The Volokh Conspiracy 
Get posts by e-mail


Academic Legal Writing: personalized copies

Sources on the Second Amendment

Testimony on the Second Amendment

Shards: Poems from the War



Saturday, November 30, 2002


EYE-POPPER. If you haven't already spent time with the checkerboard (or "checker shadow") illusion, perhaps it is time that you did; it is one of the most spectacular visual deceptions you ever will see, and furnishes a useful lesson in self-skepticism. You can check it out here. If you aren't familiar with it already, your first reaction probably will be that the claim made about the picture is just wrong. Remarkably enough, however, it is true.

UPDATE: As was predictable, I have received a couple of messages expressing skepticism or disbelief at the aforementioned checker shadow illusion. I suggest the following proofs. First, you can simply print out a copy, cut out one of the squares at issue, and move it next to the other one. Second and more exotically, you can perform an electronic version of the same proof by going to this site. Click on the yellow box titled "experiences," then on the "checkerboard shadow illusion"; then click on any of the squares. A swatch will appear. It matches both A and B. Or you can punch holes in a piece of paper and hold it over the screen so that you can see parts of the A and B squares and nothing else -- but make sure you only see parts of them; you will want to cover up the letters A and B on the two squares, as they and their shading do a bit of work in the illusion. Or with some experimenting you can arrange your hands on the screen to cover up most of the picture except parts of the A and B squares. Or feed the whole thing into a photo editor, as one reader did, and sample and compare the squares that way.

     If you use this to win any bets, make out a check for 10% to Eugene. He will ensure that the proceeds are applied to a worthy cause.


WHAT COULD HAVE BEEN. On the op-ed page of today's New York Times is a column by Bill Keller about the war on drugs, and particularly the ever more aggressive war on marijuana, which surely is one of the great idiocies of our age (the war, not the column). Keller's piece is pretty good. In fact, most of Keller's work on the op-ed page and in the New York Times magazine over the past year has been pretty good: not spectacular, but generally reasonable and balanced in the sense of taking seriously the arguments in both directions. Even if his conclusions aren't always agreeable, they usually are reached in a fairly thoughtful manner, and his reporting is interesting.

     Unfortunately, I really am not able to take much pleasure in Keller's work. To explain why, a bit of background is necessary. The New York Times always has been liberal-leaning, of course, but on Howell Raines's watch as executive editor it has plunged over the edge into a more startling and shameless brand of partisanship. This is visible everywhere, as its readers know well -- on the op-ed page, where one would have thought that the reckless and poisonous Paul Krugman long ago would have written himself out of a job; where Maureen Dowd tries her hand at comedy that is impossible to read because one is too busy wincing in embarrassment; and where Frank Rich provides long and tedious demonstrations of the perils of trying to squeeze thoughtful, dispassionate political analysis out of theater critics. And it is visible on the front page as well, where news analyses and editorial judgments slanted against the Bush administration are too common even to be regarded as remarkable anymore.

     Documentation of these trends has been furnished well by Andrew Sullivan, among others, so there is no need to rehearse examples here. Suffice it to say that the Times once was a great newspaper, even with its flaws; it was read and respected by most serious people, even if its liberalism sometimes was grating to those tending toward the right. Now I do not feel that I can trust it at all, so heavy-handed is the partisanship emanating from its masthead. The paper is turning into another study in one of nature's saddest laws: the long time and great effort it takes to create value, whether in a structure, an institution, or a reputation; and the disproportionately short time it takes for that value to be squandered through arrogance, bad judgment, and poor taste.

     Which brings us back to Bill Keller. He appears in his work to be a literate and fair-minded person. The last time the executive editor's job at the Times was open, the contest for it was between Raines and Keller. Raines won; the Times and its readers lost. Every time I read Keller's stuff, I thus cannot help but wonder what the result would have been if Keller rather than Raines had become top dog. That is why I cannot quite enjoy Keller's writing. The better it is, the more it reminds me of all that I said above, and the needlessness of it, which invariably fouls my mood for the morning.


FAUX FEDERALISM FEARS: I dont mean to pick on Ed Lazarus, but I am afraid that (once again) he has let his desire to grind an ideological axe against the Rehnquist Court distort his analysis. In this case, Lazarus suggests that there is an inherent tension between the Supreme Courts federalism and anti-terrorism measures which may restrict civil liberties. In the end, Lazarus concludes, One principle will ultimately have to yield to the other.

I have no doubt that some of the anti-terrorism measures raise serious concerns about civil liberties. They may even raise some Constitutional concerns. But federalism? I don’t think so. In my view, Lazarus’ contention that the Court would compromise its federalism principles should it uphold broad federal authority to investigate and prosecute people potentially engaged in terrorist activity compromises is quite a reach.

Lazarus characterizes the core of the Supreme Court’s federalism jurisprudence as a “distrust of centralized governmental power.” Now it’s true that such distrust was one of the motivations for the Constitution’s federalist structure, but it is not the driving force behind the Supreme Court’s federalism jurisprudence. Taken on its own terms (something not all of its critics do), the Court’s federalism is not motivated by “distrust of centralized governmental power” as such, but rather by a concern for the proper distinction between those matters which are properly “federal,” and those that are “local” -- an inquiry which is informed by the text, history, and structure of the Constitution. The Court’s federalism rulings do not elevate state power as such – although they are often read that way. Instead, they police the proper boundaries between federal and state power. Some of the Court’s decisions police this boundary directly, by invalidating Congressional enactments in excess of those powers enumerated in Article I. Others police the boundary a bit more directly, by limiting the federal government’s power to influence or coerce state governments. In either case, the Court’s focus is on confining each level of government to its proper sphere, not constraining the federal government as such.

This distinction is important, and I believe it explains some of the misperceptions about federalism generally, and the Court’s jurisprudence of the last several years in particular. There is nothing in the federalism cases that suggests the federal government’s power is anything less than plenary within its enumerated fields. For instance, when the federal government establishes nationally uniform bankruptcy rules, it may do so in a manner which centralizes federal power and disrupts traditional state practices. This could make such legislation unwise (thought I’d defer to Todd on this point), but it would not make it unconstitutional, nor is there anything in the Supreme Court’s federalism jurisprudence to suggest otherwise.

This is not to suggest that federal anti-terrorism measures could never raise federalism concerns. Quite to the contrary, were Congress to enact legislation commanding state and local governments to adopt particular anti-terrorism measures, it would constitute unconstitutional commandeering under Printz v. United States. In such a case the federalism concern would arise from the specific manner in which the federal government exercised its power – commandeering state governments – rather than on whether the legislation in question represented a dramatic step toward the concentration of federal power.

Lazarus suggests that if the current Supreme Court does not look askance at recent federal initiatives on federalism grounds, it is somehow being inconsistent. While I share some of his concerns about the threat of overzealous federal action, I am thoroughly unmoved by his analysis. If the Supreme Court’s critics are looking for signs of hypocrisy and inconsistency, they should look somewhere else (more on that in a subsequent post).

Friday, November 29, 2002


APOLOGY TO LAOPHILES: We're sorry that the person who recently accessed this blog via a yahoo search for "Laos is my favorite country" has likely not gotten what he wanted. But this blog has indeed mentioned Laos at least once, which is probably more than most blogs have. Mystery reader, hope you enjoyed what you stumbled across.


THE TASTE FOR PRIVACY. I'm grateful for Orin's elaboration immediately below of his views on Total Information Awareness. It seems to boil down to the idea that he is not ready to condemn the development of Total Information Awareness technology because he is not quite sure what that would mean. Fair enough; evidently I misunderstood his earlier post, which I thought said that the descriptions of Total Information Awareness in the media clearly were bad, and that we should not pursue them as a legal matter, but that perhaps the very same technology -- the technology to do the bad things -- should be pursued nevertheless. Now I understand him to be saying that the technology to do the bad things should not be created, but that he is uncertain whether that is what DARPA would want to do. (I insist on writing out "Total Information Awareness" every time, by the way, because I think the creepy implications of the words should be confronted repeatedly rather than buried in an acronym. "DARPA" is okay, though.)

     In reply to Orin's last suggestion that everyone but him has a solid technical understanding of Total Information Awareness and what DARPA proposes, obviously that's not the case; I don't know of anyone who has very solid understandings of those things. The differences lie in how we respond to that uncertainty. I respond with skepticism of the government and assumptions that the best-case interpretations of what is happening likely are false and that the worst-case scenarios are plausible. Orin responds with more skepticism toward the critics. In truth a great deal of our political life seems to work this way: we fill in our uncertainties with our priors and find our positions from there.

     But now I want to pursue a different angle. What would be wrong with the government recording every electronic transaction its citizens engage in? For now just focus on purchases with credit cards rather than monitoring of web browsing or email. I find even this more limited idea appalling, though I know others who don't mind it so much. My horrified reaction is based largely, I think, on my taste for privacy and for a certain relationship between government and citizen in which people are left alone in a pretty strong sense unless they are engaging in bad or at least suspicious behavior. I regard the tastes for these things as a foundation stone of our culture in this country, and am inclined to fight for their satisfaction without apology..

     Yet at the same time an appeal to tastes -- pure preferences, without additional consequences -- becomes vulnerable to pragmatic objections: should we really be willing to let large numbers of people die so that some of us can indulge this taste for privacy I describe? In the end, who cares whether some bureaucrat knows what you have bought? Of course practical objections can then be made: maybe keeping track of purchasing behavior wouldn't be very helpful anyway in catching terrorists, who in their shopping will just become more likely to be cash customers. But if the argument is to be engaged I think it is best to assume that large-scale surveillance technologies might indeed save some non-trivial number of lives (is there a "trivial" number of lives?), and to ask whether those lives should be forfeited for the sake of maintaining what I broadly am calling our sense of privacy vis a vis the government.

     A question on which I invite comment is this: what practical worries should we have about the prospect of the government collecting information about every citizen's commercial transactions? No doubt one of the practical worries is that the government eventually will find uses for this information that cannot now be imagined, so that our real concern involves various futures that we cannot quite picture but that are sure to be dreadful. ("I don't know, but I don't want to find out," etc.) But just to focus for the moment on what we can imagine, what abuses of this knowledge would concern you the most?


EXPLAINING "THE OTHER HAND" FOR TOTAL INFORMATION AWARENESS-- A RESPONSE TO PHILIPPE: Philippe asks below if I could explain "the other hand" a bit more. To bring folks up to speed, the question is whether we should want DARPA to conduct a research program into the technology that would be needed to build Total Information Awareness. I gather Philippe believes that the answer is obviously "no." In my initial post in this thread, I stated that found the question "difficult" and that I wasn't quite sure of the answer. Here's a better explanation of why I'm less sure than Philippe.

     First, I don't understand exactly what kind of research DARPA has in mind. Yes, I've downloaded the 150-page report, and tried my best to figure out what DARPA wants to do, but couldn't make heads or tails of it. Is it just a big computer program? Basic research? An application of a particular branch of mathematics? I'm just not sure. And not being sure, I'm not sure what the pros and cons would be of the government engaging in the research. (To put it another way, I don't know whether the government should fund the program because I don't quite understand what the program would do with the money.)

     Second, I approach TIA with the understanding that in the last few years, several highly controversial government surveillance programs have been little more than government versions of what the private sector had already been doing for years. So the much-feared Carnivore was a packet-sniffer; Magic Lantern is a hacker tool. Both of these surveillance devices are quite common in the private sector, and the FBI was largely playing catch-up with its own research. Ironically, in both cases the FBI forts focused on designing more privacy-enhancing versions of those commonly available tools. But the press can't seem to tell that story, and instead frightens everyone with stories about secret government surveillance programs, Big Brother, etc. (I wrote an article about this overreaction in the case of the Patriot Act and Carnivore that you can download in draft form here.) And DARPA has an incentive to make whatever it is doing seem very, very important. As a result, I tend to approach reports of TIA with a dose of skepticism. I'm not entirely sure that TIA isn't something that Silicon Valley couldn't pull off in a few weeks, if they haven't developed the technology already.

     More broadly, I think reactions like Philippe's stem from certain assumptions about TIA that may or may not be true. The Philippe view seems to envision DARPA's research program as a computational version of the Manhattan Project: a bunch of scientists will work on invasive surveillance technologies, and at the end will produce a super-invasive technology that will prove hard to control. Funding TIA means funding invasions of privacy, and if you don't like invasions of privacy, you won't want to fund TIA. It's a powerful image, but I'm not sure it reflects reality. I don't know what exactly DARPA would do with money for TIA, what kind of research they would conduct, or what benefits unrelated to surveillance the technology might have. As a result, I'm less confident than Philippe that funding DARPA on this project is necessarily a bad idea.

     Perhaps others have a better technical understanding of TIA and what research DARPA proposes, and have reached more certain conclusions. But I find my uncertainties significant enough that (at least as of today) I can't quite conclude whether funding DARPA's program would be a good idea or a bad idea. Maybe Philippe is right; certainly his argument has much force. But maybe not. Hence "on the other hand."


ARE WOMEN MORE LIKELY THAN MEN TO SLEEP WITH INTERNS? I have absolutely no idea, and this poll provides us with no useful information on the subject, though I'm sure that it will be reported as if it did.

     The poll does tell us that, among women (or people who claim to be women) who hear about Playboy online polls, and who choose to respond to them -- hardly a representative sample of women, I suspect -- 20% claim to have slept with an intern, while among similarly-described men, 12% claim to have slept with an intern. Repeat after me: "I will give no credence to self-selected surveys, online or otherwise. I will give no credence to self-selected surveys, online or otherwise. . . ."


TOP 10 ON BLOGSTREET: The Volokh Conspiracy is #10 on Blogstreet's list, apparently based on the number of links. Nice to see.


ON THE OTHER HAND? My co-conspirator Orin says that "No one wants to live in a country in which records of everyone's purchases, web-surfing, etc. are automatically entered into a government database." I'm glad to hear we agree about that. (By the way, though: why?) But then he says the hard question is whether we should "allow the government to try to design this kind of technology". Orin's point is that such technology would not necessarily be implemented; finding ways to make it work would be different from making it legal to use. The reply to this distinction seems obvious, however, and is offered by Orin: "if the government succeeds in designing the technology, that will make it possible and easier for the government to implement it in the future." Quite.

     But then Orin hedges: "On the other hand, it's not clear to me that the private sector (or a foreign government) won't design such a technology themselves, and a much less invasive implementation of the technology could have its benefits." I'm clear on everything except this last sentence. What would a private version of "Total Information Awareness" look like? Why would it be more threatening that a version developed by the government? Or is the idea that the marginal added invasiveness of the government's idea might end up being small given the private invasiveness that is on the way? In any event, why would developing a government version be a good idea even if it would be less invasive than a private version? (Why not combat the private version directly?) How serious are the prospects for foreign development of such a system that would keep track of Americans? How threatened would we need to feel if such a program were developed by, say, Japan?

     I do not mean to bombard my good friend with questions, but my instinctive reaction to all of the queries just enumerated is they don't justify the development of Total Information Awareness technology by our government -- not at all, not even in a prima facie sort of way. I may well be missing something, though, either in my interpretation of what he is saying or in my sense of the likely answers to the questions I understand him to be asking; so I invite Orin (an expert on these issues) to enlarge on why his "on the other hand" sentence should give us pause.


RHETORICAL EXCESSES RIGHT AND LEFT: Geitner Simmons has an interesting post on this (it's the Friday, November 29 post; sorry, the permalink isn't working). Thanks to InstaPundit for the pointer.


GETTING BLOG POSTS BY E-MAIL: As an experiment, I've set things up so that Blogger can deliver blog posts by e-mail. If you'd like to use this option -- and I can see reasons why some people would like it, and others wouldn't -- send a message containing just the text
to the e-mail address LISTSERV at LISTSERV.UCLA.EDU . If you need to unsubscribe or your e-mail address is about to change just send a message containing just the text
to the same address. And if you'd like to get all of a day's posts in one message, I think you should be able to configure that by sending a message containing just the text
to the same address; and to undo that, the message SET VOLOKH-L MAIL should do the trick.

     Unfortunately, I'm swamped enough that I probably won't be able to provide any manual help with the list, but I hope that the automatic subscription and unsubscription results will do the job. Also, just a warning: This is only an experiment; if this ends up causing trouble, I might have to discontinue this, and return to a Web-only format.


"WHAT CAN YOU DO IF YOUR TIVO MISTAKENLY THINKS YOU'RE GAY? OR A NEO-NAZI?," asks Paul Hsieh at GeekPress (newly added to our blogroll -- looks like a great site), and points us to a (seemingly free) Wall Street Journal Online article that discusses the problem, and suggests some answers. My favorite excerpt:
Mike Binder, creator and star of [HBO's "The Mind of a Married Man"], had set his home TiVo to record his 1999 movie, "The Sex Monster," about a man whose wife becomes bisexual. After that, Mr. Binder's TiVo assumed he would enjoy a steady stream of gay programming. Unnerved, he counteracted the onslaught by recording the Playboy Channel and MTV's spring break bikini coverage. It worked, he says. "My TiVo doesn't look at me funny anymore."

His wife, however, was taken aback when she saw all the half-naked women he was ordering through TiVo. He told her those women meant nothing to him: "I'm just counterprogramming because TiVo thinks I'm gay." She was unamused. The incident inspired an episode of his show.


MORE ON SADDAM HUSSEIN: I took Philippe's advice and read the interview with Mark Bowden, the author of a detailed and seemingly quite balanced story about Saddam Hussein. Here's the closing question and answer:
Knowing what you know, how would you advise the decision-makers in Washington to deal with Saddam?

After working on this story, I really do think that Saddam poses a serious threat to the United States and the rest of the world -- not that he will attack Israel or the United States directly, but if he possesses or develops nuclear weapons of mass destruction, I have no doubt that he will find a way to get those weapons into the hands of groups like al Qaeda and others who will use them. Saddam has been making a very serious effort for some years now to develop the kinds of weapons that really can only be developed by a state. So I think that in the interest of self-defense it's really important that we do something to end his regime. But as for how to go about it? I'm afraid that's, as they say in the military, "over my pay grade."
Such predictions are of course guesswork; who can know for sure what someone is likely to do in the future? But this one strikes me as quite on the money.


SEXISM AND RACISM: InstaPundit writes:
IS IT SEXIST TO WISH FOR A WORLD WITH FEWER MEN? My earlier post on feminist scholar Mary Daly's expressed desire for a world where only one person in ten was male (which one reader called Strangelovian) has inspired Eugene Volokh to wonder whether such sentiments are sexist or not. I don't know: Would wishing for a world with fewer black people be racist?
     This sort of quick analogy between attitudes about the sexes and attitudes about the races is quite common (just to give one other example, defenders of gay marriage analogize the requirement that spouses be of opposite sexes to past requirements that spouses be of the same race), and sometimes helpful -- but often, I think, mistaken. Here are a few reasons to be skeptical about this sort of argument.

     1. Do you think that the Boy Scouts being limited to boys is morally equivalent to a White Scouts that's limited to whites? (I think both should be legally permissible, but my question is whether they're morally equivalent?) What about someone telling his girlfriend "Sorry, honey, you probably shouldn't join us for drinks tonight; we're thinking of making it a boys' night out" and someone telling a black friend "Sorry, buddy, you probably shouldn't join us for drinks tonight; we're thinking of making it a whites' night out" -- morally equivalent? Now perhaps the common perception that these scenarios are not morally equivalent is mistaken. But if it's right, then it helps show that there are real differences (at least often) between sex-based attitudes and race-based attitudes.

     2. If one is drawing analogies, while draw the analogy between sex and race, and not, say, sex and religion? We might think it's wrong for people to refuse to hire non-Christians because of their religion; but if someone expresses a desire for a future world in which fewer people are non-Christian, I don't think we'd see that as immoral or even bigoted (though we might disagree with the desire for other reasons).

     Likewise, how about an analogy between sex and certain physical handicaps? For instance, we might think it's unkind, unfair, or even bigoted to refuse to admit people to college because they have various handicaps or genetic diseases, or to refuse to hire them for most jobs (setting aside those where we think the absence of the disease is strongly related to the person's ability to do the job). But I think the desire for a future world in which fewer people have those problems is downright laudable.

     3. And these specific examples help illustrate, I think, a more general theoretical point: We condemn certain attitudes and practices as racist because we think race has little inherent connection to human behavior. (I'm not an expert on the subject, and I know there are hot controversies in this area, but to the best of my knowledge the evidence indeed strongly supports this belief.) But sex obviously does have a huge biological connection to human behavior. We know this is so in some areas of life, both biological reproduction and apparently some social practices related to reproduction and mating. And there's apparently strong evidence that there are also biologically driven sex differences in other areas, such as tendency towards violence and possibly certain cognitive skills and social behavior patterns as well.

     If this evidence is correct, what do we do with this? As I said in my earlier post, I still think that it would be right to treat living individuals the same without regard to their sex, since we know that men's and women's temperaments, behavior patterns, and abilities overlap considerably. But it might be -- depending on the facts -- quite proper to hope for a world in which there were fewer or no men (or for that matter fewer or no women, again depending on what the facts suggest).

     It may well be that, despite the real differences between men and women, a 50-50 gender balance is still good. One reason may be that it fits better with people's sexual practices, which seem quiet unlikely to change any time soon. Another reason may be that humanity is better off with a mix of the biological predispositions of men and those of women -- as my earlier post suggested, perhaps a move towards a more pacifistic species would have substantial costs as well as benefits.

     But I don't think that the question of the optimal gender balance can be resolved simply by a moral equivalence to racism -- there are too many important differences between sex and race for that analogy to work.

UPDATE: Incidentally, just to make it clear: As I mentioned in my earlier post, "some anti-male arguments, like some anti-female arguments, come largely from irrational prejudice rather than rational judgment"; these may be as nonsensical as some racist arguments are. (My original post pointed out specific ways in which some people may be blind to the advantages of male traits as well as their disadvantages.) So I'm not defending any "fewer males, please" commentator in particular -- only the legitimacy of the inquiry in general.


GUN CONTROL FOR SEVENTH GRADERS: I got a very nice note this morning, and felt I had to respond to it:
Dear Professor Volokh,

We are doing a project for our 7th grade class on gun control. We would greatly appreciate it if you would share some of your opinions on this issue. How do you think gun control will help our nation? Is owning a gun more likely to be harmful rather than helpful? Please consider replying to this letter. Your viewpoints will help our research immensely. Thank you for your time.
Now I know very little about talking to seventh graders, and I know even less about how much detail they want. But the letter seems articulate and thoughtful, so I thought I'd try to give them an adult (though brief) explanation. Just in case others might be interested, I thought I'd pass it along to the list. My apologies in advance if you think my response is likely to be useless or incomprehensible to a 12-year-old, or on the other hand if you think it's way too general and not detailed enough; as I said, I know very little about 12-year-olds.
My pleasure; here are a few thoughts:

     1. Guns are used by criminals hundreds of thousands of times a year to commit crimes. But they're also used hundreds of thousands of times a year by law-abiding people to protect themselves and their families. And guns are very effective for self-defense, because they can scare off criminals (even if the gun isn't fired) as well as stopping them.

     2. What effect will gun bans have? They will disarm the good guys, since law-abiding people are likely to obey gun control laws. But they won't do much to the criminals: Someone who is willing to break the laws against murder, robbery, and rape will likely ignore gun control laws, too. There are 200-250 million guns in the country (80 million handguns, and the rest rifles and shotguns, which are even deadlier than handguns); they aren't just going away. Criminals will be able to get their hands on guns no matter what law we enact.

     So if guns are banned, there'll still be plenty of gun crime -- but good people will be less able to defend themselves against it.

     3. What about milder gun controls, such as waiting periods, registration requirements, bans on certain kinds of guns, and so on? Each one has to be considered on its own terms, since they are quite different. I think background checks for gun buyers will probably do a little good and not much harm, so they're probably worth implementing. Likewise for laws that ban felons (people who have been convicted of serious crimes in the past) from owning guns. Most other gun control proposals, though, probably do more harm than good.

     4. What's the solution? The solution, I think, is to fight *crime*, not to fight guns. Criminals should be caught and locked up; and if there's something we can do to prevent the conditions that create crime, that would be great, too. (Better education will probably help a lot, though of course that's easier said than done.) And if you can find some gun control laws that will really affect only criminals, and not law-abiding people, that would be great. But disarming law-abiding people won't help prevent crime. If anything, it will yield more crime.

     Let me know if you have more specific questions on this. If you'd like to see some more statistics on this subject, try -- I haven't checked all the facts mentioned here, but they seem pretty reliable (though note that they're presented from an anti-gun-control perspective). Also, please get in touch with some people who support gun bans and other gun controls, so that you can hear both sides of the debate.

Eugene Volokh


ADVANCING THE DEBATE ON TOTAL INFORMATION AWARENESS: Here are a few conclusions I've reached about TIA that I hope can advance the debate to a slightly more helpful level.

     1) No one (or pretty close to no one) would want the version of TIA that the press has reported. No one wants to live in a country in which records of everyone's purchases, web-surfing, etc. are automatically entered into a government database. If anyone actually proposed a program as invasive as the press coverage of TIA has suggested TIA is, it would be a non-starter. I know I would be 100% against such a massive surveillance program, and would fight it as much as I possibly could. Further, I have been unable to find anyone who doesn't feel that way. I'm sure some exist, but I don't think there are many.

     2) The TIA program as reported in the press would be illegal to implement. The coverage of TIA reports that it would automatically collect all sorts of private information about you to feed into the government database. However, much of this information is protected by federal privacy laws (like the Pen Register statute, 18 U.S.C. 3121-27, and the Wiretap Act, 18 U.S.C. 2510-22) that require court orders for the collection of the information. If TIA collected this information automatically, it would violate those laws, triggering criminal liability and also possible disciplinary proceedings against government officials implementing TIA.

     3) DARPA views TIA as a question of technology, not law. In other words, DARPA's proposal is to see if it is technologically possible to design a technology that would allow such a system to be implemented. Right now, such a network is beyond the scope of current technology, and Poindexter, etc. want to see whether it would be p ssible to create such a system, and if so, how. DARPA doesn't have plans to implement TIA, which of course they couldn't: that would be up to Congress, not DARPA.

     4) The most important question raised by TIA is this: should we allow the government to try to design this kind of technology? This is a very interesting and difficult question, I think. The argument against allowing the program is certainly a strong one: if the government succeeds in designing the technology, that will make it possible and easier for the government to implement it in the future. On the other hand, it's not clear to me that the private sector (or a foreign government) won't design such a technology themselves, and a much less invasive implementation of the technology could have its benefits. To be honest, I'm not sure of the answer to this question. However, I do think it's the right question to ask.


BIG BROTHER CATCHES THE SNIPER, PART TWO: Back in October, I offered an explanation (partially tongue-in-cheek) of how massive databases and government information-sharing helped catch the D.C.-area sniper. Today's N.Y. Times picks up the theme. The front page of the Times has a story about how better, more complete databases and more information-sharing might have led to the sniper being caught much earlier. The piece is titled Holes in System Hid Links in Sniper Attacks, and you can link to it here.


THREE SHELLS AND A PEA. As the shenanigans resume in Iraq, this is a good time to read the best piece I know (at least of article length) profiling Saddam Hussein if you didn't catch it the first time around: Mark Bowden's article from last May's Atlantic monthly. Here's an interview with the author to go with it. The article is an implicit caution against claims that we needn't use force because Saddam reliably can be deterred; its portrayal of his decision-making process during the Gulf War and other episodes does not inspire confidence in his powers of judgment. The article also is full of fascinating details about his past and his current life.

Thursday, November 28, 2002


HUSSEIN'S ATTEMPT TO EVADE INSPECTORS: I have no idea whether this is accurate, but here's the FoxNews report:
Iraqi leader Saddam Hussein has ordered hundreds of his officials to conceal weapons of mass destruction components in their homes to evade the prying eyes of the United Nations inspectors.

According to a stream of intelligence now emerging from inside Iraq, the full extent of the Iraqi leader’s deception operation is now becoming apparent. As the U.N. inspectors knock on the doors of the major military sites in Iraq, suspected of housing chemical and biological weapons and banned missiles, the bulk of the evidence is being secreted away in people’s homes. . . .

Iraqi farmers have also been ordered to play their part, according to intelligence sources. One source said that farmers were being told to hide drums of chemicals among stocks of pesticides.

In each case, the scientists, officials and farmers are being warned that they and their families will face severe penalties if they fail to hide these stocks of chemicals and biological materials from prying U.N. inspectors. Computers and laptops containing vital information about the weapons of mass destruction program are also being hidden in people’s homes.

The intelligence sources said that U.N. inspectors were aware of what American and other Western agencies were uncovering. However, it made their job almost impossible because they would have no idea where to start if they had to search individual homes. . . .

Apart from the evidence of deception, the latest intelligence has also uncovered a totally different mood in Iraq from the lead-up to the 1991 Gulf War. Then, there was little or no evidence that the people of Iraq were opposed to Saddam. Now, however, there are signs of a growing disaffection. . . .

First, Saddam has been sufficiently worried about potential internal opposition to his regime to take the extraordinary step of canvassing opinion in all the key cities. Intelligence sources say that Kurds have been used to carry out the survey.

The answers coming back from the quasi-opinion poll have given strong indications that people were looking towards a post-Saddam era and wondering whether it would improve their standard of living. To counter this, Saddam’s regime has begun circulating rumors in Iraq that even if he were to fall from power, there would be no lifting of sanctions. . . .

The first sign of possible internal dissent came during the referendum in Iraq last month when Saddam was supposedly given a 100 percent "yes" vote for continuing in office. Baghdad claimed it was also a 100 percent turnout. However, intelligence emerging since then has revealed that only one in three people actually voted. . . .

Second, as a sign of Saddam’s unease over the loyalty of his officials in Baghdad, he has begun handing out cars to everyone to keep them happy. The intelligence sources said senior officials were being given Toyota Avalon luxury sedans and junior officials South Korean-made Kia cars. . . .

Saddam[,] who is not known to be a very religious person, has ordered his officials to spread rumors that the Americans want to invade Iraq in order to convert everyone to Christianity. He has also written a prayer. . . .
There's more; worth a read, though of course one can't know for sure how accurate such accounts are.

Wednesday, November 27, 2002


HAPPY THANKSGIVING! Enjoy the holiday, and the long weekend. Hope you have lots to be thankful for; I know I certainly do.


THE VOLOKH CONSPIRACY PROMISES: 1. If we take someone off our very short permanent links list, we promise not to make a public production out of this. (See InstaPundit for some reports of the recent delinking fracases.)

     Among other things, we highly doubt that blogs get that much traffic through our permanent links; I suspect they get a bit more out of links in our posts, but not out of the permanent links. What's the use of publicly announcing "We're so incensed that we will try to deny you five readers a day, maybe ten!"? Even if it's just for the sake of symbolism, there's little symbolism in such a relatively futile gesture. We're entitled to link or not link to whomever we please -- but we plan to exercise such discretion discreetly.

2. If someone refuses to link to us, refuses to link to people who link to us, or refuses to link to people who link to people who link to us, we promise not to make a public production out of this, or call it "censorship." We're flattered when people link to us, but we realize that this is a favor, not an obligation.


THE COMMERCE CLAUSE AND TORT REFORM: Glenn Reynolds and Brannon Denning argue that Democrats should applaud, not oppose, the Supreme Court's renewed willingness to limit Congressional power. I think they make some very good arguments, but I tentatively disagree with one of their claims:
Plans to reform state tort systems by capping damage awards, limiting punitive damages, and curbing certain theories of liability also look vulnerable before a conservative Court. While tort suits undoubtedly have an effect on the economy, there is scarcely any human activity that doesn’t. But the Court has made clear that the Commerce Clause is not a blank check.

For example, in Lopez, the government argued that guns and violence in schools have an effect on learning, which has an effect on students, which has an effect on the economy, since violent schools are unlikely to produce an educated workforce. Violence against women, it was argued, resulted in lost wages, lost productivity, foregone career opportunities, etc. While the Court conceded that these things may be true, the Court said that finding these conditions to be issues of interstate commerce would mean the Commerce Clause would have no limits -- and it was designed to have limits.

Moreover, there is the threshold question whether a tort suit is really a commercial activity at all. Many would argue that tort actions are designed to compensate a victim for a loss and punish the perpetrator -- either of which is really "commercial" activity.
There are good policy arguments for and against Congressional tort reform proposals. One quite legitimate argument against the proposal is that tort law is best left to the states; a countervailing argument is that many tort claims, especially product liability claims, let one state effectively impose its own rules on products sold throughout the country, and that Congress should step in and prevent this.

     But as a constitutional matter, I think that Congress properly has the power to limit state tort law claims if those claims arise out of economic activity (and especially interstate economic activity). A tort law rule that imposes liability as a consequence of an economic transaction -- "if you sell goods in Alabama that Alabama law concludes are defective, you will have to pay damages" -- is essentially a state regulating (and indirectly taxing) commerce, including commerce among the states; the regulation comes through judicial decision and not through a statute, but it is regulation nonetheless. And one of the proper exercises of Congressional power to regulate interstate commerce is for Congress to lower barriers to such commerce by preempting contrary state regulations.

     What if the tort claim originates from a purely intrastate economic transaction, for instance a lawsuit against a local manufacturer, or a medical malpractice claim against a local doctor? Well, even as the Court has been reasserting the limits on federal power to regulate noncommercial activity, the Court has generally taken the view that Congress may regulate even intrastate commercial activity, so long as that activity is part of a national market. I doubt that the Court will change its view on this, and I'm not sure that it should, given the integration of our national economy.

     So on balance, I think that Congress does have the constitutional power to regulate commercial transactions by controlling the tort liability rules that can flow from those transactions. I don't think that it can preempt state tort law as to torts that arise out of purely noncommercial conduct, such as battery, or perhaps even auto accidents. But it can preempt (and otherwise control) product liability claims and medical malpractice claims, which arise out of commercial transactions (the sale of goods and services).

     The article continues:
Requiring state judges to limit jury awards in line with federal limits imposed by tort reform legislation might also violate the Court’s "anticommandeering" principle. The Court has made much of the fact that federal mandates to state legislatures and executive officials reduce transparency and accountability -- state officials have to take flak for unpopular mandates that originate with the federal government, while Congress can take credit for doing good deeds while insulating itself from criticism by those who feel the effects of implementation.

The argument would seem to work here: defendants in civil law suits would find jury verdicts reduced by state judges (many of which are elected) who were merely doing Congress’s bidding. Though the Court has not addressed the question whether state judicial officials are different from other state officials, it seems inconsistent to carve out an exception for state judges.
This, too, strikes me as unsound. The Court has long held that the anticommandeering principle applies only to federal attempts to commandeer state legislatures or executive officials, and not state courts -- Congress can, for instance, order state courts to hear federal claims, because that's part of the nature of courts: Courts must apply the law, and article VI of the Constitution makes federal law binding in state courts. As the Court held in Printz (1997), where it enunciated the anticommandeering principle as to executive officials, "state courts cannot refuse to apply federal law -- a conclusion mandated by the terms of the Supremacy Clause ("the Judges in every State shall be bound [by federal law]." If a judge is bound by a federal cap on damages that can be awarded based on a commercial transaction, then his article VI responsibility bars him from allowing a damages award that exceeds such a cap.

     I think that the thrust of the piece is quite sound, and the piece is generally much worth reading. But I don't think its position on tort liability is generally correct, at least as to tort claims that arise out of commercial behavior.


FIVE BLIND ELEPHANTS (AUTHOR UNKNOWN): Five blind elephants want to find out what men are like. Each touches a man with its foot, and all agree: Men are wet, sticky, and flat.


AMUSING PIECE BY MICHAEL KINSLEY, about Google News, textile workers, and other things.


A BIT MORE ON INVECTIVE: Steve Postrel's message, and those from some other readers (in particular, Matt Bower) point out, I think quite powerfully, that calling the other side names may sometimes be effective at energizing one's base. That may be so, though I'm not sure whether on balance the benefits of such rhetoric, even aimed just at true believers, exceed the costs.

     But I don't think undermines my original point, which is that invective (at least on Web logs) is likely to lead to "ideological cocooning" -- likely to "increase people's predisposition to talk to and listen to only those views that they generally agree with, and to simply ignore other views." My main assertion was that most people have a particularly strong tendency to ignore views that they disagree with and that are presented rudely. That means they might well go to an insult-filled blog that insults people they think deserve insult; and thus an insult-filled blog may be effective at communicating to those who already mostly agree with it (again, I'm not sure that it will be, but it's possible). But it won't be effective at persuading people who are in the middle or on the other side.

     So if one wants to fight people's tendency to listen only to those views that they already agree with -- nothing says that this must be a Weblogger's goal, but some people have this goal -- a calm and polite (though engaging) tone is more effective for that purpose than a rude one.


A WORLD WHERE THERE ARE FEWER MEN: So is it sexist to wish for a world with fewer men? (See InstaPundit's post that prompted this thought, though it doesn't specifically make the sexism allegation.) Or, to be precise, since it's hard to deny that it's sexist in one sense of the word -- it reflects "the assumption that one sex . . . is inferior to the other," and suggests "discrimination," at least in the prenatal phase, "on the grounds of sex" -- is this sort of sexism necessarily wrong?

     The fact is that men and women have very different behavior patterns, and there's good reason to think that many of them are biologically influenced -- perhaps not completely biologically determined, but certainly influenced by biology and not just by society. There is considerable evidence for this: In many (perhaps most?) species, males and females behave differently, and it's hard to blame "culture" for that (or if one does, by defining culture broadly enough to include the behavior of many nonhuman animals, then one has to recognize that culture is itself biologically influenced). There are certain common patterns of behavior -- for instance, higher violent criminality among males than among females, or government by males more than females -- that have to my knowledge present in virtually all societies, which suggests a biological influence. Hormones, which operate in different ways in men and women, do influence behavior. And so far I've just mentioned what I believe are the most broadly accepted examples; as I understand it, there's considerable evidence for other claims, such as the observation that the intelligence bell curve is broader for males than for females, so there are more geniuses and more idiots among males than females.

     Now I think there's a very powerful argument that this observation should not lead us to discriminate based on sex in most situations against real humans. There are wide variations in individual behavior, intelligence, temperament, and most other facts among both males and females. Refusing to hire a woman as a mathematician because women generally are less likely than men to be mathematical geniuses, or refusing to hire a man because men generally are more likely than women to be violent criminals, thus generally places too much weight on a not very probative factor, especially when other much more probative evidence is generally available. And I think that a society which treats men and women generally equally, especially in education, hiring, and so on is on balance much more likely to be successful than one that doesn't.

     But it's far from clear that this sort of mixed moral-pragmatic claim carries over to judgments about future generations. I don't think there's anything necessarily evil about parents concluding that having very few male children, or perhaps even no male children (assuming that reproductive technology can propagate the species without males, which is not a ridiculous assumption for the future), will yield a better society. There are no living humans who are hurt by that. Some of the few future males might be indirectly hurt by the message that the practice sends -- if society thinks there should be very few males because males are bad, how will that make the few males feel? But if the message is simply a reflection of the fact that having many males is indeed bad for society, then that truth will come out (and should come out) in any event.

     The issue, I think, can't be inherently framed in terms of sexism (though of course some anti-male arguments, like some anti-female arguments, come largely from irrational prejudice rather than rational judgment). At the same time, it can't be framed in terms of bad science, either -- and focusing just on the harms caused by men's greater propensity to violence, both criminal and military, or men's other supposedly damaging emotional traits is bad science. First, there is good reason to think that men are more likely to be, say, mathematical geniuses, and mathematical genius (and its related scientific cousins) is a pretty important thing for the species. If you look to the past, you can't fault males as a sex for all male-produced crime and war without also praising them for all male-produced scientific and political advancement; if you look to the future, you can't focus just on genetic propensities to bad behavior without considering genetic propensities to good behavior. Second, we of course have to consider the realities of human sexual desire and human mating practices, something that might be hard to change genetically, or that people might not want to change genetically in their children.

     Third, while a violent temperament among members of society has lots of costs in everyday life, there are periods in human history where it is necessary for a society's -- or a species' -- survival. Even if all humans decide to eliminate males, and exist in a more peaceful female-only society, will this society survive if some rogue group decides to genetically engineer a more violent rival society? And beyond that, while we're in the realm of science fiction, it's certainly quite possible that we'll encounter alien intelligent life forms, especially as we expand through the galaxy (which I'm sure we will in the centuries to come). And given our experience of life, including intelligent life, on earth, there's good reason to think that they may be violent. If we make our society too pacifistic, we may be unable to survive that sort of contact.

     These are all tough questions, and I have absolutely no idea what the right answers to them are. I think the right process for answering them, though, has to recognize that males and females are quite different biologically. They are less different than some in the past have thought they were; the remarkable changes in society in just the last generation or two show the errors in the formerly commonplace assertions about how women somehow lack the temperament to be, say, effective lawyers. But they are more different than many in the present think they are.

     It is not inherently sexist to say this, or, if it is, then it's "sexist" only if "sexist" becomes a value-neutral word. And if one consequence is that we (or, more likely, our great-grandchildren) conclude that a mostly-female or an all-female (or a mostly-male or an all-male) society is the right solution for the future, and we find that this can be done without improper coercion of parents, then we should consider this option -- even if we're committed to evenhanded treatment of actual males and females who are alive today.


TOO TOUGH IN THEORY LEADS TO NOT TOUGH ENOUGH IN PRACTICE: AmSoAPundit has an interesting story about the unexpected consequences of a tough anti-cheating policy:
UVA's system is entirely student run and expulsion from the school is the only penalty. The "you-cheat-you're-gone" system impresses outsiders as a tough, no nonsense approach.

In fact, it creates a climate in which there is a great deal of cheating. First, professors may suspect students of cheating, but are wary of taking the matter to the honor committee because the penalty is so severe. . . . And they are especially reluctant to call a student on the carpet when the cheating isn't flagrant. . . .

Because the stakes are so high -- expulsion -- professors know that accused students will use all resources available to fight the charges. (For instance, they will sue the University or the professor in court.) Such cases are likely to consume a great deal of professors' valuable research time, which adds to their reluctance to bring charges in the first place. . . .
I am not an expert enough on this subject to know what anti-cheating system works best; a lot depends on contested and uncertain predictions about how various people will respond to various incentives. But AmSoAPundit's point is valuable precisely because it shows that there are these thorny practical questions, and that some "get tough" policies may sometimes be counterproductive.

     More broadly, this provides another example of what I call the "anticooperative effect" of laws and rules -- the tendency of some rules, even well-intentioned and theoretically sound ones, to deter people from participating in a legal system, and providing it the cooperation that it needs to function.


SLATE ON BLIX: OK, I have no idea whether this Assessment is sound (I know very little about weapons inspections), but Chris Suellentrop is hardly a knee-jerk hawk (as the rest of his piece illustrates), and the opening line is just too good to pass up:
When the United Nations named Hans Blix its chief weapons inspector, it chose a henhouse to guard the fox.
Worth reading.


WHAT GORE IS REALLY SAYING ABOUT THE MEDIA: The New York Observer interview with Al Gore has quite a telling quote:
"The media is kind of weird these days on politics, and there are some major institutional voices that are, truthfully speaking, part and parcel of the Republican Party," said Mr. Gore in an interview with The Observer. "Fox News Network, The Washington Times, Rush Limbaugh—there’s a bunch of them, and some of them are financed by wealthy ultra-conservative billionaires who make political deals with Republican administrations and the rest of the media …. Most of the media [has] been slow to recognize the pervasive impact of this fifth column in their ranks—that is, day after day, injecting the daily Republican talking points into the definition of what’s objective as stated by the news media as a whole."
Interesting -- the conservative media are a fifth column in the media's ranks. Now a "fifth column" is technically defined as "an organized body sympathizing with and working for the enemy within a country at war" (I'm quoting my New Shorter Oxford), but of course it's also defined more broadly as just "an organized body sympathizing with and working for an adversary in a political or moral contest." It doesn't just refer to a group of partisans within a pool of nonpartisans; rather, it is generally used to refer to a group of partisans within a pool of partisans for the other side -- the adversarial relationship is an inherent and, in my experience, necessary part of the phrase.

     So didn't Gore just admit that the media as a whole is liberal, and apparently in his view should be liberal? That's what would make conservative voices in the media a fifth column, no?


FIGURATIVE USAGES: Reader David Bufkin points out an important reason why figurative usages are necessary -- when one needs to coin a snappy term, such as "black hole," "Big Bang," "greenhouse effect," and "Oedipus complex." If you have only two words to work with, you often can't be literally precise; you need something that will convey much of the idea, even with some imprecision. This is one reason that figurative usages might be necessary and appropriate (and I stress again that my original post did not condemn all figurative usages).

     Even as to these usages, though, the users of the term should be careful about relying too much on the figurative phrase. Lots of people use metaphors such as "balancing," "slippery slopes," "chilling effects," and such as if the metaphor explained what was actually going on. Legal writing would be much better if people focused much more on the actual mechanisms -- the real-world events that the phrases refer to -- and not on the metaphor (as if, for instance, "balancing" a right and a government interest were as simple an act as "balancing" two weights on a scale). Likewise, I suspect that good scholarly astronomical writing relies very little on the terms "Big Bang" and "black hole" as such, and instead refers to the actual physical forces that cause these phenomena.

     As Justice Holmes famously put it, "Think things, not words." Figurative usages unfortunately lead people to focus too much on the words, or on the wrong things (the things referred to by the metaphor, such as physical balancing, chills, or slopes) instead of the right ones. That's why scholarly writing should use them cautiously and fairly rarely -- though, as I've continually stressed, it shouldn't abandon them altogether.

Tuesday, November 26, 2002


REGARDING STEVE POSTREL'S SO-CALLED VIEWS: That sounds like something Hitler would say.


INTERESTING SECOND AMENDMENT DISCUSSION: It's in a case from the U.S. Court of Appeals for the Fifth Circuit, the one circuit that has held (in my view, correctly) that the Second Amendment secures an individual right to keep and bear arms. Haven't read it fully yet, but thought I'd mention it.


THAT EVIL McDONALD'S: TechCentralStation has a great piece about the "McDonald's seduces children into a life of obesity" campaign -- it looks like the campaign is wrong on the facts, as well as on its moral and legal assumptions. (Disclaimer: I'm not an expert on nutrition, so I may be wrong in this recommendation, but it struck me as much worth reading.)


PASSAGE OF HOMELAND SECURITY ACT BRINGS CHANGES TO SURVEILLANCE LAWS, SENTENCING FOR COMPUTER CRIMINALS: Yesterday President Bush signed the Homeland Security Act into law, Section 225 of which incorporates the "Cyber Security Enhancement Act of 2002" that was working its way through Congress this summer. The new law makes some relatively minor amendments to the Internet surveillance laws, and fiddles a bit with the sentencing scheme for computer crimes. Here are the relevant changes to the computer crime laws, along with my commentary (note that for the purposes of this post, when I refer to "the Act" I'll mean Section 225, the Cyber Security Enhancement Act, not the Homeland Security Act) :

    1) SENTENCING: A good part of the Act deals in one way or another with sentencing for those convicted of crimes under 18 U.S.C. 1030, the Computer Fraud and Abuse Act. Section 225(b) and (c) are directives to the U.S. Sentencing Commission to go out and do some deep thinking about computer crimes and "if appropriate" amend the current sentencing guidelines. It's up to the Sentencing Commission to do what they they think is a good idea, but the directive suggests that Congress wants the Commission to add some extra penalties for 18 U.S.C. 1030 crimes. In particular, Section 225(b)(2)(A) tells the Commission to " ensure that the sentencing guidelines and policy statements reflect the serious nature of [18 U.S.C. 1030 crimes] . . . , the growing incidence of such offenses, and the need for an effective deterrent and appropriate punishment to prevent such offenses." The Commission has to come up with a report on these issues, well.

    In my opinion, Congress is barking up the wrong tree here. Currently the Sentencing Guidelines treat computer crimes just as seriously as any other crimes-- and in some way more seriously, as in the case of child pornography offenses where there is an enhancement for the use of a computer. In general, the same guidelines and punishments apply regardless of whether a crime is committed on-line or off-line. What does Congress expect the Sentencing Commission to do-- have a special enhancement treating computer crimes differently than other crimes? I gather the answer to that is "yes." In any event, the Commission's report is due May 1, 2003, so we'll know relatively quickly what will happen.

    The Act also adds a provision to the penalty section of the computer crime statute, 18 U.S.C. 1030(c), allowing for higher statutory max punishments (if allowed by the Sentencing Guidelines, of course) for violations of 18 U.S.C. 1030(a)(5)(A)(i).The provisions state:
(A) if the offender knowingly or recklessly causes or attempts to cause serious bodily injury from conduct in violation of subsection (a)(5)(A)(i), a fine under this title or imprisonment for not more than 20 years, or both; and (B) if the offender knowingly or recklessly causes or attempts to cause death from conduct in violation of subsection (a)(5)(A)(i), a fine under this title or imprisonment for any term of years or for life, or both.
My sense is that these provisions don't mean a whole lot unless the Sentencing Commission changes its guidelines (and again we'll have to wait to find out), but at least in theory it allows for some pretty high maximum penalties for computer crimes. The press likes to say that this change has allowed "life sentences for hackers," but that's not quite right. First, the 20 year/life sentences are only for violations of 1030(a)(5)(A)(i), the computer damage statute. Most computer hacking falls under 1030(a)(2), unauthorized access to a computer. There can be overlap, but there need not be. Second, the change is only to the statutory maxima. In the federal system, sentences are govern d primarily by the Sentencing Guidelines, and a statutory maximum may or may not matter.

    I gather the thinking behind this change is that someone who uses a computer to cause real physical world harm such as death should be treated as seriously as they would off-line, and that the 5 or 10 year statutory max penalties for hacking or a run-of-the-mill DDOS attack just won't cut it. In that case, I suspect that these changes may end up serving primarily as jurisdictional provisions. Why? Imagine that a computer user launches a DDOS attack against a computer that controls an airplane, overwhelms the computer and intentionally crashes the plane, killing lots of people. The computer user would be guilty of murder under state law, even without any computer crime statutes. State homicide law doesn't care how someone causes the death, only that they do. So the computer user could get life in prison (and in some jurisdictions the death penalty) under state law already, and this change to federal law would help ensure that there would be federal jurisdiction and a serious federal penalty for the crime as well.

    In any event, I doubt that this provision will be used much, if at all. Fortunately, it is extremely rare for a person to send a computer command that causes a death. And the government almost never prosecutes attempts under 18 U.S.C. 1030. Taken together, these points suggest (at least to me) that this text may end up like another 18 U.S.C. 1030(a)(1), which covers hacking to obtain classified information. As far as know, 1030(a)(1) has never actually been charged, even though it's been on the books for almost twenty years.

    Finally, the Act has an important but little-noticed provision significantly boosting possible penalties under 18 U.S.C. 2701, a rarely used criminal prohibition on accessing without authorization unopened e-mails and other undelivered files. 2701 vi n furtherance of any criminal or tortious act, it's a 5-year felony. This may actually add a pretty important new tool, making it significantly more likely that law enforcement prosecutes hacks into e-mail accounts. So, for example, snooping around another person's e- mail account in furtherance of a tortious act is no longer just a misdemeanor, but rather a relatively serious 5 year felony.

    2) AMENDMENTS TO THE INTERNET SURVEILLANCE LAWS: The most important change here is to the Pen Register statute, and in particular to the "emergency" provisions of 18 U.S.C. 3125. The pen register amendments will likely have a considerable impact on how computer hacking investigations are conducted.

    A bit of background first. When the government learns of a hacking attack ongoing, the government will often first seek to get a pen register order to try to trace back the attack or future attacks to its origin. The orders are relatively easy to obtain, and they usually don't provide much private information in a computer hacking case (the order generally will be used at the packet-header level to yield a bunch of IP addresses where some packets originated). However, prior to yesterday, the government still needed to go find a judge to sign the order first, and then conduct the monitoring later. This usually took somewhere between an hour and an afternoon. The law did make two exceptions: the government could set up a pen register and collect the information first and then get an order okaying the surveillance within 48 hours afterwards, but only if the case involved immediate danger of death or seriously bodily injury or organized crime and a high-level DOJ official approved it.

    The new la adds two new situations in which the government can use this so-called "emergency" authority. Under the new law, the government can exercise this emergency authority with high- level DOJ approval when there is:
(C) an immediate threat to a national security interest; or (D) an ongoing attack on a protected computer (as defined in section 1030) that constitutes a crime punishable by a term of imprisonment greater than one year.
Between these two, I think (D) is especially significant. Basically, if there's an ongoing hack or DDOS attack that is a felony, a high-level DOJ official can now authorize the immediate installation of a pen register to trace the attack. No need to do the paperwork, find the judge, arrange an appointment, wait for the judge to sign the order, and pick up the order. Rather, DOJ can call up ISPs and have them start the monitoring, and then obtain the court orders within 48 hours. A very interesting change, and one that I suspect may considerably add to the government's ability to investigate 18 U.S.C. 1030 offenses. (On another note, there's an interesting question of what an "ongoing" attack is -- is that a continuous attack, or one that may return? -- but this post is probably long enough already, so I'll move on.)

    The new law also expands the ability of a commercial ISP (or other provider "to the public") to disclose the contents of stored communication such as e-mails. ISPs such as AOL can't voluntarily disclose the contents of e-mails and the like to law enforcement unless a particular exception applies. Under the Patriot Act, one exception allowed ISPs to disclose such contents to "a law enforcement agency . . . if the provider reasonably believes that an emergency involving immediate danger of death or serious bodily injury to any person requires disclosure of the information without delay." (what was 18 U.S.C. 2702(b)(6)(C)).

    Under the new law, that exception has been expanded, so t at it now allows disclosure "to a Federal, State, or local governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of communications relating to the emergency."

    What's the difference? The most important one is that the disclosure need not be to a law enforcement agency, but rather can go to any government entity (read: Department of Homeland Security), as has been the rule for the analogous exception for disclosure of non- content records. Also, the belief need only be in good faith, not actually reasonable, so ISPs more worried about being sued than saving lives can disclose the contents with less of a concern about civil liability. The press has made a relatively big deal about this change, but I don't see it as particularly significant. ISPs are generally reluctant to disclose information about their subscribers in the first place, and I don't think the relatively minor change in the language of this exception will change that.


A DISSENTING VOICE ABOUT CIVILITY: Steven Postrel, who is a very nice guy himself, writes the following:
Your campaign for civility and persuasion in blogging is interesting, but I think relies on selective sampling of the data in regards to the effectiveness of persuasion. One problem is that there are many people who don't read blogs but are influenced by those who do. To the extent that a blogger can convince his readers that the opponents of his view are cretins, his readers' social influence will act on the waverers far more effectively. Many, if not most, people form their political views by figuring out what is socially acceptable in the circles to whose membership they aspire. Getting those circles to take a dismissive attitude toward one's opponents then can sway large numbers of people who never read the blog. . . .

[Moreover,] increasing the fervor of one's supporters is important in politics, and the genuinely undecided are likely to see the confidence with which one's views are expressed, and the fun one seems to be having in expressing them, as positive indicators of the merits of your case.

My guess is that the rationally undecided types just looking for the best arguments are a distinct minority on the Internet and in society. They may be high-quality converts . . . and so worth targeting, but my guess is that in the controversy game you collect more flies with vinegar than with honey . . . .
Steve's points are quite fair ones, but I think that on balance politeness (though forceful, fun-to-read politeness, with trenchant though calm criticism) works better than invective. My sense is that on balance expressing one's views with "confidence" is persuasive, but expressing them with bile or pejoratives is not. Likewise, my sense is that it's easier to persuade people "to take a dismissive attitude toward one's opponents," at least via a Web log (I can't speak for other media, such as billboards, bumper stickers, or TV ads) by powerfully and memorably showing the substantive weaknesses in the opponents' arguments, rather than by calling the opponents names. Even if the opponents deserve pejoratives, let the reader's mind fill in the pejoratives, rather than expressing them oneself -- seems more effective to me, if one can swing it.

     But of course this might well be all wishful thinking on my part. It's always tempting to assume that what one likes, ethically and esthetically, is actually more effective -- but such assumptions are often wrong. Who knows? For now, I'll stick to my tentative judgment, but I realize that I might be mistaken.


That explains it: "I gave Bill Clinton all kinds of ideas" -- Gary Hart, on his continued involvement in national politics (Los Angeles Times, 11/25/02).
The reader also writes, in response to my query about whether I should include his name when I blog this,
There is a midrash which tells us that the highest mitzvah is one performed anonymously. I would add that it is also the safest.


GORE: "Just 19 percent [of respondents in a New York Times poll] said they held a favorable view of the former vice president, compared with 43 percent who had an unfavorable view." I mention this simply because I've heard people say that he's still considered the front-runner for the 2004 Democratic nomination. (Thanks to Kausfiles for the pointer.)

UPDATE: Reader Matthew Bass, a self-described New Democrat, writes:
If we didn't go to the concert the first time, what makes them think we'll shell out for the reunion tour?


A BIT MORE ON BLOGS AND TONE: Reader and fellow lawprof Chad Oldfather writes:
I fall into the class of people who do like to seek out viewpoints different from my own (and, perhaps more importantly, to expose myself to the full range of viewpoints before settling on one for myself). . . . There's little doubt that I generally leave [a Web log that is calm and polite] feeling much more inclined to have been persuaded by what I've read than I would if I'd encountered the same arguments elsewhere sprinkled with variants of idiot, moron, references to The Left and The Right, and the like.

I certainly understand the impulse toward snideness when addressing others' arguments, and early in my career as an appellate advocate I'm sad to say I succumbed on more than one occasion. But experience brought me pretty quickly around to your position, and I'm pleased to see you addressing it.
Another reader, my colleague Kristen Holmquist (who describes herself as having "lefty leanings"), echoes this, saying that she likes
to become informed about positions other than my own . . . in a respectful, noninvective-hurling forum. I am one of those who despises the nastiness no matter where it comes from. An occasional jab is fine, but the incessant rudeness that passes for debate in too many places does no one any good.
Hardly a random sample of the population, I know -- and yet I think (and I certainly hope) that this is a pretty common view among thoughtful, intelligent readers (the very ones that bloggers should be seeking).


A NEW SLOGAN: Do you think this might catch on?

Smokers don't impose health care costs on society; governments that insist on paying for smokers' health care impose health care costs on society.

Inspired by Economics of Regulation and Antitrust, the course by Kip Viscusi (author of the latest stocking-stuffer, Smoke-Filled Rooms, and of the first book I read on the subject, Smoking: Making the Risky Decision, now out of print). See also this article from long ago, where I quote Viscusi for the proposition that people overestimate the risks of smoking.

UPDATE: Reader Matt Bower likes it and reminds me that the same is true of motorcycle helmet laws. He's right, of course -- and in fact, motorcycle helmet laws are a big part of what started me thinking about these issues way back. Might as well mention that Eugene had a blog post about motorcycle helmet laws here back in April. Eugene argues that a libertarian may oppose paying for helmetless riders' health care costs, but given that society does pay for such health care costs, you ought to be able to get a special "helmetless riding" license plate, which would allow you to ride helmetless if you have insurance for helmetless riding. Well, I don't know whether Eugene's proposal would make things better or worse from a libertarian perspective, but it's worth a read.

UPDATE 2: Reader Robert English says: "You are, of course, correct. If we simply let anyone who smoked die without treatment, there would be no health care costs. We'd have to change the ethic of the medical establishment so that doctors would only treat patients who could pay, but that process is already under way." Well, I agree only partially . . . it's not a matter of medical ethics -- doctors should be able to treat whomever they like -- but more a matter of political ethics. Whether we should pay for poor people's medical care is one issue . . . the really pernicious part is where, once we're paying, we have to support either restrictions on the activity or make someone else foot the bill purely out of a sense of fiscal responsibility. Always remember that if you've made the decision to be charitable, it's your decision, and no one else is at "fault" for your decision to spend your (and your fellow taxpayers') money.

UPDATE 3: Reader Ed Still says smokers do impose health care costs on non-smokers by exposing them to smoke -- he can't be around smokers because their smoke will cause an asthma-like attack. I agree, but the slogan was about imposing health care costs on society. Of course smokers can impose costs on certain individuals, just like anyone can harm anyone else through their activity, and there's nothing inherently wrong with policies to deal with that, provided the harms are great. That's very different from the view that smokers impose costs on everyone in society through the general tax burden.


THANKSGIVING FOR ME: It all reminds me of how my ancestors, the Pilgrims, came to this country in 1975.


THE FIRST THANKSGIVING: When I was in elementary school, we were taught that the Pilgrims were saved from starvation by an Indian named Squanto, who taught them how to plant corn. The story comes from William Bradford's journal, published under the title Of Plymouth Plantation (it's at page 85 of the 1952 Knopf edition). What we weren't taught, though, is the full story. Squanto had been kidnapped as a child and brought to England, where he had lived for several years. Eventually, after years of travel to various places, he made it back home, only to find that his entire village had died of smallpox while he was away. When the Pilgrims showed up, they found a deserted village with fields already cleared for farming, and an English-speaking Indian, the sole survivor of his tribe, who was willing to help them get started. Boy were they lucky.


PREMATURE OPTIMIZATION IS THE ROOT OF ALL EVIL: See these few pieces on What Would Jesus Drive?, the anti-SUV campaign: one by Jacob Sullum in Reason, one by Brendan Miniter in, one by Donald Sensing on One Hand Clapping, and a comment on Brendan Miniter by Hanah on Quare.

A comment on the Miniter/Hanah exchange. Miniter says you shouldn't go after SUVs because SUVs create wealth and wealth leads to a cleaner environment. Hanah says wealth leads to a cleaner environment, in part because people become rich enough to start a What Would Jesus Drive campaign, so don't argue against that campaign when that's the mechanism by which wealthy societies clean up. Let me suggest a middle path.

Here are three ways wealthy societies tend to be cleaner:

  • People become rich enough to demand "environmental goods," i.e. spend more to get organic foods, free trade coffee, recycled paper.

  • Societies become rich enough to impose environmental regulations without destroying their economies.

  • Even without the two above, new technologies tend to be cleaner than old technologies, just because that's how lots of technologies work.

Now I suppose we all like #3. Hard-line libertarians would disapprove of #2, though most others might approve of some #2 measures at least in theory. And #1 is just people acting in the market, and what's wrong with that?

Well, we can still point out that #1 and #2 measures might make us worse off even by environmental standards. Many basic environmental regulations make us much better off, and it's kind of silly to say, at that extreme, that we shouldn't do it because it'll prevent us from growing and thereby becoming cleaner in the future. On the other hand, lots of silly regulations have exactly that problem. Even assuming they do clean up the environment, they may slow down environmental improvement by asking for too much of it right now. And premature optimization is the root of all evil. (This is attributed to Tony Hoare and Donald Knuth.) Against those policies, Miniter's argument has bite -- we should forego them and become richer (and ultimately cleaner) instead.

Same with people acting in the market, for instance by buying organic food, foregoing SUVs, or buying recycled paper. Oh, they're free to do what they like. But I still want to tell them that recycling isn't always good for the environment. Same with Miniter's critique of the What Would Jesus Drive? movement. Sure, these voluntary movements are great and may in fact help the environment without coercion. But still, let's establish (1) that they do make the environment cleaner, and (2) even if they do, that they do so without preventing better improvements in the future.

Now admittedly, I'm more in Hanah's camp than in Miniter's. If it's voluntary, I'm inherently unwilling to criticize. This is why, for instance -- though some economist friends of mine argued otherwise -- I never argued against the Living Wage campaign at Harvard. They wanted to pay their janitors high wages. I know as an economist that minimum wages increase unemployment, and as a libertarian I'm against mandating such policies on private parties. But what would happen if Harvard, a private organization, did it? Some janitors would earn more, while others might be out of a job. Or maybe they'd fire very few or no janitors but take the money out of their huge endowment and screw over Harvard students 100 years from now. (They can do that if the Living Wage campaign successfully agitates not only for higher wages but also for no layoffs, or if demand for janitors is inelastic, that is, if Harvard needs all those employees to provide the services to attract students.) Do I care about employed janitors, unemployed janitors, current students, future students . . . ? More importantly, does Harvard care about those?

Arguments that say "This policy is deficient by your own standards" are great -- but they really require that you know what these people's standards are. Often, people who engage in this exercise have some caricatured idea of what people's standards are which bears only the slightest resemblance to their actual views.

For instance, one economist told me the living wage campaign would be bad by the protesters' supposedly liberal standards, because while some janitors would be better off, others would be unemployed, and of course the impoverishment of these unemployed janitors should be more important to a liberal than the enrichment of those janitors who keep their jobs. But is that really right? Maybe these liberals don't care about the poorest people first -- if they did, maybe they'd be protesting in Bangladesh. Maybe they care more about people who are nearby, like employed janitors. Maybe they just care about how we deal with the people who are in our community (one supporter of the Living Wage actually claimed this to me), and believe that paying people below-"decent" salaries sullies their own hands because it involves treating them as sub-human, while not hiring people in the first place doesn't sully your hands.

Anyway, it was all too complicated for me to get involved, because I won't even presume to wonder what the Harvard community, the Harvard trustees, or the Living Wage protesters actually believe.

Same with the anti-SUV campaign. Sure you can become dirty and, through enrichment, later make yourself clean. But if pollution is sinful, do you get rid of the sin by cleaning up afterwards? If you take a strong view of the action-inaction distinction (which, incidentally, many libertarians do), polluting now can be seen as bad while not growing in the first place is no sin (even if growth would give people better lives). It's a respectable view. Maybe these religious folks actually hold that view. Who knows? Not I.

Anyway, my moral is: Many real environmental improvements may stem from reasonable environmental regulations or reasonable popular campaigns. But lots of regulations or private environmental campaigns are subject to a critique on environmental grounds. If they are, go for it! But if you're aiming such an argument, a critique from within, against actual environmentalists, make sure you really understand what their goals are.


IDEOLOGICAL COCOONING: There's been much speculation recently about whether the Internet increase people's predisposition to talk to and listen to only those views that they generally agree with, and to simply ignore other views. Some say yes. Some say no. Some say that at least Weblogs diminish this tendency, because they often link to views they disagree with, if only to rebut them.

     Let me suggest a slightly different hypothesis: Most people have a particularly strong tendency to ignore views that they disagree with and are presented rudely.

     I suspect that most people do prefer to read things that reinforce what they already believe. But those people who are interested in ideas (who are probably disproportionately represented among readers) realize that they need to consider others' viewpoints, and are often willing to do so.

     These readers, though, are extremely easy for a writer to lose. It's already a bit hard emotionally for people to consider other viewpoints (sad, but that's the reality of human psychology); invective and insults make it still harder. What's more, since rudeness is often a proxy for substantive weaknesses in an argument, especially for the failure to take opposing views seriously, readers think to themselves: "This stuff is annoying to read, it's probably not that good substantively, why should I waste my time on it?"

     This effect does indeed relate to ideology. Though quite a few people have low tolerance for rudeness generally (for instance, because they feel that rudeness by some of their allies reflects badly on the whole movement), most people do have more tolerance for rudeness by their ideological allies than by their ideological adversaries. Among other reasons, hearing the other side insulted is less annoying than hearing our side insulted. So as political invective increases, people's natural tendency to prefer listening to their friends is exacerbated.

     Naturally, bland and boring material is also a turn-off, both for friends and for adversaries. But somewhere between Caspar Milquetoast and -- well, I won't name names -- there is, I think, a zone which is interesting and challenging for both sides, and can actually persuade people (even if by degrees) and not just reinforce their existing views.


GARRETT v. BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA: Garrett Moritz, founder of Moritz College of Law, weighs in on the "speech code" controversy. I think he's being a little too soft on the diversity people -- not all confrontation and argumentative combat is equal, and people channeling their confrontational energies into lobbying for speech codes, like political rent-seeking, is not a positive development, even if the exercise (in the short run) hones their lawyerly skills, and even if, for reasons of bureaucratic inertia and sandbagging, they're not going to get anywhere. But it's still well worth reading.

UPDATE: Apparently, this isn't about the University of Alabama, but Harvard Law School. Board of Trustees of the University of Alabama v. Garrett is a different case.

UPDATE 2: Apparently, Garrett isn't actually the founder of Moritz College of Law but is my friend from Harvard Law School. Sorry!

UPDATE 3: Maybe this guy?


NIGERIAN GOVERNMENT OFFICIAL CALLS FOR KILLING OF JOURNALIST: Clayton Cramer points to an AP news story that says:
The deputy governor of a largely Islamic state in northern Nigeria has called on Muslims to kill the Nigerian writer of a newspaper article about the Miss World beauty pageant that sparked deadly religious riots.

"Just like the blasphemous Indian writer Salman Rushdie, the blood of Isioma Daniel can be shed," Zamfara Deputy Governor Mahamoud Shinkafi told a gathering of Muslim groups in the state capital, Gusau, on Monday. . . .

While state officials cannot issue fatwas, the deputy governor, "like all Muslims," considers the death sentence against Daniel as "a reality based on the teachings of the Quran," Zamfara state Information Commissioner Tukur Umar Dangaladima said Tuesday.

Islam's holy book "states that whoever accuses or insults any prophet of Allah . . . should be killed," Dangaladima told The Associated Press. "If she (Daniel) is Muslim, she has no option except to die. But if she is a non-Muslim, the only way out for her is to convert to Islam."
Clayton comments:
Notice how Ms. Daniel's cheeky, even obnoxious writing "sparked deadly religious riots"? It couldn't be that an narrow-minded, intolerant bunch started burning churches and murdering Christians because they found Ms. Daniel's remarks irritating.


FROM MY COLLEAGUE JONATHAN ZASLOFF: I'm not sure exactly where I stand on this, but Jonathan makes a forceful argument, which I'd like to pass along:
While much of the discussion has focused on MLDEF's unconscionable attempts to silence Dershowitz, we should also examine the substantive aspect. And on substance, Dershowitz has a very good point, as unappetizing as that point is.

Why do Hamas, Islamic Jihad, and the Palestinian Authority support suicide bombings? Most commentators dismiss the tactic as "senseless violence", but that is exactly wrong. The violence has a specific and clear purpose: to reduce the number of Jews in Israel and thereby win the demographic struggle. Demography, not religion, is really at the heart of the suicide bombers' strategy.

Obviously, the bombings themselves will not do the trick. The point is twofold: first, to foster emigration from Israel by frightened Israelis. Arafat himself admitted as much in a 1996 speech to Arab foreign ministers, in which he declared that the purpose of the attacks was to make "1 million rich Jews" to leave. (By that, he meant the educated Ashkenazi elite).

Second, the bombings are meant to destroy the Israeli tourism industry, thereby severely wounding the economy. (This last attempt seems to have had a great deal of success, facilitating by Israel's own gross economic mismanagement and the use of scarce resources to support right-wing settlers.). This will cause even more emigration.

What's the point of this? Currently, Israel within the Green Line has an 18% Arab population, and another 20% are "Haredim"--ultra-orthodox Jews who don't serve in the army, don't work (and are thus very poor), and don't support Zionism. Both of these groups have the highest birthrates in Israel: by some estimations, in 25 years, Israel will have a non-Zionist majority. But the Palestinians can't hold out for 25 years--or for 50 years, which would bring a completely Arab majority to pre-1967 Israel (by some estimates). Besides, conditions of peace could drastically change the demographic equation because it would allow secular Israelis to better integrate Arabs and Haredim into Israeli society, changing their birthrates significantly.

The bombings, then, hasten the demographic transition and make it very difficult for Israel to enact the domestic policies designed to halt that transition.

The Dershowitz strategy is the countermove to the Hamas/Islamic Jihad/Palestinian Authority demographic gambit. It makes it very clear that suicide bombings cannot succeed for the simple reason that they will spawn and Israeli move to disrupt Palestinian towns. If terrorism continues, the Palestinian demographic strategy will actually be undermined through the destruction of villages. In 50 years, there won't be any Palestinians left to receive the country, whether they be residents of the West Bank and Gaza, or Arab Israelis (who now are referring to themselves as "Palestinian Israeli citizens").

What if Israel just gets a whole bunch of West Bank towns but not Palestinian Israeli citizens? Simple: redraw Israel's boundaries so that the Arab enclaves aren't included. This would yield a contiguous Palestinian state unable to destroy Israel from within.

This is a very, very brutal game. But that's what deterrence is all about. Consider nuclear deterrence and Mutually Assured Destruction (MAD), which worked pretty well for the US during the Cold War. MAD simply told the Soviets that if they launch a nuclear strike against the United States, then the United States would incinerate 100 million Soviet civilians--who had absolutely no responsibility for the first strike. That's about as clear an example of collective punishment as you can get. And it worked.

Virtually ALL deterrence works like this. Remember that deterrence diverges sharply from defense, which simply seeks to prevent the enemy from successfully attacking. Defense is a blocking action. Deterrence is about creating incentives: if you do X, then I will respond in such a way as to make you worse off than you were before. Thomas Schelling, the great theorist of deterrence, remarked that it is not true that the nuclear age was the first time that humanity had the capability of destroying itself. With a sufficient number of soldiers, he noted, "there is nothing that one can do with a nuclear weapon that one could not do with an ice pick." The use of pain and the threat of collective punishment is as old as international relations itself.

And in this light, it is clear why the attempt by MLDEF to state that Dershowitz' position violates international law is really pretty pathetic. International law claims that it reflects the customs and practices of nations, and the considered beliefs of those nations promulgated by authoritative international bodies. But of course the customs and practices of nations accept quite brutal deterrent methods. And there really are no such things as "authoritative international bodies". The United Nations can't enforce its own rulings, which is why "international law" contains so many more grotesque contradictions and internal inconsistencies than domestic law: at some point or another, if a domestic legal contradiction arises, some court or legislature will have to resolve it. Not so with international law.

Thus, for example, it is a bedrock principle of international law that all peoples have a right to self-determination, and also bedrock that peoples have no right to secede. Nothing has to give, because no institution has to enforce either provision. If you want to declare something violates international law, just wait a few minutes and you (and your lawyer) can find something.

What MLDEF really seems to want, then, is for suicide bombings to continue, and to for Israel not to have any recourse to stop it. Depending on your views of the Middle East conflict, that might be the preferred policy. But it has nothing to do with international law.

And in case anyone's interested, I'm a member of the California Bar. # 177756. Go ahead. Make my day.


Two Christian law organizations [American Catholic Lawyers Association Inc. and the Thomas More Law Center] are suing the Cranston Police Department for confiscating antiabortion protesters' signs depicting aborted fetuses. . . .

The suit alleges that the police violated the constitutional rights of Joseph M. Manning, 71, of Narragansett, and Barbara A. Burgess, 69, of Warwick, who were protesting on Sept. 28 outside the Women's Medical Center of Rhode Island, 1725 Broad St. . . .

Manning was wearing, in sandwich-board fashion, two 3-by-5-foot signs with color pictures of aborted fetuses. There were similar signs leaning against a nearby utility pole and on Manning's pickup truck, parked across the street from the clinic.

One sign showed a picture of a third-trimester, aborted female's head, bloodied, held with forceps.

Burgess joined him, but did not have any signs. . . .

The police approached the protesters because several neighbors and passing motorists had complained about the signs, according to a police report. . . .

THE POLICE first came to the clinic after receiving a call at 8 a.m. from a neighbor who said she was awakened by one of the protesters "yelling at the top of his lungs at clients," according to the police report.

Shortly after the call, the police received complaints from two motorists who drove by the clinic and were "offended by the signs due to their graphic nature and realism," the police report says.

Several neighbors on Grand Avenue and Betsy Williams Drive then called the police at 10:30 a.m. because they "were concerned of the effect the pictures would have on children," the report says. They were also "concerned that young children were being forced to view these pictures and that the parents in effect had no say in what their children were seeing." . . .

After the police talked to the complainants, Sgt. Henry joined the other officers at the clinic and asked Manning to "either cover or put away these offensive posters or they were going to be confiscated," Henry wrote in his report.

HENRY SAID in his report that he asked for the signs to be covered, and threatened their confiscation, for several reasons including:

"The patently offensive nature of the posters that affronts the current community standards of decency."

The posters were being displayed in "a densely populated residential area."

Broad Street is a heavily traveled roadway, usually congested, causing "motorists to be subjected to viewing the photos for extended periods of time."

Members of the general public not using the facility have to see the posters.

Children playing in their own yards on Betsy Williams Drive are being shown the posters.

"The extreme size of the photos that causes them to be seen from great distances."

The protesters' "failure to exercise reasonable discretion" in displaying the signs to minors.

According to Henry's report, Manning "refused to cover or put away" the signs, so they were confiscated. "At no time was he told to stop demonstrating."

The lawsuit says that Manning removed the signs he was wearing "out of fear of being arrested." Those signs and the signs on the utility pole and his truck were taken "without his consent, without probable cause and without a warrant," the complaint says.

Burgess, who did not have any signs, says in the lawsuit that the police stopped her from witnessing the interaction between them and Manning. . . .
     This sort of protest isn't quite my cup of tea, but it's clearly protected by the First Amendment. As the Court has repeatedly held, in cases such as Cohen v. California (1971) (striking down punishment for wearing a jacket saying "Fuck the Draft"), Erznoznik v. City of Jacksonville (1975) (striking down a law that banned the display on drive-in screens of movies that contain nude scenes, if the screens are visible from a public place), and Texas v. Johnson (1989) (striking down punishment for burning a flag), even offensive speech is generally protected, at least so long as it doesn't fit within the narrow obscenity or fighting words exceptions (which a political poster, even a very offensive one, certainly does not).

     But on the other hand, consider this:
On Oct. 4, the lawsuit says, Chief Chalek called Burgess saying that the three officers "made a 'terrible mistake,' that they had no right to take the aborted baby signs and that the signs may be picked up."

The lawsuit claims that Manning and Burgess "suffered fear, humiliation, degradation, embarrassment and emotional pain and suffering and are entitled to damages."
It sounds from the story like the police department has repented (unless they were apologizing only for taking the signs and not for ordering that they be put away). I also see no evidence that the police are likely to do this again (though if there was such evidence, that would certainly affect my judgment).

     Is it really right to sue the city for "fear, humiliation, degradation, embarrassment and emotional pain and suffering"? Yes, it sounds like the plaintiffs have a right to sue, though it's not clear that they'd collect much in damages. Yes, I understand that in theory such lawsuits might end up slightly increasing the pressure on the police to act properly (though they might also create an incentive for the police not to admit error and apologize, since any such action can be used against them). But here it sounds like the police have acknowledged their error, and apparently aren't going to do it again. Is a lawsuit really the best way to spend everyone's time, and the taxpayers' money?


THE FIGURATIVE: Philippe offers a tentative defense of some figurative usage, by pointing to Richard Posner, one of the great modern legal writers. I don't really disagree much with Philippe on this, because he doesn't defend all or even most figurative usage, and I didn't criticize all figurative usage -- as I pointed out, my advice was to avoid the figurative, but not like the plague. ("If you think some figurative phrase can make a point more vivid, use it, but only after considering both (1) whether the phrase really adds something, and (2) whether the literal meaning of the phrase might weaken your writing more than the figurative strengthens it.")

     Nonetheless, I think that even Philippe's examples expose some risks of figurative usage. Let me just focus on Philippe's second example, and assume that it's written not by Judge Posner, but by a law student writing a student Note (my intended audience) -- quod licet Jovi, non licet bovi:
The particular casualty of preoccupation with citation forms is the style of legal writing. The Bluebook displays an excessive, an unhealthy -- one is almost tempted to say, since this is still the land of freedom, an un-American -- obsession with uniformity. By teaching that uniformity is one of the most important things in law, the Bluebook encourages the tendency of young lawyers, many of whom in their larval stage are law review editors and in their chrysalis stage the ghostwriters of judges and senior partners (the butterflies), to cultivate a most dismal sameness of style, a lowest-common-denominator style. The Bluebook creates an atmosphere of formality and redundancy in which the drab, Latinate, plethoric, euphemistic style of law reviews and judicial opinions flourishes. Every lesson that students of the English language and teachers of writing seek to instill and that the great writers exemplify is turned on its head in legal writing.
I've italicized the potentially figurative references (and one more). A few thoughts:

     1. The most obviously figurative usage is the larvae/chrysalis/butterfly analogy, which I think is an amusing enough gag, but does quite little to advance the paragraph's argument. If anything, the imagery may not be quite right: The butterfly makes people think of beauty, and Posner is certainly urging beautiful writing -- but ugly larvae turn into beautiful butterflies naturally, with no real effort that I know of; not so for writing, where a larva law review editor who writes badly will eventually turn into a partner who also writes badly. But even if this is still appealing in Posner's writing, I don't think a law student could get away with it: The usage (a) is a bit cliche, and (b) may actually grate on some people (who's this upstart calling us law review editors larvae?).

     2. The next most obvious figurative usage is the "un-American," which I take it is a slightly absurdist joke. Again, from Posner it may be pretty funny, partly because we know he's not the sort of person who routinely calls things "un-American." But I don't think that this joke would work well in a typical student article (or even a typical law review article more generally) -- it would if anything be a distraction from the main theme. (Is the writer serious about this being un-American? Why? What does this really have to do with freedom? Does he think the Bluebook violates academic freedom principles?)

     3. Four usages are figurative but so familiar that many people probably won't recognize them as figurative: "casualty," "unhealthy," "turned on its head," and "lowest-common-denominator." When most people hear "lowest common denominator" they don't actually think of the original source (addition of fractions), but just think of it as an idiom for something that is just barely passable for everyone but not really good for anyone. But oddly enough, this turns out to be not quite right: Latinate and euphemistic writing actually doesn't work that well for everyone; the term "lowest common denominator" writing might apply well to "See Dick run" sort of oversimplifications, but probably not as well to the writing that Posner condemns. So while "lowest common denominator" adequately communicates a tone of condemnation, I think it misses a bit on the substantive grounds for the condemnation.

     My sense is that "casualty" and "unhealthy" are probably just fine here, but don't really add much vividness; "turned on its head" is likewise fine, and though it's not quite precise, its originally meaning is almost unnoticeable, and will be seen as acceptable hyperbole by those who do notice it; and "lowest common denominator" probably weakens the paragraph a bit. Again, much can be forgiven to Posner, who's a great scholar and a very good writer -- but I wouldn't advise law students to write this way.

     4. Finally, the one italicized word that isn't figurative, but deserves comment: "plethoric." I assume this is a little self-referential joke, just like my "quod licet Jovi" line. "Plethoric" means "excessive in style; turgid"; I had never seen the term before, and had to look it up (though I guessed its general meaning from context and from the word "plethora"). "Turgid," of course, is "excessively ornate or complex in style or language; grandiloquent," which makes the word "plethoric" rather plethoric itself. Again, an amusing little gag for those willing to take the time to think it through -- and most people who read Posner are likely willing to take the time. Not so, I think, for most people who read student law review Notes.

     I stress again -- let Posner be Posner, and I don't want to presume to correct him or change his style. But law students, I think, are better off writing something like this:
When people care too much about citation forms, they end up caring too little about clear, forceful writing. By teaching an obsession with uniformity, formality, and redundancy, the Bluebook reinforces the tendency of young lawyers to cultivate a drab, dismal style; and what students learn as law review editors, they remember as clerks, as young lawyers, and eventually as partners and judges. Standard legal writing violates every principle that students of the English language and teachers of writing seek to instill and that the great writers exemplify.
I'm sure there are some substantive differences here; for instance, I'm inferring that Posner is concerned about bad young writers growing up into bad old writers -- the larva/chrysalis/butterfly line seems to me unclear on this point -- and perhaps my inference is mistaken. And maybe on balance many readers would like Posner's style better than mine. But I think the omission of the figurative yields a result that, when written in a law student's voice, is probably as good as the original and may even be better.

Monday, November 25, 2002


PIRATES AT THE NAVAL ACADEMY?: Wired News is reporting that the Naval Academy has confiscated the computers of about 100 midshipmen and is considering bringing charges that could permit punishments as serious as a court-martial. The crime? Apparently the midshipmen are suspected of engaging in widespread copyright infringement of music and movies.

    The Wired News article is notably short on facts and long on commentary, so we don't know the precise circumstances, at least yet. However, my speculation is that this has a lot more to do with maintaining discipline and respect for law within the specific context of a military service academy than it does with a broader interest in enforcing intellectual property rights.


NICE LINE: "Short words are better than long words, and old words are best of all" (thanks to reader Warren Schenler; author unknown). I really like the "old words" proviso, because these tend to be the simplest ones -- but only if you realize that "old" means Anglo-Saxon rather than Latin.

UPDATE: Two readers say this is from Churchill, and one (Tim Van Meir) points to Bartleby's Quotations, which says so (their version is "The short words are best, and the old words are the best of all," which is why my google search for the other version didn't find this). I'm very skeptical of the authorship of such quotes, especially ones that are attributed to Those To Whom All Loose Quotes Flow: Winston Churchill, George Bernard Shaw, Oscar Wilde, Benjamin Disraeli, Mark Twain, Ambrose Bierce, and Dorothy Parker. But I guess Bartleby's is probably close enough for blogging (and I don't have the inclination to track down the source it cites, "Alistair Cooke America Knopf 73").


JOHN RAWLS has died. Why "A Theory of Justice" was [brilliantly] flawed was a central tenet of my senior thesis, but Rawls never got around to answering my charges.

I suppose his copious intellectual achievements will have to stand as they are.


UNIVERSITY OF TENNESSEE ACKNOWLEDGES FIRST AMENDMENT PROTECTIONS FOR BLACKFACE: As readers may recall, the University at first suggested that the fraternity chapter involved in the blackface incident might not be reinstated (even if the national fraternity lifts its own suspension of the chapter, a suspension that as a private entity the national fraternity is quite free to impose). The University has now made clear that it recognizes that the First Amendment protects both the students and the university from punishment:
None of the six Kappa Sigma fraternity members at the University of Tennessee will face disciplinary action by UT for allegedly painting their faces black for a party.

Although UT-Knoxville's Kappa Sigma chapter was suspended by the fraternity's national headquarters due to the incident, both the fraternity and individual members are protected from official school sanctions by the First Amendment's guarantee of free speech, according to an "overview" of the Oct. 22 incident released by UT.

"Controversy and debate are a normal part of life at a university, and (UT) is firmly committed to protecting the constiutional rights of freedom of speech and expression - even when some find it to be insensitve and offensive," said the UT report. . . .
Good news.


TYLER COWEN: A very nice nice piece by Chris Mooney, formerly of TAPped, about the cultural economist Tyler Cowen. I know Tyler, and think highly of him. If you're in the D.C. area and like good food, check out Tyler's guide -- some real gems there.


DOES ENERGY CONSERVATION PAY? Dave Roberts, an energy conservation consultant (among other things), takes me to task for dissing energy conservation. My point was that where conservation pays, we don't need government policies to mandate or subsidize it. (This is why I made specific reference to "conservation policies" -- as opposed to conservation generally.) Conservation is hardly the cure for our energy ills. As Fred Smith likes to say, conservation is no more our greatest source of energy than dieting is our greatest source of food.

Government policies designed to stimulate energy conservation are a bad deal. They are expensive, ineffective, or both. Private firms tend to do a pretty good job identifying where energy conservation really pays. In a competitive market, companies that miss the boat on sensible energy efficiency investments will lose out to their more forward-looking competitors. Note, however, that for an energy conservation investment to be truly worthwhile, it is not enough that it generates a positive return. Rather, the investment must return more than an equivalent investment in other things. An investment which yields a 3 percent annualized return is hardly a good deal if available alternatives are likely to yield greater returns. Similarly, if alternative energy sources make economic sense, there is no need to mandate or subsidize them. As it happens, most alternative energy is neither cheap nor green. If there are other -- non-economic -- reasons to encourage such alternative energy sources or energy conservation, that's fine, but we shouldn't pretend such choices are cost free.

I don't know where Roberts got the idea that I support the Bush-Cheney energy plan. Indeed, I criticized the notion of "foreign oil dependence" which is used to justify much of the plan. I also oppose energy subsidies -- all energy subsidies -- not just those for fuel sources which I do not like. Let's not forget that federal and state governments subsidize non-fossil fuel energy sources as well. These subsidies range from R&D support to sales mandates. Conservation has also been subsidized for years through demand-side management programs -- programs which look great on paper, but which have never produced the efficiency gains touted by their proponents. Insofar as energy markets are distorted by government policy, the answer is to remove the distortions, not pile on additional layers of bureaucracy.

Finally, I would note that Roberts' own policy prescriptions prove my point. Imposition of a docking tax might reduce the amount of oil America imports from overseas, but it would not insulate the U.S. from oil price shocks (as the UK experience demonstrates). It would, however, increase domestic energy prices. This might encourage conservation, but at tremendous cost. In short, it's not my idea of a sensible policy -- and certainly not a cheap one.


MORE ON THE KC JOHNSON / CUNY (BROOKLYN COLLEGE) ACADEMIC FREEDOM CASE: My mole Jerome Sternstein has changed his view (see his earlier post). Here's an excerpt of his message to me:
I've now been in communication with Johnson and two supporters of his, both former members of the history department, and I have reached a completely different understanding of his case than I formerly had. I'm embarrassed that knowing what I did about the department and its various ideological and personal factions, I was taken in by the propaganda campaign Brooklyn College's history faculty launched against Johnson. I now withdraw every negative thing I might have said about him because, from what I've found out, he is really being shafted big time. As a union representative who once handled grievance matters, I thought I had seen everything there was to see but the mistreatment accorded Johnson takes the cake. . . .
Sternstein concludes that the tenure denial was indeed based in large part on (1) his "question[ing], as head of the Curriculum Committee, a course on the Middle East that struck him as highly dubious from an educational standpoint," and (2) his resisting to the department's "limit[ing a hiring] search to a woman historian," and "calling instead for the appointment of the best available Europeanist regardless of sex or race." Again, these disputes are, as I've said from the beginning, notoriously hard to get to the bottom of, since so much turns on hotly contested disputes about people's motivations. Nonetheless, given that Sternstein's original conclusion was that the denial of tenure was based largely on other factors, I thought I'd pass along Sternstein's change of view.


"HIGH COURT TO HEAR MIRANDA CHALLENGE": The Chavez v. Martinez case, which the Supreme Court will hear next week, has been getting some news coverage, so I thought I'd reprise a post that I blogged about the issue last June, in case people might have missed it the first time around and might find it interesting:

POTENTIAL SLEEPER SUPREME COURT CASE? Say the government interrogates someone in violation of Miranda, or the Sixth Amendment rule against interrogating someone who has been arraigned and asked for a lawyer at the arraignment, or the Fifth Amendment right not to be subject to coercive interrogation. (Let's set aside for now the case of plain physical torture, which might be somewhat different.)

     It's clear that a confession gotten this way is inadmissible at the subject's trial; the same is true even of evidence that is gathered indirectly as a result of the suspect's confession. But does the actual getting of the confession itself violate the Constitution? Are these rights only rights not to be convicted based on evidence gathered in certain ways, or rights to be free of these evidence-gathering methods in the first place? Are they rights that focus only on the fairness (beyond merely the truth-finding aspect) of the trial process, or are they rights that focus on the propriety of police questioning as such?

     This, it turns out, is very important. It's one thing to say "If you question the guy this way, you might not be able to use the results to convict him" -- it's another to say "You can't question the guy this way at all, and if you do you're acting unconstitutionally." (Perhaps either legal rule is just wrong where terrorism is concerned, but they are different.)

     My blog post below assumed that the Constitution indeed prohibited even the gathering of the evidence in certain ways, not just its use -- and there certainly is language in the Supreme Court cases and in lower court cases that takes this view. But fellow law professor Richard McAdams pointed out that this isn't necessarily so, and some language in the Supreme Court cases and in lower court cases supports that view, too. So maybe the government would have been free to interrogate Padilla even after he claimed his Miranda rights, so long as it was willing not to use that evidence at Padilla's trial.

     Here's where the Supreme Court may step in. With little fanfare, two weeks ago (June 3), the Supreme Court agreed to rehear Chavez v. Martinez, where one of the questions presented is "Does violation of [the Fifth] Amendment, potentially resulting in an award of civil damages, occur at the time of the purported coercive interview or only when and if the state introduces the constitutionally violative statement in a criminal proceeding?" Another law professor, Eric Freedman, mentioning this case to me, for which I thank him very much. I had completely missed it, because at the time it seemed like such a technical point.

     But now I realize that this could be a tremendously important question. Let's set aside the damages issue as such for now, since the broader question, in the Padilla case and others, isn't basically about the damages -- it's about what the government may constitutionally do, in a culture where legality and constitutionality are seen as tremendously important.

     Rather, the question is: May the government lawfully use certainly potentially coercive methods (but again ones that stop short of physical torture, which is a separate, though important, question) in the civilian justice process, so long as it's willing not to use the results in the questioned person's trial? Or is even the questioning itself unconstitutional?

     If the answer is the latter, then it looks like Miranda and the other rules could be very substantial barriers to using the civil justice system to deal with terrorism -- and military detention thus becomes a comparatively more powerful tool. If the answer is the former, then the marginal drawbacks of the civil justice system, and the marginal advantage of the military system, decrease.

     Of course, even if the government is only barred from using the evidence in the subject's own trial, this may still be quite troubling. It's one thing to say "Well, it's true that this [burglar or robber, or even rapist or murderer] will have to go free even though he's clearly guilty, but that's what we need to do to give the police an incentive to behave properly"; it maybe another to say with respect to an enemy saboteur who may have special skills, willpower, and connections that might allow him to fight against us again. But at least this consequence is less troubling than a conclusion that the government was simply barred from interrogating the enemy in various ways in the first place.


LARGEST IDENTITY THEFT RING IN U.S. HISTORY BUSTED, Associated Press reports. This sounds more like a fraud scheme to me, but I suppose calling it "identity theft" sounds cooler.


GO FIGURE. I think Eugene's general advice for beginning legal writers -- “Try to avoid the figurative” -- is a little too strong, but his more elaborate call for caution is of course well taken. If one wants examples of well-used metaphors and other figurative uses in legal scholarship, the natural place to look is to the writings of the better prose stylists in the academy. Richard Posner comes to mind, and in any article of his you can find plenty of figurative uses; that's one of the reasons why he is considered a good stylist. Here are a few examples that are substantively related to Eugene’s project:

  • "Anthropologists use the word 'hypertrophy' to describe the tendency of human beings to mindless elaboration of social practices. The pyramids in Egypt are the hypertrophy of burial. The hypertrophy of law is A Uniform System of Citation, now in its fourteenth edition (1986) -- a 255-page pamphlet on legal citation form, published by a consortium of law reviews led by Harvard."

  • “The particular casualty of preoccupation with citation forms is the style of legal writing. The Bluebook displays an excessive, an unhealthy -- one is almost tempted to say, since this is still the land of freedom, an un-American -- obsession with uniformity. By teaching that uniformity is one of the most important things in law, the Bluebook encourages the tendency of young lawyers, many of whom in their larval stage are law review editors and in their chrysalis stage the ghostwriters of judges and senior partners (the butterflies), to cultivate a most dismal sameness of style, a lowest-common- denominator style. The Bluebook creates an atmosphere of formality and redundancy in which the drab, Latinate, plethoric, euphemistic style of law reviews and judicial opinions flourishes. Every lesson that students of the English language and teachers of writing seek to instill and that the great writers exemplify is turned on its head in legal writing.”

  • "Law review editors, like other law students, are apprentice lawyers, and it is natural for them to imitate their masters -- who because of proximity are mainly professors. If the masters do nondoctrinal work, the apprentices will be tempted to try their hand at it. If the masters fulminate against the latest horror of the Rehnquist Court, it is natural for the apprentices to do likewise. [...] Law review editors' preoccupation with constitutional law and with the Supreme Court has produced an unfortunate warp in the coverage of American law by the student-written sections of the law reviews. This is particularly unfortunate because of all American judges, Justices of the Supreme Court are the least likely to take their cues from student-written notes. I suspect that student-written notes on constitutional topics have, with the rarest of exceptions, no readership at all. So here is an area where the absence of a market has a painful bite, reducing much law review publication to the level of a vanity press."

  •      These passages are full of figurative uses that I think make their points easier to visualize, more memorable, and more fun to read. Analysis of precisely what makes them work (if they do work) I shall leave to Eugene. To me the crucial point is that this is writing by an expert; as the last passage suggests, it doesn’t follow that students should try to imitate him. In every art and craft, whether it’s painting or piano or cooking or chess or kung fu or legal scholarship, there are advanced techniques that require an expert’s touch to use effectively but that are likely to cause beginners to get themselves into trouble. Metaphors are a good example.

         It follows that law students should be as careful as Eugene suggests when they try out figurative language -- but that’s because they’re beginners, not because figurative language is bad. On the contrary, skill at using figurative language is essential if a writer ever wants his work to be more than pedestrian. Since beginners are likely to overestimate their own abilities, being a little too forceful in advising caution on their part might be a good thing. Still, you wouldn’t want them to grow old and develop expertise and yet still carry with them a sense of guilt about using metaphors that they acquired in their youth. Their eventual goal, at least if they continue to write scholarship (but perhaps also in much of their other writing), should be to reach a level of mastery that enables them write beautifully, not just adequately. Some of the greatest of all scholarly writings have relied on metaphor: think of Rawls’s “veil of ignorance” or Smith’s “invisible hand.” Eugene has a whole article on the “slippery slope.” I am tempted to go farther and say that for an idea to conquer the world, it usually needs to be a metaphor, or to be presented as one; but this is not the place to develop that possibility.

         (In any event, students should by all means be advised of the following rule Posner suggests for a book about how not to write: "Use cliches (tired metaphors). Don't say, 'this law will deter people from speaking out freely'; say it will 'chill their freedom of speech.' 'Chill' is the accepted cliche for describing the effect of a law that places a burden on free speech or, indeed, any right. Don't try to find a fresh metaphor.")


    WHAT WERE THOSE PEOPLE THINKING? It wasn't so long ago that people owned other people as slaves, women couldn't vote, and so on. We all have a list of past practices that seem appalling today. A century or two from now, our descendants will likely think the same about us. Some of the things we do will seem shockingly inhmane. Our great-great-grandchildren will scratch their heads and wonder "What were those people thinking?" But which of our practices are the ones they'll criticize? Eating animals? Psychiatry? Religion? I always caution students not to be too smug in judging the past. One day we'll also be judged according to standards that have changed, and we're not likely to come off any better.


    THE SINS OF THE FATHERS: David Nieporent (sorry, no direct link to the post available) forcefully criticizes Paul Krugman's complaint about powerful Republican children of powerful Republican parents. (Yes, it's just the Republicans who come in for criticism, and not Democrats, such as Al Gore, Nancy Pelosi, Andrew Cuomo, Jesse Jackson, Jr. -- and this partisanship is part of The Tollbooth's complaint.)

         But what particularly bothers me is the way that Krugman lambasts the children without any inquiry into whether they might have actually earned the jobs on the merits. After all, isn't it possible that children of smart people may be smart (partly out of heredity and partly out of upbringing)? That children of ambitious people may be ambitious? That children of successful politicians might have the attitudes or experiences that are helpful to making them successful politicians? (Actually, both Bush 43 and Jeb seem to be more gifted in the political arts than their father.)

         Krugman points to the Bush brothers, Elizabeth Cheney, Eugene Scalia, Eugene Scalia, Janet Rehnquist, William Kristol, and John Podhoretz, and says "What's interesting is how little comment, let alone criticism, this roll call has occasioned." Now maybe some of these people got their posts chiefly because of their lineage, and maybe others didn't. But shouldn't it occasion comment and criticism that Krugman is essentially impugning the qualities of each of these people -- by suggesting that each got his or her post as a matter of "inherited status," which is to say based primarily on family connections -- without any attempt to prove this? Is having a prominent Republican father prima facie evidence of inadequate competence?

         Finally, note the gap between Krugman's evidence and his claim. His op-ed begins with:
    America, we all know, is the land of opportunity. Your success in life depends on your ability and drive, not on who your father was. Just ask [list of prominent children of prominent Republicans] . . . .
    But even if Krugman were right that each of these children got their job chiefly because of their family connections, this still wouldn't prove his main point. The claim about America being a land of opportunity, which began in an era where nepotism was considerably less condemned than it is today, wasn't that family connections were unhelpful -- it was that one could make it even without such connections, something that couldn't be done at all, or at least not as easily, in aristocratic nations. And there is ample evidence of this, both in this Administration and in past ones: Just to focus on the most outside outsiders who have made it, consider the Justice Department's Viet Dinh, whose family came to America as Vietnamese boat people when he was 10, or my former boss, Judge Alex Kozinski (a Reagan appointee to the U.S. Court of Appeals for the Ninth Circuit), whose family came to America as poor Romanian immigrants when he was about as young. I am sure that someone who's more knowledgeable about various officials' pedigrees than I am would be able to come up with a much longer list.

         I am certainly not in a position of remotely comparable power, but I've been fortunate to have clerked for a Supreme Court Justice, and to hold a quite nice position at a fairly prominent law school -- a form of "success in life," I think -- though my family came to the U.S. with no money when I was seven. To the extent that it matters "who [my] father [is]," it is only that he is a smart, hard-working, and kind man who took a great interest in his children's education. America, we all know, is the land of opportunity.


    "ROMANTIC ENVIRONMENTALISM": I'm not an expert on environmental issues, or on genetic modification questions, but this TechCentralStation column seems quite sensible:
    Europeans led the agricultural revolutions of the past. Today, much of Europe wants to stop the clock on food progress. That's fine for them -- Europe is rich -- but their superstition badly hurts the world's poor.


    WHEN IS A GUN CONSIDERED LOADED? I've often heard people say that, under California law, a gun is generally treated as loaded whenever any ammunition is nearby, for instance when the gun and the ammo are both in the same locked box; I've also heard it said that a gun is loaded where there's a loaded magazine near it. I couldn't find any statutes, though, that said this (except as to bringing a loaded gun to state government offices; there, under Cal. Penal Code sec. 171e, loaded is defined to cover all cases "whenever both the firearm and unexpended ammunition capable of being discharged from such firearm are in the immediate possession of the same person").

         I therefore asked our research librarians to ask the Justice Department about this, and here's the answer they received:
    Your request for information has been received and reviewed. Pursuant to Penal Code section 12031(g) a firearm shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or shell, consisting of a case that holds a charge of powder and a bullet or shot, in, or attached in any manner to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip thereof attached to the firearm; except that a muzzle-loader firearm shall be deemed to be loaded when it is capped or primed and has a powder charge and ball or shot in the barrel or cylinder. If you have any further questions or concerns please feel free to contact the Firearms Division at (916) 227-3703.
    As I read this, this means that a gun is treated as loaded when it's, well, loaded -- when there's a round actually in the gun. There might be a gray area (for instance, if there's a loaded magazine inserted but not properly locked in the gun, the gun is treated as loaded, even if some purists might conceivably disagree), but as a general matter the law tracks common usage.

         Warnings: Both I and the DoJ might have missed something important; some local governments might conceivably have their own rules; other states might well have their own rules; and even if the law is on your side, if some police officers or prosecutors have the wrong view of the law, you may still find yourself arrested and charged, and who wants to be the test case? But in any event, this is what my research has come up with, and I thought I'd pass it along.


    "THE LETTERS PAGES OF MAGAZINES ARE OFTEN GOOD PLACES TO PREVIEW THE GREAT BAD IDEAS OF TOMORROW." A very good Atlantic article on fat by Jonathan Rauch (who isn't).


    WHAT LIBRARIES SHOULD DO AS TO DISCREDITED BOOKS: History professor Jeremy Sternstein, a vocal critic of Arming America, e-mailed me the following:
    Yesterday, while traveling back from New York City, I heard an item on local Public Radio that might interest you since you recently discussed how Amazon was handling Arming America. It said that a reader in Goshen, N.Y. (there is also a Goshen, Conn., and a Goshen, MA) complained about Arming America being on the open shelves despite the fact it had been discredited, etc. The librarian investigated, and agreed that Arming America should no longer be available and pulled it off the shelves. The reporter didn't say what the library did with it.

    I'm conflicted about what to do with books like Arming America. Should works deemed fraudulent be removed from the library shelves? And if so where should they reside? Should they be put in a rare book room or in special collections? This is not the first time this problem has arisen. In the mid 1960s I helped expose a book by S. Walter Poulshock, The Two Parties and the Tariff in the 1880s, published by Syracuse University Press. The author, after being confronted by overwhelming evidence of his fraud -- concocting hundreds of documents -- confessed and resigned his teaching position at Rutgers University. (I wrote all about this for HNN in February, just when the Bellesiles scandal was heating up.) Syracuse recalled the book. But not all libraries returned their copies and the book is still available in some collections. I was amazed to find it was on the shelves at Brooklyn College when a student there cited it in his term paper. I went to the librarian and asked her to place it in the Special Collections room. She did, It remained there only for a short time. Somebody later returned it to the open stacks. I protested, but the librarian then in charge refused to remove it and it probably still is on the shelves for students to use for their "research papers," despite the fact that it is filled with hundreds of invented sources.

    The problem with leaving works like Poulshock's or Bellesiles's on the open shelves is that over the years sometimes even professional historians forget about the problems attached to them. About five years ago, a book by Robert W. Cherney, American Politics in the Gilded Age, 1868-1900, written primarily for college students, appeared with Poulshock's fraudulent book prominently cited in its bibliography, where it was praised for shedding light "on major issues and policies." When Cherney, a specialist on the Gilded Age who teaches at San Francisco State, was informed that the book was a fraud, he was terribly embarrassed. He then set about to track down whether other libraries in California -- other than the one at SFS -- had copies and found that many did. I don't know if he succeeded in having the book removed from the open shelves but that was his intention, I'm told.

    So if a professional historian can be deceived by a fraudulent book that remains on the open shelves years after the fraud has been uncovered, what about the general reader? And should readers be protected from these books? Should they perhaps remain on the shelves with some statement attached about their unreliability as works of history?

    As I said earlier, I'm conflicted about what course to take. I'm uneasy about the Goshen, NY library removing Arming America from its shelves but I'm equally uneasy about leaving it there without notifying the unwarry about its serious flaws.
    I think this is a very interesting, and difficult, question. A few thoughts:
    1. Seems to me that research libraries, and main branch libraries, absolutely should keep the book on the shelves: The book is of substantial interest precisely because of the controversy, and of course the book continues to have some defenders, at least as to some parts (though I'm certain that it's flawed in much more than its use of probate records).

    2. The matter is more difficult for smaller libraries, where shelf space might be an issue, and where the main market is more people doing general reading about the subject, rather than scholars tracking down the entries in a particular debate. My sense is that libraries should keep the book on the shelves if there's no lack of space; but if there is a lack of space, this book ought to be on the to-remove list, alongside other books that seem no longer that informative (because they're obsolete and no longer reflect what is seen as sound scientific or historical thinking). I'd like to know more about how librarians actually handle such shelf-space problems, though.

    3. But should libraries take steps to label the book, so readers know at least that there's serious controversy about its accuracy? (I see no reason for the library to take a stance on whether the critics are right or the author is right; at most, they should let readers know about the criticisms, and let readers decide for themselves.) I think that in principle they ought to: The library's purpose is to inform readers, and if there seems to be a substantial chance that the book is grossly in error it seems good to stress that. This is especially true since the error doesn't seem obvious at first glance: I don't think libraries need to label astrology books this way, since most people know that astrology is at the very least a highly questionable discipline; it's a different story, though, when a book seems at first like serious scholarship, but it turns out that its factual underpinnings have been seriously undermined.

      On the other hand, I can also see why many librarians would rather stay out of this, simply because there are so many books whose factual assertions have been seriously criticized. True, it's rare to have scandals of quite this magnitude, with serious claims of outright dishonesty. But there are surely lots of other books that have also been exposed to withering criticism, some of it perhaps correct. Many librarians would prefer not to get into those debates, and take an "as is, no warranties" attitude towards their collections.

    4. Finally, this raises a broader point: In law, there are computerized mechanisms -- and, before that, there were print mechanisms -- for seeing whether a case has been overruled, or even cast into doubt, by other cases. I don't think there are as many mechanisms in other disciplines for easily tracking down criticism of published articles or books. It would be great if such mechanisms were developed, and if libraries could make them easily available to people.

      On the other hand, maybe the Internet, despite all its limitations, is already beginning to prove to be such a device. Anyone who knew enough to do a google search on "Michael Bellesiles, Arming America" would pretty quickly figure out that there's a pretty hot controversy about the book.


    THE FIGURATIVE CHALLENGE: Last week, I blogged an item labeled "Avoid the figurative, but not like the plague"; this was an excerpt from my forthcoming writing book, in which I urged students to avoid figurative usages, for three main reasons: (1) they can often hide inaccuracy and imprecision, (2) they are quite easy to misuse, and (3) though they at first seem to add verve and vividness to text, in practice they usually don't. (I didn't urge them to eliminate the figurative altogether, but simply to be skeptical about it: "If you think some figurative phrase can make a point more vivid, use it, but only after considering both whether the phrase really adds something, and whether the literal meaning of the phrase might weaken your writing more than the figurative strengthens it. And always second-guess yourself whenever you use a figurative term unintentionally; many such uses prove to be unhelpful.").

         Reader David Bufkin passed along this impassioned response:
    [M]y God, man, are you really serious in advising people to go even further in draining flair and prose from the English language? Can you really be giving this advice to lawyers who already write as if they were hell-bent to master banality, obfuscation and the self-evident?

    We are blessed with a language containing at least 700,000 words -- more than twice as many as other the world's other respected tongues. The depth and richness of our language is one of our greatest cultural assets. It has given rise to the most profound literature -- and, arguably, uniquely allowed an intellectual exchange that gave rise to our concepts of liberty and the rule-of-law. (Imagine the frightening alternate history possibilities arising from you having been alive to advise King James' commission of translators. You could forget about the contribution of such moving expressions as, "the Lord is my Shepherd" and "the valley of the shadow of death.")

    It seems to me that your observations about the need to use imagery, metaphor and allusion CORRECTLY are well taken. Malapropisms involving improper use of metaphors are too numerous to count and have unfortunate as well as comic consequences. But to say not to use them altogether seems to me surrender to that notorious current tendency to dumb down rather than strive for excellence. Reading your piece, I am reminded of Winston Smith's observation that the dictionary he labored over for Big Brother seemed to get smaller with each passing year.

    Precision of meaning is extremely important. But it is not the only important thing about writing words for meaning and impact. If so, mathematics textbooks and engineering journals would be best sellers.

    I am convinced that fostering a new generation of literary drones trained to avoid all but the most literal usages will surely, in the end, give rise to communication which is more obtuse, not clearer. And consider, telling people to avoid imaginative language in what they write will almost certainly lead them to avoid it in what they read. Can we really trust a class of society entrusted with stewardship of the law who will not read the Classics, will not read Homer or Gibbon or Thackeray or Melville? I'm not sure I want to live in that society.

    By the way, if one of your students observes that tomorrow the sun will rise, will you insist he say instead, tomorrow morning the earth will rotate in such a way as to make the sun visible? The use of metaphor is not a luxury reserved for the poet, but a necessity in everyday speech.

    My advice: Tell them to MASTER the richness of language, not simply avoid it.
         I much appreciate Mr. Bufkin's points, and sympathize considerably with them. It took me quite some time to acquire my aversion to figurative usages in legal scholarship (and recall that my recommendation was primarily focused on scholarship). And yet I think that on balance students are indeed better off avoiding the figurative, for the three reasons I mentioned at the beginning.

         Bible translations are a different story, and some metaphors aren't really figurative ("the sun will rise," is technically inaccurate, but represents a literal observation; and the technical inaccuracy is rarely relevant). And I agree that writing should be rich and vibrant. But I just think that figurative usages don't in fact help richness and vibrancy much. Many writers think that using a metaphor or a simile (whether cliche or not) will help their writing. In practice, though, I doubt that this often happens, even for good writers. (Perhaps it might happen for great writers, but few of my readers will be great writers.)

         Let me, though, offer a challenge. Find a figurative usage in a work of scholarship (legal or otherwise) that you think is really effective. Rewrite the sentence to avoid the figurative usage -- not in the clumsiest possible way, but as lucidly and effectively as you can. Then e-mail me both the original and the rewrite. I'll post some examples (though only a few), and then we'll see what makes some of the figurative usages successful and some less successful.

         My goal, after all, isn't elimination of the figurative for its own sake; rather, it's promoting precise, clear, and forceful writing. If we can identify when the figurative is likely to be precise, clear, and forceful, and when it won't, that would be tremendously helpful.

    Sunday, November 24, 2002


    POLITICS OF THE MUSLIM LEGAL DEFENSE & EDUCATION FUND ACTION AGAINST DERSHOWITZ: To use the technical term, this seems like a pretty boneheaded maneuver to me. The case is a sure loser legally; in fact, it's such a sure loser, that I don't think that it will even have much of a deterrent effect on others who might be tempted to express views similar to Dershowitz's. It can't hurt Dershowitz much politically; I suspect that most people will consider his position to be defensible, even if perhaps ultimately mistaken -- and his being on the right side of the First Amendment question may if anything make his substantive position more credible to people.

         If anything it only worsens the reputation of Muslim advocacy groups and, unfortunately, Muslims generally. The conventional wisdom about Islam is that it isn't respectful enough of dissent and diversity of opinion -- trying to use the legal system to punish people with whom you disagree will only tend to reinforce this view in the public's minds. And to the extent that Muslims are seen as outsiders (I fully agree that American citizens should not be seen this way because they're Muslim, but in fact they are seen this way in some measure by some people), then this complaint will be seen as even more reprehensible: "Here are these outsiders who come to this country, and instead of respecting our Constitution and our views, then try to suppress the speech of Americans."

         Again, I stress that people should not judge Muslims by the action of small and unrepresentative activist groups. But the groups do in some measure (explicitly or implicitly) purport to be speaking on behalf of American Muslims; and thus when the groups do something reprehensible, unfortunately some observers will interpret this action as reflecting on American Muslims generally. (I certainly get upset, as a Jew, when American Jewish advocacy groups do foolish things, especially when they purport to do them on behalf of American Jews generally.) All the more reason for other Muslim advocacy groups to condemn what the Muslim Legal Defense & Education Fund is doing -- has any done so, by the way?




    DEFINING VICTORY DOWN: I didn't find the NYT piece about the Federalist Society harshly critical (there are links to it in Eugene and Orin's posts below); but I wasn't at the convention, so perhaps there are inaccuracies or exaggerations in Cohen's description of it that feel like criticisms to those who were. Setting aside the headline and the somewhat unflattering descriptions of the convention-goers' termperaments, the thrust of the piece seems accurate as far as it goes, does it not? If you don't share the Federalist Society's agenda, you should be worried right now, and girding for some rough uphill battles. Granted, calling the Federalists "sore winners" may be a case of Cohen being a sore loser or of misunderstanding the game. The victories that ardent conservatives would like to see, and that Cohen dreads, may be coming, but they haven't been won yet -- which is why Federalists aren't popping corks. Winning elections isn't an end in itself. It's a means to other ends that may or may not be achieved during this window of opportunity. If the Federalists lapsed into self-congratulatory crowing now, they would be guilty of stupidity -- as would their opponents if they underestimated the threat that the Federalists pose to much that they cherish. Should be an interesting two years, and since Cohen is in the latter camp I don't know how one could fault him for saying what he does. (Perhaps this was yet another case of strategic disingenuousness, with Cohen trying to lull Federalists into a premature sense of victory.) Imagine having a Democratic president, both houses of Congress in Democratic control, and seven Supreme Court Justices appointed by Democrats, plus an organization on the left as significant as the Federalist Society is on the right. That's the stuff that conservatives' nightmares are made of, and it no doubt would generate writings much like Cohen's from the other side. And then some.

    For my part, with the way things have been going at the New York Times lately I was just glad that Cohen's piece wasn't run on the front page as a "news analysis."


    DEFINING HELL DOWN: The piece that Orin refers to a few posts down -- an op-ed in the New YorkTimes that's harshly critical of the Federalist Society -- has a rather odd title: "Hell Hath No Fury Like a Conservative Who Is Victorious." If the furies of hell are no greater than what I saw at the Society meeting, then hell is a pretty mild-mannered place. Of course, one must make some allowance for hyperbole, but still: Even compared to scorned women (or scorned men, to be gender-neutral about it), the Federalists were quite calm. But, hey, since many people suspect that hell is exactly where I'll eventually end up, I have nothing against this new revisionist theology!


    WITHDRAWING MUCH OF MY PRAISE FOR THE ADL: I had some time to do a more thorough search for the ADL's reactions to the Matthew Hale matter; here's what I found, from the Chicago Sun-Times, July 7, 1999, p. 3:
    The Anti-Defamation League on Tuesday abandoned its earlier support for the free-speech rights of avowed anti-Semite Matthew Hale, because Hale linked himself to last weekend's hate shooting spree. . . .

    ADL general counsel Harlan Loeb said the group was withdrawing its support of Hale's right to express his views, because Hale's public comments since the shooting tie him to the alleged violence by church member Benjamin Smith. "Matt Hale has lit the match, and he must accept responsibility for the ensuing fire," said Loeb, in reference to the famous edict of U.S. Supreme Court Justice Oliver Wendell Holmes Jr. that yelling "Fire!" in a crowded room was not speech protected under the Constitution. . . .

    Last week a hearing board again rejected Hale's application, and Hale has suggested that action triggered the two-state shooting rampage in which Smith is suspected to have killed two and wounded at least nine.

    The ADL withdrew its support, said Loeb, because "Matt Hale himself has publicly stated that he feels Benjamin Smith was motivated by his denial to the bar, and that's a sufficient nexus to conduct." . . .

    ADL Regional Director Richard Hirschhaut . . . said hate materials written by Hale had been distributed on the University of Indiana campus and in Wilmette by Smith and that one of three synagogues hit by arson last month in Sacramento, Calif., had been the site of leafleting with anti-Semitic messages from the World Church. . . .
    The ADL was right the first time (see a few posts down): People can't be prohibited from being lawyers because they espouse hateful or bigoted views, or views espousing violence. (In many such situations, they should be held in contempt -- my position about the Lynne Stewart matter -- but not excluded, through the force of law, from the profession.) If Hale was involved in a criminal conspiracy with the murderer Smith, then of course he should be criminally punished for the conspiracy. But Hale's "publicly stat[ing] that he feels Benjamin Smith was motivated by his denial to the bar" is fully protected speech, and no justification for legal retaliation against Hale. (I only withdraw much, and not all, of my praise for the ADL, because at least they took the proper view as to the First Amendment protection of bigotry generally, and tried to limit their advocacy of suppression to situations where the speech has some plausible connection to actual violence.)

         I hope the Muslim Legal Defense & Education Fund complaint against Alan Dershowitz, together with other recent matters (such as Canada Customs' temporary blocking of pro-Israel literature as supposed hate propaganda), reminds the ADL and other Jewish groups that all of us can be the targets of attempts at speech suppression -- and that indeed, as Justice Hugo Black pointed out, when First Amendment protection is denied to the ideas we hate, it will soon also be denied to the ideas we love, or at least to ideas that, whether we agree with them or not, need to be aired.


    "WEEK IN REVIEW" REVIEW: People aren't worried enough about government surveillance, the N.Y. Times staff suggests, and should also watch out for the Federalist Society.

    This page is powered by Blogger.