The Volokh Conspiracy

My law school classmate and GW professor Jeff Rosen has been named the new president and CEO of the National Constitution Center in Philadelphia. Jeff and I have sometimes sparred on this blog (no, Jeff, there is no still such thing as the “Constitution in Exile movement,”) but he’s a top notch and amazingly prolific scholar who will undoubtedly bring new prominence and intellectual energy to the Center. Among his many books, my favorite is The Supreme Court: The Personalities and Rivalries that Defined America.

My sense is that the Center, which describes itself as a “museum, town hall, and civic educational headquarters” has had limited interaction with the legal academy. Indeed, until now I was only vaguely aware of the Center’s existence. It will be interesting to see whether the Center will now engage more with Jeff’s academic colleagues.

I couldn’t find any mention of how Jeff’s new position will affect his relationship with GW, beyond the fact that he is apparently moving to Philadelphia (“I’m very much looking forward to coming to Philadelphia and experiencing all this great city has to offer”), or his other job as legal affairs editor of The New Republic.

I missed this controversy when it broke two weeks ago, but Matthew Yglesias noted that the “entire Internet” seemed to be mad at him for a post that, really, just reflects common economic sense. He wrote:

Bangladesh may or may not need tougher workplace safety rules, but it’s entirely appropriate for Bangladesh to have different—and, indeed, lower—workplace safety standards than the United States.

The reason is that while having a safe job is good, money is also good. Jobs that are unusually dangerous—in the contemporary United States that’s primarily fishing, logging, and trucking—pay a premium over other working-class occupations precisely because people are reluctant to risk death or maiming at work. And in a free society it’s good that different people are able to make different choices on the risk–reward spectrum....

Bangladesh is a lot poorer than the United States, and there are very good reasons for Bangladeshi people to make different choices in this regard than Americans. That’s true whether you’re talking about an individual calculus or a collective calculus. Safety rules that are appropriate for the United States would be unnecessarily immiserating in much poorer Bangladesh. Rules that are appropriate in Bangladesh would be far too flimsy for the richer and more risk-averse United States. Split the difference and you’ll get rules that are appropriate for nobody. The current system of letting different countries have different rules is working fine. American jobs have gotten much safer over the past 20 years, and Bangladesh has gotten a lot richer.

I would add that the choice in a country like Bangladesh often will not be Western-level safety standards and lower pay, but Western-level safety standards and unemployment, as the cost of Western-level safety standards could be sufficiently high given Bangladeshi productivity standards to price Bangladeshi workers out of the international labor market.

Yglesias should have noted that this is a tangential point to the recent tragedy in Bangladesh, because there is apparently strong evidence that the factory owners were grossly violating existing local safety laws, and there is little reason to believe that workers were aware of this and thus knowingly making a tradeoff. But Yglesias is certainly right that the horror in Bangladesh should not be compounded by pushing international labor standards that are simply too expensive to be appropriate for countries like Bangladesh. Such standards would make no more sense then requiring Bangladesh to raise its minimum wage to European standards (which cause significant unemployment even in Europe).

Summarized in two headlines:

Today: Chomsky helped lobby Hawking to boycott Israel event

Last October: Islamic University of Gaza awards honorary doctorate to Chomsky

You might assume that Chomsky at least avoided meeting with officials of the repressive, theocratic, dictatorial, anti-Semitic, government of Gaza, which, at the very time of Chomsky’s visit was lobbing rockets at Israeli civilians (92 attacks in October, involving 171 rockets and mortars) in violation of the most basic international human rights norms. You’d be wrong: “Prof Chomsky also met with a number of civil society leaders and government officials, including Prime Minister Ismail Haniyeh, who thanked him for his outstanding support.”

UPDATE: It’s also worth noting that Islamic University, founded by the Muslim Brotherhood and closely associated with Hamas, is itself hardly a bastion of liberalism.

FURTHER UPDATE: Also note that as a proponent of a two-state solution, as opposed to eliminating Israel, Chomsky is on the “right” of the BDS movement. [And as a commenter points out, Chomsky has previously supported only |boycott and divestment of firms that are carrying out operations in the occupied territories" and was a vocal opponent of BDS more generally.]

But it sure sounds like it. Here is University of Maryland Maryland Institute College of Art philosophy professor Firmin DeBrabander, writing in the New York Times Opinionator blog:

But why do we presume individual agency in the first place? Why do we insist on it stubbornly, irrationally, often recklessly?

.... To be human, according to Spinoza, is to be party to a confounding existential illusion — that human individuals are independent agents — which exacts a heavy emotional and political toll on us. It is the source of anxiety, envy, anger — all the passions that torment our psyche — and the violence that ensues. If we should come to see our nature as it truly is, if we should see that no “individuals” properly speaking exist at all, Spinoza maintained, it would greatly benefit humankind.

There is no such thing as a discrete individual, Spinoza points out. This is a fiction.

For some reason, the model of humans that posits we are and therefore should act like ants in an ant hill doesn’t appeal to me, and doesn’t strike me as consistent with long-term human flourishing.

UPDATE: Beyond the language I pointed out, Prof. Debrabander’s theory shorn of its philosophical digressions about the nature of individuality, seems to be that there are two alternatives: either believe in “rugged individualism” in which, counter to reality, everyone is totally the master of his own fate, or favor big, intrusive government. The fact that humans cooperate and coordinate not just through government but also through voluntary institutions and civil society is ignored.

Rodney Smolla, previously a prominent law professor and dean of Washington & Lee School of Law, has resigned from his position as president of Furman University for personal reasons. According to this story, he is recently divorced from his wife of fourteen years. Smolla will be a visiting professor at Duke and Georgia law schools next year.

Via NY Times “The Lede” Blog: In November 2012, Amnesty International tweeted, “Feel enraged by the violence in #Gaza & #Israel? Demand that @netanyahu & @AlqassamBrigade stop attacks on civilians.”

Egyptian activist Mona Seif responded in a tweet, “@amnesty you don’t ask an occupied nation to stop their ‘Resistance’ to end violence!!! SHAME ON YOU!”

Human Rights Director Kenneth Roth, responding to a controversy over the fact that Seif is a finalist for a human rights award for which he is one of the judges, told the N.Y. Times’s “The Lede” blog that “I haven’t seen anything indicating that by ‘resistance’ Mona means attacking civilians.”

Sigh. Now, Seif claims, rather implausibly, that her tweet apparently referring to attacks on Israeli civilians as “Resistance,” coupled with her longstanding public support for Palestinian resistance, did not actually reflect support for attacks on Israeli civilians. But even if you are credulous enough to believe her, you would still have to admit that the tweet itself is “something” that “indicates” “that by resistances Mona means attacking civilians,” and can’t simply be ignored as if the charge against Seif is a figment of the Zionist imagination. If Roth had said, “Mona used intemperate language, but she has now made it clear that she opposes attacks on civilians [she hasn't; instead, in a very lawyerly statement, she said that "I have never called for nor celebrated attacks on civilians," which is hardly the same as opposing such attacks] then I wouldn’t give Roth a hard time. Of if Roth had acknowledged that Seif supports attacks on Israeli civilians, but claimed that her true importance is her work on human rights in Egypt, then at least we’d have an honest, debatable position. Instead, we have Roth’s unwillingness to acknowledge the obvious, which is unfortunately of a piece with his and his organization’s general hostile approach to Israel.

In fact, I doubt that Roth actually fails to comprehend that purported human rights hero Seif has supported attacks on Israeli civilians. It’s just that he doesn’t care. [UPDATE: Perhaps I should clarify that I am not drawing an inference that Roth doesn't care from this particular statement. Rather, I'm drawing it from both a long history of his own often egregiously dishonest statements about Israel and Judaism, and from his stewardship of Human Rights Watch, whose Mideast division is run, with Roth's enthusiastic consent, by individuals who had a known record of hostility to and activism against Israel before they were hired, and have acted in accordance with that record at HRW. Roth has even, in a weak moment, acknowledged that HRW focused its resources disproportionately on Israel, something HRW spokesmen usually deny. I've documented this and more in detail on this blog, and if you're interested you can google bernstein volokh and "human rights watch." But in short, while it's usually wise to give people the benefit of the doubt, Roth has long since forfeited any presumption in his favor; quite the reverse.]

I say “liberal” [UPDATE: judging from the comments, it looks like I need to clarify that I mean liberal in its broad philosophical sense of favoring freedom and tolerance, not in its narrow modern American political sense] because one can be a believer in a minimal state, but still, e.g., be a racist, not care for a culture that respects women, or not be especially inclined toward reason as opposed to superstition and conspiracy theory. So here it is, from Daniel Bier at the Skeptical Libertarian blog, via Walter Olson on Facebook. I think it’s fair to say that Bier’s views reflect the libertarian humanist spirit of most of the bloggers here. I’m not going to bother nitpicking details:

I believe there is a very real prospect of a world in which goods, services, people, and ideas flow freely within and between borders, across oceans and rivers, over deserts and mountains, through the sky and (someday) the stars.

I believe in a world where individuals are treated equally under the law, regardless of ethnic or national origin, religious or philosophical belief, gender or sexual preference.

I believe in a culture that respects women and protects children, that celebrates ideas and cherishes liberty, that not only tolerates but vigorously defends free expression.

I believe in a world where 10 billion people can be fed on less land than we currently use for 7, through new advances in fertilizer, irrigation, storage, and genetics.

I believe in a world where wildlife and natural habitat can be conserved and even expanded.

I believe in a world where emerging technologies can meet the challenges of climate change without halting economic growth.

I believe in a world where water is clean, healthy, and abundant.

I believe in a world where we can reduce or exterminate mankind’s worst enemies through the single greatest medical innovation in history: vaccination.

I believe in a world where scientific discovery and economic freedom can together eradicate hunger, poverty, and disease.

I believe in a world where war, cruelty, and violence are rare and reviled.

I believe in a world where superstitions cease to divide people, where traditions no longer provide excuse for murder, where veneration does not give cover to abuse, where legend does not trump history, where delusion does not defeat medicine, where faith does not overcome fact.

I believe in a world where people turn to conversation instead of violence, to one another instead of politicians, to reason and evidence instead of myth and dogmatism.

I believe in a truly global civilization, united by trade and connected by travel, buttressed by an open-ended dialogue, sustained by humanist ethics, founded on the principles of reason, liberty, and mutual respect.

I believe in an open society, a civil society, a free society.

I believe that these things are not only good for the world, are not only possible, but are already happening. I hope, in some small way, to contribute this new world order–an order defined by its spontaneous nature, created by individuals pursuing and expressing their separate interests, together. This order evolves from bottom-up processes, and cannot be replicated by top-down hierarchies.

I believe this world is eminently worth fighting for, even if it sometimes feels like a rearguard defense. Over the long-term, we are winning this battle. But while I am rationally optimistic about our chances, victory is not inevitable. It is still possible for things to go spectacularly wrong, for the light of reason to dim or even wink out altogether in places, for the better angels of our nature to fall to the inner demons of our primate minds.

The song happens to be about the New Deal WPA, but the lyrics apply more broadly.  (For that matter, academia is hardly exempt from the phenomenon of people with guaranteed employment often slacking off.) Hat tip: Historian David Beito via Facebook, from Cafe Hayek.

Thirty years after Merrell Dow Pharmaceuticals pulled the morning sickness drug Bendectin off the American market in response to a waive of junk science-inspired claims that it caused limb reduction birth defects, the product is returning to the market under a new name with a new manufacturer.  Contrary to what one might reasonably surmise from the linked report, the FDA never pulled Bendectin from the market; rather, no one was willing to market the drug given the litigation climate in the United States.  American women who wanted the drug, which still has no substitute, have had to either make a homemade concoction from its ingredients, as some doctors recommended, or get it from Canada.  This has meant, in practice, that few American women have used it.  The result has been much needless suffering, including a hospitalization rate for morning sickness double in the U.S. compared to Canada. Ironically, the absence of Bendectin may have even led to an increase in the rate of birth defects because some women with morning sickness are unable to keep food down and give their babies proper nutrition.  I discuss the Bendectin litigation and the negative health ramifications it caused in some detail in an article in the Michigan Law Review.

The only positive aspect of the Bendectin litigation is that the contrast between jury verdicts for plaintiffs and the overwhelming contrary scientific evidence was such that it led several federal courts to issue decisions radically (for the time) limiting plaintiffs” ability to proffer dubious causation evidence, which in turn led to the Supreme Court’s “Daubert Trilogy” and amended Federal Rule of Evidence 702.  By tightening the rules for the admissibility of expert testimony, these changes have made a recurrence of the tragedy of the Bendectin litigation unlikely.

In related news, I was just reading that a product that David Kessler’s FDA did pull off the market for political reasons with no scientific basis for doing so, silicone breast implants, have made a huge comeback, and are now used in hundreds of thousands of surgeries in the United States annually.  Unfortunately, the judiciary’s crackdown on dubious science didn’t come quickly enough to save the manufacturers from paying out billions of dollars in jury verdicts and settlements.

Four years back, I post the following:

Tonight marks Holocaust Remembrance Day, so I thought I’d recount the little I know about the closest relative I know of who was murdered, my great-grandmother’s sister, Chana Basia (Anna) (Tetenbaum) Bogusz. Chana Basia was the daughter of Hersk (Gersk, Herschel) Tetenbaum and Ester Malka Rubensztejn Tetenbaum of Szczuczyn, Poland. (Ester’s brother joined the Russian army and moved to Finland, and one of his descendants has created a remarkable family genealogy website.)

The Tetenbaums were a reasonably prominent and well-to-do family in town, with many rabbis in the family. Hersk and Ester Malka had ten children. The first eight were “blue babies” and died in childbirth. The ninth was my great-grandmother, Hinda Meita. The tenth was Chana Basia, who was born in January 1880. According to what my grandmother told me (the link goes to her very interesting autobiography, the delivery didn’t go well, and Chana Basia’s life was in danger. Ester Malka prayed aloud to God, and asked God to take her instead of her baby. And that’s what God did.

Hersk got remarried to a woman named Zelda Jozefson, who was very kind to her step-daughters, and had seven more children with her. After he died in 1903, Zelda and her children gradually left for America, where the sons opened a successful Fortunoff’s-type store (my father remembers his cousin going there for her wedding needs), taking one of my great aunts with them. Zelda’s brother married my great-grandmother. He died in 1905, and Hinda Meita and her five daughters gradually emigrated to the U.S.

Meanwhile, Chana Basia married a man named Mosko (Max) Bogusz in 1900, and eventually moved with him to Braunschweig, Germany. They had two daughters, Sara Zalka (Sonja) Szpektor and Estera Malka (Esther) Pressburger. Chana Basia and Moszk were deported and murdered in Treblinka circa 1942.

Since then, I learned from the Braunschweig memorial book that that both daughters moved to Paris in 1933, just after the Nazis took power in Germany.  I have no record thereafter of one daughter, while the memorial book says that the other daughter survived the war by hiding with a friend from 1942 to 1944.  If they had children, I have no record of them.  I’ve been building a family tree, and I’m especially interested in finding out what happened to Sonja and Esther and whether they have any descendants.  If we have any genealogy hobbyists with access to French records who could help me, I’d be grateful.

You can’t make this stuff up. The city of Phoenix, concerned that “too many” of its lifeguards are white and that kids in non-white neighborhood pools can’t relate, is recruiting black and Hispanic kids who are not strong swimmers. A student featured in the article tells the NPR reporter, “Honestly, I have a little bit a fear of the water,” which, as someone who has shared that fear since someone threw me in a pool when I was four years old, seems like a good reason not to become a lifeguard. It would be one thing if the city was promising to get only hire kids who could be trained to be strong swimmers by the Summer. Instead, pool staff will work with underqualified kids on their swimming schools “all Summer.” And what if someone is drowning on Memorial Day? NPR seems to want to put a happy-face “City of Phoenix reaching out to minority kids for lifeguard jobs” spin on this story, but as a Facebook friend put it, “If I wrote a job ad, ‘Looking for weak swimmers to be life guards for minorities,’ you would think it was some sort of racist joke.”

UPDATE: Some commenters are claiming that one doesn’t need strong swimming skills to be a swimming pool lifeguard. That’s apparently true nowadays, if one is going to be a lifeguard only for shallow water pools. But let’s take a look at Phoenix’s own requirements, as posted on its website. If one is not a minority candidate, before applying to be a lifeguard one must be certified. To be certified, one must take a class. Before one can take a class, one must pass a pre-skills test. The preskills test requires 300 yards of continuous swimming using either freestyle or breaststroke, tread water for one minute without hands, and 10 pound brick retrieval in deep water. Not Olympic-level skills, but more than I could do after having daily groups lessons each Summer in day camp for six years, so not something everyone can just pick up really quickly. And then one must pass successfully complete the course. So not being an aquatics expert, I can’t speak to precisely what one “needs” to be a good lifeguard. But it’s obvious that Phoenix, at least, think it needs lifeguards who can pass a preskills test and then successfully complete a lifeguard course, and then one can apply for, but not be guaranteed a lifeguard job–assumedly stronger swimmers would have something of an edge. By contrast, the NPR piece says that candidates need only pass a swim test at the end–which may or may not make sense, but if it does make sense why require a preskills test for other candidates?  [I assume there are at least three reasons why one might have a pre-course skills test: (a) the course requires some swimming skills; (b) you don't want the staff to feel pressure to pass someone on a swim test because they already invested in a course; and (c) you don't want someone who is never going to be able to pass the test to waste their time, money, and energy on the course] I think it’s fine that Phoenix wants to train and recruit kids from schools that have no swim programs (although I’m dubious they should do so if the primary motivation is that Hispanic kids don’ t like having white lifeguards [or more precisely, that a Kelly Martinez from the city aquatics program thinks they don't, she's the only one quoted as complaining, "the kids in the pool are all either Hispanic or black or whatever, and every lifeguard is white"]), but only if they uphold the same standards for these kids as for other lifeguard candidates.

I was asked for advice by parents seeking a college for their daughter. I thought I’d crowd-source it. The girl has some unique needs: she is Jewish and she (a) keeps kosher, so she needs the availability of kosher food, but she is not Orthodox and Stern College would not be a good environment for her; (b) is not very political, but is turned off by left-wing activism (her parents are quite conservative politically); (c) is personally rather conservative, a “traditional values” type, if you will; and (d) is somewhat shy and would likely thrive at a smaller college rather than at a huge university.

Given what I know of her, I would think that if she were Christian, a small Catholic or Christian liberal arts college would be a good match. If there are any such schools that have significant Jewish populations and kosher food that could very well work, but I can’t think of any. Even Notre Dame, somewhat to my surprise, apparently has vanishingly few Jewish students. Hillsdale, to take an officially secular example, is in the same boat. I thought of McGill as an option, if only because the non-Orthodox Jewish community in Canada tends to be more traditional than in the U.S. Other ideas?

UPDATE: To clarify, she and her parents aren’t insisting that all of these conditions be met, and are mulling some of the obvious choices, like Brandeis and Muhlenberg. But there is a universe of possibilities beyond the obvious ones (and she may not get into some of the obvious ones), and there tends to be a path dependency in these things where kids apply to the schools that everyone in their circle is already familiar with. I’m trying to look beyond the obvious possibilities to see if there are some schools that are a potentially good fit that aren’t so obvious, and I’ve already received a bunch of good suggestions in the comments (e.g., U. Chicago, Mount Holyoke, Miami, CUNY honors program, Smith).

Instapundit links to this Daily Beast piece:

These days, a nearly-perfect GPA is the barest requisite for an elite institution. You’re also supposed to be a top notch athlete and/or musician, the master of multiple extracurriculars. Summers should preferably be spent doing charitable work, hopefully in a foreign country, or failing that, at least attending some sort of advanced academic or athletic program.

Naturally, this selects for kids who are extremely affluent, with extremely motivated parents who will steer them through the process of “founding a charity” and other artificial activities. Kids who have to spend their summer doing some boring menial labor in order to buy clothes have a hard time amassing that kind of enrichment experience.

The irony is that even admissions officers seem to be put off by this dynamic; presumably that’s why I’m told that kids now have to have fake epiphanies about the suffering of other, less privileged people instead of just having fake epiphanies about themselves. This proves that they are really caring human beings who want to do more for the world than just make money so that they, too will, in their time, be able to get their children into Harvard.

I had something of an epiphany on this when I visited a D.C.-area private school that boasted that it had one of the best high school girls’ lacrosse teams in the country. Why in God’s name, I wondered, would anyone care about this when considering a private school, especially given that I was there for a kindergarten open house? Then it dawned on me: this is the way the school gets some girls with marginal academic credentials into elite schools. All elite colleges with women’s lacrosse have to fill their teams, and lacrosse is prevalent only at expensive private schools. A form of affirmative action for the rich, if you will. And a signal to parents that even if their girls don’t grow up to be lacrosse players, the school is willing to invest substantial resources in a variety of ways to make sure they get into a top college.

And then it dawned on me that the modern emphasis on admitting students who spend their summers building playgrounds in El Salvador, or conduct medical research at the Mayo Clinic, and so on, is another form of affirmative action for the rich (and those with well-educated parents). Not only do people from modest backgrounds not have the financial wherewithal to do such things, for most of them it would never occur to them to do them to begin with. (It certainly would never have occurred to me, and my background wasn’t all that modest.) By contrast, one of the jobs of guidance counselors at fancy private schools is to ensure that their students have exactly the kind of “experiences” that admissions officers are looking for. Not surprisingly, I was just reading how America’s most elite universities are dominated by kids from wealthy families (sorry, didn’t save the link).

This is also a reason that elite universities are so committed to affirmative action preferences. By ensuring that they have sufficient “diversity” in their classes, they claim the mantle of “social justice” while distracting potential critics from the fact that they have rigged the rest of the admissions process to favor those who have the resources and knowledge to game the system. There are all sorts of obvious reasons that, say, Harvard, would rather take in wealthy kids from well-educated families than scour the country for the diamonds in the rough. What’s interesting is how rarely they get called on it. What’s also interesting is that when Larry Summers made substantial efforts to make Harvard more accessible to kids from modest economic backgrounds he received approximately zero credit for it from his critics on the left.

UPDATE: Commenter Unemployed Northeastern writes:

Spot on. Having been lucky enough to land scholarships to attend a New England prep school back in the day (though not quite a Exeter/Andover/Deerfield-caliber institution), I can aver that the admissions standards at elite colleges for that cohort – particularly if they are athletes – are considerably lower than for Sally Q. Public School. I think rowing and hockey (men’s and women’s) are better examples than lacrosse, though. Two of the strongest sports for the Ivies and Little Ivies, and the Grotons and St Pauls and Choates and similar have produced a huge number of Olympians in those sports. The stories I could tell of B or B- students with <1200 SAT scores who got into Dartmouth or Williams or Harvard because they attended a "proper" private school and had great ability to row or play lacrosse, hockey, squash, etc... And if you read Kellogg professor Lauren Rivera's groundbreaking research* into the hiring proclivities of elite banks and consulting firms, you would learn that the golden ticket to these careers, which probably have the best exit opportunities in the American workforce, is attendance to a Top 5 university AND athletic prowess. A 3.5GPA athlete from Harvard (3.5 being the average grade at Harvard these days, thanks to years of grade inflation) is prized over a 4.0GPA non-athlete from Harvard, and of course, if one *only* attends a Bowdoin or Georgetown or UW Madison, well, you probably won't get an interview. THIS is why certain parents freak out about the strength of these sports - it is easier to get into an Ivy from athletics than academics, elite employers value athletes (most likely because they were athletes themselves, as were the people who hired them, etc etc), and let's be honest, the middle class is collapsing.

To wit, Jerome Karabel reveals in his book "The Chosen" that to this day, 40% of each incoming class at Princeton is comprised of legacies and athletes and URMs, in that order. The Harvard Crimson revealed a little while ago that even though the institution arguably has the best FA in the world, nearly half of the student body came from a family with more than $200,000 in annual household income (roughly the top 3.8% of households), while less than 1 in 25 came from the bottom quntile and less than 1 in 5 came from the bottom THREE quintiles of income.

Paul Caron has the details at Taxprof. In addition to the obvious potential effects on law school incentives to satisfy their customers, I wonder how giving all law students free Angie’s List memberships will skew local reviews of other businesses. Nascent lawyers are known to be, shall we say, more combative than the average twenty-something.

Meanwhile, Paul Campos complains that Angie’s List will only survey current students, excluding those who (a) either failed out after falling victim to the law school scam or dropped out after recognizing that their job prospects were nil; and (b) law students who are so discouraged by the debt they are taking on that they are too depressed to respond to surveys. Thus, he claims, the rankings will actually be skewed in favor of bad law schools who are responsible for (a) and (b).

His speech today in Israel was fantastic. Discuss in the comments.