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Saturday, May 16, 2009

[Ira Matetsky, guest-blogging, May 16, 2009 at 11:16pm] Trackbacks
Wikipedia: Some Responses to Comments:

My thanks to everyone who has read my guestblog posts this week on the subject of Wikipedia, the online encyclopedia where I am an editor, an administrator, and an arbitrator (User:Newyorkbrad). Tonight I should address some of the comments on my earlier posts, which I will do in no particular order. (I've already implicitly addressed some comments on my earlier posts in later ones, so I won't duplicate that; and please understand that in limited time and space I can't possibly cover everything.)

In response to my posts about problems regarding Wikipedia articles involving biographies of living persons ("BLPs"), the suggestion was made that when an issue arises concerning whether a biographical article should be kept on Wikipedia or deleted, there be a presumption in favor of deletion unless there is a collective decision to keep it, rather than the other way around. (In Wikiparlance: when a BLP is AfD'd, "no consensus" would default to delete. In an ordinary deletion discussion, by policy, "no consensus" defaults to keep.)

This suggestion has been advanced and discussed on-wiki, and has won wide endorsements, but not quite enough to be adopted. A main sticking point is that a BLP can be nominated for deletion for reasons having nothing to do with defamation, privacy violation, or undue weight -- say, a dispute whether an athlete or a performer is quite notable enough to warrant coverage. In many of these instances, ironically, if the article subject were asked, he or she might prefer that the article remain. (we sometimes get complaints from people whose articles are deleted; there may well be more people who are unhappy that they are excluded from Wikipedia than people who are unhappy that they are included.)

I advanced a compromise proposal suggesting that deletion discussions on BLPs default to delete where the notability of the subject is not clear-cut (that would presumably be the case anytime the tentative AfD result is "no consensus") and (1) the article taken as a whole is substantially negative with respect to the reputation of the subject, (2) the article subject is a minor, or (3) the article subject is known to have himself or herself requested the article's deletion. It may be time to revive discussion on-wiki of this suggestion.

Also relevant are two decisions by the Arbitration Committee (although I was not active in either case) establishing that any administrator may delete content deemed obviously unsuitable, and in those cases, the content stays out unless and until there is a consensus to keep it. While these holdings are on the books, though, unilateral deletions of high-profile articles often lead to a great deal of disputation and "drama," which can result in greater publicity for the material the admin believes should be deleted than the disputed article itself ever had. (A notable improvement within the past couple of years is the use of "noindex" coding so that our back-office discussions such a deletion debates themselves don't show up on Google. The use of "noindex" to keep certain types of not-ready-for-prime-time Wikipedia content off of search engines should be expanded.)

Also apropos of BLP issues, I would like to thank two commenters on my first BLP post for making clear the tensions that exist in this area. I wrote about a boy named "John" who had been kidnapped and mistreated a couple of years ago, who I thought should not be the subject of a Wikipedia article, as an example of material both on Wikipedia and on the Internet more widely that raised privacy issues. The first commenter suggested that in using this example I must still be in the process of merely clearing my throat, because it is obvious that no such article should exist. The second commenter suggested that I was a censor for seeking to depublicize such content, including mention of the boy's name, which I'd been careful not to include. (I acknowledge, however, that I had not been aware of the Today interview of the boy's parents.) And so it goes. In any event, if anyone does not find that example compelling I offered several others.

There were several comments bemoaning the deletion of certain content on topics like anime. Although I haven't checked the specifics of the deleted articles that the commenters cited (which as an administrator I could do), in general I agree with these criticisms. Outside the context of BLPs, I am probably as strong an "inclusionist" (the opposite is "deletionist") as can be found in the administrator corps. We delete too many articles on topics found to be "not quite notable enough." In particular, our completely laudible policy of justifying inclusion of articles by requiring citation of multiple stable reliable sources and a showing of some degree of prominence can be taken too far, and has decimated our coverage in areas like webcomics. On the other hand, we don't want to be a promotional outlet for every garage band formed last week or website with 10 readers, and allowing articles with no sources makes it too easy to plant hoaxes -- so lines will always have to be drawn somewhere.

"Spoiler warnings" were removed throughout the fiction articles because a small but determined group of users armed with bots (automated programs that conduct repetitious tasks) believed strongly that they are "not encyclopedic." In the (paraphrased) words of one of them, if you look up a novel or a film in an encyclopedia, you can presume that it is going to discuss the plot, so no one should be surprised that there is mention of the ending. Of course, there are counterarguments. I personally don't have a strong view on this one, but to the commenter, you are free to start up a discussion on-wiki if the lack of spoiler warnings troubles you.

Someone suggested that Wikipedia needs stronger coverage of law and legal topics. The editors in Wikiproject Law would certainly welcome more participation from lawyers, law students, legal historians, legal academics, and others interested in the subject-matter in creating, expanding, honing, and sourcing articles on legal topics. A particular issue with these articles is making sure that where applicable, they are written from a global perspective, as the English Wikipedia is edited from and read in every country in the world. A usual if superficial response to on-wiki complaints that an article needs improvement is a template called "{{sofixit}}". More on this tomorrow.

My thanks to the commenter who recommended the Damon Knight story. I'll definitely be looking it up.

I'll wrap up this series of posts tomorrow with some links to Wikipedia for those who might want to start editing, some links to sites critical of Wikipedia for those who want to see more meta-debate, and a couple more questions for the audience. My thanks again to all the readers and commenters.

55 Comments

Lessig, Looking for Jefferson's Moose:

http://blip.tv/file/2121395/

2 Comments

Budget Visualizations:

Two YouTube videos help put proposed budget cuts and our growing debt into perspective.

Bush's fiscal irresponsibility was quite bad — and conservatives were too complacent about the growth in federal spending on Bush's watch — but things are getting much, much worse.


It's Official: Kinder, Gentler Military Commissions:

Across a range of issues, the Obama Administration is discovering that setting national security policy and balancing the relevant trade-offs is more difficult than it appeared when President Bush was in charge and then-Senator Obama and his advisors could take policy positions without any responsibility for implementing them. The latest is the announcement that the Administration will revive military commissions, albeit with some additional protections for defendants.

Administration officials said they were making changes in the system to grant detainees expanded legal rights, but critics said the move was a sharp departure from the direction President Obama had suggested during the campaign, when he characterized the commissions as an unnecessary compromise of American values.

In a statement, Mr. Obama noted that the country had a long tradition of using military commissions, and said the changes would make the tribunals, to be used along with federal courts, a fairer avenue for prosecution. “This is the best way to protect our country, while upholding our deeply held values,” Mr. Obama said.

The commissions are run by the Pentagon under a 2006 law passed specifically for terrorism suspects, in part to make it easier to win convictions than in federal courts. The Obama administration suspended the military commission system in its first week in office.

Insert snark here.

Meanwhile, what does it say that the Administration has resurrected or maintained the core elements of so many Bush Administration national security policies while OLC nominee Dawn Johnsen sits in limbo? And would the Administration's policies be any different were she already confirmed?

Related Posts (on one page):

  1. It's Official: Kinder, Gentler Military Commissions:
  2. Gitmo Military Commissions Part Deux: The Sequel:
232 Comments

Review of the New Star Trek Movie:

I recently saw the new Star Trek movie, which has garnered mostly positive reviews from critics and science fiction fans (e.g. here, here, and here). My own view is less favorable. I think that the movie was generally well-acted and fun to watch. But I also thought that the plot was weak, for much the same reasons as those discussed by this reviewer. In addition, the movie lacked any meaningful moral, philosophical, or political point; nor did it have much in the way of memorable and interesting characters. Science fiction can be enjoyable without these elements. But it can't be great.

Finally, the movie didn't address a key question I hoped it would take up: how and why the Federation turned socialist. Early in the story, we do see a Nokia cell phone clearly labeled as such. This suggests that there are still large private firms at the time the movie starts (roughly in the mid-23rd century). However, it's also possible that Nokia had already been nationalized, with the Federation government retaining the brand name for its own use. The fact that the Nokia phone in the movie (set 250 years in the future) seems only slightly more advanced than the Nokia phones of today suggests that the firm had been stagnant for a long time - as government-owned enterprises often tend to be. There are historic precedents for nationalizations that retain famous brand names. For example, the communist government of Czechoslovakia nationalized the famous Skoda Works, but continued to use the name. In any event, it looks like we will have to wait to get more insight into the political and economic history of the Federation. Perhaps the next movie in the series will boldly go deeper into this issue than any Star Trek film has gone before.

UPDATE: I suppose I should say, for the benefit of commenters who take things a bit too literally, that I don't actually think producers were trying to make a deep statement about socialism in the Federation with the Nokia scene. To the contrary, the movie seems to ignore the whole question of socialism entirely - just as it mostly ignores the other moral and political issues on which the original Star Trek sought to make a statement (even if sometimes ineptly). I was just trying to have a little fun with that scene. I do think that the failure to grapple with any important issues is a defect of the new Star Trek movie, not a virtue.

134 Comments

Exorbitant Ticket Prices at the New Yankee Stadium:

I have written several posts criticizing the massive public subsidies for the new Yankee Stadium (see here, here, here, and here). Hundreds of millions of dollars in taxpayer funds were expended, more than on any other stadium project in American (and possibly world) history.

In exchange for all this public largesse, you might expect that New York taxpayers would at least get the opportunity to purchase tickets at reasonable prices. Not so much... The prices are so high that many seats are going unsold, creating public relations problems for the team. Even after the franchise cut prices in reaction to anemic sales, the new rates are still extremely high. For example,, seats near home plate still cost $1250 each after a 50% price cut. For New Yorkers looking for really high-end seats, it would be much cheaper to fly to see the Yankees play in Seattle [HT: Tyler Cowen]:

Ticket prices at the new Yankee Stadium are so high that if a New Yorker wants to watch a Mariners/Yankees game from the best seats, it would be a lot cheaper to fly to Seattle, stay in a nice hotel, eat fancy dinners, and see two games.

Option 1: Two tickets to Tuesday night, June 30, Mariners at Yanks, cost for just thetickets, $5,000.

Option 2: Two round-trip airline tickets to Seattle, Friday, Aug. 14, return Sunday the 16th, rental car for three days, two-night double occupancy stay in four-star hotel, two top tickets to both the Saturday and Sunday Yanks-Mariners games, two best-restaurant-in-town dinners for two. Total cost, $2,800. Plus-frequent flyer miles.

Normally, I wouldn't have any comment on the pricing policies of a private business. If a firm charges ridiculously high prices, they will be punished by the market and consumers will go elsewhere. People who don't like the price don't have to buy the product. In this case, however, the Yankees' insistence on extraordinarily high prices further cuts into the taxpayers' ability to get even a slight return on their investment. Government subsidization of sports stadiums almost always inflicts more economic harm on the public than it creates benefits. Charging exorbitant ticket prices adds insult to injury. Moreover, it's possible that the taxpayers will end up covering part of the Yankees' revenue shortfall, since the team has a consistent record of asking for (and getting) additional government subsidies each time the new stadium project ran into trouble.

Related Posts (on one page):

  1. Exorbitant Ticket Prices at the New Yankee Stadium:
  2. The New York Times on Public Funding for the New Yankee Stadium:
31 Comments

The Ethics of Naming Sports Teams After Ethnic Groups:

Senior Conspirator Eugene Volokh notes that polls show that a majority of Native Americans do not object to the use of the name Washington Redskins by the DC NFL team. As a general rule, I don't think that it's wrong to name sports teams after ethnic groups. Eugene correctly points out that naming a team after a group is usually the result of positive associations with the group rather than negative ones. Certainly, no one objects to the Minnesota Vikings, the Boston Celtics, or the Notre Dame Fighting Irish. The Notre Dame case is particularly telling, given that the team's name not only includes the name of an ethnic group, but also references the stereotype that the Irish are unusually violent. Team names such as the Cleveland Indians and Atlanta Braves also seem unobjectionable. Indeed, using "Braves" as a team name seems little different from using "Vikings," in so far as both terms refer to a type of fearsome warrior associated with a particular ethnic group.

I have always thought that "Redskins" is a tougher case because the word has a long history as an ethnic slur against Native Americans. Thus, I would expect them to find it offensive. And they might well be justified in taking such offense. Certainly, blacks would have justifiable cause for anger if a pro sports team used the N word as a name, and Jews if a team started calling itself the "New York Kikes." The fact that most Native Americans nonetheless do not object to the NFL franchise's use of "Redskins" suggests that the term may have lost its insulting connotations. If it has, then it might be unobjectionable after all. However, I would need to see more data about current usage of the word and about Native American awareness of its past uses to reach a definitive judgment. Even if "redskin" is no longer much used as a slur in mainstream culture, it's possible that it still gets used in that way in some parts of the country with large Native American populations.

85 Comments

Friday, May 15, 2009

[Ira Matetsky, guest-blogging, May 15, 2009 at 11:20pm] Trackbacks
Wikipedia: Who Runs the Place?

As Wikipedia, the collaboratively edited online encyclopedia, becomes more prominent, people often wonder who operates and administers the site. I'm also asked sometimes how I became involved as an administrator.

A majority of the people who contribute occasionally to Wikipedia may have little or no interaction with the administrative side of things at all. A new user doesn't need anyone's permission to start editing or to register an account. One can make dozens or hundreds of edits and never encounter an administrator acting as such or come into contact with the site's rules and guidelines.

My experience as "newbie" Wikipedian was a largely, and perhaps unusually, positive one, and the lens of my own early experiences probably still flavors how I look at the site. As soon as I registered my account, an experienced editor left a helpful "welcome" message on my talkpage, with links to relevant pages of policies and helpful hints. (Each user has a talkpage, which is a special page for messages intended for that user.) The first time I made a bunch of edits to an article, someone posted to my talkpage and thanked me for my contributions. When I had questions about how to format an article, I posted to the Help Desk and received a polite and useful response almost instantly. When I made rookie mistakes, they were quietly corrected and I was gently advised what had gone wrong. I was invited to join a project of editors with interests similar to mine. When I started to learn about policies, I read guidelines such as "be civil to your fellow editors," "when there is a disagreement, discuss it and seek consensus," and "don't bite the newcomers."

So my first impression was that Wikipedians included a collaborative group of exceptionally friendly people working together to write an encyclopedia while having some fun in the process. (Okay, I soon learned that not every page of Wikipedia was like that, as I was clued in pretty early to some areas where there was some nasty feuding going on. In fact, within a couple of months, I was trying unsuccessfully to mediate one of the loudest feuds on the site. But a first impression is a first impression.)

Of course, not everyone has the same generally favorable introduction to contributing that I did. If an editor's first contribution is an article about an marginally notable person or a garage band or his junior high school, his first memory of Wikipedia may be of the article being summarily deleted. If a user starts off writing in a controversial area, her first experience may be one of "edit-warring" as disputing users change the article back-and-forth to their preferred versions. If an editor starts off by uploading images, she will very likely receive a warning for inadvertently violating one or another of the complex rules implemented to prevent copyright violations. And sometimes one just runs into another editor who either doesn't know anything about the subject-matter but acts as if he does, or who just feels like being a jerk.

(I was once asked whether I'd ever been a party to a real edit-war. The biggest one I recall was an ongoing dispute about whether Presidential and Congressional terms prior to the Twentieth Amendment ended at midnight on March 3rd or at noon on March 4th. This issue comes up all the time in biographies and lists. The answer, of course, is March 4th, but because there are some otherwise authoritative sources such as older editions of the "Congressional Biographical Directory" that say March 3rd, this remains a matter of occasional contention.)

So sooner or later a truly experienced editor will run into the administrative apparatus underlying the site. On the English Wikipedia, any registered editor is eligible to run for the status of administrator. In practice a few months' editing experience and a few thousand edits are required for a successful candidacy. Nominations can be made by oneself or by another user and are posted to a page called "Requests for adminship" ("RfA"), where any interested user can post a "support" or "oppose" comment (one must carefully avoid calling it a "vote") based on whatever criteria (within reason) they individually choose to apply.

After seven days, the results are reviewed by a senior administrator archly designated as a "bureaucrat," who determines whether there is a "consensus" to promote the candidate. Hundreds of megabytes of text on [[Wikipedia talk:Requests for adminship]] have been spent in seeking out the perfect metaphysical definition of consensus, but in practice, support from 75% of the "!voters" typically guarantees promotion.

There are no requirements for adminship beyond having a sufficiently strong record of participation to pass RfA. There is no requirement that the candidate disclose his or her real name or background, and many don't. (I've never disclosed my real name on-wiki, although at this point I will soon go ahead and do so.) For example, there is no minimum age requirement. (Certain specialized functionaries do now have to be over 18 and provide proof of their identity to the Wikimedia Foundation Office, though they don't have to disclose it publicly.) There have been administrators as young as 12 or 13 years old; there are no good demographic numbers that I'm aware of, but I would estimate that the median age would be no higher than mid-20s, and I'm painfully aware that at age 46 I am almost surely in the oldest decile of admins. (It feels like just yesterday that I was the youngest person ever elected to the School Board in my town, and now I'm a senior wiki-citizen.)

Critics of Wikipedia often suggest that there is a serious problem with the fact that so many of the administrators, with important powers such as blocking and deletion, are relatively youthful. These are often the same people who suggest that it is absurd for older people with more life experience to spend a portion of their hobby time serving as Wikipedia administrators. Sometimes the same critics make both of these comments, but they are, in effect if not in intent, mutually exclusive.

Administrators are given certain special powers not open to other users, such as the ability to block someone who has violated Wikipedia policies from editing; to delete a page; to protect a page from editing (either by new users or by any non-admin); close certain discussions and decide their outcomes; to view the content of most material that has been deleted. There are about 1600 administrators on the English Wikipedia, of whom a few hundred are active at any one time. There are rules governing how admins are to use their tools, and policies urging them to be civil and helpful in their interactions with other users. In my experience, most administrators do their best to live up to these guidelines; of course, the occasional exception affects the reputation of all.

There is also a system of methods for dispute resolution, including various options for mediation and noticeboards for discussing different types of concerns that may arise. At the end of the dispute resolution process is a body known as the Arbitration Committee, which consists of a group of editors (currently 16) chosen in annual elections. (Formally, the committee is appointed by Jimmy Wales, who holds a special role in Wikipedia governance derived from his role in founding the site, but in the past few elections he has followed the election returns.) The ArbCom addresses user conduct disputes, and typically is not empowered to decide issues such as "which version of this article is better?" or "what should our policy on such-and-such be?" At the moment there is no central mechanism for handing down binding resolution on content disputes or policy decisions, and there is disagreement about whether it would be desirable for there to be one.

I've been following the workings of the ArbCom since early in my wiki-career: first as an occasional critic, later as a clerk for the committee, and since January 2008 as one of the arbitrators. My work as an administrator and an arbitrator has completely changed my Wikipedia experience: Instead of contributing substance to a growing body of free knowledge in an atmosphere of respect and harmony, I must review the history of Wikipedia's most contentious, protracted, bitter, and unhappy disputes and help decide what to do about them.

The cases that come to arbitration are those that cannot be resolved any other way. Most often, they concern editing disputes in exactly the areas one might expect to be the most contentious of all; cases we have accepted this year have included disputes about editing of [[Ayn Rand]] and related articles, of [[Scientology]] and related articles, of [[Ireland]] (is "Ireland" primarily the name of an island or a country), of [[Macedonia]] (or is it [[The Former Yugoslav Republic of Macedonia]]?), and so on. We have also accepted cases involving individual administrators or editors who have engaged in allegedly problematic behavior.

After reviewing each case, the committee issues a decision comprising principles, findings of fact, and remedies. The remedies we can hand down range from noting instances of bad behavior and admonishing parties to do better, restricting a user's editing (such as by banning her from editing articles about a particular topic), imposing various types of probations or mentorships, revoking an administrator's adminship ("desysopping"), or in the most extreme cases, banning an editor from Wikipedia altogether.

We try to keep the process from becoming too legalistic, although occasional legal terms or wordings sneak into the process or the decisions, for which I am occasionally to blame. (The most useful thing I've tried to bring with me in terms of a legal concept is an instinct to always make sure that the parties have had a fair opportunity to present their views and evidence before we proceed to a decision.) My real-life work as a lawyer has not had much to do with how I think as an arbitrator: There are very few parallels between the work of a committee on a website and anything that happens in the real world, and in decisions, I've emphasized that nothing we decide is meant to have any consequences in the offline world. Still, sometime, if I can figure out a way to do it without sounding absurdly aggrandizing, I will write about what my time as a Wikipedia arbitrator has taught me about the types of decisions that must be made every day by a judge of a multi-member appellate court with a discretionary jurisdiction.

Ultimate control over the English Wikipedia, along with all of the sister projects and projects in other languages, resides with the Wikimedia Foundation. The Foundation is the charitable foundation that owns the equipment and the trademarks. The Foundation has a board of directors (chosen by a combination of members), an Executive Director and a small staff, and a General Counsel (currently Mike Godwin, of Godwin's Law fame). It sets policy only at a very broad level, and does not get involved in addressing particular disputes.

Tomorrow: Some responses to reader comments.

34 Comments

"'I Am a Red-Skin': The Adoption of a Native American Expression (1769-1826)":

An interesting article from the European Review of Native American Studies (2005). From the opening paragraph:

One need not accept Harjo’s unfounded claim that the word redskin “had its origins in the practice of presenting bloody red skins and scalps as proof of Indian kill for bounty payments” to accept that many find the word objectionable in current use. But the actual origin of the word is entirely benign and reflects more positive aspects of relations between Indians and whites. It emerged at a specific time in history among a small group of men linked by joint activities that provided the context that brought it forth. Before its documented history can be traced, however, the false history given for it in standard reference books must be expunged.

Thanks to Bill Poser (Language Log) for the pointer; he has more on the subject, including on the specific history of the term as the name for the team. I stress again that one's views of whether the Washington Redskins should keep or change their name need not be dictated by this history; but it struck me as interesting history nonetheless, especially given that the critics of the term have relied in some measure on their own accounts of the history as well.

8 Comments

CIA Chief Criticizes Pelosi:

CIA Director Leon Panetta sent this message to CIA employees today. It directly rebuts claims from House Speaker Nancy Pelosi that the CIA provided misleading information to Congress:

There is a long tradition in Washington of making political hay out of our business. It predates my service with this great institution, and it will be around long after I’m gone. But the political debates about interrogation reached a new decibel level yesterday when the CIA was accused of misleading Congress.

Let me be clear: It is not our policy or practice to mislead Congress. That is against our laws and our values. As the Agency indicated previously in response to Congressional inquiries, our contemporaneous records from September 2002 indicate that CIA officers briefed truthfully on the interrogation of Abu Zubaydah, describing “the enhanced techniques that had been employed.” Ultimately, it is up to Congress to evaluate all the evidence and reach its own conclusions about what happened.

My advice—indeed, my direction—to you is straightforward: ignore the noise and stay focused on your mission. We have too much work to do to be distracted from our job of protecting this country.

We are an Agency of high integrity, professionalism, and dedication. Our task is to tell it like it is—even if that’s not what people always want to hear. Keep it up. Our national security depends on it.

Sounds like the Speaker's claims of being "misled" are getting a dim reception at the CIA. And the Speaker's claims don't make any sense at all, as shown by this clever dissection by Tom Smith over at The Right Coast.

264 Comments

American Indians' Views of the Redskins:

Since the Redskins controversy is again in the news, I thought I'd report some data on the subject from three years ago. I realize that different people have different views of how relevant or dispositive such data is, but I just thought I'd note it.

1. A 2002 Sports Illustrated survey reports:

Asked if they were offended by the name Redskins, 75% of Native American respondents in SI's poll said they were not, and even on reservations, where Native American culture and influence are perhaps felt most intensely, 62% said they weren't offended. Overall, 69% of Native American respondents -- and 57% of those living on reservations -- feel it's O.K. for the Washington Redskins to continue using the name. "I like the name Redskins," says Mark Timentwa, 50, a member of the Colville Confederated Tribes in Washington State who lives on the tribes' reservation. "A few elders find it offensive, but my mother loves the Redskins."

2. The Annenberg Public Policy Center National Annenberg Election Survey 2004 (conducted in 2003-04), reports:

Most American Indians say that calling Washington’s professional football team the "Redskins" does not bother them, the University of Pennsylvania’s National Annenberg Election Survey shows.

Ninety percent of Indians took that position, while 9 percent said they found the name "offensive." One percent had no answer. The margin of sampling error for those findings was plus or minus two percentage points.

Because they make up a very small proportion of the total population, the responses of 768 people who said they were Indians or Native Americans were collected over a very long period of polling, from October 7, 2003 through September 20, 2004. They included Indians from every state except Alaska and Hawaii, where the Annenberg survey does not interview. The question that was put to them was "The professional football team in Washington calls itself the Washington Redskins. As a Native American, do you find that name offensive or doesn’t it bother you?"

3. There are obvious problems with polling American Indians -- the difficulty of getting reliable data from such a small group (which the Annenberg pollsters solved by asking a vast number of people, and which the Sports Illustrated pollsters solved by oversampling in census tracts which have a high fraction of American Indians, and then weighing the responses accordingly), the uncertainties about who really is an American Indian, the danger of undersampling Indians who are too poor to have telephones or alienated enough from white culture that they want little to do with pollsters, and so on. Nonetheless, while this may not be perfect data, it's the best data that I've seen, and it's certainly better than people's perceptions of what Indians think, which are of course prone to much more serious problems of representativeness (since such perceptions may be heavily skewed by one's own preconceptions, by one's circle of friends, or by the tendency to hear more from activists -- in any group -- than from rank and file members).>

4. Finally, while I'd have thought that most Indians would indeed be offended by the term "Redskins," given that it has often been used as a pejorative, the results that the surveys report are not at all implausible: Given that naming a team after some person or group is usually a sign of respect -- one would rarely name a team after something that one thinks is weak or contemptible (the U.C. Santa Cruz Banana Slugs are a rare and facetious exception) -- it seems quite reasonable that many Indians would focus on that more than they would on disrespectful uses of the same term in other contexts.

28 Comments

"Normally Picking a Justice Is Like Picking a Mistress,"

reports David Lat (Above The Law). I wouldn't know, not having picked either.

13 Comments

A Cool Visual Illusion:

The Curveball. Thanks to Joe Doherty for the pointer.

8 Comments

Laches Proves To Be the Most Valuable Player:

In Pro Football Inc. v. Harjo, several American Indians were challenging the validity of the Washington Redskins trademark on the ground that it was "disparaging," which trademarks aren't allowed to be. (The federal trademark statute provides that, among other things, marks generally aren't allowed when, among other things, they "[c]onsist[] of or comprise[] immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.") If the plaintiffs had won, that wouldn't have legally barred the trademark owners from using the mark; but it would have stripped the owners of some of the legal rights they'd have to police the mark against infringers, and thus would have given the owners some incentive to switch to a fully legally protected mark.

The trouble is that the challengers apparently waited for a long time in bringing the lawsuit, which triggers "laches, an equitable defense that applies where there is “(1) lack of diligence by the party against whom the defense is asserted, and (2) prejudice to the party asserting the defense.”" The district court held in Pro-Football's favor, and the D.C. Circuit just affirmed.

Other American Indians who just turned 18 could still bring the same substantive claim, since they would not have exhibited any "lack of diligence." Still, this is a pretty big victory for Pro Football. Even if it has only delayed the possible cancellation of the mark -- not at all clear, since they might eventually win on the merits -- it has gotten many extra years during which to exploit it (and I take it that the league's judgment in defending this lawsuit has been that the Redskins mark is much more valuable, at least right now, than any replacement mark would be).

Thanks to How Appealing for the pointer.

69 Comments

The proper understanding of "Necessary and Proper":

University of Montana Law Professor Rob Natelson, who is also a Senior Fellow at the Independence Institute, a prolific scholar regarding the original understanding of many provisions of the Constitution. In a 43-minute podcast, I interviewed him about the meaning of the Necessary and Proper clause. As he explains, misinterpretation of the clause is the single most important basis for the expansion of the federal government far beyond constitutional boundaries.

71 Comments

Standards of Review and Institutional Roles -- Some Thoughts on Chad Oldfather's "Universal De Novo Review": Chad Oldfather has a new article, Universal De Novo Review, just out in the George Washington Law Review, asking why appellate courts always review legal issues de novo without deference to the trial court. Chad runs through some of the common explanations and find them wanting, and suggests that perhaps there should be exceptions to the general rule where appellate courts defer to trial court legal rulings.

  I found it in an interesting and thought-provoking article, and I wanted to blog a few thoughts about it. Some of my take matches Chad's, and some is different: I mean this more as a general take on these important issues than a specific agreement or disagreement with Chad's views.

  Let's start with the general function of standards of review. In my view, the key to understanding standards of review is that they distribute power among institutions. A standard of review defines the power distribution between the reviewing institution and the institution under review. A deferential standard of review gives power to the institution reviewed; a de novo standard of review retains power for the reviewer.

  Standards of review vary because different institutions serve different functions. Different institutions — trial courts, agencies, appellate courts — serve different roles, and the standards of review distribute power to enable them to serve those roles effectively.

  When understood in that way, I think most standards of review begin to make sense. Consider the kinds of trial court rulings that receive deference by appellate courts. Trial courts are given deferential review of case-specific types of determinations — most obviously factual determinations, and equally importantly, questions of trial procedure such as evidentiary rulings that have no broader significance beyond that particular case. Why give deference for these issues? The reason is that structurally speaking, trial courts are designed to make judgements that are primarily case-specific. As Judge Sotomayor put it in her Duke comments, the focus is on the details of that particular case, and decisions typically only apply to that particular case.

  The deferential standard of review enables that function. It gives trial courts the power to do their job in individual cases. Granted, appellate courts provide some check on that. But they act as a check only when the trial court rulings are way off, such as when a factual finding is clearly erroneous or an evidence ruling is an abuse of discretion. Most of the power to decide case-by-case issues is given to the district court, and the standard of review reflects that.

  Now turn to the focus of Oldfather's article, the general rule that appellate courts review trial court legal interpretations de novo. Why is that? In my view, the reason is that structurally speaking, appellate courts are primarily designed to settle questions that cut across cases. From a structural standpoint, what matters is that there is some body that settles the law — some institution that announces the rule or standard that others must follow.

  De novo review of legal questions enables that function. It lets the institutions that have the power to announce the binding law do so unencumbered. If appellate courts deferred to trial court determinations of law, you would either have a situation in which no binding law is ever created (if stare decisis does not apply to the upheld trial court legal reading) or else the first trial court to get to an issue binds all others (if it is). Neither outcome would allow appellate courts to fulfill their designed role as institution that settles questions across cases.

  The idea that standards of review enable institutional roles largely explains the main exceptions to the usual rule of de novo review. For example, Chevron deference in the case of judicial review of agency interpretations of law is needed because modern administrative agencies are designed to have substantive powers in a zone of delegated discretion. They can't exercise that power effectively if courts can second-guess every legal interpretation with de novo review; more deferential review is needed for agencies to fulfill the function they were designed to serve. Similarly, deferential federal appellate review of district court interpretations of state law is allowed because it isn't the role of a federal court to settle state law. That's primarily a question for state courts, and deference to the federal trial court interpretation limits federal court intervention into the proper powers of state courts.

  One issue on which Chad and I agree is that the "expertise" rationale for standards of review isn't very illuminating. We can certainly hope that the institution designed to wield a certain power has or will develop expertise in executing it. Sometimes that is true, sometimes it isn't. But the real issue is the distribution of power, not whether we can in the abstract say a particular institution is more "expert" than another.
26 Comments

Left/Right bloggers split on whether Cheney helping Republicans. Bright futures for Jindal, Schweitzer, Granholm

This week's National Journal poll of political bloggers asked "Has Dick Cheney helped or hurt the Republican Party since leaving office?" One hundred percent of the Left bloggers thought he was hurting the Republicans, while 3/4 of the Right bloggers thought he was helping. My comment: "Every time Cheney shows his face in public, the Angry Left and the media suffer a relapse of Bush Derangement Syndrome, which keeps them energized in their role as Obama's base. Nevertheless, Cheney is speaking truth to power about Obama's dangerous policies on national security, and providing an important counterpoint to Obama's glib, shallow assertions."

Question two was "Who among your party's current crop of governors has the brightest political future?" On the Right, Bobby Jindal was the winner. On the Left, Brian Schweitzer and Jennifer Granholm tied for first. As the only Democrat among the Right bloggers, I voted for Ted Strickland.

69 Comments

Judge Sotomayor's Lecture, "A Latina Judge's Voice": My co-blogger Jonathan Adler points to today's story in the New York Times by Charlie Savage about a lecture Judge Sotomayor published in the Berkeley La Raza Law Journal in 2002 about the role of race and gender in judicial decisionmaking.

  I tend to agree with Jonathan's take that some of what Judge Sotomayor says is entirely unexceptional: surely a judge's personal experience will naturally impact his or her decisionmaking in some cases, as it will draw the judge to some conclusions more or less readily than others. At the same time, I agree with Jonathan that some of the statements seem to go beyond that commonplace observation into more normative territory, and there I suspect different readers will draw different conclusions.

  I thought readers (especially those without Westlaw) might be interested in reading the speech directly, so I have excerpted what I believe to be the key sections below. As I understand the address, it was the Mario G. Olmos Law and Cultural Diversity Memorial Lecture delivered at Berkeley Law School, as the kickoff address for a conference. Also, by way of context, Judge Sotomayor refers in the text below to the views of Judge Miriam Cedarbaum, a former colleague on the District Court bench. Sotomayor's address suggests that Judge Cedarbaum had taken the view that there was little empirical evidence that men and women judge differently, and that it was dangerous to start looking for cultural or innate differences in thinking and judging between men and woman and caucasians and minorities.

  Anyway, here are what I believe are the key sections of the address, with two paragraph breaks added for clarity. It is available in full as A Latina Judge's Voice, 13 Berkeley La Raza L.J. 87 (2002).
  I intend tonight to touch upon the themes that this conference will be discussing this weekend and to talk to you about my Latina identity, where it came from, and the influence I perceive it has on my presence on the bench. . . .

  While recognizing the potential effect of individual experiences on perception, Judge Cedarbaum nevertheless believes that judges must transcend their personal sympathies and prejudices and aspire to achieve a greater degree of fairness and integrity based on the reason of law. Although I agree with and attempt to work toward Judge Cedarbaum's aspiration, I wonder whether achieving that goal is possible in all or even in most cases. And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society. Whatever the reasons why we may have different perspectives, either as some theorists suggest because of our cultural experiences or as others postulate because we have basic differences in logic and reasoning, are in many respects a small part of a larger practical question we as women and minority judges in society in general must address.

  I accept the thesis of a law school classmate, Professor Steven Carter of Yale Law School, in his affirmative action book that in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought. Thus, as noted by another Yale Law School Professor--I did graduate from there and I am not really biased except that they seem to be doing a lot of writing in that area - Professor Judith Resnik says that there is not a single voice of feminism, not a feminist approach but many who are exploring the possible ways of being that are distinct from those structured in a world dominated by the power and words of men. Thus, feminist theories of judging are in the midst of creation and are not and perhaps will never aspire to be as solidified as the established legal doctrines of judging can sometimes appear to be. . . .


UPDATE: The text of the entire speech is here.
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Speaking at Greenville, SC Federalist Society on Monday:

I'll be speaking to the Federalist Society's Greenville, SC Lawyers' Division on Monday about the Mortgage and Foreclosure Crisis. We'll probably touch on Chrysler and various other aspects of the financial crisis as well.

Details here.


Would a "Wise Latina" Judge Reach "Better" Results than a White Male?

More comments by Judge Sonia Sotomayor have surfaced that are sure to complicate her confirmation should President Obama nominate her to the Supreme Court. The New York Times reports:

In 2001, Sonia Sotomayor, an appeals court judge, gave a speech declaring that the ethnicity and sex of a judge “may and will make a difference in our judging.”

In her speech, Judge Sotomayor questioned the famous notion — often invoked by Justice Ruth Bader Ginsburg and her retired Supreme Court colleague, Sandra Day O’Connor — that a wise old man and a wise old woman would reach the same conclusion when deciding cases.

“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” said Judge Sotomayor, who is now considered to be near the top of President Obama’s list of potential Supreme Court nominees. . . .

Judge Sotomayor has given several speeches about the importance of diversity. But her 2001 remarks at Berkeley, which were published by the Berkeley La Raza Law Journal, went further, asserting that judges’ identities will affect legal outcomes.

“Whether born from experience or inherent physiological or cultural differences,” she said, for jurists who are women and nonwhite, “our gender and national origins may and will make a difference in our judging.” . . .

In making her argument, Judge Sotomayor sounded many cautionary notes. She said there was no uniform perspective that all women or members of a minority group have, and emphasized that she was not talking about any individual case. . .

Still, Judge Sotomayor questioned whether achieving impartiality “is possible in all, or even, in most, cases.” She added, “And I wonder whether by ignoring our differences as women or men of color we do a disservice both to the law and society.”

She also approvingly quoted several law professors who said that “to judge is an exercise of power” and that “there is no objective stance but only a series of perspectives.”

“Personal experiences affect the facts that judges choose to see,” she said.

UPDATE: Here are my initial thoughts on these remarks. First, it is certainly true that a judge's experience, professional and personal, can affect the way he or she judges in individual cases insofar as it affects the significance placed on particular facts or the extent to which a given situation satisfies a particular legal rule. To take a fairly simple example, a judge's experience could inform whether he or she believes given conduct in the workplace is sufficiently pervasive to create a hostile workplace environment. Likewise, a judge with significant trial experience might review a trial court's findings with a different eye than one who has not. Insofar as various legal rules rely upon contemporary notions of reasonableness, a judge's own experience will inform what he or she sees as "reasonable," even as he or she seeks to render decisions that are consistent with prior precedent. In close cases, a judge must exercise judgment, and judgment is informed by experience, even if the judge is intent upon applying the relevant law as neutrally as possible. This is one reason for appellate review and multi-judge panels. Different people will, in good faith, see close cases differently, even as they try to apply the same law to the same facts. Nonetheless, the number of cases in which such experience should have an influence is quite small, even on the Supreme Court, and judges should not let their personal experiences deflect them a forthright effort to identify the correct answer in any given case. If this is all Sotomayor is saying, no problem.

Based on the Times report — and without the benefit of a videotape or broader context — it seems Sotomayor's comments go beyond the simple observation that experience can influence how a judge sees a case to question the idea of judicial neutrality and endorse the idea that judging is ultimately an exercise of power instead of judgment. Insofar as this is the case, her remarks are troubling. It is one thing to recognize that judges, as people, are fallible and imperfect, and will be influenced by the personal experience and biases (even as they aspire to interpret and apply the law in a neutral and objective fashion). It is quite another to suggest that such neutrality and objectivity is not even an ideal to which judges should aspire, that "there is no objective stance but only a series of perspectives," and therefore a judge's personal experiences are license to impose his or her preferences through an exercise of judicial power. Indeed, if some perspectives are "better" — more authentic, more fair, more progressive, whatever — why shouldn't a judge embrace his or her own perspective, and abandon any pretense of trying to apply the law in a neutral fashion.

UPDATE: The full text of Judge Sotomayor's remarks are here.

Related Posts (on one page):

  1. Sotomayor's Multiple "Wise Woman" Speeches:
  2. Judge Sotomayor's "Unscripted" Moments:
  3. Would a "Wise Latina" Judge Reach "Better" Results than a White Male?
89 Comments

Dannimal Aide Indicted:

Remember Marc Dann? He resigned as Ohio's Attorney General under a cloud of scandal (see my prior posts here). Now his pal, former roommate and former aide, Anthony Gutierrez -- the aide accused of sexually harassing a female state employee in Dann's apartment -- has been indicted on ten felony counts, including theft and misuse of state property, workers' compensation fraud, and other charges. Others, including Dann, are still under investigation.

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Government Cuts Chrysler Advertising Budget.

The federal government cut Chrysler's advertising budget by half:

The Obama administration appears to have reminded Chrysler about the cost of accepting government bailouts: with federal funds comes federal control.

A report this week in Advertising Age said that Chrysler wanted to spend $134 million in advertising over the nine-week duration of its bankruptcy. But Mr. Obama's auto-industry task force sliced that figure in half.

Robert Manzo, executive director of Capstone Advisory Group and a Chrysler consultant, testified at a May 4 hearing in bankruptcy court that the task force "believed that it was not feasible to not spend anything on marketing and advertising for fear of eroding the image of the brand." But, Ad Age said, the task force overruled the car maker. . . .

Mr. Obama's Presidential Task Force on the Auto Industry includes Treasury Secretary Tim Geithner and officials from the Commerce, Transportation, Labor, and Energy departments, plus representatives of the EPA, White House, the Economic Recovery Advisory Board, and the National Economic Council. It includes no professional marketers.

Expect bailout-recipient General Motors to be paying close attention.

This cut might be a sound executive decision or it might not, but I think it should be made by Chrysler management and the bankruptcy court.


Political Ignorance and the "Cap and Trade" Proposal:

As co-blogger Jonathan Adler points out, a recent Rassmussen survey shows that voters are incredibly ignorant about the Obama administration's proposal to fight global warming through a "cap and trade" program. The poll finds that only 24% of American adults understand that the plan has to do with "environmental issues"; 29% believe that it is a "Regulatory reform for Wall Street" and 17% answered that it is a type of "health care reform."

Obviously, knowing that cap and trade is an environmental policy proposal is only a bare minimum level of knowledge. One would need to know a lot more to really understand the pros and cons of the idea. For example, voters should have some understanding of how much it will really reduce global warming, what the economic costs will be, and how well the policy stacks up against alternatives such as a carbon tax. In addition, widespread public ignorance of even the most basic facts about cap and trade exacerbates the danger that the policy can be used as a tool for rent-seeking by narrow interest groups at the expense of the general public.

To avoid misunderstanding, I should note that I think that global warming is a genuine and serious problem (though I lack the scientific knowledge to know for sure). And I tend to agree with Jonathan that a carbon tax is preferable to cap and trade as a policy option for reducing warming. One of the advantages of a tax is that it's relatively easier for voters to understand.

Unfortunately, public ignorance about policy goes far beyond cap and trade. It extends to many other issues. As I have argued in various articles (e.g. here and here), political ignorance is actually rational behavior for most voters. But it is a serious problem for modern democracy, one that will only get worse as government continues to expand in size and complexity.

UPDATE: It's worth noting that we can't be sure that even the 24% really know that cap and trade is an environmental policy proposal. Some of the respondents who picked the right answer might have done so by random guessing. Survey researchers have shown that random guessing on surveys is actually quite common. For example, respondents will often express opinions about completely nonexistent bills made up by researchers rather than admit that they haven't heard of them.

Related Posts (on one page):

  1. Climate Policy as Sausage Making:
  2. Political Ignorance and the "Cap and Trade" Proposal:
  3. "Raise Wages, Cut Carbon":
29 Comments

Mark Steyn's Lecture to Students.

As I contemplate Northwestern Law School's graduation address on Friday, I can attest that I've never sat through one as interesting as Mark Steyn's lecture at Hillsdale College (tip to Instapundit).

In most of the developed world, the state has gradually annexed all the responsibilities of adulthood—health care, child care, care of the elderly—to the point where it's effectively severed its citizens from humanity's primal instincts, not least the survival instinct. Hillary Rodham Clinton said it takes a village to raise a child. It's supposedly an African proverb—there is no record of anyone in Africa ever using this proverb, but let that pass. P.J. O'Rourke summed up that book superbly: It takes a village to raise a child. The government is the village, and you're the child. Oh, and by the way, even if it did take a village to raise a child, I wouldn't want it to be an African village. If you fly over West Africa at night, the lights form one giant coastal megalopolis: Not even Africans regard the African village as a useful societal model. But nor is the European village. Europe's addiction to big government, unaffordable entitlements, cradle-to-grave welfare, and a dependence on mass immigration needed to sustain it has become an existential threat to some of the oldest nation-states in the world.

And now the last holdout, the United States, is embarking on the same grim path: After the President unveiled his budget, I heard Americans complain, oh, it's another Jimmy Carter, or LBJ's Great Society, or the new New Deal. You should be so lucky. Those nickel-and-dime comparisons barely begin to encompass the wholesale Europeanization that's underway. The 44th president's multi-trillion-dollar budget, the first of many, adds more to the national debt than all the previous 43 presidents combined, from George Washington to George Dubya. The President wants Europeanized health care, Europeanized daycare, Europeanized education, and, as the Europeans have discovered, even with Europeanized tax rates you can't make that math add up. In Sweden, state spending accounts for 54% of GDP. In America, it was 34%—ten years ago. Today, it's about 40%. In four years' time, that number will be trending very Swede-like.

But forget the money, the deficit, the debt, the big numbers with the 12 zeroes on the end of them. So-called fiscal conservatives often miss the point. The problem isn't the cost. These programs would still be wrong even if Bill Gates wrote a check to cover them each month. They're wrong because they deform the relationship between the citizen and the state. Even if there were no financial consequences, the moral and even spiritual consequences would still be fatal. That's the stage where Europe is.

America is just beginning this process.

BTW, at Northwestern Law, we've had Joe Biden, Dick Durbin, Bob Kerrey, and Janet Reno, to name a few.


A Cease Fire in the Drug War?

From the WSJ, more encouraging news about the Obama Administration's approach to illegal drugs.

The Obama administration's new drug czar says he wants to banish the idea that the U.S. is fighting "a war on drugs," a move that would underscore a shift favoring treatment over incarceration in trying to reduce illicit drug use.

In his first interview since being confirmed to head the White House Office of National Drug Control Policy, Gil Kerlikowske said Wednesday the bellicose analogy was a barrier to dealing with the nation's drug issues.

"Regardless of how you try to explain to people it's a 'war on drugs' or a 'war on a product,' people see a war as a war on them," he said. "We're not at war with people in this country."

82 Comments

Thursday, May 14, 2009

N.H. governor will sign SSM bill if . . .

it includes broader religious exemptions. The statement Gov. John Lynch just released is available on his website. It will infuriate SSM opponents and puzzle many supporters. Lynch initially said he opposed same-sex marriage and thought the state's civil unions law passed two years ago was good enough for gay couples. Now he says he'll sign the same-sex marriage bill recently passed if the state legislature adopts additional protections for religious objectors. Otherwise, he'll veto it.

His proposal includes this key provision, borrowing partly from a religious-exemption proposal initially made a few weeks ago by several law professors and partly from language included in recently successful Maine and Vermont SSM laws:

Notwithstanding any other provision of law, a religious organization, association, or society, or any individual who is managed, directed, or supervised by or in conjunction with a religious organization, association or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society, shall not be required to provide services, accommodations, advantages, facilities, goods or privileges to an individual if such request for such services, accommodations, advantages, facilities, goods or privileges is related to the solemnization of a marriage, the celebration of a marriage, or the promotion of marriage through religious counseling, programs, courses, retreats, or housing designated for married individuals, and such solemnization, celebration, or promotion of marriage is in violation of their religious beliefs and faith. Any refusal to provide services, accommodations, advantages, facilities, goods or privileges in accordance with this section shall not create any civil claim or cause of action or result in any state action to penalize or withhold benefits from such religious organization, association or society, or any individual who is managed, directed, or supervised by or in conjunction with a religious organization, association or society, or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization, association or society.

On the whole, this would be the broadest religious exemption yet adopted as the price for allowing gay couples to marry. There is quite a bit to chew on, and I'm interested in reactions from those with expertise in antidiscrimination law.

Here are a couple of initial thoughts. First, as broad as it is, the governor's proposed language does not apply to state workers. Second, it does not apply to "any individual," but only to those individuals "managed, directed, or supervised by or in conjunction with" a covered religious entity. Both of those are commendable limitations on the reach of the exemption, for reasons I've discussed previously. But the "in conjunction with" phrase — covering individuals and nonprofits associated in some way with covered religious entities — is potentially quite broad. Unlike other exemptions, it's not clear to whom it's supposed to apply.

I've previously argued (see, for example, here) that the substantive legal case for religious exemptions in SSM legislation is not very compelling. But these exemptions, it seems to me, are primarily political in the sense that they allow legislators (and in this case, a governor) to tell both sides how much they've done to protect their interests. Governor Lynch could be expected to demand an especially high price since he must be given cover to explain his reversal.

If I were a state legislator, I'd be inclined to accept Lynch's proposal. Accepting the proposal means that gay couples can marry now and that New Hampshire will become the sixth state to authorize it. The actual imposition on same-sex couples will probably be small and largely symbolic, though I'd want to know more about its expected application. Rejecting the proposal may mean no SSM in New Hampshire for years, at least until this governor is gone or can be persuaded to relent.

With the passage of each new SSM bill, the pressure to adopt specific religious exemptions and to expand their coverage is growing. Make no mistake: a baseline is being established in New England.

UPDATE: It appears New Hampshire Freedom to Marry, the main pro-SSM group, supports the governor's proposal. They're indicating that a legislative hearing on the proposal will be held Tuesday.

177 Comments

What the Framers Supposedly Thought of Symbolic Expression:

Sen. Grassley asserts, in support of the just-reintroduced anti-flag-desecration constitutional amendment,

[I]f you read the debate in 1790 — the First Amendment was not written to protect nonverbal speech. It was to protect verbal speech and, more importantly, political speech.

So you weren't put in jail when you talked against the government as you were in England [at that] particular time. And so we want to make sure that we get the Constitution back to its original intent before the Supreme Court screwed it up.

Except that history seems to be against Senator Grassley on this; for more, see my Symbolic Expression and the Original Meaning of the First Amendment, by coincidence just published at 97 Georgetown Law Journal 1057 (2009).

Related Posts (on one page):

  1. What the Framers Supposedly Thought of Symbolic Expression:
  2. Flag Desecration and "Hate Speech":
58 Comments

[Ira Matetsky, guest-blogging, May 14, 2009 at 4:56pm] Trackbacks
Wikipedia and the Biography Problem, part 2:

(Please read part 1 from last night first; I’m just picking up where I left off.)

Another proposal that would certainly reduce vandalism of Wikipedia articles would be to eliminate editing by unregistered users, either throughout Wikipedia or at least on BLPs. Presently, “anyone can edit” extends even to users who haven’t registered an account. In wiki parlance, unregistered users are referred to as “IP” editors, because in the article contribution histories, the IP number of the computer from which they edited is displayed instead of their username. This form of “anonymous editing” should not be confused with a different sort of anonymity, which allows users to register under pseudonyms without providing their real names.

The main value of allowing IP editing is that it gives brand-new users the ability to try out “anyone can edit” for themselves, without taking the time and trouble to register. Many new users make their first edits as IPs, often after spotting a typo in an article or noting that some information is missing, and there is a fear that if registration were required to edit, some proportion of first-timers wouldn’t bother, and therefore would never develop the habit of contributing and become “Wikipedians.” For example, this is precisely how I got started in editing, as I mentioned the other night.

While IPs contribute many good-faith edits and some become regular contributors, IP editors are also responsible for much of the drive-by vandalism — often, but by no means always, committed by bored schoolchildren — that afflicts many pages (and gives other editors the opportunity to earn credentials as “vandalism fighters”). The ratio between valid and vandalistic edits by IPs is sufficiently low that from time to time there is discussion of requiring registration to edit. A significant step in that direction was taken in 2006, when users were required to register before creating a new page (as opposed to editing an old one).

An intermediate step would be to disallow IP editing just on BLPs. Administrators have the ability to “semiprotect” any page of Wikipedia. A semiprotected page cannot be edited by IPs or by newly registered editors. (A “full protected” page cannot be edited by anyone, except for administrators under very specific guidelines.) Pages are semiprotected usually when they are being vandalized by IPs, typically for short periods by sometimes for a longer term or indefinitely. (For example, [[George W. Bush]] or [[Hillary Clinton]] could probably never be unprotected without being overrun, but those are unusual cases.)

It has been proposed that either all BLPs be permanently semiprotected, or at least that they be liberally semiprotected at a lower threshold of vandalism or at the subjects’ requests. This would certainly reduce the amount of vandalism and defamation from non-registered IPs. (An objection is that it would also eliminate the ability of an unregistered editor, perhaps the article subject himself or herself, to fix vandalism or remove defamation. I don’t know how often this happens.)

The most recently proposed approach for reducing BLP violations and other types of bad edits is called “flagged revisions.” The idea of giving this approach at least a trial was supported by a majority of English Wikipedia editors who participated in a recent poll, and it has already been implemented on the German Wikipedia. There are various somewhat different proposals for how this could be done, either on all articles, or on BLP articles, or some subset of them. In general terms, flagged revisions means that anyone can still edit an article — but the edit does not become visible to readers until another editor has reviewed and approved it. It introduces some level of quality control; it also, some say, represents a step away from “anyone can edit.”

This procedure itself raises some questions of implementation. Some are mechanical, such as, what happens when User:B edits the same sentence that User:A has just edited, but before the edit has been flagged? Others are more substantive, such as who gets to be an edit-flagger, and what standards do they use in flagging? If a flagger sees that someone wants to edit Jones’s biography by adding “Jones is a jerk!” then he or she will disapprove the edit — but that’s not really the type of edit that, if a few people see it before it gets reverted, will really damage Jones’s reputation (though it will damage Wikipedia’s). The more subtle defamations may never be recognized by a reviewer who is intelligent and dedicated but unfamiliar with Jones’s life and work — and so they will still make it into the articles — only now they would come with an “approved by an official revision flagger” seal of approval.

The English Wikipedia is struggling with whether to take a step toward flagged revisions. Proponents suggest that it's a long overdue necessary step to address an obvious fault with the site; opponents suggest it would be the death-knell of the "anyone can edit" philosophy that attracts people to contribute. A threshold issue is there is no clear governance process on the English Wikipedia for issues like this, so no one even knows just how the decision will be made. (I'll talk more about governance in a day or two.)

Incidentally, because the issue has come up in the comments, there have been relatively few lawsuits brought by individuals claiming to have been defamed on Wikipedia. To the best of my knowledge, there have been no successful defamation suits against the Wikimedia Foundation, which is the not-for-profit foundation (formerly headquartered in Florida and currently in California) that owns the hardware on which Wikipedia’s and its sister projects’ data reside and the Wikipedia trademark.

In very general terms, the Foundation’s position has been that because it does not create or control the specific contents of any particular page, it is shielded from liability for defamatary content contributed by any user pursuant to Section 230 of the Communications Act (47 U.S.C. § 230(c)), which provides that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

I know of no reported cases applying Section 230 to a claim against the Wikimedia Foundation. There is one unreported case, Bauer v. Glatzer in the Superior Court of New Jersey, which upheld the Foundation’s immunity. A leading case discussing Section 230 more generally is cf. Barrett v. Rosenthal, 40 Cal. 4th 33, 146 P.3d 510, 51 Cal. Rptr. 3d 55 (2006), while an interesting law review article analyzing the application of Section 230 to Wikipedia is Ken S. Myers, Wikimmunity: Fitting the Communications Decency Act to Wikipedia, 20 Harv. J. L. & Tech. 162 (2006).

I wish very much that I were ending this post with a brilliant solution to problematic content regarding living persons on Wikipedia, but I don’t have one, even after having thought about this matter from lots of angles for close to three years. One of the reasons I asked Eugene if I could post here was to see what the readers here — legally and technically savvy, but without a vested interest in how the issue is addressed — might have to say about these issues. I'll move on to other topics in the next few days, but I'll continue reading the comments here. I'll do my best to respond to some of them before my blogging stint here is up.

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NPR Music's "Live at the Village Vanguard" Series: The Village Vanguard is, in my view, the world's greatest jazz club. The Vanguard not only has an incredible history and marvelous acoustics, but it continues to book many of the best acts in jazz.

  If you're a jazz fan but you can't make it to the Vanguard, a decent substitute is the NPR Music series Live at the Village Vanguard. I only discovered this series recently, but the folks at NPR and WBGO record one concert every month or so and post the entire thing on the web. Some of the postings also include songs or entire sets you can download to your iPod.

  I was particularly excited to see that NPR recently recorded the Edward Simon trio with Mark Turner. I had hoped to make it to NYC to hear them, as they are two of my very favorite players and fit so naturally together, but I didn't make it.

  Anyway, if you're a jazz fan, it's definitely worth checking out. More proof that the Internet is the greatest invention ever.
5 Comments

Flag Desecration and "Hate Speech":

Here's a press release from Missouri Rep. Jo Ann Emerson (which I found on the States News Service, May 6, 2009, but is also available here) (emphasis added):

A resolution authored by U.S. Rep. Jo Ann Emerson (MO-08) is getting bipartisan support in the U.S. House of Representatives for a constitutional amendment to prevent desecration of the American flag.

"The American flag is more than a symbol, especially to the American men and women who have served in uniform, putting their lives at risk for our country with the flag stitched on their sleeves. People who desecrate our flag don’t fully understand, and certainly do not respect, the service of these Americans in defense of our freedoms," Emerson said.

She also pointed out that, while the First Amendment protects free speech, it offers no protection for hate speech.

"When a flag is burned or desecrated, especially by another American citizen, a severe injury is inflicted on the patriots of this country who have served us and by those who have lost a loved one," Emerson added.

The proposed constitutional amendment is one sentence: "The Congress shall have power to prohibit the physical desecration of the flag of the United States."

Regarding the prospects for her measure’s passage in the U.S. House of Representatives, Emerson said, "I think there is a lot of support for this idea in Congress, among veterans service organizations in our country, and by the American public. Before the Supreme Court invalidated flag protection laws in 1989, 48 U.S. states and the District of Columbia had measures on the books. I would very much like there to be an opportunity to restore that much-needed sanctity to our flag. It’s a symbol of every American life spent or lost in the service of our country," Emerson said.

Since the 1989 Supreme Court ruling in the case of Texas v. Johnson, all 50 states have passed memorializing resolutions asking Congress to pass a constitutional amendment and to send it to the states for ratification.

Of course, neither the First Amendment nor the doctrine that the Court has developed under that amendment, has any exception for "hate speech." One would hope that members of Congress would at least know constitutional law — or have their staffs look it up — even if they don't agree with it.

But I think this also helps illustrate the dangers of "censorship envy," and of creating new constitutional exceptions, especially for ideas that some find repulsive. Rep. Emerson seems to think the supposed constitutional exception for hate speech supports her proposed new exception. I take it that she also expects that some of the readers of the press release will take the same view. And why not? Once you conclude that hateful expression about this or that group is punishable, you might feel yourself like a dupe to tolerate expression that you see as hateful to the nation and the symbols you cherish. It's hard enough to tolerate offensive speech, harder still to tolerate offense when others aren't required to do the same.

Say, though, that a new First Amendment exception for flagburning is indeed recognized. Then the censorship envy I describe above will likely operate in reverse: There'll be still more pressure to recognize a "hate speech" exception in earnest. Once the law concludes that hateful expression towards America or the flag (even a narrowly defined sort of hateful expression) is punishable, others might feel themselves like dupes to tolerate expression that they see as hateful to their race or religion or ethnicity or sexual orientation or what have you.

And even if those people are defeated in their attempt to create a new "hate speech" exception — if an exception for anti-American symbols is recognized but by an exception for anti-Muslim or anti-black or anti-gay or what have you symbols is not — they will be understandably upset by what they'll see as unfair treatment. Instead of uniting us around a symbol, the amendment would divide us further.

In any case, I wrote about this some years ago, but the principle seems to me to remain the same. But now some members' willingness to make certain expression unprotected is compounded by a Congresswoman's ignorance about what expression actually is protected.

Related Posts (on one page):

  1. What the Framers Supposedly Thought of Symbolic Expression:
  2. Flag Desecration and "Hate Speech":
38 Comments

More on Legal Ambiguity and the Role of the Supreme Court: Yesterday's post on empathy and legal ambiguity drew a long string of comments, including many critical, owing in part to my own inarticulateness. Reader Ben Glassman points out a recent Yale Law Journal comment that makes a similar point to what I was trying to make — not exactly the same, but similar — and I thought I would flag the note for interested readers: Frederick Liu, The Supreme Court Appointments Process and the Real Divide Between Liberals and Conservatives, 117 Yale L.J. 1947 (2008).
18 Comments

Documents Confirm That Paulson Bullied the Banks:

John Hinderaker has some of the documents obtained pursuant to a FOIA Request about how Treasury bullied banks into taking TARP money back in the fall.

The documents were obtained by Judicial Watch, discussion here.

Check out this interesting tidbit from Judicial Watch:

Judicial Watch filed a Freedom of Information Act (FOIA) request about the bankers meeting on October 16, 2008. After months of stonewalling, a FOIA lawsuit was filed against the Obama Treasury Department on January 27, 2009. Incredibly, on February 4, Treasury responded it had no documents about the historic meeting. Pressure from Judicial Watch forced Treasury to reevaluate its response, which resulted in this document release last month.

37 Comments

Another Tedious Reminder for Frank Rich:

Sunday's New York Times brought us some thoughts on the crisis facing the newspaper industry from Frank Rich. He’s not, I admit, my favorite columnist, generally speaking – but it’s actually an interesting and thoughtful piece. The death of the newspaper may well be upon us – though as my friend Gigi Sohn helpfully reminds me, that doesn’t necessarily portend the death of journalism, which would be a far more serious matter – and it should be of concern to anyone interested in the future of "news" and the future of an informed global community. Rich acknowledges – correctly, I think – that many of the newspaper industry's woes are due to its own "self-destructive retreat from innovation".

"In the Internet era, many sectors of American media have been re-enacting their at first complacent and finally panicked behavior of 60 years ago. Few in the entertainment business saw the digital cancer spreading through their old business models until well after file-sharing, via Napster, had started decimating the music industry. It’s not only journalism that is now struggling to plot a path to survival. But, with all due respect to show business, it’s only journalism that’s essential to a functioning democracy. And it’s not just because — as we keep being tediously reminded — Thomas Jefferson said so."

It's that snide reference to being "tediously reminded" of Jefferson's vision of the free press, and of the crucial importance of the free press to a functioning democracy, that – naturally! – caught my eye. Oh, so arch, so condescending! Who can resist a little bit of smarmy Jefferson-bashing every so often – even when he’s on your side of the argument?!

I am, I happily and rather proudly confess, one of the tedious reminders. Why, I wonder, is it so tedious to be reminded that it was, in fact, Jefferson who, more than any other figure in history, articulated and helped establish, in this country, a vision unprecedented in human history: the government would allow people to speak their minds freely and without hindrance. It’s not about whether Jefferson does or doesn’t get the credit for the accomplishment – it’s about understanding the idea, and the context from which it sprung. I think it deepens our understanding of the principle to understand how it came into being, and understanding how it came into being necessarily means understanding how Jefferson helped bring it into being. Understanding, among other thing, how long the odds were that he’d succeed; when Jefferson wrote his justly famous epigram:

"Were it left to me to decide whether we should have a government without newspapers or newspapers without government, I should not hesitate a moment to prefer the latter"

the government of the United States (including a fully complicit judicial branch) was throwing newspaper editors in jail for expressing their displeasure with the way the Adams administration was doing things. Had it continued, it would have destroyed the United States before the United States had a chance to become the United States; it didn’t continue because the people of the United States threw the bastards out in the election of 1800; and I don’t see why it’s so tedious to remind ourselves of all that from time to time.

Why does Frank Rich find it so “tedious” to be reminded of Jefferson's role in that astonishing accomplishment? You’d think that journalists like Rich would adopt Jefferson as their secular saint – he actually believed that what they do is more important than what the government does!

My theory is that Rich is uncomfortable with Jefferson on his side because – ironically, perhaps – Jefferson’s vision of the primacy of unfettered communication is a little too radical for Rich. He’s not nearly as sure as Jefferson was himself that newspapers matter more than the government matters; faced with the Jeffersonian choice, I think Frank Rich hesitates, but then then goes with Alternative A. Or perhaps what makes him uncomfortable with having Jefferson on his side is that this is all a prelude to asking for a most un-Jefferson-like government bailout for the newspaper industry? He claims that it’s not:

“Reporting the news can be expensive. Some of it — monitoring the local school board, say — can and is being done by voluntary “citizen journalists” with time on their hands, integrity and a Web site. But we can’t have serious opinions about America’s role in combating the Taliban in Pakistan unless brave and knowledgeable correspondents (with security to protect them) tell us in real time what is actually going on there. We can’t know what is happening behind closed doors at corrupt, hard-to-penetrate institutions in Washington or Wall Street unless teams of reporters armed with the appropriate technical expertise and assiduously developed contacts are digging night and day. Those reporters have to eat and pay rent, whether they work for print, a TV network, a Web operation or some new bottom-up news organism we can’t yet imagine. It’s immaterial whether we find the fruits of their labors on paper, a laptop screen, a BlackBerry, a Kindle or podcast. But someone — and certainly not the government, with all its conflicted interests — must pay for this content and make every effort to police its fairness and accuracy. If we lose the last major news-gathering operations still standing, there will be no news on Google News unless Google shells out to replace them. It won’t.”

We'll see.

64 Comments

Remembering Lysander Spooner: In this date in 1887, Lysander Spooner, the great Nineteenth Century lawyer, abolitionist legal theorist passed away in Boston. More information about Spooner, as well as most of his publications and correspondence, can be found at LysanderSpooner.org. Here is a portion of obituaries that appeared in the Boston Daily Globe and Liberty:

Lysander Spooner: One of the Old Guard of Abolition Heroes, Dies in His Eightieth Year After a Fortnight’s Illness, Boston Daily Globe, May 18, 1887

John Boyle O'Reilly Predicts a Monument to His Memory
Lysander Spooner

Yesterday Afternoon, at 12.50 o'clock, one of the most remarkable men who has ever walked the street of Boston departed this life at his residence, 109 Myrtle street. His name, Lysander Spooner, is known to but a few — to fewer perhaps than 30 years ago — but, as John Boyle O'Reilly says, it will some day be honored by millions. The illness which was the immediate cause of his death began about three weeks ago, but did not confine him to his house and bed until a week later. Since then he had been gradually sinking under the combined influence of rheumatism and bilious fever. He would not consent to the calling of a doctor until a few days ago, having bitter antipathy to the medical profession of whatever school, and feeling that he knew his own constitution better than any on could know it for him, and finally when on was summoned he would not take his medicines. However, it made no difference, as the doctor said there was no hope of his recovery. Being of a very sanguine temperament, he would not believe that his illness was fatal until Thursday last. Friday he lapsed into a comatose condition, and from Friday evening till Saturday noon, when he died without a struggle, he was entirely unconscious. . . .

Though Mr. Spooner did not call himself an Anarchist, his political and financial views coincided more nearly with those of the Individualistic Anarchists than with those of any other school.

Mr. Spooner left many manuscripts, and was engaged until his last sickness in daily labor upon his writings, which was performed cheerfully in the Athenaeum Library.

Upon almost every subject, this large-hearted man was at adds with his day and generation. He was intensely in earnest and far in advance of the average sentiment. While he was possessed of many lovable qualities, his personality was so pronounced and his convictions of duty so strong that he had few lasting affiliations with friends. But such as he had were of the strongest. Like John the Baptist, he performed his chosen mission alone and by his own peculiar methods accomplished his work and liver to rejoice with the friends of freedom over the total abolition of the accursed and hated system of human slavery. His contemporaries one and all bear glad testimony to his uncompromising honesty and integrity of purpose and to the transcendent nobility of his manhood. After a stormy and troubled life, a life full of sacrifices and bitter strifes he sleeps his last sleep. He has gone, and there is one less of that rapidly-dwindling number of heroes who counted their lives and their fortunes as nothing in the scale against the rights of their weak and oppressed brethren. Deceased leaves no family, never having been married.

His funeral will be held at his late residence, 109 Myrtle street, at 2.30 o'clock, and among the several addresses will be one by John Boyle O'Reilly.Spooner Monument

That gentleman, in commenting yesterday on the character of the deceased, said he was one of the greatest men the world ever saw. A man whose nature was so large and his love for humanity so great that he distinguished no race or creed or nationality. In his own way, in his humble living, as an anchorite, he made his beneficence felt to every hand. Still, with all his power to do good to his fellow men, but few had ever heard of him, and fewer still were privileged with his acquaintance. His loss to the country was the greatest since the death of Emerson.

He was even a greater man than Emerson, and Mr. O'Reilly prophesied that a monument would be erected to perpetuate his memory in 20 years, or 50 years at the farthest.

Benjamin R. Tucker, Our Nestor Taken From Us, Liberty, May 28, 1887

On almost any day except Sunday, for as many years as the present writer can remember, a visitor to Boston's Athenaeum Library between the hours of nine and three might have noticed, as nearly all did notice, in one of the alcoves overlooking Tremont Street across the Old Granary burying ground, the stooping figure of an aged man, bending over a desk piled high with dusty volumes of history, jurisprudence, political science, and constitutional law, and busily absorbed in studying and writing. Had the old man chanced to raise his head for a moment, the visitor would have seen, framed in long and snowy hair and beard, one of the finest, kindliest, sweetest, strongest, grandest faces that ever gladdened the eyes of man. But, however impressed by the sight, few realized that they had been privileged with a glimpse of one whose towering strength of intellect, whose sincerity and singleness of purpose, and whose frank and loving heart would endear him to generations to come; still fewer suspected that each sentence flowing gently from the quill in those slowly stiffening fingers was powerfully contributory to the resistless sweep of a flood of logic and of scornful wrath destined to engulf the ill-founded structure of a false society. Such, nevertheless, was the truth. But he will add no more to its might. For the past month, his familiar form has been missing from its accustomed place, and the habitues of the Library will never see him there again. For he is dead. His name was Lysander Spooner, a name henceforth memorable among men.Champion of Liberty

He died at one o'clock in the afternoon of Saturday, May 14, in his little room at 109 Myrtle Street, surrounded by trunks and chests bursting with the books, manuscripts, and pamphlets which he had gathered about him in his active pamphleteer's warfare over half a century long. For a year or more he had been visibly declining physically and had been unable to move about without the aid of a crutch, and on the second day of the present month he sank into a bilious fever from which he never recovered. Almost bitterly hostile to all schools of medicine and confident in his knowledge of his own constitution, he refused to suffer a doctor's presence until three days before his death, and even then, with a firmness always characteristic of his life, he declined to describe his symptoms or to accept either advice or medicine. Nor would he pay heed to the solicitations of those who, assured that his recovery was hopeless, besought him to make some disposition of his precious manuscripts. “Oh! I shall get up to attend to that,” he would answer in his weak but ever cheerful voice. He gradually lapsed into an unconscious state, which lasted some twenty-four hours, and then he died without a struggle. Some time or other the story of this glorious life of eighty years will be told in detail as it deserves. Here neither time, space, nor material permit me more than a hasty glance at certain phases of it.Spooner's Birthplace

It began on a farm in Athol, Massachusetts, on January 19, 1808, and on this farm, belonging to his father, young Spooner spent his boyhood and a few years of his manhood. At the age of twenty-five, equipped with such learning as a country-school education then afforded, he went to Worcester, where he obtained a clerkship in the Registry of Deeds. His year's experience in that office, coupled with his painstaking and methodical nature, made him a very reliable conveyancer and examiner of titles, in which capacity, however, he seldom had occasion to act in after life. On throwing up his clerkship, he began to read law in the office of John Davis, a celebrated member of the Worcester bar, and later studied in the office of Charles Allen, who is counted among the foremost of Massachusetts lawyers. Probably these men of talent little imagined what a giant intellect was developing under their eyes. Indeed, it is more than likely that their hopes were slight regarding the future of a young man to whom already the details and formalities and absurdities and quackeries of statute law seemed but so much cobweb which he must brush away in order to obtain a closer view of those fundamental veracities and realities which he called the principles of natural justice, whose mind had begun to soar from the realms of pettifoggery into those of high philosophy, and who, instead of perfecting himself in the art of bleeding a client, was devoting himself to writing his first pamphlet, entitled, "A Deist's Reply to the Alleged Supernatural Evidences of Christianity."
Among the evils from which the country then suffered, even to a greater extent than at present, was the government monopoly of the postal business and the consequent enormous rates of postage. In opposition to this outrageous violation of liberty Mr. Spooner took his first step in economic reform. He saw that the evil could be remedied by competition, and he tried to convince the people that the government had no right to monopolize the carriage of mail matter. But his arguments had no effect. So, remembering his success in defying the law when seeking admission to the bar, he determined to defy it again. Accordingly, in 1844, he started a private mail between Boston and New York, and soon extended it to Philadelphia and Baltimore, charging but five cents a letter between any of these points, — a very much smaller sum than the government was then charging. The business was an immediate success and rapidly extending. But as the carrying of each letter constituted a separate offence, the government was able to shower prosecutions on him and crush him out in a few months by loading him with legal expenses. His aim was to get one case before the Supreme Court, but the officials were too shrewd to let him do that. Others, who had followed his example, were treated likewise. Nevertheless the matter had created such a stir, and Mr. Spooner had obtained so many acknowledgments from congressmen of the superiority of his system, that the following year public sentiment compelled a large reduction in the government rates of postage. That Mr. Spooner by his bold course conferred an immense benefit upon mankind no one can gainsay, and he certainly deserves the title of "father of cheap postage in America." But this was not the victory that he aimed at; this was not the victory that still remains to be won. What Mr. Spooner struck at was the monopoly, and that stands to this day, more firmly rooted than ever, and fostering a multitude of evils which competition would remedy at once. The people have been dissuaded from demanding its abolition by the successive reductions that have been thrown at them as sops. When one of the daily papers proposed, therefore, a few days ago, — meaning well, no doubt, — that Mr. Spooner’s head be put upon the next new postage stamp, in effect it insulted Mr. Spooner. He maintained to the day of his death — and the most experienced expressmen agree with him — that there is profit in carrying letters all over the United States at one cent each, and that the government monopoly of the business alone prevents the people from enjoying such a boon. If anything, then, could make him turn in his grave, it would be the consciousness of the fact that his likeness was being used in a way to jointly glorify himself and the monopoly which he worked so hard to destroy.

Mr. Spooner owes his chief reputation as a publicist to a pamphlet which, despite its great ability, is not by any means his most important work. "The Unconstitutionality of Slavery" at once made him prominent in the abolition conflict, and for some years his fame was considerable. Garrison and his followers had been conducting their agitation on the theory that the Constitution was a pro-slavery document and should be trampled under foot. When Spooner came forward, therefore, with a wonderfully strong legal argument to show that slavery was unconstitutional, it naturally excited much attention. Those who were in favor of abolishing slavery by political methods - among them Gerrit Smith and Elizur Wright - strongly endorsed the doctrine, and the book became the textbook of the Liberty Party. Wendell Phillips did his best to answer it, but as a logician Phillips was to Spooner as a pygmy to a giant. The battle raged fiercely until events forced the anti-slavery struggle to turn upon another issue, and the palm of victory has never been awarded. It should be borne in mind that the question was one of interpretation simply; the authority of the Constitution as such was not under discussion; if it had been, Spooner's opposition to it would have been far more radical than Garrison's. Besides this pamphlet Mr. Spooner wrote two others in connection with the anti-slavery conflict, - "A Defence of Fugitive Slaves" and an "Address to the Free Constitutionalists."

Mr. Spooner was a staunch advocate of the jury system as the best method of administering justice, - not the jury system of today, but that originally secured by Magna Carta. On this subject he wrote an exhaustive legal work entitled "Trial By Jury," in which he maintained that no man should be punished for an offence unless by the unanimous verdict and sentence of twelve men chosen by lot from the whole body of citizens to judge not only the facts but the law, the justice of the law, and the extent of the penalty, and that the gradual encroachment of judges upon the rights of juries had rendered the latter practically worthless in the machinery of justice. Much that he advocated in this volume has already prevailed in Illinois and some other States. The Book closes with a denial of the right of compulsory taxation.

Spooner PlaqueI am at the end of my space, and have not said half that I had in mind. It would be easy to fill this number of Liberty with gossip and reminiscence concerning this delightful character, with eulogy of his surpassing powers and virtues, with criticism of his limitations. But I must not do it, I need not do it. Does not his work speak for him as I cannot? It is ours, my readers, to continue that work as he began it. And we shall not have rendered him his full reward of praise unless it shall be said of us, when we in turn lay down our arms and lives, that we fought as good a fight as he and kept the faith as he did.

Let this poor tribute end, then, here. On Sunday next, May 29, at half past two o'clock, in Wells Memorial Hall, 987 Washington Street, Boston, worthier words will be spoken in honor of the dead philosopher at a special memorial service, in which Theodore D. Weld, Henry Appleton, J.M.L. Babcock, Thomas Drew and E.B. McKenzie will take part, thus supplementing the funeral service of Tuesday, May 17, — the day of the burial at Forest Hills, — when addresses were delivered by Mr. Babcock, Parker Pillsbury, and M.J. Savage.

On the Air:

For those who are interested in hearing more about "Chrysler and the Rule of Law" in additional media formats I'll be on Lou Dobbs's radio program this afternoon about 3:30 and I'm slated to be on Neil Cavuto's tv program on Fox Business this evening sometime in the 6:00 hour (exact time to be determined).


"Raise Wages, Cut Carbon":

Conservative House members Jeff Flake (R-AZ) and Bob Inglis (R-SC), along with Rep. Dan Lipinski (D-IL), have introduced an alternative to the cap-and-trade proposal developed by House Democrats: HR 2380, the "Raise Wages, Cut Carbon" Act of 2009. Their proposal is for a carbon tax that will gradually increase over time, offset by a reduction in payroll taxes. Here's Rep. Flake's explanation:

If there’s one economic axiom, it’s that if you want less of something, you tax it. Clearly, it’s in our interest to move away from carbon. But if we’re going to take the step of taxing carbon, that needs come with commensurate tax relief.

This legislation forces us to have an honest debate about protecting the environment, rather than simply raising more revenue for the federal government. Further, we shouldn't put ourselves in the position to decide what industries, whether it be nuclear or wind or solar, come out on top. Let's face it, government just isn't very good at making these choices.

You can be agnostic on the question of global warming and still recognize that, as a country, we need to move away from carbon. Republicans have articulately made the case that the U.S. needs to become energy independent, but the truth is that as long as we rely so heavily on fossil fuels, it's going to be awfully tough to get there from here.

I've been arguing that a revenue-neutral carbon tax is preferable to cap-and-trade for some time (see here and here). The real dealing has yet to begin, and already the House cap-and-trade bill is being watered down to accommodate corporate interests, and it will only get worse. I have no illusions about the likelihood of a "clean" carbon tax bill emerging from Congress, but I believe cap-and-trade is inherently more vulnerable to special interest manipulation -- a problem made worse since so few people understand what cap-and-trade means. As actually implemented, cap-and-trade is also less likely to spur the sort of innovation necessary to meet even less-ambitious climate targets, particularly if Congress insists on combining it with energy portfolio standards that constrain the market's ability to shift toward the most efficient means of emission reductions. So, in the case of carbon, it's time to consider a revenue-neutral tax.

102 Comments

Wednesday, May 13, 2009

[Ira Matetsky, guest-blogging, May 13, 2009 at 11:15pm] Trackbacks
Wikipedia and the Biography Problem:

My thanks to everyone who has commented on my first two posts about Wikipedia, the collaboratively edited online encyclopedia. (For those coming in late, I’ve contributed to Wikipedia for about three years and am an administrator of the site and a member of the in-house Arbitration Committee; my username there is Newyorkbrad, after New York, where I live, and Brad, my middle name.)

Tonight I’m going to continue discussing the impact that the content of Wikipedia’s biographical articles can have on their subjects. (By the way, I'd like to thank those Wikipedians, and Wikipedia critics, who have helped me hone some of my thinking in this area. I would thank them by name, or at least by Internet pseudonym, but since I may not be in full agreement with their recommended solutions, they might not appreciate being named.)

As is widely recognized, if someone notable enough to have a biographical article about himself or herself on Wikipedia (and doesn’t happen to have a very common name or a name that is also a word), that article will be one of the very top Google hits on a search for that person. Indeed, the Wikipedia article will very often be the highest-ranking Google result for anyone who is the subject of an article. The most common exception is if the person has his or her own website, in which case that site will often be number one, with Wikipedia right behind it.

Let’s try the experiment with a randomly chosen well-known person … how about, say, Eugene Volokh. I’ve just typed Eugene’s name into Google, and the first two hits are pages from this site, which counts as Eugene’s website; the third and fourth hits are his faculty bio and publication pages at UCLA; and the fifth hit is [[Eugene Volokh]], his biography on Wikipedia, which could use a little updating and sadly fails to mention [[HCSSiM]].

When Wikipedia was founded in 2001, no one involved anticipated that it would become as successful as it has, and no one anticipated the interplay between the link structure of Wikipedia and the algorithms used by search engines, which would raise Wikipedia biographies (and other articles) to such prominence. More generally, I don’t think anyone anticipated, and certainly no one thought through, all the implications of the fact that what was meant to be a harmonious, educational, collaborative corner of the Internet would be used to hurt people. Whether the site would have been set up differently had that outcome been predicted is destined to remain in the realm of thought experiment.

In the intervening years, though, it’s become more and more clear that malicious or simply thoughtless content added to Wikipedia BLP’s (“Biographies of Living Persons”) can be very damaging. A series of serious and widely reported incidents have brought the problem to public attention. Among these: the [[Siegenthaler incident]], in which an article was vandalized to accuse a completely innocent person of suspected complicity in an assassination, and no one caught the problem for four months; the incident in 2007 in which a Turkish academic was detained for several hours by immigration officials in Canada, reportedly based on an inaccurate allegation in his Wikipedia article that he was a terrorist; the lawsuit brought by a prominent golfer against the person who added defamatory content to his article; the blatant attack page created against a well-known California attorney, allegedly as part of a negative public relations campaign launched on behalf of one of the companies he was suing.

The Wikimedia offices have been contacted often enough by subjects of BLPs that apart from the usual network of on-site discussion pages and noticeboards, there is now an elaborate e-mail network (called OTRS) to which article subjects are referred. Concerns about defamatory BLP content are only a fraction of the inquiries received by OTRS and by administrators on-site: ironically, for every article subject demanding that his or her page be deleted or retracted, there is another inquiry by someone wanting to know why his or her page was not kept on the site. (Usually, the answer is that the person was judged not to be notable enough to warrant an article.) I think it is certainly fair to say that when Wikipedia was dreamed up, no one realized it would someday need a round-the-clock complaint desk.

In 2006, the English Wikipedia adopted a new policy on Biographies of Living Persons. It urged greater sensitivity to the effect that articles can have on the subjects, and in particular, provided that no negative or controversial content discussing a living person should be contained in an article unless a reliable source for the information is provided. Edits to enforce this policy were exempted from some of the usual editing regulations, particularly the “three revert rule,” which forbids changing any article back to a previous version more than three times in a 24-hour period. The policy is considered one of the most important we have, and it’s helped, but only some.

Articles about notable individuals suffer from the greatest amount of inappropriate or disputed editing — frequently to score points in political campaigns or other real-world disputes. One example was discussed in an article in The New Republic discussing the primary campaign between Hillary Clinton and Barack Obama, here: http://www.tnr.com/story_print.html?id=4f0c6aa3-3028-4ca4-a3b9-a053716ee53d . Another prominent dispute (which resulted in an ArbCom decision that I wrote) arose last September over whether various allegations belonged in [[Sarah Palin]] and related articles. But the most serious victims of BLP violations are not prominent people whose articles may watched, so that bad edits are quickly corrected, by hundreds of people; they are articles about less well-known people, on which libels or mistakes may go unrecognized or linger for weeks.

There have, of course, been lots of discussions about what to do about all this. Clearly, at this stage of its evolution, Wikipedia is not simply going to drop all the biography articles. (Even if it did, statements about living people would come up in hundreds of thousands of other articles. BLP applies on every page of Wikipedia, not just in the biographical articles themselves.)

A solution sometimes proposed is to allow subjects unhappy about the existence or content of their articles to demand their deletion. This will surely never be implemented in full; Wikipedia will not delete [[Barack Obama]] or [[George W. Bush]] or other articles about high-profile people even if the subjects were to ask for it.

On the other hand, in cases involving people at the margins of notability, which is subjective enough anyway, there can a place for taking the subject’s own feelings about the article into account in deciding whether or not to retain it. Sometimes this has become a de facto tiebreaker (in either direction) in close deletion discussions. (A few Wikipedians have urged that giving this factor even tiny weight in deciding what to keep or what to delete violates a philosophical principle that notability exists independent of the subject’s views, a view I would find more persuasive if application of the notability guidelines weren’t so often subjective in any event.)

Related to that is a proposal that subjects be allowed to “opt out” of Wikipedia if they aren’t prominent enough to have attained notability as measured by a well-defined, objective standard, such as having been the subject of offline “dead tree” biographical coverage such as a book or a hard-copy encylopedia.

Out of curiosity, if anyone reading this happens to be the subject of a Wikipedia article — please tell us in the comments whether you would exercise the option to have your article deleted on request, if that option existed, and why or why not.

I’ve gone over the recommended word limit for one of these posts (which won't surprise anyone who's come to know Newyorkbrad on-wiki), so I’ll write about semiprotection and flagged revisions and Section 230 tomorrow.

49 Comments

"Armed Scuba Diving,"

which (until this post) was used as a phrase in only one Google-findable source, turns out to be expressly regulated (since 1956) by the New Orleans Code of Ordinances:

Sec. 170-60. Swimming, fishing or scuba diving prohibited in skiing or armed scuba diving areas.

(a) It shall be unlawful to swim or bathe or fish or scuba dive in the following areas of Lake Pontchartrain wherein water skiing is practiced:

  1. That portion of the lake from the east breakwater of Lake Pontchartrain Beach to Franklin Avenue, extending from the shoreline into the lake a distance of 200 yards.

  2. That portion of the lake from the west breakwater of Lake Pontchartrain Beach to London Avenue Canal and extending from the shoreline into the lake a distance of 200 yards.

  3. That portion of the lake between the extension of Canal Boulevard and the extension of the Orleans Canal for a distance of 200 yards from the shoreline.

(b) It shall be unlawful to swim or bathe or fish at any time in the following areas of Lake Pontchartrain wherein armed scuba diving shall be confined:

  1. The first 50 yards from the north shoreline of the Municipal Yacht Harbor breakwater, extending from the Orleans-Jefferson Parish line to 50 feet from the east end of such breakwater, to be measured westward 50 feet from such east end.

  2. The first 50 yards along the entire length of the east side of the New Orleans Airport seawall.

(c) Scuba diving without weapons, fishing, swimming and bathing shall be lawful in all other areas of the lake not prohibited by this section and by section 170-59, which shall remain in full force and effect.

Yet despite this express authorization, the New Orleans armed scuba diving scene is apparently very low profile (at least under that name).

Thanks to Stephanie Plotin for the pointer.

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Legal Ambiguity, Empathy, and the Role of Judicial Power: President Obama wants a Supreme Court nominee with "empathy." But what exactly does that mean? To answer that question, I think we need to recognize the important but usually overlooked differences in how different people understand the role of ambiguity in judicial decisionmaking. Some people see legal ambiguity as a cause for careful judicial weighing; others see legal ambiguity as a trigger for judicial empowerment. I think those differences explain a lot about contemporary legal debates, including, I suspect, President Obama's view of the Supreme Court and the role of "empathy."

  First, some background. It is a truism that some legal cases are easy and other legal cases are hard. What we mean by that is that there is a sliding scale between cases where the relevant legal materials point to an absolute answer and cases where there is a tougher call to make. Many cases are easy: the legally correct answer is 100% clear. But other cases get a little trickier. Sometimes there is at least a facially plausible argument for the weaker side. There 's a stronger side and a weaker side, but the issue isn't 100% clear; You might call the balance 90%/10%. instead. And sometimes the case is pretty tough, with an honest and careful survey of the legally relevant materials making for a just slightly stronger case on one side and a just slightly weaker case on the other. You might call that balance 55/45. And then there are some cases for which the legally relevant materials are in exact equipoise: The balance is exactly at 50/50, with no side being stronger than the other.

  I think there are two different ways to deal with this kind of legal ambiguity. One approach is to see legal ambiguity as cause for judicial weighing. This view sees the role of the judge as narrow. The judge must weigh the best legal arguments on one side and the best legal arguments for the other, and must pick the side that has the better of it, no matter how slight the advantage. If a case is 55/45, them there is a correct answer, because 55 is greater than 45. The position with the greater support in the legally relevant materials wins. Of courser, there may in fact be cases that are genuinely 50.000/50.000, and in those cases, perhaps the judge can pick the side. But those cases are very rare: Even in the hard cases, there is usually one side that emerges as slightly stronger than the other.

  That's one approach, at least. The other approach is to see legal ambiguity as cause for judicial empowerment. This view sees the judge as dutifully following the law when the law is clear. But as soon as there is some ambiguity, and the law is unclear, then the judge is free to decide the case however he wants. You don't wait for a case to be truly 50/50 for this. So long as there is some appreciable legal ambiguity, there is no clear "correct" answer. Maybe 70/30 is enough, or maybe even 75/25 will do. Either way, the lack of a "correct" answer means that the judge can rule in a way that furthers whatever normative vision of the law that the judge happens to like.

  I think this difference explains President Obama's view of "empathy," as well as why many people see it as a very odd label for a judicial nominee. Everything he has said about the Supreme Court suggests to me that President Obama is in the latter camp: He sees legal ambiguity as a cause for judicial empowerment. He believes that when there is legal ambiguity, a judge is then free to make the decision he wants. From that perspective, the key issue becomes how a judge decides to exercise his or her discretion within the zone of ambiguity. Here's what Obama said when he announced his vote against John Roberts:
  [W]hile adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases — what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.
  In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled — in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.
(emphasis added)

  Put another way, Obama seems to believe that close cases let judges pick a side, so the big question is how a judge will go about picking a side in the close cases. This view of the judicial power isn't necessarily conservative or liberal; it is very much the view of Richard Posner, who envisions that position as a "realist" and "pragmatist" view. Whether or not those labels are accurate, that vision of legal ambiguity does tend to be judge-empowering: The judge presented with a close case doesn't need to read more cases, or read the briefs again. Rather, he can and should pick the side by looking in his heart.

  I think this explains Obama's view of "empathy." Obama sees empathy as critical because he thinks that judges in close cases have a free choice as to which side should win. A substantial number of the close cases that reach the Supreme Court involve some sort of power dynamic — employer versus employee, plaintiff versus big company — and Obama wants the judge who will pick the side of the powerless. Recall what Obama said when he voted against the confirmation of Samuel Alito. He couldn't vote for Alito, Obama said, because Alito
consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American's individual rights. If there is a case involving an employer and an employee and the Supreme Court has not given clear direction, he'll rule in favor of the employer. If there's a claim between prosecutors and defendants, if the Supreme Court has not provided a clear rule of decision, then he'll rule in favor of the state.
In other words, Obama saw Alito as exercising his discretion to pick a side the wrong way.

  What makes the issue interesting, I think, is that the broad divide over the role of ambiguity in legal decisionmaking is quite real, and yet not often explicitly drawn out. But to those who take the first approach to legal ambiguity, Obama's view of empathy is just asking for a judge who is lawless. From that perspective, Obama wants a judge who will ignore the law: He wants a judge who might look at the precedents and text, weigh the merits as 70/30, and then vote for the weaker "30" side only because that furthers his political agenda. To those who see legal ambiguity as inviting a careful judicial weighing — indeed, who think that the critical role of a judge is to engage in that careful judicial weighing — emphasizing the need for "empathy" is an invitation to replace law with politics.

  UPDATE:Thanks to readers for the critical comments, especially the ones trying to explain the thread. I am sorry if the post and/or my commentary comes across as insufficiently civil or open-minded. I was trying to openly and honestly characterize a debate, a debate that in my experience is quite real and really explains an important dynamic. Apparently I failed in my effort to do that.

  What went wrong? I suspect I unintentionally characterized something in a way that left an impression that many readers reacted against, and that led to two ships passing in the night: I was focusing on one dynamic, readers another. In particular, I think my effort to state the two sides of the debate ended up describing both sides in terms that are too extreme: I should have tempered the description a bit on both sides. That error led to a very odd comment thread, with readers seeing in the post all sorts of things that I didn't expect, accusing me of all sorts of views that I don't have, implying bad faith, etc.

  In any event, I apologize if the thread wasn't up to usual standards: I posted it because I thought it was, and I didn't see the points that so many readers objected to as particularly relevant or likely to trigger a reaction until they did.
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Vaclav Havel on the UN Human Rights Council:

Few people have greater moral authority to write about human rights issues than Vaclav Havel, the former president of the Czech Republic. In the 1970s and 80s, he led the dissident movement in then-communist Czechoslovakia, spending several years in prison under brutal conditions. Later, as president, he helped manage Eastern Europe's most successful transition to democracy and free markets. As a bonus, Havel also wrote The Power of the Powerless, perhaps the best book on how repression operates in a totalitarian state. Thus, it's worth paying attention to his recent New York Times op ed criticizing the United Nations Human Rights Council:

Governments seem to have forgotten the commitment made only three short years ago to create an organization able to protect victims and confront human rights abuses wherever they occur.

An essential precondition was better membership. The council’s precursor, the United Nations Commission on Human Rights, was folded in 2006 mainly because it had, for too long, allowed gross violators of human rights like Sudan and Zimbabwe to block action on their own abuses.

The council was supposed to be different. For the first time, countries agreed to take human rights records into account when voting for the council’s members, and those member-states that failed to, in the words of the founding resolution, “uphold the highest standards in the promotion and protection of human rights” would find themselves up for review and their seats endangered. For victims of human rights abuses and advocates for human rights worldwide, the reforms offered the hope of a credible and effective body.

Now, it seems, principle has given way to expediency. Governments have resumed trading votes for membership in various other United Nations bodies, putting political considerations ahead of human rights. The absence of competition suggests that states that care about human rights simply don’t care enough. Latin America, a region of flourishing democracies, has allowed Cuba to bid to renew its membership. Asian countries have unconditionally endorsed the five candidates running for their region’s five seats — among them, China and Saudi Arabia.

Havel is absolutely right to criticize the UN for electing egregious human rights abusers to the Council. Not only does the Council fail to protect human rights, it actually promotes repression by passing resolutions such as the recent one calling for censorship of speech that "defames" religion.

The difficulty here goes deeper than the moral failings of individual states that "don't care enough," highlighted by Havel. The fundamental problem with the Council - and the entire UN system - is structural. Most of the UN's member states are either oppressive dictatorships themselves or dubious quasi-democracies - states like Venezuela and Russia that retain some democratic processes but also routinely resort to repression against political opponents. Such governments have an obvious interest in blocking the creation of a UN body that might actually curb their abuses - especially if those abuses help their governments stay in power by crushing opposition movements. Havel rightly criticizes democratic states for not doing more to oppose the election of authoritarian human rights abusers to the Council. But there are limits to how much democracies can do to influence UNHRC elections so long as the authoritarians and pseudo-democrats continue to outnumber them. As long as the UN's membership remains as it is, expecting the UN to create a human rights body that actually protects human rights is much like expecting a committee of foxes to guard a henhouse against themselves.

This structural flaw of the UN Human Rights Council is just one facet of the more general problem of the influence of repressive nondemocratic regimes on international human rights law. As John McGinnis and I discuss in this forthcoming article, that influence is broad and pervasive. Even the Universal Declaration of Human Rights, generally considered the most important international human rights treaty, contains repression-justifying provisions inserted at the behest of totalitarian states such as the Soviet Union.

McGinnis and I argue that this structural shortcoming of international human rights law should lead us to be wary of allowing that law to override the domestic law of liberal democracies. We must also be realistic about the very low likelihood that international human rights law will do much to curb repression in authoritarian states anytime soon.

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Will President Medvedev Really Break with Putin and Liberalize Russia?

In recent months, there have been a few indications that Russian President Dmitri Medvedev might break with Prime Minister Vladimir Putin - the authoritarian leader who handpicked him for his current position - and liberalize the country's economic and political system. In today's Wall Street Journal, however, Russian opposition leader Gary Kasparov, the former world chess champion, writes that a Putin-Medvedev breakup may be less likely than many Westerners hope:

It has become fashionable to speak of change and liberalization in Russia under President Dmitry Medvedev. May 7 marked his one-year anniversary in office. He has recently granted an interview with an opposition newspaper, allowed a few human-rights activists to criticize Russia's regime, and even started a blog. There is also a new administration in Washington that wants a fresh start with foreign powers.

However, Mr. Medvedev's gestures have not been matched by policy. It is more appropriate to think of Russia as living under Vladimir Putin's ninth year in power. Mr. Putin is now prime minister but still in charge. His agenda of oppression and plunder is still the course in Russia. The Kremlin's willingness to install its candidates in office [without free election] and persecute its opponents remains undiminished.

If Medvedev does make a decisive break with Putin, Kasparov believes it will likely be because of political pressures created by the global recession rather than because Medvedev genuinely wants liberalization:

There are optimistic rumors in the West of a potential rift between Messrs. Medvedev and Putin. With the steep drop in energy prices, the Russian economy in free fall, and the need to find a scapegoat, a clash is likely. But it will not be because the two men differ significantly in matters of morality and power. We have seen enough to recognize that they are both enemies of democracy, open competition, and free expression.

That seems roughly accurate to me.

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Senate votes to allow licensed handgun carry in national parks:

Sixty-seven Senators voted for the Coburn amendment, which says that persons can carry firearms in national parks and wildlife refuges to the same extent that they are allowed to carry by state law. All Republicans except Alexander (Tenn.) voted for the amendment. So did Independent Bernie Sanders (Vermont), and 27 Democrats. Including, I am proud to say, both Udall and Bennett of Colorado.

The amendment was attached to H.R. 627, the credit card legislation. The version of H.R. 627 passed by the House did not have anything like the Coburn amendment, but the 67 votes in the Senate (including a number of Senators who had been rated "C" or below by the NRA), indicates that the House would overwhelmingly support the proposal. Indeed, given that the anti-carry even lost Senators who had an "F" from the NRA, the House vote in favor might well go over 300.

Along with the widely-supported amendment (to the bill that would give D.C. a vote in the U.S.) to reform D.C. firearms laws, there is now a rather large number of Democratic Senators who are exceeding expectations, and on their way to earning much-improved grades on their next NRA report card. With the notable exception of Sen. Gillibrand, who appears to be doing her best to turn her 2008 "A" into an "F" for 2010.

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Federal Power Question Likely To Go to the Supreme Court:

I blogged about this question in January, when the Fourth Circuit held unconstitutional 18 U.S.C. § 4248, which "authorizes the federal government to civilly commit, in a federal facility, any 'sexually dangerous' person 'in the custody' of the Bureau of Prisons — even after that person has completed his entire prison sentence." The Eighth Circuit has now reached the opposite result, and a circuit split on the constitutionality of a federal statute is almost certain to lead to Supreme Court review. (Note that the Fourth Circuit refused to grant rehearing en banc, and a cert petition in the Fourth Circuit case has already been filed.)

Here's an excerpt from the Eighth Circuit's reasoning, which generally strikes me as correct:

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Rick Hasen (Election Law Blog) Predicts Judge Diane Wood (7th Cir.) Will Be Nominated to the Supreme Court:

See this post, which explains Rick's reasoning. Note that this is Rick's thinking, not any supposed D.C. scuttlebutt.

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Names:

What are the two most common American first names that are also the name of a country (in English)?

The name must exactly match the common English-language name of the country. "Frank" for "France," for instance, doesn't count; but if there were lots of Cubas running around (rather than just Gooding Jr.), it wouldn't be a problem that they are named Cuba rather than Republic of Cuba.

If you want to look up the answer, rather than just guessing, see this file and this one.

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A Little-Known Corner of Gun Law:

When are collectible antique firearms "firearms" and when are they "home furnishings" for purposes of state exemptions recognized by bankruptcy law? In re Wilkinson explains. Both Wittgenstein and blunderbusses make an appearance.

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Additional Sentencing Briefs in Lori Drew Case: The sentencing hearing in the Lori Drew prosecution is scheduled for May 18, now just five days away. In the last two days, both the prosecution and defense have filed supplemental sentencing briefs responding to the sentencing position of the other. The defense's response to the government's sentencing brief is available here. The government's response to the defense's sentencing brief is here.

  As I have noted previously, Judge Wu has not yet ruled on the defense's motions to dismiss, so the issues of whether violating the TOS is a crime and whether there was sufficient evidence that any such violation was intentional have not yet been decided.
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Judge Sonia Sotomayor: What the Data Show

Much has been written about Jeff Rosen’s New Republic piece, which cited anonymous sources who disparaged Judge Sotomayor’s judicial ability. It is never easy to evaluate judges, or to evaluate their evaluators, especially when those evaluators insist on anonymity. Fortunately, data on judicial performance exist, and although the data have problems as well, they provide a firmer basis for evaluation.

The most complete effort so far to evaluate federal appellate judges is this paper by Stephen Choi and Mitu Gulati. Choi and Gulati use data from Lexis to measure three aspects of the judge’s performance—productivity, opinion quality, and independence. They then rank judges according to how they do along these three dimensions. The data set comes from the years 1998-2000 and includes 98 judges. Unfortunately, Choi and Gulati excluded Judge Sotomayor from the data set because she was appointed in 1998 and thus does not have complete data for that year. Judge Wood is in their data set and ranks eighth in the composite ranking. (Disclosure: Judge Wood teaches at my law school.)

To determine how Sotomayor would do in the ranking, I had some research assistants collect her data for the years 1999-2001. To address the “freshman effect” (the possibility that her statistics are worse for her earliest years because of inexperience), we also looked at her data from 2006. I provide a brief summary below. If you want more detail about the methods, you will need to read the variable definitions in the paper. And if you want a defense of these measures, you will need to read the paper, but in any event should know that they are controversial.

Productivity. Judges write opinions, which provide guidance to lawyers and the public. All else equal, a judge who writes more opinions is more productive, and provides a greater social benefit. Over the three year period from 1998 to 2000, the most productive judge published 269 opinions, the least productive judge published 38 opinions, and the mean was 98.1. For the comparable period from 1999-2001, Judge Sotomayor published 73 opinions. She would have ranked 68th out of 98. However, she was substantially more productive in 2006, publishing 36 opinions in one year (though that also is higher than in other recent years). (Judge Wood is fourth; then-Judge Alito was 72nd.)

Quality (1). Choi and Gulati measure quality by counting citations to a judge’s top twenty opinions. This approach avoids penalizing productive judges whose marginal opinion addresses narrower issues (as a citation-per-opinion measure would), while also avoiding excessive credit to productive judges who garner high citations by writing a lot. Judge Wood’s top twenty cases over three years received 327 outside-circuit citations, putting her 26th. The range is 96 to 734, with a mean of 277.9. Judge Sotomayor’s statistic is 231, which would place her 59th. (Alito was 70th.)

Quality (2). Judge Sotomayor’s opinions from 1999-2001 were cited 289 times in law reviews and other legal periodicals through May 31, 2004. Judge Wood’s opinions from 1998-2000 were cited 513 times through May 31, 2003 (16th). (Alito’s were cited 240 times (73rd).) Sotomayor would have ranked 65th.

Quality (3). Choi and Gulati also check what they call “invocations”—the frequency with which opinions written by other judges refer to the judge in question by name. They argue that invocations are most likely when the judge in question either has a good reputation or has written a particularly helpful opinion. Invocations range from 0 to 175 (excluding two outliers, the highest is 23), with a mean of 32. Judge Sotomayor was invoked 0 times (tied for last). Judge Wood was invoked 10 times (9th), and Judge Alito was invoked 5 times (28th).

Independence. Judges should decide cases in a non-partisan way; “independence” refers to the probability that a judge will dissent from a majority opinion written by a co-partisan or will write a majority opinion from which a co-partisan dissents. Choi and Gulati use a complicated variable that attempts to measure this tendency, and I simplify here. A score of 0 means that a judge is just as likely to disagree as agree with a co-partisan (or opposite-partisan). Negative scores mean that a judge is more likely to agree with co-partisans. Judge Sotomayor’s score is -0.153 (read the paper if you want to know how this score is calculated), which would have placed her 55th. Judge Wood has a score of -0.018, placing her eighth in terms of independence. (Alito was 10th.)

Choi and Gulati report a composite ranking—but for technical reasons (they controlled for various factors, for example, variation between circuits) it is difficult to put Judge Sotomayor into such a ranking. In addition, Choi and Gulati’s basic approach, which is to give equal weight to productivity, quality, and independence, is contestable, as is their decision to base quality on invocations and citations to top-twenty opinions. They check for robustness by reporting how rankings change as the weightings are adjusted, but their robustness checks are too elaborate to repeat here. Wood ranked eighth; Alito sixteenth. Sotomayor would be in the bottom half. However, I would not put too much weight on this conclusion. Choi and Gulati intended their composite ranking as an experiment to provoke discussion on how best to evaluate and rank judges.

One can, however, make some rough judgments based on the disaggregated rankings. The bottom line is that Judge Sotomayor is about average, or maybe a bit below average, for a federal appellate judge. These results are far from conclusive, but one might think that put the burden on Judge Sotomayor’s defenders to come forward with stronger reasons for her nomination than they have so far. Judge Wood is stronger—I would say that she is impressive, but others might weight the factors differently.

Judicial ability is not the only thing that matters for supreme court nominations, of course. People also care about the nominee’s politics (euphemistically called “judicial philosophy”), meaning how she will vote on abortion rights and related issues. For those poring over Judge Sotomayor’s and Judge Wood’s opinions for clues about their political leanings, a word of advice. Research shows that appellate judges don’t like to dissent, and they don’t like responding to dissents, and so authors shade their opinions to the political center of gravity of the panel. At the time when the data were collected, the seventh circuit consisted mostly of Republicans, while the second circuit consisted mostly of Democrats. That means that Judge Wood’s actual views are probably somewhat to the left of her majority opinions, while Judge Sotomayor’s views are to the right of her majority opinions—in the case of panels with mixed partisan membership. Focus on dissents and concurrences, which better reflect the judges’ actual views, or unanimous opinions when all members of the panel belong to the same party.

A final note. I have done my best to put these statistics together but it is possible that I have made errors. I am reasonably confident about my overall conclusions but not the exact rankings. The data are in any event too crude to allow for precise discrimination. Feel free to take a look at the data yourself and draw your own conclusions. If someone wants to gather data on the reversal rates of the judges, that would also be useful.

74 Comments

Chrysler and The Rule of Law:

Today's Wall Street Journal has my column on "Chrysler and the Rule of Law" here.


Preemption laws and leases of public property:

Here's a legal question that combines some of the favorite topics at the VC. David Nelson is the head of Stonewall Shooting Sports, the pro-gun gay rights group in Utah. At the upcoming Utah Pride Festival, Nelson wishes to carry a firearm lawfully, as Utah law authorizes him to do. However, the festival operators (a private organization) have a rule against carrying firearms at the festival. The festival takes place on public property, which is leased by the festival operators. The Salt Lake City police provide security for the Utah Pride event, and enforce the organization's rules, including the gun ban.

Utah's firearms preemption law states:

63-98-102. Uniform firearm laws.
(1) The individual right to keep and bear arms being a constitutionally protected right under Article I, Section 6 of the Utah Constitution, the Legislature finds the need to provide uniform civil and criminal firearm laws throughout the state.
(2) Except as specifically provided by state law, a local authority or state entity may not:
(a) prohibit an individual from owning, possessing, purchasing, selling, transferring, transporting, or keeping a firearm at the individual's place of residence, property, business, or in any vehicle lawfully in the individual's possession or lawfully under the individual's control; or
(b) require an individual to have a permit or license to purchase, own, possess, transport, or keep a firearm.
(3) In conjunction with Title 76, Chapter 10, Part 5, Weapons, this section is uniformly applicable throughout this state and in all its political subdivisions and municipalities.
(4) All authority to regulate firearms is reserved to the state except where the Legislature specifically delegates responsibility to local authorities or state entities.
(5) Unless specifically authorized by the Legislature by statute, a local authority or state entity may not enact, establish, or enforce any ordinance, regulation, rule, or policy pertaining to firearms that in any way inhibits or restricts the possession or use of firearms on either public or private property.
(6) As used in this section:
(a) "firearm" has the same meaning as defined in Subsection 76-10-501(9); and
(b) "local authority or state entity" includes public school districts, public schools, and state institutions of higher education.
(7) Nothing in this section restricts or expands private property rights.
Utal has another preemption law. It says:
76-10-500. Uniform law.
(1) The individual right to keep and bear arms being a constitutionally protected right, the Legislature finds the need to provide uniform laws throughout the state. Except as specifically provided by state law, a citizen of the United States or a lawfully admitted alien shall not be:
(a) prohibited from owning, possessing, purchasing, selling, transferring, transporting, or keeping any firearm at his place of residence, property, business, or in any vehicle lawfully in his possession or lawfully under his control; or
(b) required to have a permit or license to purchase, own, possess, transport, or keep a firearm.
(2) This part is uniformly applicable throughout this state and in all its political subdivisions and municipalities. All authority to regulate firearms shall be reserved to the state except where the Legislature specifically delegates responsibility to local authorities or state entities. Unless specifically authorized by the Legislature by statute, a local authority or state entity may not enact or enforce any ordinance, regulation, or rule pertaining to firearms.
Nelson argues, inter alia, that subsections (4) and (5) of the first statute leave Salt Lake City without any authority to restrict the carrying of firearms, yet Salt Lake City, by leasing public property to a private organization which bans guns, and by using local police to enforce that ban, is doing so.

Does Nelson have a valid legal argument? Does (7) save the Utah Pride's ban? Answers which supply specific legal authority will receive the highest grades.

110 Comments

Tuesday, May 12, 2009

[Ira Matetsky, guest-blogging, May 12, 2009 at 9:53pm] Trackbacks
Wikipedia, the Internet, and Diminished Privacy:

This is the second in my series of guestblog posts about the online encyclopedia Wikipedia, how it is organized and governed, and some aspects of its impact. My thanks to everyone who has commented on my post from yesterday. Later in the week I’ll have a post or two specifically focused on people’s comments, so please keep them coming.

As I mentioned yesterday and was picked up in the comments, one of the sources of Wikipedia’s popularity and influence is the fact that pages in it rank so highly on Google and other search engines. Where the Wikipedia page is an accurate, well-written, well-sourced article on the topic it covers, that is fine. On the other hand, some articles are better than others. And even if a page did once contain brilliant prose, it could have been changed for the worse by anyone, before a given reader finds it and reads it.

The shortest way of expressing this is that Wikipedia’s primary weakness precisely corresponds to its greatest strength. The best feature of the site is that anyone can edit (virtually) anything contained on it. The worst feature of the site is that anyone can edit virtually anything contained on it.

The ability of anyone to edit raises especially serious issues where an article concerns a specific living person. As long as an individual is “notable” by Wikipedia standards (with notability defined partly by a series of guidelines and partly subjectively), any registered editor is free to create a Wikipedia page about him or her, and anyone else is then free to edit that page.

In the first instance, this makes sense. Articles about human beings and their achievements are part of the core content of an encyclopedia. One could hardly imagine a general-purpose encyclopedia without articles about all of the U.S. Senators, or major-league baseball players, or astronauts, or Metropolitan Opera singers, or any of myriad other categories of prominent people. (Perhaps even law professors with dozens of publications and prominent blogs.) So there are several hundred thousand of these articles, known in Wikipedia parlance as “BLPs” -- “Biographies of Living Persons.”

Consistent with the whole Wikipedia model of open collaborative editing, there is virtually no control over who is writing or editing these articles. Sometimes, the author is a knowledgeable subject-matter expert familiar with subject and his or her work. Other times, he or she is a good-faith contributor drawing and summarizing information from published, reliable sources. On the other hand, a BLP could also have been created or recently edited by its subject’s worst enemy, his most bitter professional rival, her leading political opponent, or just a “vandal” out to make mischief.

Many Wikipedians have come to realize that the negative effects of false or misleading articles about living people can seriously damage the subjects of the articles. This is an area where many of the critics of Wikipedia have made very valid points.

There are two basic problems. One is the potential that an editor will insert inaccurate, misleading, and in some cases overtly defamatory or malicious content in an article. I’ll discuss that aspect of the problem and how it might be addressed tomorrow.

But there is another equally serious problem inherent in Wikipedia articles about some living people -- except that it is not a Wikipedia problem per se, but an Internet-wide one. That is the problem of how easy it is, in the era of near-universal Internet access and instantaneous search engines, to inflict devastating and nearly irreversable damage to people’s privacy. I’ll give a couple of specific examples.

In January 2007, a 13-year-old boy whom I will call John (I refuse to further disseminate his name) was kidnapped from his family and mistreated in a horrifying way over a period of 4 days before being rescued. Although the names of minors who are victims of this type of crime are often kept out of the news, in this instance John was a missing child, which rightfully led to intensive publicity both in print and online as the authorities searched for him. Since John was rescued, there has been extensive press coverage of how he was found, of the trial of the kidnapper, and to a lesser extent, of his and his family’s efforts to resume normal life. Much of that publicity also has included John’s full name; there seems to have been no particular attempt made to put the genie back in the bottle.

In the spring of 2007, someone decided that the case had been the subject of enough mainstream press coverage that it was notable and warranted a Wikipedia article. Reading that article made me miserable: not just because of what had happened, but also because I knew that behind the article was a teenage boy who must be dealing, in his own way, with the memories of what happened to him. I knew that as his life charts its course, and that as he lives it, when he applies to college or for a job or meets people, people will type his name into Google –- and since to the best of my knowledge he is in other respects unexceptionable, the main thing anyone looking him up will learn is the fact and the details of what happened for 4 days when he was 13.

I decided, as a Wikipedia administrator equipped with a "delete" button, that Wikipedia did not need to contain this article. After a long discussion on the “deletion review” page, my deletion of John’s article was upheld. Later that summer, policy was clarified to make it clear that in deciding whether to keep or delete a page, it is legitimate to take the effect of the page on its subject into account, at least to some degree.

But in spite of the deletion, John’s name still turns up on Wikipedia -- it appears in our article about the criminal who abducted him, despite my and others' having argued for removing it. Moreover, and equally important, a Google search turns up not just a few but thousands of other hits with the same content. This is by no means just a Wikipedia issue, though of course that does not absolve Wikipedians of our obligation to handle this type of content responsibly.

We face the Internet-wide question whether there is anything we can do to avoid effectively making a collective decision that this horrific incident is the key piece of information that should be available about John’s life. Except that there is no real decision to be made, because there is nothing to be done. In John's case, as I wrote on the deletion review, we have collectively added violation by the crowd to violation by the crime.

Another constant source of these issues is coverage of “Internet memes” -- videos or pieces of information that catch public attention, often in a humorous way, but in the process often are humiliating to their subjects. For example, I once arranged to deletion an article discussing an otherwise unknown person who sold his used laptop computer. When the computer didn't work properly, the purchaser took revenge by releasing embarrassing personal information and files from the computer onto the Internet. The resulting publicity, it was reported, had basically ruined this person's life. The people involved were identified on Wikipedia by name and location. To say the least, I thought we could remain a complete and worthwhile encyclopedia without further publicizing this matter. I nominated the article for deletion and got it deleted. The process took a month. (Today I might be more confident and just speedy-delete it myself.)

Another article we eventually decided we could live without discussed a young woman, also identified by name and city, who has been mocked for her poor judgment in having been overly detailed about how guests should behave at her 21st birthday party. For the rest of her life, if someone types her name into Google, they will find publicity about this supposedly grievous error she made, which may overshadow the coverage of anything else that she ever does or accomplishes. Wikipedia did not need to, and no longer does, discuss this episode; it never should have.

More examples come up every day. For those who follow such things: Should we include the “Star Wars Kid”’s full name? What, if anything, should we write about “Boxxy” or “Chris Chan” or “Brian P.”? Do we mention, and how much weight do we give to, the difficult times in people’s lives, especially where the person’s notability is borderline to begin with?

I do my best to advocate that Wikipedia not include content that will obviously hurt the subject of an article and does not enhance the encyclopedia we are writing. (I haven't done as much of this as I would like, given my ArbCom duties, but writing this essay has reminded me once again to place a priority on this work.) But even where a deletion or a redaction sticks, I don't delude myself any more that I've actually helped the subject of the article very much, where the news coverage of their situations on fifty or five thousand other websites spreading the same gossip and showing the same disrespect for privacy and dignity are still out there. Wikipedia is a critically high-profile website, and I don't denegrate for one minute the importance of improving things on our site. But there are plenty of times I read something despicable on another website and wish I could delete it and block the person who wrote it. Only on-wiki can I even try.

Even developments in the spread of online information that seem unambiguously positive turn out to have more complex overtones when one thinks through the privacy ramifications. For example, complete free online searching of the complete back contents of The New York Times has recently become available. That's a home run for increasing the flow of information to the world, right, and great news?

Well, yes, it certainly makes research easier in a number of ways, as opposed to screening the old microfilms as one used to have to do, and for purposes of my research for both sourcing Wikipedia articles and my everyday legal research article-writing, I like it very much. And yet ... anyone who ever committed a youthful indiscretion that happened to make page C17 of the paper on a slow news day, will now be defined by that as one of the top results for his or her name, for the rest of his or her life. And multiply by dozens of other newspapers, and every other type of medium and website, and on and on and on. (The increasingly free public online access to court pleadings is another example whose ramifications are still being thought through.)

Incidentally, it is unlikely that many of the people affected by these damaging (but non-defamatory) types of unwanted publicity will have much chance for legal redress, at least in the United States. (And bringing a suit to redress this type of harm may be useless anyway; its main effect may be to further magnify the very publicity one is complaining about.) For readers wishing to explore the legal issues created by unwanted publicity and the question of whether media disclosure of facts that someone would prefer to conceal can ever give rise to a tort claim, the best place to start is probably Judge Posner’s opinion in Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222 (7th Cir. 1993), available at http://altlaw.org/v1/cases/493290. It thoroughly surveys the competing policy arguments, the precedents, and the constitutional considerations. If anyone knows of a comparably thorough discussion brought up to date for the Information Age, please tell us in the comments.

Isaac Asimov famously predicted fifty years ago that emerging technology would come at the cost of vanished privacy, though he didn't get the exact form of the technology right. Fifty-odd years later, much of his prediction has come true, and I only hope that the website I help administer can avoid being a central part of the problem. In a way, we all live in the goldfish bowl now. It is not always a pleasant place to be.

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Do We Need More Government Planning to Create "Walkable" Living Environments?

In the American Prospect, Ben Adler has an interesting article [HT: TMPARG] arguing that we need more government planning and stricter zoning to create "walkable" living environments where people will be less dependent on cars for transportation. Adler is a supporter of the growing "New Urbanism" movement, which advocates using government planning to promote high-density living spaces.

Adler claims that there is an unmet demand for high-density urban living that would enable more people to rely less on cars and more on walking. But how do we know that such an unmet demand actually exists? After all, low-density living has advantages of its own, including greater living space and peace and quiet. Whether these advantages outweigh the benefits of walkability is a matter of personal preference on which different people have widely differing views.

Adler cites data suggesting that "in most metropolitan areas, academic research has found that roughly one in three Americans would prefer to live in a walkable urban environment." However, 58% of Americans already live in cities with populations of 200,000 or more, and about 25% live in the country's 200 largest cities, most of which have numerous high-density neighborhoods. If one third of Americans living in large metropolitan areas prefer walkability to space, it's quite likely that roughly that percentage of the population already lives in such neighborhoods. Moreover, it's not actually clear that the preference for walkability really is that widespread. Almost everyone would like to have walkability if it could be had at no cost. However, many people who express a preference for walkability might not be willing to choose it if doing so means reduced living space or having to put up with more noise and commotion.

Americans move around a great deal. The wide variety of communities available in most urban areas create a menu of options for people to choose from. As I have pointed out in the past, "voting with your feet" is often a better way for people to satisfy their preferences than centralized political decisionmaking (see,e.g., Part V of this article). Adler himself notes the wide contrast in density and walkability between different Washington, DC suburbs. He condemns low-density Leesburg, Virginia and praises high-density Gaithersburg, Maryland. But not everyone shares his particular preferences, and it is good that DC-area residents have a wide range of options. Local governments have strong incentives to compete for residents by offering attractive density policies, because doing so can increase their tax base. With dozens of different suburbs competing for residents in the DC metropolitan area, people with widely differing preferences can find communities that fit their needs.

To the extent that we do need to enable more people to live in densely populated urban areas, it's far from clear that government planning is the best way to achieve that goal. We can better achieve the same objective by cutting back on planning rather than increasing it. In many large cities, the cost of housing is artificially inflated by restrictive zoning laws, which tends to price out the poor and some middle class people. In the suburbs, as Adler points out, zoning policies sometimes artificially decrease density, for example by forbidding "mixed use" neighborhoods where commercial and residential uses are in close proximity to each other.

Finally, the growth of private planned communities (in which over 50 million Americans already live), offers an even wider range of choices than can be made available by competing local governments. Planned communities can provide either low or high-density environments for their residents without forcing the rest of the people in the locality to conform to the same model.

Like previous generations of planners, the new urbanists often ignore the diversity of human preferences. Some people do indeed like high-density "walkable" environments. Others prefer to have more space and more peace and quiet. Neither preference is inherently superior to the other. To paraphrase a popular liberal slogan, we should celebrate diversity, not seek to use urban planning to force everyone to live the same lifestyle whether they want to or not.

UPDATE: Adler does make one very dubious factual claim in his piece. He writes that:

The roads [in Leesburg] are already so wide that crossing any one of them is a life-threatening act — a game of waiting for the right moment to run out into the road when no cars are coming, then stopping midstream and dashing back as gigantic pick-up trucks and sport-utility vehicles emerge from around the bend at alarming rates. It's like playing Frogger with your body.

I live in Falls Church, Virginia, not far from Leesburg, and I have been to Leesburg a number of times. There are indeed many wide roads in the region. But crossing them is not "a life-threatening act": there are regularly spaced traffic lights with crosswalks. When the traffic has a red light and pedestrians a green one, the latter can cross safely - or at least at no greater risk than in the densely packed urban areas Adler prefers. After all, tightly packed traffic in urban centers creates its own hazards for pedestrians. Perhaps there are a few roads in Leesburg that are as difficult to cross as Adler claims. But such cases are hardly typical of the northern Virginia region or other low-density suburbs.

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United States v. Alderman and Felon Possession of Body Armor: The Ninth Circuit has today handed down an interesting commerce clause case, United States v. Alderman. From the introduction:
This case of first impression in the Ninth Circuit requires us to consider whether Congress has the authority under the Commerce Clause of the United States Constitution, art. I, § 8, cl. 3, to criminalize the possession by a felon of body armor that has been “sold or offered for sale in interstate commerce.” 18 U.S.C. §§ 931 and 921(a)(35). Put another way, the issue is whether the sale of body armor in interstate commerce creates a sufficient nexus between possession of the body armor and commerce to allow for federal regulation under Congress’s Commerce Clause authority.
  Judge McKeown, joined by Betty Fletcher, conclude that the statute "passes muster." Judge Paez dissented, becoming a friend of federalism in the Judge Reinhardt sense:
In my view, felon-possession of body armor does not have a substantial effect on interstate commerce; its prohibition under 18 U.S.C. § 931 neither regulates commerce or any sort of economic enterprise nor regulates intrastate, non-economic activity that is essential to a comprehensive federal regulatory scheme.
  Notably, the case has been in the hopper for a while: It was argued 14 months to the day before it was handed down.
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"Peeping Person":

"Peeping Tom," the common term that actually appears (suitably defined) in the codes of Delaware, D.C., Georgia, Louisiana, Oklahoma, and South Carolina isn't good enough for the Montana towns of Bozeman and Missoula. There, the proper term is "peeping person," thank you very much (a phrase so rare in English that it only gets 110 real Google hits).

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Good News for Fish:

Fish may not get much attention, but fishery depletion is one of the more serious environmental problems facing the world today. A shocking percentage of the world's fisheries are overfished. Protecting fishery resources requires keeping fish catches to sustainable levels. The most effective way to do this is through so-called "catch-share" policies, a property-based conservation regime often called "IFQs" or (as some now say) "cap-and-trade for fish," which allocate tradeable shares of the catch among fishery participants. I've written more about this approach to fishery management for NRO here (and discussed how property-based regimes may emerge through private ordering here, here, and here).

The Bush Administration talked a good game about property-based fishery management, but failed to devote much effort to the enterprise. The 2006 reauthorization of the Magnuson-Stevens fishery law ended the moratorium on adopting catch-share management schemes, and the Bush Administration did expanded ocean protected areas, but it could -- and should -- have done much more. Instead, the Administration focused its environmental energies to a series of business-oriented air pollution regulatory reforms, the bulk of which were struck down in court. A major opportunity for market-oriented environmental reform was squandered, and our fisheries are much the worse for it.

There is hope the Obama Administration will push ahead with greater fishery reforms. Greenwire reports that the Administration's budget request for NOAA includes a dramatic increase in funding for catch-share management. According to Greenwire, the request "indicates a major push from the administration" to push the adoption of catch-share systems in the nation's fisheries. If so, this will be very good news for fish, and a significant step toward sustainable management of marine resources.

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Charges Dropped Against House of House v. Bell:

Paul House spent over 20 years on death row for the murder of Carolyn Muncey. Then the U.S. Supreme Court, in House v. Bell, granted House's petition for a writ of habeas corpus because the availability of new evidence cast doubt on his conviction. A new trial was scheduled to begin June 1, but the state has dropped the charges. While prosecutors say they still believe that House had some role in Muncey's murder, there are sufficient doubts that the state is not going to try and convict him again.

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Cass's Day in the Sun -- or the Heat?

Harvard law professor and "regulatory czar" nominee Cass Sunstein appeared before the Senate Committee on Homeland Security and Governmental Affairs. Sunstein's nomination to head the Office of Information and Regulatory Affairs -- a post for which he would seem ideally suited -- is one of the few Obama nominations to have drawn significant fire from the left (and a few misleading smears from the right).

Although Sunstein is anything-but a proponent of deregulation or laissez-faire, the folks at the Center for Progressive Reform decry his enthusiasm for cost-benefit analysis and centralized regulatory review. They fear his willingness to rely on economic analysis will frustrate new regulatory efforts (while I suspect it will help insulate more agency initiatives from judicial review). Two CPR scholars took to the Philadelphia Inquirer op-ed page this morning to state their case.

Despite CPR's best efforts, there does not appear to be much controversy over the Sunstein nomination in the Senate. Law Dork 2.0 live-blogged the hearing, and the questioning seems to have been quite mild. Both the Chair, Senator Lieberman, and ranking member, Senator Collins, expressed their support, and the critical questions seemed pretty pro forma. At this point I would think Sunstein's confirmation will go forward without a hitch.

Related Posts (on one page):

  1. Sunstein on Hold:
  2. Cass's Day in the Sun -- or the Heat?
  3. Desperately Smearing Sunstein:
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Irkick v. Bell:

This morning the U.S. Court of Appeals for the Sixth Circuit denied death row inmate Billy Irick's habeas appeal in Irick v. Bell. Judge Batchelder delivered the opinion of the court, joined by Judge Siler. Judge Gilman issued a separate opinion concurring in part and dissenting in part.

The two issues on appeal were whether Irick was denied due process because the prosecution had failed to turn over a witness statement at trial and whether there was prosecutorial misconduct at the penalty phase. The panel unanimously rejected the first argument (while disagreeing on the proper standard of review), but split over whether improper statements in the prosecutor's closing argument justified the writ.

Irick alleged that the prosecutor's closing statement was improper, and may have induced the jury to deliver a death sentence rather than a life sentence. The relevant portion of the prosecutor's closing statement was as follows:

But what about other people? Because, with your verdict, you make a statement about things whether you realize it or not. You will make a statement about the value of Paula’s life. You will make a statement about what this man did and your willingness to tolerate it. You will make a statement to everybody else out there what is going to happen to people who do this sort of thing. Some of you may believe that punishment is a deterrence. Some of you may not. I don’t know. I personally believe that it is. I will tell you why, and this is not an original thought. But I have heard this comment made, and I guess it all depends on how you are turned [sic]—how you look at the world.

Someone said that the death penalty is, sort of, like a lighthouse. You don’t know how many ships have been saved by its beacon. You can’t count that. You only know the ones that disregarded its warning. Those, you count. Those are the Billy Ray Iricks.

I know this is a hard decision, ladies and gentlemen, but there comes a time in society when we have the right to defend ourselves. I suggest to you that it is more than a right to defend ourselves in this kind of situation where there is a child involved. We have a duty to defend ourselves, a duty to defend our families, and our homes, and our children. That is what this case is about. And our law is now being entrusted into your care. Thank you.

Quick test -- perhaps a review for those preparing for a CrimPro exam -- what about this closing is improper? [Consult the opinion for your answer.]

Assuming portions of the closing were improper, the majority held that it did not justify overturning the death sentence. Any misconduct was not "flagrant" and did not "so infect the trial with unfairness as to make the resulting conviction a denial of due process." Judge Gilman, on the other hand, believed "there is a reasonable probability that at least one juror would have reached a different outcome as to Irick’s sentence in the absence of the prosecutor’s misconduct." The state courts had recognized that the prosecutor's statement was improper, but had not found it to be reversible error, an outcome Judge Gilman found to be unreasonable, justifying issuance of the writ.

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Abandoning the Clinton Legacy:

Bill McGurn's column today suggests that the Obama Administration has done more to repudiate the legacy of President Clinton than that of President Bush. He writes:

there's a persuasive case that the legacy most threatened by the Obama presidency belongs to the last Democrat who sat in the Oval Office: Bill Clinton.

Think about it. It was Mr. Clinton who campaigned on the promise to "end welfare as we know it." It was Mr. Clinton who signed the bill removing the Glass-Steagall barriers separating commercial from investment banking. Most famously, it was Mr. Clinton who assured us that "the era of Big Government is over."

Today all the assumptions that once defined Bill Clinton's "New Democrats" are being contested by the Obama White House. And nowhere is the contrast more stark than on the defining issue of trade.

I think (hope?) it's too early to judge the Obama Administration's trade policy, but the point still stands. At the same time, the Obama Administration has made only modest, often just cosmetic, changes to the Bush Administration's counter-terror policies and is continuing the Bush Administration's fiscal profligacy. Is this a fair assessment?

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Funny: From a profile of Judge Diane Wood in the New York Times:
Mr. Obama has talked about the virtues of selecting a justice with broad personal and political experience. Judge Wood is, however, largely a creature of the elite slice of the law that revolves around law schools and federal courts. Her daughter, Kathryn Hutchinson, once said that on family road trips, the children did not ask, “Which state are we in?” but rather, referring to the 12 regional courts of appeals, “Which circuit are we in?”

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Here Comes the Soda Tax?

From today's WSJ:

Senate leaders are considering new federal taxes on soda and other sugary drinks to help pay for an overhaul of the nation's health-care system.

The taxes would pay for only a fraction of the cost to expand health-insurance coverage to all Americans and would face strong opposition from the beverage industry. They also could spark a backlash from consumers who would have to pay several cents more for a soft drink.

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Math Puzzle:

Leonhard correctly finishes a Sudoku puzzle, and tells you: "That's cool! When I look only at the upper left-hand 3 x 3 square of the puzzle, view each of the three-digit rows as a three-digit number, and add them together, I get 1000." Is he telling the truth?

An alternative version, if you prefer: You correctly tell Blaise, "I have three three-digit numbers that add up to 1001, and all the digits of all the numbers are different from each other." Right away, Blaise says, "You didn’t use a 7 in any of them, right?" How did he know?

Tell me, please, which version you like better. Thanks to my father Vladimir for the Sudoku frame for the first problem. I thought up both problems yesterday, but I'm sure someone else has beaten me to them, maybe by centuries.

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Monday, May 11, 2009

Paying Health Care Providers: How to Make Agency Problems Worse:

Over the weekend, the New York Times had a nice short piece about how the way we compensate health care providers can create problematic incentives. By and large, Medicare pays providers on a fee-for-service basis – tied to patient encounters and services provided, rather than the results of those interactions. For hospitals, this takes the form of a flat payment for each hospitalization, with the specific amount determined by the discharge diagnosis. (Physicians are paid through a separate system, which creates its own difficulties).

This payment structure for hospitals has advantages compared to the cost-based reimbursement system it replaced, but it is far from perfect. The article focuses on one specific manifestation of the problem – hospital readmissions within a short time (<30 days) of discharge. Unless the readmission is within a very short time frame, or otherwise indicates "gaming" of the reimbursement system, the hospital will be paid for both admissions.

Readmissions may reflect poor quality care, but they need not. However, eliminating readmissions that result from poor quality care results in a better outcome for the patient, lower spending on health care for the payor, and a reduction in income for the provider:

Millions of patients each year leave the hospital only to return within weeks or months for lack of proper follow-up care. One in five Medicare patients, for example, returns to the hospital within 30 days. Over all, readmissions cost the federal government an estimated $17 billion a year.

But even when hospitals find ways to greatly reduce the return trips, saving money for Medicare and other insurers, their efforts go unrewarded. In fact, because insurers typically pay hospitals to treat patients — not to keep them away by keeping them healthy — hospitals can actually lose money by providing better care. Empty beds mean lost revenue.

The article gives two concrete examples of institutions that lowered their readmission rate, but suffered substantial reductions in income as a result. One has discontinued the program, and another is only continuing the program out of a sense of “moral obligation” but notes that it is “getting killed” by it.

The problem is not unique to this setting; as I observe in a forthcoming piece, our fragmented health care looks the way that it does because our “encounter-based, primarily fee-for-service payment system has a distinct tendency to reward unbundling and inefficiency. Even under the best of circumstances, the current payment system does not create systematic incentives to deliver efficient high quality care.”

The root cause of this failure is simple; as former Assistant Secretary of Health and Human Services Dr. Philip Lee once noted, providers “get paid for what we do, not what we accomplish.” The failure to tie compensation to variables that correlate closely with patients’ needs and desires means that providers rarely have an economic incentive to invest in quality or prevent error. (Of course, they have other incentives to address these issues; as I like to remind my law students when we cover medical malpractice, "no one gets through medical school with the goal of being below-average or providing low-quality care.") But, the underlying problem remains -- and at an institutional level, it is hard to create a "business case for quality" or a sense of urgency in addressing such problems when improving quality makes the provider financially worse off.

Regardless of one’s views on how the American health care financing and delivery systems should be structured, it is hard to justify punishing providers financially for doing a better job for their patients. As I noted in a long-ago article with Charlie Silver on using compensation to align the incentives of providers and patients, “No rational system of payment rewards an agent for a behavior that makes a principal worse off.”

Finally, the specific problem noted in the New York Times article is not new; a 1984 article in the New England Journal of Medicine notes that the readmission rate during 1974-1977 was 22% -- roughly the same as it was in 2004.

Going forward, we should do more to use payment incentives, as well as other strategies, to align the interests of providers and patients -- a goal that is easier stated than accomplished. This article gives some sense of the complexities, even for a problem as long-standing and seemingly straightforward as readmissions.

As the conclusion to my forthcoming article notes,

In health care, we get what we pay for – and what we pay for is the provision of specific services –virtually irrespective of whether they are provided efficiently, or even needed. Because payment is conditioned on the laying of hands (or eyes) upon a patient, time spent coordinating care doesn’t create a billing opportunity. When we don’t pay for something, it generally doesn’t get done. Similarly, providing integrated care doesn’t pay better than fragmented care – and in some instances, it pays worse. The results are entirely predictable – and until the incentives created by the payment system are modified, we will continue to get what we’ve already got: a fragmented non-system for delivering care of highly variable quality at high cost. In our health care delivery non-system, coordination/integration is the dog that doesn’t bark – because under our current payment system, no one has any interest in actually buying the dog.

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[Ira Matetsky, guest-blogging, May 11, 2009 at 11:16pm] Trackbacks
Some First Thoughts on Wikipedia

Hi. Eugene introduced me earlier, and some of you may recognize my name from a recent comment thread or two. As Eugene mentioned, I work as a litigation attorney at a firm in New York City ... and I first met him at a summer school mathematics program (which, I would like to remind him, we were carefully coached not to call "math camp") thirty years ago.

I've been reading the Conspiracy faithfully for five or six years now, and recently I've noticed Eugene's series of posts about court decisions that discuss or mention Wikipedia, the free-content, mass-written, ever-growing online encyclopedia. I've also noticed that in unrelated posts and comments, many Conspirators routinely link to relevant Wikipedia articles and seem to operate from the basic assumption that they will generally be factually accurate. So I infer that there is at least some respect for Wikipedia among some Conspirators. At the same time, I saw the comments on the thread where Eugene introduced me this afternoon, so I know there is some skepticism too.

Eugene's posts, and everyone's comments, have interested me because I've contributed to Wikipedia myself, and I'm an administrator on the site and a member of the in-house Arbitration Committee. (Wikipedians may edit under pseudonyms, and until this point I hadn't mentioned my real name on-wiki, although a determined critic managed to "out" my real identity about a year ago. For anyone curious, on Wikipedia I'm known as Newyorkbrad, Brad being my middle name.)

I hope to do two things this week. First, to explain to Conspirators a little more about how Wikipedia operates and address a couple of aspects that may not have occurred to casual readers. (I might even recruit a couple of new Wikipedia contributors -- but in fairness, I'm going to link to a couple of criticism sites as well, so you'll know what you might be getting into.) And second, I hope to gather input on some important issues from contributors here who will have an intelligent reader's familiarity with the site, but no predisposition in our internal, sometimes eternal, debates.

Anyone who has spent time on the Internet has heard about Wikipedia by now and has at least some knowledge of how it works. But here are some basics for those less familiar, which the rest of you can safely skip and go on to the end or come back tomorrow.

Wikipedia defines itself as "the encyclopedia that anyone can edit." That is literally true: anyone (short of a few sitebanned people) with an Internet connection can sit down at the keyboard and start editing. The "anyone" who can edit includes you, if you are so inclined; you don't even need to register an account in order to edit an existing article, though you do in order to create a new article from scratch.

For my part, I was drawn in as many others are: I ran a Google search to locate some information, and the Wikipedia article was the top result. I saw a mistake in an article and corrected it. (The double brackets are internal wikicode for a link to another page, and I'll use that code here as well.) Interestingly, my introduction to a flaw of the wiki collaborative editing model came a short while later later, when someone took the correction I made and immediately uncorrected it. Fortunately, when I made the change a second time, I figured out how to provide a more detailed explanation in the "edit summary" field, and this time it stuck. If I'd been reverted one more time, I probably would have shaken my head and walked away, as subject-matter experts, unfortunately, often do. But instead, having made one change led me to want to make others, and then I registered to start creating pages, and it became a hobby.

Wikipedia has existed for less than eight years, and its growth and popularity have far exceeded anything that those who created it could possibly have imagined. Today, there are millions of registered "editors" with accounts, although there are probably a few thousand truly dedicated everyday contributors, and there are close to three million articles. Content can be found on virtually every subject one might wish to write about: from Poe and poetry to pomegranites and Pokemon; from Poland and Portugal to Powell and Posner; from Pol Pot and Potsdam to polarity and pottery. (Of these, there may be a disproportionate amount of Pokemon; editors come from an enormous diversity of background but have historically skewed younger, for fairly obvious reasons.)

There are Wikipedias in several hundred languages, of which English is the largest (German is second), and there are also Wiktionary and Wikinews and a Wikiversity and Wikiquote and Wikisource, and Commons (a repository for image and sound files that can be used by all the projects) and Meta (for coordination). All of this is operated under the auspices of the Wikimedia Foundation, a charitable foundation that owns the hardware and is, theoretically at least, in charge of it all. But my involvement with the English Wikipedia is probably enough for one lifetime.

So why does this matter? One reason is that a lot of people find that editing, or even administering the site, is fun. That is is essential, as virtually everyone involved is a volunteer. Another is the satisfaction of contributing to an ever-growing source of "free knowledge." In addition to being "the encyclopedia that everyone can edit," Wikipedia is "the free encyclopedia," whose content can freely be reproduced on other websites or in other media. (This actually happens. One of my first articles was a short biography of a lawyer in Alabama who became a judge in Puerto Rico, named Peter J. Hamilton. It turns out that there is a Peter J. Hamilton Elementary School in Mobile, whose website has a "did you ever wonder who Peter J. Hamilton was?" page, and the answer turns out to be my article.)

But there is another major reason that a lot of people care about Wikipedia, whether they participate themselves in it or not, and why there are many critics concerned about the increasingly widespread role of the site. Because of its popularity and also because of its interconnected network of links, Wikipedia articles tend to score extremely high on Google and other Internet searches. In particular, if one searches on an individual's name, his or her Wikipedia article will generally be among the top group of Google hits -- much of the time the very first one. This has implications that are quite significant and in many instances troubling, which I will be discussing over the next couple of days.

That's long enough for an introductory post; I'm sure many are waiting for me to reach something more controversial. Over the next few days I'm going to explore some specific issues, beginning tomorrow with the question of how Wikipedia articles about living people can affect their subjects, and continuing later in the week with issues of site governance and article quality, behavioral standards and the role of anonymity.

The comments thread should be open, and I'd welcome suggestions for aspects I might address. (I make only one request: that regular Wikipedians who are looking over my shoulder, as well as Wikipedia critics from Wikipedia Review and elsewhere, bear in mind that this is a general-interest audience. Please don't hijack the comment threads with our own internal disputes and debates. No one here wants to read who is a sockpuppet of whom or whether so-and-so's block was fair or not. We have ANI and Wikipedia Review to hash those things out later.)

And one last unrelated request. A couple of weeks ago, [[Saxbe fix]] was the day's featured article, meaning it had pride of place on the main page for a day. I hadn't contributed to the article before, but I did some copyediting while it was mainpaged, and in doing so, I came across the assertion that President Reagan nominated Robert Bork rather than Orrin Hatch to the Supreme Court because Hatch's appointment would have raised an emoluments clause issue and the administration was not convinced that the Saxbe fix is constitutional. Although I had a dim recollection of the issue having come up in passing, I found that statement as written implausible and edited the article to say that this issue played only a small role in Judge Bork's selection. However, I didn't have a good source suitable for citation in the article to support my assertion, and I've been asked for one. This certainly would seem like an appropriate audience to fill in that particular lacuna. So if anyone can help with a source on this, please let me know in in the comments thread so I can go back and add it to the article.

Or better still, go visit [[Saxbe fix]] and edit it yourself.

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Rosen Vindicated?

McClatchy's Michael Doyle consults the attorney evaluations of Supreme Court short-listers, Judges Sonia Sotomayor, Diane Wood, and Ann Williams. From his "quick read" he concludes: "Rosen may have been on to something with his piece, discomforting as it may have been . . . "

UPDATE: On the other hand, Rob Kar notes Sotomayor's evaluations are worse than they used to be, and wonders about the source of the apparent discrepancies.

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"It's Called CAPITALism for a Reason":

Professor Bainbridge ponders the apparent economic ignorance of the unnamed Obama Administration official who told the WSJ "You don't need banks and bondholders to make cars." If the quote is accurate, it is astounding. Yet another reason to buy a Ford.


National Journal "Ninth Justice" Blog on the Search to Fill Souter's Seat: It's available here, and it promises to be very much worth reading in the weeks ahead. Thanks to Adam White for the link.
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Sunstein Confirmation Hearing Tomorrow: The scoop is here; the hearing will be webcast tomorrow starting at 10 am. Thanks to Law School Headlines for the link.
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Chekov's Russian Accent in Star Trek:

My wife and I saw the new Star Trek — which both of us though was good fun, though no great shakes — and it reminded me of one glitch that I had long noticed.

Chekhov, the ostentatiously Russian character, speaks with what's supposed to be an ostentatiously Russian accent, but its most prominent aspect is that he pronounces "v"s as "w"s, as if Russians have a hard time pronouncing "v"s. But it's really the other way around: Russians tend to pronounce "w"s as "v"s (the capital of the U.S., for instance, is rendered "Vah-shing-ton'" and they have no trouble at all with "v"s.

Given that I'm Yevgeniy Vladimirovich Volokh, with four "v"s in my full name, I can vouch (not wouch) for that. And Chekov himself — the Star Trek Chekov, not his less famous near-namesake — is Pavel Andreievich Chekov; I don't recall his pronouncing it Pawel Andreiewich Chekow (though maybe I missed something).

Now if you want to come up with a defense for the show, perhaps the answer would be that the Russian accent had changed in the centuries between now and the events depicted in Star Trek. But that kind of defeats the purpose, I take it, of having what seems like an ostentatiously Russian accent.

By the way, for purposes of evaluating whether my and my wife's reaction to the movie (setting aside the v/w matter) might help you decide whether to watch the movie yourself: My wife and I aren't Star Trek fans; I once was, in my early teens, but later came to dislike the series; I haven't watched any of the later series; I watched three or four of the movies, but didn't much like any except for Wrath of Khan (The plane! The plane!); my wife didn't watch either the series or the other movies; and we both like science fiction movies, though only I like science fiction novels.

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Ninth Circuit Panel Applies and Upholds the Federal Statute Preempting Various Lawsuits Against Gun Manufacturers,

in Ileto v. Glock, Inc. (just handed down today). I might not have time to say much about this, but I thought I'd give the pointer, and note that the opinion was by Judge Graber joined by Judge Reinhardt, with a partial concurrence and partial dissent by Judge Berzon. For more on the underlying tort theory, which the Ninth Circuit accepted before Congress passed the Protection of Lawful Commerce in Arms Act, see the four posts that begin here.

Note that the panel did hold that the Act doesn't apply to one of the defendants, a foreign manufacturer that isn't "licensed to engage in business as such a manufacturer under [federal law]," to quote the Act; but while there was some argument about that, the result seems to be pretty clearly correct. Thanks to How Appealing for the pointer.

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Ira Matetsky, Guest-Blogging:

I'm delighted to report that Ira Matetsky will be guest-blogging this week about Wikipedia. Mr. Matetsky is a lawyer in Manhattan, but since 2006 he has also been involved with Wikipedia. He began by writing articles on legal history and some other matters, but eventually got drawn into the governance of the site, first becoming an administrator (a technical term that he'll define) and later being elected to the internal Arbitration Committee, which is the body that resolves user-conduct disputes. This week, he'll give us a look under the hood of Wikipedia administration, and will discuss some of the legal, ethical, and practical issues involved in (and caused by) Wikipedia's operation.

I should also note that I know Mr. Matetsky from having gone to math camp with him 30 years ago. I'm much looking forward to reading his posts.

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Searches for Guns at the Home of a Suspect's Family Member:

Bowen was a felon and likely a gang member who had apparently committed a serious gun crime (shooting at the car of his girlfriend, who was leaving him, with a sawed-off shotgun). The police heard that Bowen "might be staying at his foster mother's home." They therefore got a warrant to search the foster mother's (Augusta Millender's) home for, among other things, "all firearms and firearm-related items."

When they searched the house, they didn't find Bowen or the gun with which he had committed the crime, but they did find and seize "Mrs. Millender's personal shotgun ... and a box of 45-caliber ammunition." Mrs. Millender and the family members with whom she was living (her daughter and her grandson) sued, claiming the search violated the Fourth Amendment. The case eventually ended up before the Ninth Circuit, as Millender v. County of Los Angeles, decided last Wednesday.

Judge Callahan, writing for herself and for Judge Fernandez, held that the defendant police officers were shielded by qualified immunity because the search was authorized by the warrant, and that this would be so even if the warrant was unconstitutionally overbroad. Judge Callahan did not express a view on whether the warrant was indeed overbroad.

Judge Fernandez concurred in the majority opinion, agreeing that the officers were shielded by qualified immunity because of the warrant, but concluded that the search was indeed unconstitutional. In this case, he concluded, there was "extremely little support for the search of a third person's home for all firearms and ammunition" (even though the officers thought Bowen was staying at the house, and therefore it was "Bowen's home also").

Judge Ikuta dissented, concluding that "no officer of reasonable competence could have thought [the] affidavit established probable cause to search for the items listed in the warrant," and that therefore the officers couldn't claim qualified immunity. Judge Ikuta also briefly cited D.C. v. Heller, though only in passing, and following a clause that said, "Mere possession of firearms is not, generally speaking, a crime."

A very interesting case, and much worth reading if you're interested in searches and seizures as they affect innocent third parties, if you're interested in gun rights, or if you're interested in both.

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On Our Way to Banana Republicdom?:

One really can't publicize this chart enough (H/T Instapundit):


Want More Star Trek? I saw the new Star Trek movie last night in IMAX and, like Casino Royale, it was an excellent and clever reboot of a series that had previously become stale and boring. Let us hope that the next one is not as disappointing as the Bond sequel Quantum of Solace. For those who want more Star Trek, there is a deal for you.

InAlienable, the sci-fi film in which I appeared as an assistant prosecutor (and chronicled here as linked below), is now available in DVD for purchase for $20 from Renegade Studios. (Not available on NetFlix or rentals.) On my website, you can watch a brief interview with me from the set of InAlienable that also features clips of the other actors.

InAlienable DVD

InAlienable was written by Walter Koenig, who played Chekov in the original Star Trek series and films. In addition to Koenig himself, InAlienable stars Richard Hatch (Battlestar Galactica), Courtney Peldon (Boston Public), Marina Sirtis (Star Trek: Next Generation), and Erick Avari (Stargate, Heroes). The supporting cast includes Jay Acovone (Stargate SG-1), 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 Tim Russ (Star Trek: Voyager).

If you buy this DVD, Renegade Studios will include a DVD of its recent feature film, Star Trek: Of Gods & Men. The cast is led by Walter Koenig and Nichelle Nichols, who played Lieutenant Uhura in the original "Star Trek" series. In the film, Chekov and Uhura are thrust into an adventure in a parallel universe where Captain James T. Kirk never existed, and the galaxy is in turmoil. The two are joined by Captain John Harriman, who commanded the Enterprise-B in "Generations." Alan Ruck, of "Spin City" and "Ferris Beuller's Day Off" fame, reprises the role he played in that film.

STOGAM Click here for more information on this offer. PS: I receive no remuneration from this offer. I am just happy that Volokh readers can finally see the film they first read about here.

Sunday, May 10, 2009

Henry T. King, RIP:

Professor Henry T. King passed away this weekend just a few weeks shy of his 90th birthday. After serving as a prosecutor at Nuremberg, where he helped with the prosecution of Albert Speer, Henry had a long and distinguished career as a private attorney and corporate counsel before joining the faculty of the Case Western Reserve University School of Law faculty and becoming U.S. director of the U.S.-Canada Law Institute. As his body deteriorated in recent years, his mind remained sharp and his spirit strong. Henry was a valued colleague and an inspiration. He will be missed.

UPDATE: The Cleveland Plain Dealer obit is here.

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Blues Capitalist W.C. Handy.

In the New York Times, David Hajdu, of the New Republic, has a nice review of a biography of W.C. Handy. The review is entitled “Blues Capitalist.”

In "W.C. Handy ,” David Robertson, who has previously written a lucid biography of the slave rebel Denmark Vesey, casts overdue light on Handy’s essential role in establishing the blues as a popular art, and he does this, much to his credit, without resorting to dubious claims that Handy was the first or the best of the blues’ multiple progenitors. A mark of both the evenhandedness of his scholarship and the delicacy of his writing is Robertson’s resistance to the idea of Handy as the Father of the Blues — a notion that Handy himself advanced and exploited deftly during his lifetime. . . .

In another sense of “making” the blues, Handy, through the songs he published and their widespread use onstage, in recordings and on film, played a dominant role in the popularization of the music across a wide spectrum of the general population. “St. Louis Blues,” the best known of the many songs to bear his name as a composer, has been recorded more than 1,600 times by artists from Louis Armstrong to the contemporary jazz saxophonist Greg Osby, with Bessie Smith, Bing Crosby, Chet Atkins, Chuck Berry, Leonard Bernstein, Pete Seeger and Doc Watson in between. Through the royalties from “St. Louis Blues” and dozens of other songs under his copyright (most notably “The Memphis Blues,” “Yellow Dog Blues” and “Beale Street Blues”), Handy achieved a status rare among composers associated with the blues of the early 20th century: he grew wealthy. He was skillful at both music and business, as a great many hip-hop artists are today, and he took obvious pleasure in the status his prosperity conferred among blacks and whites.

His facility with commerce as well as art has tainted Handy in the eyes of rock-era blues buffs, as if the only proper compensation for a life of blues-making were the adulation of those fans, as if the point of the blues were not to cry out against suffering, subjugation and marginalization, but to preserve those things. David Robertson harbors no such delusions.

Here is Bessie Smith singing St. Louis Blues in 1929:

Here is an audio recording of Louis Armstrong and Velma Middleton doing the same song in 1954: