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Saturday, January 04, 2003


ACOUSTIC GUITAR: As my friend and fellow lawprof Jack Balkin pointed out, words sometimes acquire qualifiers that were once thought unnecessary, but that changing technology or society now requires -- we now talk about "acoustic guitars" even though before the advent of electric guitars, guitars were by definition acoustic.

     Is there an official name for this term, and, if so, can you please e-mail it to me at volokh at, preferably together with a link to a definition that establishes the term's meaning? (No need for speculations or suggested names -- I'm just looking for any name that has already been established.) Thanks!

UPDATE: Thanks to Peter Daniels, Ron Hardin, Ted Arrowsmith, Steven Kurtz, Keith Spurgeon, and Gary O'Connor for passing along the answer, which is "retronym." Other examples: Silent movies, hand tools (as opposed to power tools), analog watch, snail mail, and print edition.

     Incidentally, one reader conjectured that I needed the answer for a legal brief, to help me make a legal argument. This is a plausible conjecture, but one that vastly overestimates the ratio of professional research to idle curiosity in my life. This question was entirely the latter.


UNIVERSITY OF CHICAGO STUDENT INDICTED: 19-year-old Igor Serebryany, a student at the University of Chicago, has been indicted for allegedly copying confidential DirecTV documents he came across during a part-time job and sending the documents to various hacker websites. The case has been indicted under the Economic Espionage Act of 1996, which prohibits theft of trade secrets. Although I haven't been able to find a copy of the indictment, the claim seems to arise under Section 1832(a), which punishes
[w]hoever, with intent to convert a trade secret, that is related to or included in a product that is produced for or placed in interstate or foreign commerce, to the economic benefit of anyone other than the owner thereof, and intending or knowing that the offense will injure any owner of that trade secret, knowingly . . . [and] without authorization copies, duplicates, sketches, draws,photographs, downloads, uploads, alters, destroys, photocopies, replicates, transmits, delivers, sends, mails, communicates, or conveys such information.
It's worth noting that this law is broader than the criminal sections of the DMCA, which was charged in the recent Sklyarov/Elcomsoft prosecution. Unlike the DMCA, the EEA does not require that violations are "willful," and does not require that the violations are for the defendant's commercial advantage or private financial gain.

Thursday, January 02, 2003


CONSERVATIVE EXCESSES: I ran across a Paul Craig Roberts column a couple of weeks back that struck me as rather troubling, and worth commenting on. It makes three of the classic mistakes of a certain form of conservative commentary: (1) exaggerating the degree to which the Left (of various forms) is suppressing speech, (2) exaggerating the harm caused by race preferences, and (3) blithely ignoring the problems of the past, even when suggesting that the present is somehow much worse than the past. Regular readers may know that I do think some on the Left try to improperly suppress speech, with varying degrees of successes; that race preferences are indeed bad; and that some criticisms of the past are indeed overstated. But as with all things, even good points shouldn't be taken too far -- and this column carries them vastly too far.

     The column, which I believe was written shortly before Trent Lott stepped down as Majority Leader, begins as follows:
For three decades, the United States has been descending into a feudal legal order.

In the ancient feudal system, the differential rights in the legal system were class-based. In the new feudal order, rights are determined by race, gender and handicapped status. In the old feudalism, the people with the most rights were descendants of warriors. In the new system, it is the victim who has superior rights. . . .

In the old feudal system, there were no First Amendment rights. The legally privileged were free to engage in hate speech and to verbally harass others, but any commoner who replied in kind could be sued or have his tongue cut out.

Senate Majority Leader Trent Lott still has his tongue, but just barely. He used his tongue in a way that gave offense to the new aristocrats. Black Americans have been granted the right to be offended by any words they don't like and to extract retribution. The offending speaker finds himself forced into contrition and humiliating apologies. Often the penalty is a destroyed career. . . .

The spectacle proves -- if proof is any longer required -- that the First Amendment has been trumped by the race-based privileges of the new feudalism.
Wow, "Black Americans" are "the new aristocrats". Quite a remarkable feudal system, that: Aristocrats have a lower standard of living than the "commoners." They have a lower life expectancy. More of them are arrested and imprisoned, per capita, than commoners.

     Now the reasons for all this are complex, and as I've argued before, they cannot all be blamed on racism, nor can they, in my view, justify race preferences. But let's keep a sense of perspective here: Whether or not one opposes race preferences, calling "Black Americans" "the new aristocrats" is a tremendous exaggeration of the injustices (real as they are) created by race preferences.

     What about the suppression of commoners' speech rights? Well, here's a little factor that might be relevant: Trent Lott is a political leader. Free speech doesn't mean that political leaders may offend potential constituents, with no fear of political repercussions. In fact, the great advance from feudalism to democracy came from the fact that political leaders are now subject to criticism, and to removal -- including removal for expressing views that enough voters find reprehensible.

     Later on, the column says:
Contrast the excoriation of Lott for his harmless remarks with the respectful reception given a few days before to black Vanderbilt professor David Farley's hate-filled outburst against white Southerners: "The problems that wrack America to this day are due largely to the fact that the Confederacy was not thoroughly destroyed, its leaders and soldiers executed. . . . Every Confederate soldier deserved not a hallowed resting place at the end of his days but a reservation at the gallows."

Noel Ignatiev, Farley's counterpart at Harvard, is not content with exterminating only Southerners: "The key to solving the social problems of our age is to abolish the white race."

No one demanded apologies and resignations from Farley and Ignatiev. The presidents of Vanderbilt and Harvard responded to the blatantly hateful speech with assurances that the hate-mongers were free to speak insensitively as long as it was about whites.
Here's my guess: If a Senate Majority Leader were foolish enough to say what Profs. Farley and Ignatiev said, they'd have been out on their ears as fast as Lott -- and rightly so. Conversely, if a professor said what Trent Lott said, he wouldn't have "ha[d] his tongue cut out," and likely even wouldn't have lost his job. Yes, occasionally the Left does try to get such people fired; it generally fails, because the First Amendment does indeed protect professors who offend blacks as well as those who offend whites. But in any event, the comparison in the column utterly fails, as does the claim that the criticisms of Lott were somehow a First Amendment issue.

     So we have hysteria about the supposed "aristocrat" status of blacks, and the hysteria about the supposed suppression of First Amendment rights. But the column doesn't just defend Lott's right to say what he said -- it defends his statement itself. At first, it sounds like it's defending the statement as just a meaningless pleasantry:
It was Lott's way of doffing his hat to the longest serving senator.

Before the new feudal age, Lott's words would have been understood as tribute to a centenarian. But we are so thoroughly conditioned to the new feudalism that race-baiters Jesse Jackson and Al Sharpton scarcely needed to open their mouths before "powerful" white males, including the president of the United States and the editorial page editors of the Wall Street Journal and New York Times, were doing their job for them, denouncing Lott for being a segregationist and giving offense to blacks.
But then it proceeds to defend the Dixiecrats on the merits:
It was left to the libertarian, Llewellyn Rockwell, to point out that, fundamentally, states' rights is about the Tenth Amendment, not segregation. Thurmond's political movement sought a return to the enumerated powers guaranteed by the Constitution to the states. . . .

Lott's tribute to Thurmond is easily defended on principled constitutional grounds. However, to speak against the neoconservative Republican and liberal Democrat ideal of a powerful central government is as impermissible as to utter words deemed to offend the legally privileged.
Interesting, that: Did Thurmond's political movement also seek a return to, say, the Fourteenth Amendment, also part of the same Constitution, which required states to give blacks the "equal protection" of the laws, something that the 1948 South notably neglected to do? What about the Fifteenth Amendment -- were the Dixiecrats also enthusiastic about protecting blacks' constitutionally secured rights to vote? In fact, what seems more like a system of entrenched class privilege in which some aristocrats (granted, often a majority, unlike in real feudalism) lord it over the downtrodden commoners -- 1948 Dixie (or 1948 America more broadly), or 2002 America, with all its warts?

     The Dixiecrats were no true Constitutionalists; and neither is the column a defense of true Constitutional principles. (Incidentally, many people speak out against a powerful central government and find nothing "impermissible" about it, either legally or socially. On the other hand, if they speak out against a powerful central government and at the same time defend the states' power to enforce Jim Crow -- or praise others whose goal was to do so -- then they naturally arouse opposition.)

     The column closes with this:
The only parts of the Constitution that still exist are the amendments that permit the income tax and direct election of senators -- amendments that centralized power in Washington. The land of the free is a lost civilization.
Interesting: When was the land of the free doing better than now? 1948, when blacks weren't free to use the same public schools or public restrooms as whites? 1948, when neither whites nor blacks were free to marry the other race? 1948, when one fundamental right of the post-feudalist order -- the right to vote -- was denied to millions of blacks? 1948, when the First Amendment that the column so praises was on balance considerably less protective than it is today? 1948, when state governments were routinely denying basic Bill of Rights protections to blacks (and, to a considerable extent, to whites)? Or, if you want to go before the income tax and the direct election of senators, 1900, when pretty much all the same was done? 1860 or before?

     Seems to me that, race preferences, growing federal power, and the occasional excesses of the Left notwithstanding, we are in most important ways more free now than we ever have been in the past. But in any event, it's certainly wrong to say, as the column says, that we're on balance vastly less free now than we have been in some mythical imagined golden age.


WHY DO LAW SCHOOLS COST SO MUCH? George Leef thinks that the ABA is to blame for intervening in the market for legal training, and Stuart Buck finds the explanation plausible. I'm certainly no fan of the ABA's law school accrediting process, and I think Leef's explanation is at least partially right. At the same time, it seems worth nothing that there is another explanation: law schools tend to charge a lot of money because many young law school graduates can earn very high salaries. Going to law school can add a lot to a student's future salary prospects, which makes it worthwhile for many law students to take out loans to pay for it-- even loans totaling more than $100K. Put another way, law school is not a bad economic investment, and students generally realize that. This allows law schools to keep prices (er, tuition) up.

Wednesday, January 01, 2003


SENATOR FRIST TO THE RESCUE: I'll bet Trent Lott couldn't do this.


TEXTUALISM, PRIVACY, AND INTERSPOUSAL WIRETAPPING: Yesterday a panel of the Eleventh Circuit called for the judges of that Circuit to overrule en banc a 1974 case that had held that the Wiretap Act does not apply to interspousal wiretapping cases. Most interspousal wiretapping cases involve a jealous husband who places a "bug" on the family telephone to try to catch his wife cheating on him. The wife finds out that her calls are being secretly recorded and sues her husband, often after divorce proceedings have begun. (Disturbing facts, aren't they?) In 1974, the predecessor Fifth Circuit had held that the Wiretap Act does not prohibit such interspousal wiretapping -- despite the plain language of the Wiretap Act -- because Congress did not wish to get involved in "areas . . . of the marital home and domestic conflicts." Simpson v. Simpson, 490 F.3d 803, 805 (5th Cir. 1974).

     Yesterday, a panel of the Eleventh Circuit (consisting of Judges Carnes, Hull, and Ninth Circuit Senior Judge Arthur Alarcon) blasted the Simpson opinion using unusually forceful language. See Glanzer v. Glanzer, -- F.3d --, 2002 WL 31890981 (11th Cir. Dec. 31, 2002) (I'll add a link when I find a copy on the web, but the 11th Circuit site doesn't seem to have one up.) The Court was faced with another interspousal wiretapping case brought by a woman Elizabeth Glanzer against her ex-husband James Glanzer, who had tapped their phone. The Court recognized that it was bound by the earlier Simpson opinion, but urged the Circuit judges to overrule Simpson and allow the wife's wiretapping claim against her ex-husband to go forward. "Although we are bound by the prior panel precedent rule to follow Simpson regardless of our misgivings about it," Judge Carnes wrote, "we are not required to agree with that decision, . . . and we don't." Judge Carnes explained in considerable detail why the husband's wireta ping violated the Wiretap Act (also known as 'Title III'), and why the earlier panel's view that interspousal cases deserved different treatment was without any textual basis in the statute. Here's an excerpt:
     The Simpson court . . . recognized that "the naked language of Title III, by virtue of its inclusiveness, reaches this case." 490 F.2d at 805. Apparently unsettled by the sight, the court set about to clothe that naked language in legislative history and policy considerations. That it should not have done.
      . . .

     The Simpson court did not stop with the plain language of Title III as it should have, but after acknowledging the inescapable meaning of that language, it proceeded to attempt an escape based upon its own view that regardless of what Congress had said, "Congress did not intend such a far reaching result, one extending into areas normally left to states, those of the marital home and domestic conflicts." 490 F.3d at 805 (footnote omitted). In seeking relief from the plain meaning of the statutory language the Simpson court scoured the legislative history of Title III, but found nothing to affirmatively support its thesis that Congress really did not intend to prohibit interspousal wiretapping. In fact, the few indications about this matter in the legislative history show an awareness that use of covert recording devices in domestic relations or marital situations was widespread and unjustified. See id. at 807 n.11 (quoting testimony at a committee hearing that one of the two major uses of electronic surveillance equipment was in domestic relations investigations) . . . .

     Even though each specific discussion of the matter it could find in the legislative history lends no support to its theory, and actually seems to point the other way, the Simpson court still concluded that Congress did not mean what it said because the legislative history doe not sufficiently corroborate, in that court's view, the plain meaning of the statutory language Congress chose to express its intent. See id. at 809 (acknowledging that statements in the legislative history "suggest congressional awareness that private individuals were using electronic surveillance techniques within their own homes," but concluding that "they do not support the proposition that Congress was concerned that such activities took place"). The Simpson court essentially reasoned that Congress did not intend what it said in the statute because it did not say the same thing with equal clarity in the legislative history. See id. at 805. That reasoning turns legislative interpretation upside down. There is no requirement that Congress, in order to prevent judicial re-writing of statutes, must not only speak in a clear and straightforward manner in statutes but must also lard the legislative history with statements proving that it really, really did mean what it said in each statute. It is not the function of the judiciary to determine whether Congress has devoted enough thought and consideration to what it has enacted. We are to apply statutes, not reconsider them.
The Court concluded:
     That the Simpson decision has managed to survive as the law of this circuit for nearly three decades shows that inertia is more than just a law of physics. The time has come to overturn that decision, and rehearing en banc should be granted in this case for that purpose.
Quite a strongly worded opinion, and quite correct on the merits, too.

Monday, December 30, 2002


SKYROCKETING -- ALL THE WAY UP TO 4 FEET HIGH, MAYBE 5: Howard Fienberg explains what's behind the Canadian Press's claim that "The number of Americans making refugee claims in Canada has skyrocketed since the Sept. 11 terrorist attacks, according to statistics from the Canadian Immigration and Refugee Board.":
"The number of Americans seeking refuge in Canada increased by 135 per cent before the end of October over the entire previous year."

How shocking! Until you find out the real numbers, not just the percentage increase:

"From January to the end of October this year, 191 filed refugee claims citing persecution in the U.S., compared to 81 in 2001. In 2000, 85 had sought refugee status, already a huge jump from the 40 that sought refuge in 1999." . . .
And after what Fienberg correctly describes as "a lecture on the oppressive and racist police state that America has become since 9-11" in the story, we get a glimpse of why some Americans might seek refugee status:
Vancouver immigration lawyer Phil Rankin said most of the American refugee claimants he's dealt with suffer mental illnesses that lead them to believe they are persecuted in the United States. Others are trying to avoid prosecution south of the border. None of them are successful, he said. "Nobody's going to buy that the United States is not a democratic place," Rankin said. "The problems that a lot of people have are legal. . . . That doesn't make you a refugee." . . .
A very good post from a very good blog.


BIOLOGICAL ESSENTIALISM: Slate carries a rather odd column on cloning today. The claim at its heart is that:
A clone is not, by any stretch, the offspring of the woman who bears it. It's the identical twin of whoever ponied up the original DNA strand.
From this, the column infers that "the idea that cloning humans is a solution to anything at all rests on a colossal mistake" (presumably because it produces siblings, not offspring), that "the primary market for this kind of cloning is presumably infertile couples for whom standard treatments have not worked, a little lesson in genetics ought to dry up the revenue stream quickly" (presumably because those couples want offspring, not siblings), that the woman who carries the clone to term is a "poor deluded victim of a benighted scientific culture," and that "Eve, for example, upon reaching the age of consent, can safely have an affair with [the husband of the woman who bore her], if they both should choose, for this would not be father-daughter incest but merely a case of a man sleeping with his wife's sister. Discomfiting, perhaps, but not beyond the pale."

     This strikes me as deeply wrongheaded, because it assumes that the heart of the parent-child relationship is the child's status as offspring (in the sense of someone who is biologically related to them as a biological son or daughter would be), and that this is what all infertile couples want. But it seems to me that such couples want not offspring, but children -- young humans that they can raise and love. Many of them might want children who are genetically related to them (and that would be especially true of people who seek cloned children, instead of adopting); but even there, lots of people are quite happy if the biological relationship is something other than biological parent / biological offspring. That's why many infertile couples are happy to get sperm or egg donations from family members.

     And of course we also see this reflected in modern attitudes towards incest: I suspect that to most people today, at least a large part of the "beyond the pale" element of a father having an affair with a daughter has to do with their familial relationship, not their purely biological one. (We see evidence of this in the outrage about Woody Allen's relationship with Mia Farrow's daughter, and I suspect that we'd see much more outrage about a similar relationship where the man, unlike Woody Allen, had really raised the girl from birth.)

     So cloning is an inadequate "solution" only if the problem is "How do I bear a child who's biologically related to me as an offspring would be?" If the problem is "How do I bear a child who's biologically related to me, and whom I can raise as my child?," then cloning might well be a plausible solution (though there may still be a variety of problems with it, starting with the likelihood that it just isn't possible just yet). And of course if the problem is something else -- such as "How do I bear a child who's as similar to me as possible?" (a goal that I think people shouldn't seek, but that's a separate question) -- then cloning might well be the most effective possible solution.

     Again, there are lots of plausible arguments (pragmatic and ethical) against human cloning; I don't mean to either accept them or reject them here. But the notion that somehow there's "a colossal mistake" or a "delu[sion]" at the heart of people's attitudes, because a clone is biologically a twin rather than a traditional offspring, strikes me as itself being a mistaken argument.


TECHNOLOGY AND THE FOURTH AMENDMENT: I'm currently writing a law review article that argues (in Part III) that courts are poorly equipped to try to regulate privacy in new technologies using the Fourth Amendment prohibition against unreasonable searches and seizures. The gist of the argument is that the Fourth Amendment traditionally has given courts an effective means of regulating law enforcement because the rules of the physical world are fixed, and the social meaning of different actions is well understood and widely shared. For example, the constitutional rules governing automobile traffic stops are extremely detailed, and courts have proven effective at generating these rules because the basic dynamics of a traffic stop have remained stable for decades and are easily understood.

     In contrast, I argue, the latest technologies are constantly in flux, and the social meaning of different technologies and their regulation can vary considerably over the years (and with some technologies, over a matter of months). As a result, prospective legislative rules rather than slowly-developing judicial rules are likely to prove more effective at regulating privacy in new technologies. In fact, I argue, past judicial efforts to try to determine the social meaning of different technologies often have become outdated quite quickly.

     One provocative example of this is Katz v. United States itself, the 1967 case that is often viewed (thanks mostly to Justice Harlan's concurrence) as the first major decision of the modern Fourth Amendment. Katz considered whether the police violated the Fourth Amendment when they taped a microphone to the top of a pay phone that the defendant was using to place illegal bets. The Court ruled that the answer was "yes." This excerpt is generally understood to be the heart of Justice Stewart's somewhat cryp ic majority opinion:
One who occupies [a pay phone], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world. To read the Constitution more narrowly is to ignore the vital role that the public telephone has come to play in private communication.
What's interesting about this excerpt, at least for my purposes, is that 35 years later the social importance of the regulated technology (pay phones) has changed. The public telephone no longer plays a "vital role . . . in private communication." In fact, people rarely use public telephones today. Instead, people use cell phones.

      Of course, this doesn't mean that Katz was wrongly decided; in fact I think it was quite correct, for reasons I explain in detail in the paper. And I recognize that I'm taking the Court at face value here, accepting that the "vital role" of the public telephone actually impacted the Court's conclusion, which may or may not be true. However, at a minimum I think the example does point to the difficulty that courts face trying to assess just how "vital" a particular technology (or use of a technology) is and will be in the future. Perhaps courts should stick to traffic stops, and approach new technologies with a bit more caution.


LAW PROFESSORS AND THE DEATH PENALTY: The Associated Press is reporting that over 400 law professors have signed a letter to Illinois Governor George Ryan stating that it would be "justified" if he granted clemency to all of the prisoners on death row in Illinois. According to the AP story, the letter argues that it is within the Governor's power to grant across-the-board clemency (something no one seems to dispute anyway).

     I haven't been able to find a copy of the letter on-line, and it's hard to make much of the story without first seeing the letter itself. I wonder, though, why is this letter newsworthy? I take it as well known that the majority of law professors personally oppose the death penalty. I wonder if this story simply reflects one of the odd truths about media coverage of academia: the opinions of a bunch of people are just the opinions of a bunch of people, but the opinions of a bunch of people with faculty appointments can be pitched as the considered views of "the experts."

     UPDATE: Here's the letter. Thanks to reader John Collins for the link.

Sunday, December 29, 2002


OH, ONE OTHER THING. Below I recorded my much-anticipated predictions for 2003, but I failed to mention one of some significance: we will receive our first contact from extraterrestrial life. (Granted, my odds of being wrong here seem high; but if it happens it would be cool to have predicted it.)


ELSEWHERE IN EASTERN EUROPE: Ukrainian parliamentarians damage each others' shoes:

[A] letter [from opposition lawmakers to the speaker of the Ukrainian parliament] claims that, during a wild fracas that erupted in the Verkhovna Rada [parliament] on 12 December . . . [deputy Hryhoriy] Surkis struck opposition leader Yuliya Tymoshenko. Meanwhile, Surkis told journalists that it was Tymoshenko who "intended to beat him." Surkis, widely believed to be Ukraine's wealthiest oligarch, added that Tymoshenko kicked him in the leg, trying "to damage his only new shoes." The 12 December brawl in the Verkhovna Rada was sparked by a second attempt on the part of the pro-government majority to dismiss National Bank Governor Volodymyr Stelmakh and install Serhiy Tyhypko in the post.

Meanwhile, here are government authorities in the Czech Republic unclear on the concept (my emphasis). In fact, even the defenders of property restitution are unclear on the concept, though for all I know, maybe this has something to do with the legal standards for restitution in the Czech Republic:

Jewish communities in the Czech Republic have appealed to the government in a bid to convince the state to return about 20 buildings owned by Jews in the past . . . . The structures include synagogues in Louny, North Bohemia, and in Slany, Central Bohemia, that currently house district archives. "We are not saying that they [the archives] cannot be there. We only want to own the synagogues; we would like to get a minimum rent for their maintenance," Kraus said. In Kolin, about 50 kilometers from Prague, local authorities have refused to return the local synagogue, saying no Jewish families live in that city. Kraus rejected that argument, saying that after the Czech Republic joins the EU, Jews might move into town.

Hmph. One cool thing in Eastern Europe is that former Bulgarian king Simeon II, recently elected prime minister of Bulgaria, now goes by the name of Simeon Saxecoburggotski, a Bulgarianization of the house of Saxe-Coburg and Gotha.


INTERESTING NEWS FROM RUSSIA: The Russian parliament (Duma) is considering a bill making Russian the official language of Russia:

[T]he bill requires that Russian be used in all official contacts and bans "foreign words that have commonly accepted Russian equivalents" as well as "vernacular, disdainful, or foul" language. However, it does not specify how the law would be enforced or how language offenders would be punished. . . . [C]ontrary to earlier speculation, the latest version of the bill does not impose fines for distorting the Russian language in public. . . . [S]ince the Duma approved the bill in the first reading in June, deputies have loosened proposed restrictions on journalists and television personalities, who would be able to use prohibited language if it is "an inalienable part of an artistic concept."

I predict a surge in artistry among the Russian public. In other news, Russia has been kicked out of the global freight-insurance system because "an instrument of international trade has been turned into an effective means of defending organized crime. . . . More than 75 percent of all violations [of rules regarding insurance payouts] take place in Russia." Also, Russian nationalist Boris Mironov dislikes Jews, but he doesn't want to pit ethnic groups against each other:

He acknowledged that he dislikes Jews, asking rhetorically, "What [ethnic] Russian person can like them after what they did to Russia?" But Mironov rejected the slogan "Russia for ethnic Russians," which in his view sets Russians and other "native peoples" (such as Tatars and Buryats) against each other. He defined "non-native peoples" as groups represented by foreign states, such as Israel, Armenia, Azerbaijan, or Georgia. Mironov advocated depriving "non-native peoples" of the right to vote, even if they were born in Russia and their ancestors lived in Russia for centuries, on the grounds that they are "genetically disloyal."

Link through Radio Free Europe/Radio Liberty.


NATIONAL MINORITIES AND CRISIS ENVIRONMENTALISM: Here's an interesting article on Poland's Bialowieza National Park and how its expansion is favored by Polish and international environmentalists but opposed by the local Belarusian minority which actually lives there and benefits from the "local forestry industries and the traditional gathering of forest fruits," which would be limited or banned if the park is expanded.

On the one hand, it's a nice case study in how "traditional" environmental movement concerns and "traditional" "indigenous peoples" concerns easily come into conflict, and it doesn't make the environmental groups look too good. (But see this response from a World Wildlife Fund guy, and the rejoinder by the original author.)

On the other hand, I'm not the hugest fan of positive arguments based on the collective rights of indigenous peoples -- the arguments are really about people's ability to make a living and are only tangentially related to ethnic issues; talking, as the author does, about "forced migration" to the cities (which would happen if the forestry industries are banned) as though it were some ethnic-cleansing-type issue, seems excessive. (I'm sure there are a lot of ethnic minority issues in Poland, but the article doesn't support a claim that the Polish majority is targeting the ethnic minority.) It would be nice if there were another, more universalist, view represented, which doesn't rely on the "Convention for the Protection of National Minorities" to argue against government policy motivated by preservationist environmentalism.


A GOOD PAPER TO READ: Just read a good paper by Cary Coglianese, just published in the University of Illinois Law Review, called Empirical Analysis and Administrative Law. Coglianese argues that we need more empirical analysis in administrative law, and who can argue with that? Basically, administrative law is about how administrative agencies should be regulated, and to talk about that intelligently, you need to understand how administrative agencies (and the Executive Branch, which runs them, and Congress, which gives them their statutory responsibilities, and the judiciary, which oversees them) work. And that's a job for political scientists -- and economists who are interested in political economy -- and of course lawyers, but the problem with lawyers is that they need some discipline, or else they (like everyone else) just end up saying reasonable-sounding but contradictory things about what administrative law should look like.

The author also provides a good review of the literature on the three issues he focuses on: economic analysis of new agency rules (which is potentially a fertile field for stopping the worst of the regulatory rules), judicial review of agency rules (this is probably the heart of the big issues in administrative law), and negotiated rulemaking (which few people seem to think has worked at all).


THE SWAMI SPEAKS. It's time to make predictions for 2003. Rehnquist and O'Connor both will leave the Court and will be replaced by Al Gonzalez and Janice Brown. There will be a substantial terrorist attack on American soil. Saddam Hussein will be out of power in Iraq by the end of February. Dick Cheney no longer will be vice president. Sure, each of these claims probably is too aggressive by 30%, but then that's what year-end predictions are all about.

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