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Saturday, December 29, 2007

Problems with the Fair Tax Proposal:

Economist Bruce Bartlett has recently published an excellent article debunking the "Fair Tax," a proposal to replace the federal income tax with a 23% sales tax that has been endorsed by Republican presidential candidate Mike Huckabee and a few other conservatives. As Bartlett explains, some prominent Fair Tax supporters falsely claim that it is what he calls a "double free lunch." Against both empirical evidence and basic economic theory, they claim that people will get to keep all the money they would now pay as income tax without experiencing any increase in the prices of goods and services they purchase (even though the latter would now have a hefty new sales tax attached to them).

In addition to Bartlett's many well-taken objections, there is another serious problem with the Fair Tax and other schemes to replace income taxation with sales taxes: they makes the true cost of government less visible to voters. For all its flaws, the income tax system at least gives taxpayers a fairly clear indication of what their total income tax liability is: every April you have to calculate it, or hire an accountant to do it for you. In a sales tax system, by contrast, you don't really know how much money you're paying the federal government in all. To be sure, you can calculate the amount by keeping close track of all your purchases and then multiplying by 0.23 at the end of the year (assuming the proposed Fair Tax rate of 23% is the one enacted). However, given that most voters are "rationally ignorant" and have little incentive to keep close tabs on government policy, it's unlikely that many will do so. Moreover, as Bartlett explains, Fair Tax supporters intend to supplement their basic proposal with a complex system of rebates that would make the total tax burden even more difficult to calculate. The net result of the Fair Tax would be to make the true cost of government less visible to voters. That, I would argue, has been one of the effects of the somewhat similar value added tax (VAT) by which many European countries raise a large part of their revenue.

I'm not suggesting that this effect is Huckabee's objective or that of other Fair Tax supporters. The libertarian in me is a bit suspicious of Huckabee's motives, given his simultaneous support for high levels of government spending and "nanny state" regulation. A political leader with Huckabee's views has an obvious interest in establishing a tax system that would reduce public awareness of the costs of the many government programs he advocates. However, I don't doubt that there are many people who support the Fair Tax in good faith, and perhaps Huckabee is one of them. Whatever their motives, however, the potential harm caused by the enactment of the Fair Tax is likely to exceed any benefits.

UPDATE: It's worth noting, as Bartlett points out in his article, that the 23% Fair Tax rate is misleading. If one were to calculate the FT tax rate the same way we normally describe income taxes and state sales taxes, the true FT rate would be about 30%. The 23% figure is arrived at by calculating the tax's percentage of the total price of a good, including the tax, as opposed to the conventional method of calculating the tax's percentage of the pretax price. If you want a more detailed explanation of this point, see Bartlett's article. For the purposes of this post, the bottom line is that the misleading way Fair Tax advocates calculate their proposed tax rate is likely to make it even more difficult for taxpayers to figure out how much they are actually paying to the government each year.

124 Comments
Are Law Professors Miserable, and if so Why?

Paul Caron of TaxProfblog claims that law professors tend to be unhappy and tries to explain why. He argues that legal academia is a "miserable" job because it is characterized by 1) anonymity, 2) irrelevance (inability to see any impact your job has on the lives of others), and 3) "immeasurement," (inability to measure whether you are succeeding at the job or not). UCLA lawprof Steve Bainbridge takes issue with Caron's assessment, pointing out that there is no proof that law professors are, on average, more unhappy than professionals in other fields. He also notes that professors do not in fact generally suffer from anonymity, irrelevance, and immeasurement. I think Bainbridge generally has the better of this argument. In particular, he is absolutely right to note that academics don't lack for measures of their success (or lack thereof). Our achievements and failures are measured by citation rates, conference invitations, offers of visiting positions, promotion to tenure, pay increases (which at many schools are at least partly merit-based, and of course student evaluations. None of these measures are perfect. But collectively they should give most professors a reasonably good indication of their professional standing.

In addition to the points Bainbridge makes, I would note that it's hard to believe that being a lawprof is an unusually "miserable" job in light of the fact that there are so many more people who want get into legal academia than there are jobs available. According to AALS data, in most years, less than 15% of applicants for entry level law professor jobs succeed in getting a position. That is a very high demand for a "miserable" job, especially when we consider the fact that most of these applicants could earn higher salaries as private sector lawyers. It's possible that all these sophisticated graduates of top law schools (and sometimes of PhD programs as well) are misinformed, though I tend to doubt it. In any event, very few people leave legal academia to go into the private sector, even though people who already have lawprof jobs are presumably well-informed about how "miserable" such positions are.

There are also important advantages of being a professor relative to most other professional jobs. They include opportunities to travel to interesting locations, an unusually high degree of control over your schedule, and spending most of your time working on issues that interest you.

Obviously, some professors really are "miserable." And the job certainly isn't right for everybody. I know people who are happy working at law firms who would hate the academic life. However, it's unlikely that the life of the average lawprof is more miserable than that of the average professional in most other fields.

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Predictions for 2008:

Really, wild guesses and speculations:

(1)John McCain recovers to win the Republican nomination.

(2)Ron Paul does better than expected, and is one of the last three candidates left in the race. He then runs a third party campaign, drawing enough support from McCain, especially in the Mountain States, to throw the race to the Democratic nominee.

(3) The U.S. will enter a recession in the third quarter of 2008

(4) which will also be the bottom of the housing market in nominal (but not real) price terms.

(5) There will be a surprise Supreme Court vacancy.

Check back in December 2009 to see how I did.

46 Comments

Friday, December 28, 2007

Tom Goldstein's iPhone: For Supreme Court geeks, this is really funny.
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Decanal Narcissism:

Russell Weaver has an interesting post on the problem of the narcissistic law dean.

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Does the Militia Preface Qualify the Right to Keep and Bear Arms? In light of the question presented in The District of Columbia v. Heller now pending in the Supreme Court, I have updated the SSSN version of my article, Was the Right to Keep and Bear Arms Conditioned on Service in an Organized Militia?, so you can now download the final version as it appeared in the Texas Law Review (suitable for citing!). Download it here. Here is the abstract:
Those who deny that the original meaning of the Second Amendment protected an individual right to keep and bear arms on a par with the rights of freedom of speech, press and assembly no longer claim that the amendment refers only to a collective right of states to maintain their militias. Instead, they now claim that the right, although belonging to individuals, was conditioned on service in an organized militia. With the demise of organized militias, they contend, the right lost any relevance to constitutional adjudication. In this essay, I evaluate the case made for this historical claim by Richard Uviller and William Merkel in their book, The Militia and the Right to Arms, or, How the Second Amendment Fell Silent. I also evaluate their denial that the original meaning of Fourteenth Amendment protected an individual right to arms unconditioned on militia service. I find both claims inconsistent with the available evidence of original meaning and also, perhaps surprisingly, with existing federal law.
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Watch Inalienable: The Movie: The film in which I appear as an assistant prosecutor has been released by Renegade Studios. You can view it on line for $2.99 and see a free trailer for the movie (including a brief glimpse of me in the courtroom being seated at counsel table) here. [If the audio of the trailer is choppy, try the one on Walter Koenig's website.] You can also watch the the interview with me from the set, which includes scenes from the production, that was made for the extended DVD features on my website randybarnett.com (scroll down and click on my picture in video frame). Here is a still shot of me and Marina Sirtis (Deanna Troi on Star Trek: The Next Generation) from the filming.

Scene with Marina

Here is a picture of the courtroom cast:

Court Room Cast

Renegade Studios is employing a new internet-based distribution scheme for this film (and a variety of other projects) prior to its release on DVD and, possibly, also on the Sci-Fi Channel. Here is the press release:
Star Trek's “Chekov” — Walter Koenig — Boldly Goes Where No Feature Film Has Gone Before

"InAlienable,” Written and Produced by Walter Koenig and Starring Battlestar Galactica's Richard Hatch & TNG's Marina Sirtis, Makes Worldwide Premiere on the Internet on Saturday, December 15, 2007


(Los Angeles, Calif. – December 13, 2007) “InAlienable,” the first production from Renegade Studios, will become the first full-length sci-fi feature film to premiere on the Internet. Through the magic of digital technology, beginning Saturday, December 15, the entire 105-minute feature can be viewed in exceptional full screen high quality on any relatively new PC or Mac with a broadband connection. Viewers will go to www.renegade-studios.com and pay a mere $2.99 per showing.

“InAlienable” stars Richard Hatch (Battlestar Galactica), Courtney Peldon (Boston Public), Marina Sirtis (Star Trek: Next Generation), Erick Avari (Stargate, Heroes) and Walter Koenig (original Star Trek). The strong supporting cast includes Jay Acovone (Stargate SG-1), Richard Herd (Seinfeld and Star Trek: Enterprise), Judy Levitt (Babylon 5), Andrew Koenig (Star Trek: Deep Space Nine), Pat Tallman (Babylon 5), Gary Graham (Alien Nation, Star Trek: Enterprise), Alan Ruck (Star Trek: Generations, Ferris Bueller’s Day Off), Philip Anthony Rodriguez (Jake 2.0, Star Trek: Enterprise) and JG Hertzler (Star Trek: Deep Space Nine).

“InAlienable is a work of love by all that were involved,” Walter Koenig stated. “I’m extremely proud of our production team, cast and crew.”

“InAlienable” brings a well-crafted sci-fi story to life. Still guilt-ridden over the accident that took his family's lives, Eric Norris discovers that his body is host to a parasite from another world. Except, it is more than a parasite: it carries his DNA. Is this his new son or--as the government believes--a threat to mankind?

Executive producers for “InAlienable” are Walter Koenig, R.H. McRoberts and Luke McRoberts. Producers are Sky Conway, Karuna Eberl and James McLean. Director is Robert Dyke and writer is Walter Koenig. ”InAlienable” was shot on location in southern California. For more information, visit www.renegade-studios.com.

Update:Some readers report that the trailer on the Renegade website is choppy. My playback is choppy too. I am emailing the producer to see if there is some technical issue with viewing the film on line and will post an update when I hear back from him. In the meantime, the trailer on the WalterKoenigSite.com seems to work fine.

11 Comments

Thursday, December 27, 2007

Mel Torme Sings "We've Got A World That Swings": To many in the VC audience, Mel Torme is probably most famous as the object of Judge Harry Stone's fascination in the 80s TV sitcom hit "Night Court." When you think Mel Torme, you probably think of schmaltzy recordings that no one could possibly listen to seriously. Here's the thing: Although Torme did in fact participate in many schmaltzy or even campy performances (cough), he is actually one of the most gifted jazz singers. Catch him in the right setting, and Torme's talent is simply astonishing.

  Here's an example of Torme in the right setting: with a jazz trio, in 1964, singing "We've Got a World That Swings" for Ralph Gleason's Jazz Casual program. Check it out.


  Great stuff, isn't it? What a voice. If you want to to hear more, be careful out there: watch out for the schmaltz. My recommendation is one of my all-time favorites, Mel Torme Swings Shubert Alley, with the Marty Paich Orchestra. Terrific stuff, no schmaltz.

  Finally, some random trivia about the song. The original lyrics were from the 1963 movie "the Nuttty Professor," as performed by Jerry Lewis. There's a line in the song, presumably about the Cuban Missile crisis, that goes "atom bombs, Cape Canaveral false alarms." After Kennedy was assassinated, however, LBJ renamed Cape Canaveral "Cape Kennedy." Singing just a few months later, Mel updates the lyrics by singing "Cape Kennedy" instead of "Cape Canaveral." Cape Kennedy later reverted back to Cape Canaveral, so more recent versions of the song (such as the one by They Might Be Giants) use the original lyrics.

  UPDATE: Scott Johnson had an interesting post on Torme a while back here.
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The Purpose of the AALS January Meeting: Over at Brian Leiter's Law School Reports, Brian comments on the upcoming Association of American Law Schools January meeting for law professors: "[M]y sense is that specialist meetings of scholars have completely displaced the AALS as the destination of choice for those looking for conferences with intellectual content. Am I wrong?" Brian is quite right. This year's panels look unusually good, but in past years I've been significantly underwhelmed.

  Of course, that doesn't mean the AALS January meeting has no purpose at all. As I see it, it serves at least five critical purposes, in descending order of importance: (1) It provides law professors with an all-expenses paid trip to the city where the conference is being held (this year, New York); (2) It provides professors an opportunity to sample the culinary delights of that city (figures Solove would be way ahead of me there); (3) For conservatives and libertarians, it provides a trip to the Federalist Society's shadow conference, always held near the AALS meeting and generally rich in intellectual content (and always with lots of co-conspirators); (4) For blog readers, it puts you in town for the annual CoOp/Prawfs happy hour; and (5) It provides a chance to roll your eyes at the bland and meaningless theme the conference organizers come up with, this year being "Reassessing Our Roles as Scholars and Educators in Light of Change." Uh huh.

  (With that said, yup, I'll be there this year. In fact, I plan to walk up to people to ask, "so, are you reassessing your role as scholars and educators in light of change?" I sure hope they are!

  UPDATE: I amended the post after looking more carefully at this year's schedule; whatever the past failings of the AALS, this year's offerings look much better than the usual ones.

  ANOTHER UPDATE: Eric Muller has posted an amusing essay about the AALS annual meeting here. Footnote 4 is a gem.
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Washington Post on Ahmadinejad at Columbia:

I missed this when it was published on Dec. 17th, but it's awful, so bad that I'm almost embarrassed for the author. Just to give you a flavor:

(1) The article starts this way: "When the head of Columbia University suggested that free speech was banned in Tehran, Iranian President Mahmoud Ahmadinejad not only disagreed, he also invited Lee C. Bollinger to come and see for himself. The retort won Ahmadinejad applause on the New York campus and accolades back home."

(2) Columbia is home to many far-left professors who specialize in the Middle East, including Joseph Massad, who, as VC readers will recall, argues that there is a "Gay International" conspiracy to impose Western notions of homosexuality on Arab countries. But only "Jewish students" at Columbia are given the appellation "radical" by author Dafna Linzer. (The Post later issued a correction for the "radical" characterization.)

(3) Seventy Columbia professors were initial signators to a letter attacking President Lee Bollinger. Sixty-one professors initially signed a dissent to this letter. Linzer's characterization? "More than 100 faculty members signed a letter protesting Bollinger's leadership. And in closed-door meetings, some of them have accused him of pandering to donors, selling out Middle East scholarship and embarrassing the Ivy League institution.... In response, a smaller, rival faction, which includes a large number of Jewish faculty members, wrote its own letter in defense of Bollinger and urging careful reviews of tenured positions for two Palestinian professors." The letter, in fact (which you can read for yourself here), made no mention whatsoever of "two Palestinian professors", or, for that matter, "careful review" of tenure files. (It did, correctly, defend the proposition that there is no reason outsiders to the university should not comment on what they see as "inappropriate forms of teaching, allegations of intimidation or harassment, or the distortion of basic historical or scientific facts," by faculty).

(4) The article spends ten paragraphs quoting or paraphrasing professors critical of Bollinger, including repeating completely unsubstantiated allegations against him. Not a single paragraph quotes or paraphrases professors who praise Bollinger (except the paragraph above noting that that a defense "by a smaller, rival faction" was made, but not elaborating on the content), much less anyone who thinks Ahmadinejad should not have been invited to begin with, or who thinks Columbia has been overly generous to its hyper-politicized Middle Eastern Studies scholars. Bollinger himself gets two short sentences to defend himself.

And yes, the Post piece was supposed to be a news story, not an op-ed.

UPDATE: A reader has forwarded to me email correspondence showing that Steven Holmes, a national desk editor, was responsible for inserting the word "radical" into Ms. Linzer's text. As far as I know, primary responsibility for the rest of the article's flaws lies with Ms. Linzer.

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Benazir Bhutto Assassinated in Pakistan: Uh oh. From the New York Times:
  The Pakistani opposition leader Benazir Bhutto was assassinated near the capital, Islamabad, on Thursday. Witnesses said Ms. Bhutto, who was appearing at a political rally, was fired upon by a gunman at close range, quickly followed by a blast that the government said was caused by a suicide attacker.
  Ms. Bhutto, a former prime minister of Pakistan, was declared dead by doctors at a hospital in Rawalpindi at 6:16 p.m. At least a dozen more people were killed in the attack.
  Dr. Abbas Hayat, professor of pathology at Rawalpindi General Hospital where Ms. Bhutto was taken, said doctors tried to revive her for 35 minutes, but that she had shrapnel wounds and head injuries and was in heart failure. He said he could not confirm whether she had bullet injuries.
  A close aide to Pakistani President Pervez Musharraf blamed Islamic militants for the assassination, and said it was carried out by a suicide bomber. Ms. Bhutto’s death is the latest blow to Pakistan’s treacherous political situation, and leaves her party leaderless in the short term and unable to effectively compete in hotly contested parliamentary elections that are two weeks away, according to Hasan Askari Rizvi, a leading Pakistani political and military analyst.
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Col. Davis' Rejoinder to Brig. Gen. Hartmann:

Col. Morris Davis once again takes to the pages of the Los Angeles Times, this time to reply to Brig. Gen. Thomas Hartmann's response to his criticisms of U.S. military tribunals for Gitmo detainees and his stated reasons for resigning as the chief Gitmo prosecutor.

Hartmann says the military commissions are consistent with an American military justice system that is the envy of the world. Apparently he's privy to some worldwide polling data I haven't seen, because it appears to me military commissions have created worldwide enmity, not envy. To overcome that, there must be two assurances from the highest levels: One, that evidence derived from waterboarding will not be introduced before a military commission, and two, that all reasonable efforts to keep the proceedings open to the media and other observers will be exhausted before closing any portion of any trial. That's the minimum American justice demands.

[Hat tip: Greg McNeal]

In related news, Brig. Gen. Hartmann's congressional testimony (which was delivered because the military denied the Senate's request for Col. Davis to appear) has prompted at least one Navy JAG to resign.

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Should the LSAT Have A "Logic Games" Section?: The Law School Admission Test (LSAT) is a major factor in law school admissions at every law school. The test itself features three different types of questions, more or less unchanged since 1982: logical reasoning, reading comprehension, and analytical reasoning. Wikipedia offers this summary of the three types of questions:
Logical Reasoning
The test contains two logical reasoning sections, commonly known as "arguments" or "LR". Each question begins with a paragraph which presents either an argument or a short set of facts. The paragraph is followed by a prompt asking the examinee to find the argument's assumption, an alternate conclusion, logical omissions or errors in the argument, to choose another argument with parallel reasoning, or to identify a statement that would either weaken or strengthen the argument.

Reading Comprehension
The test contains one reading comprehension ("RC") section. . . . The questions ask the examinee to determine the author's main idea, find information in the passage, draw inferences from the text, and describe the structure of the passage.

Analytical Reasoning
The test has one analytical reasoning section, informally known as the "logic games" section. . . . The material generally involves grouping, matching, and ordering of elements. The examinee is presented with a setup ("there are five people who might attend this afternoon's meeting") and partial set of rules that govern the situation (e.g. "if Amy is present, then Bob is not present; if Cathy is present, then Dan is present..."), and is then asked to deduce conclusions from the statements (e.g. "What is the maximum number of people who could be present?"). Individual questions often add rules and occasionally modify existing rules, requiring the examinee to reorganize information quickly.
  To see these various types of questions "in action," check out a sample LSAT exam here.

  It's easy to see how the first two types of questions measure lawyerly potential. The logical reasoning section tests the applicant's ability to understand the nature, scope, and weaknesses of various arguments. Reading comprehension tests the applicant's ability to understand and interpret written text. Both skills are directly relevant to legal reasoning; they largely mirror the kinds of mental moves that people make when making legal arguments.

  On the other hand, I confess I don't understand why the LSAT has a "games" section (aka "analytical reasoning"). This section tests an ability to understand relationships among a handful of variables and to see the different ways that different combinations of those variables can fit different criteria. The skill set seems to be keeping a lot of variables in mind and working with how a change in the boundaries of a problem changes how the different pieces can relate to each other. That is an important skill set in many professions, to be sure; it's something that I did all the time when I was in engineering graduate school. But I wonder, how important is that skill to either the study or the practice of law? What kinds of legal tasks rely heavily on that skill?

  The Law School Admission Council's report on the history of different LSAT questions explains that the purpose of these questions is "to understand the structure of a relationship," and claims that they "represent the kind of detailed analyses necessary in solving legal problems."(p.8) But I don't see why. (The report cites a 1993 study, but I couldn't find it online.) It's not clear to me that this particular kind of reasoning is directly relevant to either the study or practice of law.

  One possibility is that perhaps the LSAT people think logic games questions are like "issue spotters," which themselves try to mimic providing advice to a client who brings you a specific set of facts and wants to know how the law might apply. The legal skill here is having a deep understanding of what a legal test means so that you can quickly see the legal terrain raised by the new facts. But that seems really different from the skills evaluated by the logic games questions. The logic games sections always have trivially easy "doctrines." For example, you might have three rows of chairs, and a "doctrine" will be something like "Sam must sit in the same row as Betty." The skill in answering the question has little to do with having a deep understanding of the rule; it's not like they're testing ambiguity in the meaning of the word "sit." Feels like a pretty different part of the brain to me.

  In light of this, I propose that the "logic games" portion of the LSAT be eliminated from the test. Do you agree?
119 Comments

Wednesday, December 26, 2007

Could Solar Be Cheaper than Coal?

Nanosolar promises solar power at lower cost than coal, Gristmill's David Roberts reports. If they can deliver -- and the commenters are quite skeptical -- it would be a major milestone. Indeed, if solar and other renewable power sources could compete with carbon-based energy sources, it would make a transition to a low-carbon economy relatively easy-- and if such power sources are cost-competitive, the transition will occur without need for government subsidies and mandates. So, the question is whether Nanosolar and the like can deliver.

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Save Journeyman: Journeyman is a rare network television show that I have really enjoyed. It is a clever sci-fi drama about a San Francisco newspaper journalist who is sent back in time involuntarily to intervene in someone's life by altering the past and changing the present. Why this is happening to him is one of these gradually unfolding mysteries. He works on these missions with a woman who is sent forward in time from the 1940s. Although a bit reminiscent of Quantum Leap, in my view it is much more intelligently written and performed, with a complex interaction between the past and the present. If you have not seen the show, you can watch all episodes for free on the NBC website here.

After 13 episodes, the series was not renewed, although it has also not yet been officially canceled. Before that happens, there is an effort being mounted to save the show. If you are already a fan of the show, you can find details here, as well as two on-line petitions here and here.

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Not Loving the Chains.--

Gail Heriot’s post on mandatory sensitivity training in California brings to mind a lively opinion by Judge Posner. She was particularly bothered by the program’s teaching that white males who claimed that they were victims of discriminatory action or who criticized affirmative action were dangerous (tip to Hans Bader and Instapundit).

In a 2001 7th Circuit case (People Who Care v. Rockford Bd. of Ed.), the Rockford, Illinois, school system was in federal receivership, which despite draining the community of 238 million dollars had not apparently accomplished its ultimate goal of substantially closing racial performance gaps. Posner addressed the argument that public officials were not sufficiently enthusuastic about the program imposed by the federal courts.

The plaintiffs' principal argument for the indefinite continuation of the decree is that the school board has not been complying with it in good faith. The difference between technical compliance and compliance in good faith is that the latter form of compliance does not exploit loopholes and ambiguities. . . . It is not, as the plaintiffs would have it, that the school board must "actively" support the decree, must express "commitment" to it, and, above all, must not criticize it. The undemocratic implications of this position leave us almost speechless. Are elected officials, the members of the school board, elected long after and not complicit in the illegalities that gave rise to the litigation, forbidden, under threat of never resuming control of the public school system that they were elected to govern, to criticize a decree that in pursuit of an ambitious and possibly quixotic scheme of social engineering has imposed a formidable tax burden on the people who elected these officials?

Pressed at argument, the plaintiffs' able lawyer could not cite an instance in which the school board has violated any of the numerous provisions of the decree. He may well be correct that the decree would have achieved more had it been enthusiastically embraced by the board, but state and local officials are under no duty to love the chains that federal judges, however justifiably, fasten upon them.

Judge Posner's earlier opinion in the case is also worth a read.

Encryption, the Fifth Amendment, and Aaron Burr: Following my posts last week on encryption and the Fifth Amendment, a few readers asked about how courts have dealt with such issues before. As far as I know, there is only one other judicial decision specifically addressing the Fifth Amendment implications of decrypting ciphertext. Remarkably, it arose 200 years ago, in the treason trial of former Vice-President Aaron Burr.

  The prosecution had charged Burr with treason for leading a failed rebellion against the United States in the western territories. The evidence included an encrypted communication Burr had sent to his alleged co-conspirators. To decrypt the communication, the prosecutor subpoenaed Burr's private secretary, Willie, (who knew the key to Burr's cryptography) and forced him to testify as to the communication's plaintext meaning. Willie objected on Fifth Amendment grounds.

  In United States v. Burr, 25 F. Cas. 38 (C.C. Va. 1807), Chief Justice Marshall ruled that Willie could be compelled to answer because revealing his knowledge of the cipher would not incriminate him. Here was Marshall's analysis:
To know and conceal the treason of another is misprision of treason, and is punishable by law. No witness, therefore, is compellable by law to disclose a fact which would form a necessary and essential part of this crime. If the letter in question contain evidence of treason, which is a fact not dependent on the testimony of the witness before the court, and, therefore, may be proved without the aid of his testimony; and if the witness were acquainted with that treason when the letter was written, he may probably be guilty of misprision of treason, and, therefore, the court ought not to compel him to answer any question, the answer to which might disclose his former knowledge of the contents of that letter.

But if the letter should relate to misdemeanor and not to the treason, the court is not apprized that a knowledge and concealment of the misdemeanor would expose the witness to any prosecution whatever. On this account the court was, at first, disposed to inquire whether the letter could be deciphered, in order to determine from its contents how far the witness could be examined respecting it. The court was inclined to this course from considering the question as one which might require a disclosure of the knowledge which the witness might have had of the contents of this letter when it was put in cipher, or when it was copied by himself; if, indeed, such were the fact. But, on hearing the question more particularly and precisely stated, and finding that it refers only to the present knowledge of the cipher, it appears to the court that the question may be answered without implicating the witness, because his present knowledge would not, it is believed, in a criminal prosecution, justify the inference that his knowledge was acquired previous to this trial, or afford the means of proving that fact.

The court is, therefore, of opinion that the witness may answer the question now propounded.
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The Case of Samuel Golubchuk: The Government's Right to Kill the Terminally Ill

In 2006, the Terry Schiavo case attracted national attention in the United States, with a conflict between a woman's parents (who wanted to care for their daughter and keep her alive) and the woman's ex-husband (who wanted her feeding tubes removes so that she would die of dehydration, and who said that he was acting according to her wishes). Right now in Canada, a similar case is playing out, with one crucial difference: all of the man's family wants him to live, while his doctors want him terminated.

Samuel Golubchuk is an 84-year-old Orthodox Jew in Winnipeg, Manitoba. Hospitalized since October 26, he is believed by his doctors to be terminally ill, and to have suffered brain injuries which leave him unconscious. The doctors want him removed from his respirator and feedng tube. His family strongly objects on religious grounds, argues that where there's life there's hope, and says that he holds their hands during visits. It appears that Mr. Golubchuk has not been examined by a neurologist, or had tests performed which might confirm the Winnipeg doctors' belief about his brain function status.

Toronto professor Peter Singer, and of the rightfulness of killing humans with low degrees of self-consciousness, writes that forcing the doctors to continue to provide care for Mr. Golubchuk violates the doctors' rights. He argues that the family should be given time to find another hospital willing to care for Mr. Golubchuk, and if they cannot, then the family should accept his death.

Over the forceful objections of the Canadian Medical Association, a Winnipeg judge has issued a temporary injunction forbidding Grace Hospital from euthanizing Mr. Golubchuck. The doctors point to their own ethical standards against providing what they believe to be "futile" treatment, and claim that end-of-life decisions should be made by physicians, who have the patient's best interests at heart. Supporters of the family reply that doctors should not have the authority to over-ride a family's religious beliefs, liken the proposed euthanasia to Nazi tactics, and point to a recent case in Calgary, where a man believed by physicians to be irreversibly brain-damaged made an unexpected recovery.

The debate in Canada, which has been reported in international newspapers, does not yet appear to have dealt with the fact that the "physician rights vs. family rights" conflict is exacerbated by Canada's rigidly socialized system of health care. Unlike, for example, in the U.K. or Ireland, it is extremely difficult (although, thanks to a 2005 Supreme Court ruling, technically legal) for physicians to operate outside the government-run health care system. In a non-coercive system of health care, families could use their own money, or private insurance to pay for health care. Privately-funded hospitals could operate under the standards of their sponsors, such as religious organizations. A Catholic hospital could accept for Mr. Golubchuk as a patient (and provide him with medical care pro bono, if the hospital so chose), and keep him alive pursuant to Catholic beliefs about the sanctity of human life. Conversely, physicians who wanted to practice euthanasia could operate at hospitals which allowed the practice, and patients and families who accepted such practices could choose such hospitals.

There are many pro/con arguments about fully socialized vs. partially-socialized vs. non-coercive systems of health care. It does seem that one advantage of systems with less coercion is not forcing doctors or families to violate their ethical beliefs, or forcing health-care decisions into courts. In any case, it is fortunate for Mr. Golubchuk's family that Canada still has an independent judiciary.

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Spinning American Jewish Opinion on Israel:

From a survey of American Jewish opinion, including everyone from the most committed Jews to the completely unaffiliated:

9. Do you think there will or will not come a time when Israel and its Arab neighbors will be able to settle their differences and live in peace? Will 37 Will Not 55 Not Sure 8

10. Do you think that negotiations between Israeli Prime Minister Ehud Olmert and Palestinian Authority President Mahmoud Abbas can or cannot lead to peace in the foreseeable future? Can 36 Cannot 55 Not Sure 9

11. Do you think that Israel can or cannot achieve peace with a Hamas-led, Palestinian government? Can 17 Cannot 74 Not Sure 9

12. In the current situation, do you favor or oppose the establishment of a Palestinian state? Favor 46 Oppose 43 Not sure 12

[Note that this is a remarkably ambiguous formulation of the question. I support the establishment of a Palestinian state, but not until a peace agreement is reached and the Palestinian government proves itself capable of establishing order. Does that mean that "in the current situation" I support or oppose the establishment of a Palestinian state? ]

13. In the framework of a permanent peace with the Palestinians, should Israel be willing to compromise on the status of Jerusalem as a united city under Israeli jurisdiction? Yes 36 No 58 Not Sure 7

14. Do you agree or disagree with the following statement? "The goal of the Arabs is not the return of occupied territories but rather the destruction of Israel." Agree 82 Disagree 12 Not Sure 6

The obvious conclusion from this survey is that American Jews are moderately hawkish on Israel, very suspicious of Israel's neighbors' intentions, and very pessimistic about the prospect for peace. Overall, these positions are to the "right," of e.g., the Bush Administration, which hopes to see the establishment of a Palestinian state by the time it leaves office, undoubtedly desires that Israel compromise on Jerusalem, and believes that territorial compromise can resolve the Arab-Israeli conflict.

But according to Eric Alterman, American Jews are "impressivlely sensible," by which he means left-wing and dovish, on Israel, especially when compared with the evil "Bush/neocon agenda," apparently because about half of them support a Palestinian state. [Editor's note: The Bush Administration's most prominent neocon during its seven years in office, Paul Wolfowitz, was also an ardent supporter of the establishment of a Palestinian state.] Similarly, Glenn Greenwald somehow concludes that the poll shows that hawkish views on Israel, such as those propounded by evil "right wing neocons" (a category in which he bizarrely includes AIPAC, which in my experience is dominated by moderates who lean liberal), are supported by only a small minority of American Jews, a position not supported by the data in the poll .

Contrary to Alterman, there is no evidence discernable from this survey that mainstream Jewish organizations, which he claims have been taken over by a well-organized right-wingers, have positions far more hawkish on Israel than is reflected in mainstream Jewish opinion, much less the mainstream opinion of Jews actively affiliated with the community (who tend to be both better informed, more hawkish, and by definition more likely to be the direct constituents of Jewish organizations). On the other hand, it seems clear that Jewish popular opinion is strongly oppose to at least some positions of Jewish "peace" groups such as Brit Tzedek V'Shalom [with whom Alterman has collaborated]. For example, while only 17% of American Jews think Israel could achieve a peace deal with "a Hamas-led government," BTVS thinks that Israel should "pursue every avenue for peace and reconciliation with Hamas."

Alterman's agenda, of course, is to discredit organizations that don't share his own rather idiosyncratic perspective on Israel, by falsely portraying them as captives of right-wing extremists well out of the Jewish mainstream. But by spouting nonsense about an "unholy alliance between conservative-dominated professional Jewish organizations [such as the American Jewish Committee! Hah!] and neoconservative Jewish pundits, aided by pliant and frequently clueless mainstream media that empower these right-wingers to speak for a people with values diametrically opposed to theirs," he's only discrediting himself.

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A Creationist Credential:

The Dallas-based Institute for Creation Research is seeking state approval to train science teachers. This is one of those ideas that should be left on the shelf, right next to Lynne Spears' book on parenting.

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The Archivist Who Challenged Cheney:

Newsweek has an interesting interview with J. William Leonard, until recently director of the Information Security Oversight Office (ISOO) in the National Archives, and his conflicts with the Vice President's office over the classification of government documents.

The veteran National Archives official challenged claims by the Office of Vice President (OVP) to be exempt from federal rules governing classified information. His efforts touched off a firestorm—and a counter-strike by Cheney's chief of staff, David Addington, who tried to wipe out Leonard's job. (Addington did not respond to requests for comment on the subject.)

Now, Leonard is quitting as director of the Archives' Information Security Oversight Office (ISOO)—the unit that monitors the handling of government secrets. He tells NEWSWEEK that his fight with Cheney's office was a "contributing" factor in his decision to retire after 34 years of government service.

Apparently part of the dispute results from the Vice President's contention that he is not part of the executive, but part of the legislature.

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Bowden on the Waterboarding of Abu Zubaydah:

Agree with his conclusions or not, Mark Bowden is always worth reading. His reporting on counter-insurgency and counter-terrorism efforts, from Black Hawk Down to his articles on torture and interrogation methods in The Atlantic (see here and here) are riveting, thought-provoking, and often unsettling. Few, if any, journalists have covered these issues and events with his level of insight and intelligence.

This past Sunday, Bowden had a an op-ed in Philadelphia Inquirer, somewhat deceptively titled "In Defense of Waterboarding." In the article, Bowden argues that information gleaned from coerced interrogations should never be admissible in court. But he rejects the notion that torture never "works," if by that one means that torture never yields truthful information. What torture and other coercive interrogation techniques yield is that which the victim believes his captors want to hear. If they want a confession for criminal conduct, they'll get it, and it will be worthless. But if they want readily verifiable, time-sensitive intelligence information, coercive interrogation methods may yield that as well. Writes Bowden:

Here's where the issue gets confusing. No information gained by coercive methods ought to be admissible, ever, in a trial or tribunal. Torture can be used to twist (the word torture literally means "to twist") testimony in any desired direction. The goal of any criminal proceeding is justice, and torture produces only the kind perfected during the Inquisition.

The goal of an intelligence operation in wartime, on the other hand, is to elicit accurate, timely information to thwart attacks. In this setting, interrogation is a process, one in which a prisoner is rewarded for the truth, and punished for lying. It is designed to save lives and ensure the success of a military operation. Coercive methods are rarely necessary. Most often, prisoners can be induced to cooperate by being nice to them. There are many other interrogation methods proven to be useful that do not require so much as raising one's voice. But there will always be hard cases like Abu Zubaydah and Khalid Sheik Mohammed, another mastermind of Sept. 11. With prisoners like these, defiant and dangerous, the only right question to ask is, What works?

Again, Bowden's answer is that, for intelligence purposes, coercive methods that induce fear can work — indeed, "fear works better than pain" — and (in the most extreme cases) there may not be equally effective alternative methods available.

Does this mean that official government policy should sanction torture or other coercive interrogation methods? Not to Bowden. He believes that techniques like waterboarding are, and should remain, illegal. But he also argues that this does not mean those who waterboarded Abu Zubaydah should be subject to criminal prosecution. As he concludes:

It is an ugly business, and it is rightly banned. The interrogators who waterboarded Zubaydah were breaking the law. They knew they were risking their careers and freedom. But if the result of the act itself was a healthy terrorist with a bad memory vs. a terror attack that might kill hundreds or even thousands of people, it is a good outcome. The decision to punish those responsible for producing it is an executive one. Prosecutors and judges are permitted to weigh the circumstances and consider intent.

Which is why I say that waterboarding Zubaydah may have been illegal, but it wasn't wrong.

Waterboarding was a horrific thing to do to someone, even someone as evil as Abu Zubaydah. Such conduct should be forbidden and never sanctioned as official policy (even if some journalists and DoJ officials have survived it). At the same time, there may be extreme (and extremely rare) circumstances in which life does imitate an episode of "24," and horrific measures may be necessary. This does not mean such measures should be legal. Rather, as Bowden suggests, the specific context should be considered when authorities decide whether and how to prosecute those involved for breaking the law.

UPDATE: A few quick points in response to some of the comments below. First, many claims made in the comments have already been addressed in one or more of the Bowden articles linked above. Bowden clearly understands that non-coercive interrogation techniques are more than sufficient in the vast majority of cases. Indeed, both Atlantic articles linked above discusses the success of such techniques in some detail. Yet he also identifies instances in which such methods were insufficient, and where coercive techniques designed to generate fear (rather than inflict pain) yielded potentially life-saving information. Another example not discussed by Bowden is when Israeli agents used extremely coercive interrogation techniques on one of the captors of Corp. Nachshon Waxman. These methods violated Israeli law, but they also worked, and Waxman was rapidly found (but killed nonetheless). The unfortunate reality is that coercive interrogation methods designed to instill fear in captives can produce potentially life-saving intelligence information in a timely fashion in many circumstances. It is also true that such techniques, in and of themselves, are morally repugnant and using (or even threatening to use) such techniques is illegal, whether or not one wishes to call them "torture."

As for what Bowden proposes, his approach is basically that adopted by Israel after the Israeli Supreme Court overturned regulations allowing coercive interrogations as official policy. Such techniques are now illegal in Israel, but those prosecuted for utilizing them can also plead necessity in their defense. Keeping the techniques illegal prevents their use in all but the most extreme circumstances, but it is also understood that their are instances in which other values may trump compliance with the law. I would also note that, under U.S. law, prosecutorial discretion and the pardon power both permit executive officials (or the President) to excuse extreme actions taken in extreme circumstances, and the pardon power has been used to excuse actions that a president believed were justified despite being against the law.

Why not simply approve these techniques if they can "work" when properly used? Because when they are approved they tend not to be "properly used." As Bowden has reported (and some commenters note), ex ante approval of coercive techniques tends to lead to their "overuse." In Israel and elsewhere the experience has been that the standards for when such techniques can be used are progressively lowered and the official sanction of such techniques leads to abuse. This is one reason why Bowden argues for ex post exoneration due to "necessity" instead of ex ante approval.

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Westlaw's "CRIMPROC" Database: I blogged a few days ago about the publication of the new edition of LaFave, Israel, King & Kerr's Criminal Procedure treatise, in 7 exciting volumes for sale at $689.50. While that's great for law libraries, a much more useful alternative for most of us is the CRIMPROC database on Westlaw. CRIMPROC is a Westlaw database devoted entirely to this treatise; the whole enchilada is there, and it's all that's there. I've found that researching criminal procedure questions in CRIMPROC is really helpful, as you can enter in a keyword or two (or any other Westlaw query) and quickly get to the treatise's discussion of the topic you need. The new third edition is already online; my own contribution is the new Chapter 4, "Network Surveillance."

  Of course, this doesn't help you if you don't have access to Westlaw. But I did want to flag the database for readers who have Westlaw access and might not know they already have access to the new treatise.
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Tuesday, December 25, 2007

Sled Police with Radar Guns?: Instapundit offers up the following post:
SLED POLICE — with radar guns. I agree with the commenter who says, "When cops start this kinda thing, it’s time to start laying them off. They have way too much time on their hands."
It would be pretty remarkable if cops were actually using radar guns to try to "catch" kids sledding too fast. As I read the underlying story, though, I don't think that's happening. It seems that the "injury and prevention manager" at the local Children's Hospital is trying to get kids to wear helmets when sledding. To dramatize the issue, she convinced a local cop to use his radar gun to show the local newspaper how fast kids were sledding down a hill. So it seems that it was a staged event to make for a better story, not a case of police actually trying to catch "speeding sledders." (A point I make not to defend the story, but rather just to point out that it's pretty different from what some readers may think.)

  UPDATE: Glenn adds to his original post: "Orin Kerr thinks my provocative headline is misleading. I guess he's right, though I saw the story as evidence of creeping nanny-statism, likely to produce a slippery slope leading to mandatory helmet laws, actual speed limits, etc. Plus, who didn't know that sleds can go 19 miles per hour, roughly as fast as a man can run? This seems to be how most of the commenters at Don Surber's blog, linked above, saw it too. We've been down that slippery slope in plenty of other areas, and we didn't need a sled to do it. But to the extent my pithiness was misleading, I apologize." I agree with Glenn that it was strange to have a police officer confirm the speed of sleds; high speed is the whole point, and there was no need for a radar gun to prove it.
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Early Soviet Jewish Emigration:

Without Jewish emigration from the Soviet Union, the world would be a very different place. For one thing, this blog wouldn't exist. Here's a very interesting article on Soviet Jewish emigration in the early 1970s, when it became a mass movement. Among other things, the stereotype of the typical emigre as a well-educated Muscovite or Leningradnik is wrong; few of the early emigrants had advanced degrees, and they disproportionately came from the fringes of the USSR, where Soviet repression was both less consistent and more recent.

Hava Nagila:

When is the last time a video for a hit song (in England) had the singer performing at what appears to be a large bat mitzvah?

UPDATE: Bonus article--the origins of the hora.

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Tom Hanks IS 007:
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Merry Christmas!

 

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Soviet Humor Making a Comeback:

Dan Emory passes along one that I hadn't heard before, in any version:

Putin conjures up the ghost of Stalin and asks him how he can consolidate his power.

Stalin advises as follows:
Step 1 Kill all the democrats
Step 2 Paint the Kremlin blue

Putin replies: Why Blue?

Stalin replies: Aha! I knew you wouldn't ask about step 1.

UPDATE: OK, I take it back -- I guess this is at least a close relative of this old classic, from the Radio Yerevan family (though I don't think it was meant to be at all focused on Armenians):

A caller asks Radio Yerevan: "I saw a billboard that said, 'Beat up all the kikes and the bicyclists.' Tell me, please: Why the bicyclists?"

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Dinesh D'Souza on Atheism and Libertarianism:

There is no shortage of poorly informed rants against libertarianism; similarly, it's easy to find silly screeds against atheism. Dinesh D'Souza, however, has achieved the unusual distinction of combining these two genres in a single column. Let's start with the part about libertarians:

Many libertarians are basically conservatives who are either gay or druggies or people who generally find the conservative moral agenda too restrictive. So they flee from the conservative to the libertarian camp where much wider parameters of personal behavior are embraced.

It is true that most libertarians oppose parts of "the conservative moral agenda" (at least to the extent that that agenda is to be enforced by the state). The rest of the above is hogwash. The vast majority of libertarians are neither gay, nor "druggies," nor even people with unusual personal lives of any kind. And there are very few libertarians who have "fled" from conservatism, because most libertarians were never conservative to begin with. There are many prominent libertarian thinkers who are former liberals or socialists, such as Hayek, Friedman, Richard Epstein, and quite a few others. Very few if any were former conservatives of any kind - much less ones who fled because they were gay or wanted to use drugs. To top it off, D'Souza also commits the common mistake of conflating libertarian opposition to state regulation of "personal behavior" with "embracing" such behavior (more sophisticated conservative critics of libertarianism, such as Kay Hymowitz often make the same mistake).

The anti-atheist part of D'Souza's screed is even sillier. He starts by suggesting that Christopher Hitchens' fondness for alcohol (and possibly that of other atheists who drink a lot) is somehow related to his rejection of religion (as if there aren't plenty of theists who drink to excess). He ends with this:

I agree that many nominal Christians have also forgotten the message of Christmas. Even so I wonder: what's the atheist equivalent of Christmas? Darwin's birthday? For many libertarians I suppose it's the day they get their tax refunds.

Here, D'Souza makes the common but foolish mistake of conflating atheism with the theory of evolution. In reality, you can be an atheist and reject that theory (as the Soviet government to a large extent did under Stalin) or be a theist and accept it (as the Catholic Church now does). And, as Radley Balko points out, D'Souza is seriously misinformed if he thinks that libertarians celebrate tax refunds as opposed to decrying them as a part of the government's deceptive scheme to extract what are effectively coercive interest-free loans from the taxpayers.

As for the "atheist equivalent of Christmas," atheists no more need an equivalent of Christmas than we need an equivalent of Ramadan or Yom Kippur. Part of the point of atheism is that we do not believe in the need for holidays that honor deities. Obviously, there are atheists who celebrate theistic holidays for cultural or family reasons or just to have a good time. But atheism as such has no need for "equivalents" of religious holidays. Indeed, since atheism is not a comprehensive belief system but merely a rejection of the existence of God, it has no need of any holidays at all. Rather, individual atheists will choose to celebrate particular holidays for ethnic, historical, or philosophical reasons that generally have no connection to atheism itself. Just as atheism is compatible with a variety of different moral and political views, it is also compatible with a variety of different holidays.

There once was a time when Dinesh D'Souza was a reasonably serious public intellectual. I didn't always agree with him then, but his writings were at least worth considering. This column, coming on the heels of his book arguing that we should sacrifice many of our freedoms in order to allay the anger of Muslim fundamentalists, suggests that those days are gone. There are weighty arguments to be made against both libertarianism and atheism. Sadly, Dinesh D'Souza is no longer likely to be the one to make them.

UPDATE: Just in case, I should clarify that in denying that "many libertarians" are "gay...or druggies," I am in no way accepting D'Souza's equation of these two categories. As I'm sure regular VC readers know, I don't believe that there is anything wrong with being gay. Indeed, it is probably true that the percentage of gays among libertarians is higher than among social conservatives. However, even if gays are twice as common in the libertarian community as in the nation as a whole, that would still make them only a tiny fraction of the total.

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Monday, December 24, 2007

"Good" Intentions and the Nature of Evil:

I think Eugene is right to suggest that Will Smith did not really say that Adolf Hitler was a good person, but merely claimed that Hitler himself believed that he was doing the right thing. The latter is, as far as I know, an uncontroversial statement among experts on Nazi Germany. However, it's striking that so many observers - including the reporter who interviewed Smith and Instapundit - seem to conflate the two.

The confusion is at least in part the result of a shortcoming of the pop culture image of evil. We tend to think of evil people as those who know what they are doing is wrong, but do it anyway. In reality, most of the world's greatest evildoers, Hitler included, actually believe that their evil actions are morally praiseworthy. Many - notably the Nazis, Communists, and today's radical Islamists - have elaborate ideologies that validate those actions. Indeed, it is striking that most of the great mass murders of the last century were committed by Nazi or Commmunist regimes in order to advance their strong ideological and moral commitments. If Lenin, Stalin, Hitler, and Mao had cared only about their narrow self-interest and holding onto power, they would have killed many fewer people. Even serial killers often believe that their actions are justified - either on weird ideological grounds of some kind or as a response to real or imagined slights that they have suffered. In real life, there are very few cackling villains open reveling in (what they admit to be) their evil ways. As Smith said of Hitler, the typical mass murderer "woke up in the morning and using a twisted, backwards logic, . . . set out to do what he thought was 'good'."

We often praise those who seem "principled," are "people of faith," or show other signs of genuine moral commitment. The most dangerous evildoers, however, are not those who lack principles altogether, but those who believe all too fervently in the wrong ones.

UPDATE: I do, however, think that Smith was naive to suggest that Hitler's type of evil could be addressed through "reprogramming," at least not if "reprogramming" simply means education and persuasion. By all accounts, Hitler was strongly committed to his ideology and was unlikely to change his mind about its fundamentals. Of those prominent Nazi leaders taken alive by the Allies at the end of World War II, very few (such as Albert Speer) ever admitted that Nazi ideology was wrong, despite extensive efforts to persuade them to do so.

Related Posts (on one page):

  1. "Good" Intentions and the Nature of Evil:
  2. Broken Journophone?
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Calabresi-Melamed and Bernard Malamud:

With the possible exception of attending committee meetings, grading final exams is the most boring part of a professor's job; that - plus recovering from ankle surgery- is what I have been doing the last few days. Tis definitely the season to be jolly.

Every once in a while, however, the monotony is broken by a hilarious exam blooper. In my Property class, I always cover the Calabresi-Melamed framework which distinguishes property rules, liability rules and inalienability rules.

This year, the students seem to have grasped it well. However, I did read one exam that repeatedly referred to "the Bernard Melamud" theory. What (other than my inadequate teaching, of course) could have led the student to make this mistake? I eventually figured out that he or she must have confused Calabresi and Melamed with novelist Bernard Malamud. Malamud did write some books where legal issues feature prominently; his most famous novel, The Fixer, is a fictionalized account of the trial of Mendel Beilis, a famous anti-Semitic "blood libel" case in czarist Russia. Unfortunately, however, Malamud - unlike Jane Austen - didn't focus much on property law and wasn't much of a law and economics scholar.

It's a minor mistake by the student and one that I didn't penalize much; but humorous nonetheless.

UPDATE: As commenter JonathanM points out, Malamud did in fact write a property law-related novel, The Tenants. Perhaps the student had read this book recently, applied a Calabresi-Melamed analysis to to the plot and began to conflate their theory with Malamud!

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Broken Journophone?

Glenn Reynolds (InstaPundit) writes, "LIBERAL FASCISM: Will Smith says nice things about Hitler." He links to this short World Entertainment News story:

Will Smith has stunned the world by declaring that even Nazi dictator Adolf Hitler was essentially a "good" person.

The Men In Black star, 39, is determined to see the best in people, and is convinced the former German leader did not fully understand the extent of the pain and suffering his actions would cause during his time in power in the 1930s and '40s.

He says, "Even Hitler didn't wake up going, 'Let me do the most evil thing I can do today'.

"I think he woke up in the morning and using a twisted, backwards logic, he set out to do what he thought was 'good'. Stuff like that just needs reprogramming."

Hitler's totalitarian leadership as Fuhrer during 1934 until his eventual suicide in 1945 resulted in the persecution of an estimated six million Jews in the Holocaust, and his invasion of Poland in 1939 led to the start of the Second World War.

But did Will Smith really "declar[e]" that Hitler "was essentially a 'good' person"? The World Entertainment News story seems to be based on an interview with the Daily Record (Scotland), the relevant portion of which reads this way:

Remarkably, Will believes everyone is basically good.

"Even Hitler didn't wake up going, 'let me do the most evil thing I can do today'," said Will. "I think he woke up in the morning and using a twisted, backwards logic, he set out to do what he thought was 'good'. Stuff like that just needs reprogramming.

"I wake up every day full of hope, positive that every day is going to be better than yesterday. And I'm looking to infect people with my positivity. I think I can start an epidemic."

It seems that "Will believes everyone is basically good" is just the reporter's characterization of Smith's statement. Nothing in the quoted material suggests that Smith was saying that Hitler was a good person. Rather, the quoted material simply reports Smith's quite plausible view that Hitler, like many other people who do evil (Smith must have used Hitler as a referent precisely because Smith acknowledges that Hitler did do evil), believe that they are doing good. I'm hardly a Hitler scholar, but my sense is that Hitler did indeed believe that he was doing good, as did Stalin, Bin Laden, and various others.

At most, given the upbeatness of the rest of Smith's message, Smith might be saying that everyone has the potential for good, if only they can be "reprogramm[ed]" away from their "twisted, backwards logic." This is not clearly true; perhaps people can't be so easily reprogrammed even in theory, certainly they often can't be in practice, and there's also the question of how they should be held accountable for what they did before their reprogramming. Sometimes stuff like that needs killing, as in Hitler's case and quite a few others. But surely Smith's message isn't outrageous, either, at least unless he said something stunning that the reporters for some reason decided merely to paraphrase rather than quote -- possible, but in my view far from certain. What Smith is actually quoted as saying doesn't seem like a statement that Hitler is a "good person," evidence of "liberal fascism," something that should "stun[] the world," or even particularly "nice things about Hitler."

On the other hand, to give blame where blame is due, the World Entertainment News should certainly be faulted for talking about "persecution of an estimated six million Jews in the Holocaust" (as InstaPundit points out, quoting a reader).

Related Posts (on one page):

  1. "Good" Intentions and the Nature of Evil:
  2. Broken Journophone?
31 Comments
Helping the Needy: December is the time of giving for many Americans, whether they are inspired by the holidays or the tax code. What are your favorite charities? And, to the extent you feel comfortable saying so, how much do you give?
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Arabs in Israel:

Here's an article from the Washington Post about Arabs in Israel. It's rather one-sided (no mention, for example, of the significant number Israeli Arabs who confirmed Israeli Jews' worst suspicions by supporting Hezbollah's missle campaign against Israel, even when the bombs were falling on their own villages), and frequently inaccurate. For example, "except for a relatively small Druze population, Arabs are excluded also from military service." Actually, the large Bedouin population also serves in the military, as do Arabs who volunteer for service.

I think the policy of excluding Arabs from mandatory military service was a mistake (compare to how India integrates Muslims into its military, despite three wars with Muslim Pakistan), but the point wasn't to exclude Arabs from "an essential shared experience of Israeli life and a traditional training ground for future political leaders," as the article suggests, but to avoid (1) the security problems attendant to drafting individuals from communities that, unlike the Druze and Bedouin, didn't accept the state and often fought against it; and (2) putting Arab draftees in the precarious position of choosing between loyalty to the military and having to fight against their own relatives. Unfortunately, contrary to the successful strategy of American blacks (who were far worse off relative to the majority in 1964 than Israeli Arabs are today), instead of insisting on their equal citizenship responsibilities and then demanding attendant equal rights, Israeli Arab leaders want complete legal and social equality without first accepting equal civic resonsibility, as the article itself hints at: "Arab lawmakers have lined up now against a new proposal for Arabs to perform 'national service' in lieu of time in the army, an institution they hold responsible for enforcing the Israeli occupation of the Palestinian territories." Given that the national service would be in lieu of time in the army, and would in fact be largely service in local community institutions, this reaction to national service has nothing to do with "the occupation," and everything to do with rejecting the legitimacy of the state, which is hardly the way persuade the majority to treat you better. Nor does it win the hearts of the majority when the Arab minority refuses military or national service and demands the privileges that veterans (who serve three years plus reserve duty for a month a year thereafter) get, a preposterous position, though one that has received some sypathy from Israel's left-wing judiciary.

A couple of other errors in the article: Lod, which the author uses to claim that Israel is walling off Arab cities within Israel, is not an "Arab city," but a mixed Jewish-Arab city, mostly Jewish, and with probably the worst crime in Israel. It's pretty shocking, actually, that Scott Wilson, the Washington Post's Israel correspondent, could make such a basic error. A simple Wikipedia search shows that the population of Lod is about 80% Jewish.

Jews and Arabs do go to separate primary and secondary schools (though contrary to the article, this is not universal, as even critics acknowledge), with different curriculums, which both communities generally prefer, in part because there is no strong separation of church and state in Israel, and in part because neither the Jews nor the Arabs want the Arabs to be forced to adopt the majority language and culture (perhaps another mistake from a state-building perspective). For the former reason, non-Orthodox, Orthodox, and ultra-Orthodox Jewish children also go to separate schools. But at the university level, where religion etc is not an issue, there are no separate schools, and indeed, there is an official policy of affirmative action for "minorities," including Arabs.

The situation of Arabs in Israel could use improvement, but there are also some bright points. Arabs have the right to vote, freedom of religion, freedom of speech, and the other privileges of living in a liberal state. Despite everything, Israeli Arabs are better off relative to the Jewish population than, say, the Arab population of France is relative to the non-Arab French population, even though there is no ongoing military conflict at issue in France. Arabs can go anywhere they please in Israel without fear of violence, which is more than one can say about African Americans in the U.S.

But so long as the strategy of the Arab leadership in Israel is to demand equal rights without equal civic resposibilities (and, for that matter, to often express more sympathy for dictatorial Arab enemy nations than for their own democratic country), further progress is likely to be stalled. That's not meant to absolve the Israeli majority for their responsibility for the situation, but just a prediction of how an ethnic minority can successfully advocate for itself. Unfortunately, the last people who want Arabs to integrate are their "leaders," for reasons of both ideology and power.

Thanks to Eye on the Post for the pointer.

I'm leaving Israel today after visiting family and friends, and won't be responding to any comments.

UPDATE: One of the reasons that Arabs in Israel are worse off economically than Jews is that the vast majority of non-Orthodox Jewish participate in the labor market, and the vast majority of Arab women do not. Relatedly, the Arab birthrate has been among the highest in the world. The birthrate is rapidly falling, and the rate of Arab female labor participation is slowly rising; both of these factors should over time lead to a significant decline in economic disparities.

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Sunday, December 23, 2007

Nat King Cole Sings "The Christmas Song": Nathaniel Adams Coles was a tremendously talented jazz pianist and vocalist; his mid-1940s trio recordings are simply a delight. But Cole is best known for his later popular recordings, and for my money none top his singing of "The Christmas Song."
I don't know how chestnuts can roast on an open file, but if Cole says so, it must be true.
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Does It Matter EPA Staff Opposed Waiver Decision?

Several news outlets report that EPA career staff recommended that Administrator Stephen Johnson approve California’s waiver request. According to these accounts, the “unanimous opinion” of EPA legal and technical staff supported the waiver request. Does this matter? Some bloggers think so. I don’t. Agency expertise is important, but it is not the end-all-be-all of agency decision-making, and it is no substitute for politically accountable policy decisions by political appointees.

If EPA staff argued that the unambiguous language of the Clean Air Act obligated the EPA to grant California’s waiver request, I think they were simply wrong on the merits, for the reasons I have outlined in prior posts. I think there is some ambiguity in the relevant Clean Air Act language, which gave the agency some wiggle room, but (if anything) the language supports Johnson’s decision to deny the waiver. In my view, neither Section 209 of the Act or the EPA's prior waiver decisions dictated a different result.

If the EPA staff were arguing that, in their view, the agency should grant the waiver either because (a) their preferred interpretation of the relevant statutory language required granting the waiver, or (b) they believed granting the waiver was better environmental policy, then there was nothing improper with Johnson adopting a different conclusion. Insofar as the Clean Air Act grants the EPA some discretion in how to interpret the Act’s requirements or whether to grant the waiver request, it vests the ultimate decision-making authority in the hands of political appointees, like Johnson, not career staff. In such circumstances, the policy views of EPA career staff are only relevant to the extent an Administrator wishes to take their counsel. If we disagree with the Administrator's conclusion, it is because we prefer a different policy, not because the Administrator failed to follow the lead of agency staff.

Community Rights Counsel’s Tim Dowling suggests the opposition of EPA career staff should influence judicial review of the case, and lessen the degree of deference a reviewing court shows the EPA’s decision. Dowling writes:

the whole concept of deference is rooted in the idea that courts will defer to the technical expertise of the agency. Here, Johnson reportedly made his decision in the face of a contrary, unanimous recommendation by his technical and legal staff. So there’s a genuine question whether the usual justifications for deference obtain in this case.
I disagree. Under Chevron and its progeny, the legal argument for deference is not agency expertise, but the delegation of policy-making discretion to administrative agencies. This rationale should be unaffected by the views of agency staff.

Under Chevron, where the relevant statutory language is clear, the statute controls, period. Where a statute is ambiguous, however, courts are to defer to the implementing agency’s any reasonable interpretation offered by the implementing agency. While the existence of agency expertise may be the reason Congress chose to delegate such authority to administrative agencies, for purposes of judicial review, what matters is whether there was a delegation of interpretive authority to an administrative agency. And, as Chevron’s progeny make quite explicit, where statutory language is ambiguous, courts are to presume that Congress sought to delegate interpretive authority to the relevant implementing agency.

One consequence of this rationale is that it is not particularly relevant whether career agency staff believe that one interpretation of ambiguous statutory language is preferable to another. So long as the relevant statutory language is ambiguous, and both interpretations are permissible constructions of the relevant language, the head of the agency is free to prefer either interpretation, for whatever reason, and Chevron deference is owed. Therefore, so long as the EPA’s interpretation of the Clean Air Act was based upon a permissible construction of Section 209 (the waiver provision), a reviewing court should provide full Chevron deference to the EPA’s interpretation, irrespective of the views offered by agency staff.

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Candidate Views of Executive Power:

The Boston Globe surveyed the presidential candidates on their views of executive power, and nine of the candidates (three Republicans, six Democrats) responded. The story and links to the survey are here.

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Sunday Song Lyric: The Pogues' song "Fairytale of New York" is a very popular Christmas song across the pond. In 2004 it won a poll as the best Christmas song of all time. This year the song is the source of controversy, however, as the BBC is editing the lyrics when playing it on the air.
BBC’s Radio 1 edited the word “faggot” out of the Pogue’s Christmas standard “Fairytale of New York”, stating that the decision was made because “this is a word that members of our audience would find offensive”. This, despite the fact that the song has played in an unedited version for the last 20 years. The song has topped several Best Christmas Song polls in Britain, and it regularly hit the number one spot every Christmas. (Yes, a song with that word in it is a Christmas favorite. England – it’s a different planet.)

In the song, the late singer Kirsty MacColl takes on the voice of a character who
sings, "You scumbag, you maggot/You cheap lousy faggot" in an argument with another character in the song sung by Pogues frontman Shane MacGowan. Jean MacColl, the late singer’s mother, called the ban “ridiculous”, saying, “These are a couple of characters . . . Today we have a lot of a gratuitous vulgarity and ... whatever from people all over which I think is quite unnecessary. These are characters and they speak like that.”
The offending verse reads as follows:
You're a bum
You're a punk
You're an old slut on junk
Lying there almost dead on a drip in that bed
You scumbag, you maggot
You cheap lousy faggot
Happy Christmas your arse
I pray God it's our last.
As noted above, this part of the song is an exchange between two characters in the song. The full lyrics are on the Pogues website here. Here is the video and here is a live performance of the song.

UPDATE: Apparently the BBC backed down.

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