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Saturday, November 09, 2002


LETTER FROM STANFORD DEAN ABOUT THE INDICTED MENTOR INCIDENT: This is apparently a letter written by the Dean of Stanford Law School, and forwarded by an Associate Dean:
Dean Sullivan has asked me to forward to you the following statement since she has no e-mail access this afternoon.

An invitation was issued to Lynne Stewart by the Director of Public Interest Programs at Stanford Law School to serve as a David W. Mills Public Interest Mentor without full consultation with faculty and senior administrators. Stanford Law School welcomes discussion and promotes rigorous debate on difficult and controversial issues. The student-sponsored "Shaking the Foundations" conference being held this weekend is an appropriate forum for Ms. Stewart and others with various points of view to speak on many issues, including the ethical limits of client representation. However, it has come to my attention that Ms. Stewart has expressed sympathy for and tacit endorsement of the use of directed violence to achieve social change. Therefore I have decided that it is not appropriate to confer the title of David W. Mills Public Interest Mentor to Ms. Stewart, and have today issued a letter to Ms. Stewart rescinding the offer to serve in the capacity of mentor to our students during her visit.

Catherine Glaze
Associate Dean for Student Affairs
Stanford Law School


IS 'TOTAL INFORMATION AWARENESS' THE NEXT 'CARNIVORE'? Today's N.Y. Times has an article by John Markoff on a government program to build a searchable super-database that would allow the government to sift through information it has collected about terrorist plans. The existence of the program, dubbed "Total Information Awareness," has actually been public for awhile-- the government even has a website up about it here. According to the government's site, the goal of the system is "to revolutionize the ability of the United States to detect, classify and identify foreign terrorists – and decipher their plans – and thereby enable the U.S. to take timely action to successfully preempt and defeat terrorist acts."

     This raises lots of interesting questions, I think. Let me start with just one: Does Total Information Awareness (TIA) raise a serious threat to civil liberties, or is it actually what many civil libertarians have been saying the government needs to do to fight terrorism? Perhaps unsurprisingly, the N.Y. Times article suggests the former. According to the Times, TIA is a "vast electronic dragnet" that will let U.S. intelligence authorities "look into" private transactions and "peek at personal data of Americans," all "without a search warrant." The article focuses considerable attention on fears that if "[i]f deployed, . . . the computer system would rapidly bring a surveillance state." According to the article, the system would signal a change from the traditional practice in which military and intelligence agencies "have not been permitted to spy on Americans without extraordinary legal authorization."

     It's hard to evaluate these arguments, I think. The article spends a lot more time discussing reactions to TIA than explaining what TIA actually is or does. But it seems worth noting that, at l ast based on the available descriptions of what TIA does, it's unclear why the opposite view (TIA as something civil libertarians have been calling for) isn't correct. As best I can tell, TIA is notable in one very important respect: it is essentially a database, rather than a means of collecting information. In other words, TIA doesn't actually gather information, "peek" anywhere, or "spy" on anything. Instead, it is a program that takes information collected elsewhere and looks for trends in the data that might point out something suspicious. It's a database of databases, not a tool for collecting evidence.

     Why is that an important distinction? I think it's important because civil liberties groups have argued in the past (persuasively, I think) that the failure of 9/11 derived at least in part from the government's difficulties processing and understanding the information it had collected. I heard this argument most often during the debate over the USA Patriot Act in October of 2001. The answer is not to pass new legislation to make it easier to collect information, the argument went, but to make sure the government can process the information it has collected already. In other words, the problem is that the government has too much information, and needs to figure out how to make sense of what it has, rather than focus on getting more.

     The question is, to what extent does TIA do what civil liberties groups have called on the government to do-- come up with a way to analyze and process information already collected to identify and understand terrorist threats effectively? If so, I would still see TIA as a potential threat to privacy. And either way, I'd like to know more about it before deciding. But until we know more information, it seems worth asking whether TIA is less sinister than today's press coverage would suggest.


THE MYTH OF CYBERTERRORISM: The Washington Monthly has a very interesting article by Joshua Green arguing that concerns about "cyberterrorism" are much overblown. Green offers three reasons why he thinks cyberterrorism has been overhyped. The first seems quite right to me:
Why all this brooding over so relatively minor a threat? Ignorance is one reason. Cyberterrorism merges two spheres--terrorism and technology--that most lawmakers and senior administration officials don't fully understand and therefore tend to fear . . . .
     Green also blames troubled dot-com companies looking for help from government funding, and a Bush Administration eager to stoke public fears about terrorism to make it easier to enact its broader anti-terrorism agenda. I'm not sure I find either of these latter two explanations particularly convincing. My sense is that the government interests themselves are pushing for cyberterrorism funding, not private industry. And the cyberterrorism hype was already quite strong by the late 1990s during the second Clinton Administration. Still, I basically agree with Green that the bark of cyberterrorism is probably worse than its bite.

Friday, November 08, 2002


PARTS OF THE WESTERN HEMISPHERE GOVERNED BY EUROPEAN COUNTRIES: People have been submitting answers to the puzzle, including some that were news to me (thus increasing the target count from thirteen to fifteen). Would you believe, for instance, Latvia (well, not quite, but close to it)? Keep at it, folks -- the truth is out there.


Many in English Plus [the pro-bilingual-ed side], made up largely of educators and parents, wanted "happy ads" featuring classroom shots.

Instead, the TV spots are dark, showing still pictures of sad-looking children while an announcer ominously lists the faults in Amendment 31. In one, the announcer states children who speak little English, largely Hispanic students, would disrupt the education of "your children" -- presumably the majority white families of Colorado.

Media critics called the spots "ugly" and said they preyed on the fears of white voters.

"Yeah, it's ominous," [political consultant Steve] Welchert says in response, "but it's cutting through." . . .

An "a-ha" moment came in September, [Welchert's partner John] Britz said. They were interviewing what they considered a typical suburban voter -- female, Republican, a parent. The woman was adamant in her support of 31.

Then Britz said her own children would be affected. That her child's teacher might be distracted by having to work with students who know little English.

"She turned," he said. "She said, 'They're going to put them in my kid's class?'"

That moment led to what would become a key slogan for No on 31 -- the controversial "Chaos in the Classroom" theme hammered home in their TV ads.

As for the merits of the campaign and the criticism it has drawn, the two say that's politics. Welchert recalls that early meeting with Hispanic leaders.

"Do you want to win?" he asked them, "or do you want to be right?"


A BIT MORE ON LARGENT AND COCKFIGHTING: Reader Jeffrey Collins passes along the following about Oklahoma, Largent, and cockfighting:
The Times probably overstates the effect cockfighting had on the gubernatorial campaign. It is very possible that cockfighting was, in the end, the reason Largent lost, but the dots just aren't that easy to connect. Largent wasn't very vocal about the issue in comparison to many other politicians in the state.

Most in-state analysts I've heard have a different take then what the Times shows. It is really undisputed that the Southeast part of Oklahoma is very heavily titled towards the Democratic party. Likewise, cockfighting has generally been most popular in the Southeast. (When my family lived in that part of the state many years ago, we had some friends who lived on Cock Fight Road.) Most analysts I've heard, and I think their reasoning is sound, believe that voters in the Southeast flocked to the polls to vote against the cock fighting initiative and just voted against Largent because they were already there. Indeed, there is some evidence that a large portion of the voters in the Southeast were first time voters. So, while it is probably true that Largent lost because of the cockfighting initiative, it wasn't so much that people were voting against him because he supported the initiative. Rather, the initiative pulled people that don't generally vote to the polls and those people were largely Democrats.

On a side note, I, as a Republican, was surprised to find myself on the side with a lot of Democrats in this issue. Republicans were largely selling this as an economic development issue. (As long as we have cockfighting we look like a bunch of hicks. Who is going to want to open up their factory here?) My main problem is that this initiative was very broad. It bans the ownership of several kinds of birds in addition to equipment typically associated with cockfighting. In my view, that constituted a huge intrusion [on] property rights.

Additionally, it really was animal rights groups who were pushing the ban. Yet I fail to see how this initiative is supposed to help the birds. Since the initiative bans ownership of the birds and it is effective tomorrow, presumably all those birds are supposed to get slaughtered tonight. The birds are helped how?


A BIT MORE ON ANTI-ISRAEL SENTIMENT AND ANTI-SEMITIC SENTIMENT: I have long objected to casual assertions that anti-Israeli or even anti-Zionist views are necessarily anti-Semitic. (For instance, the quick retort that "How can you oppose the existence of a Jewish state without being anti-Jewish?" has always struck me as odd -- one can oppose the existence of a Basque or Quebecois state without being anti-Basque or anti-Quebecois.) Certainly calls for the destruction or dissolution of Israel are hard to justify, but both criticisms of Israel and even statements of regret that Israel was ever founded are not necessarily anti-Semitic (even if they are wrong).

     And yet it seems to me that in fact many such calls are, either because they are founded in hatred of Jews or in the application of a ridiculous double standard under which Jews are condemned for behavior that is routinely tolerated when done by others. That's one reason I liked the Dershowitz piece mentioned below, and also a very good Slate piece from today. Here's the last paragraph of that piece, which I think hits just the right note:
There should be a way to design a movement objecting to Israel's policies that is free of anti-Semitism. There even ought to be a legitimate way to object to Israel's very existence on purely political grounds. But so far, it seems, no one has managed to do it.


If a visitor from a far away galaxy were to land at an American or Canadian university and peruse some of the petitions that were circulating around the campus, he would probably come away with the conclusion that the Earth is a peaceful and fair planet with only one villainous nation determined to destroy the peace and to violate human rights. That nation would not be Iraq, Libya, Serbia, Russia or Iran. It would be Israel. . . .

There are no comparable petitions seeking any action against other countries that enslave minorities, imprison dissidents, murder political opponents and torture suspected terrorists. Nor are there any comparable efforts to silence speakers from other countries.

The intergalactic visitor would wonder what this pariah nation, Israel, must have done to deserve this unique form of economic capital punishment. If he then went to the library and began to read books and articles about this planet, he would discover that Israel was a vibrant democracy, with freedom of speech, press and religion, that was surrounded by a group of tyrannical and undemocratic regimes, many of which are actively seeking its destruction. He would learn that in Egypt, homosexuals are routinely imprisoned and threatened with execution; that in Jordan suspected terrorists and other opponents of the government are tortured, and that if individualized torture does not work, their relatives are called in and threatened with torture as well; that in Saudi Arabia, women who engage in sex outside of marriage are beheaded; that in Iraq, political opponents are routinely murdered en masse and no dissent is permitted; that in Iran members of religious minorities, such as Baha'is and Jews, are imprisoned and sometimes executed; that in all of these surrounding nations, anti-Semitic material is frequently broadcast on state-sponsored television and radio programs; in Saudi Arabia apartheid is practised against non-Muslims, with signs indicating that Muslims must go to certain areas and non-Muslims to others . . . .

Our curious visitor would wonder why there are no petitions circulating with regard to these human rights violators. Is Israel's occupation of the West Bank and Gaza -- an occupation it has offered to end in exchange for peace -- worse than the Chinese occupation of Tibet? Are the tactics used to combat terrorism by Israel worse than those used by the Russians against Chechen terrorists? Are Arab and Muslim states more democratic than Israel? Is there any comparable institution in any Arab or Muslim state to the Israeli Supreme Court, which frequently rules in favour of Palestinian claims against the Israeli government and military? . . .
Read the whole thing; it's very good.


WHY IS GEORGIA (THE ONE IN THE CAUCASUS) CALLED GEORGIA? The Russian version is Gruziya, and I'm told that the Georgian is Sakartvelo. Why do Western Europeans call it "Georgia"? Answers, only, please, rather than rank speculation . . . .

UPDATE: My student Andy Schoppe points me to a Web site that says (in somewhat broken English, which adds verisimilitude) that Georgia is named Georgia because of its patron saint, St. George. My brother Sasha had a similar speculation, though he also suggested that there might have been some linguistic mangling of Gruziya to Georgia. I'd be happy to hear about more authoritative sources, if anyone has some.

FURTHER UPDATE: Further messages from my brother Sasha and from readers Lonewacko and Trevor Anderson persuade me that Georgia and Gruziya comes from the names of the Georgians in many local languages -- the names generally involve the root "gurg"/"djurdj"/"gurdj." See here for more on this theory. Now I can sleep better.


HARRY POTTER REVISIONISM at Slate. "Harry Potter: Pampered jock, patsy, fraud."


ODD CYBERSPACE LAW CASE: Is a completely fictitious Internet identity a "person" on its own terms? This Minnesota appellate decision says yes, People v. Coonrod, 2002 WL 31455255, No. CX-01-2062 (Minn. App. Nov. 5):
     Appellant Paul Coonrod was charged with soliciting a child to engage in sexual conduct following an Internet child-exploitation sting operation that caught Coonrod communicating in a chat room with "Jaime14," a fictitious persona created by a U.S. postal inspector. After Coonrod had sent a number of sexually explicit e-mail messages to "Jaime14," police arranged a face-to-face meeting, using an adult female undercover officer. When Coonrod appeared at the arranged meeting site and approached the officer, he was arrested.

     Ron Miller, the U.S. postal inspector, testified that he was working with a task force targeting the exploitation of children on the Internet, the Internet Crimes Against Children Task Force. Miller testified that he would typically enter an Internet chat room while assuming the identity of a child. Miller testified that on August 3, 2000, he entered MSN Chat, a Microsoft chat room that Miller testified was not limited to adults. Using the name "Jaime14," Miller participated in the chat session and soon received a "whisper" (private communication from another chat room participant) from a "Mnpablito," who turned out to be appellant Coonrod.

     Miller testified that "Mnpablito" inquired: "Just 14 and fun?" Coonrod e-mailed a photograph of himself, and Miller responded with a photograph of a female undercover officer taken when she was approximately 14 years old. Miller testified that Coonrod raised the possibility of "Jaime14" visiting his apartment, where they could have sex. Miller, participating under the name "Jaime14," ended the chat room exchange when Coonrod suggested meeting.

     Miller testified the e-mail relationship lasted for a month and a half. During this relationship, Coonrod gave "Jaime14" his phone number, sent two more pictures of himself, and then set up a face-to-face meeting for August 18. Although police posted the undercover officer at the arranged meeting site, Coonrod did not appear for the meeting. Miller testified that Coonrod later explained that the meeting place was too close to a police station. Coonrod and the undercover people set a second meeting for September 20. It did take place. . . .

     Officer Shannon Sills, the undercover officer who played the role of "Jaime14" in the arranged meetings, testified that she had provided a photograph of herself, taken when she was 14 or 15, for use in the Internet operation. Sills testified that she dressed in a "half shirt" and carried a backpack when she went to the arranged site of the September 20 meeting. Officer Sills testified that Coonrod stopped his truck, left the vehicle, waved to her, and then walked toward her, asking as he approached whether she was "Jaime." Sills testified that Coonrod asked about her hair, which had been had cut shorter than in the photograph, and touched her arm, "like we were going to go to [his] car," before police moved in to arrest him. Sills testified that she was 29 years old when this meeting occurred. . . .

     Coonrod argues that the evidence was insufficient to show that he solicited a "specific person" whom he "reasonably believed" was a child or that he intended to engage in sex with her. He points out that this was an undercover "sting" operation and that "Jamie14" was a 29-year-old police officer. . . .

     The statute prohibits the solicitation of a "child," defined as a person aged 15 or younger, to engage in sexual conduct. Minn. Stat. § 609.352, subd. 1(a), (2) (2000). The statute defines the prohibited act as soliciting "a child or someone the person reasonably believes is a child." Id., subd. 2 (2000). The term "solicit" is defined as:
Commanding, entreating, or attempting to persuade a specific person, by telephone, by letter, or by computer or other electronic means.
Id., subd. 1(c) (2000) (emphasis added).

     Coonrod argues that the state failed to prove that he solicited a "specific person" or that he reasonably believed that person to be a child. Coonrod also argues that the evidence was insufficient to prove that he intended to engage in sex with "Jaime14." The first argument presents an issue of statutory construction.

     Coonrod argues that the statutory language requiring solicitation of a "specific person" requires solicitation of an actual person and therefore precludes criminal liability for soliciting a fictional persona such as "Jaime14." . . .

     The term "specific person" does not denote an "actual person." See American Heritage Dictionary 1730 (3d ed. 1992) (defining "specific" as "[e]xplicitly set forth; definite"). The term "person" is not defined in the criminal code. A corporation has been held to be a "person" for purposes of the harassment-restraining-order statute. . . . For purposes of construing statutes, generally, the term "person" may include partnerships, associations, and corporations. . . .

     "Jaime14" was not a corporation or other legal entity. But like those entities, she was not a flesh-and-blood human being either. Coonrod points to no language in the statute, or in the case law, that excludes a fictional persona such as "Jaime14" from the definition of a "person," or a "specific person." . . .

     The purpose of the child-solicitation statute is "to prohibit any persuasive conduct by adults that might entice children to engage in sexual activity." Solicitation in itself is an "inchoate activity" that extends to a broad range of conduct. The statute explicitly extends that range of conduct to communications by computer. Sending e-mails and chat room "whispers" to a specifically identified computer persona with the aim of engaging that person in sexual activity fits within the purpose and language of the statute. The legislature, by requiring that the solicitation be to a "specific person," intended to exclude general messages broadcast to wider audiences, such as personal ads or bona fide media content. There is no reason to believe, however, that the legislature, having forbidden "solicitation" by computerized means, intended to exclude messages directed at a specific computer identity or "persona" that a defendant believed represented a person who was underage. . . .
     I think the result in this case is right, but the reasoning strikes me as quite odd. Under the statute, the defendant was guilty of communicating with a specific person who he thought was under 15; it turns out that the person was an adult FBI agent, but under the statute the question is what age the defendant thought the person was, and not what her age really was.

     But rather than taking this approach, the court holds that a completely fictitious persona -- an Internet screen name, essentially -- is a "person" in the eyes of the law. The law sometimes employes legal fictions, but it's a mistake, I think, to create them unless there's some really good reason for it. Here, I think it's just a recipe for confusion.

     (If you want more details on why the defendant's other arguments were rejected, click on the link and download the whole opinion; there's much more there than this, but I just wanted to extract the "fictitious persona" section.)


RAINBOW COALITION: I just realized this -- when you mix together all the colors of the rainbow, what do you get? White! What's the symbolism of that, I ask you?

UPDATE: Several people e-mailed me to point out that the colors of the rainbow only add up to white if you're mixing light; they add up to black if you're mixing pigment. Two responses: (1) It was a joke, which means that responses that take the joke seriously are fine, but only if they're funny. (2) The rainbow -- the original rainbow -- most certainly is light, not pigment.

Thursday, November 07, 2002


OKLAHOMA GOVERNOR'S RACE: Today's New York Times mentioned something that I hadn't heard of before:
Republicans were perhaps most disappointed by Steve Largent's loss in Oklahoma. Mr. Largent, a former National Football League star receiver and member of Congress, lost to State Senator Brad Henry by a handful of votes in a race that most likely turned on, of all things, cockfighting. Mr. Largent supported a ballot measure to outlaw the practice, which he called "barbaric." Cockfighting enthusiasts turned out heavily to vote for Mr. Henry and an independent candidate, Gary Richardson, who received 14 percent of the vote. Mr. Largent lost by 6,300 votes out of a million cast.
I'm no fan of cockfighting; I wish Largent had won; and I would surely not be a single-issue voter on this question in any event. But it seems noteworthy, and on balance probably good, that politicians can lose elections because they want to bar victimless conduct. (Yes, I realize that the roosters are hurt in the process, but I suspect that Oklahoma law doesn't generally protect birds much from cruelty; I suspect the chief argument was the perceived degradation of the humans watching the sport, and not the injury to the chickens.)

UPDATE: Reader Mitch Sommers passes along a local newspaper article that talks more about how the cockfighting issue might have helped bring Largent down. (Some formatting glitches there, I'm sorry to say.)


ANOTHER HISTORY/GEOGRAPHY PUZZLE: Name at least thirteen European nations that have at one point governed parts of the Western Hemisphere (not including Greenland, Iceland, or any Viking colonies in the Americas); and for each country, name all the places that they have so governed, up to a maximum of three.

     Please, factual assertions only -- no guessing (e.g., "Hey, didn't Luxembourg have something out here somewhere?"). If you believe your claim is controversial ("Little-known fact: Albania once ran large portions of Venezuela"), please pass along supporting evidence (a URL would do fine). For each European country you list, indicate the specific possessions; thus, don't just say "England," but say something like "England: British Honduras, Guyana, and the Falklands."


SNIPER. My friend and former colleague Dan Polsby, a lawprof at George Mason University, writes:
ABC News is reporting that the DC sniper's rifle, said to be a "Bushmaster," was stolen from a Tacoma gun shop.

I believe this should be made illegal.
An excellent policy proposal.


WHO GOT IT RIGHT? Howard Kurtz discusses which pundits and media people (a few) predicted the election more or less correctly, and which (many) didn't. Remember, though, "past performance is no guarantee of future results."


MARK KLEIMAN HAS AN INTERESTING POST CRITICIZING THE EFFICACY OF THREE STRIKES. I'm not an expert on the subject, so I can't tell how sound the criticism is -- but Mark is very knowledgeable on criminal justice policy, and his views on the matter are always much worth reading. Here's a particularly significant point:
In terms of crime control, prison cells spent on people past the age of forty are mostly wasted. There are exceptions to that rule, and a carefully crafted career-criminal statute would be narrowly tailored to pick up those exceptions. But the three strikes law is anything but narrowly tailored.


THREE STRIKES AND DOUBLE JEOPARDY: A reader asks "Why don't 'three strike' laws constitute double jeopardy with respect to the first and second crimes?" The Supreme Court has considered this argument, and has repeatedly rejected it, I think correctly.

     As the Court put it in Gryger v. Burke, the longer sentence for a repeat offender isn't repeat punishment for the earlier crimes; "It is a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one." Sentencing (as opposed to the finding of guilt) has long been seen as turning not just on what the defendant did in this particular case, but on his overall character and his past deeds, as evidence of his character and as a predictor of his future deeds. Lenient punishments for first offenders have long been advocated on the theory that this might have been just a temporary lapse from good behavior, and that the person should be given a second chance. Strict punishments for people with criminal histories are just the flip side of that.

    Gryger was a 1948 case, but the Court has taken the same view from the late 1800s through to the Warren Court and after.

Wednesday, November 06, 2002


RADIO: I should be on KPCC-FM (89.3) tomorrow, together with USC lawprof Erwin Chemerinsky, talking about some hot constitutional law cases from this Supreme Court Term.


PARODY, SERIOUS, OR BOTH? From the Tufts Daily (thanks to Dan Lewis for passing this along):
Representatives of The Primary Source announced the publication's attempt to initiate a campus-wide constitutional referendum to provide for a "conservative culture" representative at the Tufts Community Union (TCU) Senate meeting Sunday night.

"Conservative culture" is as much of a culture as any other and therefore should have a culture representative, said Simon Holroyd, who spoke for the Source. Its staff members are "people who share common goals, feeling and aspirations," he said. The group "feels like it needs to be together," and therefore constitutes a "culture."

Conservative students are seeking to represent their "views and ideology," which are "often under-represented and discriminated against," Holroyd said.

The original argument for the existence of culture representatives was that some minority groups on campus are underrepresented in student government and should therefore have an outlet to express their ideas and address their issues. Generally, students see Tufts as a fairly liberal campus, which places conservative groups like the Source in the minority.

"Conservatives are a distinct group of students on this campus, who have suffered numerous acts of discrimination and are historically underrepresented on the TCU Senate," Holroyd said in his letter to the Senate.

For the Source to gain a representative, the student body would have to pass an amendment to the TCU Constitution, which defines who sits on the Senate. Four culture representatives currently serve on the senate, representing the Asian Community at Tufts (ACT), the Association of Latin American Students (ALAS), the Pan African Alliance (PAA), and the Tufts Transgender, Gay, Lesbian, and Bisexual Collective (TTGLBC).

Each culture representative holds a full Senate seat and votes on all issues. Unlike other senators, however, the student body does not elect the representatives; they are elected by their respective organizations. . . .

The Source was responsible for the appearance of posters and chalkings across campus Thursday night featuring a statement made by TTLGBC culture rep Kelly Sanborn, Liotta said. The statement read, "If any group wants a rep... they should run a referendum. I'll support it." . . .

Sanborn was displeased with the use of her words. "By distributing the posters around campus, I feel The Primary Source is personalizing an issue that doesn't need to be personalized," she said. "The quote was taken out of context from a discussion last spring that was not debating [the] rights of the Primary Source to have a culture rep." . . .

Representation of conservative culture is important "especially since the student government has a penchant for passing referendums on issues in national politics," Liotta said, referring to the spring 2002 referendum on the Israeli-Palestinian situation. The referendum was proposed, but never actually passed.
I say "both."


GREAT ITEM BY CATHY SEIPP, about teenagers, voting, politics, and the Daily Show.


WINONA: Robert Sanger, a criminal lawyer in Santa Barbara (at the firm of Sanger & Swysen) posted the following analysis to a criminal law discussion list, and was kind enough to allow me to pass it along to the blog. I am not an expert on this subject, and thus have no view of my own about it, but it seemed quite interesting:
Grand theft is punishable by 16 months, two or three years in the state prison. That means that if the judge were to decide it was a state prison case (highly unlikely) he would have to impose the middle term of 2 years unless mitigating factors outweighed aggravating factors, in which case he would impose the lower term of 16 months -- or if aggravating factors outweighed mitigating factors he would impose the upper term of 3 years. If the vandalism is a misdemeanor, any sentence on that would merge with the prison term.

However, I would assume that probation would be granted. Imposition of sentence would probably be suspended (as opposed to imposing the sentence and suspending it) meaning that, if there is a violation of probation, the range of sentences would be available. As terms of probation, Ms. Ryder would be subject to conditions, such as, search and seizure of person or property with or without probable cause, obey all laws, not enter a Saks store, pay a fine, etc. In addition, she could be required to do up to one year in the county jail.

Ordinarily, people convicted of a first offense shoplift (those who were not able to make a better deal, for instance, for a civil compromise or a trespass) get probation with no real time in the county jail. The courts like to make sure that the conviction will count as a prior (to make a subsequent petty theft a felony) so some "time" in jail has to be imposed. This is often accomplished by giving credit for one day served based on the time in custody at the time of arrest and booking. If she was cite released (given a ticket and not arrested and booked) then the court often will impose one day which can be satisfied with a book and release -- meaning no actual jail time.

If the court wants to impose a greater punishment, which it might in light of the value of the property taken, she might be sentenced to a number of days in jail (again, anywhere up to 365). However, she would probably qualify for a Sheriff's Work Release Program (where she goes to work on a CalTrans road crew cleaning up litter along side the freeway) or for electronic monitoring (where she would be on "house arrest" but be allowed time to go to work, to the store, the doctor, etc.). If, by chance, she was required to really go to jail for a substantial period of time and could not get into one of these programs, she could arrange for a private jail which, I understand, is preferable to the Sybil Brand Institute (L.A. County Jail for women).

In a felony, the judge is required to refer the case to the Probation Department for a pre-sentence report. A Probation Officer will interview her, assimilate all the information from the police reports and elsewhere and then make a sentencing recommendation. I would expect that the defense will also arrange for its own private sentencing report and will make a presentation at the sentencing hearing. They may want to go into psychiatric or other issues that would tend to mitigate the punishment and they may want to propose a more creative sentence emphasizing community service.

Before sentence is imposed, we can also probably expect a motion for new trial based on allegations of errors of law, Brady error, newly discovered evidence and, if she switches attorneys, ineffective assistance of trial counsel.

Also, if it proceeds to sentencing, the defense will probably ask the judge to make the case a misdemeanor by way of sentencing under Penal Code Section 17(b). The court can simply decline to suspend (or impose) the felony sentence and sentence her to up to one year on each count as a misdemeanor. Once again, that year (or imposition of that year) can be suspended and misdemeanor probation could be imposed using the same range of terms which are available in felony cases.

Finally, if the judge imposes either felony or misdemeanor probation, Ms. Ryder would be permitted to petition the court upon the successful completion of probation for an order under P.C. 1203.4 to have the case treated as if she had entered a not guilty plea, there was no conviction and the case was dismissed. If the probation was for a felony, she could first ask to have the case reduced to a misdemeanor before having it dismissed pursuant to 1203.4. This is a type of one-free-bite-at-the-apple statute. The rap sheet will be amended to show the arrest, and then a not guilty and "dismissed 1203.4." The conviction still must be disclosed if she applies for a license, runs for office or contracts with the state lottery (really!). As a practical matter it should be disclosed to any agency which can obtain a rap sheet -- e.g., NASD, banking institutions, the federal government -- since it will come up (not to mention that everyone in the world knows about it by now anyway).


A BIT MORE ON THREE STRIKES: Reader Jeff Bishop suggested that it might be worth reminding people of one basic thing about the California Three Strikes law: The 25-to-life provision (that's the "you're out") part kicks in only if a person commits two violent or serious felonies (generally either violent felonies or burglaries), and then commits a third felony, which need not be violent or serious. Thus, for instance, a San Francisco Chronicle columnist was quite mistaken in saying:
The "three-strikes" law, passed overwhelmingly by angry California voters and legislators in 1994, allows for any criminal convicted of a third felony to be sentenced to life in prison.

     What possible justification might there be, some would say, for requiring the first two felonies to be serious or violent, but not the third? Well, I'm not sure exactly why the law was written this way, but there's certainly a plausible reason why some might want to write it this way: The goal of the law is not to punish the third strike as such, but to prevent the fourth strike by locking the person up.

     When you know that someone has committed (say) two armed robberies and then a theft, you have good reason to think that this is the sort of repeat offender who's likely to commit more crimes if he's promptly released. What would those future crimes look like? Well, they might be thefts -- but they might be armed robberies. The theory of the law is that it's better to err on the side of caution, and lock up the criminal to prevent those future armed robberies (which might lead to murders or rapes or serious injuries).

     Now there might be reason to think that, despite this, the law is unfair or inefficient in some cases. A good case can be made for the proposition that if someone has, for instance, committed two nonviolent burglaries 10 years before, and now commits a grand theft that's tried as a felony, and is now 40, spending all this money to lock him up for at least 25 years is probably not a good investment of state resources -- much depends on just how badly you want to prevent him from committing the next crime, and what you think that next crime is likely to be. It's a tough question, and I express no opinion about it here.

     But it is worth remembering that the law does not "allow[] for any criminal convicted of a third felony to be sentenced to life in prison."


CONVENTIONAL WISDOM ON THREE STRIKES: Conventional wisdom about three strikes laws is that the legislature will never soften them, even if they seem to reach unfair or wasteful results in some cases. Here, for instance, is what Stanford law professor Robert Weisberg (by the way, though I don't know him well, mutual acquaintances speak quite highly of him) has to say about this:
Weisberg added it would be up to legislators to soften the law, and that seems unlikely too.

"There is nothing to be won," he said, "and everything to lose if you look like you're soft on sentencing."
I've heard some scholars use this as an argument for courts stepping in to strike down seemingly excessive sentences: The political process, the argument goes, isn't properly reining in such sentences, so it makes more sense for courts to do so, rather than to defer to the legislature.

     But I just don't see why this is so. Sure, voters might generally support long sentences for criminals, but legislators who propose a modest cutback in three strikes -- for instance, making three strikes apply only to cases where the most recent felony is also a violent felony or a burglary -- might well persuade the voters, especially since they'll have a good fiscal prudence argument: "Why should the state take care of this petty crook for 25 years, which will cost hundreds of thousands of dollars? Why not focus our energies on pursuing the genuinely violent or serious criminals?" Curiously, another argument made by opponents of California's three strikes law is that the voters didn't realize that the law would lead to 25-to-life terms for people whose third felony was a petty theft; if that's right, then why wouldn't voters be willing to consider correcting this supposed "mistake"?

     But this isn't just speculation: In 2001, Oklahoma and Louisiana -- two states that are generally seen as quite conservative on criminal justice matters -- softened their three strikes laws. Apparently the legislators in those states thought that such modest revisions were both sensible and politically feasible, and the same could happen in California. (The California Three Strikes law was enacted by initiative, as well as by the legislature, but that just means that if the legislature wants to amend the law, the amendment won't take effect unless it's also approved by the voters -- hardly an insurmountable burden for modest amendments.)

     Of course this doesn't by itself resolve whether such amendments are necessary, and it doesn't dispose of whether the three strikes laws violate the Cruel and Unusual Punishments Clause of the Constitution (I think they don't violate it). But one particular argument about the laws -- that even if they are too harsh, the legislature will never fix them, even as to relatively mild offenses, because of fear of voter outrage -- strikes me as unsound.


ONE OF MY HOPES FOR THE COMING YEAR IN THE REPUBLICAN-CONTROLLED SENATE: Michael McConnell, one of the top First Amendment scholars in the country -- and a nominee who has been supported by many liberal lawprofs as well as conservtive ones -- gets confirmed as a 10th Circuit judge.


"THE DEMOCRATS' RACE CONSPIRACY THEORY", in the Weekly Standard today -- I haven't kept up on all the controversies that the article describes, but it seems quite sound.


A BIT MORE PERSPECTIVE ON STANFORD: Reader Matthew Raben writes:
I graduated from Stanford Law School this past May. Stanford generally brings in great speakers, and usually, after some prodding, is willing to bring in people with alternative view points. However, there are these programs like the Public Interest Mentor program where it is badly one-sided. There is (was?) something called the "Lawyer Heroes Series," in which individuals were brought in to talk about their legal crusades. Our "lawyer heroes"? People like Kitty MacKinnon, Brian Stevenson, and Maria Vullo. All really smart people who have done impressive things and were fascinating to listen to. But it was, quite frankly, ideological. Every single Lawyer Hero was an advocate for some traditionally left-wing cause. But you probably see this at UCLA too. It only counts as "public interest" if the cause is officially sanctioned by the left. A lawyer for the NRA is not fighting for civil liberties in the public interest, but a lawyer for the ACLU is.

I hope your coverage helps prompt a flood of protest email to Dean Sullivan (whom I hold in the highest esteem, incidentally). . . .

PS. Did you notice that Lynne Stewart is being introduced by Deborah Rhode, our resident legal ethics scholar?!? No doubt they'll talk about the chilling effect of her prosecution on lawyer-client communications, and not the ethical considerations of, say, fomenting terrorism on behalf of one's clients.
The Left bias at Stanford Law School shouldn't be that surprising to readers of this blog -- or for that matter to anyone, left or right, who's familiar with U.S. law schools. But I think Mr. Raben was also right to sound a note of optimism: With some prodding, law schools (perhaps more so than other left-leaning departments, though that's just sheer speculation on my part) are often willing to provide some degree of balance. I certainly see this at UCLA Law, where the faculty leans very heavily towards the left, and the student body leans somewhat less heavily in that direction -- despite this bias, events (both faculty- and student-sponsored) are often fairly balanced, especially if people lean on the organizers to do the right thing.


OOPS! I TAKE IT BACK. Earlier today I had posted some thoughts on an article in the Yale Law Journal, The Freedom of Imagination: Copyright's Constitutionality by Professor Jed Rubenfeld. On reflection -- and prodded by some helpful e-mails from readers -- it turns out that the error was mine. So if you saw the initial post, just ignore it: Professor Rubenfeld is right.


A TELLING ANTI-GUN OP-ED: It's in the Christian Science Monitor (thanks to reader Phil Dennison for pointing this out):
This week, as United Nations weapons inspectors returned to Iraq after a four-year absence, George W. Bush, bolstered by the midterm election mandate, reiterated the need to keep Iraq free of weapons of mass destruction (WMD) -- by going to war if necessary. [Several paragraphs that are generally derisive of the Bush Administration's campaign against Iraq omitted -ed.]

In any event, the Bush doctrine would make much more sense were it applied in the one place Washington has refused to consider it: at home.

After all, it is only within the borders of the US that the government can realistically corner the market on force. And the need for such a monopoly has never been greater than today, as the recent sniper attacks have made tragically clear. . . .

The White House is demanding full weapons disclosure from Iraq, refusing to tolerate "any deception, denial or deceit, period," but it will not consider requiring similar information at home in the form of a national gun registration. By refusing to catalog the Americans who possess high-powered weapons and rejecting calls to limit gun ownership, Washington has impaired the ability of law-enforcement agencies to protect Americans in their own country.

Some will object that it is unfair and inappropriate to compare foreign and domestic policy; that the two realms, with different priorities and different rules, aren't analogous. That's true. But there's no reason that the principles behind one policy shouldn't inform the other.

If achieving peaceful order abroad requires establishing a de facto Pax Americana, why shouldn't Washington adopt the same approach at home? . . .

The White House has also argued that the Constitution prevents many of the proposed restrictions on guns. But this administration has blithely disregarded legal restraints when it comes to foreign policy: whether the ABM Treaty that Bush unilaterally abrogated earlier this year, or the constitutional guarantees of due process and habeas corpus that the White House has ignored in detaining terror suspects.

Consider the Bushmaster rifle used by the Beltway snipers. Billed as the civilian version of the M-16, this gun rivals anything used by police. It's the domestic equivalent of chemical weapons: a relatively cheap and portable tool than can wreak havoc and inflict great harm on a more powerful opponent.

Bush is ready to send tens of thousands of soldiers into battle to disarm Iraq of such a tool, even though the Bushmaster is freely available at home to virtually anyone who can afford one. . . .
There's more, but I don't want the post to go on too long. A few quick thoughts:
  1. The authors start by suggesting that the government should try to ban all guns ("corner the market on force," have a "monopoly" on weapons), and then go on to complain that the Administration "will not consider requiring [weapons] information at home in the form of a national gun registration." Is it really so paranoid, given this, for some gun owners to oppose national gun registration precisely because they're afraid that it would contribute to a total gun ban?

  2. The authors (one of whom is a lawyer) complain that the government is violating international law and the Constitution. Their solution? To violate another part of the Constitution. Hey, in for a penny, in for a pound -- might as well violate the First Amendment, too, whenever we think it will help things. Or how about the Fourth Amendment -- house-to-house sweeps for all guns. After all, we're trying to make Hussein comply with inspections, and trying to disarm a tyrant who is trying to develop nuclear weapons is just like trying to disarm law-abiding Americans, right?

  3. Note the assertion that the Bushmaster "rivals anything used by police. It's the domestic equivalent of chemical weapons: a relatively cheap and portable tool than can wreak havoc and inflict great harm on a more powerful opponent." Actually, the Bushmaster rifle is the domestic equivalent of, well, a rifle. It kills one person at a time, just like any other firearm (and it's in fact no more lethal or longer-range than rifles generally are). The problem with the sniper wasn't that he somehow outgunned the police, or that he killed more powerful opponents. It was simply that he killed people. If you want to fault guns generally, that's one thing -- but the analogy to chemical weapons is spurious.

  4. The authors paint a rosy picture of Washington trying to implement "a de facto Pax Americana" by banning guns. Except they nowhere confront the main argument against gun control: That trying to achieve a gun-free society, like trying to achieve an alcohol-free society, won't work, and will do more harm than good. Maybe if all guns could vanish, the nation would be a more peaceful place; I'm not sure, but it's possible. But given that there are 200-250 million guns in America, trying to ban them will simply mean disarming most law-abiding citizens -- and very few criminals. An odd sort of Pax when the bad guys are armed and law-abiding citizens aren't.
     I've said it before, and I'll say it again: There are plausible arguments for various gun control proposals, though I'm ultimately unpersuaded by most of them. But this sort of "treat Americans like Saddam Hussein" / "might as well violate a few more Amendments" / "rifles are like chemical weapons" / "we want to confiscate guns, so why are people so upset when we try to register them first?" approach is not one of them.


COOL OPTICAL ILLUSIONS. Thanks to GeekPress for the pointer.

Tuesday, November 05, 2002


"VOUCHER STUDENTS GO BACK TO PUBLIC ED," reads the front page headline. "Voucher students going back to public schools," reads the headline on the page containing the story. Then the subtitle "Newspaper: 1 in 4 transfer out of private education"; apparently "This summer, 607 students requested taxpayer-funded vouchers to leave public schools that received failing grades. As of last week, 170 had returned to public schools, The Miami Herald reported Sunday."

     So nearly 3/4 of all students who left public schools are staying out of public schools -- but 1/4 have returned, and that means "Voucher students go back to public ed."

     By the way, what are the reasons that the CNN story gives? "Many returning students said they felt more comfortable at their neighborhood schools, even those labeled as failing." Understandable -- some kids are more comfortable with the environment they know, and the friends they've made, even if the education is lousy. "They also cited trouble with transportation" -- hard to tell exactly what the problem there is -- "and more demanding curricula or firmer discipline at their new schools." Now that's an interesting point. Perhaps we should use this as a criterion for the success of private schools; if no-one transfers back to public schools because of "more demanding curricula or firmer discipline" at private schools, that means that the private schools are probably failing.


JUSTICE O'CONNOR, EFFICIENT AS ALWAYS: As usual, Justice O'Connor was in a tie for the first authored Supreme Court opinion of the Term (yesterday's Yellow Transportation, Inc. v. Michigan). I haven't kept close statistics, but my guess is that she has been first or tied for first in the majority of the last 10 Terms.


A QUERY THAT LED TO THIS SITE TODAY: "People for a small sliver of the malibu way." Don't ask me what that's all about.


"CAN THE WEB BE BELIEVED? NOT ALWAYS, STUDY FINDS." Wow, what an eye-opener! Thanks to Best of the Web for finding this.


WRONG BATTLEFIELD: Best of the Web points to a Minneapolis Star-Tribune piece that analogizes Hamdi -- the American citizen who "was part of a Taliban unit captured in Afghanistan last year" -- to the Japanese internees during World War II, who were not fighting for anyone. The Star-Tribune writes:
Hamdi's plight recalls the days of the Japanese internment camps -- the shame of World War II. Back then, having the wrong ethnicity was enough to justify indefinite lockup. These days, it seems, being caught on the wrong battlefield is enough to scotch due process.
Um, wouldn't the better analogy be to Japanese soldiers rather than to peaceful American citizens of Japanese descent? (Incidentally, I actually think that the civilian courts should provide some means for testing whether citizen-detainees are in fact enemy combatants -- but the analogy to Japanese internees strikes me as quite useless, and the Star-Tribune in any event concedes that Hamdi was indeed an enemy combatant.)


"FLAWED EXIT POLLING DATA ABANDONED" -- "Voter News Service won't provide some information Tuesday." (Thanks to Slate for the link.)


AND THE STANFORD LAW SCHOOL MENTOR SUPPORTS STALIN, TOO: Reader Dan Kevin pointed me to this interview with Lynne Stewart, in the Left journal Monthly Review:
[Interviewer]: Let’s say you were part of a government that you actually trusted and supported, and your country held political prisoners. At what point would you think monitoring and controlling these people was acceptable?

[Lynne Stewart]: I’m such a strange amalgam of old-line things and new-line things. I don’t have any problem with Mao or Stalin or the Vietnamese leaders or certainly Fidel locking up people they see as dangerous. Because so often, dissidence has been used by the greater powers to undermine a people’s revolution. . . .
Such a great role model Stanford Law School is choosing to mentor their students!


BE MENTORED BY "AN ATTORNEY WHO'S AT THE CENTER OF THE DAY'S IMPORTANT ISSUES": Stanford Law School is inviting Lynne F. Stewart to be a Visiting Public Interest Mentor on Nov. 11-12.

     Stewart, you may recall, is the lawyer who has been indicted for passing messages between her client and his terrorist associates (in violation of a court order, and far beyond the scope of her right to represent him as a lawyer). "Stewart and the three others are accused of passing messages between the Islamic Group and [Sheik] Abdel-Rahman, who is serving a life sentence for a 1995 conviction in a thwarted conspiracy to assassinate Egyptian President Hosni Mubarak and bomb New York City landmarks, including the United Nations and bridges and tunnels." Here is a copy of the Stanford announcement, as it was forwarded to me; this appears legit, and I have also confirmed with the Stanford people that Lynne Stewart will indeed be a Visiting Public Interest Mentor:
To: law-announce@lists.Stanford.EDU
From: . . .
Subject: Visiting Mills Public Interest Mentor Lynne F. Stewart
Sender: owner-law-announce@lists.Stanford.EDU

Dear students,

Please join me in welcoming our third visiting public interest mentor this term, Lynne F. Stewart, Monday and Tuesday, November 11 and 12. Lynne is a New York criminal defense attorney who, in April 2002, was indicted by the United States Justice Department for activities related to her representation of Sheik Omar Abdel Rahman. Rahman was convicted for his involvement in the 1993 World Trade Center bombings. Lynne has emphatically declared her innocence.

Come to a lunchtime discussion Monday, the 11th, 12:30-2:00, on the issues surrounding her case. Professor Deborah Rhode will be there to introduce Lynne and discuss those issues with her.

On Tuesday, the 12th, sign up for a one-on-one mentoring session with Lynne if you are interested in doing criminal defense work. We are also having lunch that day, which will have limited openings for students.

If you are interested in a one-on-one mentoring session or lunch with Lynne Tuesday, please e-mail a resume to Mary Stiles,, no later than 5 PM Thursday, November 7.

I hope you'll take advantage of these opportunities to interact with an attorney who's at the center of the day's important issues.
I suppose that the Stanford law school administration, or the administrators of the mentoring program, might have consulted all the evidence and decided that they believe Mills to be innocent (not just of the criminal charges in indictment, but also of the violation of a court order). But if they haven't so concluded, then isn't it a bit odd to invite her not just as a speaker, but as a mentor -- a position that presumably carries with it some endorsement of her character and her legal ethics?

     Yes, of course Ms. Stewart is, for legal purposes, innocent until proven guilty. But that's the perspective of the justice system; it need not be, I think, the perspective of educational institutions. Unless Stanford Law School thinks that she's actually innocent, and actually behaved in a legal and ethical way, should they be really inviting her to mentor future lawyers?

UPDATE: It turns out that Ms. Stewart also "do[es]nt have any problem with Mao or Stalin or the Vietnamese leaders or certainly Fidel locking up people they see as dangerous," according to a recent interview.


RESPONSE FROM THE AUTHOR OF THE NCC WASHINGTON UPDATE: Yesterday I posted my disagreement with the way a history newsletter -- the NCC Washington Update -- reported on the Bellesiles matter. I also e-mailed the author about this, hoping to get his side of the story. Here it is; he was kind enough to allow me to post it:
Dear Professor Volokh:

Thanks for dropping me a note. Glad to respond, but sorry about the hurried nature of the response. Election day events are keeping me rather occupied at the moment.

As to question #4, the committee found no "intentional fabrication of falsification of research data" in the table but indeed did properly take Bellesiles to task for "failure to clearly identify his sources" which does move the question into the realm of "falsification." The Committee suggested however, that Bellesiles' lack a familiarity with quantification methods "could explain some of the known deficiencies." They also did take him to task for excluding data from 1774-1776 but in his response, Bellesiles does seem to give a cogent response as to why he excluded the data. Therefore, in that space is at a premium in the WASHINGTON UPDATE, I chose not to emphasize that particular issue -- I did however, mention the committee's problem (and Bellesiles' admission) with respect to data replication (which in my reading of the book is more problematic than the committee was willing to admit to, but then, their examination focused on a very narrow set of issues.)

As for the nuances of questions 1 and 2, the conclusion you quote, probably does better capture the gist of the committee's secondary concerns regarding questions 1 and 2. However, the generalizing in paragraph #5 in the UPDATE I think pretty much reiterates the generalized concerns the committee had with regard to the totality of Bellesiles' work. Personally, I do think the "deliberate fabrication" accusations were the ones most historians wanted to see addressed by the committee -- and they did so boldly and forthrightly. The cited conclusion, "that his book has resulted in an "unprofessional and misleading work" I think sums the committee's views on the book fairly well.

Thanks for writing.

bruce craig


ABC NEWS TONIGHT: Looks like I'll be on it, talking (very briefly, doubtless) about the constitutional questions raised by the atheist Boy Scout incident. Of course, you heard my views here long before the ABC audience did. Warning: The news business being what it is, there's absolutely no guarantee that the spot will air; they were just out here taping it, but they might well throw it out if there's a more important story that they need to cover.


REFERENCES PER MILLION POPULATION: Malawi weighs in with 86 hits, but a population of 10.7 million, so it's the leader in this category. Going to be hard to beat that, I think.


MORE OBSCURITY: Readers Gregory Taylor and Jimmy Frazier point us to the Comoros (pop. over 600,000), with 32 hits, one fewer than Suriname (though Suriname continues to have the lead in the Continental Obscure Countries category, since the Comoros are an island nation). Other suggestions -- Guinea-Bissau and Bhutan -- aren't even in the running, with 75 and 80 hits, respectively.

     Ted Ruger, however, beats that with Sao Tome and Principe (28 hits, pop. 170,000).

     Gregory Taylor also suggests Saint Vincent and the Grenadines (29 hits), but I disqualified it, because if one includes St. Vincent and the Grenadines, there are 66 hits. Yes, the St. version is not the official name according to the CIA Factbook, but, hey, I get to change the rules just like state supreme courts do.

     The leaders so far are thus Sao Tome and Principe in general (28 hits), Suriname as to continental countries (33 hits), Lesotho in the over 1 million population category (53 hits), and Lesotho in the hits per million inhabitants category (53 hits, 2.2 million).

UPDATE: Gregory Taylor writes "Well, let me just say that it's truly gratifying to be associated with this important and scholarly undertaking." That's the spirit, Gregory! We are on the cutting edge of the development of knowledge.

FURTHER UPDATE: My colleague Jonathan Zasloff writes "Speaking of hits -- 'St. Vincent and the Grenadines' -- doesn't that sound like a mid-60's one-hit wonder?" Indeed.


"SOME EDUCATION NEEDS TO TAKE PLACE": Here's an article from the UT Daily Beacon, a few days after the blackface incident:
UT presently does not have a code that would deter such an incident as what occurred last week at RT Warehouse, where members of Kappa Sigma darkened their faces and masqueraded as the Jackson 5 and Louis Armstrong.

"UT does not have a hate-speech code at this point," said Bryan Coker, director of student judicial affairs. "Definitely some education needs to take place."

Coker said the incident has not reached his office, and he is unsure if it will.

"It hasn't really fallen with our area at this point," Coker said.

He said Tim Rogers, vice provost of student affairs, is currently investigating the situation and Kappa Sig.

About three years ago, the Student Government Association debated the need for a hate-speech code at UT, but the policy was never created, Coker said.

He does encourage students to look into setting up such a code.

"A lot of campuses have done it, and it's definitely something to look at," Coker said. "I think it, most appropriately, should start with the students." . . .
Well, yes, when an official at public university suggests a campus speech code -- one that would apparently be broad enough to cover people appearing in blackface -- "definitely some education needs to take place." I would start by trying to educate the official that all the cases involving public university speech codes (UWM Post, Doe v. Univ. of Michigan, Dambrot, and Iota Xi) have held that they violate the First Amendment.


SOME PEOPLE AT UT ARE SPEAKING OUT: Here's a letter criticizing the UT administration's failure to defend free speech principles -- I much agree with this one:
Editor, The Daily Beacon:

I am appalled at the willingness of the campus community to abandon one of the most important freedoms that we as Americans have the right to enjoy: The freedom of speech. The First Amendment guarantees the freedoms of religion, speech and the press. Why should we seek to punish a group of citizens for expressing themselves via Halloween costumes? Is this expression not covered under the First Amendment? Has it become the university's policy to police and control what its students believe or even how they dress while off campus?

I don't personally agree with the choice of costumes that the members of Kappa Sigma used on Halloween, but it is well within their constitutionally protected rights to dress however they wish and not fear reprisal from any governmental agency, much less the university they attend. We must remember it is the speech for which we feel the most disdain that warrants our greatest protection.

Kenneth Small

graduate student in economics
There is also a op-ed column and another letter on the same subject this morning, though I don't agree with either entirely.

     (Note that the costumes were apparently not used on Halloween proper, though from the context I suspect that the party, about a week before Halloween, was a Halloween-themed party.)


MORE ON STUDENT SPEECH AT THE UNIVERSITY OF TENNESSEE: I got my hands on the letter that Loren Crabtree, the UT Vice President and Provost, wrote to the students about this incident. I find it quite troubling.

     I think the University certainly has the right, and sometimes the moral obligation, to speak out against speech that it finds offensive. But here it seems to be threatening administrative punishment -- the message seems to be that if people engage in speech that is "racial[ly] insensitiv[e]," the University may take action (for instance, by refusing to reinstate the organization) unless the speakers prove their "commitment to uphold our expectations for civility, ethnic diversity and racial harmony." Speakers who have dissenting views about what is racially insensitive (not just racists, but those who believe -- rightly or wrongly -- that it's OK for white people to dress up as the Jackson Five), or about what should constitute "racial harmony" or respect for "ethnic diversity" or "civility," had apparently better watch out.
November 1, 2002

Dear Faculty, Staff, and Students:

"I am taking this opportunity to bring you up to date on some events at UT in the past few days that are distressing to President Shumaker and me and to let you know what steps we are taking to address the situation.

"The national office of Kappa Sigma fraternity and the University are cooperating in an on-going investigation of the events surrounding last week's unfortunate display of racial insensitivity by members of the fraternity's local chapter.

"Effective immediately, the UT chapter of Kappa Sigma has been suspended by its national office. With that action, the local chapter no longer has standing as a registered student organization and is suspended from participating in University activities such as Homecoming.

"Even if the national fraternity lifts the suspension of the Lambda chapter, the University will not automatically reinstate it. We will require the leaders and members of Kappa Sigma to demonstrate a commitment to uphold our expectations for civility, ethnic diversity and racial harmony. We expect the Lambda chapter and all other student organizations to uphold these standards.

"Last week's appearance of Kappa Sigma members in blackface was insensitive and offensive to those who work tirelessly to improve the climate of understanding and diversity on campus. This incident is particularly distressing to the members of the University administration because all fraternities and sororities participated in a workshop a year ago to address a similar situation at another institution.

"We will not, however, let the actions of a few diminish the progress that has been made and plans we have for the future.

"We made commitments earlier this year to increase funding for the African and African-American Studies program. This will enable us to hire new faculty and offer additional courses. More than a year ago, the University began making plans to launch Africa Semester in January 2003. The semester-long program will celebrate Africa's cultural, entertainment and educational contributions to non-African cultures around the world. A student peer training program on race and diversity will be initiated this spring, and a special session on race and diversity will be added to the summer orientation program for new students.

"There is much to be done, but UT President John Shumaker and I, in concert with the University community, are committed to a climate of civility and multicultural understanding. We seek the involvement of the campus community and public at large in this endeavor."


Loren W. Crabtree
UT Vice President and Provost
Not a word about free speech, and not a word acknowledging that students might have the right to express dissenting and even offensive views. Glenn Reynolds tells me that he thinks the Administration seems to be waking up to the First Amendment issues since the letter came out -- and since UT started being criticized for it. I hope he's right.


MOST OBSCURE COUNTRY -- THE ONES TO BEAT: Reader Curt Cutting has a nomination: Lovely Suriname, population 436,000, 33 hits in five years. (A supplemental search for Surinam yields 5 more hits, but we set that aside, as per the rules.)

     In the over 1 million category (I know, I just made it up), he suggests Lesotho, 2.2 million, 53 hits in five years. He further theorizes that it has the most hits per capita; if you want to extend your searches to cover that metric as well, be my guest. These are, I think, the ones to beat now.


ANOTHER SILLY SELF-SELECTED SURVEY: Check out the BusinessWeek Online survey, which purports to find that "gun owners see no problems with the nation's gun laws -- and they don't want anyone to mess with their rights. That's the conclusion from the responses of more than 6,000 readers to our Reader Survey on this topic posted on Oct. 24."

     Uh, no, you can't conclude that about gun owners. You can't even conclude that about those gun owners who are also BusinessWeek Online readers. You can only conclude that as to the 6,000 people who happened to answer this survey. We have good specific reason to think that they're pretty unrepresentative of BusinessWeek Online readers -- 91% of the respondents were gun owners. There are doubtless lots of other ways in which they're unrepresentative (for starters, they care enough about the subject to answer a survey about it).

     These sorts of surveys are junk social science; they tell you nothing at all about anything that you want to know about (unless you for some reason happen to want to know how these particualr 6,000 people responded). It's irresponsible for otherwise reputable publications such as BusinessWeek to conduct them.

Monday, November 04, 2002


TALKING TURKEY: My colleague Jonathan Zasloff writes:
All the talk about polling results, voter fraud, election lawsuits, etc. has smothered the potentially momentous story of the weekend: the elections in Turkey, which had the definitive result of propelling an Islamist-oriented party (the Justice and Development Party, known by Turkish initials, the AKP) into a majority position in Turkish parliament. This is a potential world political earthquake that the press has obscured.

Turkey, of course, is an Islamic country, but a resolutely secular one: secularism is built into its Constitution, and the last time an Islamist party gained power, the military and the judiciary banned it. The AKP's election landslide, then, could mark another constitutional crisis--and create a new foreign policy crisis for the United States. For an invasion of Iraq to occur, the United States needs Turkish bases--a point that US Central command general Tommy Franks underscored when he visited Ankara two weeks ago. How likely is that to happen with an Islamist government? The AKP's leader, Recep Tayyip Erdogan, is banned from becoming Prime Minister because of a prior conviction for Islamist sedition--but he will continue to pull strings behind the scenes. And while Erdogan's first steps--such as planning a goodwill trip to Turkey's arch-enemy Greece--have been positive, this is still the man who, while mayor of Istanbul, banned the serving of alcohol in restaurants.

The AKP insists that while its roots lie in its banned Islamist predecessor, it is committed to upholding the Turkish Constitution. It also vehemently contends that it will pursue European Union membership, which would be impossible if the country's policies tilted sharply Islamist. But one can easily imagine the bone thrown to its radical base: stopping cooperation with Washington.
This wouldn't have to be dramatic--just a new, marked coldness toward American military plans. And even if cooperation resumes, it's easy to foresee how this throws great difficulties into any Bush Administration plans for war on Saddam Hussein. Maybe the AKP will maintain military ties with the United States--indeed, it's difficult to see how it wouldn't do so for fear of the Turkish military. But it could take weeks, if not months, for the US military to figure out how much it can reciprocate. Does it truly want sensitive military plans being available to an Islamist Defense Minister?

The elections do not necessarily show that Turks have become Islamist--the AKP triumphed in large part because of the disastrous economic performance of the outgoing administration. But at the very least, the developments could severely undermine the war effort--at most it could remove the possibility of operating from Turkish bases. That is very, very big news. And it deserves very, very big coverage in the press so that we can understand the real implications of the elections. Where is it?


PREDICTIONS: Reader Kirk Parker, responding to "If you can't predict the future, what can you predict?" recalls the old Soviet line: "Only the future is certain; the past keeps changing." Indeed.


MOST OBSCURE COUNTRY: Is it Mauritania? Kyrgyzstan? Belize? What is the country that even many geographically literate Americans would be least likely to have in their consciousness, even if, when prodded, they could tell you where it is?

     Readers equipped with free LEXIS -- this is your big chance: Find for us the most obscure country (with population of over 100,000, to exclude the deservedly obscure) in the world, as judged by the number of citations in the NEWS database, LAT file (Los Angeles Times), date range DATE(> 10/31/1997) AND DATE(< 11/1/2002). Why the Los Angeles Times? Because, unlike the New York Times and the Washington Post, it's so quintessentially American -- large and in many ways significant, but at bottom quite parochial. If the Los Angeles Times notices Kyrgyzstan, it's because Kyrgyzstan has found some way to intrude on our national attention, and displace momentarily thoughts of important events, such as the Winona Ryder trial.

     There will be uncertainties of many sorts in this contest; I will resolve them all, entirely in my own discretion. For instance, LEXIS searches will yield many false positives, and I will decide whether a country should be disqualified or have its totals adjusted on those grounds. I am sad to say that, owing to the project design, the country of Chad -- and probably some others -- is excluded from the competition. Because we need a standard, the name of the country and its population will be assumed to be those listed in the CIA World Factbook 2002.

     The contest will run until this Friday, November 8. Since it will be very easy to post the results, I promise that I will post them promptly (as opposed to the results in the Amendments project, which are sitting in my folders for many months now, and which I do seriously much hope to be able to get to soon). Again, the query must be in the LEXIS database, LAT file, with the selection DATE(> 10/31/1997) AND DATE(< 11/1/2002). Let the hunt begin.


MARGINS OF ERROR ERROR? I still stand by the bottom line of my post on margins of error earlier today, but I think that I was off enough to justify a correction.

     I was trying to explain why a 46%-41% poll with a +/-3.2% was properly described as a statistical tie. Usually, as I understand it, the margins of error of most polls involve a 95% confidence interval; but since 46%-3.2% < 41%+3.2%, the difference is thus within the margin of error. I then speculated that given the fact that a 2.5% error would yield an exact tie, the 46%-41% would yield only an 80% confidence interval (I didn't have the tables handy, so 80% was just my rough guess).

     It turns out, as reader George Best pointed out and as my brother Sasha confirmed, my guess was off: the 46%-41% number would be statistically significant at the 88% confidence level (my intuitive interpolation was just mistaken here). What's more, since the victor would be different only if the poll was over 2.5% off in one particular direction (if it was over 2.5% off in the other direction, the victor would just win by even more), we can call Mondale the victor at the 94% confidence level (which is to say that in 94 polls out of 100, Mondale would be the victor, if we focus only on statistical error).

     Nonetheless, I still think that the newspaper was right to call this a statistical tie. By the same logic, if the numbers were mathematically significant at the 95% level, this would mean that we could call Mondale the victor at the 97.5% confidence level (since again we wouldn't worry about errors that go in the other direction). So readers should be able to assume that when a reputable newspaper reports results as statistically significant, they're getting that 97.5% confidence level. When the confidence level is below that, the newspaper should not claim the results are statistically significant.

     But why demand such a high confidence level? Why isn't 94% enough? Because, as I mentioned earlier, there are lots of other nonstatistical errors that can screw up the results of these polls; while the 95% threshold (which ends up being 97.5% if we only care about errors that go in one direction) is in a sense arbitrary, it's a good rule of thumb to stick to, in order to make the polls be even halfway helpful. So I'm glad that the papers aren't reporting 46-41% leads, with a +/-3.2% margin of error, as significant.


SEXUAL-ORIENTATION-ISM AT A CERTAIN LEGAL JOURNAL. An editor suggested that I change "But the precedents, coupled with the Justices' concerns about administrability and equality" to "But the precedents, combined with the Justices' concerns about administrability and equality," because I'm "referring to more than 2 things." And what's wrong with the coupling of more than 2 things, eh? You got a problem with that?

     Actually, I like the proposed change, just as I've generally liked many in this particular editing process, and was happy to accept it.


HOW ONE HISTORY NEWSLETTER IS DEALING WITH THE BELLESILES RESULTS: Here's how the NCC Washington Update, vol. 8, #43, Oct. 31, 2002, from the National Coordinating Committee for the Promotion of History (NCCPH) (written by Bruce Craig) summarized the committee report:
The committee found no "intentional fabrication or falsification of research data," found no evidence of "a deliberate attempt to mislead," but concluded that Bellesiles demonstrated "carelessness in the gathering and presentation of archival records," and that he did "engage in serious deviations from accepted practices in carrying out [and] reporting results from research." The committee speculated that "unfamiliarity with quantitative methods or plain incompetence" could explain some of the known deficiencies [in his] breakdown of data. Furthermore, they concluded that Bellesiles "casual method of recording data. . . [his] extremely sloppy documentation [and] carelessness" has resulted in an "unprofessional and misleading work."
The tenor of this summary seems quite clear: The committee found that Bellesiles had made errors, but not intentional ones.

     Omitted, though, is any summary of the following conclusion from another portion of the report (emphasis added):
[I]n one respect, the failure to clearly identify his sources, does move into the realm of “falsification,” which would constitute a violation of the Emory “Policies.” . . . The most egregious misrepresentation has to do with his handling of the more than 900 cases reported by Alice Hanson Jones. When critics pointed out that Jones’ data disagreed with his, Bellesiles responded by explaining that he did NOT include Jones’s data in his computations because her inventories, taken during the build-up to the American revolution, showed a disproportionately high number of guns! Here is a clear admission of misrepresentation, since the label on column one in Table One clearly says "1765-1790." If Professor Bellesiles silently excluded data from the years 1774-1776, as he asserts, precisely because they failed to show low numbers of guns, he has willingly misrepresented the evidence. This, compounded with all the other inconsistencies in his description of his method and sources and the fact that neither he nor anyone else has been able to replicate any part of his data, suggest that there is a real discrepancy between the research Professor Bellesiles did and his presentation of that research in Table One. . . .
So it seems to me that the committee did find some evidence of "falsification."

     Now, other parts of the report do decline to find "intentional fabrication or falsification" as to some other allegations. But even there, a closer look at the committee report yields a more complex picture than the summary seems to suggest. The committee explicitly said that:
As to Questions 1 and 2, we cannot judge the issue of intentionality. We do not believe it possible to state conclusively that Professor Bellesiles engaged in “intentional fabrication or falsification of research data” given the evidence at our disposal. But we are seriously troubled by Professor Bellesiles’ scholarly conduct in most of the contexts to which the first two questions refer.
Not a finding of intentional fabrication or falsification of research data as to Questions 1 and 2 (as opposed to Question 4, where they did find "falsification") -- but a bit more complex a point, I think, than a simple "the committee found no 'intentional fabrication or falsification of research data.'"


WORDS OF WISDOM from my colleague Grant Nelson, after I refused to offer a prediction on tomorrow's elections: "If you can't predict the future, what can you predict?" Good point, but I'll pass in any case.


THE NOBEL PRIZE IN ECONOMICS: As my co-conspirator Eugene notes, the Nobel Prize in Economics is of suspect lineage. Indeed, the last chapter of the book "A Beautiful Mind" describes the ongoing debate about the controversy over awarding a "Nobel Prize" in economics.

     Be that as it may, the Nobel Committee made an excellent choice this year in awarding the prize to my colleague and friend Vernon Smith. Indeed, Smith's lifelong research agenda is quite consistent with the Nobel Prize more generally, as Smith is the founder of a field of economics known as "experimental economics." Smith, along with his colleagues in the Interdisciplinary Center for Economic Science at George Mason University, actually study economic activity in laboratory settings. An excellent essay for those interested in a brief overview of Smith's contributions is available on in an essay by Don Coursey on the Liberty Fund's Econlib website.

     Smith is pushing the envelope still further in his recent research, as he is a founder of the field of "Neuroeconomics," which used fMRI scanners to study how individuals actually make economic decisions. Certainly if there is any Nobelist in Economics who has lived up to the scientific standards of other Nobel Prizes, Vernon Smith is in keeping with that tradition.


BOYS WILL BE BOYS (EVEN IF THEY ARE NOT HUMAN): It is a long-standing faith among feminists and other right-thinkers that sex roles are socially constructed. But evolutionary psychology continues to batter this unscientific prejudice.

     A new article by Gerianne M. Alexander and Melissa Hines in my favorite academic journal, Evolution and Human Behavior (available to subscribers only but free sample copies are available) studies the response of vervet monkeys to different childrens toys. Just as with human children, male vervet monkeys preferred playing with cars and balls, while females preferred dolls and pots. Toys preferred equally by boys and girls, such as a picture book and stuffed dog, where preferred equally by male and female vervets as well. The authors conclude that preferences for certain types of objects arose early in human evolution, prior to the emergence of a distinct hominid lineage. Moreover, they reflect the differential selection pressures based on the different behavioral roles of males and females.

     Modern evolutionary psychology continues to provide scientific support for what was known for millennia, but forgotten in recent years--men are inherently different from women and girls are inherently different from boys. The absurd notion that sex roles are wholly socially-constructed is perhaps best evidenced by the law's use of the grammatically incorrect term "gender discrimination" to refer to what is actually "sex discrimination." But the error is common, and it confounds our efforts to solve social problems or to even think clearly about what constitutes a social problem.


AN INTERESTING LEGAL QUESTION: A recent post on a constitutional law professors' list raised the question whether the detention of Padilla (the alleged dirty bomber, who's a U.S. citizen) and Hamdi (the U.S. citizen who was apparently fighting for the Taliban) violates 18 U.S.C. § 4001(a), which states "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." This has been raised before by others, including Sen. Feingold, Robyn Blumner, a St. Petersburg Times columnist, and Marie Cocco, a Newsday columnist.

     I was quite interested by the issue, and because I think blog readers might be, too, I thought I'd pass along my findings so far. I warn people that these are quite tentative, and might well be mistaken.

     1. The Administration's justification of its actions. On July 24, in response to Sen. Feingold's question, Attorney General Ashcroft said:
Let me address 4001(a) of Title 18, U.S. Code, which is a title dealing with the criminal law and with the criminal justice system. The president's authority to detain enemy combatants, including U.S. citizens, is based on his commander-in-chief responsibilities under the Constitution, not provisions of the criminal code, and it is bolstered by the Congress's September 18th, 2001 authorization to use force, which plainly includes the force necessary to detain enemy combatants.

Section 4001(a) does not, and constitutionally I don't believe it could interfere with the president's constitutional power as commander-in-chief. (Section) 4001(a) reads, "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an act of Congress." And as you mentioned, that was enacted in 1971.

While the language appears broad, the section as a whole plainly addresses the attorney general's authority with respect to federal civilian prison system detainees and not the president's constitutional power as the commander-in-chief to detain enemy combatants.
I quote this because it expresses the Administration's view; I do not mean to endorse the entirety of this myself.

     2. I do, though, tentatively think that the detentions don't violate section 4001(a). The authorization of the use of force, Pub. L. 107-40, says that "the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons" (emphasis added).

     I take it that, in context, "all necessary and appropriate force" against a nation or organization means the sort of force that is traditionally used in military action. This would include both lethal attacks on soldiers of those nations or members of those military organizations, and, once the members surrender or are disarmed, their continued forcible detention.

     This doesn't, of course, resolve any of the other questions related to the Padilla and Hamdi detentions (such as whether the government's conclusion that Padilla and Hamdi are enemy combatants needs to be reviewed by civilian courts, a question that is now being litigated in the Fourth Circuit). But I tentatively think that it resolves the 18 USC § 4001(a) issue.



July 24, 2000: The Publishers Weekly publishes a positive paragraph-long review of Arming America. Key lines: "Sickened by the carnage associated with guns today, Bellesiles, in his second book . . . is agenda driven. . . This agenda, however, does not taint Bellesiles's scholarship. Through examination of 'legal, probate, military and business records, travel accounts, personal letters' and other primary sources, he painstakingly documents the relative absence of guns before the Civil War . . . ."

Jan. 8, 2001: Another paragraph-long review of Every Handgun Is Aimed at You: The Case for Banning Handguns, by Josh Sugarmann, executive director of the Violence Policy Center, mentions in passing that "The book begins with a brief historical survey that argues (interestingly supporting Michael Bellesiles's argument in Arming America) that handguns did not become widespread in the U.S. until the Civil War . . . ."

Summer 2001-December 2001: The New York Times, the Boston Globe, the National Review, and the Wall Street Journal all write stories about the controversy surrounding Arming America. Though this is presumably a story that's of some interest to book industry professionals, the Publishers Weekly writes nothing about this.

Today: The Publishers Weekly has so far written nothing about the Bellesiles resignation, and has written nothing to suggest to its readers that its original book review might have been incorrect. Again, it's a weekly publication, so perhaps it just hasn't had the time to do this -- let's watch for what it says in the next few weeks.



Sept. 17, 2000: The L.A. Times Sunday book review section publishes, on page 1, a positive review of Arming America. "With thorough scholarship, lucid writing and impassioned argument, Bellesiles offers a brief against the myths that align freedom with the gun," writes historian Fred Anderson.

Summer 2001-December 2001: The New York Times, the Boston Globe, the National Review, and the Wall Street Journal all write stories about the controversy surrounding Arming America. The Los Angeles Times writes nothing about this.

Feb. 8. 2002: The main L.A. Times news section publishes, on page 41, an Associated Press wire story that begins "A disputed, prize-winning book about the role of guns in the U.S. will undergo a formal inquiry from Emory University, where author Michael Bellesiles is a professor of history." The story quotes people on both sides of the matter, and provides no analysis of its own.

April 4, 2002: Glenn Reynolds' column describes how many papers that had positively reviewed Arming America had not given equal coverage to the brewing scandal surrounding the book -- and how book review editors should take the responsibility of prominently alerting their readers that a previous positive review may have been unjustified.

April 18, 2002: The Christian Science Monitor, seemingly prodded by Reynolds' article and possibly by the reader mail that it has generated, deals with the question of how book review sections are responding to this issue, and how they should respond to it. (The Christian Science Monitor was one of the papers that Reynolds faulted.) They quote Steve Wasserman "editor of the Los Angeles Times Book Review," as saying that "We at the Book Review haven't done anything yet because the charges against [Bellesiles] have yet to be proved beyond a reasonable doubt. . . . If it turns out he's manufactured all of this, I will reevaluate what, if anything, we should do." They do not explain why "beyond a reasonable doubt" is the right standard for deciding when readers should be alerted to the possibility that the publication may have inadvertently misled them.

Today: As of now, no section of the L.A. Times has run any story about Bellesiles' resignation, or about the historians' report that prompted it. This is quite odd, since one would think that the resignation of a tenured professor at a major American university -- a resignation related to a finding of gross error and some degree of intentional misrepresentation in an award-winning book on a controversial subject, a book that was prominent enough to warrant an L.A. Times review -- would be important news. But there was no coverage.

To be fair to the book review section, a revised review may for all I know be in the works; it takes time to produce this, especially since the book review section publishes only on Sundays. Let's watch for it . . . .


TODAY'S PER CURIAM OPINIONS AND CERTIORARI GRANTS: See SCOTUS Blog and How Appealing. One of the grants relates to the First Amendment and charitable solicitations; the SCOTUS Blog has a brief summary.


THERE IS NO NOBEL PRIZE IN ECONOMICS! Well, whether there is one depends on what you mean by "Nobel Prize" -- or maybe on what you mean by "is." Arts & Letters Daily points to an interesting piece that reveals that the prize is actually "the Bank of Sweden Prize in Economic Sciences in Memory of Alfred Nobel" (see here for confirmation).

     Why should it matter? Well, the article persuasively argues, it matters because people pay attention to "Nobelists" when they wouldn't pay attention to people who got equally august awards in other fields in which a Nobel is not given (for instance, mathematics). The trademark is extremely important here, and the Bank of Sweden scored quite a coup when it persuaded the Nobel Prize organization to treat the prize as a Nobel prize, which has led everyone else to treat it this way, and to call it "The Nobel Prize in Economics" even though this isn't its official name (the other prizes are called "The Nobel Prize in . . .").

     In a sense, this is the technicality -- the actual name of the prize, as determined by actual usage, has indeed become the Nobel Prize in Economics. But how people create such names, and receive the legitimacy that they bestow, is an interesting story.


MARGINS OF ERROR: A Minneapolis Star Tribune poll shows Mondale with a statistically insignificant 46%-41% lead (the margin of error is +/-3.2%), and reports it as a "statistical tie." A reader suggests that this is a mistake, and that the poll should be reported as a "'significant' lead."

     I think calling this a statistical tie is right. The 3.2% margin of error means that if you repeated the same poll 100 times, 5 of the times the Mondale vote would be more than 3.2% off from 46% (assuming the newspaper is following the convention and using the margin of error to refer to a 95% confidence interval), simply as a result of random variation alone. Since 46-3.2% < 41+3.2%, there's thus a decent likelihood that Mondale is in fact not in the lead, and that the seeming lead is a result of random variation; I don't have the formula handy, but I suspect that as a purely mathematical matter, there's only an 80% or so chance that Mondale is ahead.

     But 80% is still pretty high, so why not stress that? Well, there are lots of other risks of error that can make polls unreliable -- people not telling the truth to pollsters, the nonrespondents having different views than respondents, people who just haven't made up their minds, whether or not they say they've made up their minds, and so on. In practice, then, a poll that is supposedly reliable at the 95% level is actually less reliable than that, and polls that would be mathematically 80% reliable would be less reliable still. So on balance I'm glad when newspapers refuse to generalize based on differences that are within the margin of error -- in fact, I wish that they were more, not less, attentive to such details.

UPDATE: Mark Kleiman has a somewhat different take on the matter; I don't think we disagree, so much as emphasize different aspects of the issue.

FURTHER UPDATE: The original version of the post said that Coleman had a statistically insignificant 46-41 lead; I've corrected this to reflect that it's Mondale who "has" this lead. Sorry for the error, but of course the underlying analysis isn't affected by it.

ONE MORE UPDATE: See this post for a correction to my numbers, though my bottom line is still the same.


"THE RESULTS, WHILE MEANINGLESS, ARE PRETTY STRIKING." Hmm -- an odd thing to say. QuasiPundit is referring to an Youth Leadership Institute Internet poll that yields what seems to be a surprising amount of support for Republican candidates; but the poll results really are indeed meaningless, because this is another one of those self-selected Internet polls, which tells us nothing about the views of anyone except those particular people who for whatever reason chose to respond to it.

Sunday, November 03, 2002


THINGS THAT MAKE YOU GO HMMMM: The front page of today's New York Times contains the headline, "In Poll, Americans Say Both Parties Lack Clear Vision." (Web version here.) The lead reiterates the point, claiming Americans say "Democrats and Republicans have failed to offer a clear vision about how they would lead the nation." The graphic on the poll results accompanying the story -- also on the front page -- tells a different story. About each major party, registered voters were asked whether it has "a clear plan for the country if they gain control of Congress." The results? Republicans: Yes - 42%, No - 39%; Democrats: Yes: 31% No: 49%. Not only do these results suggest that Americans have significantly different opinions about the two parties, but a plurality believe that Republicans do have a "clear plan for the country." The Times' authors and editors may believe their headline, but the facts reported don't back it up.

UPDATE: One reader notes another curious aspect of the Times story: "For Mr. Bush, there has, over the last month, been a slight increase — to 35 percent from 27 percent — in the number of people who say he is 'paying enough attention' to the economy." Hmmm. Eight points in one month is a "slight" increase.

On the other hand, a self-identified Democratic reader writes: "The real news is that the NYT is publishing the results of meaningless polls, and still feels that it has to spin them, rather than just point out how the poll says nothing about how people feel about the 'plans'."

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