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Friday, October 12, 2007

Is It Easier To Get Forgiveness than Permission?

Maybe sometimes, but not when it comes to using copyrighted works that are owned by two or more people. You can get a nonexclusive license up front from just one of them, without the others' permission. But once you infringe you can't get a retroactive license from just one -- you'd have to get forgiven by all of them.

So held the Second Circuit last Friday, in Davis v. Blige. On the other hand, forgiveness for having invented COBOL should be very hard to get.

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Cruel and Unusual Punishment:

Thomas v. Baca, 2007 WL 2758741 (C.D. Cal. Sept. 21), holds that the L.A. County Jail's practice of having many inmates (pre-trial detainees and post-conviction prisoners) sleep on mattresses on the floor violates the Cruel and Unusual Punishment Clause (as to prisoners) and the Due Process Clause (as to detainees).

Interestingly, though, the finding wasn't based on a conclusion that such a practice caused unacceptable physical discomfort, or hygiene problems. Rather, it seems that the court thought that requiring people to sleep on mattresses (presumably with adequate other bedding) rather than on bunks was just an unacceptable indignity:

[T]he Court finds that requiring inmates to sleep on the floor deprives them of a minimum measure of civilized treatment and access to life's necessities because access to a bed is an integral part of the “adequate shelter” mandated by the Eighth Amendment. The “routine discomfort inherent in the prison setting” may not state a constitutional claim, but depriving inmates of beds goes deeper. The Constitution clearly does not allow prisoners to suffer the deprivation of adequate food or water. Just so, prisons may not deprive those in their care of a basic place to sleep -- a bed; for like wearing clothing, sleeping in a bed identifies our common humanity.

That many individuals, for cultural or health reasons, choose to sleep on the floor in no way detracts from this point. A predilection for camping under the stars or the soothing touch a hard futon may have on a sore back is entirely different in kind from stripping an individual of the option of using a bed. Quite simply, that a custom of leaving inmates nowhere to sleep but the floor constitutes cruel and unusual punishment is nothing short of self-evident.

The Court is not alone in finding that a minimum degree of civilized conduct demands such a conclusion. In Lareau v. Manson, 651 F.2d 96, 107-08 (2d Cir.1981) (emphasis added), for example, the Second Circuit affirmed the district court's ruling that “forcing men to sleep on mattresses on the floors” violates the Eighth Amendment because it does “not provide minimum decent housing under any circumstances for any period of time.” Similarly, the Third Circuit, in holding that a county's remedial plan to improve conditions in its jail would satisfy Eighth and Fourteenth Amendment requirements of adequate shelter if, inter alia, it provided inmates with “bunk-type beds of their own,” characterized forced floor-sleeping, even with mattresses, as an “unsanitary and humiliating practice.” Union County Jail Inmates v. Di Buono, 713 F.2d 984, 996, 1001 (3d Cir.1983); see also Lyons v. Powell, 838 F.2d 28, 30 (1st Cir.1988)(holding that floor-sleeping with mattress stated cognizable Fourteenth Amendment violation); Anela, 790 F.2d at 1069 (same, in light of Lareau and Union County); Albano v. Mitchell, No. C 97-3781, 1998 WL 101743, at *1 (N.D.Cal. Feb.24, 1998) (unpublished) (noting that allegations of floor-sleeping “may be sufficient to implicate denial of the minimum civilized measures of life's necessities”); Loya v. Bd. of County Comm'rs, No. CV 91-216, 1992 WL 176131, at *2 (D.Idaho May 4, 1992) (unpublished) (noting its own previous holding that “sleeping on the floor is constitutionally prohibited”); Balla v. Bd. of Corr., 656 F.Supp. 1108, 1114 (D.Idaho 1987) (enjoining floor-sleeping and characterizing it as “dehumanizing, intolerable and certainly of no penological benefit”); Capps v. Atiyeh, 495 F.Supp. 802 (D.Or.1980)(holding that overcrowded conditions which led to practices including floor-sleeping violated the Eighth Amendment); Stewart v. Gates, 450 F.Supp. 583, 588 (C.D.Cal.1978) (holding floor-sleeping unconstitutional).

The basic humanity inherent in providing access to a bed highlights the practice of forced floor-sleeping as one of the unconstitutional effects of prison overcrowding.... [O]vercrowding “may dilute other constitutionally required services such that they fall below the minimum Eighth Amendment standards, and it may reach a level at which the shelter of the inmates is unfit for human habitation.” IdForcing inmates to sleep on the floor stoops to that unconstitutional level.

International guidelines support this basic right. See, e.g., Roper v. Simmons, 543 U.S. 551, 578, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (considering “international opinion” in Eighth Amendment analysis); Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (same). For example, the United Nations Standard Minimum Rules for the Treatment of Prisoners, which contain guidelines regarding confinement conditions and set forth minimum acceptable prison conditions, provide that “[e]very prisoner shall, in accordance with local or national standards, be provided with a separate bed, and with separate and sufficient bedding which shall be clean when issued, kept in good order and changed often enough to ensure its cleanliness.” United Nations Standard Minimum Rules for Treatment of Prisoners, E.S.C. Res. 663 C (XXIV), U.N. ESCOR, 24th Sess., Supp. No. 1, ¶ 19, U.N. Doc. E/3048 (1957) (amended 1977) (emphasis added); see Lareau, 651 F.2d at 106 (relying on these standards in assessing the meaning of “adequate shelter” and holding floor-sleeping unconstitutional).

It sounds like there is indeed precedent for the court's decision (though I haven't myself read the lower court cases that the opinion cites, I have no reason to doubt the court's summary of the cases). But isn't this a strange result? Is the presence or absence of a bunk (not of a moderately comfortable place to sleep, but a bunk as such) really a question of constitutional dimension? Even accepting the Court's holdings that the Cruel and Unusual Punishment Clause applies to conditions of confinement, is placing mattresses on the floor really constitutionally "cruel"?

In any case, this isn't my core area of expertise, so perhaps I'm missing something here; still, the case seemed worth mentioning to our readers.

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"A Well-Regulated Militia, Being Necessary to the Security of a Free State":

I've been recently looking at some 18th century documents, and I've been struck by how common this phrase and its cousins were throughout the 1700s. It certainly wasn't just an invention of the Revolutionary Era; for instance, a New York statute of July 24, 1724 was entitled "An Act for Settling and Regulating the Militia in this Province, and making the same Useful for the Security and Defence thereof, and for Repealing all other Acts relating to the same," and began:

Whereas an orderly and well disciplin'd Militia is justly esteemed to be a great Defence and Security to the Wellfare of this Province ....

(Spelling from a 1726 edition that I found in a proprietary database; the link I give in this post is to a 1894 edition.) The Act proceeded to define the militia as "every Person from Sixteen to Sixty Years of Age, residing within this Province" (though this might have been understood as being limited to men, and possibly free men); to provide how the militia was to be equipped; to mandate musters; to provide for the promulgation of articles of war; to provide for penalties for those members who didn't comply; and the like.

I express no opinion here about how this bears on Second Amendment debates -- I just want to highlight that the prefatory clause had a well-settled and familiar history to the Framers.

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Affirmative Action for Conservative Academics?

Harvard economist Greg Mankiw notes the mounting evidence that conservatives are underrepresented in academia, and suggests a possible remedy (without necessarily endorsing it):

Question to think about: If right-wingers are underrepresented in universities relative to the population and discriminated against by the left-wing majority, as Larry [Summers] suggests, should there be affirmative action for right-leaning academics? It seems that, on principle, those on the left (who favor affirmative action to promote diversity and correct past injustice) should endorse such a university policy, and those on the right (who more often oppose affirmative action) would be against.

The underrepresentation of conservatives (and, I would add, libertarians) is almost certainly not all due to ideological discrimination. But evidence suggests that discrimination is probably at least a part of the story. In this excellent Econlog post, economist Bryan Caplan explained why ideological discrimination is more likely to flourish in academia than in most other employment markets. Even aside from discrimination, the ideological homogeneity of much of academia causes a variety of problems, such as reducing the diversity of ideas reflected in research, skewing teaching agendas, and generating the sorts of "groupthink" pathologies to which ideologically homogenous groups are prone.

However, whether or not the discrimination is the cause of the problem, affirmative action for conservative academics (or libertarian ones) is a poor solution. Among other things, it would require universities to define who counts as a "conservative" for affirmative action purpose, a task that they aren't likely to do well. Affirmative action for conservatives would also give job candidates an incentive to engage in deception about their views in the hopes of gaining professional advancement. Moreover, conservative professors hired on an affirmative basis despite inferior qualifications would find it difficult to get their ideas taken seriously by colleagues and students. They might therefore be unable to make a meaningful contribution to academic debate - the very reason why we want to promote ideological diversity in hiring to begin with.

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British High Court decision on "An Inconvenient Truth":

On Wednesday, a judge of the United Kingdom's High Court of Justice, Queen's Bench Division, issued a ruling in a challenge to the use of Al Gore's film "An Inconvenient Truth." The judge ruled that, under British education law, the film was "partisan" and could not be shown to students without presentation of different viewpoints. The decision listed nine major factual errors in the film. The judge noted that, as a result of the suit, the British education authorities have already agreed to address the factual errors, and to present other views. Thanks to the Heartland Institute, in Chicago, for its posting of the full text of the decision. (BTW, I will be speaking about the Microsoft case and its implications for future government control of the digital economy, at Heartland's Emerging Issues Forum on October 25.)

And kudos to Great Britain's "The New Party" for bringing the case. (Not that all of The New Party's ideas are good; they want property forfeiture laws which put the burden of proof of innocence on the property owner.)

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Ninth Circuit Agrees to Rehear the Roommates.com Case En Banc.

More details, if I can think of any, later today.

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Law Review Write-On Competition Success Story:

A student, who asked that his name not be used, writes (paragraph break added):

[I]n the week before the [transfer student] law review competition, I noticed your book in the library [Academic Legal Writing] and spent some time reading it. At my previous school, I performed horribly on the law review competition, and was looking for any advice on how to turn things around.

I changed my habits during the competition in line with the advice in your book. Most importantly, I took extra time to edit, and to do the bluebooking section anew four separate times over the course of the week.

The advice in your book, combined with some time reading the sample packets on reserve helped solidify in my mind what I needed to do to write a successful competition packet. It paid off, and I was one of three transfers to be admitted to the law review.

Naturally, I'm delighted to hear this.

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Man in Full Workout Scene:

A classic text among those of us who work in the bankruptcy world is the legendary chapter "The Saddlebags" from Tom Wolfe's book A Man In Full. The chapter describes with Wolfe's typical style the workout negotiations of a commercial real estate deal gone south. The language is spicy but the mental image is hilarious and compelling.

I just discovered that scene is available as a book excerpt on line here. Enjoy, if this is your sort of thing. (I should add, keep in mind that this is a work of literature, so I mean "enjoy" in a Tom Wolfe over the top sort of way.)

The excerpt reminds me of a story back when I was in practice (perhaps apocryphal). As the story goes, the bankruptcy lawyers were constantly bugging the real estate lawyers to introduce us to their contacts at the banks so that the bankruptcy lawyers could develop client contacts inside the bank. Finally one of the real estate guys fessed up, "Look, taking you guys to a real estate closing is like taking a divorce lawyer to a wedding. The last person you want to meet is a bankruptcy lawyer when you've just signed a deal." A funny line, the spirit of which is captured in "The Saddlebags."

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In Defense of the Office of Legal Counsel: This interesting letter to the editor appeared today in the Washington Post (via Howard). There isn't much there in the way of content -- given that this is only a letter to the editor and many of the details are classified, that isn't unexpected -- but the fact that the group felt motivated to object to the earlier Post editorial (and thus, indirectly, this NYT story) seems notable. Or at least it seems that way to me, in part because I know and trust a number of the individuals represented by the letter.
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Curious About the "Peace" Prize:

What are the official criteria used to determine the recipient of the Nobel Peace Prize? I couldn't find any information about this on the Nobel website, and all I can get from Wikipedia is that "according to Nobel's will, the Peace Prize should be awarded 'to the person who shall have done the most or the best work for fraternity between the nations, for the abolition or reduction of standing armies and for the holding and promotion of peace congresses.'"

Obviously, I'm wondering about what strikes me as the rather indirect relationship between raising the world's consciousness about climate change and promoting peace.

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Al Gore Wins Nobel Peace Prize: News report here. I predict the U.S. Supreme Court will reverse and award the prize to Bush in a 5-4 vote.
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Some Fairness Doctrine History:

You may have seen snippets of this account before, as I have; here, though, is a pretty substantial excerpt, from Fred W. Friendly, The Good Guys, the Bad Guys and the First Amendment, pp. 39-42 (1975):

Bill Ruder, an Assistant Secretary of Commerce in the Kennedy years and an acknowledged leader in public relations, says frankly, "Our massive strategy [in the early 1960s] was to use the Fairness Doctrine to challenge and harass right-wing broadcasters and hope that the challenges would be so costly to them that they would be inhibited and decide it was too expensive to continue." ...

[Arthur Larson, chair of NCCR, one of the groups used for this purpose], who had long been a target of the radical right, recalls his role in the NCCR with embarrassment. "The whole thing was not my idea," he says, "but let's face it, we decided to use the Fairness Doctrine to harass the extreme right. In the light of Watergate, it was wrong. We felt the ends justified the means. They never do." ...

In retrospect, [Martin E.] Firestone, now a prominent Washington communications lawyer representing station owners -- a number of whom would want him to help repeal the Fairness Doctrine -- admits, "Perhaps in the light of Watergate, our tactics were too aggressive, but we were up against ultra-right preachers who were saying vicious things about Kennedy and Johnson." ...

Whatever lessons hindsight has taught, this campaign in 1964 against right-wing broadcasts was at the time considered a success by its creators. In a summary written during the closing days of the presidential election, Firestone pointed with pride to 1,035 letters to stations that produced a total of 1,678 hours of free time from stations carrying McIntire, Dean Manion and Smoot. Both he and [Wayne] Phillips felt a genuine sense of accomplishment.

In a report to the Democratic National Committee, Phillips wrote: "Even more important than the free radio time was the effectiveness of this operation in inhibiting the political activity of these right-wing broadcasts ..." In a confidential report to Phillips and the DNC, Firestone stressed the nature of the campaign that "may have inhibited the stations in their broadcast of more radical and politically partisan programs." ... "... Were our efforts to be continued on a year-round basis, we would find that many of these stations would consider the broadcasts of these programs bothersome and burdensome (especially if they are ultimately required to give us free time) and would start dropping the programs from their broadcast schedule."

So it sounds like the Fairness Doctrine didn't just have the potential for deterring controversial speech -- its users, including its most sophisticated, well-organized, and politically well-connected users, saw the potential and deliberately used the Doctrine for this very purpose. Seems pretty likely that the same thing will happen if the Doctrine were resurrected, though the Internet should make it easy to mobilize many more than 1000 letters of complaint.

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Atheism and Proselytization:

David's post about Christianity, Judaism, and proselytization gives me an opportunity say a few words about the interesting subject of whether atheists should proselytize for their position. The strong pro-proselytization stance of atheist writers such as Christopher Hitchens and Richard Dawkins leads many people to assume that proselytization is an inherent requirement of atheism, or at least that most atheists put a high priority on persuading theists of the nonexistence of God. Neither claim is true. The majority of atheists have little or no commitment to proselytization. And to balance Hitchens or Dawkins, there are atheist philosophers such as Michael Martin, who defend "friendly atheism" - a generally nonconfrontational approach to theists (for those who may not know; Martin is one of the most important contemporary philosophers of atheism).

Believing that God doesn't exist does not commit the atheist to also believing that it is important to convince others of this truth. There are many false beliefs out there; we can't make a priority of changing all of them. Many are better left alone because they cause no harm or because our time and effort is best devoted to other matters.

One possible justification for atheist proselytization is that religious beliefs are often used to justify harmful practices. For example, various religions have defended slavery, sexism, racism, and religious intolerance. This is true enough. But the same can be said for various secular ideologies that have also promoted injustice. One of the weaknesses in Dawkins' and Hitchens' claims that theism is a uniquely dangerous source of harmful beliefs is their failure to come to grips with the record of harmful nonreligious ideologies such as communism and fascism (note that "nonreligious" does not equal "atheistic" - most fascists, for example, were theists; it merely means that religion is not an essential part of the ideology).

Atheists can and should oppose harmful religious beliefs. But they should also oppose harmful nonreligious ideologies. Belief in God does not in and of itself commit the theist to supporting injustice, anymore than rejection of that belief commits an atheist to any particular ideology or moral system. Atheists (and theists) should make it a priority to reduce the influence of dangerous religious ideologies such as radical Islamism. That is not the same thing as putting a high priority on reducing belief in God in and of itself. If adherents of radical Islamism abandon their views in favor of atheism - as Ayaan Hirsi Ali courageously did - well and good. But the same practical results could be achieved if they instead embrace a more liberal and tolerant version of Islam.

The key point is that one does not have to be an atheist to be a moral person or to oppose injustice. Atheism is neither a necessary nor a sufficient prerequisite for either.

An alternative justification for atheist proselytization is that religious belief can impose unnecessary costs even when it doesn't lead to any coercion or injustice. For example, some theists obey strict dress codes and dietary laws out of what atheists must regard as a mistaken belief that they have been ordered to do so by God. Persuading these people of the validity of atheism would free them of unnecessary burdens. In some cases, it could even radically transform their lives for the better. Consider the case of Hirsi Ali and other women who come to reject religious doctrines that justify drastic (even if voluntary) restrictions on the role of women in society. Here too, however, the problem is not belief in God in itself, but the theist's secondary beliefs about what kind of behavior God commands. The latter, not the former, should be the primary target of reformers. Moreover, most voluntarily accepted religious burdens don't exactly rank high on the scale of serious social problems. We have vastly more important fish to fry than the possibility that Jews who keep Kosher are needlessly foregoing the chance to dine on lobster.

Finally, it is worth mentioning that aggressive proselytization could damage our image and our relationship with theistic groups, many of which have a lot more political power than we do. This would be a risk worth taking if proselytization were a vital moral imperative. But since it isn't, the pragmatic dangers of overly aggressive proselytization should not be ignored. I don't myself believe that aggressive proselytization (of either the atheist or the theist variety) is morally reprehensible. But I'm in the minority on that point. There is no reason to needlessly antagonize those who think otherwise.

My bottom line: Atheists should not hesitate to defend the validity of their beliefs when challenged. And we should actively combat anti-atheist prejudice and discrimination. But I don't see any compelling reason to make a priority of atheist proselytization.

Related Posts (on one page):

  1. Atheism and Proselytization:
  2. Ann Coulter, Christian Chauvinist:
104 Comments

Thursday, October 11, 2007

Ann Coulter, Christian Chauvinist:

Ann Coulter is taking a lot of flack for saying that Jews should convert to Christianity, and that they need to do so to be "perfected." Some, including the talk show host who was interviewing her, suggest that her comments were anti-Semitic. I don't think so, they reflected chauvinism about Christianity, not hostility to Jews. I'm sure Coulter would say that Muslims, Buddhists, Zoroastrians, and everybody else should also become Christians. It was the interviewer who, when Coulter suggested she'd like all Americans to be Christians, specifically asked about Jews.

In any event, my understanding is that the official position of the Catholic Church until Vatican II was that to be "saved" Jews needed to convert to Christianity, and that this remains the official position of some, but not all, Protestant denominations. As a Jew, this doesn't bother me in the least, so long as my non-Christian status doesn't lead to discrimination, but is merely a matter of theological dispute. If Christianity is a proselytizing religion that believes that all people should become Christians because that's what God wants, and that Jews are not exempted from that general principle, why should I care? Christians don't have to think my religious tradition is valid, just so long as they don't make me wear a yellow star or ban me from owning land (common medieval restrictions on Jews resulting from religious discrimination).

I called this post "Ann Coulter, Christian Chauvinist," but really any proselytizing religion is chauvinist, otherwise the religion wouldn't bother seeking converts. Americans who are in the public eye, as Coulter is, have learned that it's polite not to declare the superiority of one's religion, and the inferiority of one's neighobrs', publicly, which is a good policy for amicable interfaith relations. But Coulter is nothing if not blunt and impolite, so I see no reason to expect her to suddenly become Miss Manners when it comes to religion.

And, in case you're curious, Judaism traditionally holds that non-Jews need only obey the Seven Law of Noah to have a place in the World to Come (heaven). Some people who aren't very familiar with the Jewish tradition completely misinterpret the "Chosen People" concept to mean that only Jews find favor with God, providing fodder for anti-Semitism. Given the traditional Christian view that only believing Christians find favor with God, this misunderstanding is understandable, though unjustified. I explain the concept here, and conclude: "So, as far as I can tell, being the 'chosen' simply means that Jews are in a particular contractual relationship with God that our ancestors made, one that is not always to our advantage, and that is without prejudice to the status of Gentiles before God."

UPDATE: BTW, isn't Ann more of an "eye for an eye" than a "turn the other cheek" kind of gal?

Related Posts (on one page):

  1. Atheism and Proselytization:
  2. Ann Coulter, Christian Chauvinist:
177 Comments
Waldfogel and Schwartz Reconciled:

My initial reaction to Joel Waldfogel's argument that the market gives us too few choices was that it directly contradicts Barry Schwartz's claim that it gives us too many because it is hard for consumers to decide which of the bewildering array of options available is best for them. However, it is theoretically possible that both are right.

Waldfogel argues that markets give us too few choices because they fail to provide products that satisfy minority preferences in situations where there are high startup costs or fixed costs. For example, there are very high fixed costs to producing a new type of car. That implies that markets will not have this problem in situations where the fixed costs are low. For example, there are millions of websites that cater to small, specialized audiences because the fixed costs of establishing a website are low.

This suggests that markets could theoretically provide too little variety of products with high fixed production costs, and too much of products with low fixed production costs. Maybe there are too few car models, but too many websites.

For reasons that I explained in my previous posts discussing Waldfogel and Schwartz's arguments (here and here), I think that both of them are wrong. Markets generally do a good job of both satisfying minority preferences and reducing the costs of choice for consumers who don't want to do detailed comparison shopping. However, it is worth noting that it is theoretically possible for Waldfogel to be right about one set of products, and Schwartz about another.

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Do Markets Give Us Too Few Choices?

University of Pennsylvania business Professor Joel Waldfogel argues that markets give us too few choices because they often fail to provide products that satisfy minority preferences. This is the opposite of Barry Schwartz's argument that markets are bad because they give people too many choices, which I criticized here. In one sense, Waldfogel's point is irrefutable: due to high startup costs or fixed costs and just to the general scarcity of resources in the world, there are some minority preferences that the market won't satisfy. The market is undoubtedly inferior to a hypothetical world in which all preferences, no matter how unusual, could be satisfied at zero cost. Not even the most hard-core of libertarian thinkers denies this. That, however, says little about the question of whether government could satisfy such minority preferences better, or whether it is even a good thing to provide products whose costs are greater than their benefits.

Glen Whitman and Tyler Cowen have already pointed out the main flaws in Waldfogel's argument. Let me make two additional points.

First, Waldfogel largely ignores the fact that the market gives entrepreneurs incentives to find new and cheaper ways to satisfy the unmet demands of people with minority preferences. If an entrepreneur can figure out a way to reduce the fixed costs of, say, establishing a TV channel, then we can have channels that cater to unusual minority tastes. Of course, this is exactly what happened with the rise of Cable TV, which gave us such minority-oriented channels as C-SPAN, the History Channel, channels devoted to fishing and sports history, and so on. One of the most important economic trends of the last 200 years is the rise of a bewildering variety of products catering to specialized "niche" markets.

Government, by contrast, has little incentive to figure out new ways to satisfy unmet minority preferences, unless the minorities in question are wealthy or politically influential in some other way. Even then, the politicians - unlike private sector entrepreneurs - have little incentive to satisfy those preferences in a way that is cost effective. After all, they're not spending their own money, but that of the taxpayers.

Second, the relative lack of diversity of programming on radio stations - one of Waldfogel's principle examples of the inability of the market to satisfy minority interests - is actually a failure of government regulation. As Jesse Walker documents in this book, the FCC has for decades colluded with big broadcasters in suppressing alternative and "microradio" broadcasters, thereby greatly reducing the number of stations and making it very difficult to run a station that caters primarily to the interests of a small minority. Even a completely free broadcasting market would not satisfy all potential listeners. But it would have a great deal more diversity than is currently permitted by the FCC.

Waldfogel is absolutely right that fixed costs, startup costs, and scarcity limit the ability of markets to satisfy minority preferences. But this insight is neither original nor particularly helpful in determining the relative merits of government intervention and the market.

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Justice Alito's Use of Legislative History: Here's an interesting note on the topic in the latest Harvard Journal of Law & Public Policy.
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Art by a "Recognized Artist" vs. "Explicit Pictures":

The UC online Sexual Harassment Training — which all employees are required to do — reports that "Vivienne posts a Gauguin print of nude figures in her office" is not an example of sexual harassment: "Artwork, especially by a recognized artist such as Gauguin, is generally not considered a sexual harassment issue, but hanging up explicit pictures, even in your personal work space ... can create an unwelcome sexualized environment."

This is actually a fairly accurate statement of what courts are likely to do, and I think it's to UC's credit that they aren't taking the most aggressive avoid-all-risk position (which would involve banning the Gauguin, and for that matter the nude sculptures in UCLA's Sculpture Garden). There have been harassment complaints over art by "recognized artist[s]", and there is some risk of liability in such situations; but not, I think, a huge risk.

Still, isn't it troubling that the law would try to distinguish "[a]rtwork[] especially by a recognized artist" from "explicit pictures," and would allow massive liability to be partly based on the latter but not the former? Seems to me to pose serious First Amendment problems (which I have discussed at length here), both related to the law's vagueness and to the law's breadth.

I should note, by the way, that it might well be permissible for the government as employer to draw such lines as to what's posted in government workplaces (setting aside academic freedom questions in universities for now), just as it's permissible for the government as employer to punish employees for rudeness to colleagues or coworkers, on-the-job vulgarities, and other speech that would be constitutionally protected against the government as sovereign. But hostile environment harassment law, which this training is discussing, is imposed by the government as sovereign, through the threat of liability even on private employers — not by the government as employer controlling its own property and its own employees.

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Man Guilty in Attack on Girlfriend's Pig:

From the criminal law files:

After Anna Briley kicked her boyfriend out of their east Nashville home, the jilted lover took out his frustrations on her pet pig, "Bacon Bit."

The pig was already suffering from a brain parasite that blinded him in one eye when Carl Leon Houston took his fists and a water hose to the animal on Nov. 7, 2006.

On Monday, Houston, 39, pleaded guilty to animal cruelty before Davidson County Criminal Judge Steve Dozier.

Houston had claimed self-defense and said the pig was "messing with his bike and tried to bite him," according to a police report.

Police called to home

Police were called to the couple's home at 2614 Flamingo Drive by someone reporting that Briley was gone and Houston was beating the pig in the head and spraying water in its ear with a hose.

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Searle Center Conference on Cost-Benefit Analysis:

I am off to a conference on "Cost-Benefit Analysis of Regulations: Lessons Learned, Future Challenges," sponsored by the Searle Center at the Northwestern University School of Law. The conference runs today and tomorrow. It features several the presentation of several academic papers and talks by the last four heads of the White House Office of Information and Regulatory Affairs (Susan Dudley, Wendy Gramm, Sally Katzen, and James Miller). The full agenda is here.

Tomorrow morning I will be commenting on a paper by Cass Sunstein, "The Complex Climate Change Incentives of China and the United States." I hope to post a summary of my remarks later tonight or tomorrow.

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Is Ethanol's Influence on the Wane?

Today's W$J reports that ethanol's political influence may finally be on the decline.

Opposition to the ethanol industry's goals has grown significantly stiffer. The so-called barnyard lobby -- representing the meat, livestock and poultry industries -- says high corn prices are hurting its profits. The price of corn-based animal feed has increased about 60% since 2005, according to the U.S. Department of Agriculture.

"Our single biggest priority is for Congress to reject a new renewable-fuels mandate," says Jesse Sevcik, vice president of legislative affairs at the American Meat Institute, a meat and poultry trade association.

Other groups that were originally sympathetic to ethanol are drifting away. They fear that the fuel's advantages are outweighed by the rise in corn prices, which they say increases the cost of foods ranging from steak to cereal. "Many policy makers were seduced by ethanol," says Cal Dooley, president of the Grocery Manufacturers Association. He opposes increasing federal support for ethanol.

The Agriculture Department says consumers can expect to pay as much as 4.5% more for groceries and restaurant meals this year over last, up from a 2.4% rise the year before.

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Reflections of a Think Tanker:

Christopher DeMuth will step down as president of the American Enterprise Institute before the end of 2008. Concurrent with this announcement, DeMuth as an op-ed in the WSJ reflecting on his tenure and the role of think tanks in public policy.

Think tanks are identified in the public mind as agents of a particular political viewpoint. It is sometimes suggested that this compromises the integrity of their work. Yet their real secret is not that they take orders from, or give orders to, the Bush administration or anyone else. Rather, they have discovered new methods for organizing intellectual activity--superior in many respects (by no means all) to those of traditional research universities.

To be sure, think tanks--at least those on the right--do not attempt to disguise their political affinities in the manner of the (invariably left-leaning) universities. We are "schools" in the old sense of the term: groups of scholars who share a set of philosophical premises and take them as far as we can in empirical research, persuasive writing, and arguments among ourselves and with those of other schools.

This has proven highly productive. It is a great advantage, when working on practical problems, not to be constantly doubling back to first principles. We know our foundations and concentrate on the specifics of the problem at hand.

He credits part of the success of right-leaning think tanks like AEI with their having spent "30 years in the political wilderness," a course he recommends for newer think tanks of the Left. DeMuth also tosses in a tantalizing prediction: If Senator Clinton is elected president, corporate tax rates will decline during her tenure.

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Wednesday, October 10, 2007

Cowen on Krugman:

Tyler Cowen reviews Paul Krugman's The Conscience of a Liberal on Marginal Revolution. He finds it less shrill than he thought and, as a consequence, expects it to sell less than Naomi Klein's latest.

Related Posts (on one page):

  1. Cowen on Krugman:
  2. Naomi Klein's "Economic Disaster":
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Gonzales Lawyers Up:

Newsweek has an interesting story reporting that Alberto Gonzales has hired attorney George Terwillger -- who had been on the short-list to replace Gonzales as AG -- to help Gonzales handle ongoing Congressional and Justice Department probes.

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An Interesting Anti-ERA Pamphlet:

Among other things, the pamphlet questions whether passage of the ERA would mean that age of consent laws would be abolished, women would be subject to the draft, women would no longer be able to get special protections in the workplace to protect their unborn children, and rape law would have to be changed to women's disadvantage.

So, which famous woman wrote this pamphlet, and when? Click below for the answer.

(show)

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Young America's Foundation Letter About the GW Poster Affair:

It's online; I quote the text:

Seven students at your institution falsely attributed the “Hate Muslims? So Do We!!” fliers to The George Washington University chapter of Young America’s Foundation.When the fliers initially surfaced you said, “There is no place for expressions of hatred on our campus. We do not condone, and we will not tolerate the dissemination of fliers or other documents that vilify any religious, ethnic or racial group.”

We agree. Vicious personal attacks levied on students are intolerable, and should not go unpunished. The question remains: what will you do about such blatant character assassination now that the truth is out? How will you demonstrate that you don’t “condone” or “tolerate” the dissemination of hate?

To be clear, liberal radicals on your campus accused conservative students of engaging in racist activities, and to buttress those baseless claims, these same radicals manufactured actual racist activities to pin on the young conservatives.

Student Association Executive Vice President Brand Kroeger told the GW Hatchet that he “would support expulsion. These acts are completely heinous.” Again, we agree with this statement if Kroeger believes it is the job of The George Washington University to protect the reputation of students who are wrongfully maligned. In an open letter to you, the culprits admit to distorting the views of the conservatives on campus. They wrote, “We want to reach out to our Muslim brothers and sisters in the Holy Month of Ramadan in hopes that they will embrace our misrepresented, but honorable stand against racism” (emphasis added).

There is, of course, a clear difference between ordinary Muslims who positively contribute to society and radical Jihadists who boast about murdering people indiscriminately. It’s a typical left-wing tactic, however, to just call names, such as “racist,” rather than engage in a serious debate, in this case, over radical Islam. Only the intellectually deficient revert to such slanderous attacks.

The seven who put up the phony fliers are frauds.

You should issue an apology to the conservatives unfairly targeted. It was obvious that the fliers were spreading lies, but your administration, led by Bridgette Behling -- the assistant director of the Student Activities Center -- sent emails to the young conservatives pressuring them to sign statements disavowing any hate speech that may originate at any future Young America’s Foundation event.

That’s astonishing. Maybe she forgot that the presumption of innocence is an American hallmark? Or maybe your administration should pressure leftist groups to sign statements disavowing any future dirty tricks on conservatives?

The political profiling of conservatives MUST stop. You need to organize a forum immediately that embraces intellectual diversity and denounces the Left’s attempts to create hostile learning environments for conservatives. The campus leftists wrote that Young America’s Foundation “should not [be] allow[ed]” to host conservative speakers. These seven students are trying to squelch robust dialogue and free speech. We believe this to be the goal of their scheme. As president of The George Washington University, we hope that you will create an atmosphere where all students, including conservatives, feel welcomed.

Don’t waste the opportunity.

A little too much umbrage, it seems to me, given that the poster was pretty clearly a satire, rather than an attempt to deceive. On the other hand, some critics of the Foundation indeed seem to have been deceived, and did indeed think that conservative students were accusing Muslims of having "lasers in eyes" and "peg-leg[s] for smuggling children and heroin," on a poster labeled "Brought to you by Students for Conservative-Fascism Awareness." Oy.

Thanks to the Washington Times for putting the letter online.

Related Posts (on one page):

  1. Young America's Foundation Letter About the GW Poster Affair:
  2. Islamo-Fascism Awareness Week at George Washington University:
71 Comments
Great Argument: It's fashionable to criticize the Supreme Court for all sorts of things, but I just wanted to pause the criticism and point readers to the transcript of the oral argument today in Medellin v. Texas. (I mentioned the case earlier today, I realize, but I have since read the transcript.) It's an unusually good argument: the Justices were in fine form, asking outstanding questions that really get to the heart of a tremendously difficult set of issues, and the lawyers were outstanding as well. Great stuff.

  There are a lot of interesting dynamics in that argument, but one worth noting is how Roberts starts off right out of the gate with a hypothetical designed to draw in Justice Kennedy. It seems to work, too, although I suspect Justice Kennedy was very much there already. It's also worth noting (although hardly surprising to me) that the Executive power side of the case didn't seem to go anywhere with the Justices. It is sometimes argued that Chief Justice Roberts and Samuel Alito are likely to accept all of the Bush Administration's claims of executive authority; that seemed notably not to be the case here.

  UPDATE: Over at Slate, Dahlia Lithwick offers up this pretty funny take on the case.
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Medellin and the Second Amendment:

The Supreme Court's oral argument today in Medellin v. Texas has interesting implications for Second Amendment rights. The rationale promoted by the Bush administration, and which apparently has support from at least some of the Supreme Court, offers a roadmap for how a future U.S. President could evade Congress to impose highly restrictive gun controls.

The Bush position is that when the Senate has adopted a non-self-enforcing treaty, the treaty becomes self-enforcing if: 1. The World Court issues a ruling under the treaty in a case in which the United States accepts jurisdiction, and 2. The President then, exercising his foreign policy discretion, decides that the World Court order must be implemented. The position of Medellin's lawyers is even broader, that a World Court ruling is sufficient in itself.

Now let's see how this could work in a gun control hypothetical:

1. President Hillary Rodham Clinton strongly believes in gun control. (Consider that as Senator, she, unlike Senator Obama, actually voted against an appropriations rider to prevent federal funds from being used to fund gun confiscation during/after a natural disaster or similar emergency, even when the confiscation had no legal basis, or was formally prohibited by state law.)

. 2. She can't get 60 votes in the Senate to pass her domestic anti-gun proposals, much less the 2/3 support necessary for ratification of the new UN international gun control treaty. (Without U.S. Ambassadors to the U.N. like John Bolton, a new U.N. gun control treaty is a certainty within a few years. Indeed, it is doubtful that any U.S. delegation can block the forthcoming Arms Trade Treaty.)

3. The United States has ratified the International Covenant on Civil and Political Rights, along with a reservation stating that the Covenant is not self-executing.

4. United Nations Special Rapporteur Barbara Frey (a University of Minnesota law professor) has written a report for the United Nations Human Rights Council. The report has been adopted by the Human Rights Council's subcommission on the Promotion and Protection of Human Rights, which claims that the Report accurately describes existing mandatory international law.

5. Under the report's standards, U.S. gun control laws are in massive violation of the international law obligation (contained, inter alia, in the International Covenant) not to violate "the right to life." For example, most states do not require a periodically-renewed license for the possession of handguns, and hardly any do so for long guns. All states allow ordinary citizens, and the police, to use deadly force against certain felonies (e.g., rape, arson, armed robbery, serious assaults), even when the person using deadly force does not believe that deadly force is necessary to save a life. Even New York City's gun laws are deficient, for they allow licensed owners of rifles and shotguns to use their guns for any lawful purpose (e.g., target shooting, hunting, collecting, self-defense in the home) rather than only for a specified purpose. (For details, see pages 12-14 of my forthcoming article in the BYU Journal of Public Law, "The Human Right of Self-Defense.")

6. In collusion with the Clinton administration, a foreign government brings suit in before the World Court. The suit might be premised on the dangers to the foreign government's nationals when they visit or work in the United States. The Clinton administration accepts the World Court's jurisdiction.

7. The World Court issues a ruling consistent with the standards of the UN Human Rights Council.

8. President Clinton, exercising her foreign policy discretion, declares that all state governments must implement the ruling, by enacting gun licensing systems, and sharply restricting the use of guns for self-defense.

9. We are now at the same point as Medellin v. Texas, with one or more state governments claiming that the President cannot force them to obey a World Court ruling about a non-self-implementing treaty.

10. Based on the October 10 oral argument, it appears that there are currently some Justices on the court who think that the President can. By President Clinton's second term, there might be a majority of Justices, in a Court whose membership was appointed almost entirely by one Clinton or another, who might agree.

What if some states refused to obey a direct order from the Supreme Court? Well, there are lots of ways to pressure the states, including withholding their appropriated federal funding for state and local criminal justice agencies. Would a Supreme Court that upheld President Clinton on the substantive issue be likely to declare it illegal for President Clinton to temporarily suspend the payment of money to states which are attempting to nullify a Supreme Court ruling?

There is an even simpler approach. Every firearms retailer holds a Federal Firearms License, and is subject to the regulatory control of the Bureau of Alcohol, Tobacco, Firearms and Explosives. No FFL may sell a gun to a customer without complying with the National Instant Check System, which is administered by the Department of Justice and FBI. President Clinton simply issues an order that no FFL may sell a gun, and NICS may not approve any transfers in any state which has not brought its laws into conformity with the World/Supreme Court rulings. Alternatively, President Clinton just orders administrative changes, so that the federal Form 4473 (which must be filled out by all retail gun buyers) states that it must be renewed every five years. A new line on the 4473 requires the buyer to make a multiple choice selection for one (and only one) purpose for which the gun will be used. Further, BATFE issues regulations under the federal Gun Control Act declaring that internationally-illegal uses of guns (e.g., against a rapist) constitute use of a gun "in a crime of violence", which is a federal crime under the Gun Control Act. President Clinton directs the US Attorneys to prosecute accordingly.

The federal statutes creating BATFE, requiring FFLs, and setting up NICS do not give the President any authority to issue such orders. But President Clinton could argue that she may issue such orders, based on her Article II foreign policy powers, in order to comply with the World and Supreme Court decisions. Moreover, the Senate ratification of the International Covenant implicitly gave her such powers, pursuant to the Supremacy Clause, to implement mandatory U.S. obligations arising from the Covenant.

Would U.S. courts, and, eventually, the Supreme Court, uphold President Clinton's actions regarding FFLs and NICS? It would be unrealistic to be confident that courts would not.

Of course my suggestions about how a U.S. President might proceed after point 10 are just guesses. What is clear, is that with the right President having the opportunity to make a few Supreme Court appointments, getting to point 10 would be quite easy. After that, U.S. history shows that when a determined U.S. President wants to make recalcitrant states obey a U.S. Supreme Court ruling, the President eventually wins, one way or another.

Related Posts (on one page):

  1. Medellin and the Second Amendment:
  2. Medellin v. Texas:
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Islamofascism:

The term Islamofascism strikes me as a pretty apt description of the political and religious movement of which al Qaeda, the Taliban, Hamas, and other extremist Muslim groups are members. According to the Oxford English Dictionary, "Islamofascism" is,

The advocacy or practice of a form of Islam perceived as authoritarian, intolerant, or extremist; spec. Islamic fundamentalism regarded in this way.

1990 Independent 8 Sept. 15/8 Islamic societies seem to have found it particularly hard to institutionalise divergences politically: authoritarian government, not to say ‘Islamo-fascism’, is the rule rather than the exception. 2002 National Rev. (U.S.) (Nexis) 10 Apr., You cannot deny that a brand of Islam is most certainly at war with us. You can call this brand Islamofascism, radical Islam, Wahhabism, whatever you want. 2005 N.Y. Rev. Bks. 13 Jan. 22/4 Our enemy — variously known as Islamofascism, Islamist extremism, global jihad — has no rational agenda beyond its desire to destroy the United States out of remorseless, theologically inspired hatred for its values.

The link to fascism strikes me as quite sound: It is authoritarian, in the sense of not allowing genuine democracy, suppressing speech and religious dissent, and aiming to control many aspects of people's private lives through force of law or violence (consider the Taliban regime). It is also linked to fascism's historical desire to gain political power through military conquest; not all militarism is fascist, but fascism in the 20th century has been so closely linked to militarism that fascist should probably be used in such a way that all fascism is militarist. The link to Islam is unfortunatelly also quite sound; Islamofascism is a strain of Islam, though fortunately there are many other much better strains.

The rivals strike me as suboptimal: "Islamism," which I am told is the more common academic term, is too likely to be confused with simple Islam, and seems to me to contain a more solid condemnation of Islam than the more specific term "Islamofascism" includes. "Jihadism" is a possible alternative, but raises its own problems, especially given that the term "jihad" may in some situations have nonmilitant meanings. Fortunately, "fascism" these days has a connotation that's negative beyond cavil, more so than "jihad."

And, yes, if there were Jewish or Christian movements that aimed to govern the way the Taliban did, or tried to fight the way al Qaeda does, I would of course think that Judeofascism or Christianofascism would be perfectly proper terms to label them.

UPDATE: Commenter Vovan suggests: "It is a loaded term designed specifically to include Shi'a groups that the current administration finds undesirable. A commonly accepted academic term for the developments in Sunni Islam that EV describes is Salafi, and since the groups that directly attacked United States belonged to that version of Islam, there simply isn't a need to create a new term, that not only is overly inclusive, but is intentionally misleading."

Really — no need to create a new term when the "commonly accepted academic term" Salafi is available? How many people outside a narrow sliver of the academy know what Salafi means? Plus why limit yourself to the Sunni strand, given that many critics of Islamofascism are against Shia analogs, such as the more authoritarian strands of the Iranian mullocracy? The goal is a combination of quick comprehensibility and precision, and not just precision or academic purity alone.

FURTHER UPDATE: Commenter randal writes: "What's wrong with 'militant Islam'? Oh I remember, the right thinks it's too legitimizing, believe it or not. Hence 'Islamofascism.' It's being pushed on us precisely because it comes across as sufficiently insulting to Muslims."

Actually, the commenter is mostly right, until the last word. "Militant Islam" is inadequate, I think, because it doesn't carry an important implication of "Islamo-fascism" -- that it's not only aggressive towards outsiders, but also oppressive towards its own citizens. (That's also a problem with "jihadism.")

The point of many critics of Islamo-fascism, Christopher Hitchens being just one noted example, is that Islamo-fascism isn't just a danger to the west; it's bad even for Middle Eastern women, gays, political dissenters, religious dissenters, and any other noncoformists. "Fascism" captures that; "militan[ce]" does not. So the goal is to be properly and accurately pejorative towards this strand of Islam (though not to Muslims generally).

Related Posts (on one page):

  1. More on Islamofascism,
  2. Islamofascism:
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Medellin v. Texas: Over at SCOTUSblog, Lyle Denniston has a report on the fascinating oral argument this morning in Medellin v. Texas. The case is extremely interesting and the advocates are top notch (Paul Clement and Ted Cruz), so it sounds like it was quite an argument. The oral argument transcript has not been posted as of 3:20 east coast time, but when it's up you will be able to click here to download it.

Related Posts (on one page):

  1. Medellin and the Second Amendment:
  2. Medellin v. Texas:
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Troubling Story from University of Connecticut School of Law:

The Hartford Courant reports:

A colorful University of Connecticut law professor has been asked to take a leave of absence for showing a film clip of a thong-clad woman dancing suggestively and for also raising provocative questions about slavery during a class.

The situation pits academic freedom against efforts to foster an inclusive, welcoming campus.

Robert L. Birmingham, known as a provocative lecturer and iconoclastic thinker, agreed to leave for the rest of the semester after he showed a clip from a film called "Really, Really Pimpin' in Da South" during class on Sept. 21, said law school Dean Jeremy Paul.

The film features an interview with a pimp who was convicted in a court case called U.S. v. Pipkins that the class was studying in Birmingham's "Remedies" course. At the end of the tape, the camera switches from the pimp to "scantily clad women in a sexually suggestive pose," Paul said. At that point, Birmingham pressed the button to freeze the film, upsetting some students.

Later that day, students in Birmingham's class on the Nuremberg trials asked to see the same film. Birmingham obliged and stopped the film at the same point again, Paul said.

Before showing the film clip in the "Remedies" class, Birmingham reportedly posed the question of whether African Americans had it better as slaves in the U.S. than their counterparts in West Africa, Paul said. Others in the class offered a slightly different version of the issue, claiming that Birmingham asked whether the descendants of slaves today are better off than their contemporaries in West Africa.

After word about the film ballooned into a campuswide issue, Paul said he sensed that the Hartford-based school needed a cooling-off period. So he asked Birmingham to consider taking the leave and asked him to apologize to the class. Paul then held a forum Sept. 24 for students to air their views and to ask questions. Paul said he was investigating the incident further....

More details here; Prof. Birmingham has since agreed to take the leave of absence.

Professors should teach effectively, and in ways that avoid needlessly alienating students; and administrations should have some latitude to make sure of this. Professors' freedom in the classroom, it seems to me, can't be the same as their freedom in their scholarship or in their public commentary. Among other things, for instance, an administration should be free to insist that a professor teach a particular subject matter, avoid needlessly personally insulting individual students, avoid bringing up personal political views that are unrelated to the class subject matter, and the like.

Yet the typical way of dealing with this should generally be through friendly advice from the administration. (Such advice might be proper even where prohibition is not; for instance, it might be proper to advise teachers that bringing in some particular controversial material might be unduly distracting and thus pedagogically ineffective, even if the administration shouldn't prohibit such material.) In some situations, some requirements going forward might be proper, though they should be as clear and narrow as possible. It's possible, depending on the factual circumstances, that some such reaction by the school might be proper in this case.

But a half-semester-long leave of absence over these two incidents strikes me as a vast overreaction. It sends a message to teachers that they had best avoid any controversial material, or any material in which some slight slip might raise hackles. It sends a message to students that the way to deal with offensive speech is by administrative punishment and not by disagreement and remonstrance. And it encourages a culture of complaint and outrage, rather than of discussion and negotiation.

Finally, I realize that the university wants to make sure that the teacher remains effective for this class, and might be worried that he's alienated students to the point that this isn't so. But such alienation is not some fixed constraint that's outside the university's power. My sense is that when universities take the view that an apology is enough (and here the professor did seem willing to apologize) and explain that sometimes these missteps happen, most students will be, and should be, willing to accept this and to continue learning from the professor.

Thanks to Prof. Jim Hu for the pointer.

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Islamo-Fascism Awareness Week at George Washington University:

So the conservative Young America's Foundation is putting on Islamo-Fascism Awareness Week at college campuses, including GW. According to the Washington Post (Oct. 9), "[Sergio] Gor [the group's GW student leader] said writer David Horowitz will speak, 'The Path to 9/11,' a TV mini-series, will be shown, and there will be a panel discussion featuring people who escaped the regime in Iran. 'One gal got flogged 300 times for wearing nail polish,' he said."

Then Monday morning, the following poster came up:

The university took the posters down, and said the university "will not tolerate[] the dissemination of fliers or other documents that vilify any religious, ethnic, or racial group." Student association Executive Vice President Brand Kroeger called for "expulsion" of those who put up the posters.

Now it turns out that the poster was put up by student critics of the Islamo-Fascism Awareness Week event. The students claim that the posters were supposed to be pretty clear satire — quite plausible, given the "lasers in eye" and "peg-leg for smuggling and heroin," and the "Brought to you by Students for Conservativo-Fascism Awareness." They also keep talking about how the Islamo-Fascism Awareness event is supposedly "racis[t]," without much of an explanation. Islamofascism is a religious and political ideology, and deserves condemnation; note also that the people who are killed and oppressed by Islamofascists are, of course, overwhelmingly of the same ethnic groups as the Islamofascists themselves.

In any case, thought I'd pass along this little academic farce. Thanks to Dave Sidhu for the pointer to the GW Hatchet stories.

Related Posts (on one page):

  1. Young America's Foundation Letter About the GW Poster Affair:
  2. Islamo-Fascism Awareness Week at George Washington University:
236 Comments
The UN Needs another Member:

On today's Tech Central Station, Mike Krause and I argue for Taiwan's legal right to membership in the United Nations. We also strongly criticize Secretary General Ban Ki Moon for violating the UN Charter in his treatment of the Taiwan application, and thereby arrogating for himself a power that the Charter specifically reserves to the Security Council, and not to the Secretariant.

BTW, the TCS version of our article does not include thelinks which we had included. VC readers will have no trouble finding for themselves most of the documents we talk about (e.g., the Shanghai Communiqué, the Montevideo Convention, the UN Charter). But there are a few important exceptions. First, the Taiwan polling on self-determination is here. (The questions were not perfectly neutral in phrasing, but I think the general direction of the results is accurate.) The polling on whether the people of Taiwan consider themselves Chinese is here. The link for "As the delegations of several nations pointed out to the General Assembly in September..." is here, a summary of a U.N. General Assembly committee's discussion of a proposal by some members to urge the Security Council to consider Taiwan membership. And the fact that China, historically, only claimed sovereignty over all of Taiwan for a 17 year period in the 19th century is here, a VC post I wrote last year.

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Normalcy:

A commenter recently repeated the claim that President Harding coined the term "normalcy" in his 1920 Presidential campaign. Not so; he may have popularized the term, but it was included in the 1913 Webster's Revised Unabridged Dictionary, and the Oxford English Dictionary attests it back to 1857.

This is further evidence, should you need it, that you should be careful believing linguistic factoids, especially ones about how some word -- whether normalcy, strategery, or lonely -- was supposedly coined by some famous figure.

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Texas Tech Unclear on the First Amendment:

AP reports:

Texas Tech has banned the sale of a T-shirt featuring a drawing of a football player dangling Texas A&M's dog mascot by her leash.

The red shirts, with black text reading "VICK 'EM" on the front in a reference to the Aggies' slogan "Gig 'em," were created by a Tech student who said he has sold roughly 300 of the shirts through his fraternity ahead of Saturday's game against Texas A&M in Lubbock....

The back shows a football player, wearing Michael Vick's No. 7, hanging the mascot Reveille from the end of her leash. The suspended NFL quarterback has pleaded guilty to a federal dogfighting charge, admitting that he helped kill six to eight dogs.

"We will not permit individual students or any student organization to profit from selling merchandise on campus that is derogatory, inflammatory, insensitive, or in such bad taste that it reflects negatively on this fine institution, its students, athletic teams, alumni or faculty," school president Jon Whitmore said in a statement released by the school Tuesday afternoon.

The school also suspended the fraternity and plans to bring charges against it under the university's code of student conduct....

"You can't make light of a situation like that," Texas Tech media relations spokesman Chris Cook said. "That is in poor taste and poor judgment."

It sounds like the students involved are contrite, and aren't going to make a fuss about this; and if they want to apologize and take whatever punishment is meted out because they think their actions were unsportsmanlike or in bad taste, that's fine. But a public university like Texas Tech can't bar the sale of T-shirts because of their message — even a message that's "derogatory, inflammatory, insensitive, or in ... bad taste" — or suspend a fraternity for selling such T-shirts.

A public university can of course ban on-campus sales of merchandise generally; and it can likely impose viewpoint-neutral subject matter categories, such as allowing sales only of curriculum-related merchandise. But it can't ban sales based on the viewpoint of the text or pictures that the merchandise contains, whether it's a pro-animal-cruelty viewpoint (humorous or serious) or any other viewpoint, and whether the material is a T-shirt, a bumper sticker, or a book. Nor can it ban sales based on whether the text or pictures that the merchandise contains are "derogatory, inflammatory, insensitive, or in ... bad taste." And it certainly can't punish a student organization for expressing such viewpoints, on T-shirts or otherwise.

UPDATE: Thanks to a reader, here's a photo of the front and back of the T-shirt:

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Jan Crawford Greenburg and Dahlia Lithwick on BloggingHeads: I just watched it, and I thought it was excellent. Thanks to Howard for the link.
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Maureen Dowd on Thomas:

First, let me acknowledge that I've ready maybe three Dowd columns, ever, so if there is some secret to her columns that I just am not privy to, forgive me. (For example, as a lad it was only after reading many months of Russell Baker's columns and finally giving up on them that I learned that the column was supposed to be humorous.) Dowd writes, satirically, in Thomas's voice: "I used to have grave reservations about working at white institutions, subject to the whims of white superiors. But when Poppy's whim was to crown his son — one of those privileged Yale legacy types I always resented — I had to repay The Man for putting me on the court even though I was neither qualified nor honest. ... But having the power to carjack the presidency and control the fate of the country did give me that old X-rated tingle."

"Repay The Man?" "Carjack the presidency?" Not "qualified"? "X-rated tingle"? I find this about as funny as a David Duke speech, and for the same reasons.

UPDATE: At "Best of the Web," James Taranto writes: "Dowd's joke can be summed up in a few words. Q: What do Clarence Thomas and O.J. Simpson have in common? A: They're both black!"

94 Comments

Tuesday, October 9, 2007

Pitfalls of Ignoring Libertarianism in Studies of Academics' Ideologies:

In my last two posts, I put forward some reasons why Gross and Simmons' important new paper on academic ideology understates the prevalence of liberals in academia. It is only fair to also point out a way in which that study overstates that prevalence, or at least underestimates the proportion of non-liberal academics. It does so by collapsing academics' ideologies into three categories along a single continuum: "liberal," "conservative," and "moderate." Respondents to their ideology question had the option of describing themselves as "Very liberal," "liberal," "slightly liberal," "middle of the road," "slightly conservative," "conservative," or "very conservative."

Note that this one-dimensional ideological scale entirely ignores libertarians, who - roughly speaking - are "liberal" on social issues, and "conservative" on economic ones. Some libertarians may describe themselves as "conservative" on the Gross-Simmons scale. Others, however, might pick "liberal" or "middle of the road," or simply choose not to answer the question because they don'e see a choice they like. For example, if I average out my "liberal" positions on social issues with my "conservative" ones on economic issues, I could describe myself as "middle of the road" on average. But it's a very different kind of "moderation" from that associated with, say, DLC Democrats.

Ignoring libertarians may be defensible in studies of the general population, where they are relatively rare (although even among the general public, some evidence suggests that about 10 percent are closer to being libertarian than conservative, moderate, or liberal). It is much more problematic in a study of academics, where libertarians are a much larger fraction of the nonliberal total than in the general public. In my experience, about half of nonliberal/noncentrist law professors are in fact libertarians rather than social conservatives. Lawprofs are not included in the Gross-Simmons study. But economists and political scientists (two other groups with which I have some familiarity) are, and the libertarian-conservative ratio there does not seem to me much different than that in law. Even if we cautiously assume that libertarian academics are only half as common as conservative ones, the Gross-Simmons data imply that about 5% of academics are libertarians (vs. 9.4% conservative). And another 5% would be "slightly libertarian" (vs. 10.5% "slightly conservative").

How much does this skew Gross and Simmons' overall results? It is difficult to say. It all depends on how many libertarian academics would describe themselves as "conservative" or "very conservative" when they answered the author's one-dimensional ideology question and how many would describe themselves as "liberal," falling into one of the three categories the authors classify as "moderate," or simply refuse to answer the question. Given the deepening of the conservative-libertarian split during the Bush years, I suspect that the proportion of libertarians willing to embrace the "conservative" label has been declining; this trend is likely to be unusually strong among academics, most of whom follow politics closely. My best guess - and it's only a guess - is that about 50-70% of libertarians would refuse to embrace the two most "conservative" categories in the Gross-Simmons framework. Assuming that libertarian academics make up about 6-7% of the total (perhaps an underestimate), that implies that the true proportion of right of center academics is 12-13% rather than the 9% that the authors estimate. In some fields, such as economics and other social sciences, the proportion of libertarians among the nonliberals is likely to be significantly higher than that. If you count the putative "slightly libertarian" academics (parallels to the authors' "slightly liberal" and "slightly conservative" categories), the libertarian proportion would be about twice as high, perhaps 10-14% of the total sample.

In my judgment, properly accounting for libertarians would not overturn the conclusion that the left side of the political spectrum is overwhelmingly dominant in academia - especially when you consider the factors discussed in my previous two posts. It would, however, substantially increase the estimated proportion of academics who are neither liberal nor "moderate."

UPDATE: I was remiss in not mentioning this 2005 study of social scientists' political views by GMU economist Daniel Klein and Swedish scholar Charlotta Stern, which finds that "social scientists who deviate from left-wing views are as likely to be libertarian as conservative." This finding strengthens the case for including libertarianism as a separate category in studies of academic ideology.

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New Alternative To Air Travel: Fake plane trips. On the plus side, your flight is never unexpectedly canceled. On the minus side, there's no frequent flyer program. Thanks to Megan McArdle for the link.
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"Anonymous Law Graduate" Seeking Career Advice: In the comment thread to an earlier post on interview advice, an "anonymous law graduate" writes:
  I've always wanted to ask something . . . to you, Eugene, and the VC clan. Maybe this is the place to ask it, and you can decide whether it deserves a post of its own. This is a bit off the subject of interviews, but I expect that what I'm about to ask is far more prevalent among law school graduates than seeking a law professor position, since that is so competitive.
  So here goes: What do you suggest for someone who has graduated, who did well but not great, has a job for the time being, but doesn't yet know what he/she really wants to do? Law school is over, and it didn't lead into a specific direction. The job market is tough, and the chances to try different things are few. So I (and many law school colleagues) am in a job that pays the bills, but not one that is likely to become a career.
  What advice do you give people suffering the post-law school blues? I never thought that I would miss law school, but I do. And in looking back I can see the lost opportunities, but it's too late to change that. So...what should an aimless law grad in a dead-end job do to lay a foundation for a fulfilling legal career, when the options are few?
  Unfortunately I don't think I have any special expertise on this issue, as tremendously important as it is. But I do have two quick thoughts before turning this one over to our commenters, who I hope can add more helpful advice.

  My first thought is that a lot depends on what you enjoy. Different people find different things fulfilling, and I would think the first step is to identify the kinds of things you find fulfilling before knowing what options you may want to take. Okay, so this is probably pretty obvious, but I think it's worth being explicit about it.

  My second thought is to give serious consideration to a career in criminal law. That's easy for me to say, I guess: I teach criminal law and I love the stuff, so it's natural for me to want others to get into the area. But I do think that criminal law is a career that a lot of people would enjoy but that most law students and young lawyers don't consider seriously enough. In my experience, most young lawyers who feel pretty aimless followed the crowds and ended up at law firms; if they wanted to do litigation, they ended up with a civil practice that they find less-than-fulfilling.

  In contrast, folks who went into criminal law usually are excited and passionate about what they do. They deal directly with people and their lives; their strengths, their weaknesses, and the power of the state to step in to discover and punish harmful behavior (or the lack of that power). It's compelling stuff: There's a reason why all the TV shows are about criminal law and not civil procedure. It's not for everyone, I realize, but I think it's an unexplored option for a lot of lawyers who are out in the world and realize they need something more.

  Okay, I'll get off my soap box. Readers, what do you think? I'd be especially interested in hearing the views of the happy and fulfilled lawyers among the VC readership. What's your secret?
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Stoneridge Roundup:

Today the Supreme Court heard oral argument in Stoneridge Investment Partners v. Scientific-Atlanta, arguably the most important securities law case before the Supreme Court in at least a decade. At issue is whether third parties may be held liable under Section 10(b) of the Securities Exchange Act and SEC Rule 10b-5 for engaging in transactions that enabled a corporation to misrepresent its earnings to shareholders. In the case at hand, shareholders of Charter Communications are suing Scientific-Atlanta and Motorola for their participation in allegedly fraudulent contracts for cable set-top boxes that enabled Charter to defraud its earnings by overstating its earnings. The implications of the case are potentially far broader, however. A decision for the petitioners (the plaintiff shareholders) could ease the way for lawsuits against bankers, accountants, and perhaps even lawyers who provide services to firms that misstate their earnings or otherwise defraud their investors.

Fortunately for the corporate defendants, most observers believe the Court is leaning against allowing suits against third parties without explicit Congressional authorization. As Lyle Denniston reported for SCOTUSBlog:

As the Court concluded an hourlong hearing in a vitally important securities case, there seemed hardly a chance — even a remote one — that federal law against stock fraud would be read to give investors a significant new tool to go after stock fraud themselves. With the seeming exception of only Justice Ruth Bader Ginsburg, and the possible added exception of Justice David H. Souter, members of the Court showed little to no sympathy for opening up a broad new category of liability to investors.
University of Denver law professor and "Race to the Bottom" blogger Jay Brown likewise thinks that the corporate defendants have at least five votes (of eight, as Justice Breyer is recused). UCLA's Professor Bainbridge rounds up more of the news coverage and analysis here. The oral argument transcript is available here.

Last Friday, the Center for Business Law & Regulation at the Case Western Reserve University School of Law hosted a conference previewing the case. Panelists included Professors Stephen Bainbridge (UCLA), Barbara Black (Cincinnati), Richard Painter (Minnesota), Jay Brown (Denver), Ohio AAG Andrea Seidt, and the Manhattan Institute's James Copland. The capstone of the day was a debate on the merits of the case between two attorneys who contributed to amicus briefs in the case: Eric Isaacson (Coughlin Stoia) and Ashley Parrish (Kirkland & Ellis). An archived webcast of the conference, co-sponsored by the Federalist Society's Corporate Law practice group, is available here. The conference was very interesting and informative. Those interested in learning more about the issues underlying the case should check it out.

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Advice on AALS Interviews: Over at Co-Op, Dan Solove reposts his thoughts on interviewing for law professor jobs. Still good advice. The lesson: To convince someone you'll be a good lawprof you have to seem like you already are one.
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Look Carefully at the Rules:

Riehl World View reports (thanks to InstaPundit for the pointer):

Only in today's Washington, DC could an architect believe he has the right to tell an America citizen whether or not he or she can include the word God on a simple certificate said citizen actually pays for -- and the answer, for now, is no.

Via Drudge, an item in the Midland Daily News:

A 17-year-old Eagle Scout from Ohio reportedly was denied the request to have a certificate read, "This flag was flown in honor of Marcel Larochelle, my grandfather, for his dedication and love of God, country and family."

Midland Republican U.S. Rep. Dave Camp is among lawmakers objecting because the U.S. Capitol's architect won't allow God to be mentioned in certificates of authenticity accompanying flags flown over the Capitol and bought by constitutents(sic).

Apparently it's true, based upon item 8 on page 2 of this pdf, they went to the trouble of putting it in bold. These flags aren't given out, you have to buy and pay for them, at which time you submit 300 characters of text for inclusion on the certificate. But you can't include the word God. Good thing the kid didn't want it to read Allah, there'd probably be all hell to pay for refusing that one.

The Capitol Architect needs to find something else to do with his spare time besides telling Americans what they can and can't say on a certificate they pay for.... In fact, maybe he needs to have more spare time. This idiot sounds a little too full of himself to me.

This website was developed in response to consumers' requests for information regarding the purchase of United States Capitol flags.

Well, if there was a rule barring the inclusion of the word "God," on a certificate on which the citizen could include anything else, that would be pretty troublesome. Even if it's the government refusing to print a certificate, why the discrimination against that word?

But if one does look at the Flag Office's document (which Mr. Riehl, to his credit, links to), one sees the whole rule: "political and/or religious expressions are not permitted on the flag certificate." The discrimination isn't against God -- it's against a wide range of ideological expression.

I take it that the Flag Office's worry is that if they didn't have such a limit, someone would put some incendiary political or religious message on the certificate, and then the Flag Office would be condemned for participating in the printing of such a message (presumably with a government seal, and apparently with the signature of the Architect of the Capitol). Perhaps the Office should have ignored this risk, and given buyers an entirely free hand in selecting whatever words they want. Or perhaps the Office should have tried to carve out some exception for bland references to religion, on the theory that such references are especially important to many buyers of the flags (though might create its own problems).

But in any event, the Office is trying to avoid getting involved with a wide range of ideological messages, not just references to "God." Any criticism of the program should, it seems to me, make that clear.

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Academics' Ideology and "Moderation":

Gross and Simmons' important new study of academic political ideology may underestimate the degree of liberal dominance because of the way it categorizes political "moderation" among academics. As discussed in my last post, the authors find that 43.5% of academics are liberal, 47% are "moderate," and 9% are conservative. This leads the authors to conclude that, while there are very few conservative academics, the overall valence of the academy is moderate rather than liberal.

One problem with this conclusion, discussed in my previous post, is that the preponderance of liberals is much greater in those fields where ideology actually matters. Another is Gross and Simmons' analysis of "moderation." As they explain, the "moderate" category in their Table 2 (reprinted in my earlier post) is actually a combination of survey respondents who described themselves as "slightly liberal" (18.1%), "middle of the road" (18.0%), or "slightly conservative" (10.5%). I wonder, however, whether these self-descriptions are based on a reference group of other academics (who are well to the left of the general population) or of the general public. Many people who do not follow survey research understandably define "moderation" relative to the orientations of the people they know. For academics, these reference groups are disproportionately likely to be other academics and nonacademics with ideological backgrounds similar to those of people in the academic world. The famous anecdote about the New York intellectual who couldn't believe that Nixon had won the 1972 election because no one he knew had voted Republican may be an exaggeration; but it does contain a kernel of truth. Thus, self-described "middle of the road" and "slightly liberal" academics - perhaps even "slightly conservative" ones - may be well to the left of center by the standards of the general population.

I cannot reliably prove or disprove this theory based on the data presented in the Gross and Simmons paper. But there are some indications that it captures an important part of what is going on. For example, Gross and Simmons found that 78% of their respondents voted for Kerry (77%) or Nader (1%) in the 2004 election, and only 21% for Bush (Bush won the popular vote by a narrow 51-48 margin in the general population). Assuming that most of the self-described conservatives (20 percent of the total sample, if you count the "slightly conservative") voted for Bush, this implies that nearly all of the self-described "slightly liberal" and "middle of the road" academics voted for Kerry. By contrast, CNN exit polls indicate that self-described "moderates" in the general population voted for Kerry by a much narrower 54-45 margin. While ideology is not the only influence on voting behavior, this result certainly suggests that self-described academic centrists are on average much further to the left than moderates in the general population.

UPDATE: I should note that while there is good reason to suspect that academic "moderates" overall are more liberal than those in the general population, it is impossible to tell from the Gross-Simmons paper how this breaks down in particular disciplines. For example, it is possible that self-described "middle of the road" academics in the hard sciences are more moderate than those in the social sciences and humanities.

UPDATE #2: It is worth pointing out that Gross and Simmons do not deny the fact that academics are more liberal than the general population. As they put it (pg. 72), "we would not contest the claim that professors are one of the most liberal occupational groups in American society, or that the professoriate is a Democratic stronghold." Their main original claims are that 1) academics are more moderate than usually assumed, and 2) there is more diversity of opinion among left of center academics than conservative critics claim. The first conclusion depends crucially on the authors' definition of moderation - the issue discussed in this post. The second may well be true. In fact, I suspect that it almost certainly is. There is likely considerable divergence between the roughly 20% of humanities and social science professors who describe themselves as "radical" (see my last post) and those who are mainstream liberals. However, this finding does not change the fact that academics are overwhelmingly on the left rather than the right. Political diversity among academics does exist, but much of it is confined within a truncated liberal to radical political spectrum.

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Ideology and Academia - Liberal Dominance Only in Those Fields Where it Matters:

The recent study of academics' political ideologies by sociologists Neil Gross and Solon Simmons has been touted by the authors and by Inside Higher Education as showing that liberal dominance in academia is much less great than many believe.

However, this interpetation of the data is questionable. Gross and Simmons' Table 2 (pg. 28) shows that liberal dominance is overwhelming in the humanities and social sciences, the only two categories they list where ideology is actually likely to matter in influencing research agendas and classroom instruction:



Table 2
Field Liberal Moderate Conservative
Phys/bio sciences 45.2 47.0 7.8
Social sciences 58.2 36.9 4.9
Humanities 52.2 44.3 3.6
Comp sci/engineering 10.7 78.0 11.3
Health sciences 20.5 59.0 20.5
Other 53.4 35.9 10.7
Business 21.3 54.3 24.5
Total 43.5 47.1 9.4

Thus, Gross and Simmons' findings indicate that liberals outnumber conservatives by 11-1 among social scientists and 13-1 among humanities professors, with liberals forming a clear absolute majority in both fields. The somewhat less lopsided overall figure (about 4-1 liberal-conservative ratio) is reached only because of the relatively balanced nature of "health sciences," physical/bio sciences, comp sci/engineering, and business faculties. With the possible exception of business, all of the latter are fields where ideology makes little or no difference in either research or teaching. There are few meaningful professional differences between liberal computer scientists and conservative ones, or between liberal and conservative physicists. Moreover, Gross and Simmons' Table 12 (pg. 41) shows the results of a different survey question on which 24% of social scientists and 19% of humanities professors self-identified as "radical." This indicates that self-identified radicals (to say nothing of the left side of the political spectrum more generally) actually significantly outnumber conservatives in both fields.

Even in business classes, where ideology perhaps matters more than in the hard sciences, it probably matters less than in the social sciences and humanities. As I understand it (based admittedly on limited knowledge - I welcome correction from experts) a high percentage of business class instruction and business school professors' research focuses on relatively nonideological issues such as techniques for running a company, developing products, and marketing; only a minority of business courses focus on public policy issues with an ideological valence. Be that as it may, business professors surely have much less aggregate influence on both academic research and classroom instruction on politically charged issues than do humanities and social science scholars.

UPDATE: To avoid confusion, I should emphasize that this post takes Gross and Simmons' definition of "conservative," "liberal," and "moderate" as given. In the next post I challenge their analysis of moderation. There is therefore no contradiction between this post and the next one, although I admit I should have made the distinction between the two clear earlier.

UPDATE #2: Some commenters note that there is a large preponderance of liberals over conservatives in biological and physical sciences as well (almost 6-1). This is true. However, by Gross and Simmons' methodology, liberals in these fields are still outnumbered by moderates and conservatives (about 55-45). Thus, liberal dominance in these fields is not as clear as it is in the social sciences and humanities, where liberals outnumber conservatives by even larger margins and also constitute a clear absolute majority of the total.

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Dissenting Opinions: Todd Henderson has just posted a paper that has an interesting discussion of the history of dissenting opinions both in English and U.S. Law: "From 'Seriatim' to Consensus and Back Again."
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Sixth Circuit Grants Petition for Rehearing En Banc in Warshak v. United States: I have just heard that the Sixth Circuit has granted the United States' petition for rehearing en banc in Warshak v. United States, the important e-mail privacy case that I have blogged about extensively over the last few months. The docket entry states that "The previous decision and judgment of this court is vacated, [and] the mandate is stayed." The parties' supplemental briefs are due November 8.

  This is a promising development for the law, I think, for the reasons I explained in my attempted amicus brief. On the downside, now I have to call up West and do some quick surgery on the materials covering e-mail privacy that I had written for the forthcoming new Third Edition of the LaFave/Israel/King Criminal Procedure treatise. (More work, always more work.)

  I'll probably have some more on the general question of what the Sixth Circuit might do in the case, as well as the foundational question of how the Fourth Amendment*should* apply to e-mail, in the next few weeks; I've been fiddling with a law review article on the latter, and now that the issue has a bit more breathing space I'll probably blog some of my tentative thoughts on the issue to test the waters. In the meantime I just wanted to flag the Court's decision to rehear the case en banc.
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Professors and Intelligent Design:

[Bernstein responds to Leiter here.]

According to the survey of academics' ideology linked in my previous post, "creationist identity was also low, but with less identifiable shift by age group (the range was 3.9 to 4.7 percent) and with the strongest disciplinary support in the social sciences (17.6 percent) and humanities (5.0 percent), with negligible support elsewhere. Gross and Simmons cautioned, however, that in fields like sociology and literature, scholars who identify as theocentrists are in many cases talking about specific approaches to their research and analysis, and not necessarily about a ideology they wish to see in operation."

Whoops, my mistake, substitute "Marxist" for "creationist" and "theocentrist" in the quote above. It turns out, according to the study, that 17.6 of professors in the social scientists consider themselves Marxists. Only academics doing a survey of other academics could possibly think that this is low (actually, the authors use the term "rare"!). The next time someone tells you that conservatives avoid academic positions in the social sciences because they believe in nonsensical superstitions with no empirical or logical support, while liberals believe in the scientific method, remember that 17.6% figure. (Update: See also Freud and Freudianism, whose time thankfully seems to have largely passed.)

UPDATE: Among actual scientists, in the physical and biological sciences, the percentage who identify themselves as Marxists is zero.

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Trade and Liberty:

A cool -- though exaggerated -- quote, from the Cato's Letters (1722):

Sometimes, indeed, trade, like a phantom, has made a faint appearance at an arbitrary court, but disappeared again at the first approach of the morning light: She is the portion of free states, is married to liberty, and ever flies the foul and polluted embraces of a tyrant.

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I found the Constitution-in-Exile Movement:

"The people who have been looking for 'the Constitution-in-exile movement' can stop searching for the non-existent secret headquarters in The Federalist Society’s offices. Instead, they can just drop in on a Ron Paul rally." Or so I wrote in Ron's Revolution, for this morning's National Review Online. Based on Paul's appearance at the Gun Rights Policy Conference last weekend, I've found out that Paul is running a much stronger campaign than I had previously realized.

BTW, as far as I can tell, the Fred Thompson campaign has not released any videos answering the questions which he solicited from the VC and other blogs about a month ago.

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Interesting Study on Professors' Ideology:

The Inside Higher Ed. story on the study is here.

A few interesting tidbits:

(1) There is a much higher percentage of conservatives teaching at (relatively low-paying, low prestige) community colleges than elsewhere. So much for the oft-heard theory that conservatives are so scarce at elite schools because they are selfish, ambitious, money-grubbers who lack the inclination to give up the "good life" to pursue the "life of the mind."

(2) Contrary to the stereotype of the conservative business school professor, professors of business voted 2-1 for John Kerry in '04.

(3) Among social science professors (which I assume includes economics, a relatively, but not absolutely, conservative field), Ralph Nader and "Other" combined received as high a percentage of the votes as George Bush in '04.

(4) Professors are almost evenly divided on affirmative action preferences. This is consistent with my experience; supporters are a lot louder than opponents, and there are a lot of quiet opponents out there.

(5) The youngest cohort of professors is significantly more moderate than their middle-aged colleagues, but the percentage of conservatives has stayed steady (and very low). The former point isn't a complete surprise. When universities were hiring like crazy in the 1970s, it must have seemed very attractive to political activists to obtain a tenured sinecure from which they could pursue their political activism. Nowadays, when it's so hard to get a tenure-track job, I would expect people not really committed to the academic life to be weeded out; it's pretty hard to focus on your activism when you are commuting to three different temporary teaching jobs, hoping to eventually land a permanent one.

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Monday, October 8, 2007

Naomi Klein's "Economic Disaster":

Tyler Cowen has read Naomi Klein's new book, The Shock Doctrine: The Rise of Disaster Capitalism, and he is not impressed.

Naomi Klein's "The Shock Doctrine: The Rise of Disaster Capitalism" (Metropolitan Books, 446 pages, $28), the latest anti-capitalist best seller, tries in vain to discredit the economic system that brought about modern America, the Industrial Revolution, and high standards of living around the world.

The energy of the book is real and there is no doubt it will mobilize most of its readers to higher levels of outrage and action. It's probably the most effective brand of emotional nonfiction to be published this year. But when it comes to the underlying message, and the standards of evidence used to support it, "The Shock Doctrine" is a true economics disaster.

[Link via Cato@Liberty]

Related Posts (on one page):

  1. Cowen on Krugman:
  2. Naomi Klein's "Economic Disaster":
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Here's Something Depressing:

Richard Dawkins says: "When you think about how fantastically successful the Jewish lobby has been, though, in fact, they are less numerous I am told - religious Jews anyway - than atheists and [yet they] more or less monopolise American foreign policy as far as many people can see. So if atheists could achieve a small fraction of that influence, the world would be a better place."

At best, Dawkins has used extremely loose language, and merely meant to say that AIPAC and such have disproportionate influence over U.S. policy with regard to Israel, and he wishes atheists had similar power. But when a British blogger calls him on it, instead of defening Dawkins as engaging in hyperbole in an informal interview, many of the comments basically say, "Dawkins is right, Jews do control American foreign policy." Sheesh!

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Is Sandy Berger Back?

This morning's Examiner story on Sandy Berger's reported role as an advisor to Senator Hillary Clinton has generated quite a stir. The Clinton campaign refused comment to the Examiner but has subsequently claimed Berger has no formal role in the campaign. According to Senator Clinton herself, "He has no official role in my campaign. He's been a friend for more than 30 years. But he doesn't have any official role." Asked if he was an "unofficial advisor," Clinton said, "I have thousands of unofficial advisers," said Clinton, "and, you know, I appreciate all of that. But he has no official role in my campaign." "Like many people he offers advice, but he has no official role in the campaign," a campaign aide also told CNN.

The Clinton campaign's disavowal of any official role for Berger has led some to suggest that there was never anything to this story. The Examiner did not break this story in today's article, however, nor is it an invention of the "right-wing blogosphere." A month ago Newsweek reported that Berger is part of Senator Clinton's triumverate of key foreign policy advisors. (I blogged on the story here, which is why I was quoted in the Examiner story.) On Oct. 2, the Washington Post also listed Berger as one of three key Clinton foreign policy advisors (along with Richard Holbrooke and Brian Atwood). Other sources have made similar claims in the past month or so. Yet as far as I am aware, none of these reports prompted any disavowal of Berger's role, perhaps because none of those reports prompted much critical response.

I hope the latest reports that Berger has no "official" role in the Clinton campaign are accurate, and that Berger will not be a foreign policy player in any future Democratic Administration. A less equivocal disavowal would be nice, thought. I would think it would be relatively easy for Senator Clinton to disavow any Berger involvement, official or otherwise, in advising her or her campaign. As one of my colleagues e-mailed me about the story:

I am a Democrat and a Hillary supporter, but I find her decision to bring Berger on to be appalling. He is lucky not to have done jail time. And while there may be some second acts-- e.g. Elliot Abrams-- I would think that there should be a decent interval of shunning first.
It is hard for me to believe that there are not similarly qualified individuals with equivalent foreign-policy views on the Democratic bench. What makes Berger unfit is his repeated and deliberate theft and destruction of materials from the National Archives, actions for which he has never had to fully account. While Berger initially sought to claim the thefts were a "mistake," he subsequently acknowledged that he had been "giving a benign explanation for what was not benign.”

UPDATE: I meant to add that it was odd the Examiner suggested I am a "Clinton admirer." Yes I find her to be an impressive politician, but I'm hardly her biggest fan.

SECOND UPDATE: Some Kossacks wonder "What the hell is she thinking?"

Related Posts (on one page):

  1. Is Sandy Berger Back?
  2. A Sandy Burglar Comeback?
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Strategery:

A commenter writes:

It's much easier for a dumb politician to blunder a new word into the vocabulary (strategery, normalcy), than it is for any author to come up with one by fiat.

Let's give credit where credit is due: "Strategery" was coined by Saturday Night Live writer James Downey -- a New York Times Nov. 4, 2000 article describes the skit:

Darrell Hammond plays Mr. Gore as heavy-sighing, pedantic, wedded to the concept and the word "lockbox." Mr. Hammond, who has mastered a Bill Clinton impersonation that presents him as a gleeful womanizer, has the drawling Gore intonation down but hasn't yet found the single personality trait that makes for a brilliant satiric portrait.

Will Ferrell, as Mr. Bush, has. In the debate sketch he displays an entire range of baffled looks in response to a single question, as his eyes squint and you can see the wheels churning in his head. Asked for a single word that sums up his candidacy he says, "Strategery," then gives a smug smile. (The Gore response: "Lockbox.") The sketch, written by James Downey, seems wittier with each viewing. The humor also depends on Chris Parnell's performance as the debate moderator, Jim Lehrer, with his wide-eyed look and uninflected tone.

A further Nexis search reveals no references to "strategery" from before then that suggest Ferrell was indeed borrowing the term from then-candidate Bush.

UPDATE: Double d'oh! After much blunderosity on my part, the author is now correctly identified -- James Downey, just as the quote says he is. I don't know what I must have been drinking this afternoon to screw that up; thanks to the commenters for correcting me.

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Justice Thomas on Stare Decisis: Jan Crawford Greenburg has a fascinating post at her Legalities blog summarizing an interview with Justice Thomas about his views on stare decisis. Unsurprisingly, Thomas's views seem quite different from the caricatures often presented by popular commentators:
  Thomas says [claims that he does not believe in stare decisis are] an overstatement. He suggests he sees real limits on the kind of cases he would seek to overturn--even if he believed they were wrongly decided under the Constitution.
  But there's no question, he says, he’s much more willing to go back to the precedent and reexamine it.
  "When you get a case, you have the last decision in the line. That's what's on your desk," Thomas says. "The last decision in the line is like a caboose on a train. Let's go from the caboose all the way up to the engine, and see what really went on, and let's think it all through.
  "You might get up to the caboose and find out: Oh, there's nobody in the engine," Thomas continues. "You say, 'There's nobody driving the train. What happened? Where did we go wrong? Maybe we’re headed in the wrong direction. Let's think it through.'"
  . . . .
  Thomas says he believes in stare decisis, especially in the statutory cases. If it's a choice between precedent and what he considers a correct reading of the Constitution, though, he's more willing to go to the Constitution. That’s not "radical," he says, but necessary. If the Court has deviated from the text of the Constitution, subsequent cases adhering to the precedent only magnify the error. . . ..
  That's not to say Thomas would throw out the administrative state or tackle the very existence of some independent federal agencies, as many have suggested. Thomas seems to indicate some cases are simply too settled--that so many institutions have grown out of the precedents--it could be too disruptive to go back.
  In those cases, Thomas sees precedent is an anchor—a way of mooring the Court to say "no more."
So much for the Constitution in Exile.
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Ethics Questions for University Administrators:

In today's Wall St. Journal, my colleague Peter Berkowitz notes that the ethics of running a university receives almost no attention in leading university ethics programs. He poses the following questions as examples of issues that should be considered:

Is it proper for university disciplinary boards, often composed of faculty and administrators with no special knowledge of the law, to investigate student accusations of sexual assault by fellow students, which involve crimes for which perpetrators can go to jail for decades?

Should universities have one set of rules and punishments for students who plagiarize or pay others to write their term papers, and another — and lesser — set for professors who plagiarize or pay others to write their articles and books, or should students and faculty be held to the same tough standards of intellectual integrity?

How can universities respect both professors' academic freedom and students' right to be instructed in the diversity of opinions?

What is the proper balance in hiring, promotion, and tenure decisions between the need for transparency and accountability and the need for confidentiality?

What institutional arrangements give university trustees adequate independence from the administrators they review?

Is it consistent with their mission for university presses to publish books whose facts and footnotes they do not check?

In accordance with what principles may a university bar ROTC from campus because of the military's "don't ask, don't tell policy" concerning homosexuals, while inviting to campus a foreign leader whose country not only punishes private consensual homosexual sex but is the world's leading state sponsor of terrorism, and who himself denies the Holocaust and threatens to obliterate the sovereign state of Israel?

Let me add one for law school administrators: is it ethical to admit students who you know are likely never to pass the bar, in order to ensure that your "diversity" numbers meet an arbitrary goal decided upon by the faculty or the ABA accreditation people?

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How Much Did Shakespeare Embiggen the English Vocabulary?

[Comments originally didn't work on this post; I've reposted it, and they work now.]

Shakespeare is often given credit for coining not just memorable phrases, but also hundreds of now-familiar words. The Christian Science Monitor (June 5, 2007), for instance, reports that "Shakespeare invented many words we still use today — such as amazement, lonely, and misplaced." Other sources cite still more, and the Oxford English Dictionary seems to support this judgment for many such words (including amazement, lonely, and misplaced, in at least some of their definitions). The New York Times (Dec. 26, 2004) echoed this view, though noted some uncertainty. The First Folio of Shakespeare, edited by Doug Moston and published in 1995, likewise reports that Shakespeare "actually invented over 1700 words which appear for the first time in his writing," including "accommodation, premeditation, assassination, submerged, exposure, frugal, generous, hurry, impartial, lonely, castigate, control, majestic, pious, sanctimonious, and obscene."

But the recent scanning of early English books in fully searchable format (see, for instance, Chadwyck-Healey's Early English Books Online [EEBO]) lets us test these claims — and it appears that many of them are mistaken: For instance, Philip Sidney's The Countesse of Pembrokes Arcadia (1590) contains the phrase "her coming to that lonely place (where she had no body but her parents)." Modern editions (for instance, here) seem to confirm that this corresponds to the modern English "lonely." The OED Shakespeare reference is to Coriolanus (1607).

Likewise, a publisher's note in Euclid's Elements (1570) contains the phrase — slamming the publisher's competition — "But of the disordring of it, can remayne no doubt, if ye consider in Zamberts translation, two other propositions going next before it, so farre misplaced, that where they are, word for word, before duSingle illegible letterly placed, being the 105. and 106. yet here (after the booke ended), they are repeated with the numbers of 116. and 117. proposition."

Shakespeare scholarship seems to be moving towards recognizing this: The RSC Shakespeare's William Shakespeare: Complete Works, edited by Jonathan Bate and Eric Rasmussen, puts it well (pp. xliv-xlv, paragraph beak added):

Shakespeare is sometimes said to have coined more new English words than anyone else, with the possible exception of James Joyce. This is not true. The illusion of his unique inventiveness in this regard was created by the tendency of the Oxford English Dictionary to cite examples from him as the first usage of a word. That was because of his ready availability when the dictionary was created at the end of the Victorian era. Now that there are large digitized databases of sixteenth-century books, it is easy to find prior occurrences for many supposed Shakespearean coinage.

Despite this, the list of neologisms remains impressive. To give a random selection of words, Shakespeare is responsible for such verbs [or at least for their use in the written language -EV] as "puke," "torture," "misquote," "gossip," "swagger, "blanket" ..., and "champion" .... [Note that some of these, such as "torture," are amply attested in noun form; Shakespeare is being credited here with verbifying them. -EV] He seems to have invented the nouns "critic," "mountaineer," "pageantry," and "eyeball," the adjectives "fashionable," "unreal," "bloodstained," "deafening," "majestic," and "domineering," and the adverbs "instinctively" and "obsequiously" in the sense of "behaving in the appropriate way to render obsequies for the dead" (only in the eighteenth century did the word come to connote "excessive deference" ...).

Let this be a reminder: (1) Be careful believing etymological claims, especially ones that sound especially cool, even if they occur in seemingly reputable sources. (2) Even if you check reputable sources, such as the Oxford English Dictionary, keep in mind their limitations — the OED doesn't, to my knowledge, claim that their earliest reference is proven to be the earliest printed use of a word, though it does tend to try to use the earliest reference it can find. (3) Finally, if you want to rely on claims like this, and you have a university account, see if you can do your own quickie research in databases such as EEBO and the like (which I understand many universities subscribe to).

Incidentally, I was going to also urge people to be careful in believing claims that some author "invented" a word: Authors rarely invent words, even using accepted rules of word formation — while new phrases often sound vivid and creative, new words generally just sound odd, especially when one gives a reader dozens in one work, unless one is self-consciously trying to create some sort of fictional dialect (as in A Clockwork Orange) or writing about new discoveries that require new technical terminology. But while I think this is generally good advice, I should note that UCLA English Prof. Robert Watson reports that English society was more open to invented words in Shakespeare's time.

Related Posts (on one page):

  1. Normalcy:
  2. Strategery:
  3. How Much Did Shakespeare Embiggen the English Vocabulary?
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Student Organization Activists Seek to Ban Speakers who "Speak Against Minorities" and "Instigate and Threaten People and Insult People":

From the Lansing State Journal:

A Latino student group is rallying against what they call free speech violations at Michigan State University.

About 30 representatives from Chicanos y Latino Unidos (CLU), along with members of several other organizations, met for about a half hour earlier this week on the steps of MSU's Hannah Administration Center to "challenge the university into having them take a stand about ... what the difference is between freedom of speech and hate speech, fighting words and violent speech," CLU President Gabriela Alcazar said.

Specifically, CLU wants MSU officials to disallow another student organization -- Young Americans for Freedom (YAF) -- from hosting speakers who "speak against minorities" and "instigate and threaten people and insult people," said Alcazar, 20, who originally is from Imlay City.

"There's a point where they don't have the right to say the things they've been saying," said the international relations and social relations and policy major. CLU wants the university "to begin drawing a line and not keep covering everything with freedom of speech."

MSU's chapter of YAF has made news for various events, including an anti-immigration forum last year during which violence broke out.

The student organization was recently listed as a hate group by Montgomery, Ala.-based Southern Poverty Law Center, a civil rights law firm....

YAF has invited Mark Krikorian from the Center for Immigration Studies to speak against illegal immigration from 7 p.m. to 9 p.m. today at room 102 in Conrad Hall, Bristow said....

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Raging Kegger With the Justices: One of the themes of the recent books on the Supreme Court is that the Justices are actual human beings. In case you still don't believe it, don't miss C-SPAN's coverage of the party Armstrong Williams hosted for Justice Thomas to celebrate his new book (51 minutes). Most of the Justices attended, several with their spouses. They were joined by the likes of the Cheneys, Senators Specter and Graham, Michael Chertoff, John Bolton, Ted Olson, and Julian Bond. C-SPAN's cameras missed RBG's keg stand and the SGB/AMK round of beer pong (a long-running rivalry), but they did capture a lot of the Justices hanging out and chatting just like actual people. Even Justice Souter makes an appearance, around the 13 minute mark. Plus you get to hear lots of the trademark Justice Thomas laugh. Surprisingly entertaining to watch.

Thanks to Howard for the link.
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Update on Judge Samuel B. Kent:

The Houston Chronicle has a new article with updates on the controversy over Judge Samuel B. Kent, the Galveston, Texas federal judge who has been disciplined for sexual harassment, and has a long history of other ethical lapses. As the article explains, more and more people are calling for Congress to investigate the possibility of impeaching Kent (which is the only way to remove him from the bench).

Unfortunately, there are a couple of minor factual errors in the piece. For example, I am identified as a professor at George Washington University, not George Mason. The article also states that "In 2005, he was formally rebuked in a 5th Circuit opinion for showing favoritism." In fact, the decision in question was handed down in 2002, and Kent was rebuked for showing "hostility" to one of the parties in the case, not for favoritism (which might be considered a somewhat more serious violation of judicial ethics). I have pointed out these mistakes to one of the article's authors, and she assured me that they will be corrected. I don't think these errors significantly affect the article's main points: that the accusations against Kent are serious, and that support for a congressional investigation is growing.

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Conflicting Rationales for Affirmative Action in Higher Education:

I agree entirely with David Bernstein's previous post: affirmative action in higher education should not be categorically forbidden, but it should be both more transparent and better designed. As David writes, "it's important to . . . have a theory as to which people you are giving preferences to, and why, rather than just give a preference to anyone who meets rather arbitrary ancestry rules." This is particularly important in light of the fact that different rationales for affirmative action imply very different admissions policies. If affirmative action is based on the "diversity" rationale, which holds that students benefit from having classmates with varied backgrounds, then it might make sense to give affirmative action preferences to white immigrants from countries such as Sweden or Russia. Such people will, on average, contribute more to diversity than native-born American whites. The same goes for black immigrants from Africa or the Caribbean relative to native-born blacks.

By contrast, if the justification for affirmative action is compensatory justice - trying to redistribute wealth to groups that have suffered from discrimination in this country - then a very different set of affirmative action priorities is called for. The issue cannot be avoided by saying that we should pursue both goals at once. Given a limited number of affirmative action admission slots, places allocated under the diversity rationale will not be available for compensatory justice purposes and vice versa.

I discussed these issues in more detail in this post, which addressed the controversy raised by the fact that a substantial proportion of black affirmative action admittees at elite schools are African or West Indian immigrants.

Related Posts (on one page):

  1. Conflicting Rationales for Affirmative Action in Higher Education:
  2. Preferred Practices for Affirmative Action in Universities:
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Obama's Economic Advisor & GOP Economic Views:

George Will has a recent column profiling University of Chicago economist Austan Goolsbee, an advisor to the Barack Obama presidential campaign. Goolsbee was a classmate of mine at Yale. While we often disagreed political matters, I was always impressed by his intelligence and wit. He also seems to have impressed Will, who concludes his column:

Economics is the only academic discipline that in recent decades has moved in the direction that America and much of the world has moved, to the right. Goolsbee no doubt has lots of dubious ideas — he is, after all, a Democrat — about how government can creatively fiddle with the market's allocation of wealth and opportunity. But he seems to be the sort of person — amiable, empirical and reasonable — you would want at the elbow of a Democratic president, if such there must be.
Senator Barack Obama is an impressively eloquent speaker, but the content is sometimes lacking, particularly when it comes to the nitty-gritty of public policy. He can say quite a bit without saying very much at all (something I noticed the first time I testified before him at a Senate committee hearing, well before he became a presidential candidate). Strip away the thematic elements and emotional appeals, and it is not always clear where Obama stands on a given issue. Yet if Goolsbee is representative of those who will advise him on economic matters, that speaks well of the Obama campaign, and the sort of economic policies we could expect from an Obama administration.

While I find Obama's choice of economic advisors reassuring, I share Dan Drezner's dismay at the apparent decline of support for free trade among Republican voters. As the WSJ recently reported:

By a nearly two-to-one margin, Republican voters believe free trade is bad for the U.S. economy, a shift in opinion that mirrors Democratic views and suggests trade deals could face high hurdles under a new president. . . .

Six in 10 Republicans in the poll agreed with a statement that free trade has been bad for the U.S. and said they would agree with a Republican candidate who favored tougher regulations to limit foreign imports. That represents a challenge for Republican candidates who generally echo Mr. Bush's calls for continued trade expansion, and reflects a substantial shift in sentiment from eight years ago.

The leading GOP Presidential contenders seem to still support free trade, but that may not count for much if the rank-and-file disagrees. The Bush Administration often talked a good game on trade, but Bush trade policy has been a profound disappointment.

And not all GOP presidential wannabees support free trade, or necessarily understand the trade implications of some of their other policy arguments. Mike Huckabee, for instance, believes that "A country is not free if it can't produce three things for itself — its own food, its own fuel, and its own fighting apparatus." Comments like this suggest he knows as little about economics as he does about evolution. Perhaps Goolsbee has a Republican colleague that could help bring Huckabee up to speed.

UPDATE: Maybe GOP disillusionment with free trade is overstated. I sure hope so.

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Sunday, October 7, 2007

Preferred Practices for Affirmative Action in Universities:

I posted this in the comments, but I liked it enough to decide to make a post of it:

I don't have a blanket objection to affirmative action, but I do think it's important to (a) have a theory as to which people you are giving preferences to, and why, rather than just give a preference to anyone who meets rather arbitrary ancestry rules (e.g., why should a the child of white immigrant physicians from Bolivia be preferred (as a "Hispanic") over the child of dark-skinned poor religious refugees from Iran?); (b)have some transparency, so that students are more or less aware of the scope of the preferences they may be benefiting from, and can choose whether to attend with reasonably full information (this is especially important at law schools, given the extremely high rates at which black matriculants at lower-ranked law schools either fail out or never pass the bar); and (c) do serious analysis every once in a while to ensure that whatever programs are established are meeting their goals (which should be established as part of (a)), and are not just continuing to exist out of bureaucratic inertia (or dogma) despite being counterproductive.

UPDATE: I should note that some or all of these "preferred practices" may be inhibited or prevented by the Supreme Court's affirmative action jurisprudence, which allows preferences only for "diversity" purposes. Of course, no one really takes this seriously, least of all the Court itself; if this had been taken seriously, Grutter would have had to come out the other way, because the district court found as a factual matter that despite Michigan's denials, the law school gave preferences only to select Hispanics (Mexican-Americans and mainland Puerto Ricans). Taking the tenth Mexican-American over the first Cuban or Columbian-American may make sense from a redistributivist perspective, but it hardly contributes to "diversity." Nevertheless, universities must at least pretend to obey the law.

Related Posts (on one page):

  1. Conflicting Rationales for Affirmative Action in Higher Education:
  2. Preferred Practices for Affirmative Action in Universities:
41 Comments
Nonprofit Governance Reform:

Interesting article in the National Law Journal on governance reform of nonprofits (HT: Peoples Republic of). Most of the reforms appear to be well overdue and really little more than common sense, such as: (1) reducing conflicts of interest (many boards have made their presidents nonvoting members, for instance), (2) greater separation of governance from fundraising so that board members are appointed for their expertise and engagement on governance, not merely as a reward for their largesse, (3) increasing transparency to stakeholders through greater disclosure of finances and the like, (4) reducing board size to enable better deliberation and accountability, and (5) eliminating or reducing the power of the executive committee of the board to ensure greater transparency and accountability:

Transparency model

The old model of nonprofit organizations' being satisfied with minimum legal requirements is giving way to a new paradigm of nonprofits that want to be viewed by outsiders as a model of transparency, Silk said.

Nonprofit board members who are also public company executives have lived through their corporation's governance overhauls, and they are realizing that the organizations they volunteer for need to make changes, he said.

"There's a demand from organizations with sophisticated board members," Silk said.

One of Silk's clients, the San Francisco Opera, has been moving toward the new model starting with adopting a conflict of interest policy a couple of years ago. In July, the opera amended its bylaws to create a governor's board that handles business and governance issues such as finance and compliance. A larger board of directors, including some members who are more interested in fund raising than governance, don't need to attend the governor's board meetings, Silk said.

The opera has also become more transparent by posting its audited financial statements, its code of ethics and conflict of interest policy on its Web site.

Silk wrote an opinion letter for the opera and they adopted some of his suggested changes.

ASAE & The Center for Association Leadership also recently overhauled its governance structure, with help from Jerry Jacobs, a Washington-based partner who heads Pillsbury Winthrop Shaw Pittman's nonprofit practice team.

"He clarified for us what was typically best practices," said society President and Chief Executive 0fficer John Graham. "He [also] did the heavy lifting in terms of the total rewrite of our bylaws."

The Washington-based center, an advocacy and membership group for other associations, is trimming a 38-member elected board to 15 as members' terms expire. It also eliminated an executive committee and shifted its duties to the board and altered the bylaws to boost the board's authority to make future changes.

Under the previous structure, some board members felt like they were a "rubber stamp" for the executive committee, while the new board has a stronger governance structure and is more transparent, Graham said.

"We're operating in an atmosphere now, and an environment right now, where increased transparency is important," Graham said. "Because of the type of organization we are, we should be a model of good governance."

All nonprofits pay far more attention to governance issues since Sarbanes-Oxley, and congressional oversight activity has only highlighted the importance of governance for many organizations, Jacobs said.

"All of this has added up to raise the awareness, of those who sit on the boards of nonprofits, of governance issues," he said.

Despite these trends, I understand that other nonprofit institutions have been moving in a different direction, toward less board independence, less accountability, less transparency, larger board size, and a more powerful executive committee. Amazingly, these developments sometimes are even justified under the rubric that they constitute "best practices" of board practice.

Update:

Michael Schrage calls my attention to an interesting column he penned for the Financial Times a few months back alohng the same lines.

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Clarence Thomas, Yale Law School, and Affirmative Action:

Like co-conspirator David Bernstein, I think it wasn't unreasonable for Justice Clarence Thomas to believe that he got into Yale Law School without the aid of affirmative action. It is important to remember that Thomas was in the top two percent of his undergraduate class at Holy Cross. When I was a student at Yale Law School in the 1990s, I had numerous white classmates who had gotten in by virtue of being in the top 1-2 percent at undergraduate institutions of the same caliber as Holy Cross, and in some cases ones significantly less prestigious. Admittedly, I don't have any aggregate statistics; but I certainly met quite a few such students during my time at YLS. I was able to meet a significant percentage of the other students at YLS at the time, due to the school's small size; so the people I met were probably a roughly representative sample of the YLS student body. Most of the white YLS students from non-elite undergrad institutions did not have anything in their backgrounds comparable to Thomas' inspirational story of growing up in poverty in a broken home (Thomas' father left his family when he was an infant, and Thomas was raised by his grandfather).

Assuming that Thomas had a good LSAT score, the combination of his record at Holy Cross and his life story might well have been enough to get him admitted to YLS were he white. Based on my observations, he might have gotten in on that basis in the 1990s - a time when admissions standards were probably slightly higher than in the 1970s because by that point Yale had regained its standing as the generally acknowledged no. 1 law school (a position it had arguably lost to Harvard in the 70s).

As liberal constitutional law scholar Mark Tushnet documents in this article, Thomas' opposition to affirmative action is not based on the view that it is intrinsically unjust to whites, but on his belief that it does blacks more harm than good in the aggregate. For reasons I discussed in detail here, it therefore would not be unethical for Thomas to benefit from affirmative action while personally opposing it. In fact, however, it is possible that Thomas had good reason to believe that he might have gotten to YLS even without the benefit of affirmative action. If that conjecture is right, then affirmative action was a net loss for him in that phase of his career (though it probably helped him later in the Reagan Administration). Its existence led potential employers and others to doubt his abilities, without helping him to get into Yale.

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Interrogation by Ping Pong:

Yesterday's Washington Post had this interesting article about military interrogations during WWII and the soldiers that conducted them.

58 Comments
Did Justice Thomas Know He Was Admitted to Yale Because of His Race:

I can't find a link right now, but I've seen several commentaries that expressed incredulity at Justice Thomas's claim that he believed that he was admitted to Yale Law School not because he was black, but because of the obstacles he had overcome (which were, to understate things, rather substantial) while succeeding in every educational environment. According to Thomas, the administration at Yale led him to believe that they were inclined to admit him because of his successes at overcoming these obstacles, and it was only later that he discovered that they and everyone else viewed him as the recipient of a race-based advantage that he obviously feels demeaned what he had accomplished.

I can't vouch for Thomas's account, but I did want to point out that it's entirely possible that Yale denied it was giving him special treatment based on race. In fact, until rather recently, as a result of publicity attendant to the drop in minority admissions at the UC law schools after Proposition 209, and the data revealed as a result of anti-affirmative action litigation brought in Texas and Michigan by the Center for Individual Rights, the leaders of elite law schools routinely denied that they used meaningful racial preferences.

Consider Dean Herma Hill Kay of Boal Hall Law School's response when she was asked on national television in April 1995 why there was "a widespread perception that the minorities who are admitted with those special considerations are the result of standards being lowered." Kay responded that law schools do not lower standards to admit minorities. Rather, when schools "'choose between two equally qualified persons,' . . . [they] pick the 'person of color' in order to 'do something about the really fundamental problem of racial prejudice in this society.'"

Meanwhile, for the entering class in 1996, the average LSAT statistics for Boalt students were as follows: Whites 168 (96.9 percentile); Asian 166 (95); Hispanic 159 (80.5); Black 155 (67).

I provide a couple of other examples of elite law schools denying or downplaying their racial preferences, including one from the Yale administration circa 1990, in this article (a defense of a constitutional right for private universities to use racial preferences in admissions).

If as late as 1995 law schools were denying their use of preferences, it's not hard to imagine they were doing the same twenty years earlier, and that Thomas believed them.

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Sunday Song Lyric: John Mellencamp's new song and video, "Jena," has struck a nerve with the town's mayor, Murphy R. McMillin.
"The town of Jena has for months been mischaracterized in the media and portrayed as the epicenter of hatred, racism and a place where justice is denied," Jena Mayor Murphy R. McMillin wrote in a statement on town letterhead faxed on Friday to The Associated Press.

He said he had previously stayed quiet, hoping that the town's courtesy to people who have visited over the past year would speak for itself. "However, the Mellencamp video is so inflammatory, so defamatory, that a line has been crossed and enough is enough."
The mayor is particularly upset with, what he sees, as the song's characterization of his town, and the video's juxtaposition of the current controversy with images from the civil rights struggles of the 1960s. "To put the incident in Jena in the same league as those who were murdered in the 1960s cheapens their sacrifice and insults their memory," McMillan said.

In response to such criticism, Mellencamp posted a statement on his website, Mellencamp.com (where one can also find the song lyrics and video).

I am not a journalist, I am a songwriter and in the spirit and tradition of the minstrel, I am telling a story in this song.
The story is not, strictly speaking, about the town of Jena or this specific incident but of racism in America.
The song was not written as an indictment of the people of Jena but, rather, as a condemnation of rasicm, a problem which I've reflected in many songs, a problem that still plagues our country today.
The current trial in Jena is just another reflection of prejudice in our nation. If the song strikes an emotional chord with people and if they examin it and interpret as they will, something will have been accomplished. The aim here is not to antagonize but, rather, to catalyze thought.
As for the lyrics, here is how the song begins.
An all white jury hides the executioner's face
See how we are, me and you?
Everyone here needs to know their place
Let's keep this blackbird hidden in the flue

Oh oh oh Jena
Oh oh oh Jena
Oh oh oh Jena
Take your nooses down

UPDATE: As noted in the comments, while Mayor McMillin does not like John Mellencamp's suggestion that Jena is a racist community, this story suggests he was not so upset about receiving "moral support" from white supremacist groups.

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Sunday Song Lyric Rerun:

Given recent events, it is hard for me to think of a more appropriate Sunday Song Lyric than Live's "Heaven." The only problem is that I've posted that song before. Still, it fits, and it's a great song.

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Frank Rich, Clarence Thomas, and the Missouri Assistant Attorney General: In today's New York Times, Frank Rich has a rather nasty essay that purports to catch Justice Thomas misrepresenting his past. The specific example is Justice Thomas's first job out of law school in the Missouri Attorney General's Office. As Justice Thomas tells the story, he couldn't get a job from any law firm despite graduating in the middle of his class from Yale Law School. Law firms assumed he was enrolled in law school only because of affirmative action, so Thomas had to struggle to find a job; he ended up getting only one offer in the Missouri government, thanks to Jack Danforth.

  Rich suggests that Thomas's version of events misrepresents the facts, vivid proof of Thomas's "dubious relationship with the whole truth and nothing but." Rich writes:
This could be seen most vividly on "60 Minutes," when he revisited a parable about the evils of affirmative action that is also a centerpiece of his memoir: his anger about the "tainted" degree he received from Yale Law School. In Mr. Thomas's account, he stuck a 15-cent price sticker on his diploma after potential employers refused to hire him. By his reckoning, a Yale Law graduate admitted through affirmative action, as he was, would automatically be judged inferior to whites with the same degree. The "60 Minutes" correspondent, Steve Kroft, maintained that Mr. Thomas had no choice but to settle for a measly $10,000-a-year job (in 1974 dollars) in Missouri, working for the state's attorney general, John Danforth.

What "60 Minutes" didn't say was that the post was substantial — an assistant attorney general — and that Mr. Danforth was himself a Yale Law graduate. As Mr. Danforth told the story during the 1991 confirmation hearings and in his own book last year, he traveled to New Haven to recruit Mr. Thomas when he was still a third-year law student. That would be before he even received that supposedly worthless degree. Had it not been for Yale taking a chance on him in the first place, in other words, Mr. Thomas would never have had the opportunity to work the Yalie network to jump-start his career and to ascend to the Supreme Court. Mr. Danforth, a senator in 1991, was the prime mover in shepherding the Thomas nomination to its successful conclusion.
  So is Rich correct that Thomas "worked the Yalie network" to get a "substantial" job, that of "Assistant Attorney General," the suggestion being, I gather, that this was the kind of plum position that perhaps only a Yalie could get?

  I don't think so. As I understand it, in Missouri the title "Assistant Attorney General" is the standard job title given to an entry-level attorney hired in the state Attorney General's Office. It's not exactly a common destination for those "work[ing] the Yalie network"; my googling around suggests that most Assistant Attorneys General in Missouri are hired straight from Missouri law schools.

  Perhaps Rich was misled by the fact that in the federal government, the job of Assistant Attorney General is indeed quite a job. It's a Senate-confirmed position, often heading hundreds of attorneys.

  But state governments are different. In many states, that lofty title is given to entry-level lawyers. My sense is that this is the case in Missouri. If you look at the listings of job openings in that office, they are all for the position of Assistant Attorney General.

  I did a little googling around to see what kind of resumes and experience lawyers typically have before being appointed Assistant Attorney General in Missouri. Here are a few bios of attorneys who once held the job, with their law school attended and how long after graduation they were hired: Brundage (Missouri-Columbia, year after graduation), Rebman (Missouri - Kansas City, right after graduation), Ottenad (Wash. U., right after passing bar), Miller (Wash. U., after law school graduation), Glaser (Drake, after 2 years at small firm), Franke (Missouri-KC, right after graduation), Cosgrove (Notre Dame, apparently after short stint at KC firm), Richardson (Missouri, right after graduation), Zito (Missouri-KC, apparently right after law school), Siegel (Wash. U., right after graduation), Spinden (Missouri-KC, apparently right after law school).

  As best I can tell, these individuals who were hired as Assistant AG in Missouri did not have "the opportunity to work the Yalie network to jump-start [their] career[s]." I can find no other Yale graduates who had this job, and for that matter I haven't been able to find anyone who attended an "elite" school either at the undergraduate or graduate level who had it.

  To be clear, I think these sorts of jobs are terrific. I think an entry-level job at a state AG's office is a simply wonderful way to get real legal experience and serve the public. But Rich's suggestion that this was some kind of highly sought-after job among the New Haven set -- and that Thomas never could have had it without affirmative action, because he could only get that job from Yale -- appears to be pretty clearly false. And in case you're wondering about Rich's sarcastic reference to "a measly $10,000-a-year job (in 1974 dollars)," that salary in 1974 translates after inflation into about $41,600 a year today. Kind of a weird way to use that Yalie network, I would think.

  Now, it's very possibly true that if Justice Thomas hadn't gone to Yale, he wouldn't have ended up on the Supreme Court. Only 110 people have served as Justices on the Supreme Court since the first Justices were confirmed in 1789, so random chance necessarily plays the overwhelming role in selecting who gets the job. But Justice Thomas's "parable" concerns his efforts to get a job as a law school graduate in 1974, not his non-effort to get elevated from the DC Circuit to the Supreme Court in 1990. Given that, Rich's argument strikes me as pretty clearly out of line.
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