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Friday, September 28, 2007

More Cool Non-Law Blogs:

1. HogwartsProfessor.com. A very erudite blog run by Professor John Granger, who is so knowledgeable, hard-working, and good-hearted that he is undoubtedly a distant relative of Hermione Granger. Be sure to check out the blogroll too for more excellent Potter sites, especially the excellent Sword of Gryffindor.

2. The Anchoress. Musings on life, ethics (and sometimes current events) from an intelligent Roman Catholic perspective.

7 Comments

Bushism of the Day:

[My adversary] has abandoned all sense of fairness when it comes to justice.

Funny, no? Another example of the President's accidental wit and wisdom.

Whoops, sorry: That's from a written statement by Speaker Pelosi's office on July 2, condemning President Bush's commutation of Scooter Libby's sentence. The Bushism of the Day, from oral remarks by President Bush, is

All of us in America want there to be fairness when it comes to justice.

Neither, of course, is terribly eloquent, but neither is particularly laughable. The supposed humor, I take it, stems from the assumption that fairness and justice are synonyms, so the statement is supposedly tautological. But it's clear that "justice" in both quotes means not just "fairness" but "the operation of the justice system." (Bush was speaking of the Jena, Louisiana prosecutions.) Nothing particularly noteworthy, it seems to me, in someone's saying something like this, especially in an extemporaneous oral response to a question.

53 Comments

May Jewish Community Center Discriminate Based on Religion?

Title VII of the federal Civil Rights Act generally bars employers from discriminating based on religion, but exempts religious discrimination by any "religious corporation, association, educational institution, or society." Those terms, however, aren't precisely defined, and while they create plenty of black and white zones, there's also a good deal of gray area. Leboon v. Lancaster Jewish Community Center Ass'n, a Third Circuit decision filed last week, explores this as to a Jewish Community Center; the Center had a substantial religious component to its activities, but was not under control of any particular synagogue or rabbinical organization. The two-judge majority said the Center was a religious organization covered by the exemption. One dissenter held the contrary, and would have read the statutory exemption as limited to "only those entities that ... are controlled by a religious sect."

Note that there's a separate doctrine, developed under the First Amendment, that allows discrimination based not only on religion but also race, sex, and the like, but that's limited to ministers and other employees with distinctively religious jobs. We're talking here about the categorical statutory exemption -- though only from the ban on discrimination based on religion -- of all employees of religious corporations, associations, educational institutions, or societies.

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National Review's Star Trek Weekend:

National Review has an online Star Trek Weekend, featuring essays on the popular science fiction franchise by various libertarian and conservative writers. My contribution is a revised version of my VC post on federalism in Star Trek's Federation. It's interesting that such a generally liberal science fiction show has so many right of center fans and viewers.

Related Posts (on one page):

  1. National Review's Star Trek Weekend:
  2. How Federal is Star Trek's Federation?
21 Comments

U.S. Court of Appeals for the Fifth Circuit Admonishes Judge Samuel B. Kent for Sexual Harassment of a Judiciary Employee:

Here's the order, which is short on details, but which does say that Judge Kent's actions "violated the mandates of the Canons of the Code of Conduct for United States Judges and are deemed prejudicial to the effective and expeditious administration of the business of the courts and the administration of justice." The details of the complaint are apparently to remain confidential.

The "appropriate remedial action" for the judge has apparently been a four-month leave of absence from the bench, plus unspecified "other measures." Recall that federal judges are generally protected from most job-related penalties, short of impeachment by the House and conviction by the Senate.

26 Comments

Kay Hymowitz's Response to Her Libertarian Critics:

Conservative writer Kay Hymowitz's critique of libertarianism, published in Commentary and the Wall Street Journal, has attracted a lot of critics of its own, including responses to some of her points by co-conspirator David Bernstein, and yours truly. My main criticism of Hymowitz's essay was that she falsely conflates libertarians' opposition to government regulation of personal choices with an indiscriminate embrace of 1960s style lifestyle excesses. Believing that Activity X should not be banned by the state does not entail a belief that X is unobjectionable. Now, Hymowitz has written a response to her critics. The response contains some welcome clarifications and concessions, but also perpetuates some of the shortcomings of the original article.

On the plus side, Hymowitz writes that she "strongly agree[s]" with my statement that the "harmful effects of private choices . . . are best dealt with through the private sector." She also admits that "libertarians are not libertines" and claims that some of her critics (possibly including me) misinterpreted her views when we portrayed her as equating libertarianism with near-total relativism about personal choices. To my mind, there is at the very least serious tension between Hymowitz's comments on this score in her new essay, and her claim in her original article that "the libertarian vision of personal morality . . . is not far removed from 'if it feels good, do it,' the cri de coeur of the [1960s] Aquarians." However, I'm willing to accept Hymowitz's assertion that her views have been misinterpreted.

If Hymowitz really does agree that the "harmful effects of private choices . . . are best dealt with through the private sector," then there really isn't much disagreement between her and most libertarians. Why, then, does she continue to attack libertarianism? If I interpret here correctly, it's because she thinks that "libertarians tend to see all criticism of personal behavior as a threat to liberty" and that "Libertarians believe government shouldn’t say anything about the family[breakdown] problem. And neither should anyone else."

As I tried to explain in my earlier post, it is simply not true that libertarians "tend to see all criticism of personal behavior as a threat to liberty." Most serious libertarian writers would agree that such criticism poses little danger so long as it isn't coupled with advocacy of using government coercion to "solve" the problem.

In practice, of course, much conservative criticism of personal behavior is combined with advocacy of coercive solutions, which helps explain libertarian suspicion of that criticism. Hymowitz attempts to sidestep this issue by saying that "[o]f those who view family breakdown as a major social problem, I don’t know any who argue that we should ban divorce and lock up single mothers." Perhaps so, but there are plenty of conservatives who advocate such policies as censorship of pornography and "obscene" speech, abolition or restriction of no fault divorce, bans on flag burning, and - worst of all - the War on Drugs, which has led to the imprisonment of hundreds of thousands of people for their nonviolent "personal behavior." Some prominent conservatives, such as Senator Rick Santorum, have argued that "pro-family" morals regulation is the most important conservative public policy objective, a goal to which individual liberty should be subordinated. Conservatives are by no means monolithic in their views on these issues, and it seems that Hymowitz is one of those who opposes such regulations. However, her view is far from being the dominant one in the conservative movement.

As for speaking out about the problem of family breakdown, libertarians not only don't oppose doing so, but have actually been arguing for forty years that family breakdown is in large part a consequence of harmful government policies, such as the perverse incentives created by the welfare system. There would be little point in this kind of libertarian criticism of the state if we actually believed that family breakdown is a good thing, or even a morally neutral one. Hymowitz herself implicitly admits this when she states that "I actually agree with libertarians that many government policies have greatly harmed the family." It is perhaps true that many libertarians dislike the idea of having the government speak on these issues. But if the government's activities in this area really were limited to mere speech (and conservatives embraced such limitations), they would not be a major bone of libertarian-conservative contention.

Hymowitz concludes her response by criticizing what she calls the libertarian "tendency to view individual personal liberty as The Good that should swallow up all others." In reply, I can only reiterate a point I made in my critique of her original essay: believing that protecting liberty is the highest or even the sole legitimate purpose of government does not require libertarians to conclude that it is the highest good for all institutions. Still less does it commit us to believing that it is a good that "swallows up all others." To the contrary, libertarians have long contended that liberty actually facilitates the achievement of other important values and does so far more effectively than government coercion.

45 Comments

A Huge Amount of Data on Supreme Court Justices,

on Northwestern law professor Lee Epstein's Web site. Way cool.

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Unconstitutional Restriction on Use of Fallen Soldiers' Names:

As I wrote in July, the newly-enacted Ariz. Rev. Stat. § 13-3726, which was apparently prompted by outrage over the sale of antiwar T-shirts that contain the names of soldiers killed in Iraq, provides:

A. A person shall not knowingly use the name, portrait or picture of a deceased soldier [defined as referring to any member of the U.S. armed forces] for the purpose of advertising for the sale of any goods, wares or merchandise or for the solicitation of patronage for any business without having obtained prior consent to the use by the soldier or by the soldier's spouse, immediate family member, trustee if the soldier is a minor or legally designated representative....

C. This section does not apply to the following:

1. The use of a soldier's name, portrait or picture in an attempt to portray, describe or impersonate that soldier in a live performance, a single and original work of fine art, a play, book, article, musical work or film or on radio, television or other audio or audiovisual work if the performance, musical work, play, book, article or film does not itself constitute a commercial advertisement for any goods, wares or merchandise.

2. The use of a soldier's name, portrait or picture for noncommercial purposes, including any news, public affairs or sports broadcast or account.

3. The use of a soldier's name in truthfully identifying the soldier as the author of a particular work or program or as the performer in a particular performance.

4. Any promotional materials, advertisements or commercial announcements for a use described in paragraph 1, 2 or 3.

5. The use of photographs, video recordings and images by a person, firm or corporation practicing the profession of photography to exhibit, in or about the professional photographer's place of business or portfolio, specimens of the professional photographer's work, unless the exhibition is continued by the professional photographer after written notice objecting to the exhibition by the portrayed soldier or a person who may enforce the soldier's rights and remedies.

6. A soldier's picture or portrait that is not facially identifiable.

7. A photograph of a monument or a memorial that is placed on any goods, wares or merchandise....

The prohibited conduct is made a misdemeanor, and made civilly actionable.

In yesterday's Frazier v. Boomsma, a federal district court preliminarily enjoined the criminal prohibition on the grounds that it is likely to be unconstitutional; the reasoning suggests the accompanying civil liability provision is unconstitutional as well. The Court rightly held:

1. The T-shirts don't fit within the "commercial speech" doctrine, under which commercial advertising gets reduced First Amendment protection — the T-shirts aren't advertising (except insofar as the cover of any work, such as a book or a magazine, advertises itself), but rather speech sold for money. And the fact that speech is sold for money doesn't strip it of protection (whether it's a book, a movie, or a T-shirt). Even the advertising for the T-shirts is fully protected, the court concluded, because it is advertising for fully protected speech, rather than just for a nonspeech product.

2. The T-shirts also don't fit within any "right of publicity" exception to the First Amendment. The Supreme Court has held that state law may make actionable the taking of another's entire act (for instance, when a TV station rebroadcasts a "human cannonball" act); but that narrow exception doesn't apply here.

3. The court also held that even if in some situations some speech may be restricted to protect grieving families of the recently dead, this would at most be allowed in a very narrow range of cases, and wouldn't cover every commercial use of the names of dead soldiers.

Thanks to Arizona State Prof. Jim Weinstein for the pointer.

Related Posts (on one page):

  1. Unconstitutional Restriction on Use of Fallen Soldiers' Names:
  2. Unconstitutional Restriction on Use of Fallen Soldiers' Names?
20 Comments

Interesting Article on Labor Legislation in the Progressive Era:

I just read a very interesting article by Thomas C. Leonard, Protecting Family and Race: The Progressive Case for Regulating Women's Work, which appeared in the American Journal of Economics and Sociology in July 2005. If you're at all interested in Progressive Era economists' and reformers' attitudes toward working women, this article is a must read. More generally, Leonard, in this and other pieces, notes that many Progressive Era reformers supported "protective" labor legislation even though they knew that it would lead to unemployment, especially among women, immigrants, and African-Americans. Rather than being disturbed by this side effect of the legislation, many reformers argued that the disemployment caused to these groups was a social benefit, because it prevented "inferior" workers who were willing to accept low wages because of their low consumption from driving down wages for a white Anglo-Saxon Protestant male workers, who needed higher wages to support themselves and their families. This article can be usefully read in conjunction with my Michigan Law Review review essay, Lochner's Feminist Legacy.

UPDATE: Contrary to the tenor of the discussion in the comments, the point of this post has nothing to do with modern debates over labor regulation, much less "progressive" (small p) politics in general. I don't happen to believe that modern liberals are direct descendants of Progressive era reformers; if they were, for example, in law, Griswold, Roe, and Lawrence and Brown (!), for that matter, would have all come out the other way. But there is a tendency, reflected in posts from both sides in the comments, to read the current political spectrum backwards into a very different era, to assume that 1910s "Progressives" were more or less the same as modern "progressives." The overall Progressive ideology of the early 20th century was one that is basically defunct today, yet we still often see historical events through a Progressive lens. In my own area of academic interest, the Progressive era critiques of the Supreme Court's pre-New Deal jurisprudence still dominate many discussions of legal. Yet, for example, does anyone nowadays actually bemoan the demise of the National Industrial Recovery Act in the Schechter case?

27 Comments

[Erin McKean, guest-blogging, September 28, 2007 at 11:23am] Trackbacks
Guestblogging Dictionary Myths (Pt 4):

It's (Mostly Harmless) Drudgery

If you know the word lexicographer, there's a better-than-even chance you also know Samuel Johnson's self-mocking definition of it: "a writer of dictionaries; a harmless drudge, that busies himself in tracing the original, and detailing the signification of words."

We should probably set aside, at least for now, discussion of whether or not lexicographers are harmless (at least, harmless when it comes to the language; I have a mean right hook), and instead turn to the 'drudgery' part -- is lexicography drudgery?

No. It's a complete myth. It's disinformation spread by lexicographers so we can keep other folks away from our wonderful jobs.

In my first paying lexicographical gig, way back in the twentieth century, I spent several weeks during which a sheet of transparent plastic, marked with the ghostly outline of a dictionary page, never left my hand. My job was to count the number of characters (including spaces) in the material being added to a page, then count the number of characters (including spaces) in the deletions that the editors had marked on that same page. I used the plastic sheet as an overlay to help me count. If the numbers matched, great! I could go on to the next page. If not, I had to flag it for the senior editors, who would then go back and make further revisions so that the material would be neither too long nor too short, but exactly right. If revisions were so long that the text had to reflow to the following page, that was an added expense, so the editors were highly motivated to work their changes within the page. And even that task, as weird as it sounds to people now firmly in the computer age, was more along the lines of a 3-D word jigsaw puzzle than drudgework.

The truth is that the drudgeworky parts of lexicography -- the counting, the alphabetizing, the sorting -- have now been farmed out to tireless computers, and the lexicographer is left with the fun parts -- the planning of projects, the actual writing and defining, and the arguing. That work is endlessly diverting.

There's a quote about lexicography from J.R. Hulbert (who worked on the great Dictionary of American English) I haul out whenever I can, because it's so apt:

I know of no more enjoyable intellectual activity than working on a dictionary. Unlike most research, lexicography rarely sends one in fruitless quests; one does not devote days, months, or even years to testing an hypothesis only to decide that it is not tenable, or to attempting to collect evidence to prove a theory only to have to conclude that sufficient facts are no longer in existence to clinch it. It does not make one's life anxious, nor build up hopes only to have them collapse. Every day one is confronted by new problems, usually small but absorbingly interesting; at the end of the day one feels healthily tired, but content in the thought that one has accomplished something and advanced the whole work towards its completion.

That's the beautiful thing about lexicography: it's important, and you work hard to make the best dictionaries you can, but it's not (as the joke goes) rocket surgery: the odds of someone dying because there's a typo in an entry are very, very low. There might be ridiculous deadlines, and budgets that wouldn't allow for the publication of a suburban high-school yearbook, and occasionally, the sinking feeling that you have overlooked something very important (but you can't remember what it is), but at the most basic level, at the level of the word, the definition, the phrase, the work is almost exquisitely satisfying. The lexicographer, more than anyone else, can see the underlying network that both connects and distinguishes the words of English, and gets a perspective on language that would be difficult to achieve from any other vantage point.

In fact, I think Johnson might have been the first to try to misdirect people away from lexicography by pretending it wasn't fun. I believe Johnson (as depressed, as sick, as beaten-down as he often was, and if you haven't read Paul Fussell's Samuel Johnson and the Life of Writing, well, you should) felt the same exaltation, the same endorphin hit, of pinning down the right 'signification' of a word. That 'aha!' moment in lexicography is almost endlessly reproducible; there's always the next word, and the next, and the next ... All I know is that I am eager to get to work every day.

I think I had half-promised to write something today about norms in English (and what is a 'rule' of English and what is just a suggested serving recommendation, the confusion, ironically enough, lying in the word rule) but that might be beyond the scope of a series on dictionary myths -- I'll try to write about it next week at my usual hangout, Dictionary Evangelist. (It's not quite the kind of topic I usually wrangle over at A Dress A Day.)

I wanted to end this week by thanking Eugene for his kind invitation to guest-blog, and with gratitude to you all for your trenchant comments. (There's nothing like blogging for an audience of lawyers to help you improve your arguments!) Thank you!

14 Comments

Foul Winds for Alternative Energy:

Renewable energy sources offer many potential environmental benefits, including the reduction of air pollution, carbon emissions, and other consequences of energy extraction and production. To date, however, many renewable energy sources have had difficulty breaking into energy production markets. Despite decades of federal subsidies and other support, it often remains difficult to offer renewable energy at a competitive rate.

Many argue that the best way to promote renewable energy sources, such as wind power, is to offer yet more federal subsidies, tax incentives, and the like. In this article on NRO — another contribution to NRO's "Energy Week" — I suggest a different tack: Reducing regulatory obstacles to alternative energy projects. One of the largest hurdles for major wind projects, for example, are regulatory requirements that increase costs, induce delays, and offer NIMBY activists opportunity to strangle such projects in the crib. Though well-intentioned, some of the regulatory requirements imposed on wind, wave, and other power projects have the effect of stalling the advance of alternative energy technologies. I conclude:

Alternative energy advocates often bemoan the lack of a “level playing field” for renewable energy, recommending additional federal subsidies as the solution. Yet renewable energy sources already receive generous financial support from the Department of Energy and other government sources. In practice, such funding does little to bring commercially viable facilities on line.

To promote alternative energy development, there’s no need for more handouts. Instead the government should get out of the way. If the goal is to increase actual alternative energy production, and increase the proportion of renewable energy that supplies electricity to American consumers, the best thing the federal government can do is reduce or remove regulatory obstacles to energy entrepreneurship and innovation. If renewable energies are to capture a sizable share of the energy market, what they need, more than anything else, is regulatory room to compete.

UPDATE: Well, it did not take long for me to receive hate mail for this article. A representative of the Industrial Wind Action Group, an anti-wind power organization, has already e-mailed to say my article is "uninformed babble" consisting of "easy recitations borrowed from the renewables industry." Given my criticism here and elsewhere of federal renewable energy subsidies, I am sure that the renewables industry has a different take.

56 Comments

Scheme Liability, Section 10(b), and Stoneridge Investment Partners v. Scientific Atlanta:

On October 9, the Supreme Court is will hear what is likely the most important securities law case in years: Stoneridge Investment Partners v. Scientific Atlanta. In this case, the Court will consider whether primary liability under Section 10(b) of the Securities Exchange Act extends to third-parties, such as auditors, attorneys, or vendors, who engage in allegedly fraudulent transactions with a public corporation. In a prior case the Court held that there is no aider or abettor liability under Section 10(b), but some courts have held (and academics have argued) that this leaves open the question of whether third parties could still be liable to a company's shareholders under a theory of "scheme liability." So, for example, when, if ever, should Enron's shareholders be able to sue other companies for allegedly engaging in fraudulent transactions with Enron that inflated Enron's earnings? It is an interesting and important question.

Next Friday, the Center for Business Law & Regulation at the Case Western Reserve University School of Law and the Federalist Society's Corporate Law practice group are co-sponsoring a preview of the case: "Scheme Liability, Section 10(b), and Stoneridge Investment Partners v. Scientific Atlanta." The event is free and open to the public. (3.5 hours of Ohio CLE are also available for a modest charge.) For those who can't make it, the entire event will be webcast. Details here.

Related Posts (on one page):

  1. Stoneridge Roundup:
  2. Scheme Liability, Section 10(b), and Stoneridge Investment Partners v. Scientific Atlanta:
1 Comments

Thursday, September 27, 2007

Cert Pool Memos from 1986 to 1994 Now Online: Are you curious about what Supreme Court "cert pool" memos look like? Do you have a favorite former clerk whose pool memos you have always wanted to read? Did you file a cert petition 20 years ago that you still feel was wrongly denied, and do you want to know why? Do you want to read snarky annotations from Blackmun clerks about pool memos written by conservative clerks?

  Now, thanks to lawprof Lee Epstein, you can read as many cert pool memos as you want from the Blackmun archives, covering 1986 to 1994, all in .pdf format. Serious Supreme Court geeks will get a kick out of this, in part because many of the pool memo authors are now familiar names. For example, in the October Term 1993 files you'll find pool memos from co-bloggers Eugene and David P., Solicitor General Paul Clement, DC Circuit Judge Brett Kavanaugh, 10th Circuit Judge Neil Gorsuch, and several other big wigs. Thanks to How Appealing for the link.
39 Comments

Freedomnomics:

I just finished reading John Lott's marvelous and entertaining book Freedomnomics: Why the Free Market Works and Other Half-Baked Theories Don't. It is very well-written and it really reminds you of what an extraordinarily creative and interesting thinker Lott is. Much of the book is a translation of his many papers in different areas into prose and concepts accessible to general readers.

Peter Boettke, in the GMU Economics Department, is fond of observing that there are two places where you can find economics problems--by looking at the blackboard (theory) or looking out the window (the real world). What makes Lott such an interesting thinker to me is that he has a great knack for looking out the window for interesting problems and then coming up with original ways of thinking about them.

When I teach law & economics, one of the key puzzles I start with is Akerlof's "lemons theory." But the real question about the lemons theory, it seems to me, is why if it seems so theoretically sound, why don't we actually see it more often in the real world? The answer, of course, is that there are a host of institutions that arise to address the lemons problem so that people can actually engage in trade, most obviously contract law, but other institutions such as reputations, repeat dealing, etc. Gordon Tullock similarly posed the question long ago about why there is so much stability in legislatures when theory seems to predict a much higher rate of cycling than is actually observed.

Lott's book strikes a similar balance with Freakonomics. Now let me emphasize that I really enjoyed Freakonomics and thought it a very interesting and provocative book. Lott picks up on the point, however, that Freakonomics sometimes only seems to tell part of the story--in the same way that it would be a mistake to simply read Akerlof and assume that was the end of the story. Lott shows how formal and informal institutions arise that discipline much of the cheating and inefficiencies of the market that might otherwise prevail. He also does a very good job of providing an argument for why it is that certain market practices that may seem irrational (such as price mark-ups on liquor in restaurants) may actually have a sound economic logic to them. Even if one isn't persuaded on some of these points, the arguments are logical and fun to read.

Probably the most interesting chapter to VC readers would be his central chapter on the law & economics of crime. This is one of the best overviews and literature reviews that I have read on the topic, both as to how to think about an economic analysis of crime as well as empirical work on the subject. His primary focus in the dramatic decline in crime rates in the 1990s and discusses the various theories that have been advanced to explain it. This chapter seemed to me to be extremely strong and touched on a lot of key issues--guns, capital punishment, etc. He also summarizes his critiques of Donahue and Levitt's argument that legalized abortion generated a drop in the crime rate. The debate on this issue continues. It struck me more generally that for criminal law professors who wanted to introduce their students to the economic analysis of criminal law, Lott's chapter provides an accessible and wide-ranging discussion of the issue that potentially would be a great teaching tool.

Overall, I thought this was a really fun and interesting book, one of those ones that has you saying every page or two "Hmm, I didn't know that" or "I never thought of it that way." For those who like this general genre of economic puzzle-solving (which I do), I highly recommend it.

111 Comments

Cool Blogs -- Outside Law, Public Policy, and Politics:

A few of my cobloggers and I decided to pitch some of our favorite non-law, non-public-policy, non-politics blogs. Here are two that I highly recommend:

1. GeekPress, mostly cool science and technology stories. A sample, from the current front page -- go to the site itself for links:

"The top 10 hand gestures you'd better get right". (Via GMSV.)

posted by Paul @ 12:03 AM

If you stand far enough away from this image you will see the Mona Lisa. (Via BBspot.)

posted by Paul @ 12:02 AM

The politics of time zones. (Via SciTechDaily.)

posted by Paul @ 12:01 AM

Wednesday, September 26, 2007

Positive review of tonight's premier of Bionic Woman.

posted by Paul @ 12:12 PM

"The Man Who Saved the World by Doing... Nothing" ...

(As you can tell, law, public policy, and politics infects even GeekPress, but still it's mostly science and tech stuff.)

2. Language Log, which, as you might guess, is about language and is written by linguists. An excerpt can't do it justice -- go there and take a look.

Related Posts (on one page):

  1. Still More Cool Non-Law Blogs:
  2. More Cool Non-Law Blogs:
  3. Cool Blogs -- Outside Law, Public Policy, and Politics:
10 Comments

There Can Be No Doubt That This Is Bush Derangement Syndrome:

"George Bush is a time traveler, conspired with Duke of Normandy at Battle of Hastings 1066 A.D. to pervert the English Dictonary and Law. Admiral / Maritime Jurisdiction is hearing my complaint. The american flag is M.I.A. held hostage at FEMA camps.

"George W. Bush is the grand Iman of voodoo with doctors turning humans to animals, sometimes plants....

"Trading with Enemy Act of October 6th, 1917, yet George W. Bush and Defendants secretly sell inmates DNA on the international stock market including, but not limited to: HITLER'S SOCIALIST PARTY, GUERILLA ASIAN MOVEMENT, and on 3 occations the NIGERIAN JUNJAWEED'S."

To be fair, it's pretty clear that the derangement didn't stem just from Bush. Other defendants include the Queen of England, Kofi Annaan [sic], Tony Danza, Paris Hilton, John Grisham, Charlie Sheen, and many others. How much damage was inflicted? Glad you asked — "Plaintiff seeks 379,111,339,000,000.00 Trillion dollars backed by gold or silver delivered by United Parcel Service 'UPS' to Federal correctional Institution Williamsburg, Salters South Carolina." No word on where the gold or silver needed to back a third of an octillion dollars would come from, or where it would be put.

Thanks to Nate Lowenstein, Dan Lowenstein, and Chris Newman for the pointer.

80 Comments

Chelsea Clinton's Photo on Restaurant Wall:

People have been talking about this story:

The owner of a New York City restaurant is “heartbroken” over a letter he received from former President Bill Clinton's lawyer asking that a photograph of daughter Chelsea be removed from his eatery -— or face legal action.

The photo, taken of the former first daughter with Osso Buco owner Nino Selimaj, has been on display in the window of the Greenwich Village haunt for about five years, the restaurateur said. It was snapped when Chelsea, now 27, was having dinner there with a group of about 30 friends.

But Selimaj said he was shocked when he received a letter from Clinton’s lawyer Douglas J. Band on Sept. 18 threatening legal action if the photograph of “private citizen” Chelsea was not taken down. The photograph is still on display near the front entrance of the restaurant -— only now, the letter is posted alongside it.

“We ask that you immediately remove that picture and any and all pictures displaying Ms. Clinton,” the letter warns. “We reserve the right to exercise any and all options available to us if you refuse to comply.” ...

Here's the quickie legal analysis:

1. The restaurant owner's actions likely violate Chelsea Clinton's "right of publicity." This right is recognized in one or another form by most states, but for our purposes the specific law is N.Y. Civil Rights Law § 51, which gives any person the right to sue over unauthorized use of her "name, portrait, picture or voice ... used within this state for advertising purposes or for the purposes of trade without ... written consent." Here, it looks like the photo is being used for promoting the restaurant to its customers, which makes it "purposes of trade" or perhaps even "advertising purposes."

2. Courts have generally held (and rightly so) that such rights of publicity usually don't block the use of names and likeness in newspaper articles, books, novels, movies, and the like, even though such uses may be for profit and distributed in commerce; the right tends to be limited, largely for First Amendment reasons, to advertising and merchandising (such as T-shirts, coffee mugs, and the like). But a restaurant's decor probably qualifies as a form of advertising or other "commercial speech" (a First Amendment term of art that refers mostly to advertising and similar promotion, not to speech such as a book or a newspaper that is sold in commerce). And while such "commercial speech" is considerably protected by the First Amendment, it's less protected than newspapers, books, and the like. The right of publicity, as applied to such speech, is quite likely constitutional.

3. All this is true, generally speaking, whether Chelsea is treated as a public figure or a private one. That distinction is important for libel cases, but generally not for right of publicity cases (though the damages may differ depending on the market value of the plaintiff's image).

4. As I noted above, New York law — unlike the law in many other states — provides that consent to use one's name or likeness for advertising or trade must be given in writing. This means that even if Chelsea willingly posed for the picture, knowing that the restaurant was taking it to be posted on the wall (far from clear), that's not enough; for the restaurant's use to be legal, there has to be a written permission from her.

5. The one possible defense the restaurant might have is the statute of limitations: In New York, Chelsea would have to sue within one year of learning that the restaurant was displaying the picture; I don't know when that was. (My sense is that the statute would also start running when a reasonable person would have learned that the picture was being displayed — but I suspect that under these facts it's not likely that a reasonable person in Chelsea's shoes would have learned of the picture before Chelsea actually did.)

6. Setting aside the legal question, my sense is that failing to remove Chelsea's picture is pretty rude, and I hope the restaurant owner's customers admonish him to that effect. A restaurant owner should have more respect for the wishes of his patrons; he's gotten five years of free publicity out of Chelsea's visit, and it doesn't seem right to me for him to insist on getting more after Chelsea asks — for whatever reason — that he stop. Conversely, if the first request to the restaurant was the letter, rather than a polite request by Chelsea (I have no idea whether that's so, though Ann Althouse suggests that it might have been), that too sounds a bit rude. On the other hand, if a first request was politely rebuffed, I don't see anything improper about the letter; it seems like a pretty normal nastygram, and one that is reasonably warranted by the facts as they appear.

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D.C. Circuit Rejects Second Amendment Plaintiff's Motion to Immediately Enjoin Operation of D.C. Rifle/Shotgun Restrictions:

Appellants’ contention is that appellees’ petition for certiorari concedes the unconstitutionality of D.C. Code Section 7-2507.02 as it requires the disassembling of shotguns and rifles or the placement of trigger locks, making such arms practically useless for self defense. Therefore, appellants argue, our mandate holding this provision unconstitutional should issue. But our opinion does not specifically address the constitutionality of that statute as it applies to shotguns and rifles because the only plaintiff we concluded had standing under our precedent was Dick Heller, who complained solely about the restrictions on ownership and use of a handgun. Parker, 478 F.3d 370, 373-76 (D.C. Cir. 2007). At least one other plaintiff (Gillian St. Lawrence) did address Section 7-2507.02 as it applied to shotguns but she did not have the same injury as Heller -– the denial of a license. Id. To be sure, as our opinion suggested, the Supreme Court may well disagree with Seegars, 396 F.3d 1248 (D.C. Cir. 2005), and conclude that all the plaintiffs have standing.

In any event, the District’s petition for certiorari makes an alternative argument not presented in our court -– that the District’s ban on handguns can be justified so long as rifles and shotguns can be utilized in the home for self protection. The Supreme Court, if it should reach that argument -– and conclude it was constitutional to ban handguns in the home if long guns were permitted -– would necessarily be obliged to consider the impact of Section 7-2507.02, since a disassembly or trigger lock requirement might render a shotgun or rifle virtually useless to face an unexpected threat.[3]

[Footnote 3:] The District of Columbia Council never contemplated the specific use of a rifle or shotgun in that situation. Had the Council contemplated such, it would, perforce, have had to consider the danger posed by a rifle’s range and a shotgun’s pellet spread, as well as the difficulty one would have handling such long weapons in enclosed spaces -– particularly by smaller individuals. Appellees’ brief at 17 did suggest that any gun (including a pre-1976 legal handgun) might be used in self defense in a “true emergency,” otherwise described as “genuine imminent danger.” But the Code does not allow for such, nor did the District ever specify how one would define the circumstances under which one could assemble or unlock a rifle or shotgun to face a “true emergency” (professionals might well be amused at such a hypothetical). The truth is that neither the Code nor the District, in this litigation, ever suggested that a rifle or shotgun, as opposed to a handgun, could be legally employed in self defense.

Judge Henderson, who dissented from the invalidation of the handgun ban, concurred in the denial of the motion, but did not join the rest of the order.

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[Erin McKean, guest-blogging, September 27, 2007 at 12:25pm] Trackbacks
Guestblogging Dictionary Myths (Pt 3):

"That's Not A Word!"

One of the things that happens to you all the time when you're a lexicographer is that people say something to you, something perfectly reasonable, such as "I am appalled by the current celebrification of journalists" and then stop themselves to ask you "Is that a word?"

Considering that the is-it-a-word? word is usually completely comprehensible, I always say "it is now!"

When people say something "isn't a word", they aren't usually saying that the item in question is a piece of rotten fruit, or a shoe, or a phone number, or some other non-lexical object. What they are saying is something like "That's not standard English," or "I dislike that word and wish you wouldn't use it," or "I am not sure that this word is in common use," and so on. They may also want to call attention, obliquely, to the word as being their own coinage (whether or not that is true).

The ruler most people use to measure a word's word-ness is The Dictionary. Not any specific dictionary -- for most people, if a word is in any standard-looking dictionary, that's good enough. (The Dictionary is a stand in for "Any Dictionary I Happen To Have.")

But as a lexicographer, as someone who has seen how the word sausage is made, I think that assessing a word's fitness for use by whether or not it is in The Dictionary is much too limiting. We've already seen that lexicographers can't possibly register, much less describe, all the words that are used in English; how then, knowing that, can you still cleave to the idea that the words that are in The Dictionary are good to use, and the ones that aren't, aren't?

People use The Dictionary as the arbiter of a word's worth because they are understandably lazy. They want to make a quick appeal to an incontrovertible authority, win their argument (or their game of Scrabble) and get on with their day. Using The Dictionary this way probably worked a lot better in the pre-Google age, but when you can fire up your search engine and find 20,000 hits for celebrification, it's a bit harder to argue that it "isn't real."

Don't get me wrong: celebrification may still be ugly, it may still be awkward, it may be better expressed by a paraphrase and not by a single (possibly over-suffixed word), but it's real, all right, and an argument against its use based on "it's not a real word, because it's not in the dictionary" is an argument you're eventually going to lose. Anything that's used as a word, understood as a word, and that works like a word -- is an actual, living, breathing, honest-to-goodness word. Full stop.

Sometimes people use "that's not a real word" to mean "that's a mistake" -- that something is a misspelling, or is used incorrectly, based on traditional use. The "it's not in the dictionary" argument doesn't work there, either. The Encarta dictionary famously listed common misspellings, right in the A-Z, with cross-references to the more common spellings. A facetious argument could then be made that those misspellings are "in the dictionary," and I wouldn't bet that some eighth-grader, somewhere, didn't try it. Dictionaries should list common meanings, even if they are considered errors by traditionalists (but they should also give a warning to that effect). Ignoring a problem never yet made it go away.

But while we're talking about errors and mistakes, I'm not sure if anyone can announce with certainty just when an error, made by enough people over a long enough period of time, becomes the standard. I think that it takes at least three generations, and that it has to be something obscure enough that it can pass unnoticed by all but the most conscientious of copyeditors. For instance, even though confusing your and you're is certainly widespread, I don't see those two words become conflated any time soon -- enough people still know and maintain the difference. But other terms, words we don't use as often or as surely, can sneak by while we're looking the other way (one that Ben Zimmer pointed out recently is minuscule as miniscule).

Whenever a lexicographer starts discussing the natural tendency of words to mutate and transform, of not-words to become words, a great howl arises. It's only natural that people who have taken the trouble to internalize standard English and use it in generally accepted ways would be upset when others don't take that same trouble -- or even, it as it sometimes seems, any trouble at all. But the plain truth is that language changes, drifts, and evolves -- transmutes, even -- and it's very, very difficult to stop it from doing so.

If language change really annoys you, to the point where you find it no longer possible to enjoy your normal daily activities, you should become a copyeditor, and then you will have the exquisite privilege of fixing the usages that annoy you all day long. Otherwise, if a new usage bothers you, I can only say, "don't use it, then."

The Dictionary is no longer the be-all and end-all of wordosity. If you want to be an educated word consumer, you'll have to do a little more work than just checking for in-or-out-ness. If your real question is "should I use this word or not?" you'll probably have to do a little bit more analysis. Who is your audience? What is their reaction to an unusual word likely to be? Would a more standard alternative make for a smoother communication of your message, or do you want and need the jolt that a new and striking term will give your listeners and readers? Will your new word be annoying (and if so, do you wish to annoy)? Or will it be playful and add a necessary shot of attitude?

Words aren't like Bigfoot: a moment's glimpse of a fabled creature isn't sufficient proof for cryptozoology. But just one momentary use is perfectly fine for determining whether or not a word is "real." The big question is what you can do with it, not whether it exists in the first place.

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My Analysis of the Oregon FISA Decision: Yesterday, Judge Aiken of the U.S. District Court in Oregon handed down a decision that strikes down Foreign Intelligence Surveillance Act's provisions for granting warrants. In this post, I wanted to explain the issue in the case and the decision's reasoning, and then I wanted to offer some commentary on the decision. My tentative bottom line: I found Judge Aiken's decision unpersuasive on the question of Article III standing. On the merits of the Fourth Amendment issue, I think the law is just too murky to call this one way or the other: Judge Aiken's result appears plausible, although so does the contrary result embraced in 2002 by the Foreign Intelligence Court of Review.

1. Statutory Background

  First, some background. The Foreign Intelligence Surveillance Act is the law the government uses to get warrants to monitor suspects terrorists and spies inside the United States. Before the Patriot Act, the government could obtain a FISA warrant to search or monitor someone based on a probable cause showing that the person "is a foreign power or an agent of a foreign power and that the primary purpose of the surveillance is to obtain foreign intelligence information." The basic idea was that the government had to believe the person was a spy or terrorist (an agent of a foreign power) and that the real reason behind the evidence collection had to be to to protect national security by having the information (that is, so the government can know what the spies and terrorists are doing).

  The Patriot Act changed that standard, and it's those changes that are the issue in the new case. The Patriot Act changed the language so that the standard for obtaining a evidence is probable cause showing that the person "is a foreign power or an agent of a foreign power and that a significant purpose of the surveillance is to obtain foreign intelligence information." The difference is subtle: the change from "the primary" to "a significant."

  Why the change? The basic idea is to allow the government can get a warrant to monitor spies and terrorists without knowing ahead of time whether it wants to just collect information and keep it or whether it wants to bring a criminal prosecution. Before the Patriot Act, the government had to choose at the beginning whether to take the criminal law route with traditional warrants (based on probable cause that the search would reveal evidence of a crime) or whether to take the FISA route and collect evidence to learn of terrorist plans without thinking about a possible criminal prosecution.

  After the Patriot Act, the government can get a FISA warrant in a terrorism investigation and keep open whether it wants to treat the case as a crimal case or an intelligence case. The intelligence information can go to the intelligence agencies, and the evidence of crime can go to the criminal investigators.

  The Fourth Amendment issue raised in the Mayfield case is whether a warrant issued under the amended Patriot Act standard is good enough for Fourth Amendment purposes or whether it is too "loose" a standard to make FISA searches constitutionally reasonable.

2. The Mayfield Case

  This case is a civil lawsuit by Brandon Mayfield, an Oregon attorney who was surveilled and lated arrested and detained for two weeks as part of an investigation into the 2004 Madrid train bombings. It turned out that Mayfield had nothing whatsoever to do with the bombings, and he was released. After he was released, he sued the government on a range of claims. The only issue left at this stage of the game is Mayfield's Fourth Amendment claim.

  Mayfield's Fourth Amendment claim is somewhat unusual. He does not argue that the government violated FISA when it obtained orders to monitor him and search his home. Nor does he argued that his particular Fourth Amendment rights were violated in an as applied manner, the usual argument in Fourth Amendment cases. Rather, he argues that the Patriot Act amendments to the Foreign Intelligence Surveillance Act made FISA warrants constitutionally inadequate as facial matter, such that the FISA warrants that were used to authorize surveillance of him were unlawful. This particular opinion concerns Mayfield's request for declaratory judgment that the Patriot Act amendments to FISA are constitutionally inadequate under the Fourth Amendment.

  Judge Aiken granted the request, and struck down what is really the heart of FISA — the provisions allowing the FISA court to issue search warrants both for physical searches and for electronic surveillance. There were two main issues in the opinion: First, did Mayfield have standing under Article III to bring the case, and second, did the FISA law actually violate the Fourth Amendment.

  a) Standing

  Judge Aiken ruled that Mayfield did have standing to challenge the facial constitutionality of FISA because the government retained derivative evidence from the wiretapping against him. That is, the government still had in its files records of items that had been collected from him. According to Judge Aiken, this continuing possession of information in their files established an ongoing injury in fact. Further, the injury in fact would be cured if Mayfield won the case, Judge Aiken ruled: "it is reasonable to assume that [if Mayfield wins,] the Executive Branch of the government will act lawfully and make all reasonable efforts to destroy the derivative materials when a final declaration of the unconstitutionality of the challenged provisions is issued." According to Judge Aiken, the government's possession of derivative evidence and the possibility they would be destroyed if Mayfield won conferred Article III standing.

  b) The Fourth Amendment

  Judge Aiken then reaches the merits, and concludes that the Fourth Amendment does not permit the government to obtain warrants based on probable cause to believe that a person is an agent of a foreign power if foreign intelligence collection is only a significant purpose of the monitoring. This standard lets the government search the homes and listen in on the calls of terrorist suspects and spies when the government is planning on bringing a criminal prosecution in the case. But that's not good enough, Judge Aiken concludes: If the government is really approaching an investigation of a terrorist suspect or spy with an eye to charging them with a crime, they need to follow the traditional criminal law standard for a warrant. That is, they need to obtain a warrant under the standard of probable cause to believe a crime was committed, not probable cause to believe the person is a terrorist or a spy.

  Judge Aiken notes that her conclusion is contrary to the legal ruling of the Foreign Intelligence Surveillance Court of Review decision in In Re Sealed Case. She concludes that In re Sealed Case is incorrect, and that the FISCR's analysis is unpersuasive. Because the current version of FISA adopts the Patriot Act standard, the provisions of FISA that authorize FISA warrants to be issued are invalid.
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ID Documentary Deception:

In early 2008, Premise films will release Expelled: No Intelligence Allowed, a documentary film featuring Ben Stein arguing that those who believe in "Intelligent Design" face persecution in the academy and scientific institutions. For the movie, the producers arranged interviews with prominent scientists who point out that ID is not a scientific theory or who argue against a belief in God. Yet according to this NYT story, the film producers explained they were with a different production company and making a movie about the intersection of faith and belief, rather than about the alleged persecution of ID proponents.

Dr. [Richard] Dawkins and other scientists who agreed to be interviewed say they are surprised — and in some cases, angered — to find themselves not in “Crossroads” but in a film with a new name and one that makes the case for intelligent design, an ideological cousin of creationism. The film, “Expelled: No Intelligence Allowed,” also has a different producer, Premise Media.

The film is described in its online trailer as “a startling revelation that freedom of thought and freedom of inquiry have been expelled from publicly-funded high schools, universities and research institutions.” According to its Web site, the film asserts that people in academia who see evidence of a supernatural intelligence in biological processes have unfairly lost their jobs, been denied tenure or suffered other penalties as part of a scientific conspiracy to keep God out of the nation’s laboratories and classrooms.

The producers claim there was nothing sneaky or nefarious involved, just a routine change in the working title of a film. Yet for the reasons detailed in this PZ Myers post, that explanation seems a little thin. I don't think anything illegal occurred — and journalists often engage in some deception when seeking interviews — so it seems to me the producers should just own up to what they did.

UPDATE: Ron Bailey on "The Shame of Ben Stein."

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Regulatory Sclerosis in Energy Markets:

It is still "Energy Week" on NRO. Among today's articles is this piece by my former colleague Andrew Morriss on the regulatory sclerosis afflicting energy markets. His bottom line:

On the rare occasions when energy markets have been allowed to work relatively unimpeded by political efforts to serve special interests, market forces and private enterprise have delivered dramatic improvements in energy. Competition, not government tax breaks, drove the “octane race” of 1930’s that boosted gasoline quality. Market forces, not government regulations, led some U.S. oil companies to lead the world in the development of the tanker fleets, oil terminals, and exploration rights around the world that brought America falling energy prices throughout the 1950’s and fueled the post-World War II boom in automobile travel. Companies seeking an advantage in sales, not bureaucrats, drove the development of retail innovations, from clean service station restrooms, to today’s pay-at-the-pump technology. Improved blends of gasoline for high altitudes and cold weather came from entrepreneurs, not regulators. If we unleash the power of markets and entrepreneurs on our energy problems, American consumers can count on economical, safe, and reliable energy supplies. If we let politicians in Washington and state capitols force feed our energy markets more “regulatory cholesterol,” we face a future of rising energy prices, shortages, and an increasingly unreliable infrastructure.

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My Yale Law Journal Pocket Part Essay on Regulatory Takings and the Poor:

The editors of the Yale Law Journal Pocket Part asked me to write a short reply to Hannah Jacobs Wiseman's article arguing that laws requiring the government to compensate property owners for regulatory takings will hurt the poor. In my contribution to the debate, I argue that regulatory takings reform is unlikely to hurt poor communities, and might actually benefit them by impeding the enactment of regulations that harm the poor for the benefit of more affluent interest groups. Here's a brief excerpt:

Does requiring government to pay compensation for regulatory takings harm poor communities? My answer to this underanalyzed question is “probably not.” Because of the relative political weakness of the poor, unfettered government regulatory authority is likely to be used to their detriment more often than to benefit them. History shows that unconstrained government power to abrogate property rights has caused great harm to the poor.

The issue of regulatory takings reform is distinct from, but related to, post-Kelo eminent domain reform. The former seeks to force government to compensate property owners in certain cases where their property rights have been restricted by regulation - treating such regulations as takings, but allowing them to go forward so long as compensation is paid. The latter seeks to prevent certain types of takings entirely. In this Northwestern University Law Review article, I criticized claims that post-Kelo reform is bad for the poor.

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Wednesday, September 26, 2007

District Court Judge Invalidates Part of FISA: District Judge Ann Aiken of the United States District Court in Oregon has just handed down a surprising opinion striking down parts of the Foreign Intelligence Surveillance Act, and specifically 50 U.S.C. §§ 1804 and 1823, as facially unconstitutional under the Fourth Amendment. The opinion is here; I just printed it out and will be blogging a reaction shortly. Thanks to Eric Freedman for the tip.
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Help Wanted:

The Republic of Palau recently posted this interesting job listing (hat tip: University of Missouri lawprof Danny Sokol):

Description:

The Supreme Court of the Republic of Palau is seeking an Associate Justice to preside over trial and appellate proceedings. Palau, a small tropical island nation in Micronesia, is renowned for its unspoiled natural beauty and unique marine life. Until 1994 when it achieved independence, Palau was a United Nations Trust Territory under U.S. Administration: its legal system continues to borrow from U.S. common law while also recognizing local customs and traditions.

Qualifications:

The Supreme Court is seeking individuals with a sense of adventure, an acute legal mind, and a commitment to the thoughtful development of Palauan law. At least five years quality legal experience is required, ten years preferred Salary: $80,000 U.S. Dollars, housing, relocation costs, and a health insurance stipend

How to Apply:

Interested persons should submit a letter of application (including personal contact information), resume, list of three references (including contact information), and a writing sample. Send your application via First Class United States mail (the rate is the same as to any U.S. state) to:

Judicial Nominating Committee Supreme Court of the Republic of Palau P.O. Box 248 Koror, Palau 96940 Deadline: 9/30/07

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80s Videos on YouTube: When I was in junior high school, in the mid 1980s, I spent a lot of time glued to MTV, which, back in the day, actually played music videos. So I hope I'm not the only one who feels nostalgic watching some of these videos via the magic of Youtube: Mr. Mister's "Broken Wings", Michael Jackson's "Thriller" (long version), Human League's "Fascination", Journey's Steve Perry's "Separate Ways", Berlin's "No More Words", Duran Duran's "Save A Prayer", Aha's "Take on Me", Paul McCartney & Stevie Wonder's "Ebony and Ivory", Styx's "Mr. Roboto", Tom Petty & The Heartbreaker's "You Got Lucky", and John Cougar's "Jack & Diane".

  Legal Disclaimer: The Volokh Conspiracy and the Volokh Corporation take no responsibility for your enjoyment or lack thereof of these short musical presentations (hereinafter, "videos"). An urge to drive a Delorean, to ask someone to describe the ruckus, or to wear your underwear on the outside may result from excessive viewing. Watch at your own risk.

  VERY IMPORTANT UPDATE: Readers remind me of this incredible video of perhaps the greatest moment in world history. Highly recommended.
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Wine Protectionism Returns:

In 2005 the Supreme court invalidated Michigan and New York state laws limiting direct-to-consumer sales by out-of-state wineries. In some states it appears that the benefits for oenophiles may be short lived. Here in Ohio, for example, the state legislature has just adopted a new law that will, once again, effectively prohibit direct-to-consumer sales by out-of-state wineries. As the Cleveland Plain Dealer reports, a provision was quietly slipped into the state budget that will prohibit wineries that produce more than 63,000 cases per year from shipping wine directly to Ohio consumers. Conveniently enough, it appears that all of Ohio's own wineries produce less wine.

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"Tin Ear Award of the Week":

From headsup: the blog (thanks to Language Log for the pointer):

Today's lesson: If something looks or sounds like nonsense, back up a second and see if the fault is on your end. This one appears to have slipped by in the urge to get in the latest and newest on Those Missing Boy Scouts:

"We think it's most likely that they realized it was late and they bedded down for the night," said Charity Sharp, of the Cruso Volunteer Fire Department in southern Haywood County. "They were prepared. They knew what they were hacking into. The scout leader is familiar with the area and knew what kind of terrain they were hacking."

Bet she didn't.... [A]s a near-30-year resident of the fair state in question, HEADSUP-L is inclined to suggest that Ms. Sharp said "hiking." ... If you're going to be the Foremost Newspaper of your state, you need to know how its people talk.

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The Case Against Public Restroom Hand Dryers:

Economist Glen Whitman has a good post criticizing one of my own pet peeves: public restroom hand dryers. I have to admit that my own objections to hand dryers primarily come down to the fact that "They fail at their primary function . . . And they take too much time in failing," as Whitman aptly puts it. But he also does a good job of refuting the health and environmental arguments for hand dryers.

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Wall Street Journal Website Reprints My Blog Post on National Service and the Young:

The Wall Street Journal online has chosen to reprint my blog post on the reasons my mandatory "national service" proposals tend to target the young, despite the fact that there are at least equally good reasons for focusing on the elderly or the middle-aged instead. See here.

Unfortunately, the WSJ accidentally introduced a minor error that I would like to correct: The "Democratic Leadership Conference" is in fact the "Democratic Leadership Council" (I just had "DLC" in the original post, which may have led to the mistake when the WSJ staff spelled out the abbreviation).

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Ninth Circuit Dissolves Injunction Barring Defendant "from Making Any Comments That Could Be Construed as To Disparage [A Trademark]":

I've blogged before about this case, Freecycle Network, Inc. v. Oey, which Mayer Brown — the firm with which I'm affiliated part-part-part-time — is handling pro bono, and on which I helped. The Ninth Circuit just dissolved the injunction; here are some relevant excerpts (some paragraph breaks added):

[Tim] Oey initially supported TFN’s claim to the FREECYCLE mark. Experiencing a change of heart and convinced that the term should remain in the public domain, Oey later urged TFN to abandon its efforts to secure the mark, conveying his feelings in an August 8, 2005, email to fellow TFN group moderators. In the following weeks, Oey made various statements on the Internet that TFN lacked trademark rights in “freecycle” because it was a generic term, and he encouraged others to use the term in its generic sense and to write letters to the United States Patent and Trademark Office (“PTO”) opposing TFN’s pending registration....

In April 2006, TFN sued Oey, seeking an injunction and damages, alleging that Oey’s statements constituted contributory trademark infringement and trademark disparagement under section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), as well as injurious falsehood, defamation, and intentional interference with a business relationship under Arizona law. The district court granted a preliminary injunction based solely on TFN’s § 1125(a) claims, apparently conflating TFN’s allegations of contributory trademark infringement and trademark disparagement....

A) Trademark Infringement

[The alleged] facts -- even if true — simply do not demonstrate that TFN has a likelihood of success on its § 1125(a) infringement claim.... Oey’s actions likely did not constitute a “use in commerce,” 15 U.S.C. § 1125(a)(1), as the record in this case does not indicate they were made to promote any competing service or reap any commercial benefit whatsoever.... []“[Trademark law’s ‘use in commerce’] refers to a use of a famous and distinctive mark to sell goods [or services] other than those produced or authorized by the mark’s owner.”[] Rather, based on his view that the term was generic, Oey simply expressed an opinion that TFN lacked trademark rights in the term “freecycle” and encouraged likeminded individuals to continue to use the term in its generic sense and to inform the PTO of their opinions.

Furthermore, even if Oey’s statements could somehow be construed to be a “use in commerce,” such use was not likely to cause confusion, mistake, or deceive anyone as to the connection of Oey’s services (or any other) with TFN.... [O]ur review of the record identifies no potential likelihood of confusion resulting from Oey’s activities. Oey simply did not use TFN’s claimed mark or a similar mark in any manner likely to confuse the relevant public: his statements neither mention any competing service or product, nor claim any affiliation with TFN.

Finally, Oey’s statements also do not satisfy the requirements for false advertising, misrepresentation, or unfair competition under § 1125(a)(1)(B). There is no evidence that Oey’s statements were made in “commercial advertising or promotion.” And, even if such evidence existed, § 1125(a)(1)(B) creates liability only for product disparagement -— i.e., misrepresentation of “the nature, characteristics, qualities, or geographic origin” of “another person’s goods, services, or commercial activities.” ...

B) Trademark Infringement

TFN’s complaint also alleged “trademark disparagement” under § 1125(a). However, no such claim exists under the Lanham Act....

[But e]ven assuming TFN’s trademark disparagement claim were somehow cognizable under the Lanham Act, ... Oey’s conduct does not satisfy TFN’s asserted elements. Oey’s statements were not “false.” At worst, Oey offered an erroneous legal opinion (by a layperson) that TFN lacked trademark rights in the term “freecycle.” “Statements of opinion are not generally actionable under the Lanham Act.”

To this day, there has been no formal determination that TFN has trademark rights in the term “freecycle.” The mark is not yet registered and both an opposition to registration and action seeking a declaration that TFN lacks trademark rights in the term are currently pending. Oey’s statement that TFN lacked trademark rights in the term therefore cannot be considered a false statement of fact. []“Absent a clear and unambiguous ruling from a court or agency of competent jurisdiction, statements by laypersons that purport to interpret the meaning of a statute or regulation are opinion statements, and not statements of fact.”[]

TFN and the district court emphasize Oey’s prior support of TFN’s efforts to trademark the term, but these prior efforts do not render his subsequent statements “false.” Oey is entitled to change his mind. Until it is definitively established that TFN holds a trademark in the term “freecycle,” it cannot be false to contend that it does not....

C) Genericide

the crux of TFN’s complaint is that Oey should be prevented from using (or encouraging the use of) TFN’s claimed mark FREECYCLE in its generic sense. However, TFN’s asserted mark —- like all marks — is always at risk of becoming generic and thereby losing its ability to identify the trademark holder’s goods or services. Where the majority of the relevant public appropriates a trademark term as the name of a product (or service), the mark is a victim of “genericide” and trademark rights generally cease.... Genericide has spelled the end for countless formerly trademarked terms, including “aspirin,” “escalator,” “brassiere,” and “cellophane.” ...

Of course, trademark owners are free (and perhaps wise) to take action to prevent their marks from becoming generic and entering the public domain — e.g., through a public relations campaign or active policing of the mark’s use. The Lanham Act itself, however, contains no provision preventing the use of a trademarked term in its generic sense.

Nor does the Act prevent an individual from expressing an opinion that a mark should be considered generic or from encouraging others to use the mark in its generic sense. Rather, the use of a mark in its generic sense is actionable under the Lanham Act only when such use also satisfies the elements of a specified cause of action — e.g., infringement, false designation of origin, false advertising, or dilution. TFN’s mere disagreement with Oey’s opinion and frustration with his activities cannot render Oey liable under the Lanham Act.

Because of these holdings, the court didn't have to reach the question whether the injunction violated the First Amendment.

Congratulations to my colleagues Don Falk, Dennis Corgill, and Ian Feinberg, and my former student Pete Patterson, who worked on the brief. Congratulations and thanks also to the amici — Jamie Boyle, Lauren Gelman, Larry Lessig, Declan McCullagh, David Post, Glenn Reynolds, Martin Schwimmer, Jimmy Wales, and Jon Zittrain (represented by David and by my friend Bruce Adelstein), as well as the 38 Intellectual Property Law Professors and the EFF (represented by Mark Lemley).

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Publication lag:

A fascinating student note from the Minnesota Law Review, not so much for its subject matter as for how it came to be published.

Here's what the note is about. From its introduction (paragraph breaks added):

This Note argues that because law is limited to placing external constraints on human behavior, religion, through its capacity to internally constrain human behavior, acts as an indispensable assistant to the law in preserving public order.

Part I details how, in recent decisions, the Supreme Court has used history to interpret the Establishment Clause. Part II argues that the Court's reliance on history is misplaced because the historical evidence of the clause's meaning is inconclusive.

Part III provides an alternative approach to interpreting the Establishment Clause that focuses on the ability of religion to constrain human behavior. This Note concludes that while it is sound public policy to support religion, religion is only effective insofar as it instills faith within its followers. Because no religion appeals to all men, the government should impartially promote religious worship and instruction.

You might notice, if you read the article, that it doesn't refer to any cases — or anything else — more recent than 1949. It turns out there's a reason for this. Here, according to the SSRN abstract, is the backstory (you can find a more complete story, in the author's own words, on the website itself):

Mr. Stiegler served in the Second World War and then returned home to Minnesota to attend law school. He wrote this article while a student-member of the Minnesota Law Review during the 1948-49 school year. While reviewing Mr. Stiegler's first draft, the Note Editor rose, slapped his hand on the table proclaiming: I am Catholic. It is the one true religion. This Note will never be published. Mr. Stiegler's name was subsequently removed from the masthead of the Minnesota Law Review and he was denied credit for the activity for his last year of law school.

For fifty-seven years the manuscript lay hidden in his desk. In March 2007, Mr. Stiegler contacted the current leadership of the Minnesota Law Review, and they decided to bring Mr. Stiegler's article to the public by editing the work and then publishing it on SSRN and on the webpage of the Minnesota Law Review. Mr. Stiegler's ideas and arguments are still relevant today.

(Note: The rest of the SSRN abstract doesn't summarize the article very well, which is why I gave the summary from the Note itself.)

42 Comments

[Erin McKean, guest-blogging, September 26, 2007 at 11:13am] Trackbacks
Guestblogging Dictionary Myths:

Part 2: The Myth of the Online Dictionary

So (as several of you have asked in the comments, with varying levels of plaintiveness) why don't dictionaries just go completely online, and include every word? There'd be none of this stupid in-or-out waffling on the part of the lexicographers; they could just muster the words in an orderly fashion and march them onto the web, break for a long lunch, and go home early.

It's no secret that I'm a big fan of this include-everything-on-the-web idea. I'm seethingly impatient for it. I want it hot, fresh, and now, and I'm grumpy that I don't have it yet.

Don't have it yet? But what about OED.com, dictionary.com, onelook.com, bartleby.com, m-w.com, Wiktionary, OmegaWiki ... there's no shortage of dictionaries you can see online. What there's a shortage of is true Online Dictionaries.

A dictionary online is just a print dictionary translated to the web, with little, if any, attention paid to the advantages of web delivery. A few links, a couple of different font options -- that's it. The basic arrangement, format, layout ... those remain largely unchanged. (A couple of the online dictionaries don't even allow full-text search inside definitions! So if you can't remember the word, you can't triangulate it by looking for words you think might be used in its definition.)

Everything in the dictionary-online is still seen through the lens of print, and what print needs. The web is an afterthought. Even the wiki-style dictionaries (which I am all in favor of, and I'm on the advisory board of the Wikimedia Foundation) are largely based on print ideals of organization and inclusion. (Even Wiktionary wants words to be at least a year old before they are included in the project.)

A true Online Dictionary would be created with the web in mind. And it might not look the way we think a dictionary "should" look at all!

Print dictionary layout is optimized (or possibly ossified) for print delivery. Dictionary layout has remained largely unchanged for hundreds of years: look at a page of Johnson's Dictionary, and you recognize it immediately: "That's a dictionary." But is that format, time-tested as it is, the best one for an online dictionary? I am not convinced it is. But no dictionary that I'm aware of is testing what a true online dictionary would or should or could look like.

Not only do I think the macrostructure of the dictionary will have to change online, I believe the microstructure of the entry probably will too. Do lexicographers still need to be crafting tight little knots of definitions if the pressure to explain everything in three lines or less is no longer there? Where's the sweet spot between "short, but impenetrable" and "too long for quick comprehension ... okay, now you're an encyclopedia"?

Because lexicographers' time isn't infinite, even if the web seems nearly so, they will still have to figure out the process of herding all the words into the new online dictionary. (I can see entries accreting over time as evidence of use piles up; the first embryonic uses of word barely showing, with only one or two lonely examples, and the older words becoming like huge dripping stalactites as they accumulate hundreds of examples. You could gauge the longevity of a word by the shape of its entry.)

Before we can have a real Online Dictionary we have to figure out how people will use it, what they really need and what they simply want. Then we can figure out what it will look like, how it will behave, and what it should contain.

We also need to figure out how we can fund it. How will people pay for online dictionary content, if at all? Per word micropayments? Subscriptions? A tiered subscription with basic words being free, but harder or rarer words costing more? Paying a fee through their ISP? Taking it not-for-profit and being funded by grants? Advertising? Charging people to add their own words or definitions? (I'm just kidding about that last part, but I can imagine some people wouldn't be.) Pretty much the only funding option not available for the online dictionary is putting it between hard covers and selling it for $24.95 in Barnes and Noble ... because then you have to make the online dictionary with print in mind.

The true Online Dictionary is still a myth, sadly. But every day I think about how to make it into reality.

24 Comments

GOP Field Lacks Reagan's Energy:

In another NRO "energy week" article, the Cato Institute's Jerry Taylor and Peter Van Doren take aim at the GOP Presidential field's approach to energy policy.

We’ve been hearing a lot about Ronald Reagan from the Republican presidential field of late, but there is little trace of him in the position papers issued by the various campaigns thus far. Take energy. Whereas candidate Reagan proposed to solve the energy crisis of the 1970s by abolishing the Department of Energy, deregulating the energy sector, and letting free markets rip, candidates Giuliani, Romney, McCain, and the rest propose to solve today’s energy crisis with elaborate national energy plans, lavish subsidies for favored fuels and industries, mandatory renewable-energy consumption orders, and government dictates to manufacturers regarding how energy-related goods and services are made.

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Tuesday, September 25, 2007

Little Rock -- Fifty Years Later:

Fifty years ago today, federal troops escorted nine black students, through an angry mob, into little Rock's Central High School. Shelby Steele looks back:

On this 50th anniversary of Eisenhower's troop deployment, the significance of the Little Rock crisis--its place in history--is much clearer. I believe it was the beginning of a profoundly different America. . . .

the deeper historical importance of the Little Rock crisis follows from the simple fact that it was televised. It was, in fact, the first time that this still fledgling medium was able to make America into a community by rendering up a riveting real-life drama for the country to watch. Compelling personalities emerged, like the despicable and erratic Gov. Faubus, who kept flaunting federal authority like a little potentate. There was Eisenhower himself, whose grandfatherly patience with Faubus seemed to belie a sympathy with this racist's need to hold on to a fading authority. And there was the daily gauntlet that the black students were made to walk--innocence face to face with evil. And, finally, there was great suspense. How would it all end? Would there by a military clash, another little civil war between North and South?

So Americans watched by the millions and, in this watching, saw something that would change the country fundamentally. Every day for weeks they saw white people so consumed with racial hatred that they looked bestial and subhuman. When white racism was a confident power, it could look like propriety itself, like good manners. But here, in its insecurity, it was grotesque and shocking. Worse, it was there for the entire world to see, and so it broke through the national denial. The Little Rock crisis revealed the evil at the core of segregation, and it launched the stigmatization of white Americans as racists that persists to this day. After Little Rock whites stood permanently accused. They would have to prove a negative--that they were not racist--in order to claim decency. And this need to forever beg one's innocence is the very essence of white guilt.

More from Angela Onwuachi.

UPDATE: The Washington Post reports on the 50th anniversary commemoration.

the brief appearances by the nine captivated the crowd. They are an accomplished group, earning numerous bachelor's and master's degrees, though generally heavier and grayer. Two of them used wheelchairs.

On the podium, they thanked their parents and advised youngsters to be diligent. If they did recall anything for the crowd about those turbulent times, it did not involve being spit on, or insulted or physically threatened -- as if the meanness of those days had been cleansed in memory. They recalled instead the humor and determination.

53 Comments

The Right to Arms in the DC(!) Consitution

Today I was examining an on-line copy of the Washington, D.C., municipal code, and came across a startling item. The D.C. government has enacted a "Constitution" which it styles as the "Constitution for the State of New Columbia." Apparently this was enacted in 1987, and presumably it supersedes the "Constitution of the State of New Columbia" which was enacted in 1982.

In the Bill of Rights section of the 1987 Constitution is the following:

Sec. 102. Right to keep and bear arms.
A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.

The public Westlaw site of the D.C. Code provides a short history of the 1987 Constitution: "Law 7-8 was introduced in Council and assigned Bill No. 7-154, which was referred to the Committee of the Whole. The Bill was adopted on first and second readings on April 14, 1987 and May 5, 1987, respectively. Signed by the Mayor on May 6, 1987, it was assigned Act No. 7-19 and transmitted to both Houses of Congress for its review."

Now, because the District of Columbia has not yet become the State of "New Columbia", the 1987 Constitution has not yet gone into effect. Nevertheless, the Constitution has some interesting implications for the DC handgun ban case for which the Supreme Court is considering petitions for a writ of certiorari.

First, the DC government in 1987 chose to create a new constitution which, unlike the 1982 constitution, contained a right to keep and bear arms. The decision made the proposed DC constitution more normal, in that the vast majority of American state constitution have a right to keep and bear arms.

Second, the DC constitution used language which exactly tracks the U.S. Second Amendment, and the language of several state constitutions: North Carolina, South Carolina, Alaska, and Hawaii. Notably, in 1987, the state court cases on this precise language recognized the right as an individual one which included the right to own handguns. See, State v. Kerner, 107 S.E. 222 (N.C. 1921); State v. Dawson, 159 S.E.2d 1 (N.C. 1968). Cf. State v. Fennell, 382 S.E.2d 231 (N.C. 1989); State v. Mendoza, 920 P.2d 357, 363 n. 9 (Haw. 1996) (not deciding what type of right the arms guarantee was, but stating that interpreting the arms right as both collective and individual, subject to state police power, would be consistent with the majority of other state constitutions); Morgan v. State, 943 P.2d 1208 (Alaska Ct. App. 1997) (holding right, in text that had been modified in 1994, is not violated by prohibition on gun possession by citizens on probation).

It is sometimes claimed (such as by DC lawyers in the instant litigation) that the Second Amendment phrasing is merely a protection of state militias from federal interference. The DC Constitution demonstrates the absurdity of the argument; nothing in the DC Constitution could overcome the Supremacy Clause and prevent federal control (pursuant to the U.S. Constitution) of the DC state militia. The only plausible explanation for the placement of the right to keep and bear arms language in the "Bill of Rights" section of the DC Constitution is that section 102 of the DC Constitution has precisely the same effect as every other section of the DC Constitution's Bill of Rights: to shield the individual rights of ordinary DC citizens from potential abuse by the New Columbia state government.

Accordingly, when DC lawyers argue to lower federal courts, and to the U.S. Supreme Court, that the language of the U.S. Second Amendment is not an ordinary individual right, they are making an argument which is decisively contradicted by the very constitution adopted by the government whom the lawyers are representing.

Second, DC's cert. petition makes the novel argument that the District of Columbia (an entity over which the U.S. Constitution grants Congress plenary power) is somehow already a sovereign state for purposes of the Second Amendment; they claim that the 1886 Supreme Court decision in Presser v. Illinois, which held that under the 14th Amendment Privileges and Immunities clause, none of the Bill of Rights are enforceable against states, immunizes D.C. today from the enforcement of the Second Amendment. Yet the New Columbia Constitution shows that D.C. wants to be a state and wants the exact language of the Second Amendment to be enforceable against D.C.

Strictly speaking, Presser is irrelevant, because D.C. is not yet a state, but even if D.C. were somehow considered a quasi-state, the D.C. Constitution shows D.C.'s desire to be subject to the language of the Second Amendment.

54 Comments

"Rent-a-Cow":

A cool intersection of law, language, and unintended consequences, three of my favorite topics, from the Double-Tongued Dictionary (thanks to Erin McKean for the pointer):

[I]ndicating a situation in which livestock are deceitfully used to make a residential or commercial property qualify as a working farm or ranch in order to benefit from an agricultural tax provision or subsidy.

9 Comments

Leiter's Tunnel Vision:

It would be too tiresome to reply to Brian's Leiter's rant about me point-by-point. So let's just focus on one statement: "But how many times in the last 50 years have 'liberal' politicians and interest groups outside universities successfully mobilized to get someone fired or even threatened that person's tenure because of 'conservative' views?"

Well, let's start with Larry Summers, whom Leiter mentions, oddly enough, in the same post. Sure, Summers is actually a liberal Democrat, but to his leftist critics at Harvard, his views on, among other things, feminism and Israel, were too "conservative" for their taste, and they got him fired from the Harvard presidency. Of course, if Summers were truly and publicly conservative, the odds of him getting the Harvard presidency to begin with would be virtually nil (and the same goes for just about every other leading university).

Which leads to my broader point, that the Left doesn't mobilize against conservatives and libertarians in the universities because they do such a good job at keeping them out to begin with. Let's take law school deanships. Erwin Chemerinsky's job at UC-Irvine was threatened, after it was offered, by outside "conservative" forces. But in the past several years, I've had three calls from colleagues at other law schools about current or former George Mason colleagues who were up for deanships at these schools. In each case, my correspondent noted that there was significant "concern" about the candidates' ideology, such that an entire faculty bloc was opposing the candidate as "too right-wing." None of these candidates got the job.

And then there are the anecdotes that one has personally experienced, that one hears from one's friends, and so forth--do liberals have to pass a quiz about their political views on affirmative action before they get hired? Do liberal international law scholars frequently get negative outside tenure or hiring reviews explicitly based on the premise that their ideas are dangerously left-wing? Do liberals frequently get told that a law school will consider hiring them when one of their current liberal faculty members retires or dies, so they can keep the same "balance" on the faculty? If so, then I'll grant that when such things happen to people on the "right", they aren't facing institutionalized discrimination.

But then there is George Mason, which in Leiter's mind apparently makes up for the other 190 ABA-approved law schools because we hire great candidates who are undervalued on the market on ideological grounds. If there were 50, or even 25, George Masons I'd acknowledge that Leiter has a point, but Mason can only absorb 35 or so of the 8,000 faculty slots available at American law schools.

I focus on law schools because that's familiar turf, but all indications are that law schools are actually much more open-minded, and much more tolerant of right-of-center views, than are other university departments, including many economics departments, Leiter's embodiment of the "right-wing". (Do we have any libertarian economics professors in the audience who want to comment on Leiter's ridiculous claim that "free market utopianism" "dominates economics?")

Leiter bemoans the controversy over poor Joseph Massad at Columbia, without noting the unlikelihood that someone like him would ever get hired by an institution like Columbia to begin with but for his ideology, and the related impossibility that even a top-notch scholar sympathetic to Israel would get hired in Massad's Edward-Said-influenced department. Top universities have found it necessary to create special "Israel Studies" programs and chairs because Departments of Middle Eastern Studies are so closed to anyone who wants to do objective, much less sympathetic, scholarship on Israel.

In fairness to Leiter, if one's worldview is to the left of Noam Chomsky's, the whole world, even academia, is going to look very "conservative". Even then, it would be hard to believe without willful blindness that economics is a more "ideological" subject than is "Women's Studies," even though economics professors range all over the ideological map, and Women's Studies professors, well, don't, and even though economics departments don't declare themselves to have an ideological mission, while Women's Studies departments often do (e.g.).

So even if I did share Leiter's worldview, I might be embarrassed to advertise my tunnel vision.

UPDATE: Ask and ye shall receive. A study of the views of 264 academic members of the American Economics Association concludes that "[o]nly a small percentage of AEA members ought to be called supporters of free-market principles. Whether the AEA is, in this respect, representative of the economics profession is an interesting matter, but we doubt that the AEA is skewed to any great extent." Thanks to reader "Lowell" for the pointer.

115 Comments

An Amicus Brief Someone Should Write for Baze v. Rees: The Supreme Court has granted cert in Baze v. Rees, a case considering how the Eighth Amendment regulates methods of execution — and specifically, whether it allows the currently prevailing methods of lethal injection. This case really calls out for amicus participation to give the Justices context: In particular, it really needs briefs by leading historians on the history and evolution of how executions were carried out over time in the United States and at common law. What techniques were used in different historical periods, and why did they change? A really top-notch brief on the history of methods of execution would provide some very helpful context for the Justices. Obviously it wouldn't decide the case for the seven nonoriginalist Justices, but it would be quite helpful background for all of them. I hope someone is inspired to write a careful and balanced brief on this issue; that person would truly be a "friend of the Court."

24 Comments

McCann on Isiah Thomas Trial:

Michael McCann's latest column for SI.com, on the Isiah Thomas sexual harassment trial is available here.

He notes one of Isiah's stranger arguments in the case:

3) Under oath, Thomas opined that it would be worse for a "white man [to call] a black woman a bitch" than for an African-American male to do the same. How might that statement influence the trial?

Thomas apparently made the statement to insinuate that, because of values in the African-American community, at least as Thomas perceives them, Sanders should have been less offended by the misbehavior of African-American male employees than if white male employees had engaged in identical behavior.

This argument is weak and probably counter-productive.

Ya think?

13 Comments

Jeffrey Toobin Looking for Corrections:

Jeffrey Toobin writes:

Hi Eugene,

I've been reading your posts on The Nine with interest. I am serious about correcting errors in my books, and I intend to fix anything I can. (Differences of opinion and interpretation are another story, of course.) In any event, I'd continue to welcome your thoughts or those of your colleagues. You can also post this email if you like.

Best, Jeff

I much appreciate the sentiment, and want to urge readers to pass along, in the comments to this post, any other errors they might have found. Please limit this to items that you think are genuine errors that require correction, and of course please be polite and substantive.

17 Comments

More on Jeffrey Toobin's The Nine and Justice Thomas:

In my post on this last week, I forgot to include one item that strikes me as especially telling. It's from p. 102:

Indeed, it is difficult to point to a single truly significant majority opinion Thomas had written. Many of his assignments were unanimous opinions on minor subjects -- "dogs," in the Court's parlance. When asked which of his opinions was his favorite, Thomas would usually cite a 1996 case where the Court unanimously overturned an award to a railroad worker who had sustained injuries after trying to manipulate a "knuckle" between two cars. "It was a little case that didn't matter to anyone," Thomas said in a speech. "It's almost inconsequential. It was a fun little opinion. I went back into the history of trains." (In fact, as the journalist Tony Mauro first reported, the case was not inconsequential. Thomas's opinion made it much harder for railroad workers to recover for the horrific accidents that can take place when they climb between two railcars in the process of coupling. Years after the decision, the plaintiff in the case, William Hiles, was still bedridden most of the time.)

This is precisely the sort of thing you wouldn't expect in a book that takes the Supreme Court seriously. The first sentence is probably right, and a sensible evaluation of Justice Thomas's influence as a majority opinion writer (as opposed to as one of nine votes, or as a dissenter). It's a judgment call, of course, but my sense is that indeed Justice Thomas had not been assigned to write the majority opinion in the most high-profile, controversial, or otherwise important cases.

Look, though, at the parenthetical. The case, we're told, is not inconsequential because it had an effect on some litigants, and because the particular litigant in this case couldn't recover for his serious injury. But Justice Thomas was of course talking about how inconsequential the case was by the standards of the Court. He and other Court-watchers know that the Court agrees to about 1% of all the cases it's asked to take. It doesn't take cases, especially cases on statutory interpretation, just to resolve an error below, or even set forth the right rule; it takes them to set the lower courts straight on an important topic that is likely to arise repeatedly.

And by the standards of the Court's cases, this particular case, Nortfolk & Western Ry. Co. v. Hiles, is indeed of little consequence. Consider one measure of consequence -- the degree to which the case is cited by other cases. (This isn't a perfect measure, but it's a good first cut.) Hiles is in volume 516 of U.S. Reports, which contains 33 cases decided by opinion. Those 33 cases put together were cited in 1769 cases in 2006, for an average of about 50 yearly cites per case. Hiles was cited in 1 case in that year, a little below the average of 2 cases per year since it was handed down.

I can understand how an average editorialist who wants to complain about Justice Thomas could make this sort of argument. No case in which people were maimed and as a result of which others would be denied recovery, the argument would go, should be treated as inconsequential or insignificant. Justices should treat each case as important. Oh, and let's add a whiff of "the youngest, cruelest justice" -- how could Justice Thomas be so insensitive to the plight of poor William Hiles?

But someone who is writing a serious book about the Supreme Court can't, I think, take this sort of view. The Justices are asked to hear several thousand cases each year. Many of them center around one or another tragedy. Consequence to one or a few people, while enough to bring a tear to the eye of some journalists, can't be the measure of a case's significance to a serious commentator on the Supreme Court.

And of course Jeffrey Toobin takes precisely this view in the opening sentence: None of Justice Thomas's majority opinions were "truly significant." Of course all of them affected the litigants, and affected the law, but significance is a comparative matter. Yet let Justice Thomas refer to the "[not] truly significant" cases as "almost inconsequential," and he gets condemned for apparently neglecting the importance of horrific accidents and an injured plaintiff (a plaintiff whose legal claim, incidentally, was rejected by a unanimous Court, not just Justice Thomas).

All this, I think, reinforces my diagnosis: What is otherwise a serious book about a serious subject doesn't seem able to maintain its seriousness when it comes to this particular Justice.

24 Comments

What if the the Constitution Turns out to be a Suicide Pact? - A Final Post on Forced Labor and the Thirteenth Amendment:

At least for now, this will be my last post on forced labor. I think I have said all I reasonably can say about my arguments on this subject in the blog post format. However, I do want to address one more counterargument: the claim that my position that forced labor is unconstitutional might lead to the destruction of all our rights. For example, it is theoretically possible that, absent a draft, we might be conquered by an evil totalitarian enemy who will proceed to abolish the Constitution, violate all our rights, and so on. Even if this is impossible under current conditions, it was a more serious risk in the past (e.g. - during World War II), and may again be in the future. Thus, the critic will conclude, the government must have the power to impose a draft. Otherwise, there is at least some danger that the Constitution will be overthrown by our enemies and all our rights (including the Thirteenth Amendment itself) lost.

It is important to recognize that this type of "the Constitution is not a suicide pact" argument is hardly unique to the Thirteenth Amendment/forced labor context. It can be deployed against virtually any constitutional right. Thus, it is possible that a situation will arise where, unless the government is able to suppress Communist speech, the Communists (or some other totalitarian group) will win power in an election and then establish a totalitarian state that - you guessed it - will abolish the Constitution and take away all our rights. Sure it's unlikely today, but it was a more serious threat in the past (say, in the 1930s, when various extremist groups enjoyed considerable popularity because of the Great Depression), and the danger might again increase in the future. Indeed, the "suicide pact" formulation was originally deployed in a First Amendment case, Terminiello v. Chicago. Justice Jackson, the inventor of the phrase, was specifically concerned that "Invocation of constitutional liberties" under the First Amendment might be used by Nazis or Communists as "part of the strategy for overthrowing them."

A few years later, Jackson and other justices used similar reasoning to uphold the prosecution of Communist Party members in Dennis v. United States.

If we take the "suicide pact" argument to its logical conclusion, we will have to destroy all our constitutional rights in order to save them. Government would have to have the discretion to violate those rights at any time it sees fit, because otherwise there is always at least a small chance that the right in question would lead to national suicide.

I'm going to assume that this conclusion is unacceptable. But I also agree that it is unacceptable to conclude that a constitutional right can never be violated even if keeping it in place would lead to certain totalitarianism.

Therefore, we need to adopt one of two possible compromise options. The first is to admit that there are extreme situations where unconstitutional action is morally defensible even if still illegal. Adherence to the Constitution is an important value, but it is not the only value and it does not always trump all other considerations. However, we don't want to make it easy for government officials to violate constitutional rights. Thus, officials who take such actions should be forced to run the risk of being impeached or prosecuted for them. If they truly believe that the nation will fall to totalitarianism should they fail to act, they should be willing to risk those consequences (if only because prosecution in a liberal democratic state is a much less unpleasant fate than what will probably happen to those same officials should the totalitarians prevail).

The other alternative is to explicitly incorporate the "suicide pact" argument into our theory of constitutional interpretation. Maybe there is an "antisuicide" exception implicit in every constitutional right. If violating a constitutional right really is necessary for national survival, the government should have to make that case in court and meet a fairly high burden of proof in doing so. Mere assertion of the existence of a risk is not enough (otherwise constitutional rights would quickly be obliterated, since the state would make the assertion anytime officials find it convenient).

I'm not sure which of these two strategies is preferable. There is a substantial and in my view inconclusive academic literature on the subject. But whichever way we go, we should remember that the risk of totalitarian horror is not just on one side of the ledger. Just as protecting constitutional rights might create a risk of national sucide, so to might violating them. If, for example, we let the government impose forced labor, even in limited circumstances, there is a chance (perhaps initially quite small) that the forced labor program will be expanded into a totalitarian state. Ditto for violations of free speech and other rights. The Constitution may not be a suicide pact. But fear of suicide shouldn't blind us to the possibility that the same government that protects us from suicide might itself murder us.

44 Comments

[Erin McKean, guest-blogging, September 25, 2007 at 12:14pm] Trackbacks
Why Inartful Isn't In

So yesterday Eugene asked me why the word inartful (meaning 'unskillfully') wasn't in any dictionary that he'd consulted, including the OED and all the dictionaries you can search through onelook.com.

He pointed out that this word has been used 600 times in 2007 alone, and that he'd found a cite going back to 1751, which seems like plenty of evidence of use to guarantee a seat at the grown-up table for inartful. So why has inartful gotten the go-by?

When thinking about how words enter a dictionary, the most important thing to understand is that there are many, many more words than there are places in any current dictionary. Because of this scarcity, lexicographers are driven to a kind of triage. Often, the question isn't 'how can I justify including this word?' but 'how can I justify EXCLUDING this word?'

It wasn't that lexicographers just weren't lucky enough to run into the word: we should assume that a lexicographer at one point saw and considered inartful, however briefly. How can I assume that? Well, Ben Zimmer at OUP let me know that the word shows up three times in the citations database the OED uses (Incomings) and shows up thirteen times in the Oxford English Corpus. In the natural course of things, then, a report should have been run on all the words in either of those databases that isn't already listed as a defined word, and the output of that report looked over.

So once inartful was on that list, why didn't it shoot straight through the process to definition and publication?

Well, inartful is fairly easily and superficially defined as "not artful". Often in- or un- words are not separately defined in dictionaries (again, the lack-of-space problem) because lexicographers assume that someone who knows in- and audible can put the pieces together on their own and figure out inaudible without our help. (These words, in lexicogger jargon, are often called derivatives or run-ons, because they are derived from and often run on to an entry, where they appear at the end, after all the definitions, in bold type.)

Of course, there are difficulties with this 'solution' to the space problem, and inartful is a good example of how this assumption of transparent meaning can go wrong. It seems that at the time inartful started to be used, artful meant, plainly, "Displaying or characterized by technical skill; performed or executed in accordance with the rules of art; artistic" [OED]. Artful had not yet taken on its later meaning of "Cunning, crafty, deceitful." [OED] So the in- + artful reading of inartful stopped working, along about the time that artful took on an unsavory character. It's not that the lexicographers were slacking off here (although it may seem that way). It may take several revision cycles for all of the in- and un- (and for that matter the re- and non-) words to get reviewed to make sure that their base word hasn't skewed off in a different direction than the prefixed version. Of course, inartful didn't even get the run-on treatment, as far as I can tell. If a word is rare enough, and it has no changes in its spelling or stress pattern or pronunciation when the prefix or suffix is added, even the run-on space may be judged as too valuable to waste on so marginal a word.

Another reason that inartful could have been left off the guest list of the A-Z party is that the word seems to be used mainly by lawyers. It's not anti-lawyer prejudice on the part of lexicographers (we tend to love lawyers, because lawyers tend to love dictionaries, and, more importantly, buy them ... ). But lexicographers know that legal terminology tends to be both contained in the law world and that the law world has good dictionaries of its own, which will provide adequate coverage. (Black's, especially, although I haven't been able to look up inartful in Black's. I don't know where my copy went!) Any kind of very specific jargon or restricted terminology won't show up in a general dictionary (I'm not really talking about the OED here, which does include a lot of specialist terminology) unless the lexicographer can show that the term does show up often enough in broader contexts.

Which should have been the case, actually, for inartful, since it was the subject of the Safire contretemps Eugene mentioned yesterday (he claimed it "wasn't a word"), AND then he retracted that claim ... based in part on testimony from a lawyer, Fred Shapiro. When a word is the subject of a public debate over its wordiness, that to me says it's a good candidate for inclusion in a general dictionary ... but I'm excusing myself from responsibility for following that particular debate, since it happened in 1985, when I was fourteen and not yet reading the Sunday New York Times on a regular basis (I don't think you could get home delivery of the NYT in Winston-Salem, N.C. in 1985).

(Although now that the NYT archive is open, does anyone want to help me do a survey of all the On Language columns to see what percentage of words discussed are, in fact, included in major dictionaries? I'll take volunteers in the comments, on a first-come, first-served basis ...)

Those are just two of the reasons you can't find inartful between inarch and inarticulate in your dictionary. They're not especially good reasons, but then again the reasons for most failures aren't especially good ones.

And, really, I don't think inartful is an especially rare case. I encounter a word that's not in a dictionary but probably could be nearly every single day. Grant Barrett has built an entire web site that lists words that aren't in the major dictionaries. Dictionaries are probably only the tip of the English iceberg — there might be as much as 90% of the language hiding below the waterline.

So tomorrow I think I should discuss how lexicographers could keep this kind of inartful failure from happening, both ideally and practically. If you want a sneak preview, you might want to check out the video of my talk at the TED conference, where I discuss this same topic. (Warning: sound starts immediately as the page loads.)

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Whole Lotta Grantin' Going On: Today the Supreme Court announced the results of the "long conference," the Justices' September conference in which they vote on the cert petitions that piled up over the summer. The Court granted 17 cases altogether, which you can find over at ScotusBlog. I was particularly interested to see the Court grant cert in Virginia v. Moore, a Fourth Amendment case that is a follow up to Atwater v. Lago Vista.

  UPDATE: The 'big' grants seem to be the cases on the constitutionality of voter ID laws and of execution protocols; see Lyle Denniston's summary here.
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Mandatory Jury Service and the Thirteenth Amendment:

Critics of my argument that the Thirteenth Amendment is a comprehensive ban on forced labor can legitimately ask about the implications of my ideas for mandatory jury service. After all, mandatory jury service is pretty obviously a form of forced labor, yet almost everyone seems to believe that it doesn't violate the Thirteenth Amendment's ban on "involuntary servitude."

I am tempted to say that mandatory jury service is in fact banned by the Thirteenth Amendment, regardless of longstanding tradition. Forcing people to work for the government for weeks or months at a time is clearly "involuntary servitude" and nothing in the text of the Thirteenth Amendment exempts this form of forced labor from invalidation as unconstitutional (in the way that there is an explicit exemption for the use of forced labor as punishment for crimes). Longstanding tradition and judicial precedent is not dispositive here, anymore than was the longstanding tradition and precedent that anti-blasphemy laws were permissible despite the plain text of the First Amendment.

However, there is an important difference between mandatory jury service and all other types of forced labor. Mandatory jury service is necessary to secure another individual right guaranteed by the Constitution: criminal and civil defendant's rights to a trial by jury under the Sixth and Seventh Amendments. One could argue that the right of trial by jury does not necessarily require trial by a jury of forcibly conscripted citizens. In theory, the jury could be comprised of volunteers or paid professionals. However, as far as I can tell (and I welcome correction from those more knowledgeable about this issue) in 18th and 19th century usage and even today, the word "jury" was and is generally understood to mean a group of forcibly conscripted citizens. Coercion was and is (wrongly, in my view) believed to be necessary to ensure that the jury would be a representative sample of the citizenry. Thus, unlike other forms of forced labor, mandatory jury service is necessary to secure a constitutional right.

As a general matter, constitutional amendments should not interpreted to obliterate preexisting constitutional rights unless the intent to do so is specifically stated in the text. For example, under the Sixteenth Amendment Congress was given an unlimited power to "lay and collect taxes on incomes." That does not mean, however, that Congress has the power to impose discriminatory taxes that violate the preexisting First Amendment by targeting people who engage in speech critical of the government. For the same reason, the Thirteenth Amendment cannot be interpreted in a way that negates the preexisting constitutional right to trial by jury under the Sixth and Seventh Amendments. Not unless the text (or at the very least the intent of the Framers and ratifiers) clearly indicates such negation.

I'm not at all happy about this conclusion. As a matter of policy, I doubt that trial by jury is superior to bench trials, especially in cases with complex evidence that many jurors lack the competence to assess. Even if trial by jury is desirable, volunteer juries are probably just as good as ones manned by forced laborers. As a matter of morality, I believe that this form of forced labor is no less despicable than other types of mandatory "public service."

Nonetheless, as a legal matter, this is one of those painful instances where the Constitution not only permits what I believe to be a deeply unjust policy but actually requires it.

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An Anti-Commons in Space:

In this article in the Space Review, political scientist John Hickman argues that space exploration has been seriously impeded by the 1967 Outer Space Treaty, which prevents the establishment of national sovereignty and private property rights in space. As a result, he claims, we have created a tragedy of the anti-commons which undercuts the incentive to engage in beneficial exploration and exploitation of space. Many of Hickman's claims seem plausible. However, his argument that that competition between different national space legal systems in space would be harmful seems to contradict his main thesis that independent national sovereignties in space are desirable. Whether or not greatly expanded space exploration is technically feasible and commercially viable is an issue beyond my expertise. But I certainly agree that national sovereignty and private property rights are likely to provide a better framework for any exploration that is feasible than the current dysfunctional legal regime.

I discussed some related issues in this post, which made the case for establishing private property rights in space.

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Why People Are Suspicious of Mearsheimer and Walt:

Leslie Gelb, in the NY Times, says the following about The Israel Lobby:

But as my mother often said, “They [M & W] asked for trouble” — by the way they make their arguments, by their puzzlingly shoddy scholarship, by what they emphasize and de-emphasize, by what they leave out and by writing on this sensitive topic without doing extensive interviews with the lobbyists and the lobbied.

Speaking of asking for trouble: On page 167 of The Israel Lobby, M & W quote Elliot Abrams, in a book he wrote about American Jews and Judaism, as follows: "there can be no doubt that Jews, faithful to the covenant between God and Abraham, are to stand apart from the nation in which they live. It is the very nature of being Jewish to be apart—except in Israel—from the rest of the population." M & W write that this shows that Abrams is "hardly objective" about Israel and that this is a "remarkable comment" from someone who holds a high-level foreign policy position. M & W strongly imply that someone who wrote something like what Abrams wrote should be barred from policy-making positions.

Apparently, they are thinking along the same lines as Huffington Post columnist (and Yale Sterling Professor of English) David Bromwich, who writes: "He [Abrams] certainly did not expect to occupy a position that would require him to weigh the national interest of Israel, the country with which he confessed himself uniquely at one, alongside the national interest of a country in which he felt himself to stand "'apart...from the rest of the population.'"

But Abrams never says anything remotely like that he feels himself "uniquely at one" with Israel. And not only doesn't say that he is oblivious to America's national interest, on exactly the same page of his book he says precisely the opposite (you can look it up an Amazon reader to check for yourself). Abrams specifies that there is no conflict between adhering to the Abrahamic covenant and being loyal to one's country. Indeed, I would add that many very traditional Jews are fiercely loyal to the United States precisely because it gives them the freedom to pursue their unique traditions, without, for the most part, having people like Bromwich question their loyalty and belonging.

Abrams's comment is not, as Bromwich articulates and M & W seem to believe, about Israel, but with traditional Judaism's belief that God has ordained that Jews are "a people who dwelleth alone" and who, to fulfill their religious obligations, must have a communal existence separate from the Gentile population. This isn't exactly news to anyone familiar with traditional Judaism, or with the fact that Jews who follow tradition tend to send their kids to Jewish day schools, shop at kosher supermarkets, and otherwise necessarily maintain a degree of "apartness", not out of hostility but out of the fact that traditional Judaism requires it--traditional Judaism is primarily a religion of actions, not beliefs, and mere belief in the precepts of Judaism doesn't cut it if the communal institutions don't exist to allow the religion to be practiced.

For decades, classical Reform Judaism fought this, partly on the basis that it prevented assimilation and led to unnecessary tensions, and partly in an attempt to stem the tide of Jewish converts to Christianity (10% of the Jewish populations in Germany, Hungary, Austria, etc. in the 19th century). The Reform argued that Jews should drop their distinctive traditions and be like everyone else, creating a Judaism primarily based on shared moral values, similar to liberal Protestantism except without Jesus, and with synagogue instead of church (some Reform congregations went so far as to switch the day of Sabbath services to Sunday, and until relatively recently if a worshiper put a kippah (yarmulke/skullcap) on in certain Reform synagogues, an usher would come by and ask him to remove it). But even the Reform have largely given up on trying to separate Jews from their peculiar ancestral traditions (and indeed their leaders are mostly encouraging a return to tradition).

Meanwhile, Abrams' quote obviously doesn't suggest dual loyalty--though if the Sterling Professor of English at Yale can't see this, either it's not as obvious as I think, or he isn't trying very hard. The reference to Israel in the quote merely states the obvious--that in a country with a Jewish majority, where the schools teach a Jewish curriculum, kashrut is the rule by default in supermarkets and restaurants, Jewish holidays are national holidays, etc., Jews living in Israel don't have any need to maintain any "apartness" to fulfill their religious obligations.

If M & W find Abrams's quote so "remarkable," I wonder what they would think about a Roman Catholic government official who had written a book on American Catholicism making an innocuous statement like that "to be faithful to the Church, Catholics must keep in mind that they must respect the authority of the Vatican." Unlike Abrams's statement, that one on its face does suggest dual loyalty, but anyone with a modicum of understanding of Catholic society would no better than to engage in such know-nothingism.

Continue reading by clicking below.

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More Wasteful Water Project Spending:

Despite levee failures and bridge collapses, Congress continues to divert public works spending to pork barrel projects. The latest example is the $23 billion water resources bill passed overwhelmingly by the Senate yesterday. Senate leaders on both sides of the aisle praise the measure. Senator Feingold was one of the few to call a pig a pig:

“After a decade of government and independent reports calling for reforming the corps and pointing out stunning flaws in corps projects and project studies, and after the tragic failures of New Orleans levees during Hurricane Katrina, the American people deserve meaningful reform,” Mr. Feingold said in a speech on the Senate floor. “How many more flawed projects or wasted dollars will it take before we say enough is enough?” . . . .

More dire warnings came from watchdog groups and some engineering experts, who said that the bill did not ensure that the most crucially needed work in Louisiana or elsewhere would get the highest priority, and instead would allow lawmakers with the most political muscle to push their favored projects.

“We are diverting our spending for the high priority projects to the political priority projects,” said Steve Ellis, vice president of Taxpayers for Common Sense, a nonprofit group that monitors Congressional spending.

Senate Environment and Public Works Committee Chair Barbara Boxer praised the bill, explaining it addressed national priorities for water infrastructure, including flood control, navigability, ecological restoration, and "making sure our people have recreational opportunities around these projects.”

The White House, for its part, said President Bush will veto the bill, but supporters appear to have enough votes for an override.

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Butler v. Perry and the Constitutionality of Forced Labor Under the Thirteenth Amendment:

In my earlier posts discussing the constitutionality of the draft and other forced labor programs under the Thirteenth Amendment, I made a mistake in failing to consider the 1916 case of Butler v. Perry. I thank Georgetown law professor Marty Lederman for drawing my attention to this important and unduly neglected decision.

Butler provided a much stronger defense of a narrow interpretation of the Thirteenth Amendment that would uphold the constitutionality of many forced labor programs than did the more famous case of Arver v. United States, which I criticized here.

The case upheld the constitutionality of a Florida law that required all able-bodied male citizens between the ages of 21 and 45 to either do road repair work for six days each year, provide a substitute, or pay a $3 tax. The option of paying a small tax prevents this program from being a true forced labor provision. According to the CPI inflation calculator, $3 in 1916 is equivalent to $57.69 in 2006 dollars, not exactly a backbreaking imposition. After all, there would have been no Thirteenth Amendment issue had Florida simply required all male citizens to pay an annual $3 tax for road upkeep without giving them the option of performing labor instead. Allowing the men to do labor instead of paying the tax just gave them a chance to pay in kind rather than in cash.

However, Justice McReynolds' opinion for the Court doesn't rest on any such narrow ground. Instead, it strongly suggests that the law would have been constitutional even if the options of paying $3 or hiring a substitute were not available. According to McReynolds, "the term 'involuntary servitude' was intended to cover those forms of compulsory labor akin to African slavery which, in practical operation, would tend to produce like undesirable results. It introduced no novel doctrine with respect of services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state."

There are several problems with this formulation. First and most important, if the term "involuntary servitude" really does not apply to traditional "duties" to the state, there would have been no need for the Amendment's exception for the use of forced labor as punishment for a crime. As I explained more fully in this post, using forced labor to punish criminals was a longstanding tradition, and was surely not considered "akin to African slavery." Second, McReynolds' argument elides the hard question of determining what evils really were "akin to African slavery" and likely to "produce like undesirable results." The "free labor" ideology underpinning the Thirteenth Amendment was based on a broad opposition to all forms of forced labor as inimical to a free society, not merely those based on racial categories or those that involved lifelong slavery (for details see historian Eric Foner's classic work Free Soil, Free Labor, Free Men). Finally, McReynolds' argument seems to elevate the supposed subjective intentions of the framers over the plain text of the Amendment, which is clearly not limited merely to those forms of "involuntary servitude" that are "akin to African slavery" but instead bans all such servitude with the sole exception of forced labor used to punish convicted criminals.

McReynolds' best originalist argument is the evidence he presents showing that, prior to the Civil War, federal territories governed by laws that banned involuntary servitude in terms similar to those of the Thirteenth Amendment still had road labor laws similar to Florida's. Ultimately, my main reply is that such evidence still cannot trump the plain text of the Amendment. When the two conflict, textualism takes precedence over originalism because only the text, not subjective intentions of the framers or ratifiers, is law.

On a less grandiose theoretical plane, McReynolds' historical argument ignores the possibility that antebellum road service laws were enacted at a time before the rise of the antislavery "free labor" ideology that underpinned the Thirteenth Amendment. The latter involved a much broader opposition to forced labor than the relatively narrow opposition to slavery that probably underpinned the antislavery provisions in the 1787 Northwest Ordinance and other much earlier laws that McReynolds cited. If so, the original intent behind the 1865 Thirteenth Amendment may have been broader than that underpinning earlier laws using similar language. Moreover, if the antebellum road work laws had allowed citizens to pay a small tax in lieu of working (as the Florida law did), they may not have been viewed as true forced labor measures and thus were considered to be "involuntary servitude" for that reason. On this interpretation, Butler was rightly decided, but wrong to rely on any broad claim that the Thirteenth Amendment permits a wide range of traditional forms of forced labor.

Furthermore, the institution of judicial review was relatively weak in the antebellum era, and state and territorial governments could quite often get away with unconstitutional laws and practices. The fact that a given statute or practice wasn't struck down in the antebellum period is only weak evidence of its constitutonality, and is not enough to outweigh clear constitutional text. As judicial power became more institutionalized in the years after the Civil War, road labor laws started to be challenged in the courts, aprocess culminating in the Butler case itself.

Finally, although it is not directly relevant to the issue I want to address, it is worth pointing out that McReynolds' opinion ignored (probably deliberately) the likely racial context of the Florida law. In 1913 Florida (the year when the law was enacted), it is highly likely that such a statute would be enforced primarily against poor blacks, and might even have been enacted for the specific purpose of conscripting black labor under the guise of a facially neutral law.

Because of its civilian (as opposed to military) context and because of the suspicious racial background to the case, I doubt that the modern Supreme Court would rely on Butler to uphold mandatory national service today; quite possibly, today's Court actually would strike down a modern law similar to that upheld in Butler. For these reasons, the precedent-based argument for a pro-forced labor interpretation of the Thirteenth Amendment probably rests on the Progressive Era Court's much more poorly reasoned 1918 opinion in Arver.

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Monday, September 24, 2007

Outrageous, If True:

According to the Columbia Spectator, Barnard religion professor Alan Segal was asked by the university to provide a list of archeology experts to comment on the controversial tenure case of Nadia Abu El-Haj's tenure--archeologists who "preferably" were not Jewish. Segal quite properly refused, noting that religion "has nothing to do with what you say as a professional."

El-Haj's "scholarly" work is premised on the idea that Jewish Israeli archeologists invented evidence of ancient Jewish settlement of the Land of Israel to justify Zionist claims to the land. Besides the issue of discrimination, which would be unthinkable in any other context related to any other group, the request to Segal seems like an implicit endorsement of her thesis, that Jewish archeologists cannot be trusted to be objective in their work related to Israel (which makes one wonder why the university would trust El-Haj, of Palestinian Arab origin, to be objective). Thanks to Solomania for the link.

UPDATE: It occurs to me that another possibility is that the powers-that-be don't anticipate granting El-Haj tenure, and they want non-Jewish critics so that they can better make their case that this was an objective decision, not one motivated by politics or pressure. If so, the university is merely (?) pandering to the prejudice that Jewish archeologists won't be objective, which I suppose is a bit lower on the outrageousness scale than actually being prejudiced, but still does not speak well of the requestors.

FURTHER UPDATE: Barnard denies the allegation. Well, sort of. Barnard spokesman Gildersleeve said that "the charge that restrictions were put on that request is absolutely untrue." Segal isn't claiming that he was restricted to non-Jews, just that they were preferable.

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The Civil War Draft and the Constitutionality of Mandatory National Service Under the Thirteenth Amendment:

It is sometimes argued that the Thirteenth Amendment couldn't possibly have banned mandatory national service because the Union had had a draft during the Civil War (which ended a few months before the Amendment was enacted).

There are four problems with this common argument:

First, it is the text of the Constitution which is the law, not the subjective intentions of the drafters. In my view, evidence of original intent or original meaning is relevant only in cases where the text is unclear or where the words used had different standard definitions at the time than they do today. For reasons I explained in my previous post, the Thirteenth Amendment is in fact very clear. And the term "involuntary servitude" did not have a significantly different meaning in 19th century usage than today.

Second, even from an originalist (as opposed to textualist) standpoint, the existence of the draft in the period right before the Amendment was enacted actually strengthens the case for assuming that it wasn't excluded from the ban on involuntary servitude. After all, the framers of the amendment were sufficiently aware of the breadth of the Amendment's language to provide a specific exception for involuntary servitude imposed "as a punishment for crime." The use of forced labor as punishment for a crime was far more common in American history than its use in the draft (which had never been done prior to the Civil War). If even this deeply rooted practice required a specific exemption to prevent it from being banned by the Amendment, the same applies to the draft. The drafters and ratifiers of the Amendment were well aware of the draft, because it had been a highly controversial political issue just a few months earlier. In addition, they were surely aware that the constitutionality of the draft was hotly contested even under the pre-Civil War Constitution, with many northern Democrats claiming that it exceeded Congress' enumerated powers. Given this background, if the framers genuinely sought to protect the constitutionality of the draft, they would probably have created a specific exemption for it similar to the exemption for the use of forced labor as criminal punishment. Yet they clearly did not do so.

Third, the Civil War draft was very different from its modern successors. It was created as a temporary emergency measure to meet an unprecedented military crisis, not a permanent institution. That crisis was brought on by slavery - the very practice that the Thirteenth Amendment abolished (along with "involuntary servitude"). It would not be unreasonable for the framers to assume that, with the abolition of slavery, the nation would no longer need a draft to mantain its security (just as it did not need one to deal with the many wars we fought prior to the Civil War). Moreover, the Civil War draft was far less coercive than modern national service proposals. Draftees could get out of their obligations by providing a substitute recruit or by paying a $300 fee (many northern communities, including New York City, used public funds to pay the commutation fees of draftees who did not wish to serve, but were too poor to come up with the $300 themselves). Thus, even if a Civil War-style draft is permissible under the Thirteenth Amendment, it does not follow that a truly mandatory draft or national service program would be.

Finally, even if the Civil War precedent proves that a military draft is constitutional, it does not follow that mandatory civilian national service would be. Most modern national service proposals include both civilian and military options, and their political viability might be greatly diminished if civilian service were excluded.

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My Take on -- And My Frustration With -- Jeffrey Toobin's "The Nine": I just finished reading Jeffrey Toobin's new book about the Supreme Court. Like Ed Whelan, and to some extent, Eugene, I found myself rather frustrated by it. In this post I wanted to explain why.

  First some background. Books purporting to offer an "inside" picture of the Supreme Court generally mix and match three different types of reporting: first, inside reports from clerks and/or Justices willing to speak with the author (aka "the good stuff"); second, the public record of cases, arguments, opinions; and third, the author's characterization of events and efforts to fill in gaps that allow the author to weave a good narrative.

  On the whole, I thought Toobin's book had some but not lots of "the good stuff," the inside scoop from Justices and clerks. The most important contribution to the book is probably its substantial material on how the world looks from the perspective of Justices O'Connor and Breyer, both presumably sources for the book. (In case you're wondering, the gist of it is that both of them envision/ed their job as finding workable and sensible solutions to practical problems and avoiding things that seem extreme.) For Supreme Court geeks, there are some interesting tidbits here and there; some I was familiar with, and some were new.

  At the same time, I found myself fustrated by Toobin's overall narrative and tone. Toobin sees the Supreme Court as all politics, and his politics are obviously pretty liberal. As a result, the book follows a simplistic and sometimes caricatured political narrative. The liberal Justices tend to be portrayed quite favorably as wise and able heroes. The conservative Justices and conservative legal ideas generally tend to be seen as scary, hypocritical, and/or out of touch.

  Toobin's fascination with the seemingly nonexistent "Constitution in Exile" movement is particularly telling. VC readers will know this movement either doesn't exist or consists of three dudes meeting for dinner once in a while. But Toobin seems to think this "movement" is central to conservative legal thought. He mentions it by name 6 or 7 times, and appears to see it as an important part of the dynamic at the Supreme Court. For example, Toobin writes that Justice Souter "moved left" after 2000 because he "had a visceral horror of such conservative undertakings as the Constitution in Exile." (p245) In discussing how little was known of President Bush's legal views, Toobin writes: "As for a more detailed philosophy, like whether Bush supported the Constitution in Exile — and a return to a 1930s conception of the role of the federal government — no one really knew." (p260). Toobin uses this technique to make conservatives seem scary and hypocritical: he writes that although the jurisprudence of traditional "conservatives like Potter Stewart" (?) embraced judicial restraint and deference to other branches, "the new generation of conservatives . . . did not believe in judicial restraint, and they represented a new kind of judicial activism themselves." (p14) Subtle, eh?

  
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Does Mandatory "National Service" Violate the Thirteenth Amendment?

Many commenters on my earlier posts about forced labor programs have expressed interest in the question of whether or not mandatory "national service" programs violate the Thirteenth Amendment. I think that the answer is pretty clearly "yes," at least if you take the text of the Constitution seriously.

I. The Constitutional Text.

The text of Section 1 of the Amendment is as follows:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Note that the Amendment forbids not only "slavery" but also "involuntary servitude," a provision deliberately inserted to prevent state governments from, in effect, reenslaving blacks by imposing "temporary" forced labor systems. Mandatory national service, which would require young people to do government-mandated work for a period of 1-2 years (depending on the proposal in question) is pretty clearly involuntary servitude under any reasonable definition of the word. In the Peonage Cases (which David Bernstein and I discuss in this article), the Supreme Court used the ban on involuntary servitude to strike down forced labor laws that were significantly less restrictive than most mandatory national service proposals would be (peonage laws applied for shorter periods of time, and only to workers who had previously signed a voluntary labor contract with their employers).

Note also that there is only one exception to the ban on involuntary servitude: "punishment for crime whereof the party shall have been duly convicted." That strongly suggests that there aren't any other, unlisted exceptions. The presence of the word "except" at the start of the sentence exempting criminal punishment strongly suggests that this exemption is supposed to be exclusive, not just an illustration of other types of forced labor that are also permitted.

Some argue that the scope of the Amendment was intended to exclude traditional forms of forced labor that serve the public interest, or forced labor imposed by the state rather than by private individuals. The presence of the exception for criminal punishment undermines any such claims. If the term "involuntary servitude" excludes forced labor imposed by the state, the exception for criminal punishments would be superfluous. Ditto if it understood to exclude traditional forms of forced labor other than slavery (since forced labor as a punishment for criminals clearly falls into that category).

II. The Pathetic "Reasoning" of Arver v. United States.

The main judicial precedent going against my view is the Supreme Court's 1918 decision in Arver v. United States, which upheld the constitutionality of the military draft. In my view, however, the plain text of the Constitution trumps any judicial decision, even though lower courts have little choice but to obey flawed Supreme Court precedents. Moreover, Arver's analysis of the Thirteenth Amendment issue is extraordinarily weak. Here's all the Court had to say on the subject:

Finally, as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation as the result of a war declared by the great representative body of the people can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement.

There is no real argument here, just a bald, unsupported assumption that the Court's view is obviously right. In my view, it is the claim that forced labor is not "involuntary servitude" merely because it serves a "supreme and noble duty" that is "refuted by its mere statement." The fact that forced labor may help achieve important objectives does not make it any less involuntary. And the Thirteenth Amendment includes no exception permitting involuntary servitude so long as, in the opinion of the Court, it discharges a "supreme and noble duty." Arver's non-analysis of the Thirteenth Amendment is an embarrassment to legal reasoning and should be overruled as soon as the issue arises again. Since we don't currently have a draft or a mandatory national service program, and have not for almost 35 years, there is no serious argument for retaining this flawed precedent because of longstanding reliance interests or for the sake of "stability." In any event, I'm not sure even a very great reliance interest should be enough to set aside so vital an individual right as freedom from forced labor.

Even if Arver must for some reason be retained, it only justifies a wartime military draft imposed to ensure "the performance of [citizens'] supreme and noble duty of contributing to the defense of the rights and honor of the nation as the result of a war declared by the great representative body of the people" [emphasis added]. It does not apply to either a peacetime military draft or to civilian forced labor of any kind. As I explained in my previous two posts, today's prominent national service proposals all fall into the latter category.

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Columbia and the First Amendment:

The New York Sun reports that New York city and state government officials are threatening to retaliate against Columbia -- for instance, by cutting off various government subsidies for Columbia all its students -- for its inviting Ahmadinejad to speak:

[T]he speaker of the Assembly, Sheldon Silver, said lawmakers, outraged over Columbia's insistence on allowing the Iranian president to speak at its World Leaders Forum, would consider reducing capital aid and other financial assistance to the school....

"There are issues that Columbia may have before us that obviously this cavalier attitude would be something that people would recall," Mr. Silver said. "Obviously, there's some degree of capital support that has been provided to Columbia in the past. These are things people might take a different view of ... knowing that this is that kind of an institution."

Mr. Silver faulted Columbia for "attempting to legitimize this individual," saying, "We have an obligation because of the U.N. to allow him to come to this country. It doesn't mean we have to make him welcome. We don't have to give him a forum." ...

"Bollinger made a big mistake, and there should be consequences for him for making that decision," the chairman of the New York City Council's Finance Committee, David Weprin, said in an interview. "We should look at everything involving Columbia, whether it be capital projects, city and state, or other related things that we do in the city for them," he said....

Albany awards Columbia millions of dollars a year in student financial aid and also provides funding for smaller-scale capital projects. Last year, Albany awarded the school $10 million for nanotechnology center and $12 million for a cancer center in Washington Heights.

Columbia uses the state Dormitory Authority to borrow money at low interest rates. Mr. Silver could use his influence over the authority to weed out Columbia bonding projects before they are submitted for approval.

The school is also seeking approval from city lawmakers for its plan to expand into a 17-acre swath of land in West Harlem. Albany also has the power to use eminent domain to facilitate Columbia's expansion....

Naturally, the government is not obligated to provide most subsidies to Columbia. It can also insist that some subsidies not be used for speech of which the government disapproves: For instance, it can require that certain subsidies be used for speech about prenatal care but not for speech about abortion.

But the government may not say, "We'll give you this subsidy, but only if you promise not to say X, Y, or Z using your own money." That's what the Court held in FCC v. League of Women Voters, when it held that Congress can't say to public broadcasters, "We'll give you money, but only if you promise not to editorialize even using your own money." This is surely at least equally true if the extracted promise were viewpoint-based, for instance that the broadcaster (or, here, the university) wouldn't carry speech by enemies of America, or Holocaust deniers, or anti-Semites.

Here, the government isn't saying, "We'll give you this subsidy, but only if you don't invite anti-Semitic Holocaust deniers." Rather, it seems to be threatening to say, "We won't give you future subsidies because you invited anti-Semitic Holocaust deniers." But the latter ought to be at least as constitutionally troublesome as the former (perhaps even more so because it requires subsidy recipients to guess as to what speech will cause them to lose their subsidies).

Now if the government were to say, "Here's a subsidy, which we want you to use for praise of racial and religious tolerance," then it could insist that this subsidy isn't used for other speech. If Columbia then wanted to invite Ahmadinejad to speak, it would have to make sure that all his funding came from sources other than this subsidy. But the government can't use its funding as a means to constrain all of Columbia's speech, without regard to whether that speech took advantage of that government funding. And that sounds like what the New York officials are trying to do.

And such a result strikes me as quite right. Federal, state, and local governments take about 25-30% of the GNP and then redistribute them. Nearly everyone, including speakers, receives a huge amount of government subsidies. If the government could deny subsidies to those who expressed views the government dislikes (not just using government money, but also using entirely private money) then it could restrict what university officials, university professors, corporate officials and employees, and others say on a wide range of topics. Imagine the deterrent effect if a legislature stripped universities of benefits whenever university officials, or even professors or guests whom the universities had invited, suggested that there might be cognitive differences between men and women, that race-based affirmative action is a bad idea, that certain religions were dangerous, that the threat of global warming is overstated, or whatever else.

So my bottom line: Criticize or praise Columbia's invitation of Ahmadinejad as you will. But don't threaten government retaliation for Columbia's speech, or the speech of people whom Columbia has invited.

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Miranda and the Silent Treatment: Check out United States v. Thogsophaporn, a fascinating Miranda case I found via Appellate Law & Practice.

  Facts: Defendant is taken into custody and read his rights. The defendant is asked to waive his rights but he declines. An investigator then sits down in the small interview room with the defendant in silence for five minutes, three to five feet away from him, until the defendant asks for some water. The investigator brings it to him, and then the defendant asks what is going on. The investigator responds that the defendant knows what is going on, and the defendant asks if the police want to talk about him ratting on a cocaine dealier. The investigator then brings up the fact that his colleagues want to talk to him, and the defendant then agrees to talk and waives his rights and confesses.

  Legal question: Is the confession admissible under Miranda?

  Held: Yes, the statement is admissible, because the defendant was the one who reinitiated questioning when he asked what was going on. The court explains:
  [T]he agent’s mere silent presence in the room is insufficient to rise to the level of unlawful coercion or pressure. Indeed, because the agent was required to avoid discussions concerning defendant’s legal situation, it is hard to find any fault at all in his silence. While silence may feel awkward or uncomfortable under some circumstances, there is no requirement that the police engage in small talk. Nor was the agent required to exit the room and leave the defendant unsupervised. See United States v. Andrade, 135 F.3d 104, 106-07 (1st Cir. 1998) (upholding admission of statements obtained following period in which the defendant did not want to answer questions and slept while officer remained in room). . . .
  In summary, there was nothing improper about [the investigator's] presence in the room or his silence. At no time did [the investigator] attempt to resume questioning or persuade defendant to speak. Defendant was the one who initiated the conversation about his situation
  My reaction: I don't know of any other cases on this particular technique, but this case has my b.s. detectors going off big time. Imagine you're in a police interrogation room with a police officer sitting three feet away from you, completely silent. Maybe he's staring right at you. Maybe he's staring at a wall. After a few minutes, the silence is likely to become unbearable; you're going to at least ask something general like "what is going on?" But presumably you won't know that this kind of general inquiry was held in Oregon v. Bradshaw to be enough to reinitiate questioning (however persuasively), so you're not going to realize that you've just gone back to Miranda square one.

  Meanwhile, presumably the officer does realize this; presumably he is making you sit there with him in a very uncomfortable situation knowing full well that you're likely to eventually ask what is going on. Cf. Missouri v. Seibert. If the test is whether the police "scrupulously honored" the defendant's choice to remain silent based on the totality of the circumstances, I find it rather hard to believe that this type of technique fits the bill. Perhaps there are previous cases allowing this sort of technique that I just don't know about, but it certainly seems fishy to me.
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Know Your Enemy, Help Friends Know He's Their Enemy, Know Your Enemy's Friends:

If you want to defeat the enemy (e.g., the Iranian regime), it seems to me you should:

1. Know Your Enemy: The more you learn about him, the better you'll be at figuring out his tactical and strategic weaknesses, and those of people like him.

2. Help Friends Know He's Their Enemy: Often, some of your fellow citizens don't grasp how bad your enemy is. If you can get him to indict himself in front of them, they may learn.

3. Know Your Enemy's Friends: Some others among your fellow citizens might underestimate your enemy's dangerousness, because they're unaware of how many people support him. The applause for Ahmadinejad at Columbia, which some have pointed to as evidence of Columbia's error in inviting him, strikes me as quite valuable -- it shows that even in the U.S., Ahmadinejad has supporters, which helps show how dangerous he and his people really are.

Of course, there is a countervailing factor:

4. Avoiding Giving Your Enemy a Chance To Make More Friends: It would be good to avoid giving Ahmadinejad free propaganda opportunities, through which he could mouth friendly-seeming banalities. But it seems to me that the Columbia's World Leaders Forum is in general not a great propaganda outlet -- and this is especially so when President Lee Bollinger asks questions that help show Ahmadinejad's true nature.

So here, even more than in most situations, it seems to me that the interests of giving students more information coincide with the national interest. A commenter to my earlier post writes, "Ahmadinejad is our blood enemy. He should be defeated or, optimally, killed. We waste time that would be better spent accomplishing one or the other by listening to him." I don't think it's either-or -- I think that listening to people like Ahmadinejad, especially in forums such as the Columbia forum, will indeed help us defeat them (and, where helpful and appropriate, kill them).

Related Posts (on one page):

  1. Columbia and the First Amendment:
  2. Know Your Enemy, Help Friends Know He's Their Enemy, Know Your Enemy's Friends:
  3. Ahmadinejad Speech:
  4. Ahmadinejad Speech at Columbia:
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A Voir Dire Blawg Review:

This week's Blawg Review is up at Deliberations, a blog on jury-related issues.

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Energy Prizes Instead of Subsidies:

It is "energy week" at NRO. My first contribution to this series of articles on energy policy is this article arguing that government-sponsored prizes for energy innovation would be more effective than traditional subsidies at encouraging the development of low-carbon-emission energy technologies.

Direct government subsidies are a particularly poor way to encourage innovation. Perhaps it should be possible to direct research and development funds toward the most promising and valuable technological endeavors, but this rarely happens in practice. Government subsidies tend to be dispersed on political criteria, rewarding large, politically connected incumbent firms, rather than innovative upstarts. Failing industrial dinosaurs with lobbyists on the payroll are in much better position to snatch up government goodies than revolutionary thinkers toiling in garages or private labs.

Offering substantial financial rewards for those who develop particular innovations or solve specific problems is a far better way to spur technological innovation and practical scientific research. As the patent system demonstrates, the hope of a large financial windfall is a powerful inducement for innovation, and can encourage many different people with different strategies or insights to tackle a given problem. If climate change is an urgent threat, and the private sector underfunds climate-related research and development, government funding of prizes along the Virgin Earth model could yield substantial returns.

Over at The Corner, Iain Murray makes the point that it is no accident politicians prefer subsidies to prizes, as subsidies facilitate patronage in a fashion that prizes do not. This is one reason that government-sponsored prizes are relatively rare, and a reason why replacing existing subsidies is politically difficult.

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Did NYT Violate Campaign Finance Laws with MoveOn Ad?

Bob Bauer has some interesting thoughts on the legal aspects of the NYT's acknowledgment that MoveOn.Org was not charged the proper rate for its "General Betray-Us" ad at the More Soft Money Hard Law blog.

The campaign finance laws that the Times has so righteously championed have, by its own admission, trapped the paper in a violation. A salesperson got the rate wrong, and though the advertisement is not aimed at an election, does not support a candidate, and does not promote a political party—though its purpose is to weigh in on a debate over national security policy—the discounted price paid by MoveOn is arguably an illegal contribution in kind from the Times to a federally regulated “political committee.” Silly as this may seem, the Times is the last publication in the land to grouse about the madness and injustice of it all.

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Ahmadinejad Speech:

Eugene's right, I do disagree with Columbia's decision to invite Ahmadinejad. That Pres. Bollinger made sure to have the right to questioning him is better than giving him a completely open forum, but it's not enough.

Unlike when I objected last time Ahmadinejad was to visit Columbia, my reason this time is that Ahmadinejad is the head of state of an enemy state, whose armed forces are killing American soldiers with equipment they provide to Iraqi insurgents. That makes Ahmadinejad an enemy of the United States, something that can't be overcome with some questions.

Should an American university care? Or should a university be completely cosmopolitan about such things. In some ways it's a tough call, but ultimately I think that American universities should come down on the side of not giving a respectful forum to our enemies. It's unfashionable in Ivy League circles to talk about such things as enemies, but they do exist. And with Ahmadinejad one can't make the argument that this is just a matter of great power politics or otherwise, an aberration that could be corrected through dialogue. He's an enemy not simply in a current physical struggle, but in an ideological one, as well.

In short, I wouldn't invite Stalin or Mao to Columbia when their forces were directly or indirectly killing Americans in North Korea, and I wouldn't invite Ahmadinejad, either.

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Inartful:

Here's a question that I posed to Erin McKean, and that she graciously agreed to answer in the next few days.

The general question is: How do (and should) lexicographers decide whether to include a word in the dictionary?

The concrete example, contributed by Widener lawprof Ben Barros, is offered by the words "inartful" and "inartfully." Prof. Barros and I were both shocked to learn that the two words weren't in the OED or any dictionary accessible via onelook.com.

Some 20 years ago, William Safire wrote about inartful, and said "it is not a word." But of course that's wrong: It's a word that lawyers use often, though generally without recognizing it as legalese, and that nonlawyers seem to use on occasion as well.

A Lexis search through MEGA;MEGA for inartful! and date(> 1/1/2007) uncovers over 600 uses this year alone. Searches for past uses reveal published cases or summaries of lawyers' arguments using that term dating back to 1832. A search through a database of scanned 1700s English books found references from 1751 (Edward Kimber's The Life and Adventures of Joe Thompson 244 (2d ed.)) and 1759 (Samuel Derrick's [?] A General View of the Stage 26 (1759)). Kimber used it to mean "artlessly," but Derrick used it to mean "unskillfully," which seems to be the dominant modern meaning.

For whatever it's worth, unartful and unartfully do appear in Webster's 1913 Revised Unabridged Dictionary, though Google suggests that unartfully is over 30 times less common than inartfully.

So my questions to Ms. Mckean: Any thoughts on why the word isn't in the dictionaries, how lexicographers would decide whether to include it, and what people should do in the meantime?

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What Do You Call It: From a blog report on Ahmadinejad's visit to Columbia:
Ahmadinejad argues that he should have the chance to ask these questions about the Holocaust without being attacked. "Why should an academic face insults," he asked. "Is this what you call freedom?"
Why, yes.
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Ahmadinejad Speech at Columbia:

Mahmoud Ahmadinejad is a bad and dangerous man, but it seems that Columbia was quite right to have him speak there as part of its World Leaders Forum. Columbia students can benefit from hearing bad world leaders as well as good ones; I'm pretty confident that most of the students in the audience will be able to tell one from the other — and if they're not, then the event offers a great opportunity for them to do so.

If the event were some special honor for the person — as endowed lectures, "visiting public interest mentor" positions, graduation speeches, and the like often are — I would take a different view: A university should not honor the dishonorable. But my sense is that the World Leaders Forum does not carry the university's endorsement of the speaker's moral character, only of his significance on the world stage (which Ahmadinejad regrettably has plenty of).

Incidentally, the blog reports about Ahmadinejad's talk — which I read after I decided to post this — reinforce my view on the subject. It looks like Columbia President Bollinger has forcefully expressed his disagreement with Ahmadinejad, thus reminding people that the invitation didn't constitute endorsement of Ahmadinejad's beliefs.

This may be one of the I realize my friend and coblogger David Bernstein might disagree with me on this, but experienced Volokh Conspiracy readers know that such amicable inter-blogger disagreements happen on occasion.

UPDATE: Stop the ACLU faults a Columbia dean (John Coatsworth) for saying that they'd have invited Hitler, too. The dean said:

If Hitler were in the United States and he wanted a platform from which to speak he would have plenty of platforms to speak from in the United States. If he were willing to engage in a debate and a discussion, to be challenged by Columbia students and faculty, we would certainly invite him.

That seems to me to be an entirely correct attitude. Presumably the discussion here is of the pre-Dec. 1941 Hitler (I take it that he wouldn't have been in the U.S. after war between Germany and the U.S. had been declared). Americans were trying to figure out what to do about Nazi Germany. Hitler indeed would have had lots of opportunities to give propaganda speeches. But if Columbia had an opportunity to help its students see and hear Hitler in person, and hear how he dealt with probing and hostile questions -- such as the questions that Bollinger seems to have addressed to Ahmadinejad -- it seems to me that this would have been a valuable service to Columbia students, and perhaps to the American public more broadly.

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More Criticism of Jeffrey Toobin's The Nine

come from Ed Whelan in the National Review Online, here, here, and here.

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Yale College Student Charged With Voyeurism: A Yale undergraduate has been arrested and charged with criminal voyeurism and dissemination of voyeurism under Connecticut Code § 53a-189a and § 53a-189b for surreptitiously recording himself and his then-girlfriend having sexual intercourse and then showing the video to his roommates. The Yale Daily News explains:
  According to a police affidavit, Desfeux showed the tape — which he told police he made using a built-in camera on his Apple MacBook — to his four roommates. . . . The former girlfriend, also a Yale student, brought charges to prevent the further dissemination of the video around the University or the Internet, according to the police. She found out about the tape after it was brought to her attention by one of Desfeux’s roommates.
  Desfeux told Yale police that the large file size of the 45-minute video prevented him from sending the video to anyone.
  The student's act was cruel, reprehensible, and deeply immoral. It's an egregious violation of her privacy, and I would assume it's a civil wrong entitling the victim to injunctive relief. But was this act also a crime? There is reason to think the answer is no.

  The crime of voyeurism under Connecticut law is a variation on the typical "peeping tom" statute:
A person is guilty of voyeurism when, (1) with malice, such person knowingly photographs, films, videotapes or otherwise records the image of another person (A) without the knowledge and consent of such other person, (B) while such other person is not in plain view, and (C) under circumstances where such other person has a reasonable expectation of privacy, or (2) with intent to arouse or satisfy the sexual desire of such person or any other person, such person knowingly photographs, films, videotapes or otherwise records the image of another person (A) without the knowledge and consent of such other person, (B) while such other person is not in plain view, and (C) under circumstances where such other person has a reasonable expectation of privacy.
  There are a couple of elements that are interesting here, but perhaps the most important one is that the circumstances be one on which the person has a "reasonable expectation of privacy." No Connecticut case has interpreted this language, but it seems likely that it was intended to track the Fourth Amendment "reasonable expectation of privacy" test; in effect, it asks whether the person who conducted the allegedly unlawful monitoring would have needed a search warrant to conduct that monitoring if he had been a police officer. This reading is also suggested by the required "plain view" element of the statute; although an awkward element in this context, the use of a Fourth Amendment term of art adds at least some support for the view that the legislature was trying to adopt the traditional Fourth Amendment standard here. (Note that while some state courts interpret the phrase "reasonable expectation of privacy" differently under state law than federal courts do under the U.S. Constitution, Connecticut is not one of those states.)

  If I'm right about that, then it seems likely that Desfeux did not violate these statutes. As far as we know, Desfeaux was a participant in all of the recordings. He wasn't a "peeping tom" whose presence was unknown but rather a participant whose presence was known but whose recording of the event was unknown. But the U.S. Supreme Court has held that a recognized participant in a conversation or exchange can make a surreptitious recording of it without violating the other person's reasonable expectation of privacy. See United States v. White, 401 U.S. 745 (1971). The basic idea is that a reasonable expectation of privacy is an expectation against people thought to be outside peeping in rather than an expectation against intimates known to be present from being "false friends." Many law professors don't like this rule. But as they say about gravity, it's the law.

  To be clear, I'm not certain a Connecticut court would interpret the statute this way. There are no cases construing the voyeurism law — I believe it was only passed in 1999, and there is only one Connecticut case on Westlaw that even cites it so far — and it's certainly possible that a court would interpret it differently. But to the extent the statute is designed to incorporate the Fourth Amendment standard, I tend to think the student probably did not violate the statute under the reasoning of the Supreme Court's decision in White. Of course, the Connecticut legislature could have drafted the statute clearly to criminalize this conduct. But my best sense is that they haven't done that, at least yet.
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Worn Circuit Boards as Art -- in Airports:

The AP reports:

An MIT student wearing what turned out to be a fake bomb was arrested at gunpoint Friday at Logan International Airport and later claimed it was artwork, officials said.

Star Simpson, 19, had a computer circuit board and wiring in plain view over a black hooded sweatshirt she was wearing, said State Police Maj. Scott Pare, the commanding officer at the airport.

"She said that it was a piece of art and she wanted to stand out on career day," Pare said at a news conference. "She claims that it was just art, and that she was proud of the art and she wanted to display it."

Simpson was charged with disturbing the peace and possessing a hoax device. A not guilty plea was entered for her and she was released on $750 bail....

I'm not sure quite what it means to say that this was "a fake bomb." I haven't seen a photo [UPDATE: thanks to reader rbj, here's a link], and I'm not sure whether the student intended the circuit board to make at least some people think for at least some time that there's at least some chance that the board was part of a bomb. Still, it does sound like the sort of thing that airport security people should investigate, just in case, and the sort of thing that should be prohibited in airports given the disruption that it's likely to cause.

Some people have asked whether bomb jokes of various sorts are constitutionally protected in airports. I think the answer is that they generally can be punished, even if they aren't intended to be threats. They would be false statements of fact said with reckless disregard of the possibility that they would be believed, and would thus fit within the same false statements of fact exception that authorizes punishment of libel, fraud, perjury, false statements to the police, and the like.

True, in most situations jokes are not punishable when it's clear to most people that the statement is probably a joke, and not a factual assertion. That's why parody and humor is protected against (among other things) libel or slander liability even when it's literally false. But in a context where security people have to react even to small risks that a statement is a factual assertion and not a joke, it makes sense to allow the prohibition of even slightly ambiguous jokes.

Here, though, it's not clear whether any such analysis would even be necessary (which is important for the government, since the student might have been subjectively unaware of the risk that her circuit board would be interpreted as part of a bomb; such subjective unawareness of risk would likely take her statement out of the criminally punishable false statements of fact category). Here's a relevant passage from Rumsfeld v. FAIR, the Solomon Amendment case:

Having rejected the view that the Solomon Amendment impermissibly regulates speech, we must still consider whether the expressive nature of the conduct regulated by the statute brings that conduct within the First Amendment's protection. In United States v. O'Brien, we recognized that some forms of "'symbolic speech'" were deserving of First Amendment protection. But we rejected the view that "conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." Instead, we have extended First Amendment protection only to conduct that is inherently expressive....

Unlike flag burning, the conduct regulated by the Solomon Amendment is not inherently expressive. Prior to the adoption of the Solomon Amendment's equal-access requirement, law schools "expressed" their disagreement with the military by treating military recruiters differently from other recruiters. But these actions were expressive only because the law schools accompanied their conduct with speech explaining it. For example, the point of requiring military interviews to be conducted on the undergraduate campus is not "overwhelmingly apparent." An observer who sees military recruiters interviewing away from the law school has no way of knowing whether the law school is expressing its disapproval of the military, all the law school's interview rooms are full, or the military recruiters decided for reasons of their own that they would rather interview someplace else.

The expressive component of a law school's actions is not created by the conduct itself but by the speech that accompanies it. The fact that such explanatory speech is necessary is strong evidence that the conduct at issue here is not so inherently expressive that it warrants protection under O'Brien....

Likewise, it looks like wearing a circuit board would not be treated as "inherently expressive" for First Amendment purposes.

Thanks to Victor Steinbok for the pointer.

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Federal Judges Appointing Prosecutors:

OpinionJournal's Political Diary reports:

[A law] signed by President Bush in the wake of the U.S. attorney controversy limits the service of interim appointments to 120 days. After that, the federal courts can step in and appoint a new interim prosecutor.

In Seattle, that power would be exercised by Federal District Chief Judge Robert Lasnik, a Clinton appointee. The judge is preparing to fill the vacancy on October 12, when the current interim U.S. attorney's tenure expires. The appointments of several other interim U.S. attorneys expire on the same day, with no sign that the White House is preparing to nominate anyone.

How can federal judges appoint prosecutors? Isn't that the Executive's job?

Article II, section 2 of the Constitutions provides that

[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States ...: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

So Congress may never appoint executive or judicial officials, except to agencies that are pretty much purely advisory. But judges may, if authorized by Congress. And while one might think that judicial appointments could only extend to judicial subordinates — and not to quintessential executive officials such as prosecutors — the Constitution's text doesn't so state, and the Court has held that such interbranch appointments are generally permissible. So federal law may indeed provide, as it now does, that a federal court can appoint an interim prosecutor. As I understand it, the controversy over the constitutionality of independent prosecutors revolved chiefly around the President's lack of categorical power to remove such prosecutors; the prosecutors' appointment by a panel of federal judges was not generally seen as constitutionally troublesome.

Federal law also provides that Federal Public Defenders be appointed by the federal court of appeals, though it's not clear to me whether a federal public defender would be seen as an inherently executive branch official the way a federal prosecutor would be.

UPDATE: I at first said only that "no caselaw (to my knowledge) ... holds" that interbranch appointments of prosecutors by judges are unconstitutional; I have since changed this to more firmly make clear that the Court upheld such interbranch appointments. Of course, Morrison v. Olson, which I had mentioned elsewhere in the post, squarely held this; for some reason, I just didn't focus on that when writing the "no caselaw (to my knowledge) so holds" sentence. D'oh. Thanks to Marty Lederman for setting me straight on this.

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[Erin McKean, guest-blogging, September 24, 2007 at 10:57am] Trackbacks
Guestblogging Dictionary Myths:

Part 1: The Myth of the Lexicographer-Judge

What's a dictionary myth? A dictionary myth is something that people believe about dictionaries (and words as they appear in dictionaries) that simply isn't true. They can be semi-harmless dictionary urban legends (like the one that holds that antidisestablishmentarianism is the longest word in the dictionary) or they can be more pernicious, such as the widespread belief that if a word isn't in "the dictionary", it's not a real word.

A little bit more on the pernicious side is the belief that lexicographers -- the folks who edit the dictionary -- are somehow on a higher plane of word usage than the common person, and that they make decisions as to what does and does not enter the hallowed ranks of dictionary-words based on some exquisite aesthetic sense, some finely-tuned Sprachgefühl, a kind of lexical perfect pitch.

This, I hasten to assure you, is flatly not true.

Lexicographers are not the word-judging equivalents of the literary critic or the music reviewer; they're not the curators of the word museum. The lexicographer is, or should be, a scientist-journalist combo. They should research what words are actually being used, how, where, when, and by whom, and then report these facts of usage to the public in a clear, timely, straightforward manner. [Don't worry, we'll discuss what happens when what the lexicographer finds is 'wrong' later this week.]

Of course, the problem with current dictionaries (and pretty much all dictionaries everywhere at all times) is that there are often more words to be reported on than there is space in the printed book. So how to decide which words make it onto the page, and which don't? Lexicographers don't cherry-pick the pretty words, or the words with the best etymologies, or the words that are used in their favorite novels: they pick the words that will be of the most use to the largest group of people. They report 'newsworthy' words, words that they think will have sticking power, words that seem serviceable and sturdy, good for the long haul. (And, let's not forget, because making dictionaries is a commercial endeavor, they also pick words that will get publicity, attract attention, and drive consumers to their product. Those words are the chrome trim on the family sedan.)

Perhaps starting out a week of guest-blogging about dictionaries by undermining my own authority is not the brightest of bright ideas, but I feel curiously compelled to do it. By removing any special glamour from my job -- by making it just a job, and not a calling -- I hope that it will be easier to talk about the underlying data (how we know what we know about words) and to talk about the possible dictionaries of the future, instead of arguing about taste (because, as we all know de gustibus non est disputandum).

Oh, and by the way, the other myth about lexicographers is that we are horrified, appalled, and indeed, quite put out when we see misspellings, nonstandard usages, slang, or informality in general. This is ridiculous -- it's like expecting doctors to faint at the sight of blood. Our usual reaction to a word we haven't seen before (especially slang!) is "ooh, interesting!" We feel the same way about "errors," too, for the most part. Every error, every place where the language system breaks down, is a chance to deduce how language works, in the same way that every neurological injury gives us hints as to how the brain ought to function. So, please, don't let the fear of making a mistake in front of the lexicographer keep you from commenting!

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Lexicographer Erin McKean Guest-Blogging:

I'm delighted to say that Erin McKean will be guest-blogging here this week. Ms. McKean is the Oxford University Press's Chief Consulting Editor for American Dictionaries; the editor in chief of the New Oxford American Dictionary (2d ed.); the author or coauthor of Weird and Wonderful Words, More Weird and Wonderful Words, Totally Weird and Wonderful Words, and That's Amore; and the author of both the Dictionary Evangelist blog and the A Dress a Day blog. She reports that she'll be blogging this week about Dictionary Myths, "the things people fervently believe about dictionaries, but sadly, aren't true."

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Is Neoconservatism a "Jewish" Movement?:

One thing I've noticed roaming around the blogosphere is that most people who use the term "neoconservative" have no idea what it means (or perhaps this means that the word itself is becoming meaningless). I'm especially sensitive to this because as a college student, I for a while considered myself a neoconservative, and I wrote my senior thesis on neoconservatism.

I can't give a whole history of neoconservatism in this blog post, but I can address one issue, whether neoconservatism is a "Jewish" movement.

Some writers use "neoconservative" as a synonym for "right-wing Jewish Likudnik [sic]," especially when talking about neoconservatives who served in the Bush Administration.

In their Israel Lobby book, Mearsheimer and Walt are actually more sophisticated than that. They recognize, for example, that many leading neoconservatives, including the late Jeane Kirkpatrick, James Woolsey, Robert Bartley, John Bolton, and William Bennett, are not Jewish. To that list I'd add, among others, Michael Novak, John Silber (though he has Jewish background), Frank Gaffney, and Frank Fukuyama, before his recent recantation. One of the most influential original neoconservatives, Daniel Patrick Moynihan, should also be on the list, though he later reverted to mainstream liberalism. Even of the important Jewish early neoconservatives, people like Irving Kristol and Daniel Bell had no particular ties to Israel, and the subject dosen't seem to have been of particular interest to them.

Nevertheless, M & W suggest that because Jews make up about 2/3 of prominent neoconservatives, and because neoconservatives are hawkishly pro-Israel, we can assume that neconservatism is a "Jewish" movement (e.g., "Jewish Americans are central to the neoconservative movement" (p. 132), and several later pages where the authors suggest that neocons are part of the "broader Jewish community" e.g., p. 243), and that neocons' hawkish positions on Israel can be traced to their primarily Jewish origins.

There is an exceptional logical flaw in this. Once we acknowledge that around 1/3 of prominent neocons are not Jewish, and that these neocons share the Jewish neocons' general position on Israel (not to mention that some of the Jewish neocons, like Wolfowitz, are significantly more dovish on Israel than most Gentile neocons), the question is, why attribute the neocons' views on Israel to their Jewishness? After all, neoconservatism is generally hawkish, on everything from Taiwan to Bosnia, going back to opposing the Panama Canal Treaty, and opposition to SALT I and II negotiations with the Soviets. Clearly, being hawkishly pro-Israel fits directly in with this ideology. Plus, the neocons share a disdain for Great Society domestic programs, but, unlike many other conservatives, a fondness for FDR, Truman, and the New Deal. That seems to have nothing to do with being Jewish. What does the Weekly Standards' neocon "national greatness conservatism" have to do with "Jewish?"

Ahh, you might say, but what about the fact that 2/3 of neocons are Jewish? Well, Richard Posner, in his book Public Intellectuals, notes that of around 600 leading public intellectuals, approximately 50% of Jewish. 66%, then, is well within the general stats for public intellectuals, especially if you consider that Jews are going to be severely underrepresented among some categories of public intellectual, like the (Pat) Buchananites, the Phyllis Schlaflyites, left-wing anti-globalists, and others.

Jews, indeed, are often represented at levels above 66% in intellectual movements. Consider leading American libertarians between, say, 1950 and 1980. By common consent, the greatest libertarians of this time period were Rand, Von Mises, Hayek, and Friedman--3 out of 4 (all but Hayek) Jews. If you look at second-tier libertarians, the next group would have to include Nozick and Rothbard, and, in the 50s, perhaps Chodorov. Then you have the whole Ayn Rand circle (the Brandens, Greenspan, et al.), Israel Kirzner, Gary Becker, Richard Posner, Aaron Director, Julian Simon, Sam Peltzman, and so on.

I think it's fair to say that at least on the intellectual level, for quite some time libertarianism was virtually dominated by Jewish thinkers, and they are still well overrepresented in those circles (consider the authors of this blog). That doesn't make libertarianism a "Jewish movement."

For that matter, in the 1960s, about half of all leading activists (think Abbie Hoffman, Jerry Rubin) were Jewish, but the peace movement wasn't a "Jewish" movement. The leadership of the ACLU has been at times overwhelmingly Jewish, but that doesn't make the ACLU a "Jewish" organization. If you look at Brian Leiter's list of the most cited law faculty, you will find that seven of the top eight are Jews. The same is true for the younger cohort of most cited scholars. Jews, in general, are well-overrepresented on the faculties of top law schools, and especially in the field of constitutional law. That doesn't make constitutional law a "Jewish" field.

One could go on in a similar vein, but the point by now should be clear: Jews are extremely prominent in various intellectual fields and movements, and the fact that they happen to constitute 2/3 of neoconservatives doesn't mean that neonconservatism is "Jewish" in the sense that as a movement its goal is advance specifically Jewish goals, any more than libertarianism, ACLUism, etc., are Jewish. Obviously, there are cultural and historical reasons why Jews are more attracted to libertarianism, or the ACLU, or neoconservatism, than they are, to say, Pat Buchanan-style conservatism, or Quaker-influenced peace movements. But to say that Jews are more likely to find a particular ideological movement intellectually and socially congenial is very different than saying that the movement is a "Jewish" one in any meaningful sense.

In short, M & W (and many others) think that because Jews are 2/3 of neoconservatives, and neoconservatives are pro-Israel, that neoconservativism as an ideology is motivated by pro-Israel sentiment. My take is that by random chance, a prominent intellectual movement like neoconservatism will have around 50% Jews among its leaders. If the movement is one that is socially and culturally congenial to Jews, as neoconservatism, among others, is, the percentage will be higher. But there is no good reason to use "neoconservative" as a synonym for "pro-Israel Jew", any more than there is good reason to use "civil libertarian" as synonym for "secularist Jew."

Caveat: One of the founders of neoconservatism, Norman Podhoretz, was clearly put off by the 60s' lefts' hostility to Israel. But he was also put off by their support of racial preferences in the guise of affirmative action, their hostility to America and sympathy with the Viet Cong, their perceived libertinism, etc. It's not that the attraction of neoconservatism has nothing to to with neoconservatives' Jewish background, any more than the attraction of ACLUism has nothing to do with leading ACLUers Jewish backgrounds. Rather, it's that the ideology itself broadly transcends any specifically Jewish concerns, has appeal to many non-Jews, is not thought of by its adherents as being a specifically Jewish movement, and would inevitably attract a large percentage of Jews even if Israel didn't exist. To put it another way, if Israel suddenly was at complete peace with its neighbors and was no longer an issue of foreign policy concern, I would bet that all of the Jewish neoconservatives would remain neoconservatives, and continue to promote neoconservative views on foreign and domestic policy.

77 Comments

Why Mandatory "National Service" Proposals Target the Young:

One of the most interesting (and in my view sinister) aspects of proposals for mandatory "national service" is that they virtually always target only the young, usually 18-21 year olds. This might be understandable if the proposals were limited to military service. But most current proposals (including those by Charles Rangel, John McCain, Bill Buckley, DLC President Bruce Reed [not clear if the organization as a whole endorses his plan] and Rahm Emmanuel noted in my last post), incorporate civilian service as well. When it comes to office work and light menial labor, there are many elderly and middle-aged people who can do the job just as well as 18-21 year olds can, if not better.

Indeed, the moral case for conscripting the elderly for civilian service is arguably stronger than that for drafting the young. Many elderly people are healthy enough to perform nonstrenuous forms of "national service." Unlike the young, the elderly usually won't have to postpone careers, marriage, and educational opportunities to fulfill their forced labor obligations. Moreover, the elderly, to a far greater extent than the young, are beneficiaries of massive government redistributive programs, such as Social Security and Medicare - programs that transfer enormous amounts of wealth from other age groups to themselves. Nonelderly poor people who receive welfare benefits are required to work (or at least be looking for work) under the 1996 welfare reform law; it stands to reason that the elderly (most of whom are far from poor) can be required to work for the vastly larger government benefits that they receive. Middle-aged people are also not obviously inferior candidates for civilian "national service" than the young. I know I could do most kinds of service better today than when I was 18. To be clear, I am not arguing for imposing forced labor on the elderly or the middle-aged; but I do believe that doing so would be no worse than imposing that burden on the young.

Why then the focus on the young? I suspect it is because they are politically weak. Research shows that 18-21 year olds are less likely to vote, less likely to engage in political activism, and have lower political knowledge levels than any other age group (see e.g. - this book). Obviously, they also have less money, make fewer campaign contributions, and are least likely to actually hold positions of power in government. The AARP would crucify any politician who had the temerity to suggest that the elderly be required to do forced labor. Unfortunately, the young lack that kind of power.

At this point, I know some moralists will claim that the young "deserve" any political setbacks they suffer because they don't participate in politics enough. Such arguments overlook the obvious fact that many of the political disadvantages of the poor (e.g. - lack of money, lack of access to political office, lack of experience) are ones that they can't easily offset. And whatever the validity of the general view that the young should spend more time on political activity, I hope we can agree that forced labor is not a proper punishment for spending too little time on politics.

103 Comments

Sunday, September 23, 2007

A Pet Peeve--DC Rabbis Blathering About Politics:

Ilya's post on rabbis' (and other clergypeople's) economic ignorance reminds me of one of my pet peeves, D.C. area rabbis who give overtly ideological sermons on general political topics like gun control, environmental issues (see Sam Kazman's post My Green Rosh Hashannah), and the like.

Put aside the issue of whether such sermons are appropriate as a general rule, and whether rabbis are completely miscontruing the concept of "tikkun olam" when they claim a special Jewish interest in such issues under that heading; I have a narrower complaint. In the D.C. area, no matter how much any given rabbi studies up for a sermon on, say, the living wage movement, immigration reform, or national health insurance, there are always going to be hundreds of individuals far more knowledgeable on the topic available as guest speakers. Indeed, in many cases one or more real experts will be in the chapel as the rabbi gives a rather ignorant talk on the subject (I've found myself in that position, once).

In short, why would I go to a synagogue to hear a rabbi speak about, say, the prospects for U.S. intervention in Darfur, when I could attend a speech by a real expert at Brookings, SAIS, or some other DC venue? If the rabbi has some wisdom to impart regarding how Jewish law and/or tradition specifically speaks to the topic of his sermon, that's another story. But in my experience, most of these sermons are more akin to a bad op-ed written for a general interest newspaper, and can only be attributed to some combination of laziness (much easier to write up a quick talk on gun control than the philosophy of the RAMBAM); pandering to the overwhelmingly liberal congregation; misusing the pulpit, in a rather inefficient way, to further one's own political ideas; and rabbinical frustration at not being a real "player" in DC.

Related Posts (on one page):

  1. A Pet Peeve--DC Rabbis Blathering About Politics:
  2. Law and Economics Training for Religious Leaders:
63 Comments

TalkLeft on the "Jena 6": Over at TalkLeft, Jeralyn Merritt has a very helpful post on what we know — and what we don't — about the "Jena 6" controversy. Based on her summary, it looks like we don't yet have clear evidence of racial discrimination in the charging decisions. There were two charging decisions that seem questionable, but we don't yet have the context to know why they were made. Perhaps we'll get that evidence in time, but I don't think we have it yet.

  I realize that some will find this terribly naive, on the theory that in our gut we all know what was happening (a reaction that explains posts like this). But I'd rather go on evidence than our gut feelings on this one, especially given how many people are trying to get to the bottom of the facts.
41 Comments

The Threat of Forced Labor Through Mandatory "National Service":

At the always fascinating Becker-Posner Blog, Richard Posner and Gary Becker each have excellent posts critiquing proposals for mandatory "national service." As Posner points out:

There are perennial calls for drafting all 18 year olds to serve in either the military or some civilian alternative. Congressman Charles Rangel has repeatedly introduced bills in Congress (the "Universal National Service Act") that would do this. The bills have never come close to passage, and are unlikely to in the future even with Democratic control of both houses of Congress. But universal national service is one of those seductive ideas that refuse to die completely.

Rep. Rangel is not the only supporter mandatory national service. Other advocates include prominent Democratic Congressman Rahm Emanuel, the center-left Democratic Leadership Council, Republican presidential candidate Senator John McCain, and conservative icon Bill Buckley.

Becker and Posner do an excellent job of marshaling the consequentialist economic arguments against mandatory "national service." I would only add that advocates of this policy implicitly assume that whatever jobs the governments assigns to program participants actually will benefit the nation as a whole. That assumption is unlikely to be true, given what we know about the power of narrow interest groups to divert government resources for their own benefit.

Be that as it may, there is a deeper moral issue here: mandatory national service is not just an inefficient policy proposal, it is forced labor. And forced labor on a massive scale. Most proposals would require millions of young people to do compelled work at the behest of the government for one to two years each. Even in the unlikely event that mandatory national service could be shown to provide benefits that outweigh its costs, it would still be morally repulsive. It would still strike at the heart of the liberal idea that each person owns his or her own body, and cannot justly be compelled to work for others merely because it might be convenient to do so. Short of outright slavery or the murder of innocent people, it is hard to think of anything that violates individual liberty more clearly than forced labor.

The rhetoric of "national service" obscures the true nature of the idea, perhaps intentionally. It suggests that forced labor at the orders of the government ("national service") is somehow morally different from forced labor at the behest of other private individuals. But there is no intrinsic moral difference between the two. Yes, forced labor for the government might benefit the nation (though that result is by no means guaranteed). But so could forced labor for a private enterprise. Indeed, even outright slavery was regularly defended on the grounds that the labor of slaves produced valuable benefits to society as a whole.

As Posner points out, there is little chance that Congress will enact a forced labor program in the near future. In the long-term, however, I fear that constant advocacy of the idea will erode our moral resistance to it, and that some crisis may occur that will enable the proposal to go through. The fact that it continues to attract the support of savvy politicians like Emanuel, Rangel, and McCain, suggests that it has some legs. And once enacted, a forced labor program may be very difficult to repeal. Both government and (possibly) private enterprises will become dependent on these "low cost" (from their perspective) workers, and will lobby hard to avoid having to give them up. Moreover, government forced labor programs tend to target the young (usually 18-21 year olds), a group with very little political power; this factor also makes them difficult to abolish. For these reasons, among others, mandatory "national service" remains in force in France and Germany, despite the disappearance of the security threat from the Soviet Union that originally justified it.

We may not be able to completely eliminate the danger of forced labor. But we should at least recognize that forced labor is not only inefficient, but a great moral evil.

53 Comments

Sunday Song Lyric: In celebration of its 40th anniversary, the American Film Institute has revised its list of the 100 greatest American films (reg. req'd). It has also compiled a series of other lists, including the 100 greatest movie songs. "Over the Rainbow" from the Wizard of Oz tops the list, and it is hard to quarrel with that selection. Still, I prefer the tune that came in second, "As Time Goes By," from Casablanca. Interestingly enough, the song was not written for the movie, and the version featured in the movie was never released as a single. Still, it is hard for me to associate the song with anything else. It simply belongs at Rick's.

I suspect many readers are already familiar with the lyrics. Nonetheless, here are the opening verses:

You must remember this
A kiss is still a kiss, a sigh is just a sigh
The fundamental things apply
As time goes by

And when two lovers woo
They still say, "I love you"
On that you can rely
No matter what the future brings
As time goes by.
A Casablanca-based video of the song is on YouTube here.
23 Comments

Law and Economics Training for Religious Leaders:

My undergraduate classmate and University of Missouri antitrust scholar Danny Sokol suggests that rabbis who preach on public policy issues could benefit from training in law and economics:

Jews around the world have taken tikun olam [the religious duty to "repair" and improve the world] to heart and historically we have been at the forefront of social movements far disproportionate to our small numbers . . . I think about this in part because as someone teaching a law and economics course semester, I think back to one of the founders of the law and economics movement - Henry Manne [ed. note: Manne is a former Dean of George Mason Law School]. One of Manne's many great accomplishments was to introduce law and economics to a wider audience of law professors and practitioners. It seems to me, based on years of hearing sermons from various Rabbis, that the Rabbinate in general could use some law and economics training. Most sermons lack any semblance of understanding of economics, particularly those that address issues of tikun olam. I would love for Manne to come out of his Florida retirement to conduct law and economics workshops for clergy. Law and economics training could help Rabbis to understand how economic incentives work and how these incentives help to shape law and policy and vice versa...

In August, Notre Dame professor and Catholic legal theorist Rick Garnett made a related point in criticizing Pope Benedict XVI's apparent plan to issue an encyclical condemning tax evasion for denying revenue needed by "society as a whole" and contributing budget deficits, while ignoring the much greater comparable effects of excessive and wasteful government spending.

More generally, it seems to me that many religious leaders who pronounce on public policy tend to reflexively favor increasing the role of government with little consideration of ways in which the interventions they favor might have perverse results, or ways in which social problems can be alleviated by reducing the role of the state instead of increasing it. Left-wing clergy seek to increase the role of government in fighting poverty, discrimination, and the like, while right-wing ones tend to focus their political energies on promoting "morals" regulation. This may well be painting with too broad a brush, and I'm sure there are religious leaders who are exceptions to this generalization. Nonetheless, it seems to me true as a general pattern (though I welcome correction by anyone who has compiled systematic data).

Learning basic law and economics won't necessarily turn religious leaders into libertarians. But it might give them a greater appreciation for markets, and engender at least a modest skepticism towards government. There are, to be sure, many clergy who don't make a practice of preaching on public policy issues. Danny's argument (or at least mine) doesn't apply to them. But it surely does apply to the many who do.

By the way, I have no doubt that the public policy pronouncements of leaders of atheist organizations often display just as little knowledge of economics as those of clergy. However, few people (even among atheists) give credence to the public policy views of atheist spokesmen merely because of their status as leaders of atheist organizations. By contrast, many religious people do take seriously the public policy pronouncements of their clergy, especially when those pronouncements are linked to religious duties such as Tikkun Olam.

Related Posts (on one page):

  1. A Pet Peeve--DC Rabbis Blathering About Politics:
  2. Law and Economics Training for Religious Leaders:
106 Comments