(1) Professor Matory writes: "Israel has now withdrawn from Gaza, an action that [former Harvard President Larry] Summers slammed Harvard and MIT professors as anti-Semitic for even contemplating." Prof. Matory, exactly when, where, and in with what words did Summers "slam" Harvard and MIT professors for "contemplating" Israeli withdrawal from Gaza? I do recall Summers slamming some professors at these schools for calling for divestment from companies with Israeli holdings (but not from any other countries with much worse human rights records). But calling for divestment from Israel bears only the most tenuous resemblance to "contemplating Israeli withdrawal from Gaza." To try to find a tenuous relationship, can you name even one divestment supporter who changed his or her mind when Israel withdrew from Gaza?
(2) Professor Matory also writes: "If Israel's defenders convince the world that all legitimately Jewish people are Zionists and that Jewish people are uniform in their opinions about Israel and its policies, then the convinced will conclude that condemning Israel or its policies requires them to hate Jewish people." Prof. Matory, if all Jews did have uniform pro-Israel views, do you really mean to suggest that this would justify people who "condemn Israel or its policies" hating Jewish people? And while Jewish people don't by any means have uniform opinions about Israel, doesn't what you wrote suggest that those who "condemn Israel or its policies" are justified in hating the Jewish people who DO support Israel (or its policies)? And doesn't that contradict your thesis that its unfair to conflate anti-Semitism and anti-Zionism? If being anti-Israel (or its policies?) logically leads to the hatred of Jewish people who are pro-Israel, it hardly seems a stretch to associate anti-Zionism with anti-Semitism, does it? Or is "hating only Jewish people who support Israel" sufficiently distinct from anti-Semitism in your mind?
(3) Finally, Professor Matory writes: "My aim here is not to preach but to insist upon my right, and others', to a conversation full of respect and free of intimidation, one that presumes no monopolies on suffering, one in which all racism and anti-Semitism-whether against Semitic Jews, Semitic Christians, Semitic Druzes or Semitic Muslims-is equally impermissible." Everyone knows, or (certainly if they are a distinguished Harvard professor writing about anti-Semitism) should know, that anti-Semitism is a phrase with roots in German racist theories of the 19th century that unfavorably compared Jewish "Semites" with German aryans, and that anti-Semitism specifically means prejudice against Jews. Intentionally misusing the phrase in this way is a cheap rhetorical trick designed to make Jews look self-absorbed and heartless by claiming that they have somehow appropriated all "anti-Semitic" prejudice to their own cause, neglecting prejudice faced by Arabs and other "Semites". Are you completely unaware of this dynamic? If not, is this your way of expressing your good will toward Jews (so long as they are not "Zionists")? And with regard to "intimidation," I suppose there is no "intimidation" involved in suggesting that Jews who support Israel logically deserve whatever hatred they get (see number (2)), nor is it at all disrespectful?
Professor Matory says that "what follows is the most important question for the health of the academic and moral community that we share here at Harvard: How can one engage in a critical and nonetheless loving conversation about Zionism with a community as gravely traumatized as the Jewish people?" I don't know the answer, but personally I'm not feeling the love. [How about starting by not completely misrepresenting what Summers said, not suggesting that people critical of Israel logically hate pro-Israel Jews, and not playing silly rhetorical games with the phrase 'anti-Semitism'"?]
UPDATE: This is apparently not the first time Matory has been, ahem, creative, in describing Summers' remarks. And Matory was one of the leaders of the anti-Summers movement, providing further evidence of what a great moment it was in the history of the American academy when Summers was forced out by a majority of the Harvard faculty.
According to the L.A. Times, UC Irvine is working on a possible deal to rehire liberal legal scholar Erwin Chemerinsky as its dean. Meanwhile, Chemerinsky himself had an op ed in yesterday's LA Times telling his side of the story, and reaffirming his claim that UCI Chancellor Michael Drake told him that the original offer was rescinded because of his liberal political views. This directly contradicts Drake's own account, which holds that political issues had nothing to do with the decision, but failed to provide any alternative explanation.
On balance, I welcome UCI's move to rehire Chemerinsky, which seems to me at least an implicit admission that decision to rescind his offer was a mistake and (probably) motivated by misplaced concerns over his ideology.
At this point, I probably will not be doing any more Chemerinsky blogging, as I don't have any inside information not available to the general public, and the points that I might be interested in making are likely to be made just as effectively by others. I will blog about it again only if I have something original to say.
Today's "Corrections" page in the New York Times contains the following:
Published: September 15, 2007
An article last Saturday about Dartmouth College’s governance structure incorrectly described a Web site congratulating Todd J. Zywicki, a trustee, for meeting with members of the Phrygians, a secret society, and discussing possible actions against the college administration. It was a hoax site, not an official Phrygian site. Mr. Zywicki says he met several times with the Phrygians, but did not discuss actions against the administration.
The "Phrygian Society" is a senior secret society at Dartmouth--there are several of them and they traditionally have been single-sex (by the way, I meet with a lot of student groups). Apparently this reporter thought that a secret society would have a completely public website with pictures, meeting minutes, and the like.
It appears that the reporter let her political biases (which are strongly reflected in the original story) get out in front of her reportorial good judgment. Would you expect, for instance, that Skull & Bones at Yale would have a website at skullandbones.org where they posted pictures of their meetings?
For those who read the original story last weekend, therefore, please be aware that the website that was posted was a complete hoax as was all of the "substance" of the puported meeting that took place. My understanding is that the website is actually set up by a member of the Jack-O-Lantern, the Dartmouth humor magazine, and that they have established similar sites for other Dartmouth-affiliated groups.
Virginia has become the latest state to adopt the rule that landowners can be liable when trees on their property cause damage to neighboring properties.
In the past, most states used the "Massachusetts rule," which held that if a tree grew on your property but the branches hung into your neighbor's yard, that neighbor could cut them back as far as the property line. If the roots cracked the neighbor's patio or if the branches ripped their siding, it was their problem. And if the neighbors' pruning killed your tree, you could sue them for damages.
Maryland and the District still follow the Massachusetts rule, according to officials there.
Virginia's 1939 law was slightly different. Under that law, which was overturned yesterday, a landowner could sue a neighboring tree-owner only if the tree was "noxious" and caused "sensible injury." A big problem, however, was that no one ever defined a "noxious tree."
[Note: Post initially accidentally published when incomplete.]
The Washington Post ombudsman, Deborah Howell, investigates the reasons the Post and other papers refused to run two recent installments of Berke Breathed's "Opus" comic strip. The purported justification was that the strips could be offensive to Muslims. Yet as Howell discovers, it does not seem that Muslims were offended.
Ibrahim Hooper, spokesman for the Council on American-Islamic Relations, a civil rights and advocacy group, wasn't offended. " 'Opus' poked fun at the strip's characters, not Muslims or Islam. I see hundreds worse on the Internet every day," he said.
Akbar Ahmed, chair of Islamic studies at American University, also wasn't offended. He said there is a strong Muslim tradition of satire and self-deprecation. "I think there is a danger of us becoming so politically correct that we end up by blunting the critics' bent and the satirists' wit. Muslims need to be sensitive to the fact that in Western culture there is a healthy tradition of not taking things too seriously."
This week's "Science Journal" column in the W$J (link for subscribers) reports on the interesting and provocative research of John Ioannidis, who argues that the results of most published scientific studies are wrong.
Dr. Ioannidis is an epidemiologist who studies research methods at the University of Ioannina School of Medicine in Greece and Tufts University in Medford, Mass. In a series of influential analytical reports, he has documented how, in thousands of peer-reviewed research papers published every year, there may be so much less than meets the eye.
These flawed findings, for the most part, stem not from fraud or formal misconduct, but from more mundane misbehavior: miscalculation, poor study design or self-serving data analysis. "There is an increasing concern that in modern research, false findings may be the majority or even the vast majority of published research claims," Dr. Ioannidis said. "A new claim about a research finding is more likely to be false than true." . . .
Statistically speaking, science suffers from an excess of significance. Overeager researchers often tinker too much with the statistical variables of their analysis to coax any meaningful insight from their data sets. "People are messing around with the data to find anything that seems significant, to show they have found something that is new and unusual," Dr. Ioannidis said.
He further argues that only a fraction of incorrect studies are ever corrected or retracted, meaning that there are many published studies still "on the books" that support erroneous findings. It's an interesting and provocative thesis.
Alan Greenspan on the Bush Administration:
Here's an interesting preview of Alan Greenspan's memoirs:
Alan Greenspan, who was chairman of the Federal Reserve for nearly two decades, in a long-awaited memoir, is harshly critical of President Bush, Vice President Dick Cheney and the Republican-controlled Congress, as abandoning their party’s principles on spending and deficits. In the 500-page book, "The Age of Turbulence: Adventures in a New World," Mr. Greenspan describes the Bush administration as so captive to its own political operation that it paid little attention to fiscal discipline, and he described Mr. Bush’s first two Treasury secretaries, Paul H. O’Neill and John W. Snow, as essentially powerless. Mr. Bush, he writes, was never willing to contain spending or veto bills that drove the country into deeper and deeper deficits, as Congress abandoned rules that required that the cost of tax cuts be offset by savings elsewhere. "The Republicans in Congress lost their way," writes Mr. Greenspan, a self-described "libertarian Republican." . . . . Of the presidents he worked with, Mr. Greenspan reserves his highest praise for Bill Clinton, whom he described in his book as a sponge for economic data who maintained "a consistent, disciplined focus on long-term economic growth."
An article in the New York Times about Rand and Atlas Shrugged that is notable for the absence of the expected condescending sneering.
Rand didn't much influence my political philosophy, which was about the same before I read her stuff as it is now, but I do give her credit for two things. First, she indirectly persuaded me that caring about the success of strangers on sports teams that happen to carry the name of my city or school is a waste of time. This freed up thousands of hours for other endeavors more directly related to my own life. (I'm not an evangelist about this; if you enjoy rooting for sports teams, and think the opportunity costs are worth the enjoyment you get out of it, more power to you.)
Also, discussions of Rand typically focus on her political and moral philosophy, but, as the Times article suggests, she inspired a lot of people, of all political, religious, and social views, to raise their aspirations and expectations of themselves. In my own case, I had always done well in school, but never studied hard or paid much attention to my classes. It was after reading Rand, and being at least as inspired by her example as her characters (an adult immigrant who didn't know English becoming one of the most influential English-language novelists of all time, in part due to her sheer force of will) that I started to apply myself--I think I'm somewhat unusual in that I still work much harder as a tenured law professor than I did in school. (Whether Rand did me a favor, or whether I'd be better off in some sense as a slacker with lots of free time like I was in college, is admittedly an interesting question.)
May California Employers Avoid Politically Controversial Employees?
I've argued before that a university may reasonably — and without violating the First Amendment or academic freedom principles — (1) prefer to hire a Dean or a Chancellor who isn't too politically controversial, and (2) insist that these employees (who do a lot of fundraising and are the public face of the university) avoid controversial statements during their employment.
But even if I'm right, it's possible that a California state statute nonetheless prohibits this. In fact, if the statute is read according to its text, coupled with the way the California Supreme Court has interpreted it, then all California employers must retain employees despite their controversial off-the-job statements, even when those statements are incendiary and alienate the employer's customers, donors, employees, or others.
Here's the relevant statute, California Labor Code § 1101:
No employer shall make, adopt, or enforce any rule, regulation, or policy:
(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.
(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.
Now you might think the statute applies only to politics in the sense of election campaigns; but the California Supreme Court has held otherwise, see Gay Law Students Assn. v. Pacific Tel. & Tel. Co., 595 P.2d 592, 610 (Cal. 1979), and read the term as basically applying to commentary on a wide range of public affairs. You might also think it applies only to current employees, and not hiring decisions; not so, the Supreme Court held (id. at 610 n.16). So it seems that an employer's policy (written or not) that it won't hire or won't retain employees who make public statements that alienate members of the public — or more specific policies applying to, say, racist statements, religiously bigoted statements, sexist statements, and the like — would be illegal.
Employers would thus not only be barred from firing employees because they are Democrats or Republicans. They would also be barred from refusing to hire Klansmen or people who have made racist, anti-Semitic, or anti-Catholic statements, even when the candidate is being hired for a high-profile public contact or leadership position, and when many of the employer's customers would be deeply alienated by the person's statements (past or future).
Now it would make sense to come up with an exception for "when the employee's political activities are patently in conflict with the employer's interests," and one federal trial court case so held, see Smedley v. Capps, Staples, Ward, Hastings & Dodson, 820 F. Supp. 1227, 1230 n.3 (N.D. Cal. 1993). But there's no authority in the statutory text for any such position, and the case Smedley cited in support, Mitchell v. International Ass'n of Machinists, 196 Cal. App. 2d 796 (1961), actually doesn't support that position.
State statutes in some other states do have exceptions for when the speech restriction on employees "[r]elates to a bona fide occupational requirement" (Colorado) or when the employee's speech "creates a material conflict of interest related to the employer’s trade secrets, proprietary information or other proprietary or business interest" (New York). But California doesn't; and it's not clear that California courts would be willing to infer such an exception -- compare Davis v. Louisiana Computing Corp., 394 So.2d 678, 679 (La. App. 1981), which specifically refused to infer such an exception into a similar Louisiana statute.
It's possible that some employers' First Amendment rights might trump this statute in some situations, for instance when a newspaper demands that its reporters not engage in politics. Compare Nelson v. McClatchy Newspapers, Inc., 936 P.2d 1123, 1127 (Wash. 1997) (so holding, by a 5-4 vote) with Ali v. L.A. Focus Publication, 112 Cal. App. 4th 1477 (2003) (rejecting the claim that a newspaper "has the unfettered right to terminate an employee for any [outside-the-newspaper] speech or conduct that is inconsistent with the newspaper's editorial policies"). But many employers wouldn't have such claims; and in particular, I'm pretty sure (notwithstanding occasional references to the supposed First Amendment rights of public universities) that the University of California, a branch of the California government, would have any First Amendment rights to resist the judgment of its ultimate bosses in the California legislature. (Article 9, section 9 of the California Constitution does give the University some independence from state statutes, but not from generally applicable state laws such as this one.)
In any case, I'm pretty sure that Chemerinsky won't sue UC on this theory or any other, so the answer might never be squarely determined. But I thought I'd raise this issue, chiefly because it illustrates an interesting and difficult problem faced by California employers who care about public reaction to their leaders', spokespeople's, and fundraisers' speech.
I noted two days ago that one possible explanation for the actions of at least some of those who apparently pressured* Michael Drake to rescind the offer to Erwin Chemerinsky was a desire to derail the new law school. As the LA Times article quoted below notes (Hat tip to Brian Leiter), a delay in the opening of the law school is now a very real possibility. I can't get inside the heads of those who made the decision, but if they wanted to do maximum damage to their law school, they couldn't have done a much better job. From the LA Times article:
Officials said the turnaround on Chemerinsky could delay the opening of the law school — scheduled for 2009 — and so tarnish the institution that it would be difficult to assemble the scholars and staff needed to establish the school as one of the nation's best — UCI's long-cherished goal....
[O]fficials leading the launch of the law school said the decision makes it likely the school will not be ready to accept its first class as scheduled in 2009.
In order to meet the target, plans called for a dean to be in place this fall and for six to eight senior faculty members to then be hired this academic year. The search for Chemerinsky took nine months before a formal agreement was reached, and search committee members said they would now probably start again from scratch.
"We had three other finalists, and one of them would have definitely done it a week ago," said psychology professor Elizabeth F. Loftus, a member of the committee. "If you asked them today, I don't know. I don't think the law school will be derailed, but who knows what's going to happen next?"
*On the subject of external pressure, the same article in the LA Times says:
Loftus said Thursday that the chancellor told the committee during an emergency meeting Wednesday night that he was forced to make the decision by outside forces whom he did not name. A second member of the committee confirmed Loftus' account to The Times but asked to remain anonymous.
"I asked whether it was one or two voices or an avalanche, and the answer is that it was an avalanche."
The securities law case mentioned by Todd below, Stoneridge v. Scientific Atlanta is an extremely important case, probably the most important securities law case in the past decade. On Friday, October 5, the Center for Business Law & Regulation at the Case Western Reserve University School of Law, in conjunction with the Federalist Society's Corporate Law practice group, will be sponsoring a half-day conference previewing the case. Oral argument is scheduled for the following week.
The Case Stoneridge conference will provide a preview of the case and the surrounding legal and policy issues. Among the confirmed speakers are Stephen Bainbridge (UCLA), Barbara Black (UCinncinati), Richard Painter (Minnesota), Jay Brown (UDenver), Andrea Seidt (Ohio AAG), and Eric Isaacson (Coughlin Stoia), with more to follow. The conference will be webcast, and 3.5 hours of Ohio CLE credit will be available. More details are available here.
As a purely legal matter, I must add that the issue is not a no-brainer. The basic problem is that the implied right of action is almost completely open-ended, and facts can be manipulated endlessly in a complaint. Lerach’s Enron complaint was 500 pages long. In my article with Kobayashi, Class Action Lawyers as Lawmakers, we compared such complaints to Theodore Dreiser’s reconstruction of a crime in his novel, An American Tragedy.
All the more reason why we need clear rules here. My theory is that the Court took cert on the Stoneridge case to provide that clarity, and that it will add the Enron case to the appeal to increase that clarity. By doing this the Court can make sure that secondary civil liability under 10b-5 is really dead, and stays dead, rather than wandering in scheme liability form like some terrifying zombie.
Boyden Gray also had an editorial in the Financial Times a few weeks ago that picks up on some of the policy issues associated with this, especially in the context of international law. The article is subscriber's only, but I found it reprinted here.
I should add that Mayer Brown LLP, with whom Eugene is affiliated part-time, is representing the respondents in the case.
The Chemerinsky Matter and the California Constitution:
Some have suggested that not hiring Chemerinsky based on his being politically controversial violates article 9, § 9 of the California Constitution:
The university shall be entirely independent of all political or sectarian influence and kept free therefrom in the appointment of its regents and in the administration of its affairs ....
The courts have not spoken in any substantial way about what the ban on "all political ... influence" means.
It would, I think, be odd to require that a university ignore the past political activities of all people with whom it deals "in the administration of its affairs," and the political impact that dealing with those people might have. Consider, for instance, the "appointment of [the university's] regents." Is it really the case that the Governor must appoint regents without regard to whether they've been political lightning rods, and without regard to the political enemies they have made?
Likewise, "administration of [the university's] affairs" includes more than just hiring of administrators: It includes the giving of awards, the invitation by the university of graduation speakers, the naming of schools and buildings, and more. Can it really be the case that a university can't consider (and in some instances try to avoid) possible political controversy in making such decisions? As to the selection and retention of faculty and students, the First Amendment and academic freedom principles should indeed preclude such considerations. The question is what should be done in other contexts, such as choosing whom to invite to give a lecture to donors, whom to appoint as a fundraiser, and the like.
At the same time, it's certainly possible that the California Constitution bars even those practices that I think are proper and perhaps even wise. Any thoughts on how the text of that provision should be interpreted, not just with reference to this particular controversy, but looking at the broad category of "the administration of [the university's] affairs"?
Stuart is a contributing editor for Newsweek, a weekly opinion columnist for National Journal, and a nonresident senior fellow with the Brookings Institution; in the 1980s, he was a reporter and Supreme Court correspondent for the New York Times. K.C. is a professor at the City University of New York history department, and author of many books and articles. I've been a fan of Stuart's work for many years, and I've also heard many good things about K.C.; I much look forward to their visit.
Ronald Dworkin and the Wall Street Journal Editorial Page:
The politics are 180 degrees apart, but I find a significiant similarity in style and method between the first and last few paragraphs of this analysis of the Supreme Court by Ronald Dworkin and the first and last few paragraphs of this essay about Ted Olson's prospects as AG from the Wall Street Journal editorial page. Over-the-top rallies the troops, I guess.
NFL Commissioner Roger Goodell fined New England Patriots coach Bill Belichick $500,000, and ordered the team to pay an additional $250,000 and lose one or more draft picks, for violations of league rules against taping an opposing team's play signals. The Patriots will have to give up their first-round draft pick in 2008 if they make the playoffs this year, their second and third-round picks if they do not. Said Goodell, "This episode represents a calculated and deliberate attempt to avoid longstanding rules designed to encourage fair play and promote honest competition on the playing field." Nonetheless, Goodell decided not to suspend Belichick "largely because I believe that the discipline I am imposing of a maximum fine and forfeiture of a first-round draft choice, or multiple draft choices, is in fact more significant and long-lasting, and therefore more effective, than a suspension." Although this is a precedent-setting penalty, ESPN analyst John Clayton still thinks the Patriots got off easy.
Barack Obama has been criticized by pro-Israel forces (undoubtedly egged on by the Hillary team) for naming Zbignew Brzezinski, Jimmy Carter's National Security advisor, as one of his foreign policy gurus. Ezra Klein links to, and endorses, a post by one Matthew Duss, relying on a story from the Politico website, suggesting that the "Israel lobby," writ large, and Alan Dershowitz personally, are upset about Brzezinski because he wrote an essay last Summer defending Mearsheimer and Walt’s “Israel Lobby” essay.
This is a good an example of the dangers of blogging about things that one doesn't know much about. Anyone who is reasonably familiar with the history of U.S.-Israel relations knows that the pro-Israel community (and the organized Jewish community writ large, for that matter) has despised Brzezinski for at least thirty years. And it wasn’t just Brzezinski’s policies, deemed by many to be anti-Israel, it was the way he promoted them, and the way he interacted with Jewish community activists who sought to engage him--much worse, for example, than Bush I Secretary of State James "Fuck the Jews" Baker, who has few friends in the pro-Israel world.
For example, the New York Times reported on March 10, 1978, that Rabbi Alexander Schindler, President of the Conference of Major Jewish Organizations (and a very liberal fellow, both religiously and politically), thought that Carter's Middle East policy was a "question mark," largely because of Brzezinski. Schindler told the Times that among Jewish leaders "All of the anger and mistrust is toward the National Security Council and toward Brzezinski." Schindler explained that in a meeting with Jewish leaders, Brzezinski was "antagonistic, blustering, threatening." Brzezinski, for his part, acknowledged to the Times "strong resentment toward him personally expressed by some Jewish leaders."
Brzezinski denied being anti-Israel, and for all I know, he was sincere. But even though I was not even bar mitzvah age at the time, as a reader of Jewish newspapers that came to our home I remember the deep hostility and mistrust many Jews felt toward Brzezinski at the time. Brzezinski likely played a larger role than anyone but Carter himself in the fact that in 1980, Jewish activists largely preferred Kennedy to Carter, and Carter ultimately received less than 50% of the Jewish vote in the general election (compared, for example, to 80+% for recent Democratic presidential candidates).
So for Klein to attribute anti-Brzezinski sentiment to, for example, the fact that he “calmly defend[ed] and contextualiz[ed] a book by two leading international relations scholars, or because Brzezinski denies that "this Israel Lobby which is currently planting stories to attack and embarrass Obama doesn't exist," [as I’ve noted before, and despite Matthew Yglesias's continued insistence to the contrary, NO ONE denies that an Israel lobby exists, they just quarrel with absurdly expansive definitions of that lobby, and exaggerated notion's of that lobby's power], without any hint that Klein is aware of the longstanding feud between Brzezinski and the organized Jewish community, is just kind of embarrassing.
UPDATE: Hmm, just noticed that the original Politico article that prompted Duss's post notes that "Brzezinski has been at odds with elements of the American Jewish community since the Carter administration." But why let such details get in the way of a good "the Israel lobby is out to get someone because he defended Mearsheimer and Walt" story (adopted by M.J. Rosenberg, who clearly does know better, as well)? The article does quote one observer as claiming that Brzezinski had kept a low profile on the Middle East over the years, and that the source of controversy over him was thus his defense of M & W. But Brzezinski has not, in fact, kept a low profile; he was, for example a leading critic of Israel's action re Lebanon last year, and a Google search for Brzezinski and Israel results in approximately 650,000 hits.
Two more things: First, I don't know enough about Brzezinski to have a strong personal opinion about him. I do recall that he was considered something of a right-wing hardliner in the Carter Administration, especially compared to the more liberal, and far more pro-Israel, Cyrus Vance. Second, wow, the anti-Semitism you see in the comments pages of liberal blogs (just a sample from one thread: a commenter tying the Israel lobby controversy to the "Jewish conspiracy" to turn over atomic secrets to the Soviets; and "let me congratulate you for once again showing the legendary Jewish ability to make most peoples who encounter Jews eventually detest a good portion of them for their famous arrogance and condescension") whenever subjects like this come up! I don't know what these blogs' moderation policy is, but I wonder if similar sentiments were expressed regarding other groups, the authors, and their readers, would be so indulgent. (Not that I think Klein, et al., endorse anti-Semitism, but if you're bending over backwards to show that you're not part of the evil "Israel lobby," you may be more hesitant to "censor" anti-Semitic comments, especially because we all know that anti-Semitism plays virtually no role in debates over Israel.)
UC Irvine Chancellor Michael Drake's New Statement on the decision to Rescind Chemerinsky's Offer:
UC Irvine Chancellor Michael Drake has issued a new statement on his decision to rescind Professor Erwin Chemerinsky's offer to become the dean of the new UCI Law School. This statement is a lot more substantive than the Chancellor's previous effort. It denies rumors that the Chancellor's decision was influenced by pressure from conservative donors, and emphasizes that the "the decision was absolutely not based on Professor Chemerinsky's political views."
I'm willing to give Drake the benefit of the doubt on the donor issue. We don't really any proof that the decision was based on donor pressure. However, the assertion that it wasn't based on "Chemerinsky's political views" seems to directly contradict Chemerinsky's own account, which claims that Drake told him that "he hadn't expected I [Chemerinsky] would be such a target for conservatives. A lightning rod."
Drake's statement would be easier to credit if he had provided some other, nonideological justification for rescinding the offer. However, neither this statement nor the previous one does so (except to say that it was a "management decision"). Others have speculated that the offer was rescinded because Chemerinsky recently published a controversial anti-death penalty op ed. If so, isn't that little different from rescinding the contract because of Chemerinsky's liberal views? If the op ed were objectionable to UCI, it is because the liberal views expressed there might offend conservatives.
Like Eugene Volokh, I believe that ideology can sometimes play a legitimate role in assessing candidates for deanships. A school can legitimately refuse to hire a dean whose ideology prevents him from enforcing administrative policies he disagrees with or does serious damage to the school's image. However, there is no reason to believe that Chemerinsky's fairly typical liberalism falls into that category. Indeed, Chancellor Drake says in his statement that Chemerinsky's views are similar to his own.
My bottom line: if Chancellor Drake wants to refute claims that Chemerinsky's offer was rescinded for ideological reasons, he could help his case greatly by explaining what the real reason for the decision was.
Can Presidents Wage War Without Congressional Support?
Yale law professor Jack Balkin makes an argument that is very commonly heard these days: that the separation of powers has broken down and presidents can engage in warfare with little or no congressional support:
The sad lesson of the past year is that the modern Presidency-- armed with control over military intelligence and a large standing army-- can have its way in matters of war even if the President's policies are very unpopular, and there is very little Congress can do to stop it.
This lesson should be abstracted from one's feelings about the current occupant of the White House. George W. Bush is a failure-- I won't mince words-- but even a failed President can do pretty much what he wants in war given the way our constitutional system has developed following the Second World War and the rise of the National Security State.
I disagree. In fact, it is very difficult for a president to either initiate or continue a military conflict without fairly strong congressional backing. And the evidence of the last 60 years proves it.
I. Initiating War.
Let's start with war initiation. Virtually every major military action undertaken by the US since World War II has either been formally authorized by strong congressional majorities in advance (Vietnam, both Iraq Wars, Afghanistan), or enjoyed strong congressional support without a prior formal vote, though often there was an authorizing vote after the fact (Korea, both Lebanon interventions, Grenada, Somalia, Haiti). There is only one noteworthy exception to this rule: President Clinton's 1999 military action in Kosovo, which was opposed by most congressional Republicans. Yet even this case partly validates the rule. Knowing that congressional support was severely limited, Clinton took account of this political reality and carefully limited the scale of US involvement and especially US casualties (which didn't include a single combat fatality).
Setting aside constitutional considerations, there are good political reasons for presidential reluctance to initiate war without congressional support. If the war goes badly, the president will be hung out to dry politically and suffer a severe backlash. Moreover, as discussed below, Congress can use the spending power to stop a war it opposes dead in its tracks. With congressional support, by contrast, the president can shift some of the blame to Congress and make it difficult for the opposition party to blame him by pointing to the fact that their congressional representatives supported the war as well (a gambit President Bush used to great effect against John Kerry in 2004).
II. Continuing War in the Face of Congressional Opposition.
Even if presidents can't get away with starting a war without strong congressional support, perhaps they can get away with continuing it long past the point that Congress would like to end it. This is what many observers, including Balkin, believe Bush has done over the last year. The problem with this theory is that Congress does in fact have the power to stop a war at any time: it can do so simply by refusing to vote continued funding for it. This is true not only under my fairly expansive view of Congressional war powers, but even under John Yoo's extremely restrictive one. I would further argue that Congress also has broad authority to regulate military action in other ways. But even if that's not true, the uncontested spending power is itself sufficient to stop any war that Congress truly wants to end. The Iraq War could not continue for long without constant infusions of money.
Jack Balkin notes that the president can veto congressional efforts to stop a war. However, the power to deny funding is effectively veto proof, since Congress can exercise it simply by refusing to vote the money in the first place.
Why, then, have congressional Democrats failed to stop the war in Iraq? My guess is that, however much they dislike continuation of the war, they fear a precipitous withdrawal even more. Such a step could well cause a foreign policy disaster for the country and a political disaster for the Democrats themselves (because they will get a large share of the blame). On the other hand, the combination of continuation of the War with continued harsh criticism of Bush avoids this scenario, while enabling the Democrats to blame Bush (with considerable justice) for any failures on the ground. If congressional Democrats could agree on an alternative to Bush's strategy that they believe would both avoid immediate disaster and end the war fairly soon, they could very likely use the spending power to force Bush to accept it. But they don't have such an alternative, or at least most of them don't think they do. The war continues not because Bush - or any president - "can do pretty much what he wants in war," but because the congressional majority doesn't really want to use its power to stop him from doing it.
UPDATE: Some scholars add the additional twist that Congress' power to stop a war is difficult to exercise because, once war is initiated, Congress might legitimately prefer to victory to defeat, even if it would ultimately have preferred never to have started the war in the first place. Perhaps the congressional majority has a rank order of preferences of 1) no war (perhaps because they consider the price of victory to be too high), 2) an overexpensive victory, 3) defeat. But once the president initiates hostilities, only options 2 and 3 are still on the table. This argument would have great force if presidents really were able to start wars without congressional support. In fact, however, they have been unable or at least unwilling to do so.
UPDATE #2: Several commenters argue that the Democrats couldn't really defund the Iraq War without defunding the entire Department of Defense (since the Bush Administration could otherwise try to use funds allocated for general DoD purposes to continue the war). This is an interesting point, but I don't think it withstands scrutiny. The Democrats have at least two other ways to defund the war. First, they could refuse to authorize DoD spending bills without attaching riders forbidding use of the funds in Iraq (or at least strictly limiting that use to funds needed to effectuate a withdrawal). That approach would court a confrontation with Bush (who would threaten to veto). But the Democrats would have a good shot at winning that confrontation, in light of Bush's low public standing and that of the war.
Moreover, as a practical matter, waging the Iraq war requires numerous appropriations for specific equipment, payments to contractors, spending on Iraqi support personnel etc. of a type needed in Iraq, but not needed in comparable quantities for other military activities to continue elsewhere. For example, the war requires a variety of specialized equipment needed to operate in Iraq's desert environment. Congress could push through a bill excluding these items or strictly limiting their quantity to something approaching the amount needed to implement a relatively fast withdrawal.
No doubt those more expert in the federal budget process than I am could think of other ways for Congress to use the spending power without having to defund the military completely.
he verbal warfare broke out late last month on "The Volokh Conspiracy," a blog run by UCLA law Professor Eugene Volokh. The squabble began during a discussion of misspellings, when one poster took off on the word "mentee."
I find "mentee" [said he] so offensive that I disparage its usage at every opportunity. While I will reluctantly overlook the use of "mentor" as a verb (that battle is lost), I refuse to acknowledge the existence of the verb "to ment" that "mentee" necessarily implies. Resumes containing this word require no further review. I reserve such vitriol and summary dismissal for this error alone. This is because it is what might be called a Homeric error. And I don't mean Homer Simpson.
Yankev's post: What else do you call the subject of a mentor?
I still vote for protege.
Mentee sounds too much like the endangered sea cows that inhabit Florida's coastal waters.
Was that your mentee I saw you with at lunch?
No, that's not the person I ment.
Uggh. Mentee may be a word, but so is puke.
Ex parte McCardle's post: How about "lickspittle," a great old word which has fallen into unwarranted desuetude?
AK: I might recognize "mentee" as a word, but I will never recognize "Mentos" as a food.
James Fulford: What else do you call the subject of a mentor?
Tim Dowling: My recollection is that during the Bush I Administration, EPA's chief of staff issue a memo banning the use of the word "proactive" because, in his words, "it's not a word." Evidently, he didn't like it, word-wise speaking. By the way, mentoring has its own month, January. IT'S THE LAW. Go forth and ment.
NaG: I propose that "the" is not a word. It means nothing. There is nothing about "the" that adds meaning to a subsequent word. "The pig" has no different meaning than simply "pig"; "the" can simply be inferred from the noun itself.
BobH: Eliminate article!!
JohnEMack: Would other passive forms be better? How about "mentess" for female epigones? Or "mented," which permits us to call former students "demented."
Intimate Association, Fraternities, and Government Subsidies:
The public College of Staten Island refuses to officially recognize groups that discriminate based on sex; this refusal denies the groups various benefits. Last year, a federal district court held that the College's policy violated a fraternity's right to intimate association. Today, the Second Circuit reversed the district court's decision. (Thanks to How Appealing.)
I have argued the district court decision was indeed a mistake: The University is choosing not to fund certain exercises of a constitutional right to intimate association, and the government is generally perfectly free not to fund the exercise of a constitutional right, even when it funds other activity (including activity that's in some ways an alternative to that exercise of a constitutional right). Consider some examples ("need not" below means "has no federal constitutional obligation to"):
Right to abortion
New York may not ban abortions,
but it need not pay for them with state funds, or allow them to be performed at state-run hospitals
even if it chooses to pay for childbirth.
Right to free speech
New York may not ban advocacy of a candidate or a legislative proposal,
but it need not subsidize it through the charitable tax exemption
even if it subsidizes non-electioneering, non-lobbying speech through the charitable tax exemption.
Right not to marry
New York may not require people to marry,
but it need not give unmarried couples or platonic roommates special dorm housing,
even if it subsidizes married couples by offering such housing.
I'm not sure about some of the Second Circuit's analysis in today's decision, but the general thrust seems correct: "[The college's] refusal to subsidize the Fraternity's activities does not constitute a substantial imposition on the group's associational freedom. See[, e.g.,] Regan v. Taxation with Representation of Washington, 461 U.S. 540, 546 (1983) ('We again reject the notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State.')" Sounds right to me.
People have asked why Erwin Chemerinsky's political activism might have been seen as troublesome by UCI when Ken Starr's activism -- including continuing public commentary -- isn't seen as troublesome by Pepperdine, and Chrisopher Edley's past activism hasn't been seen as troublesome by Berkeley.
My sense is that different schools make these decisions with an eye towards their different donor bases. The makeup of these bases turns on many factors, including (1) the general ideology of the school's alumni and traditional supporters, (2) the political makeup of the school's geographical location, (3) whether the school is an old school with lots of alumni or a new school with few, and (4) whether the school is private or public (since in the latter case the public, through the legislature, is a big "donor").
Pepperdine, for instance, has a reputation as a conservative school with mostly conservative (especially religious conservative) alumni and traditional supporters. A social conservative dean, even a highly controversial one, may appeal to them, and his continuing political participation may please and energize more people than it alienates. Boalt (the Berkeley law school) has a large alumni base that is likely on balance quite liberal. My sense is that it is also seen as an important civic institution in Northern California, and thus draws support from the public at large -- a public that, I'm told, is strikingly liberal. A liberal figure, even a moderately controversial one, may appeal to them, too.
UCI law school has no alumni, and my guess is that it therefore has to largely rely on the legislature and on local Orange County donors. Orange County is much less conservative than it used to be, but it's no Berkeley. It thus makes sense that having a controversial liberal dean might pose some more problems for UCI than for Boalt. I may be wrong -- I'm not an administrator or a fundraiser -- but this at least seems like a plausible position for the UCI people to take.
None of this excuses the poor way this situation was handled by UC, and none of it by itself resolves the First Amendment questions or the academic freedom questions (though I've argued that those matters don't come into play here). But it does suggest that we can't dismiss any possible worries on UCI's part about their dean's being too controversial just by pointing to controversial deans at other schools.
More on Academic Freedom and Fundraisers / Policymakers / Institutional Public Faces:
As I mentioned yesterday, I think canceling the Chemerinsky UCI deanship plans was a big mistake on the UC's part. There are also credible claims that the decision might violate state law (a complicated matter, which I might blog about later).
But the incident also raises a broader question: What role do the First Amendment and academic freedom principles have in choosing deans (or for that matter university presidents)? May higher-ups consider a person's speech, politics, or political activism in deciding whether to hire, fire, or reappoint him as dean? May higher-ups constrain what a dean says while he's a dean, as well as considering his past statements when deciding whether to make him dean? Or should academic freedom principles bar such considerations, much as they generally do as to professors? Let me pass along my tentative thinking.
1. Remember that, especially these days, deans and presidents are in large part fundraisers. To be effective at that job, they have to deal well with donors; being controversial may often undermine that.
Deans and presidents are also the main public faces of the institution. There are many professors at the institution, and it's easy to dismiss a professor's controversial statements as entirely his own, entirely unendorsed by the institution. One can't do that as to a dean or a president; what he has said or is saying is going to rub off on the public perception of the institution.
And deans and presidents are policymakers — policymakers whose policy decisions may often affect political matters (for instance, if they authorize the creation of various public interest litigation clinics, or adopt certain policies about admissions, military recruitment on campus, and the like). Higher-ups, donors, and members of the public will infer what policies the dean will make from the dean's past political statements.
2. Professors, on the other hand, are not chiefly fundraisers from the public. (To the extent they raise funds, they tend to do it through grants, a process that focuses far more on evaluation of academic proposals and on scholarly reputation — and perhaps on personal contacts — than does decanal fundraising.) Each professor is one of many, and professors are notoriously lone wolves who often disagree with each other as well as with the administration. Professors are not primarily policymakers.
Moreover, professors' job is to come up with ideas, including highly controversial ones and ones that may well be wrong. I'd much rather have a faculty of 20 scholars who come up with controversial and innovative but sound ideas plus 20 who come up with controversial and innovative but unsound ideas, than a faculty of 40 who come up with sound but banal ideas. The first faculty will contribute 20 scholars' important ideas to the storehouse of human knowledge, and those ideas can then enrich the work of scholars and others worldwide. The second will contribute 40 scholars' minor ideas, which will be largely unhelpful. Deans and presidents are also supposed to be innovative, but much less so: A failed innovation applied to an institution by its leader causes much more damage than a failed law review article does.
This is why a brilliant but erratic and controversial scholar is great to have; a brilliant but erratic and controversial dean is generally not. A bland, uncontroversial dean will often do a very good job, and sometimes an excellent job (though perhaps not a genius job). Someone who writes bland, uncontroversial scholarship isn't much of an asset as a scholar.
3. So the main reasons for protecting professors' (and students') academic freedom do not generally apply to dean. And there are the same time good reasons for considering a decanal applicant's speech, activism, and general controversiality, given that a dean's job is not inventing brilliant ideas, but rather chiefly raising funds, making institutional policy, and being the institution's public face.
Thus, if you want to get contributions from a largely liberal donor pool, you might well prefer a liberal dean, and strongly prefer someone whose public image is of someone who is somewhere between left and very slightly right (or apolitical). If you want to get contributions from a largely conservative pool, you might prefer a conservative dean, and strongly prefer someone whose public image is of someone who is somewhere between right and very slightly left (or apolitical). If you want to get contributions from a mixed pool, you might strongly prefer someone whose public image is of someone who is between moderate liberal and moderate conservative (or apolitical). And if you're starting a new law school, which lacks an existing alumni donor base, you might be especially concerned about finding someone who can excite the most people while alienating the fewest.
Likewise, you might want to set aside a person's past speech, but at least have some indications that he will avoid highly controversial subjects during his tenure. Or you might focus more on the style of a person's arguments than the substance, on the theory that donors and others will be more likely to be alienated by people who have a reputation as being strident in their views.
Similarly, if a dean says something highly controversial — whether about identity group topics such as race, religion, sex, or sexual orientation, or about other controversial topics — his higher-ups may conclude that it is better to fire him, or at least quietly ease him out or decline to reappoint him. Such a decision may be eminently proper (even if in some situations tactically foolish or an overreaction), even if a similar decision about a professor would be quite wrong.
Naturally, some decanal hiring decisions may still be too narrow-minded, or otherwise foolish. And, as I've said, the way the decisions are made and publicized may well be extraordinarily counterproductive, as they seem to have been here. But the First Amendment and academic freedom standards for them must be vastly different than the standards for hiring professors.
Chemerinsky and [UCI Chancellor] Drake agreed the new dean's dismissal was motivated in part by an Aug. 16 opinion article in The Times, the same day the job offer was made. In it, Chemerinsky asserted that Atty. Gen. Alberto Gonzales was "about to adopt an unnecessary and mean-spirited regulation that will make it harder for those on death row to have their cases reviewed in federal court."
But Drake and Chemerinsky split sharply on what role the article played in the decision to fire the incoming dean and whether academic freedom was at stake.
"Shouldn't we as academics be able to stand up for people on death row?" Chemerinsky said.
Drake said that "we had talked to him in June about writing op-ed pieces and that he would have to focus on things like legal education in this new role, and then here comes another political piece. It wasn't the subject, it was its existence. What he said doesn't matter." ...
Chemerinsky said that Drake told him during a meeting at the Sheraton Hotel near the Raleigh-Durham airport that "concerns" had emerged from the University of California regents, which would have had to approve the appointment. The professor said Drake told him that he thought there would have been a "bloody battle" over the appointment.
Drake disagreed with the account. "No one said we can't hire him," he said. "No one said don't take this to the regents. I consulted with no regents about this. I told a couple people that I was worried and that this might be controversial, but no one called me and said I should do anything."
Drake drew support from Christopher Edley, dean of the Boalt Hall School of Law at UC Berkeley, whom Drake consulted on the decision to let Chemerinsky go.
"It appeared to me that Michael was willing to go forward in the face of opposition but for the fact that he lost confidence in Erwin's willingness to subordinate his autonomy and personal profile for the good of the institution," Edley said.
Edley, who worked in the Clinton administration, said it was nothing that he had not been called to do himself.
"I was questioned explicitly by people who feared I would turn the deanship into a platform for my own ideological commitments," he said. "But it was clear to me then, and it's clear to me now, that the job requires something else." ...
More from The Recorder (a San Francisco legal newspaper):
Christopher Edley Jr., dean of University of California, Berkeley's Boalt Hall School of Law who has been involved with the new law school -- and was handpicked by Chemerinsky to serve on his advisory board -- said it wasn't about Chemerinsky's "political leanings or ideology, which everyone knew" about.
"I think key people lost confidence that he would be willing to shed his high personal public profile in the service of the law school -- whether that was the right or wrong conclusion," Edley said, though he declined to identify the individuals who opposed Chemerinsky.
Edley continued: "At the end of the day, the chancellor had to have confidence that Erwin would be able to earn the trust, loyalty and investment of a diverse constituency, and for a startup venture that's an exceptionally delicate proposition."
Pepperdine law professor Douglas Kmiec comments on UC Irvine's disgraceful treatment of Erwin Chemerinsky in the LA Times. Here's a taste:
Erwin Chemerinsky is one of the finest constitutional scholars in the country. He is a gentleman and a friend. He is a gifted teacher. As someone who participates regularly in legal conferences and symposiums, I have never seen him be anything other than completely civil to those who disagree with him.
So the news that UC Irvine had selected him to be the first dean of its new law school was welcome indeed. And the subsequent news -- that it withdrew the offer Tuesday, apparently because of Erwin's political beliefs and work -- is a betrayal of everything a great institution like the University of California represents. It is a forfeiture of academic freedom. . . .
Ironically, Erwin and I have often disputed the extent to which law is only politics. It has been my view that law must be understood as its own discipline and that the Constitution must be interpreted in a manner that respects its text and its history rather than any desired outcome. If federalism is a principle to be honored in the Constitution, for example, deference must be given to state choices, whether they are liberal or conservative. Erwin was less confident that law and politics could be so neatly divided.
I will continue to believe that the law has its own place above politics, but Erwin's dismissal surely makes that belief harder to sustain. UC Irvine's inability to keep politics out of its decision-making will make things difficult for the new law school. It will become more difficult to recruit new faculty and to attract the respect that the school would have so easily acquired by giving the deanship to Erwin -- and which it so tragically forfeited by its casual, and all too last-minute, withdrawal of the offer.
In this Article, I propose a theory of how rational, ideologically motivated judges might choose interpretive methods, and how rational, ideologically motivated laymen—legislators, litigation organizations, lobbyists, scholars, and citizens—might respond. I assume that judges not only have ideological preferences but also (perhaps merely strategically) want to write plausible opinions. As a result, if judges decide to use any particular method of statutory or constitutional interpretation, the plausibility demands of the method they use will make them deviate from their own ideal points in the direction of the “most plausible point” of that method.
When judges can choose their interpretive method, they select the method that (taking these deviations into account) comes as close as possible to their favored outcome. This creates a selection bias, which makes interpretive methods’ observed distributions differ systematically from their true distributions. This bias explains how one can favor mandating an interpretive method even though one is politically closer to the current practitioners of a different method.
Judges can also choose whether to use the same method from case to case. I explain why, even though ideologically motivated judges (or litigation groups) might want to make the method they prefer in most cases mandatory for everyone, they do not personally have much effect on whether other judges use that method, and so it is rational for them to deviate from that preferred method in those cases where they prefer a different method.
It's going to be quite a while before this appears in print, so comments are welcome. The paper is available here.
UC Irvine Chancellor Michael Drake's Statement on the Decision to Rescind the Offer to Erwin Chemerinsky:
UC Irvine Chancellor Michael Drake has issued a statement defending the University's decision to rescind its offer of the law school dean position to liberal legal scholar Erwin Chemerinsky. The statement is here.
Brian Leiter calls the Chancellor's statement an example of "the familiar administrative mode of 'say nothing substantive, pretend everyone doesn't know what really happened, and hope it all just goes away.'" I tend to agree. The statement neither admits that Irvine made a serious mistake in rescinding Chemerinsky's offer for ideological reasons, nor provides any real justification for the school's decision. Still, if you are interested in this issue, go ahead and read the statement. At least it's mercifully short. Maybe you can find some hidden virtues in the Chancellor's bureaucratic prose that Leiter and I have missed.
Kay Hymowitz, Libertarianism, and Lifestyle Excesses:
Like David Bernstein, I welcome some of the things conservative pundit Kay Hymowitz says in her Wall Street Journal essay on libertarianism, and of course I too appreciate her praise of the VC. At the same time, there are some significant shortcomings in her analysis. David has identified one of them: her treatment of the libertarian position on civil rights.
I want to focus on her embrace of the common fallacy that libertarianism requires endorsement of any and all private lifestyles, no matter how foolish or self-destructive. This very common criticism (especially by social conservatives) conflates that which libertarians believe should be legal with that which we hold to be prudent and right. There are lots of foolish and even immoral behaviors that libertarians believe should be legal. It does not follow that we believe that doing those things is a good idea. Hymowitz, unfortunately conflates the two:
[I]t is difficult to separate the reasons for our abiding social disarray from the trends that Messrs. [Brian] Doherty and [Brink] Lindsey praise and for which libertarians bear a measure of responsibility. Despite Mr. Lindsey's protestations to the contrary, libertarianism has supported, always implicitly and often with an enthusiastic hurrah, the "Aquarian" excesses that he now decries. Many of the movement's devotees were deeply involved in the radicalism of the 1960s.
Nor should this come as a surprise. After all, the libertarian vision of personal morality--described by Mr. Doherty as "People ought to be free to do whatever the hell they want, mostly, as long as they aren't hurting anyone else"--is not far removed from "if it feels good, do it," the cri de coeur of the Aquarians. To be sure, part of the libertarian entanglement with the radicalism of the 1960s stemmed from the movement's opposition to both the Vietnam War and the draft, which Milton Friedman likened to slavery. But libertarians were also drawn to the left's revolutionary social posture.
To reiterate a simple but oft-misunderstood point: that which should be legal is not coextensive with that which is desirable or right. Libertarians believe that racist and communist speech should be legal; that does not mean that libertarianism implies support for such speech. The same is true of excessive drug use, cheating on your spouse, and so on. "People ought to be free to do whatever the hell they want, mostly, so long as they aren't hurting anyone else" is not "the libertarian vision of personal morality." It is the libertarian vision of the limits we should place on the power of government.
Prohibition by the state is not the only way to combat immoral or self-destructive private behavior, and nearly always not the best way. Indeed, a large part of the libertarian case against government "morals" regulation is precisely the the argument that the state is less likely to do a good job in this area than private institutions such as families, religious organizations, and social norms. The superiority of private sector social norms and traditions over state regulation was one of the central themes of F.A. Hayek's work, which Hymowitz praises in her essay. And Hayek was perhaps the most influential libertarian scholar of the twentieth century.
There is a kernel of truth in Hymowitz's argument in so far as libertarians are far less willing than conservatives to condemn private behavior merely because it goes against tradition (especially a tradition imposed and maintained by government coercion). This, to my mind, is a strength of libertarianism rather than a weakness; all too many longstanding traditions vociferously defended by the social conservatives of the day have turned out to be morally bankrupt or worse. 1960s' conservatives' defense of the tradition of racial segregation (discussed in David's post) is a major case in point. Be that as it may, refusal to condemn private behavior merely because it violates tradition is a far cry from "if it feels good, do it."
Similarly misguided is Hymowitz's claim that libertarianism was "complicit, too, in the vociferous attack during the 1960s on the bourgeois family." From Adam Smith to F.A. Hayek and beyond, prominent libertarian scholars have emphasized the importance of families, and the consequent need to protect them against government intrusion. Part of Hymowitz's argument here simply relies on the broader fallacy of conflating legality with morality already discussed above. The rest consists of a discussion of Ayn Rand's distaste for family ties. Rand had a deeply dysfunctional personal life, which may in part account for her attitude. But that attitude had everything to do with Rand's personal shortcomings and little if any connection to libertarianism as such.
Lastly, some of Hymowitz's claims about individual libertarian thinkers are seriously off base. For example, it is simply not true that Murray Rothbard "became a fan of Che Guevara and the Black Panther leader H. Rap Brown" because of libertarianism's embrace of social liberalism. Like other communist regimes, Che Guevara's Cuba was highly repressive of alternative lifestyles, imprisoning homosexuals and generally enforcing sexual puritanism. Rothbard's support for Che had nothing to do with social liberalism (which he probably knew to be the opposite of communist policy), and everything to do with his foreign policy isolationism, which often led him to take an overly indulgent view of America's foreign enemies. That isolationism has long been a major bone of internal contention among libertarians, as Hymowitz recognizes. Far from embracing lifestyle excesses, Rothbard was actually very critical of the use of mind-altering drugs - a point noted in Brian Doherty's book, which Hymowitz reviews in her essay.
There is a serious debate between libertarians and social conservatives over the degree to which we should defer to tradition, and the extent to which government power should be used to punish irresponsible private behavior. Conservatives have some good points to make in that argument, and libertarians should attend to them. Unfortunately, the debate is not advanced by recycling dubious claims that libertarianism requires indiscriminate endorsement of any and all self-destructive lifestyles.
David Blankenhorn, who came out against gay marriage in his recent book The Future of Marriage, now says he favors giving same-sex couples "90% civil unions." Under his proposal, gay couples would get all the rights and benefits of marriage under federal and state law -- but he would leave state laws (whatever they currently are) untouched on questions related to same-sex parenting.
This is a big step for a prominent opponent of gay marriage. Blankenhorn is breaking the almost uniform silence among gay-marriage opponents on the question of what to do to meet the needs of gay families.
It seems pretty clear that the New England Patriots violated the NFL's rules governing the use of video cameras in Sunday's game against the New York Jets. Patriots coach Bill Belichick apologized for something today, but he did not say for what. He deferred giving any specifics until after NFL announces any potential sanctions. Among the possible penalties are the loss of one or more draft picks and a suspension for Belichick. Interestingly enough, it seems that the Patriots' rule violation did not affect the outcome of Sunday's game, as the offending video tape was confiscated when the malfeasance was discovered during the first quarter.
It is currently unclear what is on the confiscated tape. Belichick apologized Wednesday but did not say exactly for what he was sorry. But the practice of stealing signals in football does not fall under the rubric of gamesmanship, as it does in baseball. Baseball teams don't have 700-page playbooks, as does Washington associate head coach Al Saunders. Nor do baseball players use parts of their offseason to devise game plans for opponents, and their teams aren't threatened with the loss of draft picks for relaying back to the hitter the next pitch will be a curveball. Technological espionage, however, is unacceptable in both sports. . . .
Violence is clearly more visceral, and certainly in the outside society violent behavior cannot be equated to breaking the rules of a game. Inside the sport is another matter, where punishment is based on negatively affecting the health and welfare of the sport. Belichick and the Patriots apparently violated a league rule in place to ensure fair contest, the root of the sport.
If Goodell does not act decisively, he will only confirm a basic truth about the commissioner-player relationship in all professional sports -- that he works for management. Of course, it has always been this way, the fiction is that the commissioner is anything but the collective employee of 32 owners.
The NFL rules do give the Commissioner broad powers to sanction unfair acts, but only where those acts have a "major effect on the outcome of the game." Can it be said that sign-stealing has such an effect? In this particular game? Generally? If the Commissioner drops the hammer on the Patriots, we could see a legal challenge. At least in the context of other leagues, (hometown) courts have not always looked favorably on sanctions involving stripped draft picks. See [Braves] v. Kuhn, 432 F. Supp. 1213 (N.D. Ga. 1977).
The other thing that comes to mind is the parralel between sign-stealing and corporate espionage. Suppose that the Patriots and Jets weren't bound by league rules to have the commissioner resolve disputes amongst and between the teams, but could resort instead to courts of law. Have the Patriots run afoul of the Economic Espionage Act of 1996? Is a football sign (or, more precisely, the correlation between a particular sign and a play on the field) a "trade secret"? The statute contemplates a pretty broad understanding of "trade secret": any "business information," tangible or intangible, that has independent value by virtue of "not being generally known" and with respect to which the owner has "taken reasonable measures to keep such information secret." On the one hand, it might be hard to argue that a team which uses signs has a real expectation of privacy, since such signs are certainly regularly visible not just to other teams, but also to the public at large. On the other hand, so long as a coach attempts to "shield" his signs, wouldn't that amount to reasonable efforts aimed at secrecy?
I should add that the Act includes criminal penalties. Perhaps the U.S. Attorney for the District of New Jersey is interested?
Happy New Year to all our Jewish readers. Through the magic of technology, I'm posting tonight via Powerblogs' "publish later" function a post I wrote earlier. But in observance of the holiday, I won't be responding to comments.
Kay Hymowitz has an essay in the Wall Street Journal on libertarianism, which at times is fair-minded (especially when she praises "the law professors who write The Volokh Conspiracy"!), and at times, not so much.
Here's an example of the not-so-much: "To the extent that libertarians are remembered at all for their role in the civil-rights era, it is not for marching on Selma but rather for their enthusiastic support of states' rights and the freedom of white racists to associate with one another."
Libertarians, it's true, deserve criticism for not being more involved in opposing Jim Crow. There was a fair amount of moral blindness there, not uncommon to whites of the era.
But Hymowitz's point is nevertheless exaggerated, at best. Certainly, libertarians did, and still do, support the right of freedom of association, but it's rather uncharitable to call this the "freedom of white racists to associate with one another." The principle of freedom of association existed and exists independently of the particular issues surrounding the civil rights movement. Unlike, say, conservatives, (to whom Hymowitz implicitly and unfavorably compares libertarians), libertarians did not abandon their belief in freedom of association once the Title VII passed and discrimination against blacks was off the table politically. One can argue, therefore, perhaps somewhat unfairly, that conservatives were less interested in freedom of association, and more interested in stifling the civil rights movement. One can't make that argument about libertarians, who continue to support the rights of everyone from the Nation of Islam to Utah polygamists to the Boy Scouts to religious "cults" to S&M fetishists to associate to their hearts content. In short, (some) conservatives, it seems, supported the "freedom of white racists to associate with one another." Libertarians supported freedom of association.
Similarly, since when were libertarians known for their support of "states' rights?" By far the two most prominent libertarian essays on civil rights in the early 1960s were Ayn Rand's "Racism" and Milton Friedman's chapter on discrimination in Capitalism and Freedom. Neither expresses any support for "states' rights."
In fact, Rand wrote that "[t]he Southern racists' claim of 'states' rights' is a contradiction in terms: there can be no such thing as the 'right' of some men to violate the rights of others." Friedman, not surprisingly, thought that school choice was the best solution to the problem of segregation in schools, both southern and northern. But he also clearly states that given the choice of "enforced segregation or enforced integration, I myself would find it impossible not to choose integration." Enforced integration, of course, was the anti-states' rights position of the time.
By contrast, reading the leading conservative organ of the time, the National Review, discussing Jim Crow in the South is enough to make one sick to one's stomach. Here's a quote from a 1957 editorial:
The central question that emerges--and it is not a parliamentary question or a question that is answered by merely consulting a catalog of the rights of American citizens, born Equal--is whether the White community in the South is entitled to take such measures as are necessary to prevail, politically and culturally, in areas in which it does not predominate numerically? The sobering answer is Yes--the White community is so entitled because, for the time being, it is the advanced race.
And here's a quote from an essay by Richard Weaver, a longtime NR favorite, also in 1957: "'Integration' and 'Communization' are, after all, pretty closely synonymous. In light of what is happening today, the first may be little more than a euphemism for the second. It does not take many steps to get from the 'integrating' of facilities to the 'communizing' of facilities, if the impulse is there." And here's James Kilpatrick in NR, also in 1957: "the State of Arkansas and Orval Faubus are wholly in the right; they have acted lawfully; they are entitled to those great presumptions of the law which underlie the whole of our judicial tradition."
Admittedly, NR's writers were not uniform in their views, and they mellowed overall during the early 1960s, but it was still not exceptional at this time to find frankly racist views expressed by certain leading conservative thinkers of the era; I haven't looked at it for a long time, but I remember being pretty shocked when I read James Burnham's Suicide of the West as a college student, based on NR's consistent recommendation.
In any event, the point it not to condemn conservatism, or conservatives, for their past misdeeds. Rather, Hymowitz's article is in large part a critique of libertarianism for being insufficiently attuned to the importance of conservative values. She makes some reasonable points, but her implication that libertarians can learn from conservatives because libertarians were insensitive to racial injustice, well, that's a little much.
Incompetence, Cowardice, or Willful Self-Destruction?
UC Irvine's decision to rescind its offer to Erwin Chemerinsky (who, I should note, is a colleague and friend) is so outrageous and boneheaded that I can muster only three explanations:
This one is obvious. Erwin's views are well known. Any remotely competent administrator should have vetted any fears about his ideology before offering him the job.
This one, too, is obvious. Maybe a big donor (rhymes with "wren") or a potential big donor, or someone with political power, balked at Erwin's politics and wanted him ditched on that basis, and UC caved. Wow, what a profile in courage. That should make all members of the UC community sleep well at night, knowing that leaders will give in to donor/political pressure.
3) Willful Self-Destruction:
This one is less obvious. Suppose you were a Regent, or some other powerful person in California, and you strongly opposed creating another publicly funded law school but knew that it was moving forward. What would you do? You might try to inflict maximum damage on the law school before it even started, in the hope that this would so harm the school's prospects that it would never open. And I can't think of a better, realistic way of sabotaging the new law school than this one. Yes, I can imagine better unrealistic ways, but in terms of things that could ever happen, this one is an amazing carom shot. In one fell swoop, UC Irvine has lost the best Dean candidate it's going to find, made itself look incompetent and/or cowardly, and made it unlikely that anyone of merit will want to be a Dean or even a professor there (unless they change their minds and offer Erwin the Deanship after all). It's hard to do all those things in single move, but UC Irvine managed to thread that needle. When something that self-destructive occurs, you have to wonder whether it was intentional (at least on the part of some). Remember that the California Postsecondary Education Commission voted against a UC Irvine law school, and the Regents voted without debate to reject that recommendation and move forward on the school. It certainly wouldn't surprise me to find out that some of those Regents didn't want the school to go forward but didn't have the votes to block it. So instead they effectively blocked it this way.
Note, of course, that this last explanation doesn't rule out one of the first two. Indeed, all three could be at work — incompetence on the part of those who should have vetted, sabotage on the part of those who didn't want a law school, and cowardice on the part of those who caved in to the arguments of the saboteurs. A trifecta of outrageous behavior.
Whether or not the President chooses to nominate Ted Olson as the next U.S. Attorney General, it appears he will not get the job. Earlier today Senate Majority Leader Harry Reid promised to block Olson's confirmation if he is nominated. "He's a partisan, and the last thing we need as an attorney general is a partisan," said Reid.
The new issue of the ABA Journal presents a "scorecard" evaluating the Justice Department's terrorism-related prosecutions. By the Journal's count, the DoJ has 31 wins, six losses and one tie. That is a better record that I would have guessed -- even more so because the Journal counts a case as a "loss" if it resulted in a conviction, but not on the grounds that a defendant was involved with the Taliban or al Qaeda. Less favorable is the ABA Journal's tally of the results of over 10,000 federal investigations into terrorism related activities. Both charts are interesting, but I am skeptical as to whether either one is an accurate representation of progress or lack thereof.
Regents' Veto of Erwin Chemerinsky as Dean of the New UCI Law School:
Some tentative, and very quick (I have to run to an event) thoughts, which I hope to supplement later:
1. From my colleague Steve Yeazell: "In some ways Erwin will come out of it much better than Chancellor Drake or Irvine. Think about being the next person Drake calls to offer the deanship: even if you are in fact the very best person for the job, no one is going to believe that, and everyone is going to think that you were the politically expedient candidate, something that will make it much, much harder to recruit good faculty. This is
a very bad day for Irvine (and for UC), no matter why it happened."
2. Also from Steve: "[T]he failure to preclear an important nomination like a founding dean with Regents suggests a rather modest level of administrative acumen [on the UCI administration side], something that the next decanal nominee might consider far more important than the 'academic freedom' issues."
3. This having been said, while I hope to have more to say on the First Amendment and academic freedom issues, I should caution against treating Deanships or Chairships the same way as scholarly positions. As the Second Circuit correctly held in Jeffries v. Harleston (cite and details later), the two are quite different. It is generally not proper, for instance, to refuse to appoint a professor because he's too controversial; but it may well be proper to avoid deans who are lightning rods for criticism, or likely to run into trouble with the Legislature or with others.
The example I give is Dean Ken Starr of Pepperdine. If he wanted to move to UCLA, I'd be delighted -- but if the faculty, the administration, or the Regents opposed such an appointment on the grounds that he'd be too controversial, and the controversy would get in the way of his effectiveness, I would not condemn their position as a breach of academic freedom, or of the First Amendment.
UC Irvine Law School Foolishly Rescinds Offer of Dean Position to Erwin Chemerinsky Because of Fear of Offending Conservatives:
Brian Leiter reports that the new University of California at Irvine Law School has rescinded its offer of the position of dean to Duke Professor Erwin Chemerinsky because they decided that the hiring of such a liberal dean would attract too much criticism from conservatives.
Although Leiter and I disagree on a great many things, I have to say that he is absolutely right to denounce this boneheaded decision. Chemerinsky is an extremely prominent and widely respected legal scholar. A brand new law school like Irvine was very fortunate that he was willing to become its dean. To be sure, I don't know much about Chemerinsky's administrative skills; some outstanding scholars are poor administrators (and vice versa). But lack of administrative talent on Chemerinsky's part doesn't seem to have been the reason for Irvine's reversal.
The Irvine decisionmakers were simply foolish to believe that Chemerinsky's hiring would produce a major backlash from conservatives that could harm the school. Many prominent law schools have deans significantly more left-wing than Chemerinsky. None of them has attracted a significant conservative backlash for their dean hiring decision, and certainly none has suffered any real harm from such conservative criticism as did occur.
Chemerinsky is unquestionably a liberal, but his views on legal issues are actually quite typical of the overwhelmingly left of center legal academy. I can easily name plenty of prominent constitutional law scholars significantly further to the left than Chemerinsky is.
Those conservative and libertarian legal scholars who have commented on Irvine's decision have been uniformly critical. For example, an LA Times story linked by Leiter quotes prominent conservative law professor [and Chapman Law School dean] John Eastman as calling the Irvine decision "a serious misstep." Glenn Reynolds has also denounced it, as has Steve Bainbridge. Among leading American legal scholars (a generally left-liberal bunch, to be sure), Eastman is one of those furthest to the right. If he is against this decision, it's safe to say that Irvine hasn't won itself many conservative friends by rescinding the offer to Chemerinsky.
My own view is that political ideology should not influence the hiring of scholars, except in extraordinarily unusual instances. Administrators are a more complicated case, because they are responsible for overseeing policies with ideological implications and objectives, and because they are supposed to project a positive public image for the school. It may be reasonable to avoid hiring administrators whose ideological views are radically at odds with the policies they are expected to enforce or will seriously damage the school's image. Be that as it may, there is no reason to believe that Chemerinsky's political ideology would prevent him from discharging his duties as dean, or somehow damage Irvine's image. Indeed, UC Irvine's decision to rescind the offer is likely to do far more harm to the school's reputation than hiring him ever could have.
UPDATE: Much of the press coverage on this incident suggests that Irvine's decision was motivated by its desire to avoid offending one particularly important conservative donor. Even if this is true, the decision was still foolish. Satisfying one donor at the expense of damaging the school's reputation throughout the academic community is unlikely to advance Irvine's longterm interests.
American Jews' Attachment to Israel by Age, Ideology and Political Party:
Profs. Steven Cohen and Ari Kelman recently published a study describing American Jews' attachment to (or alienation from) Israel, measured by various metrics. Not surprisingly, the study found that young Jews were less attached to Israel than are older Jews. (This is not surprising for a variety of reasons, including that young Jews are less likely to have close relatives in Israel; have no personal recollection of the Holocaust or the collective Jewish trauma of the pre-Six Day War period, when many thought that Israel's existence was in jeopardy; tend to be less involved in Jewish communal organizations than older Jews; are more likely to have a non-Jewish parent, and thus feel less ethnically tied to other Jews; and have grown up at a time when Israel has been the "overdog," not the underdog.)
More surprising is that the attachment of Jews to Israel is largely uncorrelated with political party or political ideology. The original study didn't have much data in this regard, so I emailed Prof. Cohen and asked him for more data, which he both produced and gave me permission to reproduce here. One caveat is that these data are only for non-Orthodox Jews; however Orthodox Jews constituted only 7% of the sample.
Report Attachment to Israel
Age: 4 groups
Given these statistics, the prevalent notion that "right-wing Jews" are dominating American Jewish organizations' Israel policy seems almost farcical. Given that liberal Jews are as attached to Israel as conservative Jews, and that there are a lot more liberal Jews than conservative Jews, it's highly unlikely that the right-wingers are in control almost anywhere.
Comment away below.
UPDATE: I almost forgot, Prof. Cohen cautions that any individual finding based on an N of less than 40 should not be deemed reliable.
Why haven't we been attacked since 9/11? The Bush administration has suggested two main reasons: dumb and dumber.
Argument #1: "we're fighting them over there so they don't attack us over here." Yes, and the Tooth Fairy is real. This argument takes the prize for being both misleading and stupid, suggesting that Iraq's civil war and regional instability are offset by that invisible fence in Anbar province that magically corrals the world's terrorists and keeps them right where we want them.
Argument #2: "We've hardened the target by making dramatic improvements in homeland security, intelligence, and counterterrorism here at home." This one sounds more reasonable on the face of it. We've seen a number of changes since 9/11. Among them: The FBI has doubled its analyst corps, the intelligence budget has increased an estimated 25%, and counterterrorism "fusion" centers are popping up like mushrooms--with more than 40 of them across the U.S.
Two problems here. The first is your view of progress. Government officials love to report about the half full glass. It's the half empty part that worries me more.
Take the FBI: Yes, the Bureau has twice as many analysts today as it had on 9/11. But analysts --the lifeblood of domestic intelligence — are still treated as second class citizens. 9/11 Commission poo-bahs Tom Kean and Lee Hamilton made this point in last Sunday's Washington Post. The Justice Department's Inspector General also highlighted the problem — with data, and specific recommendations — in its April 2007 report. At Quantico, new analysts and special agents still don't train together (unless you count one 4-hour exercise over a several week course). And as of last year, I'm told they even wore different colored shirts (analysts wore tan, agents wore blue). Nothing says "not on the same team" more loudly. Hiring more analysts sounds good. But dot connecting can't be valued unless the dot connectors are.
The more alarming problem is logic.
Just because we haven't experienced tragedy does not prove we are doing things right. This is causality 101, and it's something we drum into UCLA MPP students in their first year. Causal connections have to be examined, not assumed, or you'll get into trouble.
My 92 year-old grandmother, whom I love dearly, still drives a car in Miami. Incredibly, she's had no accidents since 9/11. But I'd never conclude that her driving acumen is responsible for her traffic record, or that she's become a better driver over the past 6 years.
The "we haven't been attacked" argument suffers from the same logical weaknesses. Why haven't we seen another 9/11 since 9/11? A million possible reasons. Many it's al Qaeda's long planning cycles. Maybe it's the disruption of al Qaeda Central in Afghanistan. Maybe it's sheer dumb luck. Maybe it's those ziploc bags at the airport. But the most dangerous explanation is the one that works backwards, inferring causes from outcomes and suggesting success when there may be none.
Last year, on the day after the anniversary of the September 11 attacks, Pope Benedict XVI spoke at Regensberg University, on the subject of Christian truth, and of Christian dialogue with other faiths, especially Islam. Although there has been plenty of media coverage of the Pope's remarks, and of the reaction by Rage Boy and other Islamists, one part of the story has been conspicuously absent: the text from which the Pope’s remarks were taken. So this article supplies the missing context.
In 1391 in the East, Islam was ascendant, and Christianity barely hanging on. Manuel II Paleologue ruled the Byzantine "Empire", a territory not much larger than an American state, consisting of Constantinople and some small parts of modern-day Greece and Bulgaria. Accordingly, Manuel was obliged in the early 1391 pay tribute at the court of the Ottoman Sultan Bajazet I.
There, Manuel met a very learned, older Persian gentleman, who asked Manuel to discuss with him the comparative merits of Islam and Christianity. The Persian, who perhaps was a professor, explained that he had already learned much about Christianity, but he wished to discuss the topic with a genuine advocate of Christianity, rather than with a Muslim giving an incomplete defense of the Christian faith.
So for 26 nights, the pair debated. The discussions were recorded by some members of Manuel’s court, probably to the benefit of their prince. The full dialogues have been recorded in Greek, and the dialogue of the seventh night has been translated into French, presumably because of its significance. It was from the 1966 French edition, translated and edited by Theodore Khoury, that Benedict XVI quoted, Entretiens Avec un Musluman: 7e Controverse (Interviews with a Muslim: 7th Controversy). No edition presently exists in English. (The French translation of the dialogue itself, without Khoury's extensive analysis, is here.)
The dialogues were complicated because Manuel and the Persian did not speak other’s language, nor did anyone in their retinues. So statements had to be translated from Greek to Turkish, and then from Turkish to Persian. (Or translated in other direction.)
One notable feature of the dialogue between Manuel and the Persian is that neither side relied on scriptural proof-texts. Although the 20th-century editor Khoury pronounces the interviews a failure because neither side could ultimately enter into the mental world of the other, the dialogues strike me as a heroic effort by both parties to overcome their linguistic and cultural differences, and to engage in a sincere discussion of the most fundamental issues of life, with neither side relying on proof-texts which the other side could not accept.
The broad topic of the 7th Controversy is the relative merits of the Christian and Islamic Laws. The dialogues took place during a crisis of confidence of Orthodox Christianity, for the Byzantines, like the ancient Israelites (and the Muslims), believed that God bestowed military success upon the righteous. At the time, the Islamic Ottomans were plainly ascendant over the Byzantines.
In small details, we see differences between medieval Persian-Turkish Islam, and the more austere contemporary Arab extremist versions. According to the Persian, paradise is replete not only with young women, but also with dogs (presumably hunting dogs). In contrast, modern Islamo-fascists abhor even guide dogs for the blind as unclean, and dogs are banned from "Saudi" Arabia.
Early in the dialogue, Manuel raises the issue of religious conversion by force. Under Islamic practice, conquered "people of the book", that is, Christians and Jews, were allowed to retain their religion, in exchange for submission as second-class citizens ("dhimmis")—required to pay punitive taxes, forbidden possess arms, and reduced to complete social inferiority to Muslims, including being prohibited from defending themselves against violent criminal attacks by Muslims.
Adherents of other religions, such as Hindus, Buddhists, Zoroastrians, or pagan sects, fared much worse; their choice was conversion to Islam, or slavery.
Near the beginning of the 7th Controversy, Manuel, as quoted by Benedict XVI asks, "Show me just what Muhammad brought that was new and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached." (The editor added a citation to Sura 9 of the Koran.)
The emperor, after having expressed himself so forcefully, goes on to explain in detail the reasons why spreading the faith through violence is something unreasonable. Violence is incompatible with the nature of God and the nature of the soul. "God", he says, "is not pleased by blood — and not acting reasonably is contrary to God’s nature. Faith is born of the soul, not the body. Whoever would lead someone to faith needs the ability to speak well and to reason properly, without violence and threats… To convince a reasonable soul, one does not need a strong arm, or weapons of any kind, or any other means of threatening a person with death…"
The decisive statement in this argument against violent conversion is this: not to act in accordance with reason is contrary to God's nature. The editor, Theodore Khoury, observes: "For the emperor, as a Byzantine shaped by Greek philosophy, this statement is self-evident. But for Muslim teaching, God is absolutely transcendent. His will is not bound up with any of our categories, even that of rationality." Here Khoury quotes a work of the noted French Muslim R[oger] Arnaldez, who points out that [the famous Muslim philosopher] Ibn Hazn went so far as to state that God is not bound even by his own word, and that nothing would oblige him to reveal the truth to us. Were it God's will, we would even have to practice idolatry.
An October 2006 joint letter of 38 leading Muslim scholars and clerics, in response to the Regensberg speech, denied that conversion by the sword is a tenet is Islam. (The issue depends on whether Koran 2:256, "There is no compulsion in religion," is abrogated by later verses.) As for the charge that Mohammad had introduced nothing new that was good, the scholars responded that Mohammad never claimed to be declaring novel doctrines.
Likewise, the educated Persian of 1391 did not attempt to defend the irrational doctrine of conversion by the sword.
Educated though he was, the Persian perhaps did not think of the specific counter-arguments which the 38 scholars of 2006 deployed. So there followed a long pause. Manuel's translator, a Muslim with Christian parents, seemed to Manuel to be discretely pleased with the speech, and he quietly warned the educated Persian that if he could not reply, the Muslims would have to concede victory in the debate to the Christians.
Finally, the Persian replied. He did not directly respond to Manuel's points. Instead, he changed the topic by arguing that the Christian law, while admirable, was inhumane.
In particular, the Persian listed the seemingly extreme demands of the Sermon on the Mount (love your enemies, do not resist evil, and so on), along with a few other extreme statements of Jesus (e.g., to follow me, you must hate your parents). Perhaps a man made of diamonds could comply with these extreme precepts, but real human could not, said the Persian. At length he denounced the Christian preference for lifelong virginity. It was contrary to human nature, and contrary to the way that God had created the world in Genesis (with two sexes who were meant to couple). The ultimate result would be the extinction of human race. Islamic Law, in contrast, was moderate, in accordance with human nature, and an example of the virtuous Golden Mean. (The Persian was apparently well-acquainted with the principle from Greek and Latin philosophy.)
Manuel answered that, first of all, extraordinary things are possible for humans, with God’s help. God can provide every person with the will and the means to achieve everything necessary to enter the Kingdom of Heaven. Moreover, the items listed by Manuel were not absolute rules; rather, they were exhortations and advice, or forms of spiritual combat, which were for people most perfected in the faith.
In response to a follow-up question from the Persian, Manuel delivered a beautiful, but overly long disquisition on the above point, explaining that Christianity had room for many sorts of people; one did not have to imitate the early Christians by practicing lifelong virginity and poverty. However, the greatest rewards in Heaven were for those who did, for they became the children of God.
As the dialogue continued through the night, the Persian brought the discussion back to a comparison of the Islamic and Christian laws, and challenged Manuel to prove the Islamic law inferior. Manuel resorted to a traditional Greek argument against Islam:
Islam claims that the Mosaic Law was good, the Christian Law better, and the Islamic Law the best of all, perfecting the Christian Law. Yet Mohammed revived parts of the Mosaic Law that Christianity had abolished, such as the prohibition on eating pork, and the requirement that if a husband dies without having given his wife a child, one of the husband’s brothers must marry the widow. Thus, Islam was illogical in proclaiming the superiority of Christian Law to Mosaic Law, while reversing Christian abrogations of Mosaic Law.
The Persian had no response except to affirm the superiority of Islamic Law, and request that Manuel continue his arguments. Manuel did so, adding circumcision to the list of Mosaic Laws which were eliminated by Christianity but revived by Islamic Law.
The Persians talked among themselves at great length. Then, the Persian politely said that the night’s discussions should conclude, because Manuel was supposed to go hunting in morning with Bajazet, and Manuel was already cold, so Manuel should have a chance to rest and get warm.
Was the Persian able to provide good counter-arguments when the interviews resumed the next evening? I do not know. I am not aware of any English or French translations of the 8th Controversy.
The 7th Controversy, as part of the 26 Interviews with a Muslim, is an admirable testament to the ability of the best minds of the 14th century to engage in serious interfaith dialogue. Both sides believed that religious truth is real, and not relative; both sides frankly presented their best arguments, based on reason and human experience. Neither side shied away from frank criticisms of the other, and neither side relied on its own scripture to trumpet its superiority over people who did not believe in that scripture.
Notwithstanding Rage Boy and similar hate-filled Islamist cretins, and notwithstanding hate-filled Christians and Jews, many millions of adherents of the Abrahamic faiths are ready to engage each other in sincere dialogue, as did the Emperor Manuel and the educated Persian. The dialogue cannot reasonably result in the conclusion that "all religions are equally true," for all of the three faiths contain statements of theological fact that are incompatible with the notion that any religion is as good as any other.
Today, the ascendancy of post-modernism and political correctness in much of the Judeo-Christian world (terrified of asserting that absolute theological truths exist, and terrified of reason itself) and of Islamofascism in much of the Muslim world (likewise terrified of reason itself) stifles meaningful interfaith dialogue. The best response to Manuel II Paleologue, the educated Persian, Pope Benedict XVI, and the 38 Muslim scholars, would be to follow their example by engaging in hard-headed and soft-hearted interfaith dialogues. For surely rational discussion about God is itself a type of homage to God.
Garner v. Mitchell:
I realize this is usually Jonathan's topic, but I thought I would point out yet another remarkable divided Sixth Circuit capital habeas case, this one handed down yesterday: Garner v. Mitchell. I suspect this decision won't be the last ruling in the case.
This opinion by Judge Moore, joined by Judge Martin, orders the state to release (or retry) death row inmate William Garner on the ground that he did not properly waive his Miranda rights in 1992 before confessing to setting a fire that killed several children. Garner was read his Miranda rights and signed the form waiving those rights, and apparently there was no particular evidence at the time of the waiver that Garner didn't understand what was happening. In state habeas proceedings, Garner did not raise whether his Miranda waiver was proper. He did raise the claim in federal habeas proceedings, however, and the district court allowed the defense to supplement the record with a defense expert report based heavily on an interview with Garner in 1986 1998. In that interview, Garner was found to have a low IQ of 76, and based on tests performed at that interview (as I understand it) the expert concludes that Garner did not have a full comprehension of the constitutional rights he was waiving in 1992.
On appeal, the Sixth Circuit instructs the district court to issue the writ of habeas corpus ordering Garner to be freed unless the state retries Garner within 180 days. First, the Sixth Circuit rules that it has de novo review of the Miranda issue. Garner had never actually raised the issue in state court, but the issue wasn't procedurally defaulted because the state hadn't raised the procedural default issue before the district court and therefore had waived the claim. And AEDPA didn't apply because the state courts had never actually addressed the issue before, meaning that there was no state court judgment to defer to. On the merits, the court finds itself greatly persuaded by the defense's expert witness report stating that although Garner appeared to have knowingly and voluntarily waived his Miranda rights, in fact he did not have full comprehension of the meaning of his Miranda rights and the constitutional right to remain silent. Thus the waiver was not actually proper even thought it looked proper, and Garner must be released from death row and set free. Judge Rogers dissented.
Chances the Supreme Court will take the case if the en banc Sixth Circuit does not: Pretty good, either on the procedural or substantive issues or both. It looks like there's a split on the standard of review (see Judge Rogers' dissent), and off the top of my head I don't think I have ever seen a court conclude that a garden-variety Miranda waiver was improper on the basis of a report like this. Thanks to How Appealing for the link.
Ailing Cuban leader Fidel Castro said the US Government misinformed Americans and the world about September 11, echoing conspiracy theories about the terror attacks against the United States six years ago.
In an essay read by a Cuban television presenter on Tuesday night, President Castro said the Pentagon was hit by a rocket, not a plane, because no traces were found of its passengers.
"Today one knows there was deliberate misinformation," wrote Castro, who has not appeared in public since July of 2006 when life-threatening surgery for a secret illness forced him to hand over power to his brother Raul Castro.
"Studying the impact of planes, similar to those that hit the Twin Towers, that had accidentally fallen on densely populated cities, one concludes that it was not a plane that crashed into the Pentagon," Castro said.
"Only a projectile could have caused the geometrically round hole that allegedly was made by the plane," he said.
Perhaps Castro will give his fellow conspiracy theorists "asylum" in Cuba? Now there's a win-win.
Several comments about my 9/11 book SPYING BLIND raise a crucial question: can I really talk about the causes of 9/11 without commmitting hindsight bias? The answer is you bet. 340 reasons explain why.
I was deeply worried about this question, so spent two years tracking what happened to every unclassified intelligence reform recommendation from 1991 to 2001. I found that a dozen unclassified studies examined the CIA, FBI, intelligence overall, and US counterterrorism capabilities during the decade. These weren't obscure little groups, but high profile blue ribbon commissions, government studies (Clinton's reinventing government initiative, the FBI's own strategic plan, to name just 2), and nonpartisan think tank task forces sponsored by places such as the Council on Foreign Relations. Together, these studies issued 340 recommendations for reforming intelligence agencies. But almost none of the suggested fixes were implemented before 9/11. Most -- 268 to be exact, or 79% of the total-- produced no action at all. Zip. Nada. Nothing. Only 35 were fully implemented, and these were mostly "study the problem more" suggestions. Here's the kicker: in retrospect, these pre-9/11 reform recommendations were right on target: 84% focused on just 4 key problems:
1. Information sharing
2. The inability of the CIA, FBI, and other intel agencies to work as a unified team
3. Weaknesses in setting priorities
4. Poor human intelligence.
Sound familiar? These are the same deficiencies the 9/11 Commission and Congressional intellgence committees' Joint Inquiry into 9/11 identified as crucial weaknesses that left us vulnerable.
There's more. Much more. Hindsight bias is all about the historical record. And in this case, the historical record is clear: the CIA Director told Congress publicly that terrorism ranked among the top threats to U.S. national security every year from 1994 (when the threat assessment was first made public) to 2001; President Clinton mentioned terrorism in every State of the Union address from 1994 on; in 1999, Secretary of Defense Cohen even wrote an op-ed to an obscure little paper called the Washington Post in which he explicitly predicted a terrorist attack on American soil. That's just a preview of the highlight reel.
It's a smart and fair question to ask whether we really could have seen it coming before disaster struck. But evidence suggests that years before 9/11, intelligence officials and elected lawmakers were aware of the al Qaeda threat, and understood the imperative for intelligence reform. But they were unable to get the fixes they believed were vitally necessary. Sometimes hindsight isn't as biased as it appears.
ESPN's Chris Mortensen is reporting that NFL officials have concluded that the New england Patriots cheated in their season-opening victory over the New York Jets. According to the report, the Patriots used a video camera to tape the Jets' defensive play-calling signals. Using video cameras to record the plays themselves is okay under NFL rules, but taping the oppositions play callng is a big no-no. If this report is accurate, the Patriots could face a heavy sanction from the league, such as losing one or more picks in next year's draft.
Common Intellectual Roots of Fascism and Radical Islamism:
For a more systematic look at the common intellectual roots of European fascism and radical islamism, discussed in David Bernstein's recent post, check out Ian Buruma and Avishai Margalit's bookOccidentalism: The West through the Eyes of its Enemies. As the authors point out, both fascism and radical Islamism were heavily influenced by the nineteenth century European romantic nationalist reaction against liberalism and free markets. The romantic nationalists claimed that liberal society was overly materialistic, neglected important group ties, and lacked spiritual values. Obviously, the fascists were direct intellectual descendants of the romantic nationalists, whose ideology they took to new extremes. In the Arab Middle East, the intellectual connection emerged as a result of the penetration of European nationalist ideas beginning with the early twentieth century.
In the 1930s, as historian Bernard Lewis explains here, Nazi Germany made a "concerted effort" to export its ideology to the Arab world directly; they were in large part successful. Many of the Nazi ideas were taken up by the early radical Islamists at that time, as German scholar Matthias Kuntzel discusses here.
I would add that the modern radical Islamist version of anti-Semitism also has its roots in European nationalist and fascist thought. This is most clear in its embrace of the Protocols of the Elders of Zion, a forgery created by czarist Russian secret police and first popularized by right-wing Russian nationalists. As the NY Times puts it, the Protocols have become a "canonical text" for radical Islamists. More generally, the entire idea that the Jews are a powerful, insidious cabal dominating capitalist economic system is rooted in European nationalist and fascist ideology and is very different from traditional pre-20th century Muslim anti-Semitism (which viewed Jews more as objects of contempt than fear).
There are some important differences between fascist and radical Islamist ideology. Perhaps the most important is that the latter is an internationalist ideology that cuts across different racial and ethnic groups, while the former tries to exalt a particular nation-state. But they also have numerous commonalities, including strikingly similar reasons for their hatred of liberalism, democracy, the free market, and Jews.
UPDATE: To avoid confusion, I should emphasize that this post is not a defense of the term "Islamofascist." It's a post on the intellectual roots of radical Islamism, many of which are fascist in origin. For what it's worth, I think the term is on balance counterproductive. It tends to alienate liberal Muslims (a key constituency the US must appeal to), while largely failing in the original objective of rallying Western left-wing support for the War on Terror, as David noted in his post. At the same time, the term is descriptively accurate as a characterization of the ideology of Al Qaeda and other similar groups. That ideology does indeed combine a reactionary strain of Islam with major elements of European fascism. Sometimes, the use of a word is both accurate and tactically unwise.
When I first came across the term "Islamofascism" years ago, in a column by Christopher Hitchens, I was repulsed. It struck me as the usual knee-jerk leftist (and yes, I think Hitchens remains a leftist, though an unusual one) response to any ideology one doesn't like--call it "fascist." Last I heard, college libertarians were still being called "fascists" by some of their peers on the left, despite the absence of any overlap between libertarianism and fascism--except, I guess, that both fascists and libertarians intensely dislike Communism, albeit for entirely different reasons.
In any event, it turns out I was wrong about the term "Islamofascism," as modern Islamist ideology does have roots in fascism, at least if one interprets fascism broadly enough to encompass Naziism, and not just Italian fascism. The Weekly Standard has one of several articles I've seen about the links between 1930s fascism and the rise of the Muslim Brotherhood, from which Al Qaeda (and Hamas) sprang.
Speaking of which, I heard someone on NPR today, an American who served as Yasser Arafat's advisor, claim that Hamas is America's "natural ally" against Al Qaeda. Sure, perhaps in the same way that Mao was America's "natural ally" against the Soviet Union, or for that matter the USSR was America's "natural ally" against Nazi Germany, but such alliances with the devil should be entered into only in the most dire of circumstances, and it hardly strikes me that we're there yet.
UPDATE: The term "Islamofascism" may be appropriate, but is it wise to use as a political/propaganda strategy? I'm not taking a position on that, but I always thought the purpose of the term was to rally the reluctant left into the cause, by pointing out the similarities, and, indeed, the common ideological origins, of modern Islamic radicalism and the right-wing totalitarian movements of the 1930s that the left vigorously opposed. It appears that this has almost entirely failed. OTOH, those who argue that the term is "insensitive" to Islam, but seem to have no compunctions about blanket condemnation of domestic "fundamentalist Christians" or "the Christian right" don't seem to have a very strong leg to stand on, either.
An exchange I heard a few months ago -- I reproduce it from memory, so the account will not be precise, but I think I remembered the substance accurately:
[Talk had turned to effective legal writing; B is a smart soon-to-be-law-student.]
A. Another thing I learned about legal writing: Don't use exclamation points for rhetorical emphasis. And all-caps -- don't do that, either. Bold is also very bad. So is italics: It's OK to use it to highlight important terms in quotes, or terms that you're trying to distinguish from each other in your arguments, but don't use it as an exclamation point.
B. But what then are you supposed to use for rhetorical emphasis?
Why "U.S. Citizen?" Why not "U.S. Citizen or permanent resident?"
I e-mailed the organizers of the scholarship to ask the question, and they promptly responded that, on reflection, permanent residents should be included. The revised Blogging Scholarship page reflects this.
I should say, by the way, that my e-mail to the organizers didn't condemn their original position, nor do I condemn it now -- if Americans want to give gifts to Americans but not citizens of other nations, that's fine by me. But changing the program to also consider our nation's long-term guests (many of whom will become citizens, and many more of whom are likely to contribute to American life) also strikes me as a fine and hospitable position.
Many thanks, Eugene, for inviting me to blog about the ghosts of intel failures past, present, and future.
I thought I'd kick off by sharing my top 5 depressing findings about 9/11 from my new book -- all confirmed by unclassified government documents or at least two government sources.
1. The FBI failed to find 9/11 hijackers Khalid al-Mihdhar and Nawaf al-Hazmi 19 days before 9/11 even though they were hiding in plain sight. On the night of 9/11, an FBI search of public records found al-Mihdhar's correct San Diego address within hours. Unbeknownst to the Bureau, both terrorists had lived with an FBI informant in San Diego, made contact with several targets of FBI counterterrorism investigations, and used their real names on everything from credit cards to telephone listings.
2. Just weeks before 9/11, the FBI's own highly classified counterterrorism review gave failing grades to every single one of the Bureau's 56 U.S. field offices. (The report was considered so embarrassing, only a handful of copies were ever made).
3. A January 2002 internal FBI review found that 66% of the FBI's 1,200 analysts (the people who "connect the dots") were unqualified to do their jobs.
4. Twenty months before 9/11, the CIA got wind that al Qaeda operatives might be gathering in Malaysia for a planning meeting -- what one intelligence official described to me as "the al Qaeda convention." Two of the participants turned out to be 9/11 hijackers. The CIA established surveillance, but lost track of them as soon as the meeting disbanded. Management was so hosed up that one CIA official believed, and kept telling his bosses, that the terrorists were being monitored 5 days after they had disappeared into the Streets of Bangkok.
5. The CIA and FBI missed a total of 23 opportunities to potentially disrupt the 9/11 plot.
Marty Lederman highlights some key points from Jack Goldsmith's book and a recent interview. For those of us who don't yet have a copy of the book, it's worth a read. As these excerpts illustrate, even those who are generally supportive of aggressive counter-terrorism measures and expansive constructions of executive power should have serious concerns about they way counter-terror policies and legal doctrines have been developed and implemented in the Bush Administration.
Amos Guiora's op-ed on the failings of airport security prompted significant response, here and elsewhere. Among other things, readers debated whether his example of TSA subjecting a three-year-old to the explosive-detecting "blower" was a good example of poor prioritization and a failure to focus on resources on actual threats. In response to these comments, Amos e-mails the following:
In reading the numerous responses here (and on other blogs and websites), I have been struck by the clear sense of concern with respect to airport security. While we may disagree over methods implemented, the overwhelming expression is one of great concern. I share that concern.
As for the three-year-old child, I believe that what I observed illustrates the need for concern about current airport security. To clarify the situation, the child's mother had already passed through prior and was waiting on the other side but was not allowed to accompany her child inside the blower. The child was told to stand still in the blower, as this is required to guarantee an accurate read of explosive material, but you can imagine the effectiveness of this instruction to a three year old. This raises significant questions regarding the efficacy of subjecting the child to the test.
I advocate highly trained individuals carefully screening travelers predicated on the four step process measures articulated in the article (risk assessment, threat analysis, intelligence gathering and cost-benefit analysis of counter-terrorism). What I (and many others) have observed was "rote-based" screening predicated on a random check devoid of discretion.
My professional experience has taught me the absolute supremacy (in terms of importance) of intelligence information that is viable, reliable and corroborated. That little boy was not made to go through the blower because of "hot" intelligence; rather he was there because of a fundamental inability to discern real threats. The counter-terrorism policy that is represented by this particular incident (which is why it is important in guaging where we are six years after 9/11) is best described as "groping in the dark". That is the fundamental concern I sought to allay in asking both "where are we?" and "how do we move forward?"
UPDATE: Based upon some of the comments, I think it is worth clarifying that the "blower" is not designed to detect a bomb hidden on the passenger, but on whether the individual has been in contact with materials used for making bombs. Also, for those commenters who disagree with Amos, do you believe that random, rote screening is the best we can do? It might be. It might be the case, for example, that the TSA is incapable of replicating the screening approach adopted by Israeli security. Is such pessimism justified? Amos is not claiming that children and others should never be searched. Rather, his claim is that randomized screening of children is pointless and not cost-effective. To be sure, El Al security has uncovered efforts to hide bombs in the luggage of pregnant women, and the like, but Amos assures me that this was not due to randomized screening.
"Losing the Law War":
LawProf John O. McGinnis, a Deputy Assistant Attorney General at DOJ's Office of Legal Counsel from 1987-1991 (where he worked on national security issues), has penned a short essay criticizing the Bush Administration's approach to the legal issues raised in the War on Terror: Losing the Law War: The Bush Adminstration's Strategic Errors. John also has a blog post up about the new essay over at Opinio Juris. (I'll close up comments here so you can comment there instead.)
I just finished reading Lynne Olson's terrific book Troublesome Young Men. The book tells the tale of the group of Tories who courageously stood up to Neville Chamberlain and his appeasement policy, and eventually drove him from power. Many of these maverick Tories bore a huge personal price for following their consciences. Chamberlain and other Tory leaders attacked them as disloyal traitors to their party. Chamberlain himself comes off as a petty, thin-skinned, bullying, and self-absorbed man who turned all criticisms of his policies into a test of personal loyalty to himself.
The great climax of the historical events was Leo Amery's historic speech in the House of Commons where he exclaimed to Chamberlain (quoting Cromwell): "You have sat too long here for any good you have been doing! Depart, I say, and let us have done with you. In the name of God, go!"
Occasionally life tests you to follow your principles and to do the right thing to support an institution in the face of opposition by powerful, yet petty and and narrow-minded people (although never with the stakes faced by pre-War Britain). I personally found the book to be a great inspiration to do the right thing in those situations and act to do the right thing, even when it may mean a setback or cost to yourself or even seemingly to your cause in the short run. Others will just follow the party line in order to gain personal advantage and essentially knowingly sell out the institution they are supposed to serve, thereby getting ahead in the short run. As Olson notes, some of the "Troublesome Young Men" such as MacMillan later went on to great successes, but many of them did not. She indicates that Churchill was pretty disloyal to those who helped topple Chamberlain and make Churchill Prime Minister, keeping Chamberlain around in a senior role after he was driven out of the Prime Minister spot. An especially striking section was when Chamberlain used the invasion of France as an excuse to try to retain power even after Parliament had made it clear that it was time for him to go. As I saw commented recently in a different context, "Desperate people do desperate things."
A well-written, interesting, and inspiring book. I've read a fair amount of World War II history and Churchill biography, but this was a story about man characters that I had never really heard before.
In a report on the efforts of Democratic presidential candidates to attract the "best and brightest" policy advisors for their campaigns, Newsweek columnist Michael Hirsh reports that former national security advisor and document pilferer Sandy Berger is one of the three foreign policy experts most relied upon by Senator Hillary Clinton in her White House bid. No word on whether he would have a White House position — or security clearance — in a potential Clinton Administration.
FURTHER UPDATE: Why do I find the report that Hillary Clinton is using Sandy Berger as one of her key foreign policy advisors so unnerving? Because it shows both poor judgment and a lack of regard for Berger's legal and ethical breaches. I also find it quite surprising. Hillary Clinton has impressed me as a Senator and as a candidate. Whatever her other faults, she is intelligent, savvy, disciplined, and determined; by far the most impressive candidate in the Democratic field. All this makes her apparent inclusion of Berger in her foreign policy "triumverate" all the more difficult to fathom.
For those who forget, Berger repeatedly stole and destroyed classified documents, resulting in the temporary loss of his security clearance. Berger has never provided a plausible explanation for his actions. By voluntarily giving up his law license, he avoided a cross-examination from bar counsel, so we still do not know precisely what he was doing and why. Indeed, the only assurance that Berger did not destroy unique copies of classified national security documents — such as copies of reports containing notations in the margins and the like — comes from Berger himself, something that the 9/11 Commission was not told when it was preparing its report (as I noted here).
In sum, I do not believe one needs to be an anti-Clinton partisan to find this report disturbing. Judging by the comments, it seems many many Democratic-leaning readers agree.
NY Times Renews Discussion of Supreme Court Term Limits.--
Linda Greenhouse has an article in today's New York Times that brings up proposals for an 18-year limit on Supreme Court tenure. She reports some of my data on Court tenure and mentions Steven Calabresi's and my article on the subject (which can be downloaded from this SSRN page).
Greenhouse also quotes Sandy Levinson, who was one of the few law professors who called for CJ Rehnquist to resign in 2005:
Chief Justice William H. Rehnquist died over Labor Day weekend in 2005, 10 months after receiving a diagnosis of an invariably fatal form of thyroid cancer. During most of that time, he had been widely expected to announce a decision to retire, but he kept even most colleagues in the dark about his condition and plans until declaring six weeks before his death that he intended to stay on.
Whether he displayed brave optimism or “a degree of egoistic narcissism,” as Prof. Sanford Levinson of the University of Texas Law School asserted in a recent book, is open to debate. With the protection of life tenure, the decision to play through was, in any event, completely the chief justice’s own.
But it is beyond debate that interest in re-examining the wisdom of the Constitution’s grant of life tenure to Supreme Court justices, a lively topic at the time of Chief Justice Rehnquist’s illness and death, has continued to grow.
The interest, admittedly, remains largely limited to the corridors of law schools and university political science departments. No member of Congress or candidate for office has taken up the call. But the range of scholars across the ideological spectrum who are pushing or endorsing various proposals for restricting justices’ tenure is impressive, numbering in the dozens of leading conservatives and liberals. . . .
One reason for the growing consensus is that the practical meaning of life tenure has changed dramatically in recent years. Between 1789 and 1970, according to statistics in an article by Profs. Steven G. Calabresi and James Lindgren of Northwestern University Law School, Supreme Court justices served an average of just under 15 years, with vacancies on the court occurring about once every 2 years.
Since 1970, justices have served nearly twice as long, more than 26 years, with the average interval between vacancies stretching to more than 3 years. . . .
One [reason offered for limits] is that widely spaced departures (there were none from 1994 to 2005) tend to make each vacancy an earthshaking event, while predictably regular vacancies would lower the temperature. Another is that the broadly perceived tendency of justices to time their retirements for political reasons increases public cynicism about the court.
A third reason is that fixed terms would erase the political premium on appointing justices at young ages. Republicans, especially, prize youth and the long Supreme Court tenure it promises. The average age of the last five Republican appointees was 50; the last five justices named by Democratic presidents were, on average, 56%.
Few other legal systems have taken American-style life tenure as a model. Most countries place term or age limits on their high-court judges, as do 49 states (all but Rhode Island). That fact “demonstrates that there is not the slightest need to grant life tenure in order to guarantee an independent judiciary,” Professor Levinson of Texas wrote last year in his book “Our Undemocratic Constitution.”
But not everyone is convinced. Prof. Vicki C. Jackson of the Georgetown University Law Center, a leading authority on the federal judiciary, warned in an article this year that rather than cooling the politics of Supreme Court confirmations, fixed terms might simply “turn an episodic fracas into a regular one.”
Necessity is a poor defense for war crimes. Barring the truly gratuitous (like the Soviet rapes [of German civilians during WWII]), the violating power can almost always cobble a "necessity" argument.
The whole point of declaring conduct X a "war crime" is presumably to declare it off limits, even when one could get arguably good results thereby.
The argument is not without some force. Indeed, some Soviet officials even tried to justify the mass rape of German and other women by their troops by claiming that it was necessary to keep up the soldiers' morale. However, the fact that many necessity arguments for violations of international law are bogus excuses doesn't prove that all of them are. For example, there is pretty strong evidence that the illegal targeting of German and Japanese civilians by the Allied strategic bombing campaign in World War II played an essential role in the defeat of the Axis (see, e.g., Richard Overy's book, Why the Allies Won). Perhaps the risk of allowing states to get away with bogus justifications is so great that a categorical ban with no exceptions is the only solution. In my original post, I emphasized that:
I have deliberately abstracted away from institutional, slippery slope, and public choice considerations. Even otherwise justified violations of international law might lead to unjustified ones in the future and should perhaps be curtailed for that reason. The risk of slippery slope problems, public choice problems, and the institutionalization of atrocities, argues for tighter constraints on combatant behavior than might otherwise be justified.
Such concerns justify a high burden of proof for necessity arguments, especially in cases such as the strategic bombing campaign where the illegal conduct causes great harm. They may also justify other institutional safeguards to reduce the risk of bogus necessity-mongering. Nonetheless, I am skeptical of claims that these dangers justify a categorical rejection of conduct that violates international law. In some important cases - including World War II - rigorous enforcement of such a rule would lead to far greater atrocities than the it prevents. For example, this rule would mean that outside forces could never intervene to oust a repressive regime engaged in mass murder so long as its crimes were confined to its own territory (because nondefensive war is considered illegal under the UN Charter).
We should certainly guard against bogus justifications for violating international law. But we should also guard against the sort of cult fetishization of international law that unthinkingly elevates adherence to international legal rules above all other considerations.
Last week’s panel on “Enforcing the Clean Water Act” in which I participated largely focused on H.R. 2421, “The Clean Water Restoration Act of 2007,” a bill introduced by Representative Oberstar “to amend the Federal Water Pollution Control Act to clarify the jurisdiction of the United States over waters of the United States.” This legislation is a response to the Supreme Court’s decisions in SWANCC v. U.S. Army Corps of Engineers and Rapanos v. United States that limited federal regulatory jurisdiction under the Clean Water Act.
The key provisions of the bill – indeed, the bill’s only meaningful substantive provisions –eliminates all references to navigability by substituting “waters of the United States” for “navigable waters of the United States” throughout the bill, and then define “waters of the United States” as follows:
The term `waters of the United States' means all waters subject to the ebb and flow of the tide, the territorial seas, and all interstate and intrastate waters and their tributaries, including lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, natural ponds, and all impoundments of the foregoing, to the fullest extent that these waters, or activities affecting these waters, are subject to the legislative power of Congress under the Constitution.'
One of the stated purposes of this reform is to “clearly define the waters of the United States” subject to federal jurisdiction. Yet this definition will do nothing of the kind. The bill purports to assert jurisdiction to the “fullest extent of the legislative authority of Congress under the Constitution,” but provides no indication of what this entails. Unless one assumes that federal regulatory jurisdiction is unlimited – an assumption the Supreme Court rejected in both of the opinions this bill seeks to address – the new definition of “waters” will still require courts to determine whether given waters and wetlands are within the scope of Congress’ Commerce Clause authority. As a consequence, this definition will produce just as much regulatory uncertainty, and litigation, as the status quo.
This does not mean the revised definition would have no effect, however. By removing any reference to the navigability of waters, the legislation is clearly intended to expand federal regulatory authority, and could well provide the basis for asserting federal jurisdiction over some non-navigable waters. Yet without additional rule-making by the U.S. Army Corps of Engineers and Environmental Protection Agency to clarify the bases upon which jurisdiction can be asserted, the bill still amounts to the legislative equivalent of the statement ‘we wish to regulate everything we can regulate.” This may well eliminate navigability as a constraint, but it doesn’t provide any rational basis upon which agencies or courts could determine when federal regulatory jurisdiction is, or is not, justified. Many federal criminal statutes avoid this problem with the inclusion of a jurisdictional element, explicitly limiting federal jurisdiction to those instances in which the regulated activities “substantially affect commerce” or otherwise implicate federal interests.
The proposed definition of “waters of the United States” could well be the source of some regulatory mischief, however, as it asserts regulatory authority over “all impoundments” of water that are subject to federal regulatory authority. A plain reading of this language would suggest that this would expand federal Clean Water Act jurisdiction to cover many artificial waters and structures that impound water that were previously unregulated. Whether intended or not, this could be quite significant. Consider that, as a general matter, it is easier to assert federal jurisdiction under the /Commerce Clause over human-erected structures than “natural waterbodies, as the former are (again, as a general matter) more likely to be related to economic activities than the latter. To be sure, the regulation of many “impoundments,” such as those used in various manufacturing processes and closed water systems, to swimming pools and fountains, may have little to do with the Clean Water Act’s stated purpose of restoring and maintaining “the chemical, physical, and biological integrity of the waters of the United States,” but such statements of purpose are ultimately less important than a statute’s operative provisions. While I doubt the Army Corps and EPA would seek to avail themselves of this newfound authority immediately, one can safely assume that this new authority over “all impoundments” would eventually be the source of regulatory mischief.
In my view, the ultimate purpose of the bill – reversing the SWANCC and Rapanos – is misguided. Reasserting federal regulatory jurisdiction to its constitutional limit (if not farther) serves neither the aim of regulatory certainty nor the cause of more effective environmental conservation. Stretching federal resources over an ever-greater environmental expanse does not improve regulatory efficacy. A wiser approach, in my view, is to target federal regulatory efforts where federal regulation can do the most good. Specifically, federal regulation of waters and wetlands should be focused on those areas in which the federal government has a particular federal interest (as is the case with navigable interstate waterways) or where federal involvement is necessary to prevent states from exporting environmental harms on their neighbors. Such an approach is not only more consonant with the underlying constitutional values that motivated the Supreme Court’s decisions in SWANCC and Rapanos, it is also likely to be more effective – and will leave ample room for non-regulatory efforts and non-federal actors to complement federal regulation. Not only will the Oberstar legislation do nothing to accomplish this goal. It would actually move federal policy in the opposite direction.
I'm delighted to report that Prof. Amy Zegart from the UCLA School of Public Affairs will be guest-blogging from Tuesday to Friday. Amy is one of the nation's leading experts on intelligence reform; she worked on the National Security Council staff in 1993, during the Clinton Administration, and also was a foreign policy advisor to the Bush-Cheney campaign in 2000. She's also the author of the just-released Spying Blind: The CIA, the FBI, and the Origins of 9/11; here's a brief summary from the book jacket (paragraph break added):
Zegart shows how and why the intelligence system itself left us vulnerable [to 9/11].
Zegart argues that after the Cold War ended, the CIA and FBI failed to adapt to the rise of terrorism. She makes the case by conducting painstaking analysis of more than three hundred intelligence reform recommendations and tracing the history of CIA and FBI counterterrorism efforts from 1991 to 2001, drawing extensively from declassified government documents and interviews with more than seventy high-ranking government officials. She finds that political leaders were well aware of the emerging terrorist danger and the urgent need for intelligence reform, but failed to achieve the changes they sought.
The same forces that have stymied intelligence reform for decades are to blame: resistance inside U.S. intelligence agencies, the rational interests of politicians and career bureaucrats, and core aspects of our democracy such as the fragmented structure of the federal government. Ultimately failures of adaptation led to failures of performance. Zegart reveals how longstanding organizational weaknesses left unaddressed during the 1990s prevented the CIA and FBI from capitalizing on twenty-three opportunities to disrupt the September 11 plot.
Spying Blind is a sobering account of why two of America's most important intelligence agencies failed to adjust to new threats after the Cold War, and why they are unlikely to adapt in the future.
We're giving away $10,000 this year to a college student who blogs. The Blogging Scholarship is awarded annually.
* Your blog must contain unique and interesting information about you and/or things you are passionate about. No spam bloggers please!!!
* U.S. citizen [UPDATE: expanded to include permanent residents who attend U.S. institutions];
* Currently attending full-time in post-secondary education; and
* If you win, you must be willing to allow us to list your name and blog on this page....
* Submission Deadline: Midnight PST on Oct. 6th
* 10 Finalists Announced and Public Voting Begings: 9am EST on Oct. 8th
* Public Voting Ends and Winner Declared: Midnight PST on Oct. 28th
If [Senator Craig] had been a better student of the U.S. Constitution, his arrest may never happened at all, and if the U.S. Constitution is followed, as of course it should be, the senator’s arrest and guilty plea will have to be vacated.
This is because the Constitution, in a straightforward and unambiguous manner, states in Article 1, Section 6 that "Senators and Representatives shall be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same." ... The only exceptions are for treason, felony and breach of peace, and the senator, of course, was charged with a misdemeanor.
Since the senator was on his way to Washington, and did in fact cast a vote on the evening of the day on which he was arrested, his arrest and subsequent questioning were, technically speaking, unconstitutional.
Nice idea, but no dice. The Supreme Court's decision in Williamson v. United States (1908) holds that "the term 'treason, felony, and breach of the peace,' as used in the constitutional provision relied upon, excepts from the operation of the privilege all criminal offenses"; the Arrest Clause thus applies only to arrest in civil cases, a practice that apparently was not uncommon at the timing of the Framing. The sources Williamson points to, including Justice Story's respected 1833 treatise on the Constitution, seem to bear this out:
§ 862. The exception to the privilege is, that it shall not extend to "treason, felony, or breach of the peace." These words are the same as those, in which the exception to the privilege of parliament is usually expressed at the common law, and was doubtless borrowed from that source. Now, as all crimes are offences against the peace, the phrase "breach of the peace" would seem to extend to all indictable offences, as well those, which are, in fact, attended with force and violence, as those, which are only constructive breaches of the peace of the government, inasmuch as they violate its good order....
Are Violations of International Law Ever Justified?
John McGinnis, a Northwestern University law professor (and my coauthor on several papers), raises this question in the process of recounting a deliberate violation of the Geneva Convention by the US military during World War II:
I begin with some interesting information that I recently learned on a trip to the Chicago Museum of Science and Industry...: the United States once decided, consciously and at the highest levels of government, to violate the Geneva Convention. The incident occurred when in 1944 our navy captured a German submarine and a version of the enigma machine—the equivalent of the German codebook. While the navy also captured the entire crew, it did not notify the Red Cross of their capture or identities. The exhibit itself states that this failure violated the Geneva Convention. Notification would have tipped the Germans off to the substantial possibility that the allies now had a means for breaking their code.
How, if at all, would this decision then differ from a decision today to violate some aspect of the Geneva Convention in order to achieve an objective as important as avoiding disclosure of capturing a code? Certainly, the violation in 1944 was clear and premeditated. It also cannot be argued that it was not certain to inflict very substantial harm. As a result, the relatives of the German seamen thought they were dead for a substantial period, and, I believe in at least one case, the wife of one of the sailors remarried. Such grief and disorientation of lives might be thought of even greater consequence than the humiliation of a few unapproved interrogation techniques. Would the decision be different because of a difference in the level of threat we now face? Who makes that determination?
Both the strategic bombing campaign and the far less serious incident recounted in John's post can be justified on the grounds that they were necessary to avoid an even greater evil: an Axis victory in the war. Defeat for the Allies would almost certainly have led to far worse atrocities than those we inflicted in order to achieve victory. Assuming for the sake of argument that the illegal strategic bombing campaign really was essential to the defeat of Nazi Germany and Japan, it is possible that it was justified (at least in part).
If so, however, that opens up two other vital issues. First, if even very grave violations of international law (such as the deliberate killing of hundreds of thousands of civilians) were justified in order to defeat the Nazis, it is possible that comparable or smaller violations might be justified if necessary to vanquish other evil regimes and/or terrorist organizations. Whether or not they are depends on how evil the enemy is, how great a threat they pose, and how necessary the violation in question is to the attainment of victory. The threat posed by, say, Al Qaeda, is far smaller than that posed by the Axis. But it nonetheless might be great enough to justify some (smaller) degree of illegality in our response.
Second, this line of argument should lead us to question the traditional view that international law - and the laws of war - should apply equally to all combatants regardless of the cause that they fight for. The difference - if there is one - between the German attack on Guernica in 1937 and the far bloodier Allied attacks on Berlin and Hamburg during WWII lies in the ends they served, not the means. The Allied cause was vastly more just than that of the Germans and therefore arguably justified the infliction of far greater harm (including, in some cases, harm to innocent people) if necessary to achieve its ends.
That said, there are three important caveats to the above reasoning:
First, in this post, I have deliberately abstracted away from institutional, slippery slope, and public choice considerations. Even otherwise justified violations of international law might lead to unjustified ones in the future and should perhaps be curtailed for that reason. The risk of slippery slope problems, public choice problems, and the institutionalization of atrocities, argues for tighter constraints on combatant behavior than might otherwise be justified.
Second, even if we can sometimes justify violations of international law that are needed to achieve victory in a just war, there is no defense for gratuitous atrocities that have no connection to military necessity. Even if the Anglo-American strategic bombing campaign was defensible, there is no justification for such Allied war crimes as the rape of some 2 million German women by Soviet soldiers.
Finally, I emphasize that the above references to Allied WWII-era war crimes in no way justify the considerably greater war crimes of the Axis powers. The latter are all the more reprehensible because they were committed by regimes fighting for an unjust cause and in most cases had no connection to any military necessity.
Demands That Facebook Shut Down "Fuck Islam" Group:
The New York Times reports on this, though it's characteristically coy about the group's name; the group appears to be this one -- there are others with similar names, and at least one with the same name, but this is the one that has the about 750 members that the Times reports. Facebook has apparently not taken any definitive action on this, though there's an allegation that it did briefly suspend the group.
Facebook, of course, is legally entitled to control what's posted on its site; it's a private entity, and not bound by the First Amendment. In fact, its decision may itself be protected by the First Amendment, though that's not completely clear; in any event, though, there are no laws that even purport to restrict Facebook's discretion here.
Nor would I much fault Facebook for allowing the group and similar groups as to other religions, or for banning such vulgar references in response to the mass criticism. (In the latter case, though, one might fault Facebook if it doesn't ban the Fuck Christianity group, which has also gotten mass criticism, even if the volume of criticism is just in the high thousands rather than tens of thousands.)
But I do wish the New York Times had highlighted just what the petition said:
if the group "f**k Islam" and all similar disrespectful groups of religion are not shut down before the end of september..we are all goin to close our facebook accounts..and thats the least we can do to show our respect to religion and our disagreement of such humilating and ignorant groups.
The danger is not just that the Facebooks of the world will bar vulgar criticisms. Rather, it's that the petition doesn't just demand that "the anti-Islam group" be removed (emphasis added) -- the petition calls for the shutdown of "all similar disrespectful groups of religion." Religions are ideologies that offer themselves up for belief. They must be equally available for disbelief, and even disrespect.
The message attached to the "Fuck Islam" group, after all, includes substantive criticism:
The Quran contains many lies and threats. Islam is false, no god exists, and someone should say that loud and clear. Heaven and hell are fables, prayer is a waste of time, and angels and jinn are obviously mythology.
This is not a group against Muslims. They have it bad enough. If you doubt that go to Palestine. If you hate Muslims or are here to harrass them or promote your religion, go away. Muslims can be and usually are peaceful and respectful.
The best thing for the whole world is a rejection of all religions and a renewed discovery of the love for humanity and naturalism.
The criticism, even shorn of vulgarity, remains disrespectful. In the view of many Muslims it is doubtless "ignorant" and "humiliating." But if the call is really (as it seems to be) for Facebook and other relatively open speech venues to shut down all such criticism -- whether it uses vulgar words or not -- then that is a dangerous call indeed.
And if Facebook responds to that call, and makes clear that it's shutting the group down because of its underlying hostility to Islam and not because of its vulgarity, then it seems to me that we should indeed criticize that judgment: Facebook would then be making clear that it is willing to countenance criticism of a wide range of ideologies, but is treating either religious ideologies or, more likely, Islam, as sacred cows that its members ought not be treating "disrespectful[ly]." I would hope that Facebook members -- who, after all, use Facebook as a means of self-expression -- would then turn to sites that are more respectful of members' ability to express their ideas.
Robert Novak says there is more (or is that less) to the Congressional Ethics legislation than meets the eye:
The final version of the widely celebrated ethics bill, approved by overwhelming margins in both the House and Senate a month ago, finally and quietly made its way last week from Capitol Hill to the White House. It surely will soon be signed into law by President Bush. What only a handful of leaders and insiders realize is that this measure, avowedly dedicated to transparency, actually makes it easier for the Senate to pass pet projects without the public -- or many senators -- being aware of it.
Until now, one or two senators could block provisions not passed by the Senate or House from being inserted, usually at the end of a session, into the final version of a bill. Under the new rule, it will take 40 senators to block any such provisions that are protected by the majority or even the bipartisan leadership. That will make it much easier to enact any number of special-interest measures, the goal of all too many members of Congress.
This momentous change could not have slipped by without bipartisan Senate leadership connivance, but it was unknown to rank-and-file senators -- much less the general public.
If this is true, it is a real disappointment -- and validates continuing skepticism of the Congressional leadership's promise of "reform."
Six years after 9-11, have we learned how to prevent terrorism? Perhaps, as there has not been a successful attack in the U.S. since then. On the other hand, it is hard to defend our current approach to airport security. After watching the TSA subject a three-year-old to the explosives-sniffing "blower" at an airport, my friend Amos Guiora, formerly a counter-terrorism specialist with the Israeli Defense Forces, wonders "where are we?"
What does subjecting a 3-year-old to the blower unattended by a parent (his mother went through the blower previously) tell me?
It tells me that we have yet to begin risk assessment and analysis, identifying legitimate threats has not been begun and sophisticated cost-benefit analysis of counter-terrorism is apparently in its infancy. How dangerous is this? Very.
As long as 3-year-old boys are made to go through blowers at airport security lines, we clearly are not focusing our limited resources on genuine threats. Rather than develop sophisticated prototyping models, we only hear "you have been selected for a random search."
Of course, this assumes that airport security is really about preventing terrorist attacks, as opposed to sufficiently inconveniencing air travelers so they feel a bit more secure.
Sunday Song Lyric:
Speaking of the Dave Brubeck Quartet, they are one of the many acts to record the classic song "These Foolish Things (Remind Me of You)" (lyrics by Holt Marvell, music by Harry Link and Jack Strachey). Here, for instance, is Brubeck performing the song in 1959. "These Foolish Things" was a hit for artists ranging from Benny Goodman and Billie Holiday to Bing Crosby and Bryan Ferry, the latter of which used the song as the title track for his 1973 album of covers. Here's a taste of Holt Marvell's lyrics begin:
A cigarette that bears a lipstick's traces
An airline ticket to romantic places
And still my heart has wings
These foolish things remind me of you
A tinkling piano in the next apartment
Those stumblin' words that told you what my heart meant
A fairground's faded swings
These foolish things remind me of you
You came, you saw, you conquered me
When you did that to me
I knew somehow that this had to be
It's worth noting that different artists performed slightly different versions of the song, so there is more than one version of the lyrics.
Paul Desmond Quartet Plays "Emily":Paul Desmond is mostly known for being the saxophonist in the Dave Brubeck Quartet for many years, and in particular for having written "Take Five" on the ever-popular Time Out. Here's a clip of Desmond leading a quartet at the Monterey Jazz Festival in 1975 playing Desmond's ballad "Emily":
Incidentally, there are several versions of the Brubeck Quartet with Desmond playing "Take Five" up on YouTube. None of the performances really grab me, but if you need to hear it check out this version from 1961 on Ralph Gleason's Jazz Casual show.
Lately, it has become common for critics of free markets to argue that they give us too many choices, and making all those decisions is too burdensome. Barry Schwartz's book The Paradox of Choice is the best-known defense of this argument. Tyler Cowen links to a good statement of it by Megan of the From the Archives blog:
This is the other thing I don't get about small government types. You protest so vociferously that government takes choices away from you. But a whole lot of choices are BORING. If I never once think about car bumper safety standards for 25mph crashes, I will never miss it. I do not want to carefully match my car safety standards to my most likely driving patterns and save two grand in the process. I would not enjoy that process. (Perhaps you would, and you would rather have the money.) I've never been a comparison shopper or a meticulous consumer. Maybe my model of the individual is too biased by my experience. But I don't want to figure out how much coliform bacteria I can tolerate on my spinach, given my health. I don't want to do that even if it saves me money. I don't want to figure out what goes into paint in nephews' toys. I don't even want to handle my health care.....
I can hear you already: "But you are FORCING me to take that deal too.". Yes. But right now our system FORCES me to comparison shop. Either way, someone gets FORCED to do something, and I don't see a justice interest on one side or the other....
There are several flaws in this argument. First, the market does not in fact "force" anyone to do "comparison shopping." If you genuinely don't care much about the price or quality of a particular product, you can simply choose at random from the options on sale. In that scenario, you can still benefit from the comparison shopping efforts of consumers who care more than you do, since most manufacturers will cater to the preferences of the better-informed consumers at least to some substantial degree.
Second, if you do care, but simply don't want to take the time and effort to choose intelligently, the market again provides solutions for the problem. You can 1) rely on the advice of better-informed friends and acquiantances, 2) use one of the many consumer publications (e.g. - Consumer Reports) that summarize product information in an easy to use format, or 3) pay an expert to make your decisions for you. Megan herself seems to approve of this third option:
People talk about being rational health care consumers, but they are maximizing some combination of health outcomes and money. I want to maximize my utility. My utility is optimized by going outside to play while someone who is interested in health care gets paid to balance my health care and money. I'll pay a little extra to cover that person. I come out well ahead in that deal.
Of course, if I interpret Megan correctly, she means that she would like to pay government regulators to impose decisions on everyone rather than to hire a private sector expert on her own initiative; otherwise, her argument would not be a criticism of "small government types." But a key advantage of the market over government is that you get to choose when you want to rely on experts, and which ones you want to hire. This gives the experts much stronger incentives to do what you really want, and also reserves to you the vital right to reject their advice at the end of the day - points I discussed in greater detail in my post on "Power to the Experts."
Finally, Megan's argument (and Schwartz's more sophisticated version) don't adequately consider the important fact that people differ from each other on what products and product attributes they care about. Choices that she and I would consider "BORING" or unimportant are intensely interesting and significant to others. In the market, people can choose for themselves which choices they want to study in detail, which ones they are willing to make more or less randomly, and which ones they prefer to delegate to an expert. With a mandatory government solution, we will at best get the menu of choices that the majority of voters consider appropriate - a result that will be deeply unsatisfactory to many who have minority preferences. At worst, the menu will be dictated by narrow interest groups that manage to capture the regulatory process and use it for their own benefit. Even "boring" choices that I have to make myself are preferable to that.