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Saturday, May 18, 2002


NEW SECOND AMENDMENT ARTICLE, from yours truly: In The San Jose Mercury-News today. It's not very obvious in the Web version, but it comes attached with a separate timeline, which should be read together with the main piece.


IN DEFENSE OF DEROY: At the risk of angering one of my kind hosts, I wish to defend Deroy Murdock's attack on anti-ExxonMobil activism. Sasha raises many good points in his post, but I think he concedes too much to the anti-corporate campaigners. There is no doubt that ExxonMobil is a less-than-perfect company. There is also little doubt in my mind that the shareholder activists Deroy criticized are engaged in precisely the sort of good cop/bad cop game Deroy described. Environmental activists attack ExxonMobil for contributing o global warming, and then allied shareholder activists claim failure to meet the environmental demands will hurt ExxonMobil stock. Need proof? The leader of the ExxonMobil Campaign is a full-time environmental activist and the campaign's board includes representatives from organizations that regularly attack ExxonMobil for its environmental policies. The campaign certainly mentions ExxonMobil's alleged complicity in human rights abuses in developing nations, but the same website makes clear that global warming is the reason for targeting ExxonMobil. ExxonMobil is one of the world's largest energy companies, and one of the few that is willing to challenge environmental scare campaigns with any vigor. Indeed, ExxonMobil's failure to capitulate to adoption of the Kyoto Protocol is one of the stated reasons for the campaign.

Sasha is certainly correct that environmental problems are real. But it is telling that the study he links to focuses on the environmental harms of too little development, no too much. e "pollution" mentioned in the study's headline is bacterial, not chemical. Discouraging ExxonMobil and other corporations from operating in developing nations won't solve such problems. To the contrary, investment by multinational corporations can help alleviate the hellacious environmental conditions from which poor nations suffer. As Sasha well knows, wealthier is healthier, and richer is cleaner. Lack of access to clean drinking water and adequate sanitation are among the leading killers in poor nations, and they are far greater threats than global warming.

One can fault Deroy -- and op-ed writers generally -- for not explaining every point, but that is a limitation of the form. Deroy's short and punchy piece provided enough background to make his point. It did not address every nuance -- indeed it couldn't have and remained both short and engaging. Deroy's commentary was a scant 712 words -- perfect op-ed length. Sasha's critique, while very thoughtful and far more thorough, was nearly twice as long. Deroy's prose was colorful, but it was far from Coulter-esque. IMHO it made its point, and did it well. In fact, I think I should buy more ExxonMobil stock.


NUGE ROCKS! Read the interview. You can even buy the cookbook.


I WAS HERE FIRST: Back in April, I posted a story of what I did on my summer vacation -- how, while clerking at the Institute for Justice, I worked on an eminent domain case in New London, Conn., where we won and prevented some of the homeowners we represented from losing their homes. (We won on some and lost on others, but the others get to keep their homes pending appeal.) Now, read Mike Lynch's new report on recent New London developments in Reason Online.

Part of the problem with these eminent domain cases -- that is, our eminent domain cases, where we actually try and change the law -- is that you rarely win as broadly as you'd like to. IJ won an eminent domain case against Donald Trump, but the victory was on narrow grounds -- there's nothing wrong with taking private property for casino development, which is a public use if the legislature says it's a public use, but in this case the court wasn't sure it was really a public use because there were no guarantees (like covenants attached to the property) that the widow's house would really continue to be used for a casino parking lot.

Similarly, here, the New London Development Corporation, which lost because it only had speculative plans as to the plaintiffs' properties (not because taking property to give to private developers isn't a public use, not because the city gave excessive discretion to a private organization to decide whom to evict), has now decided that it can try to take the properties again, after making firmer plans with the Coast Guard to locate their museum there.

Says Susette Kelo: 'As I read [the decision], I realized that I had won the right to stay, but really only to fight again. . . . My concern is that they will come back with a legitimate plan and I don’t know what will happen.' Note that this means 'legitimate' not in the sense of 'morally sound' but in the sense of 'procedurally adequate.' As Michael Lynch writes: 'why, in a time of war [as the Coast Guard is doubling its efforts in homeland security], should [the Coast Guard] be spending its scarce resources on a damn museum?'

Read about indigenous peoples being evicted for the greater social good in Brazil, in India, Vietnam, Indonesia, and the Philippines, in Malaysia (for dams), and in Sri Lanka (for a national park). Also note the displacement of Mexican-American communities in Los Angeles (Chavez Ravine) to make way for Dodger Stadium (I presume these guys at least got paid face value, but look, they didn't want to go). Then read the following:

'What I find ironic is everyone saying what they want to do on this property,' says Matt Dery . . . whose family has lived in its Fort Trumbull homestead since 1901. 'What they forget is that there is someone else living there -- us.'

Kelo understands why the Coast Guard would want her land. 'They want my property as much as I do,' she says. 'The only problem is that I was here first.'

UPDATE: Reader Francis Logan takes me to task on three grounds.

  • First, Logan notes that the victory was not against Donald Trump. "Since Mr. Trump is not a governmental entity (despite any beliefs he may have about himself), the victory was over the [Casino Redevelopment Authority], not Mr. Trump, as the IJ website clearly points out. However, beating up a tyrannical developer sounds better, doesn't it?" This is technically true. But as the IJ site itself says: "Trump convinced the state agency to use its 'eminent domain' power to take Vera's home so he could construct a limousine parking lot for his customers -- hardly a public purpose. And unfortunately, cases in which government agencies act not as protectors of constitutionally guaranteed rights, but instead as agents for powerful, private interests, have become all too common." In this case, it was perfectly clear that Trump and the CRDA were on the same side; so while the victory clearly wasn't against Trump personally, Trump is a perfect accurate shorthand for who lost in the case.

  • Second, Logan found my reference to "our" eminent domain cases snide (diminishing the efforts of other eminent domain lawyers) and also placing the concerns of IJ above those of the client. All I can say is that I'm sorry if I conveyed the first impression; all I meant by it was that I have no idea what other eminent domain lawyers are doing, but I know that some such lawyers mainly argue issues of just compensation (IJ doesn't at all) and aren't primarily on an ideological crusade to change the law (IJ is). As for the second impression, of course the client is primary, but there's nothing wrong with a lawyer's referring to a case he's working on as "his" case (rather than his client's).

  • Third, Logan asks what my own view is, and argues that state constitutions and legislation, not judicial policy, should place limits on "public use," since "libertarian philosophy is based on the notion of limited government [interference], from all branches of [government, including the judicial branch]." My brief answer: A full discussion of what eminent domain is acceptable is a subject for another post. But at the very least, the concept of "public use" should be substantially tightened up, for instance, by requiring that any "public use" be in fact open to the public (this would allow for schools, roads, and courthouses, but not private housing, offices, or parking lots). As for who should set that policy, I don't have much of a problem with courts deciding what a public use is. Libertarianism isn't about reducing government "interference," but about maximizing people's rights; government interference in the form of striking down government actions that violate people's rights may be pragmatically problematic (too much activism, even libertarian activism, may open the door to bad activism down the road) but not morally so.

Friday, May 17, 2002


GOCHIRA: Excellent columnist Deroy Murdock errs somewhat in his recent article on the attempted greening of ExxonMobil. 'Environmentalists,' he writes, 'are painting Earth's largest oil producer as the Godzilla of global warming'; meanwhile, shareholder activists 'play 'good cop' on the inside,' claiming that 'they simply want ExxonMobil to mend its ways to boost shareholder value.' The article disapproves of both groups... but let's see why:

1. The environmental activists are 'Trustafarians' (learn a new word every day), 'puppet-wielding rabble rousers' and 'rowdy anarchists who survive on veggie burritos.' More substantively, Greenpeace has a boycott campaign; the protesters themselves study 'ways to raise hell' at the stockholders meeting, hold seminars on exposing corporate greed and or women in the Zapatista struggle, and promise a mock trial of People v. ExxonMobil and a 'festival of resistance.' Greenpeace accuses ExxonMobil of 'burning the planet for profit' and Radical Encuentro says ExxonMobil has already 'destroyed the environment.'

So far, so good... but we are meant to disapprove of these activities? I presume we are, but the article doesn't tell us why. This isn't just me speaking as though I were critiquing Ann Coulter on her rhetorical style, though both the article's and these protesters' rhetoric is somewhat over the top. Even if we don't generally mind corporations (I don't), don't value the environment above human ends (I don't), can accept the destruction of some environmental resources for a highly useful product like oil (I can), are inclined to think that American environmental regulation is somewhat excessive (I am), and mistrust the motives of some prominent environmentalist thinkers, that doesn't mean we should reject the Exxon protesters out of hand.

Environmental regulation has been, at best, a somewhat mixed success story. Government has failures; many regulations are stupid and can be improved; not everything has to be done at the federal level; not every regulation has to be enforced punitively; setting up market-like mechanisms or even not regulating at all and protecting property rights strongly can often do just as well.

This is all true. But environmental problems do exist; pollution can either kill people or otherwise harm their health; and many of these problems are caused by individual polluters, some of them large corporations, some of them in far-off countries with weak environmental regulation (note: when individuals cause pollution which actually kills people, preventing it may be a good libertarian goal) or with dictators who are perfectly happy to sacrifice their citizens' lives for oil revenue.

ExxonMobil has been accused of complicity in human rights violations in Indonesia and in Chad-Cameroon, and didn't sign on to an initiative to curb human rights abuses at oil and mining facilities in developing countries. As for the environmental impact of ExxonMobil's activities, there's, of course, the Valdez oil spill (but see Jeff Wheelwright's book Degrees of Disaster, arguing that Exxon acted responsibly in the wake of the spill and that the natural recovery of the Prince William Sound was more effective than human cleanup methods) and, I'm sure, plenty else. This may be all bunk or it may be true, but at the very least the claims are nonridiculous; I would think that we'd need some analysis of whether the protesters had something going for them before passing judgment on them.

2. And what about the shareholder activists? We apparently don't trust them. They advocate lobbying for 'mandatory emission controls'; 'never mind,' the article says, 'that new regulations will increase the company's costs while eroding its freedom.' But this is quite nonobvious; big business has a history of pushing for stringent regulations, since regulation increases the cost of entry into the industry and reduces competition, just as small business has a history of pushing for stringent regulation of big business. Not that this exonerates them, but if indeed they're really pushing for profitable reforms that involve regulation, we should be criticizing them on entirely different grounds.

The shareholder activists apparently believe in global warming, while management doesn't; while I agree that climate change is a complicated matter (see here for a plain-English summary of a recent National Academy of Sciences report on the matter, by my trustworthy friends at the Reason Public Policy Institute), global warming is uncertain, not a hoax. We can criticize the activists for being too sure of themselves and not appreciating the complexity of climate policy, but their disagreement with management over global warming is just that, a disagreement; one can take a stronger view than ExxonMobil management on global warming and not be an idiot.

The shareholder activists 'suggest[] that ExxonMobil could suffer 'reputation risk' including 'the diversion of management time' that must be devoted to environmentalists' complaints. How circular,' the article continues. The shareholder activists 'attack ExxonMobil, then criticize it for being distracted. This is akin to socking someone in the eye, then complaining that his screams disturb the peace.' Not entirely fair, since the shareholder activists didn't sock the company. Reputation risk is a true cost for corporations (see here -- interestingly enough, discussing a report by Andersen!), and anti-ExxonMobil protests would continue in the outside world regardless of shareholder activism. Whether the inside and outside groups of activists are in cahoots is irrelevant; the important question is whether reducing reputation risk is cost-effective, and again, this is all quite nonobvious.

Let me skip to the end: 'if this makes sense, corporate managers will not need their arms twisted to behave accordingly. That's why God created CFOs.' God also created, however, corporate self-dealing, which is the major problem of the corporate form. Econ 101 deals in black-box 'firms,' perhaps a company with a single proprietor who sees the most profitable thing to do in the world and then does it. But in the real world, projects take a lot of money. To raise all that money, you need to find millions of small investors to buy ownership stakes in return for dividends. The investor owners can't run the company themselves, so they elect a board which appoints managers.

Unfortunately, the investors can't monitor the managers very well, so corporate self-dealing abounds. Corporate officers build expensive buildings, buy jets, get corner offices, give themselves huge salaries and golden parachutes, go on junkets. Hostile takeovers exist as a way of disciplining management, but what with the the Williams Act and the poison pill, that discipline is somewhat weak. (Exxon is incorporated in New Jersey (see its Form 10-K), and I don't know what New Jersey corporate law is like, but they teach us Delaware law in law school, so I'm assuming they're similar.)

The result of all this is that corporate managers don't always have strong incentives to discover the most profitable way to run the company. Shareholder activists may have good ideas or they may have bad ones -- but discounting shareholder activists on the assumption that if 'it were profitable, CFOs would have figured out' may not be the best way to go. (And at any rate, at least in Delaware, shareholders are quite limited in what they can tell the company to do against the wishes of the board. They can vote in their own board members if they have enough support, but they generally can't force a hostile board to do their bidding, even if they have enough votes for a resolution. So the impact of these activists will probably be minor, as it is in most companies.)

This has all been a somewhat long way of saying that the environmental activists may have a point about ExxonMobil or they may not, but I didn't find out from reading this article; and the ExxonMobil shareholder activists may be acting in the company's best interests or they may not, but again, I didn't find out from this article. All I know is that rhetorically dismissing either group without studying their claims isn't the answer.


MIDEAST MEDIA WATCH: My colleague (and former junior high school classmate) Jonathan Zasloff -- who, unlike me, actually knows stuff about the Israeli-Palestinian situation -- passes along the following:
     Newspapers around the world routinely blared the news of the Likud Central Committee's vote rejecting a Palestinian state, calling it a "humiliation" of Israeli Prime Minister Ariel Sharon and suggesting that Israel is committed to maintaining the occupation forever. They have been much less interested in the upshot of the last three days, i.e., the vast majority of Israelis still believe in land for peace, and nearly two-thirds of them have no confidence in former Prime Minister Benjamin Netanyahu, who brought the vote before the central committee with the intention of embarrassing Sharon.

     More importantly, though, the media has overlooked the most important Israeli political story of the week: current Defense Minister and Labor Party leader Benjamin Ben-Eliezer announced his own peace plan, which essentially is the same as the Clinton Plan of December 2000. Ben-Eliezer's plan contemplates Israeli withdrawal from the "vast majority" the West Bank and Gaza (i.e. 97%+), dismantling of dozens of settlements, maintaining only those settlements close to the 1967 borders, land swaps to make up for territory lost, and giving the Palestinians a capital in East Jerusalem.

     You would think that such a dramatic and far-reaching proposal by the current Defense Minister, supported by the Foreign Minister, and backed by virtually his entire party (which is after all the largest party in the Israeli Parliament) would be news. But you would be wrong, particularly in Europe.

     The international press has essentially ignored Ben-Eliezer's ideas. In Britain, the Guardian and the Independent, who can predictably be counted on the swallow anything that the Palestinians tell them (both reported the Jenin "massacre" as obvious facts and so far has refused to apologize), have completely failed to report this major initiative.

     Why the silence? There's an obvious reason: the international press (particularly the Guardian and the Independent) are heavily invested in the idea that the "brutal Israeli occupation" is the cause of the current war. It's so simple, they say: end the occupation and peace will break out.

     When major Israeli political figures essentially offer to end the occupation in exchange for the Palestinians recognizing the right of a Jewish state to exist, but are met with silence and rejection from the Palestinians, it doesn't compute. So they keep telling their readers about how the occupation has caused all the problems and pretend as if the story never happened.

     According to this theory, Ben-Eliezer should be a hero now. Palestinians should be praising him to the skies. But they aren't, for a very good reason: They aren't fighting for an end to the occupation. They are fighting for an end to Israel.

     There simply is no Palestinian peace movement to talk to. It is deeply embarrassing for the Palestinian leadership to keep rejecting repeated Israeli peace offers because it exposes their true goals. So they just ignore it and hope that everyone else does, too. And thanks to the press, the strategy appears to have worked.


SMALL FACTOID I FORGOT TO MENTION ABOUT THE NUREMBERG FILES CASE: A reader reminds me that I neglected to mention an interesting fact about the Nuremberg Files case -- the dissenters were liberal Democratic appointees Reinhardt and Berzon, and conservative Republican appointees Kozinski, O'Scannlain, and Kleinfeld. A couple of people theorized to me that any position signed onto by both Reinhardt and Kozinski must be right; I wouldn't assert it as a certainty, but it's a good bet (especially since they're two of the smartest court of appeals judges in the country, though Kozinski is almost always right and Reinhardt is almost always wrong).

     For those who are interested in strange identity politics theories, note that four of the five dissenters are Jews (I won't tell you which one isn't). Doesn't show much, in my view, except that we're just a bunch of troublemakers . . . .


A MOVABLE FEAST: Despite the Boycott France and Pave France campaigns, I'm off to the city of luuhv. Actually, now that I'm done with finals, I'm off to Munich and Paris for two weeks, with a brief detour to Prague to attend a friend's wedding; I leave tomorrow evening. My girlfriend, who will join me in Paris, is practicing saying in French, 'I'm not Jewish, I'm Canadian.' Perhaps I will locate a nice Internet café and post postcards from the road.


OUR NEW HIT COUNTER SOFTWARE (just installed yesterday) allows us to officially welcome our visitors from Croatia, Lebanon, and Turkey. Oh, yeah, and those other countries, too.


AGAIN WITH THE GUNS? I've got another Second Amendment op-ed coming out Sunday. Will post the URL when I get my hands on it.


     Roman Catholic bishops should avoid telling congregations their parish priests sexually abused someone if the bishops believe the priests will not abuse again, a Vatican official said.

     The Rev. Gianfranco Ghirlanda also said in an article to be published Saturday that church leaders have no legal or moral responsibilities if such abuse does occur.

     The Vatican appeals court judge insisted church leaders must protect the "good name" of their priests and only a guilty cleric truly is responsible for his actions.

     "From a canon law perspective, the bishop and the superior are neither morally nor judicially responsible for the acts committed by one of their clergy," said Ghirlanda, dean of canon law at the Pontifical Gregorian University in Rome. . . .

     Ghirlanda argued that a priest whose past acts of abuse were revealed to his congregation "would be totally discredited in front of his parochial community and in fact would be blocked from any effective pastoral action."

     "If the bishop fears the priest could again commit a crime, then he must not entrust to the priest a parish, but must act in a different way." . . .
Appalling. Just appalling.


MORE BETTER URBAN MYTHS: From Tim Blair on FoxNews.


FOLLOW-UP ON NAME-CALLING: Reader Geitner Simmons, an editorial writer at the Omaha World-Herald, writes:
     My 11 years of experience in the editorial writing business lead me to strongly support your point about the counterproductive nature of Coulter-style rhetoric. . . .

     When a writer advances arguments while refraining from impugning the integrity of those on the opposite side of an issue, that writer will build up capital among thoughtful readers. That capital, in the form of reader respect, can later come in handy for a writer (or a newspaper's editorial page staff) when taking an unpopular or unexpected position.


FEAR: Matt Welch has had an interesting exchange with others, including Eve Kayden (in her blog) and Max Power (in comments on Matt's blog), about people being afraid to speak their mind for various reasons.

     A few thoughts:
  1. Even setting aside the risk of lost business opportunities (including losing one's job), humans are gregarious creatures who highly value the esteem of their fellows. People don't want to be ostracized, or even condemned, as rude, foolish, ill-informed, or morally misguided. This often leads people to refrain from speaking their minds.

  2. This is sometimes good, because it keeps people from saying things that are rude, foolish, ill-informed, and morally misguided; it often leads to fewer people people being insulted, and fewer false rumors and bad ideas being spread. We take these benefits of "thinking twice before you speak" for granted, but they're very real; the world would be a worse place if people never thought of their listeners' reactions to what they say.

    Of course, it's also sometimes bad. First, it sometimes suppresses speech that is accurate and important, but that is frowned upon by the majority -- or even a small minority. Second, it leads even some good beliefs to become unchallenged orthodoxy, and thus makes them much less powerful than they should be and would be if they were constantly challenged and rebutted (John Stuart Mill's point).

  3. This makes it very hard to make any really general statements about this tendency, except that it's sometimes good and sometimes bad. I think, for instance, that people should try to avoid calling this phenomenon by value-laden terms such as "self-censorship," since that suggests to many that it's always a bad thing.

    One can fault (or praise) the phenomenon in specific situations, because of the specific aspects of these situations. For instance, if a law school community has a tendency to ostracize people who oppose race-based affirmative action, that's bad, because it deprives the community of a healthy debate. On the other hand, if an astronomy department has a tendency to ostracize people who praise astrology, or call each other by racial epithets, or spread inaccurate or offensive rumors about each other's sex lives, that's probably good.

  4. One item from my admittedly limited experience with this: One can often (though not always) diminish (though not eliminate) the adverse social effects from making certain ideological points, and it pays to think hard about this before either making one's point or deciding not to make it.

    Politeness helps. Having a thorough command of the facts and the argument helps. Pointing out the importance of the community -- especially an academic community -- being open to serious discussion helps. Demonstrating to the audience that you're calm and reasonable, while the other side is shrill and intolerant of reasonable arguments, helps. An obvious point, but I think an important and often-forgotten one. I call it "Be in their face, but with a breath mint."

  5. Finally, let me return to what I think is the heart of Matt's original post, which is the matter of courage. Yes, sometimes, especially when your job is on the line, you need to trim your sails to the prevailing winds -- that's life. And, even when it's just social peace that's at stake, we need to choose our battles, and be understanding of those who have decided that discretion is the better part of valor. But especially for those of us who are fortunate to have some degree of social and professional security, there are times when we need to stop building our capital, and start spending some.

    Thank God that we in America today don't have to be Andrei Sakharovs or Vaclav Havels, and I hope we never will. But maybe that's all the more reason why we should resolve to take some occasional social risks, realizing how comparatively tiny they really are. Maybe thinking how much others have risked to speak their minds -- once they had recognized, on mature reflection, that they were in fact right and the pressures arrayed against them were wrong -- should steel us to action in some of those times when silence seems the easier course.


CHOMSKY / SOLZHENITSYN -- A COMPARISON: A great Damian Penny piece demolishing a Guardian article that compares Noam Chomsky with Alexander Solzhenitsyn. (Via Matt Welch.)


"HE WOULD HAVE GOTTEN AWAY WITH IT IF IT WEREN'T FOR THOSE MEDDLING VOTERS": Chris Suellentrop in Slate criticizes Carter's free-lance post-presidential diplomacy:
Unlike John Quincy Adams and Theodore Roosevelt, ex-presidents who remained active in American politics after their terms expired, Carter has set himself up as separate from American politics. He says he aims to work in areas where he doesn't interfere with the White House or the State Department. But he has no problem interfering when it suits him. His efforts to end the trade embargo in Cuba may be laudable, for example. But Carter's position is at odds with the U.S. government's, and the American system is designed for only one president, and one foreign policy, at a time.


MORE ON THREATS: Brian Linse argues that the speech in the Nuremberg Files case was rightly punished, and links to an article by Prof. Sherry Colb (whom I much like, by the way).

     But what I didn't see in either Brian's post or Prof. Colb's article was any discussion of the NAACP v. Claiborne Hardware Supreme Court case. I agree that as a matter of first principles, there'd be a decent case for punishing the speech here (though the difficulty is that this would jeopardize a wide range of speech, such as harsh criticism of strikebreakers, alleged environmental criminals, boycott violators, and so on, that is said against a backdrop of violence by third parties). But the problem is that we have a precedent here, and I can't see any way how the precedent can be distinguished -- how the speech in the Nuremberg Files case could be found unprotected given that the speech in Claiborne was found protected.

     This was the point of Judge Kozinski's opinion in the earlier panel decision, and of his dissent in the most recent decision; I also discuss it at some length in my Wall Street Journal op-ed. If Brian or others can explain how the Ninth Circuit's decision could be reconciled with Claiborne, I'm all ears (or e-ears). But I don't know how one would go about doing do that.


VANDERBILT AGGRESSIVELY RECRUITING JEWS: Reader Damon Haas passes along this story (he mentions that a recent Thomas Sowell column led him to it):
Vanderbilt University, an elite institution in the middle of the Bible Belt, is aggressively recruiting Jewish students in a campaign that is making some Jews uncomfortable.

     The university has portrayed the move as part of a broad effort to increase diversity. But the administrator in charge of the effort acknowledged that Vanderbilt is also trying to tap into a group of students who tend to score highly on the SAT.
I'm not praising, I'm not blaming, I'm just reporting the facts. But as to one item I can't help myself -- "'It dredges up stereotypes and issues we really don't want on the table,' said Jessica Keimowitz, director of college counseling at the New Jewish High School of Greater Boston." Really, Jessica? Is it really true that we don't like this particular stereotype? Tell that to our mothers . . . .

UPDATE: Reader Adam Bonin points out that the Wall Street Journal also wrote about this on April 29.


DIVERSITY: Reader Israel Lipschitz e-mailed me the following, which I really liked and thought were worth passing on.
     I think that Lithwick hit the nail on the head -- "diversity" was always just a thinly disguised code word for "race preference" because of the way Powell wrote in Bakke. Only the naive would take "diversity" to really mean "diversity" in the dictionary sense of Albanian mountain climbers, Japanese vegans, etc. Race is such a sensitive topic in American history, it has always been treated euphemistically, right from the very start, when the Constitution referred to slaves as "other persons" in the 3/5ths compromise. Further, it is part of the tradition that the euphemisms have to be changed periodically as they wear out . . . colored people, then Negroes, then black, then African American, etc. So, once "affirmative action" had worn out its welcome, it had to be renamed "diversity".

     Diversity was always a thin covering and now it has been shredded to bits. The rigged Michigan appeals court decision is its last stand before it falls entirely. The odious new corollary of "critical mass" is particularly indefensible and surely a bridge too far. Read the dissent in the Michigan case -- one can hope that the Supreme Court will take this as a first draft of Justice Thomas's eventual majority opinion. "Diversity" as defined by U. Mich. Law School is either being a white person who wins an Olympic gold medal (no silver medalists for us!) or being a garden variety favored minority. Either one will do. One point awarded for writing a superior essay, 20 points for having Puerto Rican ancestors. One would have thought that they would have taken more pains to cover up the racial element, but apparently with friends like the those on the appeals court, the university administration felt that it could act boldly and openly -- after all, affirmative action is a "good thing" in their mind and nothing to hide or be ashamed of.

     The bottom line is that racial preference has (though short of a majority) a massive constituency in this country, starting with the preferred racial minorities themselves and continuing into the liberal establishment. Constititutional or not, expected Supreme Court ruling or not, do not expect it to go down without a fight. It will re-emerge under new names and in new disguises regardless of how the Court rules. For example, we are already seeing "Top 10%" plans, which require selective state universities to take the top 10% of each high school class. Given the segregation of American urban high schools, this is simply "affirmative action" by another name. Expect to see more of these schemes.

     The funny thing is that, left free of explicit race preference, we would emerge with a meritocracy that IS racially diverse, just not the "right" races. Recently, I attended a ceremony for those (I am proud to say my son among them) 7th and 8th graders who scored in the top 25% on the SAT, a program administered by the gifted children's program of Johns Hopkins University. Some of the 12 year olds had scored 700 or higher on each section, an impressive achievement even for a high school senior. Although Pennsylvania has a generally small immigrant community compared to California, the award recipient group was a gorgeous rainbow of WASP, American Jews, Soviet Jews, Chinese, Koreans, Indo-Pakistanis, etc. Yes, blacks and hispanics were in short supply, but then again, so are white people in the NBA -- so what? These were the most talented in this particular category. One can only hope that this kind of true diversity will undermine the other, phony kind.


WHO CARES? The World Health Organization (WHO) wants to join the ranks of nanny-state bureaucracies with a new campaign against alcohol, tobacco, obesity, and "excessive consumption of fatty, sugary and salty foods." "The world is living dangerously, either because it has little choice, or because it is making wrong choices about consumption or activity," declared WHO Director-General Gro Harlem Brundtland at the opening of the World Health Assembly this week. The NYT also reports on the creation of a private International Obesity Task Force. One would think WHO has better things to do. A report released last week estimated that 5,500 children a day die from diseases caused by unsafe drinking water and inadequate sanitation. WHO wrote the report? Exactly.
For more on this subject, see the Junkman.

Thursday, May 16, 2002


COLOR NO SUBSTITUTE FOR QUALITY: I am a big fan of colorful rhetoric. Caustic wit and the clever put-down are effective and useful weapons in political debate. Even the occasional ad hominem -- while no substitute for careful argument -- can add spice to the well-executed polemic. Nonetheless, like Eugene, I find no "satisfaction" in Ann Coulter's latest screed. Coulter at her best is colorful and entertaining. This column, however, is Coulter at her worst -- overwrought and overdone, and therefore quite unpersuasive. The problem is not that Coulter used "colorful rhetoric." Rather, in this instance she used it so poorly.


THE BRICK TESTAMENT: I, just, can't explain. Just take a look. Via Andrew Sullivan.


DIVERSITY: Nice Slate piece by Dahlia Lithwick -- a race preferences supporter -- on why the "diversity" rationale for preferences doesn't work.

     Incidentally, a few years back I proposed a somewhat unusual criticism of diversity, which at least has the merit of brevity. A brief excerpt:
     Imagine the following statement from a public law school's admissions office:
     Much to our regret, we have found that many large religious groups -- for instance, fundamentalist Christians and devout Catholics -- are grossly underrepresented among our students compared to the public at large. We feel this deprives our students of the experiences, outlooks, and ideas that a diversity of represented religions can provide; it impoverishes discussions of such important topics as the law of abortion, the Establishment Clause, homosexuality, and others.

     We will therefore consider religion as one of the factors that can contribute to diversity. As it happens, we find we already have many Jews, many atheists and agnostics, and many relatively unobservant Christians and Buddhists. Because of this, we will give a preference to devout Catholics, devout Protestants, devout Buddhists, Muslims, and members of less common Christian sects.
     If your reaction is "Wow! Sounds great," this argument probably won't convince you of much . . . . But if it troubles you -- as it troubles me -- why do you find it troubling? . . .

     What justification is there for including race . . . in the consideration, but excluding religion? It couldn't be that we're reluctant to consider religion because it is a suspect classification -- the same is true of race. Perhaps it's that claims about religion are subject to falsification or exaggeration, but so are claims of compassion, overcoming disadvantage, or ability to communicate with the poor. Maybe it's that there is no perceived underrepresentation of various religious groups -- that the school will get a good deal of religious diversity in any event -- but on some campuses and in some departments (and certainly on some faculties) this underrepresentation does exist.

     So excluding religion as a factor but including race might suggest that the program is not narrowly tailored [to the interest in promoting intellectual diversity].

     It might also suggest, as underinclusiveness often does, that the actual purpose of the program isn't really the stated purpose; here, that the real purpose isn't actually diversity of experiences, outlooks, and ideas as such, but rather something else -- perhaps just racial or ethnic diversity, a justification that Powell's Bakke opinion specifically condemned.


ALMOST FAMOUS: Timothy Noah in Slate criticizes nationally prominent Republicans' general silence about Wayne LaPierre's comparison of a pro-gun-control leader to Osama Bin Laden. Still, he acknowledges that some conservative bloggers did criticize LaPierre, and suggests that "A very generous definition of 'nationally prominent Republican' might include [Andrew] Sullivan, . . . [James] Taranto" -- and the coauthor of this very site! What's more, we are described as "the three marginally famous GOP-ers." Thanks, Tim, but it would take a very, very, very generous definition.


THE BEE: Reader Kenneth Summers says he asked the Sacramento Bee people, and got this response: "Actually, it derives from 'busy as a bee' and the idea that bees are industrious critters. Was adopted in the Gold Rush era by the paper's founders as symbolic." OK, then, assuming that's accurate, that's one more mystery demystified. Next?


SATISFACTION: A very nice post by Robin Roberts disagrees with me about Ann Coulter: "At worst, Ann Coulter is living up to her reputation for colorful rhetoric. While Prof. Volokh may have a point that the rhetoric is unproductive, there is a certain satisfaction is seeing the return volley."

     Two thoughts. First, I think that conservative columnists' references to the "left-wing toilet" aren't just unproductive: They're counterproductive, because they alienate potentially sympathetic moderates, and they in some measure taint the whole movement in the public's mind. Ask yourself -- when you hear your political adversaries stoop to empty insults like this, do you feel that they're helping their cause or hurting it? Well, the same goes for your political friends.

     But, second and more important: Should we be deriving satisfaction from hearing our allies engage in this sort of name-calling? This isn't wit; this isn't humor; it's just insult. Shouldn't we at least aspire to being a little better than that?


THE LAW REVIEW: The fact of the following book has been making the rounds in my small world for some time, but I believe it bears sharing with those from distant galaxies far, far away.
Grayson has just started law school at the University of Chicago with dreams of a prestigious legal career and, one day, running for public office. The gateway to these opportunities is membership on the exclusive legal journal, the Law Review. While vying for membership on the journal, Grayson becomes romantically involved with one of its leading editors, the elusive Aris. He soon finds himself in the middle of the editors' ever escalating fight for control of the Law Review - and for Aris's bed. When one of the editors is found lying in a pool of blood, Grayson realizes that he knows too much. Torn between conflicting loyalties, he finds his promising future, and even his life, in jeopardy.
     Now, my stint on the Chicago Law Review was substantially less violent and sexual than the vision offered by The Law Review. Perhaps when author, and '95 Chicago Law grad, Scott Gaille, was on the Review, he knew how to create his own mysteries.

     Gaille reports (and I have no reason to doubt) that
The independent literary magazine Fore Word has reviewed my novel as follows: "Readers who enjoy novels by Scott Turow and John Grisham should find The Law Review a worthy addition to their bookshelves."
Whatever those readers should be enjoying however, will only say that "Customers who shopped for [The Law Review] also shopped for this item: The Nanny Diaries by Emma McLaughlin, Nicola Kraus."

     Either these readers already own Scott Turow's One L (with its little known, melodramatic subtitle: "The Turbulent True Story of a First Year at Harvard Law School"), or there is a group of readers (don't do that, son, don't romanticize them)who believe that careers are best selected by reading the fiction they engender.

     This case aside, I love the "readers who are reading this are also reading that" function of Amazon, however incomplete it may be. I don't buy all of my books online, or all on Amazon, nor are all of the books I buy online for me, but the service provides some amount of information. A friend once made the seemingly obvious but brilliant suggestion that Amazon merge its database of reader's preferences with an online dating service.

     Give me a man who is reading Solzhenitsyn's Cancer Ward, Jennifer Weiner's hilarious Good In Bed, and The Dictionary of Insurance Terms, and I'm there. Of course, we don't want this model to be taken too far:

"Men who have enjoyed dating Suzy have also enjoyed dating Kelly and Sarah . . ."


GATAHOLIC UPDATE: Reader George Byrd suggests, as a term for the phenomenon -- along the lines of you-know-what -- "Trendy-slang-neologistic-pop-suffixication" (but without the hyphens).


TAP GETS IT RIGHT ABOUT COULTER EXCESSES: The American Prospect rightly upbraids Ann Coulter's characteristically over-the-top piece on the Second Amendment. Substantively, Coulter's critique of a New York Times piece on the Second Amendment makes some good points. But are those points strengthened or weakened by the article's saying "Indeed, the one guy the Times dredged out of the left-wing toilet willing to provide tepid endorsement to their bunkum . . ."?

     When I read vitriol like that, I just turn off, and I think lots of other people do, too. Name-calling doesn't persuade anyone (even those in the middle who might be open to more reasoned persuasion). Rather, it poisons the well for civil discourse, and injures both one's own credibility and in some measure the credibility of the broader movement to which one belongs.

     I feel a bit silly even raising this, since it's such an obvious point, and since I don't want to seem like a goody-two-shoes. But when people on my side say such things, I think it's important that I speak up about it, and not just leave it to TAP to do so.

UPDATE: A reader writes me a message with no text, but the subject "Re:COULTER, The woman has balls. where are yours?" This just demonstrates my point, it seems to me. What is this message supposed to do? Persuade me? Show me the error of my ways? Presumably I don't think that name-calling is a sign of courage (which is what the message must mean by "balls"). Maybe I'm wrong, but are messages like this likely to change my mind? (Of course, the sender might not want to change my mind, but might just be trying to vent his anger. But one would hope that columnists who are writing for a public audience would be somewhat more goal-directed.)


MORE ON PRIVATE PRISONS: Through Instapundit, a link to Davis Under Fire for Guards Contract, an article by Michelle Guido of the San Jose Mercury News about a sweetheart contract Gov. Gray Davis of California made with the public prison guards union (incidentally, one of the largest campaign contributors in the state, both to Davis and his Republican predecessor Pete Wilson):

The state's new contract with the California Correctional Peace Officers Association, which has given Davis more than $2.6 million since 1998 -- including $251,000 in a single March contribution -- provides the state's prison guards with a more than 30 percent raise by 2006 and some perks critics say are unparalleled in other state labor contracts, the Mercury News has found. For example, veteran guards can now get at least $130 a pay period in 'physical fitness incentive pay.' . . .

Controversy over the governor's ties to the 27,000-member guards union began to escalate in January, when he agreed to close five of the state's private, minimum-security prisons after their contracts with the state expire in June. The governor's critics said that was payback to the union, which has long considered the private prisons low-cost competition. Guards at the private prisons are not unionized. Less than a week later, Davis signed the legislation that will give the guards at least a 30.2 percent pay increase through 2006 . . . .

This connects with an argument I make in my recent Harvard Law Review article, A Tale of Two Systems: Cost, Quality, and Accountability in Private Prisons, 115 Harv. L. Rev. at 1872-73 (footnotes omitted):

What about the specter of corruption? Industry lobbies government, and regulatory agencies can be captured by the entities they regulate; the private prison industry is no different. Not only may private prison companies lobby for preferential treatment, they may also, as entities that directly profit from incarceration, influence substantive criminal legislation by supporting tough-on-crime candidates, scaring the public about crime, and advocating tougher sentencing. The story is plausible, but it does not explain current levels of prison privatization or modern-day demand for more and cheaper prisons because the forces leading to the explosive growth of the prison population substantially predate the modern growth of the private prison industry.

Moreover, though private prison companies do lobby state and federal governments, so do prison guard unions, which also benefit from increased incarceration rates and prison construction. Prison guard unions generally contribute vastly more money to politicians than do private prison companies. The California prison guard union, for example, endorses and contributes millions of dollars to state candidates and 'is among the largest campaign donors in the state.' Does privatization further distort criminal policy by replacing a single strong voice for incarceration with two voices? Or does the second, private, voice weaken the first by generally weakening the underlying public sector union? The answer is unclear.

Quite apart from whether political influence peddling distorts criminal policy, does such peddling weaken the case for privatization? Not necessarily, particularly when one considers different kinds of influence peddling: corruption and patronage. If a politician is corrupt and uses his power to extract money from the contractor, then privatization is likely to be inferior to public provision. Conversely, if a politician is involved in patronage and uses his power to pursue other political objectives, like serving politically powerful interest groups such as public employees’ unions, private provision is preferable.

The corruption/patronage distinction is taken from Oliver Hart, Andrei Shleifer & Robert W. Vishny, The Proper Scope of Government: Theory and an Application to Prisons, 112 Q. J. Econ. 1127, 1144-47 (1997) (click here for an earlier, working-paper version of this article).


FREEDOM OF SPEECH AND TRUE THREATS: If you want a really thorough treatment of this subject, check out an excellent article that was written by my student Jennifer Rothman, Freedom of Speech and True Threats, 25 Harv. J.L. & Pub. Pol'y 283 (2001) -- the Web version is pretty close to the final draft.


MENACING SPEECH: Just read the opinions, and they just reinforced my earlier view that under the Supreme Court's NAACP v. Claiborne Hardware decision, the speech is clearly protected. The dissent by Judge Kozinski (my former boss) puts the analogy very well:
While set in a different time and place, and involving a very different political cause, Claiborne Hardware bears remarkable similarities to our case:
  • Like Claiborne Hardware, this case involves a concerted effort by a variety of groups and individuals in pursuit of a common political cause. Some of the activities were lawful, others were not. In both cases, there was evidence that the various players communicated with each other and, at times, engaged in concerted action. The Supreme Court, however, held that mere association with groups or individuals who pursue unlawful conduct is an insufficient basis for the imposition of liability, unless it is shown that the defendants actually participated in or authorized the illegal conduct.

  • Both here and in Claiborne Hardware, there were instances of actual violence that followed heated rhetoric. The Court made clear, however, that unless the violence follows promptly after the speeches, thus meeting the stringent Brandenburg standard for incitement, no liability could be imposed on account of the speech.

  • The statements on which liability was premised in both cases were made during the course of political rallies and had a coercive effect on the intended targets. Yet the Supreme Court held in Claiborne Hardware that coercion alone could not serve as the basis for liability, because it had not been shown -- by evidence aside from the political speeches themselves -- that defendants or their agents were involved in or authorized actual violence.

  • In Claiborne Hardware, the boycott organizers gathered facts -- the identity of those who violated the boycott -- and publicized them to the community by way of speeches and a newspaper. As in our case, this ostentatious gathering of information, and publication thereof, were intended to put pressure on those whose names were publicized, and perhaps put them in fear that they will become objects of violence by members of the community. Yet the Supreme Court held that this could not form the basis for liability.

  • To the extent Claiborne Hardware differs from our case, the difference makes ours a far weaker case for the imposition of liability. To begin with, Charles Evers's speeches in Claiborne Hardware explicitly threatened physical violence. Referring to the boycott violators, Evers repeatedly went so far as to say that "we," presumably including himself, would "break your damn neck." In our case, the defendants never called for violence at all, and certainly said nothing suggesting that they personally would be involved in any violence against the plaintiffs. Another difference between the two cases is that the record in Claiborne Hardware showed a concerted action between the boycott organizers, all of whom operated within close physical proximity in a small Mississippi county. By contrast, there is virtually no evidence that defendants had engaged in any concerted action with any of the other individuals who prepared "wanted" posters in the past.
     The most striking difference between the two cases is that one of Evers's speeches in Claiborne Hardware, which expressly threatened violence against the boycott violators, was in fact followed by violence; he then made additional speeches, again referring to violence against boycott breakers. 458 U.S. at 900 (April 1966 speech), 902 (April 1969 speeches).

     By contrast, the record here contains no evidence that violence was committed against any doctor after his name appeared on defendants' posters or web page.

     The opinion's effort to distinguish Claiborne Hardware does not bear scrutiny. The majority claims that in Claiborne Hardware, "there was no context to give the speeches (including the expression 'break your neck') the implication of . . . directly threatening unlawful conduct." As explained above, the majority is quite wrong on this point, but it doesn't matter anyway: Evers's statements were threatening on their face. Not only did he speak of breaking necks and inflicting "discipline," he used the first person plural "we" to indicate that he himself and those associated with him would be doing the neck-breaking, and he said that "blacks who traded with white merchants would be answerable to him" (emphasis in the original).

     It is possible -- as the majority suggests -- that Evers's statements were "hyperbolic vernacular," but the trier of fact in that case found otherwise. The Supreme Court nevertheless held that the statements ought to be treated as hyperbole because of their political content. By any measure, the statements in our case are far less threatening on their face, yet the majority chooses to defer to the jury's determination that they were true threats.

     The majority also relies on the fact that the posters here "were publicly distributed, but personally targeted." But the threats in Claiborne Hardware were also individually targeted. Store watchers carefully noted the names of blacks who entered the boycotted stores, and those names were published in a newspaper and read out loud at the First Baptist Church, where Evers delivered his speeches. When speaking of broken necks and other discipline, Evers was quite obviously referring to those individuals who had been identified as defying the boycott; in fact, he stated explicitly that he knew their identity and that they would be answerable to him. The majority's opinion simply cannot be squared with Claiborne Hardware.


MENACING SPEECH, TODAY AND DURING THE CIVIL RIGHTS MOVEMENT: The Ninth Circuit has apparently just upheld a verdict against the "Nuremberg Files" Web site operators, for publishing menacing speech about abortion providers. This is a reversal of a panel decision that had found the speech to be constitutionally protected.

     I'm just about to read the entire decision, and will probably chime in when I'm done. But for now, let me mention what I said in my Wall Street Journal op-ed supporting the original panel decision: I sympathize with the abortion providers, and I think the speech does come near the area of constitutionally unprotected threats; but I think it's very hard to distinguish the speech here from the speech that the Supreme Court found to be protected in NAACP v. Claiborne Hardware (1982).


MORE ON GATAHOLISM: Sasha, who Knows All, Sees All, points me to a Web page on lexical change. The phenomenon, it turns out, is called "derivational compounding." Another obvious example that I knew but had forgotten is "-burger," which doesn't mean "cooked ground meat patty" in the original German; and cheeseburgers don't come from the German city of Cheeseburg. There's also the prefix "Mc-," as in McNuggets, McJobs, etc. And, as Sasha pointed out, "-vania" sometimes is used to mean "scary place" (borrowde from Transylvania, or possibly Chekhov's Unclevania).



     As I’ve mentioned earlier, I believe the Second Amendment secures an individual right to bear arms; and 44 of the 50 state Bills of Rights protect a right to bear arms, almost all in clearly individual terms.

     But what exactly does this right mean to existing gun control laws? Should laws banning felons from owning guns be struck down? Background checks? Waiting periods? Assault weapons bans? Handgun bans? Prohibitions on concealed carry of guns?

     These are very interesting questions, and I’ve been thinking about them for several years. I even started writing a law review article on the subject, but then set my very early scribblings aside, partly because other projects arose, and partly because I knew I didn’t have much of an answer.

     But I do want to respond to one argument I’ve heard from pro-gun advocates, which is that “Any restrictions on gun rights must be subject to ‘strict scrutiny’ -- must be proven to be ‘narrowly tailored to a compelling government interest’ -- because that’s the test applicable to all constitutionally protected rights, such as free speech.” (I warned you that there’d be legalese; and there’s more coming.) The flip side of the argument is that “If courts refuse to apply strict scrutiny to gun rights, then they’re protecting these constitutional rights less than they protect other rights, which is wrong.”

     The difficulty with this argument is that strict scrutiny is not the test applicable to all constitutionally protected rights. It’s not even the test applicable to most such rights. Here’s a qucik and necessarily oversimplified list:
  1. Free speech: Some categories of speech (e.g., false statements of fact, obscenity, threats, etc.) are entirely unprotected, or protected at a fairly low level. Most speech is protected, but content-neutral restrictions that leave open ample alternative channels for speech are subject to a relatively weak intermediate scrutiny. Strict scrutiny applies only to (1a) content-based restrictions or (1b) content-neutral restrictions that fail to leave open ample alternative channels, and then only if (2) the restrictions apply to speech that's outside the First Amendment exceptions.

  2. Religious freedom: When it was interpreted as a substantive right, laws that placed substantial burdens on the right were subject to a weak form of strict scrutiny -- one much weaker than the more familiar "strict in theory, fatal in fact" scrutiny applied to content-based restrictions on core protected speech, or on race classifications. Religious freedom is now interpreted as an equality right, and subject to strong strict scrutiny, but only when a law discriminates against religious practice.

  3. Establishment Clause: Has its own test that doesn't mirror strict scrutiny.

  4. Fourth Amendment: Has its own test that turns partly on "reasonableness" and partly on historical requirements, and that doesn't mirror strict scrutiny.

  5. Criminal procedure provisions of the Fifth, Sixth, Seventh, and Eighth Amendments: Have their own tests that turn mainly on historical rules, with lots of historically influenced exceptions from constitutional protection. Generally do not mirror strict scrutiny.

  6. Takings Clause: As to physical takings, requires compensation without regard to strict scrutiny; as to regulatory takings, subject to a weak and ill-defined set of tests.

  7. Contracts Clause: Subject to a very weak form of intermediate scrutiny (though I think this is a big mistake).

  8. Abortion rights: After Planned Parenthood v. Casey, substantial burdens on pre-viability abortions (or post-viability abortions needed to protect the woman's life or health) are impermissible. Burdens that are not considered substantial are permissible.

  9. Right to marry: Substantial burdens on the right to marry are subject to a test that has been described as somewhere in between intermediate and strict scrutiny; but there haven't been enough cases to fully clarify this. There are apparently categorical limits to the right, for instance as to incest, polygamy, and same-sex marriage.

  10. Equal protection -- classifications based on legitimacy of birth: Intermediate scrutiny.

  11. Equal protection -- classifications based on citizenship: Strict scrutiny for classifications imposed by states, though with a categorical exception for certain activities that go to the core of sovereignty (e.g., voting, being a police officer). Rational basis scrutiny for classifications imposed by the federal government.

  12. Equal protection -- classifications based on sex: Ostensibly intermediate scrutiny, though in recent years phrased as something close to strict scrutiny, except in certain areas where there are significant biological differences between the genders, and possibly in other areas (such as military service) as well.

  13. Equal protection -- classifications based on race: Strict scrutiny.
     Some people criticize the courts for using so many different standards of review, and think that this seeming inconsistency only reflects judges’ personal preferences for some rights over others. Others -- myself generally included, though I certainly think there’s lots that’s wrong with many of the tests I mention above -- argue that different rights have different purposes, run up against different sets of government interests (and private interests), and can't all be governed by the same verbal formulation.

     But more importantly, it's simply not the case that all constitutional rights are governed by the strict scrutiny test, or that if the courts fail to apply the test to the right to bear arms (under the Second Amendment or under state constitutional provisions), they're therefore necessarily protecting the right less than it should be protected. The list above should show that this direct comparison simply doesn't work.


GATAHOLIC: Instapundit's reference to "Photogate" (and his "enough 'gates' already" reaction) reminded me that there are actually lots of -gate-like suffixes -- suffixes that now have a meaning that has nothing to do with their original meaning in the original term.

     "-gate" isn't an Old English term for "scandal"; it just happens to be the last syllable of a place where a famous scandal germinated. Likewise for:
  • "-athon," which didn't originally mean "a long distance," but was part of a Greek place name;

  • "-aholic," which never meant "addicted to";

  • "-orama," which wasn't originally a term for "a lot of".
Other suggestions? Also, is there a term for this phenomenon? (By the way, I'm not claiming this phenomenon is "wrong"; I take the descriptivist view that once something is common usage it is by definition "right." I just find it amusing.)


BRIEF MCCORMICK & SCHMICK UPDATE: Someone from McCormick & Schmick corporate headquarters called me about my complaint (I e-mailed them a link to the blog post), and were very nice. It may be that the Pepsi exclusive deal was just a choice by the Downtown L.A. branch -- the person wasn't sure but promised to look into it. I hope that one way or the other the word will get to various levels of management that at least some customers are unhappy with the decision.

     I stress again that I'm certainly no foe of businesses generally; I realize that businesses often face tough financial pressures; and I think that many businesses often bend over backward to be accommodating to customer preferences. And restaurants surely have to be accommodating, given how much they rely on repeat business and word of mouth. Think back on your last 10 restaurant meals, and see how many of them came about because you or someone else in your party had eaten there before, or because you relied on the advice of a friend or a restaurant reviewer that had eaten there. If restaurants don't keep patrons happy, patrons will leave.

     So I think that customer-unfriendly decisions (again, especially in the restaurant business) are generally not the result of malice or even hardass calculation, since losing customers is so costly. Much of the time they are a result of not fully appreciating the way customers view the action. And that's why it's important, I think, that when customers are unhappy with something, they let management know about it.

     Or maybe I just enjoy being high-maintenance . . . .


VOLOKH v. GLOBAL NEWS WATCH: Most of you probably aren't reading the updates this low on the page, but I've been having a back-and-forth with Howard Owens of Global News Watch on my post on the history of slavery, prompted by the news item about a future Liberty Bell tour that would 'acknowledge the nation's complex and contradictory roots in freedom and slavery' (first linked to by Quare).

I don't think there's anything new for me to add at this point. He believes that 'history, at least in the modern West, has been a continual progress forward' and that opposing views, at least on the issue of slavery, are 'liberal-think' and 'the product of multiculturalist historical revisionism.' I disagree with that strong formulation (and we each think the other is mischaracterizing our positions), but everything I think on the subject is already contained in the original post and first update, so I would just recommend you read it there.


PRIVATE PRISONS: At long last, my article on private prisons has been published in the Harvard Law Review. I couldn't make the Web version all beautiful because there was some strange formatting that I couldn't get rid of, and the footnotes don't seem to have links on them, but here's the piece: A Tale of Two Systems: Cost, Quality, and Accountability in Private Prisons, 115 Harv. L. Rev. at 1868 (2002).

My verdict on private prisons: good (especially considering the not stellar quality of public prisons), and can be made even better through innovative contracting and monitoring.

Wednesday, May 15, 2002


THE FEELING OF POWER: I just reread an Isaac Asimov story, an old favorite of mine called 'The Feeling of Power' (1958). I read Asimov's Foundation trilogy about four years ago and it went from O.K. to desperately bad in reasonably short order -- but this is a little gem, a parable about the power of knowledge, contained in a lovely volume called The Mathematical Magpie, a collection of math-related short stories and poems edited by Clifton Fadiman, still in print. You should read the whole story (a mere dozen pages), but you probably won't, so I'll summarize it for you:

In a futuristic world, when computers are designed by computers and people have forgotten how to calculate by hand, technician Myron Aub, whose hobby is reconstructing centuries-old computers (which were actually once designed by humans!), rediscovers the lost arts of arithmetic -- addition, subtraction, and long multiplication and division. He convinces his superiors that arithmetic is actually useful but finds that they're only interested in it for its military applications -- manned battleships, manned missiles, and the like. Unable to handle the consequences of having invented 'graphitics,' Aub commits suicide. At the end:

They stood over the grave of the little technician while tribute was paid to the greatness of his discovery.

Programmer Shuman bowed his head along with the rest of them but remained unmoved. The technician had done his share and was no longer needed, after all. He might have started graphitics, but now that it had started, it would carry on by itself overwhelmingly, triumphantly, until manned missiles were possible with who knew what else.

Nine times seven, thought Shuman with deep satisfaction, is sixty-three, and I don't need a computer to tell me so. The computer is in my own head.

And it was amazing the feeling of power that gave him.

On another note, you should also read Capitalism and Arithmetic: The New Math of the 15th Century, an annotated translation of the Treviso Arithmetic of 1478, the 'earliest known example of a printed book on arithmetic.' It's a fascinating textbook for 15th-century Italian commercial traders, explaining this new-fangled invention of Arabic numbers and how to add, subtract, multiply, and divide. ('Even in Italy, where a heightened sense of mathematical awareness existed, acceptance of the Hindu-Arabic numerals was slow in coming. A Statuto dell' Arte di Cambio issued in 1299 by the City Council of Florence required that accounting book entries be in Roman numerals. In 1348, the University of Padua required that lists of its books have their prices affixed in Roman numerals -- 'non per cifras, sed per literas claras' (not by figures, but by clear letters)' (p. 182).)

You'll recognize the addition and subtraction as what you learned in school, but you'll be surprised by some of the funky multiplication methods (of course they're all in a deep sense equivalent to the way we multiply, but they write it in weird diagonal rows, left to right, right to left, very complicated).

An epigraph from the book, from Robert Recorde's The Declaration of the Profit of Arithmeticke (1540):

Master: Wherefore in all great works are Clerks so much desired? Wherefore are Auditors so well fed? What causeth Geometricians so highly to be enhaunsed? Why are Astronomers so greatly advanced? Because that by number such things they finde, which else would farre excell mans minde.

Scholar: Verily, sir, if it bee so, that these men by numbering, their cunning do attain, at whose great works most men do wonder, then I see well I was much deceived, and numbering is a more cunning thing than I took it to be.


NO COKE, PEPSI: McCormick & Schmick's is a modestly upscale fish restaurant chain -- no fast-food joint, that's for sure. That's why I was very surprised when I asked for a Diet Coke with my lunch, and was told they only had Pepsi.

     Now this is obviously not The End Of The Western World, much as I like my Coke; and I know some people prefer Pepsi. But some others prefer Coke -- so why not offer both? (When I called the manager later to complain, he told me that Coke was getting more expensive, but so what? Just charge a bit more for it than you would for Pepsi; very few people will complain.)

     I suspect, though, that I know why they don't offer both: Unless I'm mistaken, Pepsi offers various food service establishments (restaurants, airlines, fast-food joints) exclusive deals, under which they presumably get a steep discount if they promise not to sell Coke.

     Now being a good libertarian, I think they should have every legal right to do that. But not everything that may be done, as they to say, should be done.

     What are restaurants selling? Not food, which I can buy cheaper at the supermarket, but the accommodation of the customer's desires. We pay extra money at restaurants so we can get what we want the way we want it, with a minimum of effort and a maximum of convenience.

     McCormick & Schmick is essentially telling the customer: "We care so little about your preferences that we're willing to deny you the drink of your choice to save a very little bit of money" (and just consider how little it is, compared to the price that they charge the customer for each drink). That's not good business, I think. And I think that those of us who think so should tell managers our views. Sometimes, the invisible hand is us.


FACTOID: Top U.S. newspapers, by circulation. Thanks to Laura Cadra at the invaluable UCLA Law Library research desk.


BLOGGING COALS TO NEWCASTLE: Teach your grandmother to blog eggs? I have no idea, but it does seem pointless for us to be linking to an InstaPundit column. Still, Glenn's FoxNews piece on free speech double standards on colleges is so good that I thought I had to put in a link.


JURY DUTY: By the way, I'm off jury duty; I was sworn in to the jury panel Monday afternoon, but when I came in Tuesday at 11 am to be ready for voir dire, the judge told us that the defendant had just accepted a plea bargain.

     This was the third time I went in for jury duty. The first time, if I recall correctly, I had to come to the courthouse 3 days; the second time, 3 full days plus 3 half days; and this time, 1 day plus another hour the next day. In all this time, not only was I never selected; I was struck on a peremptory challenge exactly once. All the other days were completely wasted, mostly just sitting in the jury assembly room, and occasionally waiting in court while others were being voir dired. At least this time, with one day / one trial, comparatively little of my time was burned this way.

     The economists are right: Resources that are underpriced get overconsumed. When jury time is essentially free to the system, the players in the system will naturally waste it.

     I'm not suggesting that jurors should be paid the market value for their services. This may pose a variety of other problems, and I haven't thought enough about the subject to have a sufficiently informed opinion on it. What's more, I realize that the litigants' rights may require some degree of inconvenience to jurors, that the litigants have more at stake than jurors, and that there are good reasons for peremptory challenges and for the possibility of settlement or plea bargaining at very late stages of the litigation.

     Nonetheless, I have a strong suspicion that all the actors in the legal system systematically undervalue juror time, precisely because they can. And while I think the government may rightly comandeer our time for this duty, it seems to me that it should at least do more to make sure that the commandeered time is used as efficiently as possible

     So I have no idea of what would be the right solution. But, boy, I sure am annoyed by the problem.


LEMONS: Michelle has persuaded me entirely. If life gives you lemons, sell them to Sunkist -- and then the more lemons, the merrier.


LEMON MARKET REDUX: Having been chastised by gifted writer-blogger Gene Healy for my silent contribution to the Conspiracy, I'm turning my ire on the hub of the Conspiracy, Eugene, for taking a static, perhaps even statist, view of the lemon market and its various products.

     If life gives you lemons, lemon juice is your fate? "No!," says citrus market analyst Josh Turner:
"If life gives you lemons, sell some of your lemons to the guy with water and sugar, take some of that money to the guy to whom life has been giving tonic, and the rest of the money to the guy to whom life has been giving gin, and make yourself up a nice G&T. Sure, limes would be better, but you have to make do with what you have."
This is why the Rawlsian veil of ignorance should be understood to support basic capitalism. You may not be the guy to whom life gives gin, but a little credit and a good court system for enforcing contracts, and you won't have to choose between love and gin.

In the absence of limes, however, I would recommend a sidecar.


ANIMAL PRIVACY RIGHTS: Visit the National Zoo and you can watch animals engaged in all sorts of interesting activity. Indeed, the zoo even has web cams for some of its more popular animals. Nonetheless, last week the Washington Post reported that the zoo refuses to release medical records for individual animals, citing their (the animals') "right to privacy" and (I'm not making this up) the zookeeper-animal relationship -- the vetinary equivalent of that between doctor and patient. Apparently a Post reporter sought records relating to the death of Ryma (a giraffe), and the zoo refused on privacy grounds. One Post reader wrote that the zoo's policy raises interesting legal questions, such as:
Can we get Ryma's next of kin to waive the privilege? How does a giraffe convey its legal consent to disclosure?
Did the National Zoo obtain Ryma's consent before performing any medical procedures?
Are veterinarians violating patient confidentiality when they discuss Fluffy's condition with her owner without her consent?
If you ask me, though, the zoo's position seems too cute by half. I am at a loss to understand how revealing information about zoo animals' medical treatement hurts the relationship between zookeepers and their animals or otehrwise undermines the animals' care. If anything, revealing animal records prevents the public from discovering zookeepers' mistakes or mishandling of animals' problems. For instance, if an animal is being mistreated, the medical records may make this clear. The zoo's other purported justifications fare no better.


ALAS, I'M NOT LATIN: So if "Juan Non-Volokh" is too long and cumbersome, JNoV will work just fine.


WHAT THE WORLD WASN'T WATCHING: Dov Fischer has an excellent National Review piece on the various massacres and civil wars that are being ignored -- from Colombia to Uganda and elsewhere -- while the world is focusing on Israel.


AIR TRAVEL MIGHT BE GETTING A BIT EASIER: United now says that when you're traveling with just carry-on baggage (my normal travel mode), you can now show up 60 minutes before the flight -- down from 2 hours right after 9/11, and from 90 minutes until recently.

     Now in all my flying since 9/11, I've never had to wait more than 45 minutes tops to check in and go through security, and usually it's taken me only 15-20 minutes. But others have told me horror stories, so I've always tried to get to the airport at least 90 minutes before the flight, and ended up spending a lot of time hanging out at the airport. An hour wait each way is still a long time, but better than it used to be.


IF LIFE GIVES YOU LEMONS: If life gives you only lemons, you cannot make lemonade. To make lemonade, you need lemons, water, and sugar. Presumably, if you say life is giving you lemons, that means it isn't giving you sugar, no? If life gives you lemons, pretty much all you can make is lemon juice.


CONGRESSIONAL POWER OVER ALCOHOL: Dave Kopel (quoted on Instapundit) is probably quite right to be skeptical about various "binge drinking" claims. I'm not an expert on the subject, but I've generally found Dave's factual investigations to be thorough and reliable.

     Nonetheless, I'm not persuaded by Dave's claim that "Congress [does not have] any legitimate constitutional power over the subject -- as the Twenty-first Amendment (repealing the grant of Congressional power over alcohol) makes clear." The Twenty-first Amendment does repeal Prohibition, and Congressional power to enforce Prohibition; but it also says that "The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." Between that, the executive "Power to take Care that the Laws be faithfully executed," and the congressional "Power to make all Laws which shall be necessary and proper for carrying into Execution . . . Powers vested by this Constitution in [the President]," Congress should have considerable (though not unlimited) power over the distribution of alcohol.

     Furthermore, Congress does have the power to spend money to "provide for the . . . general Welfare of the United States." Even setting the aside the question whether it can attach strings to such spending (e.g., "If you want federal highway funds, raise the drinking age to 21"), it seems to me that the power would include the power to spend money on trying to educate people not to abuse alcohol. And all this of course is sticking to the Constitutional text and a pretty rigorous understanding of original meaning -- naturally, under the expansive view of Congressional powers that the Court has taken since the 1930s (and has only very slightly gone back on in the last ten years), Congress would have broader powers still.

     Now this of course doesn't resolve whether Congress would be wise to use these powers. Not all things that may be done should be done. And it may well be that some members will use the hearings to push for legislation that goes beyond these powers. (Shocking, I know!) Still, Congress has enough quite legitimate power in this area that the hearings cannot, I think, be properly condemned on constitutional power grounds alone.


From The Syracuse University student newspaper (registration required):
     The Sigma Alpha Epsilon fraternity faces suspension and Aaron Levine, one of its white members, faces expulsion after Levine painted his face, arms and hands black Tuesday night and went to several Marshall Street bars dressed, he said, in his Tiger Woods costume.

     In a matter of hours after Levine showed up at one bar, word spread, especially among black students, that Levine was dressed in blackface. By midnight, some students gathered at the Schine Student Center to talk about the incident; others confronted Levine and his fraternity brothers at the bars.

     By noon the next day, a late night plan for a protest calling for, among other things, Levine’s expulsion from the university, unfolded. . . .

     Levine’s case has been turned over to the Office of Judicial Affairs, where he faces several Code of Student Conduct violations including harassment and disorderly conduct, said SU spokesman Kevin Morrow.
     Wearing blackface, offensive as some might find it, is quite clearly protected by the Constitution -- the U.S. Court of Appeals for the Fourth Circuit specifically held this in Iota Xi v. George Mason University, 993 F.2d 386 (4th Cir. 1993), but this is a pretty clear application of standard First Amendment doctrine.

     Syracuse University is a private university, and it’s not bound by the First Amendment, which applies only to government-run schools. Still, most serious universities make much of their commitment to free speech -- the Chancellor of Syracuse University apparently does. What is happening to this commitment here?


IF JUAN NON-VOLOKH WERE LATIN: In Latin, volo means 'I want' (as in Volenti non fit injuria); nolo (originally short for non volo) means 'I don't want' (as in Nolle prosequi, Nolo contendere, and Noli me tangere, for Caesar's I am). Volo nolo means 'willy nilly' (not a direct etymology; this is 'will I, ne will I'); you have to pronounce the 'v' like a 'w' to really make it sound properly funny. Thus, if Juan were Latin, maybe we'd be calling him Nolokh, not to be confused with Moloch (see his eloquent speech here; search for 'Moloc,' yes, sorry, no H), which my former boss Sam Kazman once used as a rhyme for my name.


WITHDRAWAL: Glenn! You haven't posted anything in eight hours and nine minutes! Are you O.K.??? We're so worried!!!

Tuesday, May 14, 2002


SEN. SCHUMER ENDORSES INDIVIDUAL RIGHTS VIEW OF THE SECOND AMENDMENT: No, I'm not being facetious; this is from a press release on Sen. Schumer's own Web site:
. . . The broad principle that there is an individual right to bear arms is shared by many Americans, including myself. I'm of the view that you can't take a broad approach to other rights, such as First Amendment rights, and then interpret the Second Amendment so narrowly that it could fit in a thimble.

     But I'm also of the view that there are limits on those rights. Just as you can't falsely shout fire in a crowded movie theater, you can put restrictions on who can own guns and how, when, and where they may be possessed.
     Now I'm quite sure that Sen. Schumer, one of the strongest gun-control proponents in the Senate, has a very different view of the scope of the individual right than I do; but I genuinely am glad that he agrees that there is an individual right.

     I wonder, though, how all the newspapers who so loudly decried the Justice Department's pro-individual-right stand will react to Sen. Schumer's statement. (Thanks to, which to my knowledge broke the story, and to Jimmy Wales, who passed it along to me.)


AFTER WALT WHITMAN: Do I repeat myself? Very well then, I repeat myself. I am large, I contain multitudes. Of the same thing.


THE TWO CLAUSES: Prof. Jeff Cooper points out that "there is something unique about the Second Amendment: it is the only one of the Bill of Rights with a purpose clause," and suggests a thought experiment: "Suppose that the First Amendment's protection of freedom of speech contained a preamble and was written: 'A free and open debate on issues of public concern, being necessary to the maintenance of a free State, Congress shall make no law abridging the freedom of speech.' Would First Amendment law have developed differently?"

     Curiously, I discussed exactly this argument in The Commonplace Second Amendment. Here's an excerpt from the Introduction:
“The Second Amendment, unusually for constitutional provisions, contains a statement of purpose as well as a guarantee of a right to bear arms.” This unusual attribute, some argue, is reason for courts to interpret the Second Amendment quite differently than they interpret other constitutional provisions -- perhaps to the point of reading it as having virtually no effect on government action.

     My modest discovery is that the Second Amendment is actually not unusual at all: Many contemporaneous state constitutional provisions are structured similarly. Rhode Island’s 1842 constitution, its first, provides “The liberty of the press being essential to the security of freedom in a state, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty . . . .” . . .

     The 1784 New Hampshire Constitution says “In criminal prosecutions, the trial of facts in the vicinity where they happen, is so essential to the security of the life, liberty and estate of the citizen, that no crime or offence ought to be tried in any other county than that in which it is committed . . . .” The 1780 Massachusetts Constitution -- followed closely by the 1784 New Hampshire Constitution and the 1786 Vermont Constitution -- says “The freedom of deliberation, speech, and debate, in either house of the legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever.” I list dozens more such provisions in the Appendix.

     These provisions, I believe, shed some light on the interpretation of the Second Amendment:
  1. They show that the Second Amendment should be seen as fairly commonplace, rather than strikingly odd.

  2. They rebut the claim that a right expires when courts conclude that the justification given for the right is no longer valid or is no longer served by the right.

  3. They show that operative clauses are often both broader and narrower than their justification clauses, thus casting doubt on the argument that the right exists only when (in the courts’ judgment) it furthers the goals identified in the justification clause.

  4. They point to how the two clauses might be read together, without disregarding either.


IN PRAISE OF INCONSISTENCY: Through Instapundit, a Dutch news item: 'Lawyers lodged a complaint with the public prosecutor on Monday accusing politicians and journalists of inciting hatred against assassinated Pim Fortuyn.' Glenn writes: 'I don't approve of 'hate speech' laws, but if you're going to have them, they must be enforced evenhandedly. Which is why I hope SFSU will enforce its policies as strictly against the palestinian rioters as it would against, say, someone who made anti-black or anti-gay remarks.'

Why evenhandedness? First, we may like to see consistency in the law for its own sake as a logical matter, to encourage respect for the law, to prevent certain groups from gaining the upper hand in society, or something like that. Second, there's the retribution view of democracy -- if they're going to do it to us, at least let's do it to them just so we can see them feel the pain they're inflicting on us. Third, there's what those into law jargon might call 'representation reinforcement' -- the deterrence view of democracy. Or, as Justice Jackson said nicely in Railway Express Agency v. New York (1949):

I regard it as a salutary doctrine that [governments] must exercise their powers so as not to discriminate between their inhabitants except upon some reasonable differentiation fairly related to the object of regulation. This equality is not merely abstract justice. [T]here is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.

In 1995, for instance, the Competitive Enterprise Institute, where I used to work, filed a petition with the FDA to regulate caffeine in the wake of its interpretation of the Food, Drug & Cosmetic Act to allow regulation of tobacco products. (This interpretation was later reversed, see FDA v. Brown & Williamson Tobacco Corp. (2000).) As CEI wrote back then:

In CEI's view, such regulation of caffeine would not be socially beneficial; in fact, it would actually harm consumers by restricting the availability and advertising of products which should be freely available. Nonetheless, CEI submits that caffeine beverage regulation follows directly from FDA's pending proposal on tobacco products. FDA has proposed to regulate nicotine in tobacco products based on its determination that these products meet the FDCA's definition of a drug . . . and . . . device . . . . FDA's criteria for this determination are equally applicable to caffeine. CEI submits that, under FDA's newly expanded interpretation of the FDCA definitions of drugs and devices, the agency is now required to regulate caffeine-containing beverages as well.

So far, so good. But let's also remember the possible down-sides of evenhandedness. First, deterrence doesn't always work. An emphasis on evenhandedness may, as Justice Jackson says, get the regulatory victims to rise up against their common enemy (i.e., everyone who uses broad hyperbole would realize that they're potential victims of a broad hate-speech law); or, contra, we may get stuck with a regulation that applies to many instead of a regulation that applies to few. Second, the law is also a teacher. An equally enforced law may unfortunately get people to actually respect the law (i.e., people may cut down on their broad hyperbole because they realize it's evil hate speech); on the other hand, if the law is unequally enforced, people's anger at the inequality may translate into repeal.

This is mostly speculation -- I don't know which way this all cuts -- but it's why I'm not a gung-ho pro-evenhandedness activist. And I'm not just potentially defending the rights of the Left to call people fascist even if similar laws are used against the Right; a few weeks ago, I also argued that American law does prohibit refusals to deal with Israel, but as boycotting Israel is a God-given right, the law shouldn't be enforced, and perhaps the more non-enforcement, the better.

(Note that these arguments may cut in unexpected directions. Modern-day crusaders for economic freedoms, such as the Institute for Justice, try to get economic regulations struck down on, among things, Due Process and Equal Protection theories which were first invented by jurists on the left. Many conservatives actually oppose this sort of economic-rights judicial activism, though they would like the result, because they dislike the liberal judicial activism from which it sprang, and they fear that a victory for economic liberty would make people more sympathetic to judicial activism generally.)

I'm not arguing broadly in favor of unequal enforcement of laws -- just against the strong view that all laws should be equally enforced. Contradictions are useful. They're embarrassing to the government, and they can get people to think about why the law exists in the first place. Now evenhandedness is great, and in my better moods I'm all behind Justice Jackson, but I also fear that evenhanded application of unjust laws will extend the law too far and teach people the wrong things. Finally, I'm not one to knock retribution, but the thrill of revenge grows stale.


CATFIGHT ON THE COURT: There is much to say on the merits of today's Sixth Circuit opinion on racial preferences in law school admissions -- and I expect Eugene may chime in on the matter when he returns from jury duty. There is another particularly noeworthy element of the opinion, however. The judges of the Sixth enage in a nasty fight over whether one or more judges played procedural games to ensure the "correct" outcome, and whether it is proper for other judges to call them to account publicly. To top it all off, the Sixth Circuit is at the center of the fight over judicial nominations, as half of its seats are vacant.

In today's opinion, Judge Danny Boggs published a "Procedural Appendix" as part of his dissent detailing procedural irregularities that may have impacted the ultimate disposition of the case by, among other things, delaying en banc consideration of the case until after a sitting judge took senior status. That one vote could have made the difference. The majority does not dispute Judge Boggs' factual allegations, only their significance. Apparently such procedural irregularities, including violations of long-standing court rules, are not so irregular.

The whole affair is shameful. Procedural rules serve a purpose, not the least of which is insulating judges from allegations of impropriety for decisions that could impact the outcome of important cases. By violating its own rules without any clear need to do so, the court invites speculation that judges sought to stack the deck in a controversial case. Court secrecy, however, is no less important. Publishing detailed accounts of court contretemps undermines public confidence in the judiciary, even when the alleged purpose is to expose nefarious activities. In this regard, Judge Boggs' appendix is no more welcome than Edward Lazarus' Supreme Court expose Closed Chambers. I say pox on all their houses.


WHIG HISTORY: Quare also notes that the Liberty Bell tour will be changed to 'acknowledge the nation's complex and contradictory roots in freedom and slavery.' Quare writes:

I fear an anti-American, self-hatred slant. But perhaps they will decide to be sane, and we will end up with something that reflects America's continual progress toward freedom in progressive giant leaps forward. Why isn't it enough that the founders secured more liberty for more people than had ever existed before in recorded history? Why do people expect them to have created a perfect world, when that was beyond the power of any human being? We don't blame Christopher Colombus for not sailing to the moon and back.

Now, I'm not here to defend anti-Americanism and self-hatred as such. But let's not sink too deep into the-enemy-of-my-enemy-is-my-friend-ism and advocate a history that takes the exact opposite view, adopts the the exact opposite tone, and wears blinders in exactly the opposite places. (Query: what is the anemone of my anemone?) This sort of Whig history -- telling the history of the world as though it were all about continual progress toward freedom in progressive giant leaps forward -- has rightly fallen into disrepute; this is history we're trying to learn. There was slavery; great men did not only do great things. From a the-past-for-its-own-sake perspective, I would have had plenty to criticize if you plopped me down in the late 18th century; from a the-past-as-birthplace-of-the-future perspective, there were surely unpleasantnesses that help explain later American history. I don't blame the founders for creating an imperfect world, but I don't want to learn history as though the world they created was perfect.

Is there a third way? Sean Wilentz wrote, in America Made Easy, his New Republic review (7/2/01) of David McCullough's John Adams biography:

McCullough, it seems, can have no higher praise for any American president than that he was good; and Adams earns the accolade, in page after page of detailed anecdote. The result is not an all-out defense of Adams, like the one that was mounted by Page Smith in his even longer life of Adams more than a generation ago. McCullough is a sounder historian than Smith. Yet McCullough's book, precisely for that reason, seems all the more strange. It is a prudent but deeply admiring study of an enormously talented and remarkable patriot who was also one of the most suspicious, pugnacious, and at times pig-headed conservatives of the early American republic. In conveying so much about Adams's goodness, in vivid and smooth prose, McCullough slights Adams's intellectual ambitions, his brilliance and his ponderousness, his pettiness and his sometimes disabling pessimism. McCullough scants, in other words, everything that went into rendering Adams the paradox that he was: a great American who would prove virtually irrelevant to his nation's subsequent political development.

Wilentz's article, like many of The New Republic's book reviews, is excellent, and seems to not fall into the trap Wilentz condemns in McCullough while at the same time not painting John Adams as The Great Satan. (I haven't read McCullough's book -- I read book reviews; that way, I know both what the book is about and what to think about it.) I summarized the gist of the book review -- that McCullough's is an engaging book that doesn't make its subject seem complicated enough -- to a conservative friend of mine, who scoffed at 'those liberals at The New Republic.'

Now, one could argue that history isn't really history. There's a cultural war going on, just in case you hadn't noticed, and history is actually indoctrination for the new generation; and as an ideological exercise, it's better to teach kids optimism than to teach them self-hatred. Though I suppose optimism is mainly good to the extent it's deserved, and whether it's deserved merits a new discussion for every generation of schoolchildren. But I would rather see history as both propaganda and history.

And, fortunately, we don't have to choose between Whig history and Whim history. As Quare perhaps rightly fears, maybe the new tour will be self-hatred after all, which would be a shame; but let's give them the benefit of the doubt and hope that they'll instead teach complexity. This is the left, of course, but like The New Republic, maybe this is the sane left. What I like to read is, roughly speaking, the responses to left-wing revisionist history; first, I'm schooled in the adversarial method and have trouble believing anything unless I read arguments for and against; second, this next generation of historical analysis tends to be more accurate, if only because it tends to accept the correct bits of the critique while refuting the incorrect bits; and third, a non-complex history is boring. Perhaps some day the trend in history will be to publish books that 'reflect[] America's continual progress toward freedom in progressive giant leaps forward.' I doubt that I will read those books.

UPDATE: Global News Watch fears that I've granted 'too much . . . to the liberal-left's critique of America.' (Similar sentiments in a thoughtful e-mail by John Rosenberg.) 'To me,' the author writes, 'the West in general, and America in particular speaks nothing but tribute to the progress of man toward a greater virtue, and that virtue is freedom.' In general, I can't argue with that, though I do take exception to the 'nothing but tribute to the progress' bit: there are thoughtful, freedom-loving pro-Americans (whom I generally agree with) who think it's pretty much been downhill (at least in some ways) since the New Deal, the Progressive Era, or the Civil War. So it's been a bumpy ride, with setbacks along the way, and it's historically dishonest to imply otherwise. You can be pro-American and come to the final conclusion that America is the best place on earth, but sound historical analysis requires that you show your work.

One of those setbacks was slavery. Let's remember what we're arguing about in the first place: a proposed Liberty Bell tour that would 'acknowledge the nation's complex and contradictory roots in freedom and slavery'; and because I don't intend to defend a mere exercise in self-hating anti-Americanism, I'm giving the folks the benefit of the doubt and assuming it won't be that. Even on purely rhetorical grounds, discussing slavery is a great excuse to also discuss (1) how the seeds of better stuff were contained in the Constitution because (2) the natural rights philosophy of many of the Founders was independent of (and 'at heart' opposed to) slavery. What a great way to present the story of America to, say, black kids, who are smart enough to know that there was a history of slavery and will hold it against you if you tell a history that ignores it. I realize that some on the left use slavery as a way of throwing all of American history into disrepute; but that's only true if they control the spin. The history of slavery and its abolition is a pro-American story; how can you appreciate how great it is that America contained the seeds of the abolition of slavery if you haven't discussed how awful the original institution was?

UPDATE S'QUARE'D: Howard Owens on Global News Watch responds to my response to his response; more notes here.


HOBGOBLINS: 'What Is Man?' A song by English composer Henry Purcell (1658-95), but also a somewhat rambling essay ('Is human nature an oxymoron?') by Peter Augustine Lawler on National Review Online. (This came out a few weeks ago, but it isn't the sort of thing that dates quickly.)

I'm still not sure what to say about this article, since it tends to say many things one after the other in somewhat stream-of-consciousness format, and still I don't see where the conclusion comes from. This can be great literary style, see Emerson's Experience (1844): 'Illusion, Temperament, Succession, Surface, Surprise, Reality, Subjectiveness, -- these are threads on the loom of time, these are the lords of life. I dare not assume to give their order, but I name them as I find them in my way.' Not great argumentative op-ed style. I would only recommend that you write that way if you have a 'transparent eye-ball.'

Therefore, read Quare's response.


DREAMS: Forgive me for not posting for a while -- exams. Here's a glimpse of what law school can do to the soul -- don't let it happen to you! I had a dream, 'which,' as Lord Byron says, 'was not all a dream.'

I was walking near the law school campus with Eugene and telling him the facts of Cohen v. Cowles Media, 501 U.S. 663 (1991). The plaintiff released information to some newspapers; the papers promised him confidentiality but later identified him anyway, and Cohen lost his job. Cohen sued the papers and lost on a First Amendment theory (though he otherwise would have won as a matter of contract law; that's 'promissory estoppel' for the law geeks); the Supreme Court reversed, saying that 'generally applicable laws [i.e., contract law] do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news.' (That's the late Justice White talking.)

Then, as I finished telling Eugene the facts, I realized that Eugene is a First Amendment professor, so of course he'd know this, so as a save, I added, 'I've got that right, don't I?' and he told me I did. (I actually got the facts right in the dream.) I called this the 'contract law exception to the First Amendment,' and Eugene then told me that there's an analogous Thirteenth Amendment exception to administrative law.

There isn't actually such an exception, but maybe there's something in there. Gate of horn or gate of ivory?


MICHELLE BOARDMAN: Sasha, Juan, and I are delighted to welcome aboard Michelle Boardman, our other coconspirator. After clerking for Judge Frank Easterbrook -- one of the titans of the federal judiciary -- Michelle was caught up in one of those "Make Money Fa$t" work-for-income scams that so many people seem to be peddling both online and off-. She has, however, recently escaped and is now on the lam; she plans to find asylum this Fall as a law professor at George Mason University, outside Washington, D.C. And, yes, those are their real names (Michelle's, Easterbrook's, Mason's, Washington's, and Columbus's [more or less]).


AMENDMENTS: I've been so swamped with the real amendments (writing about the Second, and at least potentially doing my duty under the Sixth) that I've let the fictional amendments (now going on 150) get backlogged -- but I promise that I will get back to them soon. There are some quite creative ones in the mix; I look forward to passing along my thoughts on them.


MORE SECOND AMENDMENT NULLIFICATION: In responding to Jack Rakove's Second Amendment argument, I suggested that Rakove was simply trying to nullify the Second Amendment -- not just rejecting the individual rights interpretation, but not proposing any plausing alternative meaning in response. I've seen others try to do the same (see, e.g., my response to Prof. David Williams, titled The Amazing Vanishing Second Amendment).

     A generally rather overwrought article in The Guardian (U.K.) closes by relying on another recent nullification theory, this one proposed by Prof. Carl Bogus. I'd read the law review article in which it was expressed, and The Guardian's summary is quite accurate:
Professor Carl Bogus (sic) of the University of California has come up with a new and well-received thesis: that James Madison wrote it to reassure the whites of Virginia, who were desperate to retain their militia to avoid the possibility of a slave insurrection, and were scared the new federal Congress might help the slaves. If Bogus is right, Ashcroft is in pretty vile company -- and wrong.
     Now I love that term "well-received," which absolves the authors of having to explain whom it's well-received by. Perhaps The Guardian got this as wrong as Prof. Bogus's academic affiliation (he teaches at Roger Williams University; it's his article that was published in the UC Davis Law Review).

     But of course the main problem is with the substance of Prof. Bogus's claim that the Second Amendment was somehow about Southern protection for slavery. True, Virginia and North Carolina asked for a right to bear arms to be included in the Constitution -- but so did New York, Rhode Island, and (in a different form) New Hampshire. What's more, a right to bear arms was present in the Revolutionary era Bills of Rights of Pennsylvania (1776 & 1790), Vermont (1777), and Massachusetts (1780), as well as North Carolina (1776), Kentucky (1792), and Tennessee (1796). And as new states were added, the right to bear arms was included in most of their bills of rights, both as to Northern states and Southern ones.

     Prof. Bogus's theory (expressed in an article called "The Hidden History of the Second Amendment"; I couldn't find the text on the Web) is thus yet another conspiracy theory that ends up being quite unsupported by the facts. And, to make it extra cool, it's a conspiracy theory that could be used both (1) to smear one's opponents, just as The Guardian is doing, and (2) to nullify a constitutional right -- not just recharacterize it as, say, a state's right (impossible given its text, history, and presence in Bills of Rights), but to claim that it means pretty much nothing. Neat trick.


EVEN MORE ON RACE PREFERENCES: Racial preferences in academia scored a big victory today as the U.S. Court of Appeals for the Sixth Circuit, sitting en banc, upheld the University of Michigan Law School's use of racial preferences to achieve greater ethnic diversity. The opinions -- one majority opinion, two concurring opinions, and four dissents -- are long, so I have yet to digest them all yet. The whole enchilada is available from the Sixth Circuit's website here.


MORE ON RACE PREFERENCES: In 1998, Washington State enacted Initiative 200, which banned race and sex preferences in public employment, education, and contracting. Several weeks ago, a federal court of appeals said that, yes, this means that Washington public schools may not consider race in choosing which students could go to which schools.

     According to an L.A. Times story yesterday, one principal was so outraged by this color-blindness requirement that he chose to quit his job rather than comply. Now I disagree with that position, but I admire his willingness to stick by his principles, misguided as they might be.

     I do not admire, however, the following assertion: Applying I-200 to the school, the principal predicted, would change the school's makeup from "a rich, representative mosaic of Seattle's young people to . . . very monocultural." First, note the error in confusing race with culture -- are all whites of the same "culture"? Are all blacks, Hispanics, and Asians really of a different "culture" from whites?

     But second, consider the principal's odd math. According to the L.A. Times (and if anyone has evidence that the paper erred on this, please let me know), "This year, 50 of the 367 freshmen at Ballard High -- so popular that it has 250 students on a waiting list -- got there because they are black, Asian, Latino or Native American. Ballard High has a 43% minority enrollment . . . ." If we take 43% of 367, we get 157. This means that even if every single one of the 50 students were replaced by a white student, this would leave 107 of the 367 freshmen being non-white. So a school goes from a "rich [and] representative mosaic" to "monocultural" by going from 43% nonwhite to 29%?

Monday, May 13, 2002


DISCRIMINATION AGAINST BLACKS: One reader responds to my criticism of the law professors who refused to go hear Justice Thomas, when they said they would have heard Justice Scalia. I argued that the professors were improperly discriminating based on race. The reader's reaction -- and defense of the law professors (though with a disclaimer that he wasn't "defend[ing] every component of the behavior you're critiquing") -- was that "being in a majority is not equivalent to being in a minority."

     The reader, I think, proves my point. As I mentioned in a follow-up post, "once you start down the path of racial double standards, even supposedly 'benign' and well-motivated ones, that [race discrimination against blacks] is what you eventually tend to get. Abandoning the notion that one's ideas and qualities should be judged without regard to one's skin color necessarily has many unintended consequences: From preferential treatment for blacks (race-conscious affirmative action) to discrimination against blacks (charges of race treason that may be levied against nonconforming blacks but never against whites) is a shorter step than many think."

     This is exactly what's happening in the reader's analysis: He cites an argument that's classically made to support race preferences for blacks and other racial groups (it's OK to discriminate against whites even when it's not OK to discriminate against blacks). But he's citing it in support of a position that ends up discriminating against blacks -- ends up treating Thomas worse than Scalia. The way that being a minority isn't the same as being a majority, apparently, is that black conservatives aren't given the same respect that white conservatives are given. As I said, once one abandons the ideal of color-blindness, from preferential treatment for a group to discrimination against that group is a shorter step than many think.

     Just to make sure I'm not quoting out of context, here's the entirety of the reader's message; I omitted much of it simply because of its shorthand references to Plessy v. Ferguson, which non-lawyer readers might not find that familiar:
I think the simple response is to refer you to Justice Harlan's Plessy dissent; being in a majority is not equivalent to being in a minority.  Not to defend every component of the behavior you're critiquing, but this ubiquitous false equivalence well, um, pops up everywhere and seems so "Plessy majority," which I had thought thinking people had long ago disavowed.


GUNS AND CARS (AND ALCOHOL, OH MY!): I got similar messages from Paul Orwin and David LaBotz disagreeing with my "we shouldn't fear guns any more than we fear cars" argument. I quote here from Paul Orwin:
[T]he major beef I have with your comparison is that it ignores frequency of use. Many, if not most, people use a car at least once or twice a day, whereas I expect even the most ardent gun user is not using a gun that frequently. If they are, they are shooting targets on a range, which I would equate roughly with driving your car on an empty racetrack. Regardless, the analogy seems to me flawed in this regard.
     It's true that people physically handle their car much more often than they physically handle their gun. This, though, is simply part of the reason why cars are more dangerous than guns. A car in the garage is pretty useless; to derive benefit from it, you need to take it out and do potentially dangerous (though ultimately not very dangerous) things with it. A gun in a nightstand is fairly useful, in the same sense as an alarm system or a lock or an insurance policy is useful -- it's there when you need it, but fortunately you don't have to handle it very often to derive this benefit.

     In any case, I don't mean to make any conceptual arguments here -- in fact, my whole point is that we shouldn't focus on conceptual distinctions and look instead at actual risks. I own a car and a gun. I am much more likely to be killed using my car than using my gun. I am also considerably more likely (as we saw, by over a factor of 3, since I'm not suicidal) to be killed by any person's car than by any person's gun. Cars are in fact more dangerous to me than guns, in large part precisely because cars end up being used in their most dangerous mode quite often.

     Thus, cars should be more scary to me than guns. In my case, I take the view that neither should be scary -- yes, both are deadly, but the risks aren't all that great. But if someone disagrees, and thinks that the risks posed to him by guns are enough that he should be scared of guns, then he should be even more scared of cars. That's the heart of my argument.


THE VOLOKH CONSPIRACY: We are now officially The Volokh Conspiracy, with the addition of two comrades-in-e-arms. We're still waiting for the bio from one, Michelle Boardman (we know who she is, we just want to know just how she wants us to bill her); the other is Juan Non-Volokh (jnov at Here's the Official Juan Non-Volokh FAQ:

Q: Hmm; Juan Non-Volokh. What kind of name is that?
A: A pseudonym.

Q: That sounds fishy -- what does he have to hide?
A: His name.

Q: Oh, pretty please, we're soooo curious -- tell us who he is.
A: No.

Q: Ah, I've got it figured out: This is actually your own pseudonym, so you can post things that you'd be ashamed to see under your name.
A: I have no shame. More importantly, if it's good enough for Publius, Lewis Carroll, Mark Twain, Vladimir Lenin, and Josef Stalin -- wait a sec, strike those last two -- it's good enough for us.

Q: So, what's this guy like?
A: Read his posts (coming eventually) and you'll find out.


STATES' RIGHTS: A reader raised again a claim that I'd heard before, which is that "in our system, states do not have rights. States (and the Federal government) have powers delegated to them by the people under the U.S. Constitution and the various state constitutions. But only people have rights."

     I don't think that this so -- and I'm pretty sure the Framers didn't, either. The notion of states having rights seems to have been pretty familiar to them: Consider, for instance, Articles of Confederation arts. II, IX; The Federalist No. 22; The Federalist No. 31; Fenemore v. United States, 3 U.S. 357 (1797); and more. In our legal tradition, many sorts of entities, including individuals, corporations, churches, cities, states, the federal government, and other nations, can have rights.


JACK RAKOVE ON THE SECOND AMENDMENT: Jack Rakove, a Stanford professor, argued in the New York Times Sunday that the Second Amendment secures a states' right. Or rather, it's not exactly clear whose right he thinks it secures -- he just says that it doesn't secure an individual right. But I assume that if it isn't individuals, it's got to be states or the National Guard or some other entity other than you or me.

     I think the evidence points quite firmly to an individual right to bear arms; I discuss this in more detail here. But for now, let me quickly respond to some of Prof. Rakove's arguments:
  1. "The amendment refers to the right of the people, rather than the individual person of the Fifth Amendment." Well, the Fourth Amendment refers to the right of the people to be free from unreasonable searches and seizures; the First refers to the right of the people peaceably to assemble. That hardly means that the right belongs to states or National Guards or to some other mysterious entity -- in these two amendments "the right of the people" means the right of people like you and me. It seems to me that in the Second Amendment it means the same thing.

  2. "But in Article I," Rakove writes, "we also read that the people will elect the House of Representatives -- and the determination of who can vote will be left to state law, in just the way that militia service would remain subject to Congressional and state regulation." Well, yes, the Constitution does leave the definition of voting qualifications to state law -- which is why the Supreme Court has repeatedly said that it does not recognize any substantive federal right to vote. (The right to vote, as courts have inferred it, is based on the post-Bill-of-Rights amendments, and is a right to equal treatment, not a substantive right.) But when the Constitution specifically speaks of a constitutional right of the people (as in the First, Second, Fourth, and Ninth Amendments), it seems to me that this means, well, a constitutional right of the people -- a right that the government can't take away. Or why else call it a right, if the subject of the right "would remain subject to Congressional and state regulation" (by which I take it Prof. Rakove means "prohibition", since under his vision Congress could even totally ban guns, and not just impose background checks and similar mild regulations).

  3. "Article I of the Constitution defines the militia as an institution under the joint regulation of the national and state governments,
    and the debates of 1787-89 do not demonstrate that the framers believed that the militia should forever be synonymous with the entire population." Well, it's interesting that Militia Acts -- from 1792 until the currently effective one -- have always defined the militia as being pretty much the entire adult male population in what was generally seen as the core able-bodied age range (17 to 45, no offense intended!); and the Supreme Court in United States v. Miller specifically held that this was the Framers' contemplation. And this of course is the only reading that reconciles the two clauses. (The sources I cite here are almost all quoted in much more detail here; I've got to run shortly and so don't have time to fill in more specific links.)

  4. "The phrase 'keep and bear arms' is, as most commentators note, a military reference." I'm not quite sure what this is supposed to prove. The Framers certainly understood the right as needed to maintain an armed citizenry. That armed citizenry was indeed intended to have a military function: the right was meant to enable the citizenry to exercise "the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression" (Blackstone, 1765, writing about the English precursor of this right), and was seen as providing "a strong moral check against the usurpation and arbitrary power of rulers" and if necessary "resist[ing] and triumph[ing] over them" (Story, 1840; see also Cooley, 1898). But the way in which this function was assured was by securing a certain right to the people. Surely the right wasn't the right to be a soldier in a federal army, or even in a state army (since many state Bills of Rights contained similar provisions). The right was, well, a right of people -- like you and me -- to have weapons.
     As I've said before, my points are far from original. They merely echo the view of many leading commentators, and dovetail with the views expressed in other sources. Blackstone called the English precursor right a "right of the subject" (the Englishmen, of course, were subjects, not citizens). Story called it a "right of the citizens." Cooley specifically stressed that it wasn't limited to the militia. St. George Tucker (1803) didn't speak specifically in those terms, but made clear that he saw the right as preserving the armed citizenry.

     The individual rights view, then, is consistent with the text, the history, and the views of the leading commentators writing around that era. (Justice Joseph Story, of course, was educated in the era during which the Bill of Rights was being written, so he knew what he was talking about.) Prof. Rakove's view, I think, is not.

     But -- and here I return to the comments at the start of this post -- Prof. Rakove's view doesn't even specify what the right would mean. It isn't an individual right. Is it a right of the states? If so, how can one explain the use of the term "right of the people"? Or the fact that coordinate rights in state Bills of Rights, secured against state abridgement, surely can't have been rights of the states? Or the fact that the English right, on which the Amendment was clearly founded, couldn't have been a right of states, since there were no states in England?

     Is it a right of just whatever group the Congress chooses to call the "militia"? If so, again how can one explain the use of the term "right of the people," when the term "the militia" could obviously have been used instead? And how can one make sense of securing a constitutional right intended to constrain the government, but assigning the right to a group whose membership is defined by the government?

     It seems that Prof. Rakove's view must be that the right means nothing, and never meant anything -- certainly his op-ed doesn't say anything about what the right means or once meant. That's a funny way to read the Bill of Rights. Reading the Bill of Rights, as, well, securing to the people -- again, like you and me -- certain rights strikes me as a much more sensible approach.

     My apologies for any glitches in this post, but I'm off to an urgent appointment; I might say more about this (or just correct this post) later this evening.


JURY DUTY: Off to jury duty this morning; will be back tonight. A law professor going into the jury pool isn't quite as pointless as some people have suggested -- my colleagues have been put on juries before, and even a judge I know has served on a jury (though of course on a different court system than the one on which he sits). But still, if I were one of the lawyers, I'd strike me pretty quickly . . . .


OK, THIS BEE I UNDERSTAND: Check out The De Queen Bee, in the town of De Queen, Arkansas. Thanks to reader Joe Palmer for the tip.

Sunday, May 12, 2002


FEAR OF GUNS E-MAIL: I got quite a bit of e-mail on the "fear of guns" post; and, sure enough, one of the messages raised the "let's regulate guns like we regulate cars" argument for gun control, and another raised the "but guns are different because they are made only for killing" argument.

     I said before that those are common fallacies, and this experience bears me out, at least as to the commonness part. To see why I think they are fallacies, check out the posts from a couple of weeks ago in which these arguments are discussed: one on regulating guns like cars and the other on guns supposedly being made only for killing. More responses to the other messages later.


HOW THE ASIANS BECAME WHITE: Something this weekend reminded me of an interesting phenomenon I’ve been observing -- Asians not just being treated like whites for purposes of racial preference programs (that’s old news), but actually being called white.

     I kid you not. Consider, for instance, the late California Chief Justice Rose Bird, who wrote some years back that without race preferences, the UC system would be “nothing more than a group of elitist, ‘lily white’ institutions.” Likewise, a coorganizer of a Jesse Jackson march in favor of race preferences called UC Berkeley’s law school, whose entering class last year was 20% minority, including 14% Asian, “lily-white.” Asians aren’t just white: They are lily-white.

     The same odd white-Asian merger has been visible with the term “minority.” One MSNBC news headline announced a “Plunge in Minority University Enrollment” at the University of California, with UC Berkeley reporting that “minority admissions had declined 61 percent.” Actually, the total percentage of racial minority students at Berkeley, Asians included, fell from 57% to 49%. If you exclude the burgeoning group of people who decline to state their race, the minority percentage fell only three percentage points, from 61% to 58%.

     The drop was exclusively among blacks, Hispanics, and American Indians. Asians, who make up less than 10% of the California population, apparently aren’t a “minority.” (Discussions of declines in “underrepresented minorities” would be more accurate, but that’s not the term that was being used.)

     I first noticed this effect 15 years ago, at a party where a friend of mine commented that the guests were all white. I responded by mentioning about a dozen Asians; oh, she said, that’s right, but you know what I mean. A few years back, at a UCLA conference I attended, two speakers complained that everyone on the panel was white, without even realizing that one of the speakers was ethnically Chinese, and another was an Asian Indian with skin darker than that of many American blacks. And these are just a few examples.

     HOW THE WOMEN BECAME MALES: But wait, there’s more -- women are now becoming males. In a speech a couple of years ago, UCLA Chancellor Albert Carnesale said: “I am prepared to make a public statement about the importance of including race, gender and ethnicity in enriching the university . . . . If this university becomes only Asian and white males, that fact will drastically affect our resources. . . .”

     Of course, half of UCLA students are women. Even before Prop. 209 (the proposition that banned race and sex preferences in California public education), UCLA didn’t give women preferences in admission. The chances of the university becoming “only Asian and white males” are nil -- except, of course, if one concludes that, just as Asians are now whites, women are now males. Or maybe that’s only Asian and white women.

     By the way, if you’re worried about the fact that Carnesale at least correctly declined to call Asians white, never fear. The story went on to say (though this may well be the Bruin’s error, not Carnesale’s): “Carnesale stressed the need to work within the current legal framework to do what he could to improve minority admissions rates” -- clearly excluding Asians from the term “minority.”

     WHAT THIS MEANS: This is mostly just a factual observation; I’m not sure I have much of a grand theory about what this shows with regard to American racial and gender politics (other than the obvious points that there’s a lot of inaccuracy in these debates, and that "white" and "male" are at times used as pejoratives, to refer to "those people of whom we have too many," rather than as literally descriptive). I leave the theorizing to you. But if you have other examples of this phenomenon, with specific citations -- again, “white” being used to include Asians, “male” to include women, or “minority” to exclude Asians (or even just as a synonym for “black”) -- I’d love to hear them.


TOLEDO BLADE EXPLAINED: Reader Charles Hill pointed me to this explanation of the Toledo Blade's name:
Where did The Blade get its name? Toledo, Ohio has a sister city in Toledo, Spain. So it made sense that the newspaper be named after a well-known product of that city -- the steel-bladed sword. . . . [And i]t was believed that The Blade would "always leap from its scabbard whenever the rights of individuals, or the community, shall be infringed."
Several other readers also suggested the same derivation.

     Of course, I realize that I could have done the research myself -- but having my readers do it for me is easier, and more fun! And remember: The Sacramento Bee is as yet undeciphered.

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