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Saturday, December 07, 2002


INTERESTING CRITICISM OF ROBERT FISK'S MOST RECENT ARTICLE: CalPundit points to a recent Robert Fisk article in which Fisk purports to quote an unnamed "American intelligence officer":
"We didn't catch whom we were supposed to catch," the officer told me. "There was an over-expectation by us that technology could do more than it did. Al-Qa'ida are very smart. They basically found out how we track them. They realised that if they communicated electronically, our Rangers would swoop on them. So they started using couriers to hand-carry notes on paper or to repeat messages from their memory and this confused our system. Our intelligence is hi-tech – they went back to primitive methods that the Americans cannot adapt to."
Do Americans actually talk this way, CalPundit asks? "We didn't catch whom we were supposed to catch"; "Al-Qa'ida are very smart"; "that the Americans [as opposed to 'that we'] cannot adapt to" -- sounds pretty odd when coming from an American. Click here for more. (Thanks to InstaPundit for the pointer.)

Friday, December 06, 2002


LOCK AND LOAD: My new theory of life is that all articles about me and guns are called "Lock and Load." Even when I myself write an article about guns, the editors change the title to "Lock and Load." Here's my recent article about the Second Amendment and gun control for the Harvard Independent, a weekly (non-political) undergrad paper. Those of you who have been reading Eugene, Glenn, and Don Kates & Dan Polsby won't find anything new in there, but it's good for the kids to read. They didn't include my footnotes (where I referred to Internet-accessible sources), so I've put them into my own version as hot links.


FEDERALISTS THEN AND FEDERALISTS NOW: Clayton Cramer has some quite apt remarks on this subject, and on Judge Reinhardt's apparent swipe at the Federalist Society.


THE EVOLVING SECOND AMENDMENT: I have an op-ed in National Review Online today discussing the "evolving Constitution" approach to the Second Amendment. It discuss these questions:
. . . Shouldn't courts read the Second Amendment as part of an evolving Constitution? Say the Ninth Circuit was wrong, last year's Emerson decision from the Fifth Circuit was right, and the Framers thought of the Amendment as securing an individual right. Shouldn't judges update it due to the passage of time, based on evolving standards of justice and practicality? . . .
Go to the article and see my answers.


BOOK RECOMMENDATION: I'm in the middle of Tony Horwitz's Blue Latitudes, a terrific book about the 18th-century British explorer James Cook and the way he is remembered today in the places he visited. Horwitz writes a bit like Bill Bryson (one of my favorites), but he does more research, and writes less about himself. I suspect the book may get more attention in Australia and New Zealand than in North America, because Cook is to the Pacific what Christopher Columbus is to the Atlantic -- the first big European navigator, and so the guy who gets blamed, rightly or wrongly, for all the evils of European expansion. In the United States, Captain Cook may be best known as the model for Star Trek's Captain Kirk and the source of the name of Peter Pan's Captain Hook. In any event, I like Blue Latitudes so much I'm going to order Horwitz's previous book, Confederates in the Attic, which is about the lingering effects of the Civil War. He's got a good thing going in the under-exploited gray area between history and journalism.


BELLESILES CLAIMS NEW VICTIM? Clayton Cramer persuasively argues that the Ninth Circuit opinion erred because of its reliance on an article by Michael Bellesiles. The panel opinion says:
Washington in particular felt that the need was acute; in 1783 he wrote a document entitled Sentiments On A Peace Establishment, in which he recommended establishing a national militia that would exist along with those maintained by the individual states. Subsequently, he wrote to John Adams in the wake of Shays’s Rebellion that because of the lack of a unified national military force, “[w]e are fast verging to anarchy and confusion!” Letter from George Washington to James Madison (Nov. 5, 1786), in 29 THE WRITINGS OF GEORGE WASHINGTON, 1745-1799, at 51 (John Clement Fitzpatrick ed., 1931) (quoted in Michael A. Bellesiles, The Second Amendment in Action, 76 CHI.-KENT L. REV. 61, 65 (2000)).
The Bellesiles article in fact does say that:
Though the rebels had not exactly distinguished themselves in the martial arts, their uprising had far-reaching consequences. George Washington wrote to James Madison that "we are fast verging to anarchy and confusion!"
But, as Cramer points out -- quoting Washington's letter more fully -- this is at the very least a highly contestable interpretation of what Washington was saying; it's not at all clear that the "anarchy and confusion" point relates to the "lack of a unified national military force," or even that it refers specifically to Shays' Rebellion. This isn't as clear an error as some of the errors in Bellesiles' work (and therefore in the work of those who relied on Bellesiles), but it still seems likely erroneous, at least in its absence of any necessary qualifiers.


MONOPOLIES: The casket case that Sasha mentioned has lots of interesting arguments in it, but the heart of the opinion, I think, comes in this paragraph:
Courts have repeatedly recognized that protecting a discrete interest group from economic competition is not a legitimate governmental purpose. See City of Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978) ("Thus, where simple economic protectionism is effected by state legislation, a virtually per se rule of invalidity has been erected."). See also H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 537-38 (1949); Energy Reserves Group, Inc. v. Kansas Power & Light Co., 459 U.S. 400, 411 (1983) (distinguishing between legitimate state purposes and "providing a benefit to special interests").
Giving licensed funeral directors exclusive rights to sell caskets is, after all, a perfectly rational way of achieving the goal of subsidizing these people, at the expense of the consumers (and of the economic liberty of would-be competitors). The same goal is served by laws limiting the number of licensed cab drivers, and a variety of other barriers to entry into various professions. Likewise, minimum wage laws are means of subsidizing some employees at the expense of employers, consumers, and other employees. Some of these laws may also potentially serve other goals, such as health or safety, but the most straightforward justification for most of them is the desire to enrich one group, even if it means burdening the pocketbooks and liberties of another.

     The question is whether this goal is constitutionally permissible under the Due Process Clause; and the conventional answer is yes, at least ever since the late 1930s. It may be impermissible under other provisions, such as the Commerce Clause (which was involved in the first two cases that the Sixth Circuit cites) and the Contracts Clause (which was involved in the third case). When a state's action burdens interstate commerce, the government must show some more powerful justification that just the desire to benefit local businesses over other businesses. When a state's action abrogates existing contracts, the government must show some more powerful justification than just the desire to benefit those who are obligated by the contracts at the expense of those to whom the obligation is owed. But under the highly deferential "rational basis" standard generally applicable to Due Process Clause and Equal Protection Clause cases involving economic matters, the desire to benefit group A at the expense of group B is considered quite proper. (It surely is the foundation of many tax classifications, for instance, that have routinely been upheld.)

     Now perhaps the Sixth Circuit position reflects the law as it should be, and is a step towards changing the law in that direction. In that respect, it really would be a very important case. My tentative sense is to say no: Many constitutional provisions, such as the Contracts Clause and possibly the Privileges and Immunities Clause (which the court declined to consider here), may impose various constraints on government power -- but if they don't apply, I don't think the Due Process Clause prohibits redistributionist legislation, even if I think the legislation is unwise or immoral. But in any event, the paragraph I quote above is, I think, the most striking part (for better or worse) of the court's decision.


DEATH, BE NOT PROUD: The Institute for Justice has just won its Tennessee caskets case on appeal. Here are the facts of the case, in very brief, as summarized in Judge Boggs's opinion (thanks to Howard, who is even quicker than IJ on this):

Nathaniel Craigmiles and several other plaintiffs challenge a provision of the Tennessee Funeral Directors and Embalmers Act (FDEA) that forbids anyone from selling caskets without being licensed by the state as a "funeral director." Licensing requires an applicant to undergo two years of education and training, very little of which, Craigmiles argues, pertains to casket design or selection. The district court held that the FDEA, insofar as it bars non-licensed funeral directors from the retail sale of caskets, violates both the Due Process and Equal Protection clauses of the Fourteenth Amendment. Recognizing that the limitation neither affected any fundamental right nor discriminated against any protected class, the district court nevertheless determined that the restriction lacked a rational basis and therefore did not pass even slight constitutional scrutiny. Tennessee appeals the district court order, arguing that the FDEA at least advances several legitimate governmental purposes.

Judge Boggs affirmed the district court, finding that the Tennessee scheme didn't pass even the slight requirements of rational basis review. Tennessee is probably going to appeal this, so maybe we'll get an interesting Supreme Court case soon. In what way may it be interesting? IJ generally attacks economic regulation as violating the Due Process, Equal Protection, and Privileges and Immunities Clauses of the Fourteenth Amendment. (Technically, the Fourteenth Amendment has a "Privileges or Immunities Clause," while the "Privileges and Immunities Clause" is in Article IV, but people tend to use an and for both.) When it wins, it usually wins on the Due Process and Equal Protection grounds but loses on the Privileges and Immunities theory, because that theory was disapproved in the 19th-century Slaughterhouse Cases. IJ's goal is to revive the Clause, which it argues was specifically meant (unlike the other clauses) to protect economic liberty. Here's Dana Berliner of IJ discussing the three theories. And here's Judge Boggs briefly dealing with the Privileges and Immunities claim:

The plaintiffs also argue that the FDEA's application to funeral merchandise retailers is unconstitutional under the Privileges and Immunities Clause of the Fourteenth Amendment. Because the plaintiffs' Equal Protection and Due Process arguments are sufficient to support the district court's injunction, we do not reach this argument. The Privileges and Immunities Clause has been largely dormant since the Slaughter-House Cases, 83 U.S. (16 Wall) 36 (1872), restricted its coverage to "very limited rights of national citizenship" and held that clause did not protect an individual's right to pursue an economic livelihood against his own state. There has been some recent speculation that the Privileges and Immunities Clause should have a broader meaning. See Saenz v. Roe, 526 U.S. 489, 521-23 (1999) (Thomas, joined by Rehnquist, dissenting) (speculating that the development of the Privileges and Immunities Clause was prematurely stifled by the Slaughter-House Cases). Nevertheless, we need not break new ground today to hold that the application of the FDEA to funeral merchandise retailers is unconstitutional under the Fourteenth Amendment.

Now I can imagine the Supreme Court affirming this case and not getting to the Privileges and Immunities theory because it wouldn't matter in this case. But who knows, stranger things have happened.


DUKENFIELD'S LAW REDUX: Hanah has word counts of some blogs to buttress her point that our posting volume, and post length, is out of control!!! The Volokh Conspiracy posted 5358 words yesterday, up from 5272 on Wednesday. Other blogs, like How Appealing, USS Clueless, InstaPundit, and so on, are also up from Wednesday. However, Hanah also counts herself as being up, from 32 words to 190, even though her Thursday totals included her 79-word post on blog word counts! I suspect foul play. (Admittedly, 190 minus 79 is still above 32. But still.)


SMOKING AND SELF-CONTROL: Reader Charles Chapman observes that my post below on smoking -- where I advocate not bailing out smokers at public expense -- conflicts with Eugene's earlier post, where he says (after proposing a similar scheme) that there are still moral externalities: if a helmetless motorcyclist dies in an accident and bleeds to death (because he signed a waiver), the guy who hit him will feel guilty, and this is a real cost. Indeed, my smoking example and Eugene's helmet example are hard to distinguish. (Well, you could, because we don't kill the smokers personally, but the moral externalities are all over the place -- lots of people don't like to see folks die when they could have been saved, even if they weren't personally responsible.)

And, in fact, I don't mean to distinguish them; as Eugene also says in his post, "Perhaps these sorts of moral externalities shouldn't count." I would agree with that, only minus the "perhaps." (Note that there are also moral externalities on the other side -- I feel bad when other people get regulated and I have a special hatred for regulations that save people's lives against their will. I still don't think you should count these moral externalities, but if you're going to, you should count that one too.)

Mr. Chapman also offers two hypos of his own -- imagine a world where drivers can sign "binding" waivers not to be cared for at public expense if they don't wear helmets, and where the law is that the government doesn't pay for the health costs of smoking. Now imagine a helmetless driver and smoker, who nonetheless beg to be saved at the last moment. Will the paramedic or the doctors, as an empirical matter, turn them away? Should they?

Now I do believe that as an empirical matter, these people will probably get saved. And as a policy matter, who knows, maybe this is the right answer. My trouble is with the next step -- that therefore we're entitled to regulate these people to prevent them from getting into these situations in the first place. There are self-restraint problems involved in smoking: we can't stop ourselves from saving smokers. These self-restraint problems cost us money, and it's hard to quit. But decency requires that we either (1) control ourselves or (2) pay the money -- not control the lives of the beneficiaries, which is profoundly uncompassionate. And if, as a practical matter, we have an additional self-control problem -- that, faced with these monetary costs, we won't be able to prevent ourselves from voting for regulation of motorcyclists and smokers -- then it might be easier (and thus more compassionate) to stop paying than to stop regulating.


MORE ABOUT MY TRUE IDENTITY: Though my name ends with an "a," it turns out that I'm a guy, not a girl, as my picture clearly suggests. Sasha is the Russian short form ("cute form") for Alexander. (Why??? imagine it as being a cute form of "Sander," as "Natasha" is a cute form for "Natalia," "Misha" is a cute form for "Mikhail," and so on.)

Thursday, December 05, 2002


  1. The Ninth Circuit repeatedly stresses that the right relates to "a military force established and controlled by a government entity," "not some amorphous body of the people as a whole" (p. 32). But nowhere does the Ninth Circuit acknowledge that this militia was essentially the adult white male able-bodied citizenry. Not a National Guard, not a small group of people chosen by the state, but pretty much everyone who mattered at the time (yes, I know it was limited to white males, but that was the 1790s for you), subject only to an 18-to-45 age restriction (which I suspect covered the great majority of people). Much more consistent with a right of the people -- you and me -- than if "militia" simply meant a National Guard.

         You'd think that in a discussion of what "militia" means in the Second Amendment, the Ninth Circuit would quote the Supreme Court's statement as to what this means: "The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense." United States v. Miller (1939).

         You'd think that the Ninth Circuit would quote the Militia Act of 1792 (enacted by Congress three years after Congress proposed the Second Amendment), which defined "militia" to include "each and every free able-bodied white male citizen of the respective states, resident therein, who is or shall be of the age of eighteen years, and under the age of forty-five years [subject to some narrow exceptions]" -- and curiously the definition remains pretty much the same today.

         You'd think that it would quote the four state ratifying conventions' calls for a right to bear arms, which all speak of a "well regulated Militia composed of the body of the people trained to arms" or "capable of bearing arms."

         But you'd be mistaken in so thinking, because the Ninth Court never quotes these sources.

  2. What about leading constitutional commentators of the era? The Second Amendment was clearly a broader version of the right to have arms in the English Bill of Rights of 1689, and fortunately Sir William Blackstone -- the leading English legal commentator of the late 1700s, and apparently a profound influence on the Framers -- discussed the right at length. The right clearly wasn't a right of states; there were no states or other quasi-sovereign political subdivisions in England; Blackstone called it a "right of the subject", clearly an individual right. The name Blackstone does not appear once in the Ninth Circuit opinion.

         What about Justice Story, the leading U.S. constitutional commentator of the early 1800s, who got his legal education in the decade following the enactment of the Second Amendment? He referred to the right not as a right of states, or of the militia, but as a "right of the citizens". This item is nowhere quoted in the Ninth Circuit opinion (the only reference to Story is in a quote from Justice Thomas's opinion in Printz v. United States, a quote that does not include the assertion that the right to bear arms is a right of the citizens.) Other leading commentators of the 19th century, such as St. George Tucker (1803) or Thomas Cooley (1880) are likewise never mentioned.

  3. What about the rights to bear arms in state Bills of Rights of the era:
    • "Every citizen has a right to bear arms in defense of himself and the state" (Connecticut, 1818, the first Connecticut bill of rights).
    • "[T]he right of the citizens to bear arms in defense of themselves and the State shall not be questioned" (Kentucky, 1792).
    • "The people have a right to keep and to bear arms for the common defence" (Massachusetts, 1780).
    • "[T]he people have a right to bear arms, for the defence of the State" (North Carolina, 1776).
    • "[T]he people have a right to bear arms for the defence of themselves and the state" (Pennsylvania, 1776).
    • "The right of the citizens to bear arms in defence of themselves and the State shall not be questioned (Pennsylvania, 1790).
    • "[T]he freemen of this State have a right to keep and bear arms for their common defence" (Tennessee, 1796).
    • "[T]he people have a right to bear arms for the defence of themselves and the State" (Vermont, 1777).
    Some of these speak in terms of the common defense, and some also in terms of self-defense, and they do show, I think, that the purpose of the right was in large part related to societal defense (including defense against domestic tyrants). But it seems to me clear that, whatever its purpose, the right can't have belonged to the state, or to a force whose membership is selected and controlled by the state. The rights must be rights of individuals against the state, since that's the function of state Bills of Rights. (The Bill of Rights in the federal constitution can at least theoretically secure the rights of states, but not the Bill of Rights in a state constitution.)

         I suppose it's possible for the "right of the people to bear arms" in state constitutions to mean a right of individuals against the government, and for the same phrase in the contemporaneously enacted federal constitution to mean a right of states against the federal government. But it should be worth discussing, no, especially given the Court's view that contemporaneous state constitutional provisions are quite relevant when trying to interpret the federal provision. See, e.g., Harmelin v. Michigan, 501 U.S. 957, 966 (1991) (examining Eighth Amendment in light of contemporaneous state constitutional provisions on punishment); Taylor v. Illinois, 484 U.S. 400, 407 & n.13 (1988) (interpreting Sixth Amendment's Compulsory Process Clause in light of contemporaneous state constitutional provisions on criminal defendant's right to establish elements of his case); Marshall v. Barlow's, Inc., 436 U.S. 307, 311 (1978) (using Virginia Bill of Rights as aid in interpreting Fourth Amendment's Warrant Clause). And yet the Ninth Circuit opinion nowhere mentions them.


DOONESBURY ON KERRY from 1971!, unearthed by Eve Tushnet. After three decades, Trudeau's observations still ring true!


JUDGMENT-PROOFING THE CHURCH: With all the attention being given to the possibility that the Boston Archdiocese may declare bankruptcy to minimize its liability for pedophilia, I wonder whether something more disturbing is being overlooked. Some local units of the Catholic Church are in the midst of reorganizing their legal form, so that if they get sued, their assets will be owned by legal entities other than the ones defending the suit. This sort of judgment-proofing is normal practice for business firms who anticipate lawsuits. But it just doesn't seem right when a religion does it, particularly given that the likely plaintiffs are people who were molested as children by the clergy. If I ran the church, I hope I'd be trying to compensate the people who were hurt, not trying to shield the church's assets from them.


ELECTED PUBLIC DEFENDERS: In many places, chief prosecutors -- both local district attorneys and state attorneys general -- are elected; that's a pretty familiar fixture of American life. But in a few places, public defenders are elected, too; to my knowledge, this is done in notoriously liberal San Francisco, but also not-so-notoriously liberal Florida, much of Nebraska, and most of Tennessee.

     What are those elections like? Do public defenders run on a "soft on crime" platform? Do they instead pledge "I will provide criminal defendants the minimum constitutionally adequate defense" (surely not, I hope)? Do they just focus on professional reputation and managerial competence, as measured by endorsements? Are there implicit political pressures on elected public defenders not to be too assiduous in getting criminals off the hook, or are professional norms sufficient to overcome any such subtle pressure?

     Now I have no specific reason to think that these elected public defenders are any worse (or any better) than appointed ones; it's quite likely that they do as good a job as other public defenders. And perhaps this is evidence against the often-heard assumption that the political process will somehow always shortchange the interests of the accused -- perhaps the public in these jurisdictions realizes the need to have an effective adversarial system.

     But it would be interesting for someone to actually take a close look at how these elections are conducted -- I'm genuinely curious about what people might find.


WEB SPEECH GETS SAME PRIVILEGES AS PRINT SPEECH: The Georgia Supreme Court has just held that a Georgia libel retraction statute applies to Internet speech (specifically, to posts on a Web-based discussion group). (Mathis v. Cannon, No. S02G0361, Nov. 25.) The statute, Ga. Stat. Ann. § 51-5-11, protects defendants from punitive damages in libel cases if they promptly and prominently publish a retraction "in a regular issue of the newspaper or other publication in question." (They may still be liable for compensatory damages.) The court held that "other publication" includes Internet publications.

     Courts have made it quite clear that online speech generally gets the same constitutional protection as speech in newspapers and magazines -- but what about statutory protections, such as retraction statutes, that aren't constitutionally mandated but are provided by state legislatures? The Georgia Supreme Court decision may be a quite helpful precedent in favor of reading such statutes (when possible) to cover Internet speech; note, though, that there's also a contrary decision from a Wisconsin appellate court (interpreting the Wisconsin statute, which is written differently).

     I discuss this question, and related ones, in more detail in my "Cyberlaw Maven" piece (just posted this morning).


UNIVERSITIES, GAYS, AND MILITARY RECRUITMENT: I've got a National Review Online article on this subject this morning. Here's the introductory paragraph:
"Perspective," my New Shorter Oxford Dictionary says, is "a mental view of the relative importance" of things. The debate about whether law schools should exclude the military from interviewing on campus is ultimately not about gay rights. It's about perspective.


HOW I CAN SAVE THE AIRLINE INDUSTRY: A few years ago I got a credit card that gave me frequent flier miles on TWA. It wasn't long before TWA ceased to exist. Last year I got a credit card that gave me frequent flier miles on United. Now United is on the verge of bankruptcy. Coincidence? Perhaps. But I'd like to announce that I'm willing to entertain offers from solvent airlines wishing to influence my choice as to which credit card I'll get next.


WAR: Check out Mother May I? Imposing Mandatory Prospective Rules of Statutory Interpretation by Larry Alexander and Saikrishna Prakash at University of San Diego School of Law. The article takes issue with Nicholas Quinn Rosenkranz's "Federal Rules of Statutory Interpretation," 115 Harv. L. Rev. 2085 (2002), which I have a vested interest in because I was the executive editor on the piece. Here's their abstract (you can download the document at the link through SSRN):

May Congress enact laws that instruct courts and other interpreters how to interpret future laws? Although Congress has understood its powers to include such a power, and although a recent article calls for Congress to exercise such a power more extensively than it has, we argue that Congress lacks such a power. Thus, previous exercises of the alleged power, such as the Dictionary Act, are unconstitutional.

Moreover, we argue that arguments for such a power premised on the courts' possessing the power to constrain Congress through canons of statutory interpretation rest on an equally dubious foundation: judicial canons of construction that dictate outcomes different from what Congress means those outcomes to be -- canons such as the Ashwander canon -- are themselves constitutionally infirm. We argue that neither the courts nor Congress through canons or rules of interpretation can legitimately constrain the interpretation of statutes.

Do you have no idea what we're talking about? Take the Defense of Marriage Act, for instance, which amends the Dictionary Art to define marriage as "only a legal union between one man and one woman as husband and wife," 1 U.S.C. § 7 (2000). Suppose Congress, in 2030, enacts a statute mentioning "marriage," at a time when the common usage of "marriage" includes gay marriage (to satisfy the textualists) and when all members of Congress are in fact married gay people and the legislative history is clear (to satisfy the intentionalists). Should the Defense of Marriage Act control?

The authors argue (contrary to Nick Rosenkranz's article) that courts can use the Defense of Marriage Act as a piece of evidence but that you can't have that statute force a particular interpretation -- in other words, that "Congress cannot pass prospective binding rules of interpretation that purport to oblige interpreters of future statutes (be those interpreters members of the executive or judicial branches or the general public)."

It's a short piece (14 pages); you should read it if you're interested in the field. Nick Rosenkranz's article is longer (70+ pages), but a brisk read if you have LEXIS or Westlaw or access to the Harvard Law Review.

Oh yes -- and the interesting factoid for the day? Alexander and Prakash say in footnote 12 that in 1795, Congress considered publishing the laws in both English and German, but that proposal went nowhere, and link here for a debunking of the urban legends surrounding that proposal.


THE ENGLISH LANGUAGE: Clayton Cramer quotes the following (a bit overstated but amusing):
"The problem with defending the purity of the English language is that English is about as pure as a cribhouse whore. We don't just borrow words; on occasion, English has pursued other languages down alleyways to beat them unconscious and rifle their pockets for new vocabulary." [James D. Nicoll]


IT'S GOOD TO BE THE KING: A nice review in the Spectator (through Arts & Letters Daily) of Power & Profit: The Merchant in Medieval Europe by Peter Spufford. Apparently, the book is written for the layman and has lots of great pictures and maps, though the author is also a real, serious historian. The reviewer writes:

In the past, [medieval commercial history] was studied by some as the means by which mediaeval people became bourgeois, or at least less mediaeval than before. One aspect of social friction within Italian and other cities, class-conflict, and the multifarious money-grubbing of the whole West were fused and labelled as social mobility by those whom Spufford calls "historians whose class-consciousness has run to excess." Others hold that this period, 1250-1500, was one in which everyone was handicapped by the non-discovery of the Americas, the printing-press and really effective cannon; held back by a faltering economy, stagnant population and endemic plague, waiting for the leap into a more dynamic world made possible by American resources and Renaissance know-how. To read Spufford is to be persuaded that both these views are utterly false.

A little factoid: the "populous towns and villages running from Bruges to Rome" are called the Blue Banana. Other sources (see here and here) use the same term to refer to a somewhat larger area, "dense, urbanised economic area extending from the South of England across the Benelux countries and western Germany into northern Italy" (maybe the banana has grown since the Middle Ages).


I GOT BETTER: Dan Halpern, in The New Republic, has a lovely review of a few new books by and about Karel Capek (pronounced "Chapek"), one of my favorite writers. Capek wrote R.U.R. (Rossum's Universal Robots), where he (with his brother Josef) invented the word "robot" (from the Czech word for "work"). Well, R.U.R. isn't very good (it's about how people make robots to do their everyday tasks, and then the robots take over), but The War with the Newts is great. It's about how people discover a race of intelligent newts, whom they make to do their everyday tasks, and then the newts take over; do you see a trend? The War with the Newts is basically proto-science-fiction -- Capek did his writing between the World Wars, and died shortly before World War II. Here's a bit about Capek's early mystery stories, where nothing was resolved:

Some of the mysteries are apparently supernatural: two men find a single footprint in the middle of a snowbank, with no rational explanation of its existence. Some are more mundane: a sick man discovers the word "Return" painted on the wall of his house and recognizes his own hand, but has no idea when he painted it and cannot figure out what he meant by it. These mysteries without solution are not necessarily expressions of despair, even with the first great war of the new age at full bore. Faced with absurdity and meaninglessness, many of Capek's characters are often able to accept the lack of a planned, rational universe. In "The Footprint," this acceptance is made quite explicit, and boiled down as simply as Capek will allow, as two strangers offer wilder and wilder explanations of how the solitary mark in the snow could have occurred:

"It's disgraceful," said the other, "it's an incredibly stupid trick, but -- Damn, there are such things as physical limits. It's completely impossible -- Listen," he burst out, practically in anguish, "since there's only a single footprint here, couldn't it have been made by a man with only one leg? Don't laugh, I know it's idiotic, but there must be some sort of explanation. I mean, it's a matter of common sense, it's an assault on -- I'm completely baffled. Either both of us are fools, or I'm asleep in my bed with a fever, or there must be a natural explanation."

"Both of us are fools," Boura offered, as if having given it some thought. "We keep searching for a 'natural' explanation; we'll snatch at the most complicated, most nonsensical, most contrived cause, so long as it's 'natural.' But perhaps it would far simpler -- and more natural -- if we just said that it's a miracle. If we simply marveled at it and calmly went our ways -- Without any confusion. Perhaps even content."

And here's a priceless comparison -- this is by Halpern, the reviewer, not Capek --

Placed next to Kafka, Capek's optimism seems almost boundless.

Heh. Halpern draws a connection between Capek and the Russian absurdist Daniil Kharms (1905-1942). Let me give you my translation of one of my favorite Kharms short stories, Blue Notebook No. 10:

Once there was a red-headed man who had neither eyes nor ears. He also had no head, so that he was called red-headed conditionally.

He couldn't speak, since he had no mouth. He also had no nose.

He even had no arms or legs. And he had no stomach, and he had no back, and he had no spine, and he had no internal organs. He didn't have anything! So that it's unclear who we're talking about.

Let's not talk about him anymore.


ALAS: Michael Fumento, whom I generally trust, says the Atkins diet doesn't work.

UPDATE: Reader Brett Bellmore points out that Fumento only says the Atkins diet is hard to stick to, not that it doesn't work. Fair enough, I suppose, but in my book, "hard to stick to" is a species of "not working," where a diet is concerned. Fumento's point is first, that the high dropout rate from the studies makes the studies impossible to interpret, and second, that the Atkins diet really just boils down to taking in fewer calories and has nothing to do with whether the form of those calories. Put those together, and you get that people may have been dropping out because they just needed the calories. "Don't eat much" is also a good diet plan, provided you can stick to it.

UPDATE 2: Reader Atlee Parks quibbles with Fumento's characterization of the studies. Who's right, I don't know.


BISCUIT OF FORTUNE: Kate Malcolm complains about fortune cookies. This has long been a pet peeve of mine. I divide so-called fortune cookies into actual fortune cookies, advice cookies, wisdom cookies, and flattery cookies. Alas, the actual fortune cookies are dying out.

UPDATE: Reader Kurt Hemr says: "The WSJ had a piece a couple years ago about consolidation in the fortune cookie industry (!). Apparently a particular producer of inoffensive, bland fortunes has pushed most of his competitors out of the business. So your sense that fortune cookies are getting blander is well founded." Hah! Maybe this will be enough to get me to believe in antitrust.

UPDATE 2: Reader Nunya Business says his most accurate fortune cookie was "You will get new clothes." Indeed, since getting that fortune, he has gotten new clothes. Also a good one he got is "You would make a good lawyer." (I got that one too once.) Reader Thomas McKendree says his favorite cookies are "You like Chinese food" and the eerily prescient "Good things are coming your way -- or not." I like "Help! I'm trapped inside a fortune cookie factory!"


IN THE FUTURE: George Foreman will be a verb. So will Monica.

UPDATE: Gary Haubold says the verb is "Lewinsky," or rather "to get a Lewinsky," as used on a 1999 episode of Law and Order: Special Victims Unit.


PERSONALIZED MOVIE RECOMMENDATIONS: I've tried Amazon, but that's no good because it only uses your most recent movie rankings to generate recommendations, which isn't good if you want to rate tons of movies. Instead, I've had good results so far with Rating Zone. (They also do books, but there I'd prefer Amazon, since Amazon has pretty much all the books you'd ever want to rate, while Rating Zone only has a limited set.)


DANGEROUS MOVE: The Administration is apparently developing a parallel law enforcement system in which alleged murderers and their associates, instead of being arrested by the police and tried by civilian courts, are simply killed by the military. What's more, even if they're arrested rather than just killed, they're kept locked up, rather than being tried in accordance to the Constitution. In order to better implement this strategy, the Administration claims a right to engage in nearly unlimited eavesdropping of the accused, with no regard for the strictures of the Fourth Amendment. And the Administration roundly rejects any demands that decisions about whom to kill, and when and where to do it, should be subject to judicial oversight.

     This system -- which incidentally was the policy of many Administrations and not just Bush's -- is technically known by the name of "war." Rather than trying to use civilian law enforcement to arrest the people who bombed Pearl Harbor, the Roosevelt Administration tried to kill them, and also tried to kill those who were aiding them (even quite indirectly). Once they were "arrested" (captured), they were detained as enemy combatants (referred to as prisoners of war if they engaged in lawful combat, and as unlawful combatants if they were engaged in unlawful combat, such as espionage and sabotage). The government naturally tries to eavesdrop on the enemy any way they can, with virtually no legal constraints (at least outside the U.S.). And naturally one doesn't go to court for a trial on whether one should bomb this or that enemy location, or for a warrant to do so.

     Now this is not meant as a parody of concerns that
The Bush administration is developing a parallel legal system in which terrorism suspects -- U.S. citizens and noncitizens alike -- may be investigated, jailed, interrogated, tried and punished without legal protections guaranteed by the ordinary system, lawyers inside and outside the government say.
These are serious concerns, and the war analogy does not dispose of them. But the war analogy does, I think, put the concerns into perspective, and illustrate that not all departures from civilian law enforcement norms are necessarily wrong. When the nation is not in a war, there is only one "ordinary system," the civilian one. But when the nation has been attacked by an enemy military force that aims to change American policy by killing Americans in America, there are two systems that are "ordinary" for these uncommon but not unprecedented times: The civilian law enforcement system and the military warmaking system.

     We definitely need to have a debate about how the government should fight terrorism without unduly threatening American liberty. But we have to recognize that the issue isn't whether we should create a parallel system for dealing with enemy combatants -- we've long had such a system, and I think we must. The question is who qualifies for the military system and who goes through the civilian system, and who decides the answer to this question (which of course is what Padilla v. Bush is about).


MY TRUE IDENTITY: If you unscramble Sasha Volokh, you get Oshkosh lava.


HARNESSING FISCAL RESPONSIBILITY IN THE SERVICE OF TYRANNY: also reports that CAW [Canadian Auto Workers] president Buzz Hargrove calls for ban on second hand smoke in the workplace. Hargrove says:

No one doubts that smoking and second hand smoke are huge contributors to illness, disease and health care costs. When it comes to second hand smoke in the workplace, the time for studying and talking is long past. All levels of government -- municipal, provincial and federal -- need to take immediate action.

Is second-hand smoke a contributor to health-care costs? The EPA had classified second-hand smoke as a Class A carcinogen at one time, but that was thrown out in court in 1998 -- the EPA cherry-picked the studies showing large effects of second-hand smoke on cancer and ignored studies showing no effect, and used shady statistical techniques to combine many studies showing insignificant effects and find a significant effect. (See the disclaimer near the top of the EPA document where they call these "procedural grounds." Also see this document, critical of the decision.)

But cancer or no cancer, there's still the effect on heart disease, which may end up being large; the studies are just beginning to come out on that. Plus there's potentially effects on asthma and similar respiratory stuff, as well as the mere annoyance value of second-hand smoke.

So the auto union guy is probably on solid ground when he says that second-hand smoke (and of course smoking) contributes to health-care costs. Which is exactly the problem. If people's health were in their own hands and their own pocketbooks, smoking restrictions would have to overcome many people's dislike of paternalism. Even on second-hand smoke, which is in a sense "involuntary," you can argue that the solution is to have clear labeling of private spaces, i.e. "This restaurant allows smoking, don't come in if you don't want to breathe our smoke," or "This workplace allows smoking." The anti-smoking movement wouldn't be able to hide its essentially moral, Puritanical nature.

But in a world where everyone pays for everyone's health care, banning unhealthy activities not only isn't paternalistic, it's a duty of the fiscally responsible. If the choice is less smoking freedom for those non-smokers versus more tax liability for me, well, it's kind of a no-brainer. Socialization of health risks requires us to limit people's personal freedom as a condition of maintaining our economic freedom.

Of course, this is Canada, while in the U.S. much less of health-care costs are socialized. But it's health-care cost recovery that was driving the state litigation, which led to the big settlement which is equivalent to a 40-cent tax per pack of cigarettes (though Kip Viscusi has pointed out that in fact governments as a whole don't lose any money from cigarettes; see here for a Hanson-Viscusi debate on this "ghoulish" topic). So the dangers are alive and well here too.

A concern for freedom in a socialized world requires everyone to consciously ignore their pocketbooks when voting. Why require people to punish themselves that way? The best solution -- ironically, the most compassionate solution -- is to stop bailing them out at our expense, or at least allow people to choose not to have their lives saved at public expense.


WHO STOLE MY STRAWBERRIES? For those of you who, like me, cannot suppress the rubbernecker's impulse to gawk at the collapse of New York Times, you will want to catch the latest roundup from Mickey Kaus. Captain Queeg and his helpers seem to find new ways to embarrass the paper on a daily basis, and are now teetering over into self-parody; I'm wondering whether some enterprising Times staffers have considered launching a mutiny to salvage the dignity of the institution.


TOBACCO ADS AND FREEDOM OF THE PRESS: European newspapers slam EU tobacco advertising ban, according to, a useful site that collects tobacco-related news:

Health ministers approved the new law on Monday in a victory for anti-smoking campaigners but a blow to media companies hit by shrinking advertising revenue in an economic slowdown.

Publishers said small local newspapers in countries such as Germany may be forced to close due to loss of income caused by the ban, due to come into force in 2005.

Diplomats said Berlin, keen to protect its ailing publishing sector, is likely to challenge the law in the EU's top court.

Here's part of an op-ed I wrote, Ad Bans Are a Bad Idea, back in August 1995:

And what about the consequences for the media? Advertising is 100 percent of TV revenues and 70 percent to 80 percent of newspaper and magazine revenues. The media owes much of its existence to "sin" advertising. As one magazine executive put it, "We would be really lost without sin." Movieline, a Los Angeles-based entertainment magazine, gets about 19 percent of its ad revenues from tobacco advertising and another 13 percent from alcohol advertising. CBS founder William Paley was heir to a cigar fortune; as Mike Youngren grudgingly admitted in the Salt Lake Tribune, "If not for R.J. Reynolds, network television news, as we know it, might not exist."

Here's what's happening in France -- newspapers are going bankrupt in droves, readership is dropping, and one of the reasons is the 1993 ban on tobacco and alcohol ads. In January, the Evening Standard reported that these "draconian restrictions" had "claimed their first victim. The leading French current affairs journal Actuel will fold at the end of this month after 20 years." Elmar Brok of the European Parliament reports that this is especially a problem for the small, struggling outfits, like regional newspapers.

European ad bans can even be a problem for American publications. There have been proposals floating about to ban some American and British magazines with tobacco ads from sale in Europe -- or at least everywhere that outlaws tobacco promotion, including Spain, Italy, France and Greece.

Movieline, by the way, is the movie magazine my mother publishes. My piece is broader than just the media point -- here's the conclusion, summarizing the different points of argument:

So [cigarette] ad bans are bad for people's health, discouraging innovation by making it impossible to talk about it. They tend to expand beyond "just cigarettes." They have perverse effects in unrelated fields. They produce media concentration by making it harder for small publications to get funding. Worse, they restrain the consumer's right to be informed about legal products, and block the lines of communication between producers and consumers that's crucial to a well-functioning economy. And by treating commercial free speech as different than "regular" free speech -- and setting a precedent of carving out exceptions to the First Amendment -- they weaken the case for free speech as a whole.

Anyway, I'm glad European newspapers, spurred by their self-interest, are now fighting the good fight.

Wednesday, December 04, 2002


"TOO MUCH VOLOKH"?!? How can there be such a thing as "Too Much Volokh"? Impossible.




UNSCIENTIFIC POLL: My friend Jack Schaedel passes along this article, which uncritically reports the result of an unscientific poll:
Ronald Reagan topped the "greatest living American" list in a new Esquire magazine survey released this week.

The eclectic "Survey of the American Male," featured in the January 2003 issue, plumbed the depths of about 1,900 men to reveal traditional underpinnings and political paradoxes, among other things.

Indeed, former President Reagan was voted top dog, followed by former President Jimmy Carter, Secretary of State Colin L. Powell, "my dad" and finally former President Bill Clinton, respectively.

Mr. Clinton headed the list of "most loathsome living American" as well. . . .

Esquire magazine, which has a 700,000 circulation, does not claim its survey to be "a scientifically random sample of the population," according to Scott Quill, who compiled the list.
It is "a snapshot of the American male, circa 2002," he said. . . .
No, it's not "a snapshot of the American male" -- it's a snapshot of the particular 1900 subscribers who chose to respond to the survey (if I understand the survey design correctly). And if it's not a scientific sample, what makes it newsworthy?


THE GRAY LADY SQUELCHES DISSENT: I don't have particularly strong feelings about whether Augusta National should admit women -- or whether professional golfers should boycott the Masters until Augusta has female members. But the New York Times sure does. So much so that, according to one of its competitors, it spiked columns that disagreed with its editorial position, including one by Pulitzer Prize winner Dave Anderson.


ANOTHER ELECTION FIGHT, this time over a close Maine Senate election. Control of the state senate turns on the outcome.


[C]ertain departments of the co-op Rainbow Grocery have removed Israeli-made products from their shelves.

Although Israeli products remain on the shelves of other Rainbow departments, which are run independently, some workers are pushing for a storewide boycott, an employee of the Mission District store said Tuesday. . . .
I think every business should have the right to decide not to stock products that come from some country; I understand there are some statutory constraints on certain kinds of anti-Israel boycotts, but I'm not sure they apply here, and I wouldn't support their applicability here. But I also think that San Franciscans who oppose this sort of double standard imposed on Israel -- which, despite its flaws, one of the least repressive countries in the Middle East -- should decide not to patronize this business.

     (Thanks to reader Jim Herd for pointing me to this story.)


NOT MOST, ONLY 88-90 PERCENT, CONTINUED: Apparently I was not the only one struck by the interesting math in this New York Times story. John Rosenberg noted the same curious comment -- and much, much more.

One reader suspects the school district official was misquoted -- but what would that say about the math (or reporting) skills of the Times reporter? Another suggests that the original statement was mathematically possible -- it's possible that over 40 percent of the black families in question are upper class. Of course, that wouldn't advance the argument, now would it?

UPDATE: Matt Weiner makes a good point and Ms. Caldwell rises to her own defense over at Discriminations (scroll down through the comments).


HARRY POTTER'S NO COMMUNIST: At least that is what Andrew P. Morris says. (Link may ask for optional registration.)


THE DISTRUSTFUL CHEATER. Orin thinks I have it wrong: people who spend time in the gray area between the letter of the law and its enforcement aren't (or shouldn't be) especially fearful of the sort of Total Information Awareness the media says is being pursued by the Pentagon; rather, everyone should be fearful of it, though they also should be skeptical of the press reports. Orin is careful to say that this is his own view, at least. Actually I knew that, and am sorry for imputing to Orin -- or even to my "stylized" Orin -- hypothetical views to the contrary.

     Still, my point holds as a descriptive matter: one reason that some people may instinctively object to Total Information Awareness is that they know they have a bit to hide; one reason some people may instinctively not object to it -- even as it is described in the press -- is that they feel they don't have anything to hide. (I know such people, and even am related to one of them.) The significance of these two types was the subject of my earlier post.

     Orin raises an interesting alternative idea, however: maybe the people most worried about Total Information Awareness are the same types who download music without paying for it -- not because they are worried about being caught in this or other transgressions, but because they worry that those in government will behave as badly as they do. They might even imagine a government employee treating the Total Information Awareness database as a kind of Napster, having a blast downloading information about well-known people or about friends and enemies. Much cooler than just downloading tunes. People who follow the rules are less worried about Total Information Awareness because they assume that others will follow the rules, too, and not abuse their powers.

     That's probably also correct as a descriptive matter, and it's interesting. But I think that if this is a source of comfort for Orin or anyone else, it shouldn't be. One reason is that people who are casual about some rules may be very respectful of others; there are plenty of fine public servants who have downloaded music when they shouldn't have. And there are others who are very good at obeying relatively little rules (don’t download music) but not comparably good at resisting larger temptations when they think that bending the rules will give them a chance to achieve something good. I just don't believe that people have unitary dispositions in these senses.

     But the larger reason for upstanding people like Orin to worry is that for the cynics to be right about Total Information Awareness, they only need to succeed on a modest claim: that some people in the government -- maybe not very many -- will abuse their powers. This is not inconsistent with a sunnier view of the ethics of most public servants, such as Orin may hold; the cynic's claim is made at the margin. Its accuracy is substantiated by plenty of evidence about the abuse of power and information at the margin by federal officials. One could give examples from the Nixon and Clinton administrations, of course, but it's more straightfoward to point out that there was a notable example during the Reagan administration that involved the very man overseeing the Total Information Awareness project: John Poindexter. My guess is that he is a very fine person, and highly scrupulous in his personal dealings; he probably never has torn the tag off a mattress, and I wouldn't be surprised if he took a dim view of those who commit piracy of music, disobey drug laws, etc. And yet, and yet.


TWO PROCEDURAL OPINIONS IN THE PLEDGE OF ALLEGIANCE CASE, one reaffirming that Michael Newdow has standing to challenge the pledge, even though the mother of his daughter now has sole custody of her, and another denying the U.S. Senate the right to intervene.

     In addition to dealing with the standing question, the first opinion shows that the panel majority is unrepentant in its condemnation of the use of "under God" in the Pledge:
When school teachers lead a recitation of the Pledge of Allegiance according to school district policy, they present a message by the state endorsing not just religion generally, but a monotheistic religion organized "under God." While Newdow cannot expect the entire community surrounding his daughter to participate in, let alone agree with, his choice of atheism and his daughter’s exposure to his views, he can expect to be free from the government’s endorsing a particular view of religion and unconstitutionally indoctrinating his impressionable young daughter on a daily basis in that official view. The pledge to a nation “under God,” with its imprimatur of governmental sanction, provides the message to Newdow’s young daughter not only that non-believers, or believers in non-Judeo-Christian religions, are outsiders, but more specifically that her father’s beliefs are those of an outsider, and necessarily inferior to what she is exposed to in the classroom.
When Judge Goodwin quickly stayed the decision shortly after it was handed down, some speculated that even he and Judge Reinhardt were a bit chastened by the opposition that the decision aroused -- apparently they haven't been (not that they, as judges, should be). We'll see what the rest of the Ninth Circuit judges might do.


PROCEDURAL ISSUES IN PADILLA V. BUSH: The district court also held that Donna Newman, the lawyer who had been appointed to represent Padilla when he was a material witness, had standing as "next friend" to sue on Padilla's behalf; that Padilla could name Donald Rumsfeld as a defendant, and not just the commander of the brig in which he's being held (in South Carolina); that the Southern District of New York had jurisdiction over Rumsfeld; and that the case didn't have to be transferred to South Carolina. These may well be controversial issues, but I'm not expert enough to comment on them.


PADILLA ENTITLED TO CONSULT WITH HIS LAWYER: The Padilla v. Bush held that Padilla could meet with his court-appointed lawyer to give the lawyer the facts needed to present Padilla's habeas case. The court found statutory for this in the broadly-named and broadly-worded All Writs Act, and rejected the government's arguments that this would interfere with national security:
  1. "[A]ccess to counsel need be granted only for purposes of presenting facts to the court in connection with his petition . . .; no general right to counsel in connection with questioning has been hypothesized here, and thus the interference with interrogation would be minimal or non-existent." (p. 85).

  2. Accepting the argument that contact with the lawyer can't be allowed because "Padilla might use his lawyers to pass messages to others" (whether with or without the lawyer's knowledge) "proves far too much: by the government's logic, no indicted member of al Qaeda facing trial in an Article III court should be allowed to consult with counsel -- a result barred by the Sixth Amendment" (p. 86).

  3. Given the facts of this case, the conjecture that Padilla might use lawyers to pass messages to others is "gossamer speculation" (p. 86).

  4. "Padilla has already had meetings with counsel in New York, and thus whatever speculative damage the government seeks to prevent may already have been done" (p. 86).

  5. Military personnel could "monitor Padilla's contacts with counsel, so long as those who participate in the monitoring are insulated from any activity in connection with this petition, or in connection with a future criminal prosecution of Padilla, if there should ever be one" (p. 86). The judge gives as an analogy the controversial Bureau of Prisons regulation which allows similar monitoring of conversations between civilian prisoners and their lawyers, if there's reason to believe that the civilian prisoners may be using the lawyers to communicate to their confederates in the outside world.

  6. "Padilla's lawyers themselves are members of this court's Criminal Justice Act panel who have appeared before this court in numerous cases. . . . There is nothing in their past conduct to suggest that they would be inclined to act as conduits for their client, even if he wanted them to do so" (p. 87).


WHEN MAY A COURT ORDER THAT THE GOVERNMENT RELEASE AN ALLEGED ENEMY COMBATANT (at least if the combatant is a U.S. citizen)? The district judge (Michael Mukasey) in Padilla v. Bush sets forth the standard that he endorses (emphasis added):
The commission of a judge [in such a case] . . . runs only to deciding two things: (i) whether the controlling political authority -- in this case, the President -- was in fact exercising a power vouchsafed to him by the Constitution and the laws; that determination in turn, is to be made only by examining whether there is some evidence to support his conclusion that Padilla was, like the German saboteurs in Quirin, engaged in a mission against the United States on behalf of an enemy with whom the United States is at war, and (ii) whether that evidence has not been entirely mooted by subsequent events.
This is a standard under which judges defer substantially, but not completely, to the President's judgment.


U.S. CITIZENS MAY CONSTITUTIONALLY BE DETAINED AS UNLAWFUL COMBATANTS, if they're indeed enemy soldiers. Padilla v. Bush, pp. 61-66, citing Ex parte Quirin, 317 U.S. 1 (1942).


CONGRESSIONAL AUTHORIZATION OF THE USE OF FORCE QUALIFIES TO ALLOW MILITARY DETENTION: "Further, even if Congressional authorization were deemed necessary, the Joint Resolution, passed by both houses of Congress, authorizes the President to use necessary and appropriate force . . . and thereby engages the President's full powers as commander in chief." Padilla v. Bush, p. 53. And while 18 U.S.C. sec. 4001(a), which bars the imprisonment of U.S. citizens without Congressional authorization, does apply to alleged enemy combatants (p. 71, rejecting the government's arguments the contrary), the Military Force Authorization implicitly authorizes the detention of enemy combatants under the rubric of "us[ing] all necessary and appropriate force" against al-Qaeda members (pp. 73-74).

     See here for my earlier discussion of the 4001 issue, which I'm glad to see is consistent with the district court's position.


FORMAL DECLARATION OF WAR UNNECESSARY FOR MILITARY DETENTIONS OF ENEMY COMBATANTS: "[A] formal declaration of war is not necessary in order for the executive to exercise its constittuional authority to prosecute an armed conflict [including using military detentions of enemy combatants, where appropriate] -- particualrly when, as on September 11, the United States is attacked." Padilla v. Bush, p. 50 (district court opinion). Quoting The Prize Cases, 67 U.S. 635 (1862), the district court points out that "war may exist without a declaration on either side."

     I've made this point on several occasions on this blog, for instance here, and I'm glad to see some further support for this.


PADILLA V. BUSH: Here's the district court decision; I'm reading it right now, and will blog some key points as I see them. Remember, though, that this will doubtless be quickly appealed to the U.S. Court of Appeals for the Second Circuit, and that decision will ultimately be much more important than this one.


SIC TRANSIT KURT WARNER: Let's pause a moment to commemorate the loss of one of the most beautiful things I have ever seen, the St. Louis Rams' offense between 1999 and 2001. I'm not talking about just the skill of the players, or anything so utilitarian as how many games they won or how many points they scored. It was the flow of the game, the way the whole exceeded the sum of the parts, the plays that seemed to develop at twice the normal speed, all designed by a coach who seemed to care less about winning than about the aesthetic aspects of his art. Forget the Brazilian World Cup teams, the Showtime Lakers, the Gretzky-era Oilers -- the Rams were more fun to watch. They're painful to watch now, not because they're losing, but because even when they win the magic is gone. They're just like any other team. Some of the key players are injured this year, but the decline began before the injuries, late last season, when the opposing teams began to figure out where the ball would be before it got there. Even if the Rams win more games next year, I have a feeling they won't win them with the same flair. What I'll remember most is the smiles on the faces of the receivers, smiles not so much because they had scored but because they knew they were doing something better than anyone else could do it. Appreciate these things while you have them, because they don't last long.


A DIFFERENT TAKE ON THE TIA/COPYRIGHT LINK: Philippe suggests below that the views he and I have about privacy and surveillance might be linked to how much we have to hide. (This, from a guy who hides his identity.) He writes:
The natural train of thought is that I am made nervous by the prospect that the government will have so much information because I know I have things to hide. I am the type (or rather I was the type -- let's be careful here) who would download music without paying for it; my guilt and fear drive my paranoia. Orin has led a blameless life (well, close enough) and so is not all that concerned about how much the government knows about him.
I very much disagree. No one has led a blameless life, and everyone is (or should be) concerned about "how much the government knows about him." I think Philippe is confusing two very distinct things: (1) skepticism about the press reports concerning TIA, and (2) comfort about the version of TIA that the press is reporting. As you will recall from prior posts, I have (1), but not (2). So if there's a difference between Philippe and myself, I don't think it can be explained by (2), because Philippe and I seem to agree on (2). I'm sure there are many people who think that the government should have lots and lots of surveillance power, but I'm not one of them.

    I think the more likely connection is that I believe that people can follow rules honestly, which makes me more optimistic than Philippe that the government will follow legal limits on its powers. I think my own recent experience working for Big Brother (er, the government) backs up that belief. When I was at the Justice Department from 1998 to 2001, I found myself surrounded by the kind of people who played by the rules (yes, even the copyright rules), and had an enormous respect for following the law. So, for example, I saw and worked with lawyers implementing Wiretap Orders who were extraordinarily careful about every sin le last detail, always erring on the side of caution. More broadly, I spent three years in the government working with people who followed the Internet surveillance rules to a T, many of whom themselves had strong civil libertarian instincts. (Needless to say, this was not a story you would read in the N.Y. Times.) Following that experience, I suppose I'm less fearful of government powers run amok than I otherwise would have been. In contrast to Philippe, I think there are lots of people out there who follow the rules-- and I found in my experience at DOJ that there were a lot of them working for the government.


While I'm unable to identify and articulate all the values involved, I've always thought that the reasons we don't allow gays in the military are the same as those underlying the policy not to house men and women in the same barracks. I think it has to do with discomfort over dressing, showering, sleeping, etc., with those who presumptively are sexually attracted.
I've never quite bought this argument. We rightly demand and expect remarkable courage from our soldiers, and remarkable ability to deal with adversity. They have to be willing to be shot at, to lie for days in trenches, to endure grave privation. Is it really so much to ask them to shower with people knowing that maybe someone is sexually checking them out? Sure, there's some discomfort there, but being in the military means having to endure far greater discomfort. In fact, the military often intentionally inflicts discomfort on trainees to steel them for the future. I'm sure that soldiers who are brave and resourceful enough to do what we ask them to do, in battle and out, are also brave and resourceful enough to deal with the problem.

     The problems that are potentially raised by intra-unit sex and romance are a considerably more serious question. The difficulty of this empirical question is what makes my views on the subject so tentative. But the point the reader raised strikes me as not terribly relevant.


"HARRY POTTER" COMMUNIST PHILOSOPHY MALFOY, some people ask their search engines -- and the answer is Mark Kleiman.


THE THIEF'S INTEREST IN PRIVACY. Orin and I have had two little debates recently. One involves Total Information Awareness; I am considerably more worried about it than he is. The other involves the copyright laws, which I confessed to have cheerfully and aggressively violated when I was a college student (and maybe to have violated a little less aggressively in more recent times), but which Orin generally has been careful to obey, then and now. It has occurred to both of us that there may be a connection between these disputes, but what is it?

     The natural train of thought is that I am made nervous by the prospect that the government will have so much information because I know I have things to hide. I am the type (or rather I was the type -- let's be careful here) who would download music without paying for it; my guilt and fear drive my paranoia. Orin has led a blameless life (well, close enough) and so is not all that concerned about how much the government knows about him.

     I do not think that's the whole story, but there may well be something to it; if so, however, there also may be other ways to look at the point that are somewhat less damning of my position (some of which have been suggested to me by readers). Some of us may want, as a feature of our liberty, limited enforcement of our existing laws. There are a lot of unjust or illiberal or overly exacting prohibitions on the books that we tolerate only because we expect poor enforcement of them: perhaps some traffic laws, perhaps some drug laws, perhaps some copyright laws, perhaps many other laws, all are considered tolerable precisely because they are expected to be imperfectly or even lightly enforced. Or maybe some of us oppose those laws outright, and take consolation in their spotty enforcement.

     On this view, perfect enforcement would amount to a change in the law itself from a pragmatic standpoint, and sometimes an undesirable one. If the government suddenly were able to costlessly identify and jail everyone who has used illegal drugs in the past X number of years, I expect that the underlying substantive laws in question would be changed very promptly. Some of our distinguished public officials would, ahem, be leading the way.

     A question then arises, though: what weight should be given to the privacy interests of people who take the position just described? On the one hand there are people like Orin (as I am styling him), who live their lives entirely within the letter of the law. On the other hand there are people -- perhaps tens of millions of them -- who don't: i.e., those who spend some portion of their time in the shadowy space between the law as written and the law as enforced. The people in the first category naturally seem to have the upper hand in the argument, as they can say that the innocent have nothing to fear. The people in the second category are reduced to suggesting that the "innocent," properly understood, is a smaller or more complicated category than one might have imagined. What makes it a sheepish argument is that there is no right to break an underenforced law; if you are hauled into court for drug use or for a traffic violation or for downloading music, you can't say "hey, I never expected these laws to be so vigorously enforced." And yet might it not be reasonable to assert precisely such an interest at a different stage -- the stage when we are deciding as a matter of policy what enforcement resources to give the government?

     I am taking no position here on whether copyright laws are unjust or illiberal -- or on whether they really have anything to do with the aversion to Total Information Awareness. Indeed, the real point I am after might be understood as applying only a little to any existing laws, for it also has a forward-looking aspect: in times to come we may be confronted with new laws that are asinine or much worse, and when that happens the government's limited ability to enforce its wishes because of practical constraints will serve as an important brake on its overreaching. That's not helpful -- it's not even an issue -- for those whose practice is (and will be) to always comply with the law as written, perhaps because they believe there is a moral obligation to comply even with unjust laws. But for the rest of us, denying the government overly effective enforcement technologies is an important hedge against illiberalism.


GAYS IN THE MILITARY: I'm very tentatively skeptical about the ban on open gays in the military. The skepticism comes from my general presumption that the government ought not discriminate based on people's sexual preference. The tentativeness comes from my view that the military should be as efficient as possible, and many of the normal constraints on government action should thus be relaxed when it comes to the control and makeup of the armed services. I think there's a difficult and important empirical question here -- would allowing openly gay soldiers in fact materially interfere with the morale, cohesion, and thus effectiveness of the armed forces? I know that I know very little about the answer to this question, and thus can't have anything remotely approaching a truly informed opinion.

     But yesterday's op-ed in the Washington Post doesn't enlighten me much. The op-ed argues that "[t]oday we have numerous real-world instances of known gays serving in [foreign armed forces], providing clear evidence that open homosexuality does not impair military effectiveness." "Rather than relying on anecdotes or conjecture, our researchers asked experts to assess the effect on military performance of lifting the ban on gays. While isolated social disruptions required a few service members to be transferred, not a single informant observed any impairment of military effectiveness after the bans were lifted." Also, in the U.S. itself, "dozens of reports by service members indicate either that they know of gay peers in their ranks or that they themselves are gay and have served in units where their sexuality was widely known. No evidence has tied these units to decreased performance."

     On the other hand, the author argues, "When asked to provide evidence to support the need for 'don't ask, don't tell,' champions of the ban can point only to opinions [such as surveys of military members and testimony from Norman Schwarzkopf and Colin Powell]. . . . Opinions certainly have a role to play in public debate, but they do not constitute empirical evidence, and it's unwise to assess exclusionary policies by polling the excluders."

     Well, I'm a big fan of empirical evidence, but unfortunately the op-ed doesn't explain exactly what empirical evidence the "expert[] assess[ments]" of "the effect on military performance of lifting the ban on gays" in foreign militaries were. Might they have been based on . . . opinions? "[N]ot a single informant observed any impairment of military effectiveness after the bans were lifted." It's hard to observe impairment of military effectiveness the same way that one can observe, say, objects falling or radioactive material decaying; presumably, deciding whether military effectiveness is impaired is a matter of judgment -- either the researcher's judgment, or the judgment of people the researcher asks. Sounds like opinion to me, and my quick skim of the two most recent reports on the Center for the Study of Sexual Minorities in the Military (I assume these are among the reports that the op-ed was referring to when it spoke of "studies" that the Center had published) reinforces my assumption.

     Now of course sometimes opinion is evidence, especially if it's opinion of objective experts. But when I looked closely at the Center's mission statement, it struck me as a group that's fundamentally devoted to the project of ending military discrimination against gays; check it out and see for yourself, but here are the first few paragraphs:
This statement describes the mission of an academic research center named the "Center for the Study of Sexual Minorities in the Military." The Center promotes the interdisciplinary analysis of lesbian, gay, bisexual, transgendered and other marginalized sexual identities in the armed forces.

What role do state institutions play in shaping identities and constructing beliefs about deviance that privilege some groups and pathologize others? In Nazi Germany, nationality laws specified the precise ratio of Jewish blood that differentiated German citizens from aliens. Siobhan Somerville shows that the Supreme Court's characterization of race as an immutable difference between "black" and "white" carried enormous definitional power in late-19th century America. Liisa Malkki argues that Belgian occupiers transformed a complex status hierarchy into simplified categories of "Hutu" and "Tutsi" in colonial Rwanda-Urundi. These instances suggest that understanding the state's role in constructing and demonizing identities can be an important part of studying subsequent regulation and elimination of persons.
There's nothing inherently wrong with that as a political position -- as I mentioned, I sympathize with it. Still, having read the mission statement, it doesn't make me feel that the group is particularly likely to produce a fully objective, balanced evaluation of the issue; among other things, I couldn't see a single paragraph that also discussed the need to consider the military's operational needs -- it's as if the only issue worth discussing is the effect of military policies on gays and society (surely an important question), and the effect of including gays on the military isn't even on the radar screen. And the way the statement is written also doesn't give me much confidence: Imagine a Center for the Study of Abortion in America whose mission statement was written in jargon drawn heavily from the rhetoric of pro-life activists, and you'll get a sense for where my skepticism is coming from.

     In any event, I started read the op-ed with a very tentative view of the question, and I come away from it with exactly the same view. Perhaps some other op-ed based on some other report, richer in concrete facts or at least based on research by seemingly a more politically balanced group, will either change or strengthen my views. But this op-ed, I think, adds nothing to the debate.

Tuesday, December 03, 2002


MY COLLEGE DAYS: Well, for what it's worth -- and I'm sure this is similar to the experience of no one -- here's what I did sometime around the summer of 1992, I think, when I got a car and moved out of my parents' house just before my last year at UCLA. I wanted to take a large chunk of my parents' record collection with me on tape, but I was really into a very strong and simple theory of intellectual property rights at that time and couldn't in good conscience just copy the records onto tape. So I did what any God-fearing believer in IP would do -- I called every record company whose records I wanted to copy.

"Oh," a nice man over at CBS Records told me, "is this some compilation you're going to be marketing?" "No," I said, deadpan, "I just want to listen to it in my car." "Well, no one's ever asked us that before . . . . I don't think there's any problem, as long as you don't try to sell it." RCA Records also had no problem with this and, somewhat bemused, told me, "You have our blessing." The lady at Warner Records said, "Wait a minute. You're serious? You mean to say you've never copied a record onto tape?" "Well, I have," I answered, "but I've always felt guilty, because of copyrights . . . ." "Forget it! No one cares!"

The man at Capitol Records actually made me feel as if my labor was worth the effort. "Oh," he told me, "you're one man in a million," and gave his consent. Only the Berkeley-based Fantasy, Inc., which released the Amadeus soundtrack, refused to give me the permission I wanted. But they were so impressed with my honesty that they gave me something even better -- a complimentary copy of the soundtrack in a beautiful two-tape set.

(I remember all those details because, when I started my first real job the following summer, at CEI, I tried writing an op-ed about the experience. Looking back at it today, I realize what a bad op-ed writer I was.) Later, I learned that private, non-commercial copying onto tape was O.K., according to some recent amendments to the Copyright Act, because of some political compromise related to DATs, though of course that doesn't necessarily resolve the moral issue.

I still don't know how I feel about intellectual property, i.e. whether it exists (the moral case for copyright seems much stronger to me than the case for patents, but unfortunately the economic case for patents is quite strong, oh well), but at least I don't feel guilty about private, non-commercial copying anymore.


ANTI-MASK LAWS AND LAWS BANNING PUBLICATIONS UNDER FALSE NAMES: I haven't written on this, and am not planning to -- but I've got a title for anyone who wants to write about this:
The Right of the People Peaceably to Dissemble.
(A quick NEXIS search shows one previous use of this, in a 1990 Manchester Union Leader editorial -- great minds think alike, and so do we.)


BRIGHT COLLEGE DAYS. I must say I am charmed by Orin's account of his college days: calculating the amount of music he could afford, saving up, and treating himself to a new CD by Bill Evans or some such person every two weeks. He built his collection one disc at a time, and paid for 95% of the music in his collection. Clearly Orin was a stand-up gent -- the sort that I hope my daughter someday will marry.

     The thing is, I believe Orin is the only fellow I ever have known who operated in quite that way. Evidently I attended college on a different planet. My appetite for music, like the appetite of everyone else I knew (or, again, at least every guy; for let's face it: this is largely a guy thing), was ravenous. I wanted -- no, I simply had to have -- the complete works of the Beatles and the Stones and the Who and Lou Reed and Bruce Springsteen, not to mention the Replacements and Husker Du and everyone else who appealed to me at one time or another. The fact that I often didn't have much more than a trickle in the way of income presented a bit of an obstacle to the satisfaction of this appetite, but nothing major. I generally spent most of what I had on used records, then lent them to friends in informal return for their holdings. I bought cases of TDK SA-90s, and in this way found I was able to acquire 20 albums for $20 and a few evenings at the turntable and tape deck. What fun! (Look, I was nineteen.)

     It's true that we all may be tempted to imagine that our experiences were typical, and it seems clear that Orin and I ran in different crowds. Still, I can't think of anyone -- or, again, any male -- I knew in college who didn't have a pretty substantial collection of tapes, or who would have expressed any hesitation at taping someone else's records or lending out their own for taping. Maybe the trouble is that I went to one of those amoral left-wing universities on the east coast. Then again, it was about the same in high school. In any event, Orin worries that the understandings he had back then are almost impossible to find on campuses today; but I am here to reassure him that so far as I know, his understandings would have been awfully hard to find on my campus in the 1980s.

     What may be true is that students nowadays pay for an ever-smaller fraction of their music. In college I probably paid (somebody) for about a half or a third of my music. Today many kids probably pay for far less than that. But my claim is that this is because they can, not because their attitudes about infringement have changed. What kids want today is what I wanted: as much music as possible for as little cost as possible. True, I sometimes did enjoy the pleasure of ownership when it was a record I really cared about -- as students probably do today to some extent as well (the music online has to start with a purchase by somebody). But if I had Napster when I was a teenager, I would have been in heaven, just as students now are, or think they are. (In all candor, it must be said that I took some pleasure in Napster during its heyday even in my old age.)

     The point is that whatever the ratio of guys like me to guys like Orin was when I was in school or when he was in school, I can't see any reason to think it has changed. I'm pretty sure not only that most high school and college kids don't care a whit about copyright infringement, but that they never have.


FATWA AGAINST INDONESIAN MUSLIM SCHOLAR? I have no idea of whether the source is reliable, but The American Reporter site reports that
In a move that might complicate Indonesia’s anti-terrorism campaign, a group of local Muslim clerics, or ulemas, issued a fatwa, or death sentence, Monday against Muslim scholar Ulil Abshar-Abdalla, saying that they have condemned him to die for blasphemy. . . .

The ulemas issued their joint statement in a press conference in Bandung, Indonesia's fifth largest city, about 115 miles south of Jakarta, claiming that the signatories include leaders of influential Muslim organizations such as Persatuan Islam, Muhammadiyah, and the Justice Party.

Persatuan Islam (United Islam) and Muhammadiyah are two of Indonesia's oldest Muslim groups. The 20-million strong Muhammadiyah is the second largest Muslim organization after the Nahdlatul Ulama, whose leaders include former President Abdurrahman Wahid. . . .

"There is a strong indication that a network of conspiracy exists to corner Islam. This should be investigated further but the death sentence, according to the shariah, is clearly given to anyone who swears word against Islam," said Athian Ali of the Indonesian Forum of Ulemas and Ummah. . . .

Ulil Abshar-Abdalla is the coordinator of the Jakarta-based Liberal Islam Network whose goals are to educate the Indonesian public about a "moderate interpretation" of Islam. . . .
There's much more factual detail in the story -- very interesting, if accurate.


ALLEGIANCE TO AUTHORITY: Brad DeLong quotes the Catalan Oath of Allegiance as saying:
We, who are as good as you, swear to you, who are no better than us, to accept you as our king and sovereign lord, provided you observe all our liberties and laws -- but if not, not.
There's a lot to be said for this understanding of allegiance. (Thanks to InstaPundit for the pointer.)

     At the same time, this reminded me of the ending of Rudyard Kipling's story Her Majesty's Servants, which I think provides a valuable counterpoint to this oath (though not a contradiction -- Kipling would have sympathized a great deal, I think, with the oath as Brad DeLong quoted it):
[The troops] had made a big half-circle across the plain, and were spreading out into a line. That line grew and grew and grew till it was three-quarters of a mile long from wing to wing -- one solid wall of men, horses, and guns. Then it came on straight toward the Viceroy and the Amir, and as it got nearer the ground began to shake, like the deck of a steamer when the engines are going fast.

Unless you have been there you cannot imagine what a frightening effect this steady come-down of troops has on the spectators, even when they know it is only a review. I looked at the Amir. Up till then he had not shown the shadow of a sign of astonishment or anything else; but now his eyes began to get bigger and bigger, and he picked up the reins on his horse’s neck and looked behind him. For a minute it seemed as though he were going to draw his sword and slash his way out through the English men and women in the carriages at the back. Then the advance stopped dead, the ground stood still, the whole line saluted, and thirty bands began to play all together. . . .

Then I heard an old grizzled, long-haired Central Asian chief, who had come down with the Amir, asking questions of a native officer.

"Now," said he, "in what manner was this wonderful thing done?"

And the officer answered, "There was an order, and they obeyed."

"But are the beasts as wise as the men?" said the chief.

"They obey, as the men do. Mule, horse, elephant, or bullock, he obeys his driver, and the driver his sergeant, and the sergeant his lieutenant, and the lieutenant his captain, and the captain his major, and the major his colonel, and the colonel his brigadier commanding three regiments, and the brigadier his general, who obeys the Viceroy, who is the servant of the Empress. Thus it is done."

"Would it were so in Afghanistan!" said the chief; "for there we obey only our own wills."

"And for that reason," said the native officer, twirling his moustache, "your Amir whom you do not obey must come here and take orders from our Viceroy."


CONSTITUTIONAL THOUGHT AND POLICY PREFERENCES: An addition to the question Eugene poses immediately below: there has been considerable change over time in the areas in which policy preferences dictate constitutional thought. Today, as Eugene suggests, many people think the Constitution mandates their policy preference as to abortion, but very few think the Constitution mandates their policy preference on issues of economic regulation. A century ago it was precisely the reverse: no one claimed a constitutional right to abortion, but most lawyers believed the Constitution had a great deal to say about economic regulation, and one's views about the wisdom of regulation correlated well with one's opinion about regulation's constitutionality. Twenty years from now, for all we know, the constitutional right to smoke marijuana may be well established. Why do these things change the way they do? Legal historians tend not to address questions framed so broadly, but maybe they should.


DOES THE CONSTITUTION ENACT EXACTLY WHAT WE WANT? Stuart is quite right to point out that in many areas, "One's constitutional thought has a way of closely tracking one's preferences as to outcome." But here's a different question: Why is this more so in some areas (abortion, affirmative action, in some measure gun control), and less so in others?

     For instance, relatively few people think that the Constitution prohibits high income taxes, even if they think high income taxes are bad or even immoral. I suspect that relatively few people think that the Constitution protects people's right to use marijuana, even if they think that marijuana should be legal; some libertarians do think so, but relatively few. Some pro-free-market people believe that a wide range of economic regulations is unconstitutional, but most believe that most such regulations are generally constitutional, even if they're unwise or oppressive. Few opponents of a war on Iraq think such a war is unconstitutional (though some of them might take the view that "international law enacts exactly what I want"). Few supporters of broader welfare programs think that failure to enact such programs is unconstitutional (though in the past some did argue that welfare programs were constitutionally required).

     I can think of lots of explanations (prompting by Supreme Court precedent, specificity of the text, and others) for this phenomenon, but none seems to be completely satisfying. What is it that leads people to treat every policy question in some areas as a constitutional one -- but conclude that in other areas, some proposals might be loathsome but constitutionally permissible?


SHIFTING ATTITUDES ABOUT COPYRIGHT? Philippe has asked for further explanation about one of my prior posts, and specifically my comment that there has been a "shift in attitudes" about copyright infringement in the last decade. Philippe questions whether a shift in attitudes has occurred, recalling the wild and crazy days of his infringement-filled youth:
When I was a college student (more than a decade ago) I cheerfully and aggressively ignored copyright laws, building up a massive collection of tapes of my friends' albums while they all taped mine. The idea that this presented legal or ethical problems wasn't even on the radar as far as I can recall.
I suppose any attempt to compare current attitudes with past attitudes will be biased by our own experiences. It's natural to base "what people used to think" on "what I used to think," and it's always possible that any one person's experience is idiosyncratic.

     With that said, my recollection is that when I was in college (about a decade ago), I legitimately purchased about 95% of the music in my collection. I was particularly into John Coltrane and Bill Evans back in those days, and I calculated that I could afford one new compact disc every two weeks. So, every two weeks I would trek up to CD Danny's on Nassau Street in Princeton and plunk down my $14.98 for a new CD, slowly building my collection one CD at a time. Sure, I could have made tapes from copies that friends had, and saved myself the money. But I didn't. Why? Part of it was that I liked the original album art and liner notes, and preferred the CD format. But part of it was that making a copy gave me a slightly uneasy feeling; I felt like I was stealing something that wasn't mine. I did it once in a while, but not very often.

     Perhaps I was the exception, and students like Philippe were the rule. But my und tanding is that the views I had back then are almost impossible to find on campuses today. The view I hear from students I talk to is that these days, the idea of paying for music seems, well, kinda weird. Music is just not something you pay for; it's something you get for free. That seems like a shift to me.


AFFIRMATIVE ACTION: We'll be hearing lots about affirmative action over the next year or so, now that the Supreme Court will decide the two Michigan cases. Listen closely to the chatter, and try to find someone whose opinion about the constitutionality of affirmative action doesn't replicate his or her opinion about the wisdom of affirmative action -- that is, someone who says either "affirmative action is a great idea, but it's a shame that the constitution doesn't permit it," or "affirmative action is a terrible idea, but the constitution allows it." Such people are very rare. One's constitutional thought has a way of closely tracking one's preferences as to outcome. That's why I've never been very interested in teaching or writing about constitutional law, and why I've always had a hard time understanding how so many smart people could take the field so seriously.


MARIJUANA A GATEWAY TO MIDNIGHT PIZZA? I know little about drug policy, but Mark Kleiman knows a lot, so when he talks, I listen. Check out summary of a Rand report that he says undermines the "marijuana is a gateway drug" hypothesis. Great substance there, but I also liked this particular item, which is quintessentially Mark:
[T]he gateway hypothesis must be classed with what Mark Twain called "vagrant opinions, living without visible means of support." (Unfortunately, the social safety net underlying vagrant opinions of this type is quite strong, with no work requirement or five-year time limit.)
But, of course, marijuana causes munchies and a sedentary lifestyle, and therefore contributes to the obesity epidemic -- doubtless reason alone to ban it, I'm sure.


STATE COURTS AND ABORTION RIGHTS: Jacob Levy responds to Slate's dig at conservative court-watchers.


EUROPEAN JEWS KILLED DURING WORLD WAR II: So here's a question for you -- which European country that was invaded by the Nazis saved the largest number of its Jews during World War II?

     Denmark, one person said over dinner, and it seems that the Danes saved virtually all Danish Jews (as I understand it, because of non-Jewish Danes' extremely brave and decent conduct); but that was only a fairly small total numerically -- the question calls for the largest number, not the largest fraction.

     The answer, of course, is the USSR. According to the best statistics that I could quickly find online, 2 million of the 3 million Jews in the USSR survived the War -- I haven't checked the quality of this data, but it seems consistent with what I generally know of the matter. These included my parents and grandparents: My maternal grandmother and my then-4-month-old mother were evacuated from Kiev to Siberia as the Nazi armies were approaching; my maternal grandfather was evacuated to the Urals, where he worked in war production; and my paternal grandparents and my father spent the war in besieged Leningrad. And the USSR wins the title even though Russia had long been one of the most anti-Semitic countries in Europe, and the Soviet regime was itself quite anti-Semitic. I don't know any details of its attitude towards Jews in the early 1940s, but I know that there was plenty of official discrimination against Jews -- from the infamous charges of a Jewish Doctors' Plot in the early 1950s on down.

     So what's the moral of the story? Maybe there isn't: Maybe this is just one of these odd trivia questions with a result that is unexpected but unenlightening.

     But maybe there is a moral. The USSR saved its Jews not through decency, love of justice, belief in equality, or any action focused on Jews as Jews. It saved them by successfully resisting the Nazis -- by fighting (often brutally) a brutal enemy, and losing 15% of its population, Jewish and non-Jewish, in the process. It's no shame that the Netherlands or Greece didn't do this; they couldn't. My family, though, is alive -- I am alive -- largely because the Russians could resist, and did.

     So perhaps the moral is grim, and not very ethically helpful: When fighting the Nazis, there is no substitute for victory.


NOT MOST, JUST 88-90 PERCENT: Saturday's New York Times published an interesting (and likely controversial) story on black academic achievement, particularly the research of Dr. John Ogbu. The story is well worth a read. After reading it, I began to wonder about the academic achievement of the school administrators, not just the students. Consider this excerpt:
Peggy Caldwell, a spokeswoman for the Shaker Heights City School District, said that minority families cared deeply about their children's academic achievement and the district was working with education experts to reduce the racial achievement gap. She noted that while Professor Ogbu called most of the black families in the district middle class, 10 to 12 percent live in poverty (emphasis added).


ANOTHER POEM FOR SHARDS: POEMS OF THE WAR: This one is the fourth item we've published (not counting the original W.H. Auden with which we began). Go here to see the previous ones, and to see the submission guidelines -- I'd love to get more good material.
Geldings, by Alan Sullivan

They used to celebrate only three things:
the birth of a boy, the emergence of a poet,
and the foaling of a blood mare.
-Ibn Rashiq

Because they loved their horses
more than their swaddled wives,
they sang the poets' praises
of brief but impassioned lives
while squatting on their hassocks
and plucking polished ouds
or loading shot in flintlocks
to settle tribal feuds.

Today their grim descendants
truck-bomb embassies
to prove their independence
from Satanic dynasties,
yet no jihad or fatwa
purges polluted souks
where portraits of Madonna
outsell the Prophet's books.

To me it scarcely matters
if mullahs preach in skirts
or harems trade their chadors
for lycra pants and shirts.
Sheiks are counting profits
like geldings courting mares,
but I mourn for the poets,
not for the billionaires.

[alan at; originally published in Chronicles]


FLY AROUND: Readers who want more background on the endangered fly mentioned in this post should check out this Sneaking Suspicions post.


ATTITUDES AND TECHNOLOGY. Orin reported that "downloading copyrighted works using the university's network has become part of the student culture. This isn't news to those of us who follow these issues, but the shift in attitudes in the last decade still strikes me as remarkable." I find myself curious about what Orin means, for I have not detected a shift in attitudes; I have only detected a shift in technology. When I was a college student (more than a decade ago) I cheerfully and aggressively ignored copyright laws, building up a massive collection of tapes of my friends' albums while they all taped mine. The idea that this presented legal or ethical problems wasn't even on the radar as far as I can recall. The only difference I can see now is that this indifference to law has been married to a technology that increases the scale of its consequences. Am I wrong?

UPDATE: For a take somewhat similar to mine but applied to software, see what Duncan Frissell has to say.

Monday, December 02, 2002


TALKING ABOUT SLIPPERY SLOPES THIS FRIDAY AT UCLA: I thought I'd mentioned this already on the blog, but I can't find it my archives, so I thought I'd take the liberty of mentioning it again: I'll be talking about my Slippery Slopes article this Friday, December 6, from 1 to 3 pm, in the Marschak Colloquium program here at UCLA (Anderson School of Management, room C-301). If you're around L.A. and want to check this out, by all means please come -- it's open to everyone.


LIBRARY REFUSES TO LET UNPOPULAR GROUP MEET: The Baltimore County Public Library system has apparently refused to rent a room "to the World Church of the Creator," "an anti-Semitic, anti-black organization that works for 'the survival, expansion and advancement of the white race.'" "Library Director James H. Fish . . . said the decision had nothing to do with the library's assessment of the views of the World Church of the Creator." Rather, the library seems to be arguing, the decision was based on the concern that letting the group meet at the library "would pose a threat to the safety of staff, patrons and property."

     Assuming that the library was indeed rejecting the group just because it's controversial -- possibly controversial to the point of its presence leading to demonstrations and perhaps ultimately violent clashes -- and not based on its viewpoint, we have a thorny and undecided question on our hands. The government may not suppress speech in "traditional public fora" (sidewalks, parks, and the like) or on private property because it might be controversial or even because it might lead to violence. But when may the government do this as to speech on its own property, even in places that the government has generally voluntarily opened up to speech, so-called "designated public fora" or, in some situations, "limited public fora"? (Here, it appears that space in the library has generlaly been open to groups who are willing to pay the modest room rental fee.)

     Lower courts have had to grapple with this for some time, without much of a clear rule emerging. Compare, e.g., Hopper v. City of Pasco (9th Cir. 2001) with DiLoreto v. Downey Unified School Dist. (9th Cir. 1999). The Fourth Circuit, where Baltimore County is located, grappled with a similar issue 30 years before, in National Socialist White People's Part v. Ringers, 473 F.2d 1010 (9th Cir. 1972), and held in favor of a group that wanted access to a high school auditorium that had been traditionally open for groups to meet; curiously, the group there was also racist and anti-Semitic, though this doesn't affect the constitutional analysis. But the court reached the conclusion only after it concluded that there wasn't enough evidence that the Nazi meeting would "endanger the property" by "result[ing] in violence and damage to the facilities" -- perhaps the result might have been different if indeed there was serious evidence that the property was endangered. What's more, there's been a good deal of First Amendment caselaw in the past 30 years, and while most of it has taken a broad view of free speech protections, the courts have at times also had some sympathy for the government's rights as proprietor.

     So the bottom line: The speakers' case here would be fairly strong, if the library has generally opened up the meeting room for public access, and if there's no specific, articulable reason to anticipate that the meeting will lead to violence. But the situation isn't completely clear. (Thanks to Glenn Reynolds for passing along the news story.)


CHAVEZ V. MARTINEZ PREDICTION: After thinking some more about the case while preparing for this morning's radio spot, I feel confident enough making a prediction:
  • Result: Chavez wins; the Supreme Court holds that failure to comply with Miranda simply means that the confession will be unusable at trial -- if the confession isn't used at trial, there's no violation of the Fifth Amendment and thus no violation of Miranda and no right to sue for damages. (Beatings of suspects would still be legally actionable, but not simply questioning without Miranda warnings, or continued questioning after the suspect says "I don't want to talk more," or "I want to call my lawyer.) My confidence in the prediction: High.

  • Lineup: I'll go out on a limb and say 9-0, partly because even Justice Thurgood Marshall, writing in dissent in Quarles v. New York (1984), seems to have taken this view. My confidence: Moderate.

  • Alternate lineup: If it's not 9-0, it might be 7-2, with Justices Stevens and Ginsburg dissenting. My confidence in this, if I'm wrong about 9-0: Relatively slight; I just think this is the likeliest of the non-9-0 outcomes, but I can imagine others that are also plausible.


DIVERSITY, RACIAL PREFERENCES, AND RELIGIOUS PREFERENCES: Now that the Court is going to confront the question of racial preferences in university admissions, I thought I'd bring up again my small contribution to the academic debate. (By the time I got to the field, virtually every thing worth writing about racial preferences had already been written -- so this isn't by any means the most important argument, just my one relatively original one.) The entire article (fortunately only 18 pages long) is available on the Web, but here's a brief excerpt:
     Imagine the following statement from a public law school's admissions office:
     Much to our regret, we have found that many large religious groups -- for instance, fundamentalist Christians and devout Catholics -- are grossly underrepresented among our students compared to the public at large. We feel this deprives our students of the experiences, outlooks, and ideas that a diversity of represented religions can provide; it impoverishes discussions of such important topics as the law of abortion, the Establishment Clause, homosexuality, and others.

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

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

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

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


I REALLY REALLY LOVE HIM! December is the season for jewelry advertisements. A typical TV commercial involves a woman who loves a man, but in a tentative, wishy-washy sort of way, until he gives her very expensive jewelry. Now she really loves him, all because of that diamond.

     Intellectuals often exaggerate the power of advertisers to shape consumer preferences. From what little I know of the advertising business, it's all about figuring out what consumers want and then giving it to them. So there must be plenty of people out there who find the message of these commercials persuasive -- women who believe that the size of the diamond is an indicator of how much they should love the guy who gives it, and men who, understandably, strategize accordingly. How utterly pathetic.

     It's not too hard to come up with a functional explanation, in which the size of the diamond is a signal of either the man's level of commitment or the standard of living the woman can expect after marriage. But diamond size doesn't seem an especially good signal of either, particularly if (as in the commercials) the man and woman are already in the midst of a long-term relationship, in which both of the qualities the diamond ostensibly signals can be directly observed. And if a signal is needed, why jewelry? Why not, say, lavish parties for the woman's blood relatives, or the ceremonial burning of currency? These human beings -- they sure can be hard to figure out.


INTERACTIVE CHAT ON THE SUPREME COURT AND RACE-BASED AFFIRMATIVE ACTION: I'll be doing this at starting 11 am Pacific today. Please note that my responses will likely be pretty short and not as detailed as I might like them be -- I think these chats call for pretty brief answers.


SORRY, WRONG BLOGGER: When replying to a blog post, please look closely at who the author is, and e-mail that particular author. As you might gather, I've been getting a few misaddressed messages, so I thought I'd remind people about this.


DAVID FRUM ON AL GORE'S NEW BOOK ABOUT FAMILIES: I haven't myself read the book, or the review that Frum quotes -- but if it's accurate, then it's a quite striking self-indictment by Gore.


A BIT MORE ON WHAT CONSTITUTES A LOADED GUN IN CALIFORNIA: My sense of the matter -- that a gun is treated as loaded pretty much when it's loaded (except for some special rules applicable to certain state government buildings) -- is confirmed by People v. Clark, 45 Cal. App. 4th 1147 (1996) (registration required to read the case on findlaw). The view that a gun is loaded whenever it's stored near the ammunition (even when the ammunition isn't physically attached to the gun) seems to be a myth, though remember that even myths can get you in trouble if police officers believe them.

     Some readers mentioned that some believe that even a loaded magazine can itself be considered a loaded gun, even if it's not inserted into the gun or otherwise attached to the gun. That seems to be not so; the statute specifically discusses "loaded firearms," and Cal. Penal Code. sec. 12001(b) defines "firearm" as "any device, designed to be used as a weapon, from which is expelled through a barrel a projectile by the force of any explosion or other form of combustion." Magazines clearly don't qualify under that definition.

     The only slight support I saw for this theory is a statement in Rupf v. Yan, 85 Cal. App. 4th 411, 432 n.7 (2000), that "Common statutory definitions of 'loaded' firearms included loaded and attached magazines or clips." But in context, it seems that this was just a clumsy way of saying that a firearm can be considered loaded if it has a loaded magazine or clip attached to it. Both the cases and the statute that Rupf cited following this sentence certainly took this view, and the text of Rupf likewise involved weapons that had loaded magazines attached to them.

     Probably not terribly exciting to most blog readers, but since I blogged about this before, I thought I'd fill in some more details.

UPDATE: A reader pointed me to a case, People v. Hale, 43 Cal. App. 3d 353 (1974), that some apparently cite for the proposition that a loaded magazine is treated as a loaded weapon under California law. But that case didn't discuss whether a weapon is loaded -- it held only that "A firearm disassembled into two or more parts, can nevertheless constitute an operable weapon," and thus covered by the law controlling carrying of concealed firearms. The law governing the carrying of loaded firearms wasn't involved here (and in context "operable" meant simply "assembled to the point that it qualifies as a firearm," and not "loaded"). The same is true of the other California case that Hale cited as a precedent, and of the similar Florida case that was cited.

      I feel quite confident about this, especially given the text of the statute, and the more recent Clark decision.


THE GROWING EUROPE-AMERICA DIVIDE: InstaPundit has a great excerpt on this, from an article in The American Enterprise. I wish this weren't true, but I think it is.

     Competition is the nature of humanity (and probably of other species); Europe and America cooperated in the competition against the Soviets, but now we're competing against each other. Perhaps defense against Islamo-fascism will bind us together again temporarily, but it doesn't seem that likely right now.

     This competition need not be bad; with luck, for instance, it won't be violent. But it should remind us that we ought not presume that European words of advice or admonition are sound or even disinterested, any more than IBM would presumptively follow HP's advice about how to make computers.


RADIO: I should be on KPCC-FM (89.3) today at 9 am (likely rebroadcast at 7 pm) talking about Chavez v. Martinez, the Court's latest Miranda case -- here's my quick summary of the issue, and why it's surprisingly important.

Sunday, December 01, 2002


"DOWNLOADING HAS BECOME ALMOST A WAY OF LIFE" on college campuses, the L.A. Times reports in Monday's paper. More specifically, dowloading copyrighted works using the university's network has become part of the student culture. This isn't news to those of us who follow these issues, but the shift in attitudes in the last decade still strikes me as remarkable. Thanks to reader Phil Carter for the link.


RETURN OF THE FLY: The New York Times has an interesting article about the controversy over a little critter, the Delhi Sands Flower-Loving Fly. The problem is that the fly is officially listed as "endangered" under Endangered Species Act (ESA), a designation which triggers restrictions on activity which could potentially harm members of the species, including the modification of habitat. Its only habitat is prime real estate in southern California, so the fly's endangered status gives developers and private landowners cause for concern. The land-use restrictions are intended to save the fly from extinction. The kicker? Experts predict the fly will go extinct irrespective of what measures are imposed. In other words, in the case of the fly the ESA imposes substantial costs for little, if any, gain.

Environmental and constitutional law junkies may remember the fly for its starring role in this case a commerce clause challenge to the ESA's protection of the fly in the U.S. Court of Appeals for the D.C. Circuit. The court rejected the constitutional challenge, 2-1, but no rationale commanded a majority of the panel. This would suggest that the constitutionality of the ESA -- or at least its application to intrastate species like the fly -- may still be an open question in the D.C. Circuit. Interestingly enough, the court heard oral argument in a case raising this issue earlier this year. Stay tuned . . .

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