Supreme Court review.

(3) I anticipate that the Solicitor General's office will expressly ask for certiorari, both given the current Administration's view on such matters and given the likelihood that defending the cross will prove to be popular with most voters. And the SG's request for review is a factor in favor of Supreme Court as well.

(4) Finally, my sense is that the replacement of Justice O'Connor with Justice Alito may provide five votes for rejecting the endorsement test altogether. And while this case can be decided even without rejecting the endorsement test, I suspect that several Justices will be willing to use the case as a vehicle for rejecting that test. If there are four Justices who want to move the law in a particular direction, and think that there will be five votes for such a result, then it seems fairly likely that those four will vote to hear the case. (Recall that it takes only four votes for the Supreme Court to agree to hear a case.)

In any case, that's my tentative thinking on the subject. What do others think?

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California legislature passes gay marriage bill for second time:

Story here. Voting for gay marriage in 2005 had no discernible effect on the careers of those voting for it. California's remains the only state legislature to vote for this.

The governor will veto the bill, as he did in 2005, citing a popular referendum vote in 2000 against gay marriage. However, unless the state constitution is amended in the interim, it seems just a matter of time before California gets a governor and legislature in agreement for same-sex marriage.

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Why Cert Always Pushed the Bush Administration: This excerpt from Jack Goldsmith's new book is fascinating. Among other things, it seems to explain why the Bush Administration always responded to the prospect of Supreme Court review of terrorism cases by tempering its previously hard line: the significant prospect of Supreme Court reversal in the near term was just about the only thing that would persuade David Addington to compromise, and David Addington's view nearly always prevailed.

  UPDATE: In case you haven't had enough of Jack over the last few days, here's a video interview of him by Dahlia Lithwick. It's very much worth watching.
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Warshak Files Reponse; Sixth Circuit Rejects All Amicus Submissions: Here's an update on Warshak v. United States, the Sixth Circuit case on e-mail privacy that I have blogged a lot about. There are two significant developments in the case. The first development is that counsel for Warshak filed his opposition to the petition for rehearing last week. You can read that brief here. I think it's quite weak for all the reasons I have explained in my amicus brief, as well as in my many posts on these issues, but at least we know what arguments Warshak has to make.

  The second development is that the Sixth Circuit rejected all three amicus briefs submitted for or against rehearing. On Wednesday, both the Electronic Frontier Foundation (joined by CDT and the ACLU of Ohio) and a group of law professors tried to file amicus briefs opposing the petition for rehearing. Here is EFF's submission; here's the lawprof brief. Yesterday we learned that the Sixth Circuit is refusing all three briefs; the EFF brief, the lawprof group brief, and my own brief.

  Why the Sixth Circuit rejected all the amicus briefs remains somewhat unclear, but there is reason to think the court interpreted Fed R. App. Pro. 40(a)(3) to disallow amicus briefs at the rehearing stage. That Rule states that "[u]nless the court requests, no answer to a petition for panel rehearing is permitted." In this case, the court requested an answer to the petition for rehearing: Warshak was ordered to respond. However, there's some reason to think that the court is interpreting amicus briefs as "answers" and reading the Rule to mean that no amicus briefs are permitted with respect to any rehearing issues unless the court specifically invites that particular brief. Before I filed my brief I had reason to think this wasn't the Sixth Circuit's approach to the rule, but as best I can tell that is now the court's interpretation. (Some circuits have local rules that specifically address this issue; the Sixth Circuit does not.)

  Obviously this is somewhat frustrating in light of the time and resources to write the brief and submit it, as well as in light of the strong public interest in the judges having a better understanding of this case. In any event, I hope the Sixth Circuit appreciates the substantial and important problems with the panel decision and grants the petition for rehearing. And on the bright side, I understand the $200 I spent to join the Sixth Circuit bar will bring me a lovely certificate suitable for framing.
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Attorney Sanctioned for Plagiarizing Article in His Brief:

Among other things, the court held that even copying a long string citation, including the parentheticals, constituted plagiarism. Also, the court's reasoning would seem to apply to copying from others' briefs as well as to copying from others' articles.

In support of his argument for removal of counsel, Mr. [Peter] Cannon, on behalf of his client, filed an eighteen-page brief titled "Defendants (sic) Brief in Support of Removal of Attorneys for the Trustee" on November 3, 2006 .... On November 17th, Defendant filed a nine-page post-hearing brief titled "Defendants (sic) Post Hearing Brief in Support of Removal of Attorneys for Trustee." Mr. Cannon, as counsel for Defendant, signed both briefs....

Seventeen of the nineteen total pages in the pre-hearing brief are verbatim excerpts from the Article [Why Professionals Must Be Interested in "Disinterestedness" Under the Bankruptcy Code, by William H. Schrag and Mark C. Haut of Morgan, Lewis & Bockius LLP]. Mr. Cannon added some introductory material, a one-page section titled "Argument," and a conclusion. In between the introduction and argument, most of the first twenty pages of the Article are reproduced verbatim [without attribution]....

While Mr. Cannon's post-hearing brief contains more original material than his pre-hearing brief, it still continues to borrow heavily from the Article. Mr. Cannon wrote much of the brief's text, but reproduced string citations from the Article for supporting authority. The citations he selected are presented in the same order in which they appear in the Article, with the same parenthetical explanations. Aside from these reproduced citations, Mr. Cannon did not add any case law in support of his position.... Mr. Cannon ... takes the position that the act of copying citations was not plagiarism....

It is a violation of the Iowa Rules of Professional Conduct for an attorney to "engage in conduct involving dishonesty, fraud, deceit, or misrepresentation." Iowa Rules of Prof'l Conduct R. 32:8.4. Plagiarism, which is "[t]he deliberate and knowing presentation of another person's original ideas or creative expressions as one's own," Black's Law Dictionary (8th ed. 2004), is a form of misrepresentation. Iowa Supreme Court Bd. of Prof'l Ethics & Conduct v. Lane, 642 N.W.2d 296, 300 (2002); accord In re Lamberis, 443 N.E.2d 549 (Ill. 1982) (finding plagiarism constitutes deceit under Illinois Code of Professional Responsibility); cf. United States v. Jackson, 64 F.3d 1213, 1219 n.2 (8th Cir. 1995) (disapproving of a brief that "directly track[ed]" a circuit court opinion which the attorney did not cite)....

[A]t least one court has found that reproducing material consisting primarily of citations is in fact plagiarism. See Frith v. State, 325 N.E.2d 186, 188 (Ind. 1975) (attorney who reproduced more than ten pages of an American Law Report in his brief committed plagiarism).... The particular citations appropriated by Mr. Cannon list dozens of cases, and provide a quote or synopsis for each case that explains its relevance to the authors' argument. By passing off these citations as his own, Mr. Cannon plagiarized Schrag and Haut's ideas and expressions just as surely as if he had copied an equivalent amount of text....

Mr. Cannon's acts of plagiarism burden the Court, undercut his client's cause, and generate criticism of the legal profession. Moreover, parroting a scholarly article in this way is not an effective type of advocacy. See Frith, 325 N.E. 2d at 189. More fundamentally, Mr. Cannon's disregard for the true authors' property rights in their ideas reveals a lack of integrity that reflects poorly on the legal profession. Lane, 642 N.W.2d at 300; Lamberis, 443 N.E.2d at 551. The egregiousness of Mr. Cannon's conduct requires an appropriate sanction....

Because Mr. Cannon does not appreciate the nature of plagiarism, a continuing education class will not cure his ethical shortcomings. Mr. Cannon's deficiency calls for the more-involved method of instruction offered in a law school course on professional responsibility. Mr. Cannon may complete the course at an accredited law school or arrange for private instruction from a professor of one of these institutions.

In re Burghoff (S.D. Iowa Aug. 21) (some citations omitted). Thanks to David Shemano for the pointer.

99 Comments
Resolving the Goldsmith Contradiction:

Some of Glenn Reynolds/Instapundit's readers claim that there is a contradiction between his claim that Jack Goldsmith's new book on the War On Terror criticizes excessive legal constraints on presidential wartime authority, and Jonathan Adler and Orin Kerr's characterization of Goldsmith as criticizing the Bush Administration's assertions of virtually unlimited presidential power in time of war.

In reality, there is no contradiction here. Glenn is right to point out that Goldsmith believes that pre-9/11 law constrained presidential wartime authority too much, and that some of the Bush Administration's efforts were undercut by those constraints. But Orin and Jonathan are also correct in pointing out that Goldsmith disapproved of the Bush Administration's response to the problem. Instead of working with Congress and the courts to change overly restrictive laws (Goldsmith's preferred strategy), the Administration chose to claim that they already had the power to do almost anything the president might want to, so long as it has even a remote connection to waging the war. As Goldsmith argues, this approach is bad law because the Constitution does in fact allow congressional and judicial restriction of the president's warmaking powers, and in some cases even requires it (for my take on these issues in a debate with John Yoo and others, see here).

Goldsmith also argues that the Bush Administration's approach was politically counterproductive and led to an actual diminution of the executive authority that the administration sought to enhance. Bush's overreaching generated a backlash in Congress and the courts that eventually led to stronger curbs on executive power than would have existed had the Administration tried to work with Congress early on and made less sweeping (but still broad) claims of inherent presidential power. As Goldsmith himself puts it, “They [the Bush Administration] embraced this vision because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it.”

In sum, Goldsmith believes that the War on Terror has been hobbled by excessive legal constraints, but also argues that the Bush Administration's response to the problem was both legally dubious and politically counterproductive. In my view, he is largely correct on both counts.

Related Posts (on one page):

  1. More from Jack Goldsmith:
  2. Resolving the Goldsmith Contradiction:
  3. The Conscience of Jack Goldsmith:
116 Comments
Israeli Kibbutzim and the Failure of Socialism:

Nobel Prize-winning economist Gary Becker has a fascinating post on Israel's kibbutzim. The kibbutzim are Israeli agricultural communities initially organized on socialist lines, mostly between the 1910s and 1950s. Originally, most kibbutzim followed strict socialist policies forbidding private property; they also required near-total equality of income regardless of differences in productivity, and in some cases even abandoned specialization of labor. In recent years, Becker points out, most of the kibbutzim have had to abandon these policies, due to the perverse incentives they create and their inability to to hold on to their more talented younger residents.

As Becker puts it, "nowhere is the failure of socialism clearer than in the radical transformation of the Israeli kibbutz." If a socialist experiment could ever succeed, it should have done so in this case. Most kibbutzim were founded by highly motivated volunteers strongly committed to socialist ideology. For many years, kibbutzim had great prestige in Israeli society, and many of the nation's early leaders were kibbutz members. After Israel became an independent state in 1948, the kibbutzim also benefited from extensive government subsidies. Unlike other socialist experiments, the failure of the kibbutzim cannot be ascribed to lack of ideological fervor, inadequate resources, or hostility from the surrounding "capitalist" society. Despite these advantages, kibbutzim failed to achieve a high level of economic productivity, and even failed to retain the loyalty of many of their own members. Over time, many kibbutz residents became frustrated with the perverse incentives created by socialism, and many also yearned for the individual freedom and privacy created by private property rights.

Only by watering down or abandoning their comitment to socialism have kibbutzim been able to survive. If socialism cannot work under the highly favorable circumstances of the Israeli kibbutz, it almost certainly cannot work anywhere.

Of course there is one advantage that socialist governments enjoy that the kibbutzim did not. Unlike a kibbutz, a totalitarian socialist state can use its secret police to suppress dissent and force the people to work for the state whether they want to or not. This explains why Israel's kibbutzim have mostly abandoned socialism, while North Korea and Cuba have not. When given a choice (as in Eastern Europe after 1989), the people of socialist states have rejected socialism even more decisively than most Israeli kibbutzim eventually did.

The failure of socialist kibbutzim does not prove that small, voluntary communities should abjure all communal property. To the contrary, scholars such as Elinor Ostrom have shown that voluntary social groups can often manage common property resources effectively if they also have private property as well. In Israel itself, the less famous moshavim have enjoyed much greater success than the kibbutz model. Unlike the original kibbutz, moshav members hold their land as private property and are paid at least in part on the basis of performance; at the same time, moshavim also often have considerably communal property as well, managed by rules that try to curtail free-riding and the "tragedy of the commons." Small-scale experiments in limited communal property can sometimes work. Indeed, they are perfectly consistent with free-market libertarianism, so long as they remain purely voluntary in nature. By contrast, the kibbutz experience shows that experiments in full-blown socialism are likely to fail even under very favorable conditions. A free society should not ban the formation of voluntary collectivist communities. However, their debilitating shortcomings provide a valuable lesson in the virtues of private property.

Related Posts (on one page):

  1. Why the Debate Over Socialism Isn't Over:
  2. Israeli Kibbutzim and the Failure of Socialism:
62 Comments

Thursday, September 6, 2007

Ed Whelan on Jack Goldsmith's Book: Over at Bench Memos, Ed Whelan has a four-part series of posts on Jack Goldsmith's new book: Part 1, Part 2, Part 3, and Part 4.
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Revised Nondisclosure Provisions of NSL Authority Still Violate the First Amendment, Judge Marrero Rules: In 2004, Judge Marrerro struck down 18 U.S.C. 2709, the 1986 National Security Security letter provision of the Electronic Communications Privacy Act (modified by the Patriot Act), on Fourth Amendment and First Amendment grounds. My primary blog post about the 2004 case, the 122-page opinion in Doe v. Ashcroft, was here. In 2006, the Patriot Act reauthorization act amended 2709 in response to Judge Marrero's decision. Today, Judge Marrero struck down the new version of 2709 as well in a decision you can read here. Today's decision in Doe v. Gonzales is a mere 106 pages long, and it concludes that the nondisclosre provision violates the First Amendment and "the separation of powers."

  Based on a quick skim, Judge Marrero's argument seems to be that a non-disclosure order is a prior restraint and content-based speech restriction triggering strict scrutiny, and that the procedural safeguards put in place in 2006 are still not enough to satisfy the narrow tailoring requirement. Perhaps the most interesting part of Judge Marrero's opinion, and the one that will probably draw the most attention, is the Judge's rather dramatic lecture about the essential role of Judges in the American form of government. (See around pages 65-75) I can't figure out what work it really does — I think we all understand judicial review — but it's certainly consistent with the style of Judge Marrero's 2004 opinion. As for the First Amendment arguments, I'm not enough of a First Amendment pro to know whether they are persuasive. I'll save that for Eugene, should he be so inclined.
19 Comments
Latin Phrases Law Students Should Know, But Likely Don't:

What Latin phrases should law students learn -- perhaps by way of my mentioning them in class (I do a little language riddle in class for a couple of minutes once a week)? I'm not looking for phrases that are legal terms of art that they'll learn in the relevant class, such as res judicata, habeas corpus, and the like.

Rather, I have in mind things like e.g., i.e., viz., prima facie, sui generis, inter alia, in camera, et al., and such -- common phrases that arise in many areas of the law, yet ones that many incoming law students may not know, and that they won't learn in any of their other classes. Students should understand these phrases, and know how to use them right (though in some situations the best solution is not to use them at all; for instance, better say "among other things" than "inter alia").

Please pass along your suggestions in the comments. Again, please focus on phrases that are common enough in the law to be worth mentioning, but that are likely not to be known to nonlawyers (or, as with e.g. and i.e., likely to be confused by nonlawyers).

178 Comments
The Joys of Wearing a Volokh Conspiracy T-Shirt: Reader David Huberman writes in:
Got my VC t-shirt the other day and am wearing it 'about town' presently. Two people have asked me about it so far (one at the bagel shop this morning, one co-worker in the office today). Fun stuff!
Why let David Huberman have all the fun? You can order your very own official Volokh Conspiracy t-shirt here. (Of course, if you want a reaction from co-workers, it probably helps to have a job where you can wear a t-shirt.)
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Glenn Reynolds is Reading Jack Goldsmith's Book, and has interesting excerpts and comments here. An Instapundit reader asks:
Do the Volokh guys have the same book? . . . They (and the Washington Post, I suppose) make it sound like Goldsmith views the administration as a cabal of anarchofascists, actively destroying the laws that should apply to them even when it would be easier to get Congress and the courts to just change the law to suit their needs better. Your post on the book has a somewhat different feel. Are you all reading the same book?
As Glenn imagines, we're not reading the same book because we (or at least I) don't yet have the book. I gather the publisher sent Glenn a pre-publication copy, as the book hasn't been published yet (the official publication date is 9/17).
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Bizzare Mearsheimer and Walt Self-Defense:

It will probably be some time before I get around to reading the new "Israel Lobby" book, but the book's web page links to a response to critics by Mearsheimer and Walt written late last year. The defense makes some reasonable points, especially with regard to some of their more emotive critics, but in general reflects M & W's unwillingness to give even an inch to their critics, or to correct even their most egregious misstatements.

The defense also reflects the same general blindness regarding the scope and power of the "Israel Lobby" as in their original paper. In particular, M & W assume that not only are all neonconservatives part of what they call the Israel Lobby, but, truly odiously, they clearly believe that any position taken by any neoconservative with regard to the Middle East, including neoconservatives serving in the Bush Administration, reflects solely or primarily his or her desire to help Israel (e.g., "we said that it was groups in the lobby, and especially a number of prominent neoconservatives, that played key roles in driving the decision for war"). Yet, as I've pointed out repeatedly, M & W fail to show how the neocons' aggressive attitude toward Iraq and Saddam Hussein differs in any material way from their aggressive attitude toward every other perceived American enemy (or, in the case of Yugoslavia, even some non-enemies) for the past thirty-five years. I'm still waiting for the explanation of how neocon support for U.S. military action against Serbia was meant to serve Israel's interest, as if intervening on behalf of Serbian Muslims and the formerly generally pro-Nazi Croats was high on the pro-Israel agenda. Or are neoconservatives only acting as part of the "Israel Lobby" when it suits M & W's thesis?

At some points, M & W's defense of their position, even on tangential matters, is simply risible, to wit:

The myth that we referred to is the famous claim that the Palestinians voluntarily fled from Palestine and that they did so because their leaders in institutions like the Arab Higher Committee asked them to leave. The leaders’ alleged aim in ordering this flight was to clear the way for the attacking Arab militaries to destroy the fledging Jewish state. Once that task was completed, the Palestinians would be able to return to their homeland…. No serious scholar accepts it… To be sure, some Arab commanders did instruct Palestinian civilians to evacuate their homes during the fighting, either to make sure that they did not get caught in a firefight or to [protect them from Israeli forces]…. However, [orders of this kind] are not related to the myth of a voluntary or elite-directed evacuation that we discussed in our article. [I've warned of ellipses before, not to mention paraphrasing, so you can check the original yourself, I'm not distorting the meaning here.]

So what is the difference between ordering Palestinians to flee "to clear the way for the attacking Arab militaries to destroy the fledging Jewish state" and ordering Palestinians to flee to "make sure they did not get caught in a firefight"? How would they have gotten "caught in a firefight" except via the war launched by the Arabs against the new Israeli state? And how is the latter concession by M & W not evidence supporting the purported "myth" of an elite-directed evacuation?

When authors have to engage in such (il)logical somersaults to avoid conceding that they merely overstated their point on a tangential issue, one has to wonder to what extent they have become so wedded to defending every minor detail of their thesis that they have no intention or desire to make their work academically respectable.

UPDATE: Courtesy of Google books, you can see precisely what Israeli historian Benny Morris says about the issue. According to M & W, Morris agree with them, at least in his historical work on this issue. As you can see, this is false. Morris writes, for example, "starting in December 1947, Arab officers ordered the complete evacuation of specific villages in certain areas, lest the inhabitants 'treacherously' acquiesce in Israeli military rule or hamper Arab military deployments." This is a far cry from M & W's claim that there is a historical consensus, joined by Morris, that Arab leaders only ordered the population to flee to avoid a (looming?) crossfire or to forestall massacres. Morris, in fact, is clearly stating that Arab officers ordered Arab civilians to flee to prevent them from living peacefully under Israeli rule.

FURTHER UPDATE: Some commentors are arguing that the "myth" referred to by M&W is not that Arab leaders urged the local Arab population of Palestine to leave, but their motives in doing so. This interpretation is belied by what M & W wrote in the original paper: "Israeli officials have long claimed that the Arabs fled because their leaders told them to, but careful scholarship (much of it by Israeli historians like Morris) have demolished this myth. In fact, most Arab leaders urged the Palestinian population to stay home, but fear of violent death at the hands of Zionist forces led most of them to flee." The alleged myth, then, is clearly that "the Arabs fled because their leaders told them to," which M & W now acknowledge is true to some extent. (Not to mention that part of the alleged "myth" has always been that part of the propaganda effort by Arab leaders urging the local Arabs to flee is that they spread lurid and generally false propaganda about "Zionist massacres"; there is no contradiction between saying that the Arabs left because their leaders wanted them to, and saying they left because they feared for their lives, if the fear itself was stoked by their leaders.) Instead of conceding the point, which they could have done while still maintaining that this was not the main factor causing the Arabs to flee, M & W engage in casuistry.

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Ask Fred Thompson a question:

Would you like to ask presidential candidate Fred Thompson a question? Especially a question on a legal topic? The Thompson campaign has solicited questions from several leading weblogs, including this one. Here's the announcement:

On Thursday, Fred Thompson will be kicking off his campaign for the presidency in Des Moines, IA, touring through the early primary states of Iowa, New Hampshire and South Carolina before visiting Florida and returning to Lawrenceburg, TN for a homecoming celebration.

While on this tour, Fred Thompson will be answering the tough questions, whether they come from a voter at a town hall meeting in New Hampshire or from the nation’s top journalists. However, Fred wants to make sure that you get a chance to get your questions answered as well, so we're asking some bloggers to help us pick good questions from you. The bloggers will solicit your questions, select the best questions and send them to Fred Thompson to answer. Fred will be responding to some of your questions each day via video and posting those responses to our website.

We invite you to submit a question for Fred here, and check http://fred08.com/ often for Fred's dispatches from the road.

Just enter your question in the Comments section. I will select the best four or five, and pass them on to the Thompson campaign. Questions on law topics are strongly favored. Comments which do not appear to be serious questions may be deleted.

Related Posts (on one page):

  1. The Questions for Senator Thompson:
  2. Ask Fred Thompson a question:
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Golan v. Gonzales and First Amendment Limits on Copyright Law: Both Larry Lessig and Jack Balkin have very interesting posts on Golan v. Gonzales, a fascinating Tenth Circuit case (argued by Larry) that went most of the way towards striking down section 514 of the Uruguay Round Agreements Act on First Amendment grounds. As I understand it, this section of the act restored the copyright of some foreign materials that had fallen into the public domain; it was passed to satisfy the U.S. treaty obligation to afford the same copyright protection to foreign authors as U.S. law provides to U.S. authors. Golan's argument is that taking the materials out of the public domain violated the First Amendment.

   Lessig's theory that the Tenth Circuit embraced in Golan is based on the following passage in Eldred v. Ashcroft:
The First Amendment securely protects the freedom to make — or decline to make — one's own speech; it bears less heavily when speakers assert the right to make other people’s speeches. To the extent such assertions raise First Amendment concerns, copyright's built-in free speech safeguards are generally adequate to address them. We recognize that the D. C. Circuit spoke too broadly when it declared copyrights "categorically immune from challenges under the First Amendment." 239 F. 3d, at 375. But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.
  In Golan, the Tenth Circuit read this to mean that if Congress has altered the traditional contours of copyright protection, then the law must be then subjected to "further" First Amendment scrutiny. The Tenth Circuit concluded that the Act did in fact alter those traditional contours by taking material that had been in the public domain and then subjecting them to copyright. But the panel wasn't really sure what to do next; they remanded to the district court to figure out how to "subject" the law to "further" First Amendment scrutiny.

  Jack is right that "[t]his decision is quite important because it builds out from Eldred-- a case that most people saw as a loss-- the beginnings of a first amendment jurisprudence that would limit copyright." But I wonder how far that First Amendment jurisprudence will get, and in particular whether the Supreme Court will be on board. Reading over Eldred, I tend to doubt the Justices intended the "traditional contours" language to have the broad meaning that Larry (and the Tenth Circuit) thinks it means. My guess is that the Justices left open the First Amendment door just in case Congress tries something really wacky. But I wouldn't be surprised if the Justices don't find this amendment — passed, as I understand it, to satisfy a treaty obligation and harmonize the law — particularly wacky.

  It probably will take a while before we know what the Justices think, though. The Tenth Circuit panel didn't actually resolve the constitutional issue, so the Justice Department doesn't anything to work with yet for a cert petition. My guess is that the issue will percolate around for a bit before the Justices get involved.
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Wednesday, September 5, 2007

Re-examining Television of the 1960s and 1970s:

Thanks to Netflix, I have been practicing my French skills by watching television shows from the 1960s and 1970s which have dialogue in French. It's very impressive how the French producers (or whoever did the dubbing) found actors whose intonations and emotional style are so close to that of the English language actors. However, not all the shows seem as excellent now as they did to me back then. It really is fair to say that a lot of "big 3" network television shows today are much more sophisticated than the network fare of past eras. My retrospective analysis:

The Mary Tyler Moore Show. Still great after all these years. One of the best ensemble casts ever to appear on television. I just wish that those two guys who always sat at desks in the back of the newsroom had gotten a line once in a while.

The Flintstones. Hideous. It's frightening to think that this was a prime-time evening show (not a Saturday morning cartoon) from 1960-66. And the repeated backgrounds (e.g., during driving scenes) drive me crazy.

The Time Tunnel. Lots of fun. And some great guest appearances--such as Carroll O'Connor as a British commander at the Battle of New Orleans and as his descendant, a modern American General.

MASH. A very strong cast, but insufferably didactic scripts and plots. By comparison, the moral lessons in "Veggie Tales" are understated and subtle.

Lost in Space. Not nearly as good the second time around. Mainly because the plots always involve Dr. Smith doing something stupid and getting everyone into trouble, with Will and the Robot coming along for the ride. The rest of the cast is underutilized, especially the girls.

Planet of the Apes. I didn't watch this one when it first aired, but it's pretty good so far. The individual episodes have a broad enough variety of ape and human personality types to keep things interesting.

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Ethanol Is Bad for Water Supplies Too:

From "How Ethanol Is Making the Farm Belt Thirsty" in today's W$J (subscription):

Everywhere farmers grow corn, water is becoming a major concern as ethanol plants ramp up production at a startling rate and the threat of drought is ever-present. Rushing to help meet President Bush's call to cut gasoline use by 20% over the next 10 years, the ethanol industry has projects under way that would nearly double capacity from the current 6.8 billion gallons of ethanol a year.

A 50-million gallon ethanol plant might use about 150 million gallons of water to make fuel. That's more water than some small towns use, raising some local battles over placement of the plants. But farmers in [one Nebraska] district alone pumped 62.6 billion gallons of water from underground in 2005. That's why many water experts are more concerned about farmers growing more thirsty corn to meet the extra demand from ethanol than they are about the water used by the distilleries themselves.

And have I mentioned that ethanol subsidies and mandates are driving up corn prices and creating pressure to convert habitat into farmland? Promoting corn-based ethanol is not an environmentally sound energy policy. It's an anti-environmental energy policy.

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David Addington on the Separation of Powers: "We're going to push and push and push until some larger force makes us stop." (Source: Jack Goldsmith's new book, as reported in today's Washington Post.)
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Why Should Larry Craig Resign?:

OK, so he was caught soliciting sex in a public restroom. Not so good. But compare that with behavior by other Senators that is not leading to any resignations:

(1) Violating their oath to uphold the Constitution, by voting for legislation they believe to be unconstitutional, but arguing that they will let the courts sort it out.

(2) Voting to delegate massive legislative power to the executive branch, so they can claim credit for the feel-good nature of vague but popular legislation, while blaming the executive for its actual implementation.

(3) Voting for legislation that neither they nor any of their staff have read in its entirety, if at all.

(4) Providing costly earmarks in legislation to campaign contributors and local interests (in violation of Congress's constitutional duty to tax and spend only for the "general welfare").

(5) Accepting various forms of low-level graft that fly under the ethics radar, such as use of campaign donors' vacation homes and airplanes, family vacations disguised as fact-finding trips, spouses employed at inflated salaries by friendly interest groups, etc.

(6) General demagoguery, e.g., Democratic members anytime Medicare or Social Security reform comes up, and Republican members on federalizing criminal law, the War on Terror, flagburning, etc.

I could go on, and I'm not even considering Senators' support for legislation resulting in massive violations of Americans' rights (McCain-Feingold, the War on Drugs). Compared to the every day malfeasance by Senators, accepted as business as usual, I'll take a misdemeanor sex scandal any time.

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Libertarianism and Restrictions on Trade With Socialist States:

Libertarianism is generally seen as requiring free trade. Certainly, libertarian thinkers from Adam Smith to the present have strongly condemned protectionism. How then can a libertarian endorse trade restrictions such as the Jackson-Vanik Amendment, which denied free trade to totalitarian states that refused to allow their citizens to emigrate freely?

Perhaps I am blinded by my parochial interest in the Jackson-Vanik Amendment, but I think there is a compelling answer to this question. Libertarianism does indeed imply free trade between private individuals and firms. But trade with socialist governments is very different. When two private individuals trade with each other, it is reasonable to assume that both legitimately own the goods they exchange. Thus, at least as far as libertarians are concerned, the law should not restrict their transactions unless there is specific proof that one or both are trading in stolen or otherwise illicitly acquired goods. By contrast, a socialist state engaging in international trade is usually exchanging goods that it forcibly acquired from its citizens. The socialist state's goods are either confiscated from former private owners or produced by compelling workers to work for the state (which they generally must do whether they want to or not, because there is no competitive employment market). Socialist states also make extensive use of out and out forced labor. In a true socialist state - one where the government owns all the means of production and the state has a monopoly of foreign trade - trade in forcibly acquired goods is the only kind of international exchange that is possible at all. Just as in the domestic context libertarianism is perfectly consistent with forbidding trade in stolen goods, in the international context it is consistent with forbidding trade with socialist governments that, by definition (as libertarians see it), have acquired their wealth by plundering their citizens.

True socialist states must be distinguished from nominally socialist societies (such as China today) that nonetheless permit a large private sector to exist and engage in international trade. However, the USSR at the time of the Jackson-Vanik Amendment (like Cuba and North Korea today) was a fully socialist society with almost no private enterprise and a complete government monopoly of foreign trade.

Restrictions on trade with socialist states may or may not be good policy. Sometimes trade with such states can serve important strategic interests (as with US trade with the Soviet Union when the two nations were allied during World War II). Critics of trade sanctions claim that they fail to achieve their goals and may even be counterproductive. Be that as it may, restricting trade with socialist states does not violate any libertarian principles.

Related Posts (on one page):

  1. Libertarianism and Restrictions on Trade With Socialist States:
  2. Representative Charles Vanik, RIP:
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Representative Charles Vanik, RIP:

Former Democratic Representative Charles Vanik passed away recently. Although Rep. Vanik and I disagreed on most major political issues, I nonetheless owe him a debt that can never be repaid.

In 1974, Vanik and Democratic Senator Henry "Scoop" Jackson co-sponsored the Jackson-Vanik Amendment, which denied the Soviet Union and some other totalitarian states "most favored nation" trade status unless they permitted free emigration of their citizens. The Amendment was passed by Congress despite the opposition of the Nixon Administration.

In part as a result of the pressure brought to bear by the Amendment, the USSR began to allow the emigration of Soviet Jews and members of several other ethnic and religious minority groups, such as Germans, Armenians, and Pentecostals. Were it not for the efforts of Jackson, Vanik, and their supporters, hundreds of thousands of people - including our senior Conspirator and myself - might have been trapped in a totalitarian state for many years longer. The Russian immigrant community in this country owes Representative Vanik a great debt. My respectful condolences to his family and friends.

UPDATE: Here is a more extensive obituary in the New York Times. It includes a great quote by Rep. Vanik:

In 1988, five years after Mr. Jackson died, the Soviet leader Mikhail S. Gorbachev urged the amendment to be scrapped, saying: “Why should the dead hold onto the coattails of the living? I mean the Jackson-Vanik amendment. One of them is already physically dead. The other is politically dead.”

. . . Mr. Vanik countered: “Lenin has been dead for a long time, and they still live under his guidance.”

UPDATE #2: The Jackson-Vanik Amendment and other similar legislation raise an interesting issue in libertarian theory - whether libertarianism is consistent with restrictions on trade with socialist states. I do not think it is appropriate to address that issue in an obituary post. So I will instead consider it in a follow-up. Comments on that issue should also be attached to the follow-up post rather than this one.

Related Posts (on one page):

  1. Libertarianism and Restrictions on Trade With Socialist States:
  2. Representative Charles Vanik, RIP:
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Tuesday, September 4, 2007

Sen. Craig Might Not Resign After All:

The AP reports:

Sen. Larry Craig is reconsidering his decision to resign after his arrest in a Minnesota airport sex sting and may still fight for his Senate seat, his spokesman said Tuesday evening.

"It's not such a foregone conclusion anymore, that the only thing he could do was resign," Sidney Smith, Craig's spokesman in Idaho's capital, told The Associated Press.

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Should Congress Overturn Rapanos?

This Thursday I will be participating in a panel, "Enforcement of the Clean Water Act," sponsored by the Federalist Society's Environmental Law and Property Rights Practice Group in Washington, D.C. Also appearing on the panel will be Maryland Law Professor Robert Percival, Vermont Law Professor Patrick Parenteau, and Reed Hopper of the Pacific Legal Foundation. George Mason Law Professor Steven Eagle will moderate. The panel will discuss the impact of the Supreme Court's decision in Rapanos v. United States, the subsequent Corps/EPA guidance on federal Clean Water Act jurisdiction, and proposed legislation to overturn the Supreme Court's Rapanos decision by, among other things, explicitly asserting federal jurisdiction over all waters and wetlands in the United States, irrespective of their relationship or connection to navigable waterways. Details here.

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Who's to Blame for Global Warming,:

according to "Clare Short, a member of the British Parliament and Secretary for International Development under Prime Minister Tony Blair until she resigned in 2003 over the Iraq war"? One hint--it's not the Protestants.

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Federal Prosecutors Argue Self-Defense Is Irrelevant When Enhancing Sentence for Firearms Possession:

Sentencing Guideline 2K2.1(b)(5) (now advisory, not binding) calls on judges to substantially increase a convicted defendant's sentence where he had used or possessed a firearm "in connection with another felony offense," for instance assault or homicide. All well and good, but you'd think that this would mean, well, a felony offense, and using a firearm in self-defense wouldn't count — even if you were threatening or shooting someone in self-defense, you'd be committing a lawful act, not a "felony offense."

Not so, argues the U.S. Attorney's office for the Eastern District of Arkansas (citations omitted):

The provision [2K2.1(b)(5)] does not provide an exception in cases where a defendant may have a defense to the connected felony. The United States respectfully urges that this unambiguous language of the comment clearly precludes such a possibility.

The comment to this Guideline section explains that it is of no matter whether or not a criminal charge is ever brought or obtained against the defendant for the connected felony. As such, it reasonably follows that it is not relevant if there may be some defense to the connected felony. Either way, the § 2K2.1(b)(5) enhancement is still applicable. The plain language of the Guideline and its commentary are obviously geared towards the appellant’s conduct, not the possibility or plausibility of any defense theory that he may assert in the case should charges for the connected felony ever be brought.

This means that if you commit a crime, and in the process were also using a gun to defend yourself (or your child) against a would-be murderer, your sentence for the other crime would be enhanced — by more than half, if my calculation is right — because of your perfectly lawful, even praiseworthy, actions. In this case, Raglin's actions ultimately proved not to be valid self-defense; but the government's argument was that Raglin (and others) should have lost even if they were assaulting someone in perfectly legal self-defense.

Fortunately, the Eighth Circuit would have none of it:

This contention is without merit. The enhancement applies if the defendant used the firearm "in connection with another felony offense." When there is no prior conviction for that offense, the government must prove at sentencing (by a preponderance of the evidence) that the defendant committed it.... [T]he definition of aggravated assault expressly excludes '[a]ny person acting in self-defense or the defense of a third party.' Thus, when Raglin presented evidence arguably supporting self-defense or a justification defense to the charge of aggravated assault, the government had to negate that defense by a preponderance of the evidence for the § 2K2.1(b)(6) enhancement to apply."

Good that the Eighth Circuit at least respects self-defense rights, even if the federal prosecutors in this case did not. (The Eighth Circuit ultimately held that Raglin was not acting in legally permissible defense of self, home, or property, but it acknowledged that if Raglin had been so acting, he would not have been eligible for the enhancement.)

Thanks to How Appealing for pointing to this case.

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Study of Law School Faculty Impact By Citations in Law Reviews:

Brian Leiter's new study is here, with appropriate caveats provided by him.

The top four, not surprisingly, are Yale, Chicago, Harvard, and Stanford. I'm pleased to report that George Mason, home of Conspirators Bernstein, Somin, and Zywicki, is ranked number 21 by mean citation count, and 24 by median citation count.

Citation counts, as Leiter discusses, are a rather imperfect measure of scholarly prowess, but the results of the study do comport more or less with what an informed observer would expect, and far more so than U.S. News's "academic reputation" stats. One thing Leiter could do to improve his study is eliminate assistant professors from it. George Mason, for example, has seven assistant professors (an unusually high percentage of the faculty, I think), most of who have started teaching in the last two years. It doesn't make much sense to me to include such newbies in a study of citation counts since 2000.

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Second Amendment Cert Petition: The D.C. government's petition for certiorari in the D.C. gun ban case is here, via SCOTUSblog. It's a somewhat unusual petition: it spends relatively little time on the split and its consequences, and instead uses much of its space to argue the merits (usually pretty irrelevant at the cert stage). I gather the authors figured that a grant was pretty much a given; in light of that, no harm in taking the opportunity to start arguing the merits.
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David Addington on the FISA Court: "We’re one bomb away from getting rid of that obnoxious court." (Source: Jack Goldsmith, in the excellent Jeff Rosen piece linked to by Jonathan below). Wow.
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Sixth Divides on Habeas (Again):

Today's divided Sixth Circuit opinion in a habeas case is Ferensic v. Birkett. In this case, Judges Gilman and Clay affirmed the decision of the federal district court to grant the habeas petition. Judge McKeague dissented. Judge Gilman's opinion for the majority begins:

A Michigan state jury convicted Robert Ferensic in 1999 of armed robbery, home invasion, and possession of a firearm during the commission of a felony. The entirety of the evidence against Ferensic was based upon eyewitness identifications made by the victimized couple, Alexander and Angie Kostoff. Ferensic appealed, arguing among other things that (1) the trial court had violated his right to present a defense by preventing two of his witnesses—Dr. Harvey Shulman, an expert on eyewitness identification, and Danny St. John, who had observed the robbers prior to their entering the Kostoffs’ home—from testifying, and (2) his counsel had been constitutionally ineffective in failing to ensure that these two witnesses were allowed to testify. The Michigan Court of Appeals upheld Ferensic’s convictions, essentially reasoning that the nonappearance of both Dr. Shulman and St. John, whether attributable to the actions of the trial judge or of defense counsel, did not prejudice Ferensic.

Ferensic subsequently petitioned the federal district court for a writ of habeas corpus, again raising the two grounds mentioned above. Having determined that the Michigan Court of Appeals’s ruling on each ground constituted an unreasonable application of clearly established federal law, the district court conditionally granted Ferensic’s petition. The Warden now appeals. For the reasons set forth below, we AFFIRM the judgment of the district court.

Judge McKeague, for his part, began his dissent thusly:

I would hold that the rejection by the Michigan Court of Appeals of Ferensic’s claims of error as to the testimony of witnesses Shulman and St. John was neither contrary to nor an unreasonable application of federal law. I would therefore reverse the district court’s grant of the writ of habeas corpus.

Given the lineup of this case, and the length of Judge McKeague's dissent, I would not be surprised if this case were reheard en banc.

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The Conscience of Jack Goldsmith:

Next Sunday, the New York Times Magazine will feature a profile of Harvard Law Professor Jack Goldsmith written by Jeff Rosen. The profile centers on Goldsmth's work on international law and national security issues, and his brief tenure as the head of the Justice Department's Office of Legal Counsel during the Bush Administration. It also previews Goldsmith's forthcoming book, The Terror Presidency: Law and Judgment Inside the Bush Administration. Here's a brief taste:

Goldsmith told me that he has decided to speak publicly about his battles at the Justice Department because he hopes that “future presidents and people inside the executive branch can learn from our mistakes.” In his view, American presidents for the foreseeable future will, like George W. Bush, face enormous pressure to be aggressive and pre-emptive in taking measures to prevent another terrorist attack in the United States. At the same time, Goldsmith notes, everywhere the president looks, critics — as well as his own lawyers — are telling him that pre-emptive actions may violate international law as well as U.S. criminal law. What, exactly, are the legal limits of executive power in the post-9/11 world? How should administration lawyers negotiate the conflict between the fear of attacks and the fear of lawsuits?

In Goldsmith’s view, the Bush administration went about answering these questions in the wrong way. Instead of reaching out to Congress and the courts for support, which would have strengthened its legal hand, the administration asserted what Goldsmith considers an unnecessarily broad, “go-it-alone” view of executive power. As Goldsmith sees it, this strategy has backfired. “They embraced this vision,” he says, “because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it.”

[Link via How Appealing.]

For those with an interest in the development of legal opinions related to counter-terrorism efforts, including the infamous "torture memos," the article is a must read. Among other things, it discusses Goldsmith's decision to withdraw some of the controversial memoranda. Goldsmith apparently withdrew more OLC legal opinions than any of his predecessors, including others related to the "War on Terror."

Goldsmith comes off very well in the article, as well he should. From what I understand of the internal debates on these issues, Goldsmith (and his deputy, Patrick Philbin) remained true to their conservative legal principles while resisting pressure to adopt ends-oriented conclusions in their legal analyses. The Administration could have used more political appointees like them throughout the Justice Department.

Related Posts (on one page):

  1. More from Jack Goldsmith:
  2. Resolving the Goldsmith Contradiction:
  3. The Conscience of Jack Goldsmith:
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Bjorn Lomborg's Cool It:

Bjorn Lomborg is back with a new book on global warming, Cool It: The Skeptical Environmentalist's Guide to Global Warming. I review the book today on NRO here. I generally liked the book, though I think Lomborg's account understates the degree of uncertainty in climate forecasts. Uncertainty is not, in itself, an excuse for inaction, but it does complicate climate policy. Addressing climate policy is not a simple technocratic exercise in easily solved by cost-benefit analysis. Nonetheless, Lomborg provides a useful survey and critique of current climate policy. Here are some excerpts from the review:

Lomborg remains stubbornly optimistic about humanity’s future as he argues we must “cool our conversation, rein in the exaggerations, and start focusing where we can do the most good.” For Lomborg, this also means cooling the push for binding limits on greenhouse-gas emissions.

Lomborg readily accepts that human activity has increased atmospheric concentrations of carbon dioxide and other greenhouse gases, and that this, in turn, has contributed to global warming over the past several decades. Such claims are “beyond debate.” “What is debatable,” he explains, “is whether hysteria and headlong spending on extravagant CO2-cutting programs at an unprecedented price is the only possible response.” In Lomborg’s view, the dominant climate-policy prescription — draconian emission controls — would likely do more harm than good, particularly in the near term, so other options must be considered. Lomborg explains that “policies addressing societal factors rather than climate policies will help much more and much faster. “Doing too little about climate change is definitely wrong,” he counsels, wisely adding that “so is doing too much.” . . .

At times Lomborg’s discussion seems a bit technocratic, and he understates the degree of uncertainty inherent in climate-change policy. Estimates of future emissions and energy use patterns decades hence are highly suspect. So too are climate projections that are based on such uncertain inputs. This does not mean that climate-change concerns should be dismissed, but it does counsel against pretending cost-benefit analyses can be conducted with any degree of precision. . . .

Despite these flaws, Cool It is a highly valuable contribution to the climate-policy literature. In clear and concise prose, Lomborg diagnoses the problems plaguing contemporary climate policy, injecting a needed tonic of realism and common sense into the climate debate. And for that very reason, it is sure to make Lomborg’s critics hot-under-the-collar.

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Federal Judicial Clerk Cost Controls:

The U.S. Judicial Conference is considering limits on clerkship salaries in an effort to control costs, according to this National Law Journal story. The primary effect of the measure would be to limit the use of career clerks by federal judges.

The recommendations would curtail the judges' freedom to hire lifetime clerks as of Oct. 1, 2007, create performance guidelines, limit vacation pay for term law clerks and replace matching pay to experienced law clerks who leave private practice with pay parity based on experience. . . .

Traditionally, federal judges have hired term law clerks, usually students just out of law school, to work one or two years. Increasingly, more experienced lawyers have been hired as career clerks, who stay permanently with judges. They provide continuity to complex cases as well as accumulated expertise, but they also require ever-rising pay. A career clerk receives, on average, $105,000 annually, which creeps up over time with raises, while term clerks are paid $71,000 for a year, then leave.

A decade ago there were 769 career law clerks, with a total annual salary cost of $55 million. The number by the last budget had doubled to 1,514 career clerks at a cost of $159 million, according to the report. The Administrative Office of the U.S. Courts reports that the figure continues to grow, with 1,650 career clerks today and 2,336 term law clerks. . . .

The report has produced some stunning cost comparisons between one judge's chambers and another when the use of career clerks is factored in. Without naming a specific court, the report found one district judge spending $69,000 to run chambers, while another judge in the same district spent nearly five times as much, or $336,000 annually.

At the circuit level, the least costly appellate judge in one circuit spent $133,000 annually to run chambers, while the most expensive spent triple that, $410,000, in the same circuit.

As the story indicates, some judges are quite unhappy with the potential change.

Related Posts (on one page):

  1. One Judge, One Career Clerk:
  2. Federal Judicial Clerk Cost Controls:
25 Comments

Monday, September 3, 2007

Justice Jackson as Attorney General: Over at National Public Radio, Nina Totenberg has an interesting segment on Justice Robert H. Jackson's stint as Attorney General under FDR. Several of the most interesting insights are from Jackson scholar (and e-mail list administrator) John Q. Barrett.
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Was the Darmouth 1891 Agreement a Contract?

In a communication with alumni earlier this summer, Chairman of the Board Ed Haldeman expressed his personal opinion that Dartmouth’s alumni are “confused” about the 1891 Agreement that gave alumni the right to elect half of the Dartmouth Board of Trustees. He made two basic arguments: first, that there was, in fact, no “agreement,” and second, that to the extent that there was an agreement it did not provide for alumni to elect half the Board going forward, but only to elect the next five members of the Board.

In a column published in The Dartmouth entitled “Honoring the 1891 Agreement” I expressed my own opinion: “And, in fact, it is an agreement, it does contain ‘the concept of parity,’ and it does promise alumni the right to elect half of the Board.”

In a recent essay, Trustee Emeritus Kate Stith-Cabranes’73 provides her own commentary. If I read her essay correctly, she does not disagree with my conclusions regarding Chairman Haldeman’s second argument—-whether, if there was an agreement, it provided for the alumni to elect half of the non-ex officio members of the Board, or whether it was understood that right extended beyond the election of the first Alumni Trustees to empower the alumni to choose their “successors” as well. I will assume, therefore, that if it is accepted that the Agreement provided for ongoing parity between the number of Charter and Alumni Trustees and that Professor Stith-Cabranes’s argument is limited to the question of whether the Board has a legal obligation to honor those promises.

[Discussion continued under hidden text].

(show)

Labor Day Blawg Review:

At George's Employment Blawg, where else.

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Novak on GOP Woes:

Has the Grand Ole Party become the Grim Old Party? Robert Novak reports on the current woes of the GOP. Among other things, Novak notes that the Democratic Party has a "commanding lead" over Republicans in fundraising for the 2008 election:

Such an unusual disparity is at once a symptom and a contributing cause of the melancholy suffusing the Grand Old Party as Congress reconvenes after the August break.

As measured by offices held, Republicans have been in much worse shape during my half century of reporting in Washington. Their party was a mere remnant after the Democratic landslides of 1958, 1964 and 1974. But never before have I seen morale within the party so low. While Republican support for an unpopular war has remained remarkably strong, almost all non-war news during the dreary August recess has been bad for the GOP.

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Debating the New Originalism:

Larry Solum has live-blogged the APSA panel on the "New Originalism," featuring Sandy Levinson, Jack Balkin, Keith Whittington, Sot Barber, Jim Fleming, and our own Randy Barnett. From Larry's write-up, it sounds like it was a very informative and engaging panel.

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Howard is Back From Vacation: The legal news can now continue. I hope you had a great week off, Howard.
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Sunday, September 2, 2007

Taking Property in China:

As bad as things are with eminent domain in this country, it's much worse in China, as shown in this Boston Globe/LA Times article on the government's forcible displacement of people to build subway lines in Shanghai:

In China, labor is cheap, the land belongs to the government . . . and political pressure moves largely in one direction - from the Communist Party leadership on down.

"If the government wants to do something, even if the conditions are not ready for it, it will be done," said Zheng Shiling, a Chinese architect who teaches at Tongji University in Shanghai.

The system essentially works like this: Planners draw subway lines on a map. Party officials approve them. Construction begins. If anything is in the way, it is moved.

If they need to, Chinese planners "just move 10,000 people out of the way," said Lee Schipper, a transportation planner who has worked with several Chinese cities as director of research for Embarq, a Washington-based transportation think tank. "They don't have hearings."

The article claims that most of those displaced don't mind:

What is striking in Shanghai is how few people seem to mind this upheaval, in part because the city has dramatically improved the compensation it provides to dislocated people and businesses, and in part because residents accept the idea that the subway represents the greater good for the city.

Perhaps Shanghai residents really don't "mind" being forcibly uprooted from their homes for "the greater good" as defined by "the Communist party leadership." But I suspect that their lack of protest has something to do with the fact that China is an authoritarian state where speaking out against the government can lead to severe punishment. As I explained in more detail in this post, it is a major mistake for Western journalists to take expressions of support for government policy in repressive societies at face value. Unfortunately, LA Times reporter Mitchell Landsberg joins a long line of reporters who have fallen into this trap. At this late date, there's really no excuse for it.

UPDATE: Some commenters point out that there have been many protests over land seizures in China, and that the protesters are not always punished. True enough. However, in many cases, the protesters do get arrested or even killed by the authorities (see, e.g., here and here). The threat of arrest or (in rarer instances) death surely deters some victims of land seizure from protesting, even if such punishment is not absolutely certain to occur. I suspect that even a small chance of imprisonment or death is likely to persuade many people to keep their criticisms of government policy to themselves.

UPDATE #2: It is important to emphasize that large-scale takings of homes are not unusal in China. According to this Asia Times article, some 40 million Chinese have forcibly displaced by development projects in recent years, in rural areas alone.

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Did Roberts Suggest Miers for the O'Connor Slot? Here's an odd one. A new book about the Bush Presidency makes the following claim:
  John G. Roberts Jr., now the chief justice of the United States, suggested Harriet Miers to President Bush as a possible Supreme Court justice, according to a new book on the Bush presidency.
  Miers, the White House counsel and a Bush loyalist from Texas, did not want the job, but Bush and first lady Laura Bush prevailed on her to accept the nomination, journalist Robert Draper writes in "Dead Certain: The Presidency of George W. Bush."
  . . .
  The book offers more than 400 footnotes, but Draper does not make clear the sourcing for some of the more arresting assertions — such as the one about Roberts's role in the Miers nomination, which has hitherto not come to light.
  It's hard to know what to make of this without knowing more about the source and the context in which the suggestion was allegedly made. But it seems pretty fishy to me.

  UPDATE: I somehow missed the most important line of the story, about mid-way through:
Roberts rejected Draper's report when asked about it last night. "The account is not true," said Supreme Court spokeswoman Kathy Arberg, after consulting with Roberts. "The chief justice did not suggest Harriet Miers to the president."
As between an unsourced claim by Draper and a direct denial by Chief Justice Roberts, I'll put this claim in the "bogus" category. (It does make me wonder why it's on the front page of the Post, too; slow news day, I guess.)

  ANOTHER UPDATE: Jan Crawford Greenburg seems to have more information than Draper does, and she explains what she believes happened over at her Legalities blog:
  In one of their meetings, Bush casually asked Roberts what he thought of Harriet. Roberts was politely noncommittal—which is perfectly in keeping with what any clear-thinking person would expect from a man as careful and smart as Roberts.
  But since other people were in the room, that exchange got repeated, embellished and eventually twisted around. And when the Miers nomination started to implode, at least one White House adviser defensively said, "Well, even Roberts signed off on her."
  Not true. Roberts, a man of caution with a tremendous sense of propriety, did not strenuously object when Miers’ name came up—but he didn’t believe it was his place to do so. He certainly never endorsed her.
  But like a game of telephone, the false rumor that Roberts "signed off on her" has now morphed into Roberts "suggested" her. Heck, maybe even the President believes it by now if he’s heard it repeated back to him by his advisers. But it didn’t happen.
  I also heard that Chief Justice Roberts recently sought significant quantities of uranium from Africa, and that he has attempted to purchase high-strength aluminum tubes suitable for nuclear weapons production. I don't know if that's in Draper's book, though.
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"The guy that we get out of the hood":

We've just been through the most analyzed five minutes anybody ever spent in a bathroom. But there's still one little-noticed part of it that caught my attention. At one point during the taped exchange between Sen. Larry Craig and Sgt. Dave Karsnia of the Minneapolis airport police, Karsnia tries to shame Craig into admitting that he was looking for sex:

Karsnia: . . . I don’t disrespect you but I’m disrespected right now and I’m not trying to act like I have all kinds of power or anything, but you’re sitting here lying to a police officer. . . .

Karsnia: I just, I just, I guess, I guess I’m gonna say I’m just disappointed in you sir. I’m just really am. I expect this from the guy that we get out of the hood. I mean, people vote for you.

Craig: Yes, they do. (inaudible)

Karsnia: unbelievable, unbelievable.

Craig: I’m a respectable person and I don’t do these kinds of…

It seems to me that the phrase, “the guy that we get out of the hood,” is an implied racial reference. It refers specifically to blacks, though one could say the officer meant to refer only to young black men from the ghetto who, in the officer's view, are prone to commit crimes.

Either way, it’s still race-specific in a case that otherwise has no obvious racial dimension. To shame Craig into telling the truth, the officer could have used a different example, like, “I expect this from some punk we get off the street.” Or, “I expect this from some low-life, but not a Senator.” It’s also fairly clear from the context that the officer is not associating blacks with bathroom cruising, but with dishonesty and "disrespect" toward the police.

Why would Karsnia use a race-specific reference in this context? First, the officer may associate blacks in general, or at least those from “the hood,” with bad conduct. In the heat of the exchange, this particular example is the one that first comes to his mind because black men from poor neighborhoods are the kind of people he would most associate with dishonesty and disrespectful behavior.

Second, the officer may have expected that Craig would immediately understand the reference and be especially shamed by it as a law-abiding white person. “Not only were you engaged in this tawdry behavior but now you’re acting like a black thug who lies to a police officer about it," he seems to be saying. I doubt the officer would have used the “hood” reference if he’d been talking to a suspect who was black. It simply wouldn’t have worked against a black suspect, whether that suspect was from "the hood" or not. It would have backfired even if used against, say, a wealthy black lawyer in a business suit. Further, in the presence of a black person the officer would have been sensitized to using a racial reference. It only works as a shaming technique if it’s one white person speaking to another, with no blacks around to object.

The whole thing passed by unnoticed in their conversation; one of the interesting things about it was how matter-of-fact it was. Craig had no audible reaction to the comment except to insist that he is "respectable" — unlike those people from "the hood." The officer made no other racial reference, and of course used no blatantly racist slur, which would be unacceptable in senatorial company.

The moment also passed by unnoticed in the national conversation about the scandal. With just a few exceptions (see, for example, here and here), it hasn’t even been a blip on the blogs. I've seen nothing about it on television.

We can’t draw any grand conclusions from this one phrase in one interview. By itself, it’s not an indictment of our society, or of police in general, or even of just the Minneapolis airport police. If it’s a racist moment, it’s the kind of casual and coded racism that doesn’t even register with most people; it’s part of the background of our lives, so pervasive and common it’s invisible. That may be why it has gone unremarked. Its significance, if any, is that it seems like the sort of thing that happens every day in the interaction of cops and citizens, where presumptions and attitudes about race factor silently into all kinds of decisions small and large. Here we have one very small example of it on tape.

But maybe I've misinterpreted the reference or overstated what it may mean. I’m curious what others think. Please confine any comments to this specific issue, not the many other issues raised by the Craig scandal (e.g., whether he actually committed a crime or what evidence might have been introduced to undermine Karsnia's credbility at trial).

UPDATE: Some commenters suggest that because "the hood" can have non-racial meanings, the cop must not have intended to refer to inner-city blacks here. But coded race references work, when they're used, precisely because they can have non-racial meanings. In a society that condemns overt racism, they send the message you need to send to your target audience and provide deniability to everyone else.

I agree that the reference to "the hood" can mean lots of things. I've heard gay people refer to predominantly gay neighborhoods as the hood. The language of hip-hop has seeped into popular culture and has been appropriated to refer to lots of things, depending on context. But the question is, what's the most likely meaning of "the hood" when a white cop is interrogating a 65-year-old white suspect and trying to shame him into a confession? That he's lying like the people in a poor white neighborhood? Like the people who live in crime-prone neighborhoods in general? Like the people who live in the cop's own neighborhood? I doubt it, but it's entirely possible I'm wrong, which is why I raised the question.

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Calabresi for AG:

Steven Lubet and Andrew Koppelman make the case for replacing Alberto Gonzales with Northwestern law professor Stephen Calabresi.

Calabresi's conservative credentials are impeccable. A co-founder of the Federalist Society, he is the chairman of the organization's board of directors. He served in both the Reagan and first Bush administrations before joining the Northwestern faculty in 1990. He has since become one of the country's most influential Constitutional law scholars. His views concerning issues such as executive power and judicial restraint are generally in step with the Bush administration, but he also has been widely praised by liberals for his depth of knowledge and intellectual brilliance.

He is no doubt the most thoughtful scholarly proponent of the "unitary executive theory," having written many articles on the topic, including one often-cited piece in the Harvard Law Review. This theory of executive authority under the Constitution, which holds that Congress has no power to deprive the president of control over the execution of the laws, has been central to the Bush administration's definition of its own constitutional role.

No Bush appointee could be expected to depart from the unitary executive theory, but Calabresi understands it in a more sophisticated way -- as something other than an unrestrained grant of presidential power -- and is better able to recognize and explain constitutional limits than anyone now in the Justice Department.

Calabresi also would bring to the job unquestioned personal integrity. The Gonzales Justice Department appeared to exploit the power of prosecution for political gain; there is no possibility that Calabresi would repeat those errors. Today, trustworthiness is probably an even more important virtue than intellectual or political competence. Calabresi has all three virtues.

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The Other Offending Opus:

The other Opus comic that many newspapers refused to print is here. I don't find it any more inflammatory or risque than the last one.

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Sunday Song Lyric: Today's NYT Magazine profiles noted record producer Rick Rubin who Sony has put in charge of Columbia Records in an effort to reinvigorate their music business. Though for much of his career Rubin produced hard core metal and some rap albums, he has also achieved notice for his work with Tom Petty and the Dixie Chicks (and received several Grammys for the latter). He produced the first Beastie Boys album, and helped create Audioslave (and also produced a well-known criminal procedure fact pattern song).


One of the most interesting aspects of Rubin's career (at least to me) was his work with Johnny Cash. Rubin virtually re-invented Cash, helping reintroduce Cash to a new generation of listeners, with albums that were stark and authentic. Among other things, Rubin encouraged Cash to cover songs by artists outside of his oeuvre. Perhaps the most notable of these was Cash's cover of Nine Inch Nails' "Hurt." As with many of the Rubin-produced singles, Cash made the song his own (something that was not lost on NIN's Trent Reznor once he heard the song). A video of the Cash version is here. A taste of the lyrics is below.

I hurt myself today
To see if I still feel
I focus on the pain
The only thing that's real
The needle tears a hole
The old familiar sting
Try to kill it all away
But I remember everything

What have I become?
My sweetest friend
Everyone I know
Goes away in the end
You could have it all
My empire of dirt
I will let you down
I will make you hurt
The original NIN version is here.
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Why is Cuba So Poor?:

According to this story in the New York Times, about a government campaign to replace 1950s American refrigerators, it's because of the "island's economic isolation, compounded by a United States embargo in place since the early 1960s." Oh, and "unlike education and health care in Cuba, refrigerators are not free."

And why would people replace their beloved American refrigerators with cheap, small Chinese models?

Cubans do not have to switch to Chinese refrigerators, but there are strong incentives to comply. When the exchange program is offered to a town or neighborhood, it is presented as the apple of Fidel's eye, and as an opportunity to show one's patriotism while lowering one’s electricity bill.

UPDATE: Nope, despite the gratuitous mention of the free education and health care available in Cuba, no mention of "socialism," "collectivism," or "Communism," as having any effect on Cuba's economy. Nor is there any mention of Cuba's notorious (but apparently not notorious enough) "Neighborhood Committees for the Defense of the Revolution," nor, relatedly, what, the ahem, disincentives might be for failing to "show one's patriotism," though the author does acknowledge that at least one Cuban refrigerator-owner doesn't feel free to speak openly. And, for the unitiated, Cuba is not actually economically isolated from anywhere but the U.S., it just doesn't sell much of anything that anyone wants to buy.

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Karl Rove's Defense of Bush:

I doubt that Karl Rove's defense of Bush's record will persuade many people who aren't already fans of the President - though Rove is right that posterity may view Bush differently than we do today. Because it is mostly ineffective, I'm not going to comment on Rove's essay in detail.

But I will say that it takes real chutzpah for Rove to praise Bush for "understand[ing that] free markets provide the best path to a more hopeful tomorrow," while simultaneously praising Bush's massive prescription drugs boondoggle. The Bush-sponsored 2003 prescription drug bill was the largest and most expensive new federal program in decades, and one that will be a millstone around all our necks for many years to come. And unfortunately the prescription drug plan was just the most egregious example of the Bush Administration's predeliction for massive government spending - including spending completely unrelated to the war or counterterrorism activities.

Related Posts (on one page):

  1. Karl Rove's Defense of Bush:
  2. Percentage of the Way Through Karl Rove's
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Digital Photo Resizing Bleg - Part II:

Thanks to all who responded to my bleg on digital photo resizing. Pursuing one of the suggestions offered by commenters, I have downloaded a digital photo resizing program. Unfortunately, the resizing options are listed in terms of pixels rather than inches (i.e. -640x480 pixels instead of 4x6 inches). My question for you experts out there (or just those whose ignorance is less profound then mine): What pixel option should I choose to resize digital 4.5x6 photos to the standard 4x6, so I can then print them out in 4x6 size without cropping (my original objective)?

Thanks!

Related Posts (on one page):

  1. Digital Photo Resizing Bleg - Part II:
  2. Digital Camera Bleg:
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