The Volokh Conspiracy

Paul Kens, a professor of political science at Texas State University, is the author of Lochner v. New York: Economic Regulation on Trial. I described the book in 2011 as “The last major scholarly work on Lochner to propound the traditional view of Lochner–that its origins lie in ‘laissez faire Social Darwinism’ and that its consequences were almost uniformly bad–that has lost favor among historians and that Rehabilitating Lochner tries to discredit once and for all.” I added that “comparing and contrasting the two books would make a great assignment for a constitutional history seminar.”

Given that Kens’s book is the most prominent representative of the traditional perspective on Lochner that I set out to rebut, I was naturally apprehensive when I saw that Kens reviewed my book for H-Law. But as Dan Ernst pointed out on the legal history blog, Kens manages to disagree with some aspects of my work without being disagreeable, and, I would add, he also is pretty careful about only attributing things to me that I actually wrote, which I’ve found is often not the case with book reviewers. Interestingly, and in line with my 2011 post, Kens suggests the following: “I urge any interested reader to lay the two versions side by side, follow the references, and discover a version of the story that is closer to historical truth.” Amen.

If you are going to accuse a critic of being “astonishingly ignorant of history,” your response to said critic should not include this:

State and local licensing rules and trade laws governed economic life in detail, down to the size of spigots in wine casks, in some cases.

It was precisely these state and local regulations that the Supreme Court struck down, in Lochner v. New York (1905) and other cases, to promote the goal of creating a single national market.

I’ve seen lots of different interpretations of Lochner over the years, but I’ve never seen anyone claim that underlying Lochner was a desire to create a single national market, and for good reason, because that’s a ridiculous interpretation of Lochner.

Surely someone with even a tenuous grasp of 20th century American constitutional history at least knows that the Justices most sympathetic to Lochnerian reasoning were also generally the most hostile to federal laws that attempted to create a uniform national market. “Astonishingly ignorant of history,” indeed.

(And if this post seems a bit snide, please consider that I’m responding to someone who writes gems such as, “if they were not paid so well to churn out anti-government propaganda by plutocrats like the Koch brothers and various self-interested corporations, libertarians would play no greater role in public debate than do the followers of Lyndon LaRouche or L. Ron Hubbard.”)

UPDATE: Not that it’s worth taking Lind’s “point” reprinted above seriously, but let’s review:

It seems undisputed that the Kochs total spending on political and ideological causes is somewhere around 10-15 million dollars per year. How big a role does this money play in the American political system?

Let’s start with ideological/intellectual causes. The liberal Ford Foundation spends over $400 million a year. The liberal MacArthur Foundation spends about $140 million a year. Liberal billionaire George Soros spends about $150 million a year. Liberals control the vast majority of academic positions in almost every humanities and social science department in every major university in the country, with total budgets in the tens of billions.

If libertarianism is winning, or at least successfully competing, in the war of ideas, it ain’t because the big money is on its side.

I noticed two anecdotes about the late Sen. Frank Lautenberg, both of which were meant to be complimentary but in fact speak volumes about the petty corruption of our political class and how inured to it we’ve become. The first was told by a friend of his who was at a conference of Jewish philanthropists in Israel with Lautenberg on 9/11. Lautenberg “used his pull as a former senator” to get everyone an early flight back to the U.S. so they could rejoin their families. The second, told by Vice-President Biden at Lautenberg’s funeral, related how Biden was once hustling to make an Amtrak train to Delaware, but was told by Amtrak staff, “don’t worry we’re holding the train for Sen. Lautenberg” (who was a big political supporter of Amtrak).

Now, as corruption goes, this is minor stuff. But I’m more disturbed that rather than the rich and powerful (Lautenberg’s friends in Israel and Biden) being embarrassed that Lautenberg (mis)used his influence to inconvenience others on behalf of himself and his friends, they tout these stories in eulogizing them, as if we should all be glad that a (former!) Senator has the “clout” to help his friends at the expense of those less connected. Bleh!

UPDATE: How much more I would have admired Lautenberg if his friends could relate that “we begged him to use his clout as a former Senator to get us back to our families, but Frank was adamant that his friends and acquaintances were no more important than anyone else trying to get back home, and that he wouldn’t abuse his status as former senator on our behalf.”

Long-time readers will recall the controversy over tenure for Columbia professor Joseph Massad. Massad’s defenders argued that his tenure was only in doubt because pro-Israel forces were out to get him due to his anti-Israel views. I wrote in response, after Massad received tenure

It’s often alleged, as in the Finkelstein case at DePaul, that someone’s anti-Israel views prevent him from getting tenure, or otherwise succeeding in academia. Putting aside the merit of those claims, Massad’s case involves exactly the opposite scenario. He landed at Columbia to begin with as a disciple of leading Palestinian activist and Columbia professor Edward Said. And given not just the quality of his “scholarship,” but his hostility to the international gay rights and feminist movements (which shouldn’t matter for tenure purposes, but who are we kidding?), and his haranguing of a questioner at a university event based on his (Israeli) nationality, it’s hard to imagine a university like Columbia tenuring him if he wasn’t a leading Israel-basher, and therefore was able to pose as both a “progressive” and a martyr to academic freedom.

The latest news with regard to Massad is that he wrote an essay about the history of Zionism and anti-Semitism that was so offensive, so preposterous, such complete and utter bullshit that Al-Jazeera decided it had made a mistake in publishing it and pulled it from its website (it later reinstated the article after being criticized for pulling the piece without explanation). It would take an entire book to correct the foolishness of this particular piece, but if you have some knowledge of Jewish and Israeli history, it’s worth looking at to see how low standards can go at an elite Ivy League university.

As I wrote previously,

The good news is that if Columbia had denied Massad tenure, it would have been under severe pressure to hire someone just as anti-Israel to replace him, to prove that its decision wasn’t politically motivated. And that replacement almost certainly wouldn’t hold some of Massad’s most cringeworthy positions and statements, such as: the “Gay International” conspiracy to create homosexuality in the Arab world; that “such practices [as the torture of Abner Louima by NYC police] clearly demonstrate that white American male sexuality exhibits certain sadistic attributes in the presence of non-white men and women over whom white Americans (and Brits) have government-sanctioned racialised power”; that the movie “Exodus tells the story of the Zionist hijacking of a ship from Cyprus to Palestine by a Zionist Haganah commander;” his dismissal of the significance of “honor killings” in the Arab world; and his insistence Israel is analogous to Nazi Germany, and the Palestinians to the Nazis’ Jewish victims [links in the original blog post].

I think it’s regrettable from the standpoint of academic integrity that Massad received tenure, but, in a perverse way, it’s good news for supporters of Israel. We can look forward to many more years of Massad discrediting the “anti-Zionist” cause.

has been published at Reason.com.

It’s not a favorable review–I argue that Katznelson grossly exaggerates the extent to which FDR was stymied from pursuing a progressive agenda by the power of southern Congressmen, and that he is unpersuasive in excusing some of Roosevelt’s worst policies on the grounds that the alternative was to put democracy in grave peril.

But the book is even worse than the review lets on. First, there are many times when the subject at issue cries out for the author to display at least a rudimentary understanding of economics, but he never does.

Second, and more important, while Katznelson’s prose is fine, the book is both a disorganized mess, with little apparent rhyme or reason as to which topics the author covers and in how much detail, and way too long. To take just one very minor but telling example of unnecessary detail that clogs the narrative, we learn that Sen. Theodore Bilbo favored “loud check suits and brash ties.” That would be relevant information for a biography of Bilbo, but what does it tell us about “the New Deal and the Origins of Our Times” (the subtitle of the book)? Overall, the book reads as if Katznelson and/or his research assistants gathered lots of information on a bunch of different topics from a particular historical period, and then basically dumped the information into the book, regardless of whether and to what extent it formed a consistent narrative. As long-time readers know, I think most books written by academics are too long, and this one, in particular, could easily have been cut by at least 40%.

On the other hand, for favorable reviews here is Kevin Boyle in the New York Times, and Robert Kaiser in the Washington Post.

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.