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Saturday, February 08, 2003


RELOCATION: Kieran Healey's got new digs. He says that the relocation is "a good way to avoid dealing with a Revise & Resubmit that really, really needs to get done soon." Blogging as a way to procrastinate the kind of writing that tenure committees care about? I'm shocked, shocked.


INITIAL THOUGHTS ON 'PATRIOT II': There's a lot of buzz today about what some are calling "Patriot Act II," a DOJ anti-terrorism proposal that was apparently leaked by critics and made available on the web (you can view a copy here, among other places). The usual suspects have already condemned it, and I wanted to at least offer a few very tentative initial thoughts on the proposal.

    My initial reaction is that this is a mixed bag. The basic gist of the bill is to better integrate terrorism investigations into the rest of federal law. Up until 2001, federal law had one regime for criminal investigations, and another legal regime for investigations against spies of foreign countries. The Patriot Act started to break down that divide in response to the new threat of Al-Qaeda, and much of this bill is an effort to continue that reorganization by facilitating anti-terrorism investigations in light of the last year's practice under the Patriot Act. Is that a good thing or a bad thing? At least on an initial read, some of the sections seem pretty reasonable to me; others don't.

     I can make one confident prediction, though: the press will focus on several provisions that don't really make much of a difference and will blow them way out of proportion, and then completely ignore other provisions that make a big difference but are too complicated for the press to understand or explain. To take two quick examples: much of the press attention I have seen so far focuses on Section 404 of the act (making it a crime to "willfully" use encryption in furtherance of another federal felony) and Section 501 of the act (dealing with revoking citizenship for providing material support to terrorist groups). I don't think either of these would really make much of a difference one way or the other -- I'll blog more about why soon, I promise -- but the provis ons are easy to explain and easy to blow out of proportion, so they will be big targets. Meanwhile, other much more important provisions will sneak by without much attention one way or the other.

     Finally for now, note that there is at least one provision of Patriot II that civil libertarians will like: Section 108 permits the FISA Court of Review to appoint a lawyer to defend the FISA Court when the government appeals a FISA Court decision to the Court of Review. In other words, no more one-sided FISA Court of Review proceedings.

Friday, February 07, 2003


GEPHARDTIZATION: Friday afternoon fun, since no one sent in the correct answer when I posted this question back on my blog a couple of weeks ago.

In Bloom County, who remembers what "Gephardtization" referred to? To which lead character was it done? Bonus question: with what related but different procedure was briefly Gephardtization confused?

UPDATE: Each component of the question has been answered, but no single person has yet answered all the questions.

UPDATE: All right, now lots of people have answered each part. I'll quote from the first one who did, Brian Swisher:
The nefarious "Gephardtization" procedure, as perpetrated by the Zortians on the captive Steve Dallas, involved trans-reversing the subject's personality, creating a complete personality "flip-flop." This was briefly confused with "Dolezation," which caused one-half of the subject's brain to become dark and nasty.
Several people, including Philip Snyder, also recalled that
The Gephardization procedure was selected because replacing Steve Dallas' brain with the brain of either Elvis or Andy Kaufman was deemed to be to dangerous to the aliens' liability insurance premiums.


GOING TO WAR WITHOUT THE FRENCH IS LIKE . . . No Watermelons reports that:
The Federalist is holding a contest for the best answer to this: "What is it like to go to war without the French?"

Some responses already in: "Going to war without the French is like going to Thanksgiving dinner without your mother-in-law." "Going to war without the French is like . . . well . . . World War II."
For instructions on how to enter, go to No Watermelons.


ASSOCIATED PRESS: Delighted to see that an AP article (run in, among other places, the Washington Post) mentions various law-themed blogs, including SCOTUSblog, How Appealing, and us. It even quotes our "What's the longest word in English that you can use without people thinking, 'My, that's a long word'?" question, but without giving the answer (probably good, because then readers will have to come here to get it).


POLITICIANS AND FREE SPEECH: This piece focuses on this issue, which I think is really very simple: Politicians are free to speak, and we're free to criticize them and vote them out of office. (I'm actually quoted there saying pretty much that.) My one quibble is that I suspect Roger Pilon and I do not really disagree on this, despite the article's contrary suggestion. (Thanks to fellow lawprof Eric Muller for the pointer.)

UPDATE: Jacob's and my suspicions were right -- Roger cc'd me on this, and allowed me to post it:

From: Roger Pilon []
Sent: Friday, February 07, 2003 1:35 PM
To: . . .
Subject: Clarification


In your Feb. 7 CNSNEWS.COM piece on the Howard Coble remark,\Politics\archive\200302\POL20030207d.html, which quotes my friend [Eugene] Volokh and me at length, you write:

Eugene Volokh, a professor of constitutional law at UCLA's School of Law, disagreed with Pilon's contention that the First Amendment does not protect Coble from so-called "stupid speech."

That's not what I contended. Go up further in the piece and you'll see that I said:

"It's often hard to protect a congressman from himself, and this is a case in point," said Roger Pilon, a First Amendment expert and director of the Cato Institute's Center for Constitutional Studies. "Speech is free. Stupidity is not. You pay the price for exercising your free speech unwisely."

That was [Eugene's] point too. The First Amendment does protect Coble -- from legal sanction, but not from political sanction, exacted by the voters. Thus, in that sense, stupidity is not "free."

Roger Pilon


BALANCED BUDGETS: Matthew Yglesias responds to my post about the balanced budget amendment; he says that he, for one, has no regrets.
The question of whether or not the budget is balanced in any given year is fairly trivial. The difference between a $1 surplus and a $1 deficit is only two dollars, not something worth making a constitutional amendment over. The issue is the long-term impact of the debt on the economy. Clearly, the best way to keep the debt low is to not run giant deficits, but short-term deficits for the purpose of economic stimulus, for long-term investment, or for to cope with national emergencies are perfectly fine.... Either way, I think there's something a little goofy about trying to pass constitutional amendments to prevent the people from electing politicians who make bad decisions.
But some kinds of bad decisions are so predictable, seem so structurally-built-in, that polities precommit, in written constitutions, to avoid them. I of course agree that there's no significant economic difference between a $1 surplus and a $1 deficit. And I accept as legitimate the idea of countercyclical stabilizers (though my Austrian economist friends insist that they're a bad idea, and I lack the expertise to ajudicate). But there seems to be a systematic tendency for deficits, once accepted as legitimate, to balloon and to become semipermanent. We don't get $1 deficits or during-recession-only deficits. We get politicians who figure, "If running a deficit makes a bad economy good in the short term, it can also make a good economy better in the short term!" and who therefore resist countercyclical stabilizing surpluses in good times. The short time horizons elected officials face make it pretty rational for them to run up debt-- unlike you or me or IBM, all of whom have at least some incentive to keep the long-term consequences of debt in mind an to keep overall debt levels under control.

A BBA is an absurdly blunt policy instrument, and undoubtedly would sometimes compel bad budgetary decisions. The argument in favor of it is just that we get bad budgetary decisions in any event, and without the amendment we get worse ones more often for structural and predictable reasons.

Matthew seems to be a skeptic about constitutional restraint on democratic decisionmaking in general, so maybe he's an unusual test case. Any Democrats who a) aren't skeptics about constitutional restraints in general, b) nonetheless opposed a BBA in the 90s, but c) have now been reminded that constitutional restraints on the other guy can be desirable?

SORT-OF UPDATE: Check out Andrew Sullivan on the Bush budget. I think we may be reaching a point where people who think that the problem is spending are as annoyed as people who think the problem is the tax cut...


LEAVING IN 10 MINUTES: Off to the airport in 10 minutes, to go to Arizona for the O'Connor clerks' reunion. Will be back blogging Monday.


CLASS LAST FRIDAY went very well -- we had a great discussion on the policy arguments behind obscenity law. One of the students mentioned that it was a particularly good discussion for a Friday morning; I guess sex sells in the classroom as well as on billboards!


TOTAL INFORMATION AWARENESS OVERSIGHT BOARDS ANNOUNCED: This news release about TIA appears on DoD's website today:
  The Department of Defense will establish two boards to provide oversight of the Total Information Awareness Project, the program designed to develop tools to track terrorists. The two boards, an internal oversight board and an outside advisory committee, will work with the Defense Advanced Research Projects Agency (DARPA), as it continues its research. These boards will help ensure that TIA develops and disseminates its products to track terrorists in a manner consistent with U.S. constitutional law, U.S. statutory law, and American values related to privacy.
  The TIA internal oversight board will oversee and monitor the manner in which terrorist tracking tools are transitioned for real world use. This board will establish policies and procedures for use within DoD of the TIA-developed tools and will establish protocols for transferring these capabilities to entities outside DoD. A primary focus of the board will be to ensure that the TIA-developed tools to track terrorists will be used only in accordance with existing privacy protection laws and policies. The board, which is expected to hold its first meeting by the end of February 2003, will be composed of senior DoD officials.
  The outside advisory board will be convened as a federal advisory committee and will comply with all the legal and regulatory requirements for such bodies. The committee will advise the Secretary of Defense on the range of policy and legal issues that are raised by the development and potential application of advanced technology to help identify terrorists before they act.
  Members of the outside advisory board are Newton Minow (chairman), director of the Annenberg Washington Program and the Annenberg Professor of Communications Law and Policy at Northwestern University; Floyd Abrams, renowned civil rights attorney; Zoe Baird, director Markel Foundation; Griffin Bell, former U.S. Attorney General and Court of Appeals judge; Gerhard Casper, president emeritus for Stanford University and Professor of Law; William T. Coleman, former chairman and CEO of BEA (world's leading application and infrastructure company) and now Chief Customer Advocate; and Lloyd Cutler, former White House Counsel.
A smart move, I think, especially the formation of an outside advisory board. (Thanks to Phil Carter for the link; you can access Phil's commentary here.)


THE NEW YORK SUN CALLS FOR SUPPRESSION OF ANTI-WAR SPEECH: Yup, that's right, in an editorial yesterday. I disagree in strong terms, in National Review Online this morning. (Thanks to reader Scott Weiner, by the way, for alerting me to the Sun piece.)

     Two items that didn't make it into the NRO piece:

     1. One of the Sun's arguments is that "it's not the speech that the city is objecting to -- it's the marching in the streets, blocking traffic, and requiring massive police protection." An odd thing to say, given that the whole point of the Sun's editorial is that the police should suppress the speech precisely because of what's being said. The Sun isn't arguing that the war effort will be undermined because people are blocking traffic -- it's the content of the speech that the Sun is objecting to.

     2. I originally started responding to the editorial in a blog post, but then decided to submit it to the NRO. I'm delighted that they published it, because I think it's very healthy for the conservative media to take the lead in criticizing right-wing calls for speech suppression. In recent years, the Right has been on balance at least as pro-free-speech as the Left. That's a good development, and I hope that it continues.


COBLE CONTINUED: Howard Coble said that he'd apologize for his statements approving of the internment of Japanese-Americans, if it could be proven that he was wrong in thinking that it was done for their protection. Eric Muller, fellow scholar-blogger and Brown alum, has the proof.

This article about Coble construes a disagreement between Eugene and Cato's Roger Pilon where there is none.

"It's often hard to protect a congressman from himself, and this is a case in point," said Roger Pilon, a First Amendment expert and director of the Cato Institute's Center for Constitutional Studies. "Speech is free. Stupidity is not. You pay the price for exercising your free speech unwisely."
Eugene Volokh, a professor of constitutional law at UCLA's School of Law, disagreed with Pilon's contention that the First Amendment does not protect Coble from so-called "stupid speech."

"The First Amendment protects stupid speech just as much as it protects smart speech," Volokh said. "In fact, it's stupid speech that usually needs First Amendment protection more."
Surely it's clear that Pilon did not mean: Stupid speech is not protected by the First Amendment. What he meant, indeed what he said, is that the First Amendment doesn't immunize you against the consequences of your own stupidity. "Pay the price" doesn't mean "get thrown in jail," it means "suffer the consequence that people now know you to be an idiot." I'd think this would be clear even to someone who had never heard of Pilon and had no idea that he's a fervent defender of freedom of speech.


A FACULTY THAT LOOKS LIKE AMERICA? One frequent argument that I've heard in favor of race preferences is that disproportion between an institution's racial makeup and the public's is bad because (1) institutions should "look like America" (or "look like California" or some such), (2) this disproportion is powerful evidence that the institution's members were discriminatorily selected, or (3) this disproportion is powerful evidence of a large amount of race discrimination in society at large, even if not in this institution. Thus, for instance, if one considers -- just to take one example that I know well -- the UCLA Law faculty, one sees 62 tenure-ladder active faculty, of whom 4 are black, 1 is Hispanic, and 1 is Asian (under more or less conventional definitions, though of course there's always some ambiguity). According to Census data, about 12% of the U.S. population is black, 12.5% is Hispanic (treating this as a separate group, though I realize that there are Hispanics of all races), and 3.5% is Asian. This means there ought to be roughly 7 black faculty members, 8 Hispanics, and 2 Asians -- and that there isn't is a sign of discrimination, or at least that the faculty doesn't look like America (much less California).

     1. Kick out the Jews? But then there's this odd fact: Of the 62 faculty members, at least 29 are ethnically Jewish. Yes, I know there's always some uncertainty, but I'm pretty confident that the number is right around there. That's 47%, though Jews are roughly 2% of the population. My, but the law school does not look like America in that respect. If we really thought we ought to consider race and ethnicity to make the faculty look like America, then we'd need to kick out 28 of us (almost certainly including me). This alone, I think, undermines the argument that race or ethnicity are properly used in trying to make institutions "look like" -- i.e., have the same racial and ethnic mix -- as society at large.

     2. The numbers controlling for the anomalously large number of Jews. What's more, this anomalous quantity of Jews necessarily undermines our ability to try to use the numbers as an estimate of the level of discrimination. There might actually be some discrimination in favor of Jews in some contexts, but surely numbers this high aren't caused entirely or even primarily by discrimination; and since Jews are overwhelmingly (though I agree not 100%) white, this anomaly necessarily affects the expected racial makeup of the institution. That one small white subgroup that's 2% of the population makes up nearly 50% of the faculty will necessarily depress the representation of other groups, white and nonwhite, even if there's no discrimination at all.

     If we control for the Jewish anomaly by focusing on only the non-Jewish pool, we find that of the 33 likely non-Jewish faculty, about 13% are black, 3% are Hispanic, and 3% are Asian. The disparity between blacks and Asians in the public at large (even setting aside the 2% of the public who are white Jews) and blacks and Asians in the faculty vanishes, and the disparity in the fraction of Hispanics decreases considerably, to the point where it's much more explicable by occasional variation (for instance, one of our Hispanic faculty members just left recently, to work nearer his family).

     3. Disparity doesn't equal discrimination. But beyond this, the Jewish anomaly -- and the anomalously high fraction of Asians in other institutions, such as in the student bodies of UC Berkeley, UCLA, and UC Irvine -- suggests that there are many disproportions that are not caused by the institution's discriminating, or even by societal discrimination, unless we think there are some social institutions that systematically engage in vast discrimination in favor of Jews (as compared to other whites) and Asians. If some groups are overrepresented for reasons other than discrimination, then other groups can be underrpresented for reasons other than discrimination -- either just because some other groups are overrepresented (see the previous paragraph), or for other reasons.

     Now I'm not denying that there is indeed discrimination against blacks, Hispanics, to some extent Asians, and even to some extent Jews in various parts of American life. There certainly is some such discrimination. But I am denying that "disproportionate representation" should either mandate race-/ethnicity-based remedies on its own (that's the "institutions should look like America" theory) or is a proper measure of the magnitude of actual discrimination.

Thursday, February 06, 2003


WHAT EFFECT DID BUSH'S AND POWELL'S SPEECHES HAVE ON AMERICAN PUBLIC OPINION? David Adesnik (OxBlog) has a thoughtful and interesting analysis.


DON'T KILL INNOCENT ANIMALS -- INNOCENT HUMANS, ON THE OTHER HAND . . . . PETA has produced the following remarkable letter to Arafat (thanks to Randy Tunac for the pointer):
I am writing from an organization dedicated to fighting animal abuse around the world. We have received many calls and letters from people shocked at the bombing in Jerusalem on January 26 in which a donkey, laden with explosives, was intentionally blown up. . . .

Animals claim no nation. They are in perpetual involuntary servitude to all humankind, and although they pose no threat and own no weapons, human beings always win in the undeclared war against them. For animals, there is no Geneva Convention and no peace treaty -- just our mercy.

If you have the opportunity, will you please add to your burdens my request that you appeal to all those who listen to you to leave the animals out of this conflict? . . .
Now wait a sec: Palestinian terrorists are willing to kill innocent men, women, and children, and Arafat hasn't been willing or able to stop them. And the point of asking Arafat not to kill innocent donkeys is . . .?


THE PRECEDENT PROBLEM: Collins quotes Dustin Hoffman as asking:
If they are saying it's about the fact they have biological weapons and might have nuclear weapons and that gives us the liberty to pre-empt and strike because we think they might hit us, then what prevents Pakistan from attacking India, what prevents India from attacking Pakistan, what prevents us from going into North Korea?
and responds:
[T]here is nothing now that prevents India from hitting Pakistan, Pakistan from hitting India, or us hitting North Korea. In fact, at no time in history has there ever been anything that prevented one nation from invading another except the belief that it probably wasn't in there own best interest at the time, or, in more enlightened nations, the belief that doing so wasn't morally justified.

The idea that America going to war in Iraq will give other nations an excuse to start their own wars is just plain stupid. Any nation that wants to launch an aggressive, unjustified war against their neighbors will come up with an excuse, whether we invade Iraq or not. This kind of thing has been going on throughout history. Sheesh, when Hitler got ready to invade the Netherlands he sent some of his soldiers across the border to stage a fake attack by the Dutch against Germany. It wasn't a particularly good excuse, but he didn't need a particularly good excuse. All he needed was something good enough to sow a little doubt for a little while. This kind of thing has always gone on and it always will. . . .
I actually do worry about precedents in some areas (hence my 106-page long Slippery Slopes article) -- but I think that here, the "it'll set a bad precedent" argument really is quite weak, largely because the kinds of countries that we're worried about are usually not the ones that care a great deal about precedents. Precedents are not entirely unimportant even here; but they are mostly unimportant.


HOW NOT TO MAKE SEX COMEDIES: From the Slate review of How To Lose a Guy in 10 Days:
In interviews, the director, Donald Petrie, has said he objected to the first script he read -- in which the couple did go to bed on their first date -- on the grounds that it would send the wrong message to his 12-year-old daughter. When you set out to make a sex comedy for your 12-year-old daughter -- well, if you're any kind of dad, it probably won't be very sexy.


STUDENT SUES TO CHANGE A TO A+: Even better, the "class" was working for his mom-- a lawyer, of course.


INTO PRINT!: This was now a little while ago, but I just noticed it, thanks to Geitner Simmons. A blog posting of mine has (for the first time that I know of) made it into the print media: the Omaha World Herald's January 31 editorial quotes from this post:
Moreover, political scientist Jacob T. Levy of the University of Chicago notes that the Electoral College's "over-rewarding" to rural (red state) constituencies is largely counterbalanced by an advantage given to urban (blue state) ones. "The Electoral College over-rewards Democrats for their urban majorities in states such as New York," he writes, "and denies Republicans any benefit from their large rural votes in such places."
I should note that this is hardly an original insight on my part...


SHARPTON: The Democratic and left intellectual press is starting to pay attention to the Sharpton problem: the party and the other Presidential candidates are damned if they treat him like a legitimate, serious person and damned if they don't. Peter Beinart and Michelle Cottle in TNR, Garance Franke-Ruta in TAP. (See also this older Noam Scheiber TNR piece.) To my Republican friends who relish the thought, I'll say what I said to my Democratic friends who cheered Pat Buchanan during the 90s: he's bad for all of us, and any outcome that leaves him appearing powerful is bad for our politics in a general way even if it happens to help your political friends. UPDATE: Josh Chafetz had this covered in October.


MORE GREAT STUFF FROM LILEKS: A great piece on "Going to War Without the United Nations" from his Newhouse column. Why is this man not a regular on every leading op-ed page in the country? (Thanks to InstaPundit for the pointer.)


JUSTICE WILLIAM O. DOUGLAS: Charles Lane, the Washington Post's Supreme Court correspondent writes about a brewing controversy about Justice Douglas's veracity:
William O. Douglas, the liberal firebrand who served as a Supreme Court justice longer than anyone else in history, has lain since his death in 1980 at Arlington National Cemetery, under a headstone that reads, in part: "Private, United States Army."

But now Douglas's eternal rest is about to be disturbed by a charge from a scholar of court history who has concluded, based on extensive archival research and interviews with Douglas's old acquaintances, that the justice's claim to have served in the military during World War I is false.

If these assertions, which are made in a forthcoming biography of Douglas by Lafayette College professor Bruce Allen Murphy, are true, it would mean that Douglas obtained burial at Arlington even though he may not have been entitled to it. . . .

Douglas . . . had a passionate following, based not only on his judicial philosophy, but also on his personal story, which, according to his memoirs, was that of a poor kid who emerged from Yakima, Wash., to conquer Wall Street, the Ivy League and Washington, D.C., through hard work and brains. Among the achievements he claimed -- and that have heretofore been accepted by historians -- were victory over polio in early childhood and a second-place rank in his class at Columbia Law School.

Yet in his book, advance galleys of which are being circulated by Random House, Murphy debunks those and other claims. For example, though Douglas wrote that he worked his way through Columbia, he actually depended on the income of his first wife, Mildred, a schoolteacher. Douglas got around this by reporting the date of their marriage as a year later than it actually was.

Murphy writes that Douglas's military service consisted of a few months as a private in the now-defunct Student Army Training Corps (SATC) at Whitman College in Walla Walla, Wash.

The students who participated in this organization, Murphy says, marched around campus without guns, boots or uniforms, and Douglas was sidelined by influenza for much of the time. When uniforms finally arrived after the November 1918 armistice, Douglas suited up for a photo, but his military record, Murphy writes, shows that he was never actually inducted into the Army or honorably discharged, and never served in France, as many people apparently assumed.

Douglas did not enlist when the United States entered the war in 1917, Murphy argues, because at the time he was younger than 21 and would have needed parental permission, which his overprotective mother would have surely denied. After the draft age was lowered to 18 in August 1918, when Douglas was almost 20, he joined the SATC. He served for just over two months, from Oct. 1 to Dec. 10, when the unit was dissolved because the war was over. . . .

Why would such a brilliant and accomplished man embellish his already considerable achievements? In Murphy's view, Douglas was a great disappointment -- to himself. Having failed to attain his true ambition, the presidency, he felt the need to compensate in other ways. His 1950 memoir, "Of Men and Mountains," which introduced the polio story, earned him public acclaim. . . .
True? I have no idea. Important? Not terribly, I think, but mildly so -- largely as an unfortunate reminder to be constantly skeptical, since either this seemingly serious history book is wrong, or Justice Douglas's own story was.


BALANCED BUDGETS: Kevin Hassett at TCS recalls the Contract With America's first commitment: a balanced budget amendment. I wonder whether any of the Democrats who opposed a BBA back in '95, on the grounds that the budget just couldn't be balanced without draconian cuts in crucial programs (only to see surpluses kick in shortly thereafter) ever wonder, now, what might've been.

Everyone always thinks that it's the other side that's profligate. But everyone should also remember that, eventually, the other side will have a turn in power. We could have seen a 1990s BBA-- Democrats locking in the Clinton-Gingrich surpluses (that is what they were-- surpluses born of a political Mexican standoff) and gaining political credit for it, Republicans getting something most of them had wanted for a long time, each side giving up some of its own flexibility during its turns in power, in exchange for blocking its least favorite impulses on the other side. We didn't, thanks primarily to Democratic opposition.

Any Democrats have any regrets? Conversely, are any Republicans willing to say "thank goodness we didn't pass a BBA, or our hands would be tied right now?"

Sometimes 1995 seems like a very, very long time ago...


CORRESPONDENCE: Tom Donahue takes me to task for saying
Of course, in a course on American political thought one can also teach the southern conservatives, and Russell Kirk. Britain has Stephens, Carlyle, Ruskin. These are all worth teaching, and reading, in some specialized contexts. But-- compared with a Continental tradition that includes de Maistre, Hegel, Fichte, Vico, Schmitt, Heidegger, etc--these just aren't dominant figures in the course of Anglo-American thought.
He writes:
Unless we understand markedly different things by 'very conservative conservativism' (I am presuming that you mean by it something like an attitude that exhibits approval of political docility, supports subservience to throne and altar or their modern variants, and takes a dim view of the potentialities of reason; if not, forgive me), then I do not think Hegel and Fichte deserve this label...I think it should be remembered that Hegel devoted a great amount of time to reading the thinkers of the Scottish Enlightenment, drank a toast to the French Revolution and the Rights of Man and of the Citizen on every 14 juillet, and took the leading English newspapers (and, if I remember rightly, even cited them in his ENCYCLOPEDIA). At the textual level, the RECHTSPHILOSOPHIE advocates constitutional monarchy, freedom of speech, freedom of association, freedom of contract, and a strong parliament. Furthermore, Hegel is--at all times--an arch-rationalist... It is true that Fichte, in the REDEN AN DIE DEUTSCHE NATION (ADDRESSES TO THE GERMAN NATION) and also in the FOUNDATIONS OF NATURAL RIGHT, made what we would regard as overblown claims for the right of the state against the individual. ... Thus he believed that markets ought to be tightly regulated, and was against mixed government. He was, however, a social contractarian, a believer in representative government, an uncompromising defender of freedom of speech, and an outspoken critic of capital pu ishment... it is true that both thinkers may be read as conservatives, but most contemporary scholars of German idealism fiercely controvert such readings.
On Fichte, I'll stick to my guns, while recognizing that Tom clearly knows Fichte more deeply than I do. I know that the "Addresses to the German Nation" aren't by any means the sum total of Fichte's philosophy; but they make up a central text in the development of blood-and-soil nationalism, and I think they matter more than his biographical endorsement of the institutions of liberal government. On Hegel, I'll ambivalently concede the point; I should've known better than to put it so bluntly. The smart young Hegel scholars I know all roll their eyes at the old image of Hegel as the propagandist of conservative militarist Prussia, and many of them endorse a reading of him as a very complicated kind of liberal. Someday soon I mean to sit down with their books on one side and the Philosophy of Right in the other to see whether I can overcome my prejudice. I now recognize the affinities between Hegel and, say, Constant and Tocqueville. But my gut reaction to Hegel hasn't been affected by my knowledge of this scholarship. I don't lump him in with the anti-rationalist romantic conservatives; but the military, after all, can be a very rationalist and very conservative institution, and I think that rationalist-conservative would be a fair way to characterize Prussia. That's still always my first impulse in thinking about Hegel, too.


WARNING MEMOS: Rob Lyman provides an important cautionary note:
Every time something bad happens, we hear about the warning memos written in the weeks, months, or years before the tragedy. What we are never told, however, how many such memos are written every year.

Bureaucrats are not known for their boldness; if something bad happens, they want some sort of shelter for their posteriors. A vague memo that says something like "I have concerns about the security of XYZ" won't be remembered if nothing happens, but can be waved about after a tragedy. . . .

But that means that LOTS of those sorts of memos must be written--one for each civil servant, for each possible contingency. And that level of dilution, even if half the memos are genuine, you'll never be able to tell the wheat from the chaff, and any real warnings will be lost in the shuffle. . . .
This point can, of course, be overstated, but it's still important to keep in mind.

UPDATE: Reader Gerald Hanner agrees:
I can identify with that. I spent 25 years in the US Air Force. There was a practice among staffers known as "keeping a Pearl Harbor file." The objective, of course, was to prove that you up-channeled some concern in case something went wrong at some future date. Sometimes it was a useful effort; most times it was not.
FURTHER UPDATE: Reader David Steele, makes a similar point:
Example: Candidate John Edwards says, "We're not doing enough to protect our homeland from a future terrorist attack"

Possible future outcomes: (1) Yes terrorist attack (2) No terrorist attack

If 1, John Edwards haled as a prescient soothsayer of geo-politics -- presidential stock soars through the roof.

If 2, everybody glad, past comments melt away like mist.

It's almost like betting 5 bucks on red, 5 bucks on black, to sustain a "hot streak" in order to impress the crowd at the roulette wheel. . . .

p.s. future predictions must be specific, falsifiable and accompanied by concrete proposals.
Again, it would be a mistake to overstate this phenomena -- sometimes ignored warnings are a sign of institutional failure to deal with cautionary signals -- but also a mistake to ignore it.


"SADDAM AND AL QAEDA": "You would think that the possibility of such an unholy alliance would be considered too likely to ignore. But then you hear some 'genius' with a Ph.D. who is supposedly an expert saying that Saddam is a secular Arab and Al Qaeda is a fanatical religious group -- how could they have any dealing with each other? Haven't they heard of the Nazi-Soviet non-aggression pact of 1939?" From Andrew Sullivan's mailbag.

     (Note: Just to make absolutely clear, I realize that the above doesn't itself prove that Hussein and al Qaeda are in league with each other -- it just rebuts a commonly heard argument against that proposition.)


THE PAPER CHASE: "[The] author of The Paper Chase reflects on his novel, as [his] daughter prepares to attend Harvard this fall." JD2B points us to this San Francisco Chronicle article.


THE STUFF YOU READ IN LAW REVIEW ARTICLES: Here's one I just ran across by accident:
Because sanism floods every aspect of society, its influence is exceptionally strong. Instead of isolated occurrences, sanist discrimination is socially acceptable and often undetected. [FN188] This insidious subtlety makes it nearly impossible for the mentally ill to dig themselves out of the hole in which society insists they dwell.
[Footnote:] . . . [See also] Douglas Laycock, Vicious Stereotypes in Polite Society, 8 Const'l Commentary 395, 399 (1991) (engaging in his own sanist stereotyping while commenting on the stereotyping found in Wendy Brown, Guns, Cowboys, Philadelphia Mayors, and Civil Republicanism: On Sanford Levinson's The Embarrassing Second Amendment, 99 Yale L.J. 661, 666-67 (1989)). Laycock responded to several stereotypes advanced by Brown, including beer-drinking members of hunt clubs and subscribers to men's magazines by stating that "[t]here are indeed people in our society who have no more respect for humans than for animals. We call them psychopaths, and when they act on their impulses and we catch them, we lock them up." Id. (criticizing Wendy Brown, Guns, Cowboys, Philadelphia Mayors, and Civil Republicanism: On Sanford Levinson's The Embarrassing Second Amendment, 99 Yale L.J. 661, 666-67 (1989) for stereotyping a male who helped her with her car as a rapist based solely on his appearance).
"Sanism" is defined earlier in the piece as "irrational prejudice[] . . . against the mentally ill." "Like other 'isms,' sanism is based largely upon stereotype, myth, superstition, and deindividualization . . . ."

     Let's see if I understand this correctly: Calling people "who have no more respect for humans than for animals" (and in context, the quote referred to brutal attackers, such as rapists, not extremist animal rights activists) "psychopaths," and urging that they be "lock[ed] up" is "irrational prejudice," and it's based mostly on "stereotype, myth, superstition, and deindividualization." What exactly is "irrational" about it?

     (The Doug Laycock article that this article criticizes, by the way, is excellent.)


MARK KLEIMAN ON DRUGS: OK, don't pay any attention to the capitalized words -- I just felt I had to say that. Mark Kleiman, writing about drugs, has, as usual, an excellent point (it's the "NO INSIGHT, NO HEALING" post -- sorry, no hotlink due to Blogger glitch):
DEA is highly effective at seizing drugs, catching drug dealers, and putting together cases that result -- given the current sentencing laws -- in long prison terms. . . .

But putting bad guys away, no matter how satisfying it may be, isn't the reason we have the drug laws in the first place. The drug laws are supposed to reduce the extent of drug abuse by making drugs harder to get and more expensive. Public enthusiasm for spending money on drug enforcement is based on the idea that busting dealers helps control drug abuse. That's what hasn't been happening.

Over the past twenty years, the DEA budget has about tripled in inflation-adjusted terms, while the prices of heroin and cocaine, adjusting for purity and inflation, are down about 80%. Once upon a time, DEA would have called that a mark of failure. The agency used to define its mission as making drugs expensive and hard to come by, labelling its annual calculation of the purity-adjusted price of heroin the "Performance Measurement System."
This is a very important point, and one that can be made in lots of contexts (as Sasha has pointed out in past papers -- well, so have others, but I like Sasha better): The measure of an agency's success should almost never be the number of people it arrests or prosecutes, or the amount of fines it collects. The measure of its success should be the reduction of some actual harm, which is sometimes but not all that often correlated to an increase in the number of arrests/prosecutions/fines. Remember that whenever you hear enforcement numbers -- enforcement is not good in itself, and it's often not correlated with policy success.


SCHOLAR-BLOGGER ROUNDUP: This Mark Kleiman post on the DEA is not to be missed. [UPDATE: Something's wrong with the permalink; if you're reading this today, just go to the blog, as the DEA post is the first item.] Eric Muller is all over the Howard Coble case-- the idiot Republican Chairman of House Judiciary's Subcommittee on Crime, Terrorism, and Homeland Security who thinks interning Japanese-Americans was a good idea. And Dan Drezner has an analysis of the next big, wrong, idea in international politics.

Wednesday, February 05, 2003


BIG TROUBLE FOR THE U.N.? If what Slate's William Saletan says is true, then the U.N. is in big trouble. Saletan analyzes the Security Council members' response to Powell's speech on three matters -- (1) their view of how compelling is the evidence of Iraq trying to get weapons of mass destruction, (2) their view of whether Iraq is cooperating adequately, and (3) their view of what the consequences of Iraq's actions should be -- and concludes this:
On the question of evidence, Powell wins big. Ten of the 15 members believe either that his evidence is compelling or that the burden is on Iraq to rebut or explain it. This represents a crucial reversal in the council's thinking. . . .

On the question of cooperation, the consensus is even stronger. Of the five permanent council members, none says Iraq is cooperating sufficiently, and four say Iraq's level of cooperation is unacceptable. Of the 15 total members, five say Iraq's level of cooperation violates Resolution 1441 (three of these members explicitly call it a "material breach") -- a verdict that implicitly justifies the use of force. Two others, while avoiding legal language, say this level of cooperation is unacceptable; seven more say it needs to improve. . . .

But on the question of deadlines, Powell comes up short. Only three of the 15 members support a specific deadline (the United States has already given up; Britain and Bulgaria want a decision by Feb. 14), and only two more favor an imminent deadline in principle, on the grounds that further inspections are pointless unless Iraq changes its attitude. That leaves the United States six votes shy of the nine needed to authorize war now and four votes shy of the nine needed to impose an imminent deadline. Three members seem to be out of play since they describe inspections as a permanent solution, making war impossible. . . . In addition, one permanent member, France, is among the countries calling for permanent inspections, raising the possibility that it might veto a resolution to end them.

So here's the score on Powell's presentation. He has trapped Iraq in an inspection regime until it comes clean, and he has put the United States within striking distance of the votes needed to declare that the status quo justifies war. But if he wants those votes, he'll have to wait.
But if Saletan's analysis of the members' reaction is right, then we shouldn't be looking at Powell's score -- we should be looking at the Security Council's score. Because as I see it, here's what Saletan is suggesting the Security Council's position will be:
  1. Iraq has or is developing weapons of mass destruction, in violation of Security Council resolutions.

  2. Iraq is grossly failing to cooperate with the inspectors, in violation of Security Council resolutions.

  3. The inspectors are not stopping Iraq from developing weapons of mass destruction, because of Iraq's failure to cooperate.

  4. But the solution to all this is to have more inspections, for the indefinite future -- inspections that will not be cooperated with, and under which Iraq will continue to try to develop weapons of mass destruction.
     This would be poison for the U.N. -- a sign of its leagalization, which is to say its retreat into utter ineffectuality. If the Security Council members had just said that the evidence against Iraq was weak, and therefore no military action is needed to enforce the Council's resolutions, that would have been (if Powell is right, as I think he is) grossly irresponsible, but at least those who believed the Council's factual assertions would see the Council as acting sensibly given those facts. But if the Council members say that Iraq is developing weapons of mass destruction, is obstructing the inspectors, is materially violating the Council's Resolutions, but the only response is more of what has clearly utterly failed, then the Council has shown that its actions have no practical meaning.


LIBERAL PARTIES CONTINUED: According to Israeli politics blogger Noah Millman, Shinui is proving to be power-hungry. UPDATE: The American Prospect offers a different take. I'll add that the words "the party supports gay rights and a free-market economy " serve as a very useful signalling device. It's not a necessary-and-sufficient combination for being, in general, a liberal party; but it's a pretty reliable guide-- even better than the class marker that a party is supported by freelancers and small businessfolk.


BIG SPENDER: This analysis from Cato makes for disspiriting, though important, reading.


LEAGALIZATION: The process by which an international body becomes as powerless and useless as the League of Nations, especially by overreliance on unsound legalisms. Will it happen? We'll see very soon.


WISE WORDS ABOUT THE UN: "[I]f the Security Council does not now take action against Iraq, it might as well disband," from Fred Kaplan in Slate.


HABERMAS AND SCHROEDER: Check out Reihan Salam's essay over at TNR Online.


TAPPED: David Kopel has a pretty powerful reaction to Tapped's criticisms of his work (Tapped is of course the American Prospect's blog.) Short version: Be skeptical when Tapped accuses people of "fibbing," creating "make-believe numbers" and the like.

UPDATE: Tapped responds.


S.F. CHRONICLE READER E-MAILS ABOUT THE SHUTTLE TRAGEDY: A remarkable column by the Chronicle's editorial page editor about the letters the paper got:
Several readers have called or written to complain about the selection of letters we have printed about the space shuttle Columbia tragedy.

Where, they asked, was the universal outpouring of grief for the seven brave astronauts and their families? Why were so many of the letters tinged with gratuitous bitterness toward President Bush or otherwise infused with cynicism or conspiracy theories?

Frankly, my colleagues and I were asking the same questions Saturday as we sorted through the several dozen e-mails and faxes that came in after the disastrous breakup of the shuttle on its final descent home.

It's always perilous to try to make any generalizations out of the composition of letters sent to a newspaper. They are not necessarily a representative sampling of the readership . . . .

Still, two things struck me about the first waves of letters. One, they were coming in relatively small numbers for a news event of this magnitude . . . .

Even more startling was the cynical, even hateful, tone of many of the letters. The outtakes were considerably harsher and more jaded than the selection we printed.

One letter writer flat-out accused the government of a secret plot to "sabotage the mission to direct future finances away from NASA to further the military industrial complex." A recurring theme was resentment that Bush would somehow exploit the tragedy for political gain.

One letter speculated that Palestinians would be "dancing in the streets" upon hearing of the deaths of the U.S. and Israeli astronauts. Another wondered why television was showing "so much empathy" for the deaths of agents of two countries who were responsible for "uncounted Palestinian deaths, every day" in the occupied territories.

A Livermore man actually questioned whether the accident was the result of a shuttle crew that "looks like America." He suggested the women and minority astronauts were given "bonus points" in the selection process. Never mind the advanced degrees, the years of public service, the uncommon bravery that distinguished these seven astronauts. . . .

For all the readers who asked, we do want to print more letters that pay "tribute to the memory" of the Columbia crew, as we have today. But we can only choose from among the letters we receive.


BUSHISM OF THE DAY: Here's Slate's latest:
Columbia carried in its payroll classroom experiments from some of our students in America.
Yup, I heard that one, too. And this means -- what exactly? Not that Bush doesn't really know the difference between the words "payroll" and "payload"; obviously he does. What it means is that in the middle of a busy day, he said one common word instead of another -- like all of us often do. I just heard a similar slip in a faculty meeting last night, from an articulate, intelligent, well-educated law professor.

     Is this really that funny, or that newsworthy? Or does it just show that if you make it your project to find slips of the tongue by some person -- someone who often gives speeches that are recorded or broadcast -- you will surely be able to come up with something?


REP. NADLER CONDEMNS AMERICAN MUSLIM COUNCIL'S REMARKS ABOUT THE COLUMBIA DISASTER: This comes to me from a quite reliable source, so I feel confident in its accuracy:
February 4, 2003

Mr. Eric Erfan Vickers
Executive Director
American Muslim Council
1212 New York Avenue NW, Suite 400
Washington, DC 20005

Dear Mr. Vickers:

I read with shock your message of February 3, entitled "Seeing the Signs," in which you appear to suggest that the recent tragic loss of the Space Shuttle Columbia and its entire crew was an act of divine retribution against Israel, and attributable to the presence of the first Israeli astronaut on the mission.

In particular, you stated that "I have been tempted to contact her to ask if she sees a sign in the calamitous destruction of the one hundred and thirteenth space shuttle mission taking place over a city named Palestine, while on board was the first Israeli astronaut, who also happened to have been the pilot that bombed several years ago an Iraqi nuclear facility. I was curious how she -- or the Book of Revelations -- might view or explain this strangely ironic set of facts as war looms on the horizon."

It is unthinkable that any American would take such perverse pleasure in a tragedy that so greatly affects not only the people of the United States, but also the people of India and Israel, and which has drawn expressions of sympathy and solidarity from leaders around the world. Moreover, to presume that a divine purpose reflects one's own hateful feelings toward the Jewish People is insulting to all people of faith and good will.

I would urge you to reflect on your comments, and to apologize to those Americans, of all faiths and of all national origins, who have joined together in a great moment of national healing following this terrible tragedy. Hate and a perverse pleasure in the deaths of these heroes are inappropriate at a time like this.


Jerrold Nadler
Member of Congress

-----Original Message-----
From: American Muslim Council
Sent: Monday, February 03, 2003 8:22 PM
Subject: AMC Exec Director Message: Seeing the Signs

"The Book of Revelations," she said in pointing to her Bible, "tells of the things to come and the signs to watch for." This was the sum and substance of a conversation I happened to have with a fellow passenger on a plane ride the night before the spaceship Columbia disintegrated before the eyes of the world.

I have been tempted to contact her to ask if she sees a sign in the calamitous destruction of the one hundred and thirteenth space shuttle mission taking place over a city named Palestine, while on board was the first Israeli astronaut, who also happened to have been the pilot that bombed several years ago an Iraqi nuclear facility. I was curious how she -- or the Book of Revelations -- might view or explain this strangely ironic set of facts as war looms on the horizon.

However, I think that one need not possess any particular spiritual insight to discern a message from this shocking event. American technology, as flexed in the space program, is unparalleled among nations and in human history. But it is hardly infallible. As our nation beats the drums of war while banking on America's high-tech military capabilities, perhaps the unexpected deaths of those brave astronauts was meant to remind us that even the most sophisticated systems break down.

In the days and months ahead, NASA and others will conduct intensive investigations and analyses to determine the root cause of the spaceship's sudden destruction. Whatever resources or amount of time is needed will be devoted to finding and fixing the problem in order to avoid any other lives being lost. Perhaps this was meant as a reminder of how America should conduct itself -- exhaustively seeking solutions that save lives.

Until the Columbia blew up in just coming down to earth, little attention had been paid to the dangers of returning from the journey. Maybe this was meant to remind us that the risks in ending a mission are as great as the ones in beginning it.

Whether any of this amounts to a sign from God about America's future is a matter of one's beliefs. All that is certain is that, for the unforeseen deaths of those seven people, there is both an explanation and a reason.

Eric Erfan Vickers
Executive Director


OTHERS ARE NOT AS IMPRESSED BY STANLEY FISH'S RECENT STATEMENTS: Or they at least suggest that Fish's past statements aren't fully consistent with them. I haven't followed all of Fish's past comments closely, but John Rosenberg is usually quite reliable, and worth reading on this score.


CONGRESSMAN ENDORSES INTERNMENT OF JAPANESE-AMERICANS: Eric Muller, an expert on the internment, has the story.


STATE SYMBOLS: I've written on the question Eugene raises, at greatest length in 2000 in the Report of the Institute for Philosophy and Public Policy. (This is a big pdf document; unfortunately, I don't see any way to download my article without downloading the whole issue.) The short version: I'm with Eugene. It's not censorship for the state's own speech to be constrained by a refusal to celebrate histories of violence and injustice.

UPDATE: Three different readers have kindly gone to the trouble of extracting my article. I'm not sure this'll be any faster to download because of different server speeds, but here it is.


CONSERVATIVE THOUGHT: Have a look at this thread on conservative philosophy: Roger Scruton, Chris Bertram, Matthew Yglesias, Chris Bertram.

A few additional points.

One is that Scruton himself has claimed that conservatism is innately opposed to system-building and to being expressed as an extended argument rather than as a habit of mind. This, if true, makes it pretty difficult to write the sort of works that get taught in political philosophy classes. This, I think, underlies the point Chris makes about conservative thinkers being "allusive (and elusive) and more literary and historical in style," as well as the tendency he notes to give more serious treatment to libertarianism than to conservatism because the former has analytic-philosophy defenders including Nozick, Narveson, and Schmidtz. Indeed, even if I wanted to, I'd have a hard time deliberately adding conservatives to a course on contemporary theories of justice. MacIntyre (a strange case) is already on such syllabi. John Finnis and Robert George, leading Catholic natural law analytic philosophers, don't really write on the topics covered in such a course, though they do belong on syllabi about philosophy of law or about freedom and morality. I think Harvey Mansfield once wrote an extended critique of the whole Rawls-and-after industry, which I suppose could go on the list. Peter Berkowitz's book on virtue would be possible, though it's avowedly liberal. There's John Kekes and John Gray, about whom I shall refrain from further comment. Beyond them... what? who? (By contrast, libertarian, welfare-liberal, socialist, and global-redistributionist positions on the topics treated in such a course are each defended and interrogated by more philosophers than could possibly fit onto the syllabus.)

Relatedly: Anglo-American conservatism has always been thin on the ground, because the British and American "traditions" have typically been understood as liberal. When the central cases of conservatism in a tradition are Burke and Oakeshott, then there's simply not much very conservative conservatism to go around. Adams and Calhoun are about as conservative as one gets in the traditional canon of American political thought. Of course, in a course on American political thought one can also teach the southern conservatives, and Russell Kirk. Britain has Stephens, Carlyle, Ruskin. These are all worth teaching, and reading, in some specialized contexts. But-- compared with a Continental tradition that includes de Maistre, Hegel, Fichte, Vico, Schmitt, Heidegger, etc--these just aren't dominant figures in the course of Anglo-American thought.

Finally: look. In my first semester at famously-left-leaning Brown University, in a basic intro to political philosophy, I read (among others) Plato, Locke, and Nozick. In my second semester, in a seminar on "the history of liberalism" taught by the then-president of the university, I read Burke, Acton, and Hayek. And in my third semester I read Devlin in philosophy of law. Was I assigned Rawls more often than I was any one of these writers? Sure. But I wasn't stuck reading only the Rawls-to-Marx side of the spectrum. I know from past experience that if I refer to the way things are done here at Chicago, no one takes it seriously as an argument against leftist bias, since, after all, this is the home of Friedman, Hayek, Strauss, and Bloom. I then point out that none of them has been here for a very long time now, and that as far as I can tell none of them caused the current undergraduate curriculum, but it doesn't get me anywhere, so I won't bother. I'll just say: disciplinary and methodological biases are real; and the professoriate tilts far to the left; but in my experience in philosophy and political science departments at three leading universities, I just haven't seen evidence that either right-leaning thinkers aren't taught or that right-leaning students aren't welcomed. Your mileage may vary, and certainly will if you're talking about literature programs. But Scruton wasn't.

Links: Philosoblogger Jim Ryan regularly makes the case for the importance of some of the conservative philosophers about whom I'm less enthusiastic. One of Scruton's complaints was that in the 1970s there were no conservative journals. Now-- just off the top of my head-- there's the American Journal of Jurisprudence, Public Affairs Quarterly, the Political Science Reviewer, the Intercollegiate Review, the Claremont Review of Books, Society, and History of Political Economy; and that's not counting either libertarian-leaning journals (the Cato Journal, the Independent Review, Critical Review [sort of], the Journal of Libertarian Studies, the Review of Austrian Economics, Social Philosophy & Policy) or public-intellectual/semipopular outlets such as Policy Review, Commentary, City Journal, the Hoover Digest, and First Things. UPDATE: Noah Millman continues the conversation.


STATUES TO PEOPLE WHO COMMITTED MASSACRES? Some of the material in Tongue Tied (motto: "Carping about the excesses of clueless crybabies since the turn of the century") tends to be apt criticisms of censorship and hypersensitivity. But some, it seems to me, is just off the mark. Here's one example:
Civil rights activists in Connecticut say a school administrative building that used to be named after a 17th century settler accused of atrocities against Indians should be officially renamed to avoid offending people, reports the Norwich Bulletin.

Activists want the Norwich board of education to rename the building formerly known as the John Mason School after the first black elected to that town’s city council. The building officially has not been called the Mason building for some years, though some people continue to refer to it as that.

Mason, one of the founders of Norwich, and a force of Englishmen and Mohegans are accused of burning down a Pequot village in 1637 during a war with the tribe. At least 400 men, women and children were said to have been killed.

"To continue to have a public building named in honor of a man of Captain Mason's ilk is insensitive and an affront to the city's non-white residents," said Jackie Owens, president of the local NAACP.
Here's what the Norwich Bulletin story says about Mason's conduct:
Mason, one of the founders of Norwich, led a force of approximately 90 Englishmen and 70 Mohegans under the command of Sachem Uncas in a raid during the Pequot War in 1637. The army burned down a Pequot village in Mystic in 1637, forming two circles around the encampment to kill any survivors fleeing the scene. At least 400 men, women and children were killed.

Mason's motives, and the strength of the village, are disputed. Atrocities were carried out on both sides during the war.
When the government names buildings, it seems to me, it's honoring the person being named -- and is thus saying that the person is deserving of public honor. It's eminently plausible (in my view, likely correct, but at least eminently plausible) to argue that someone like Mason doesn't deserve such honor, given what he had done. True, his actions probably weren't that heinous by the standards of the brutal time in which he lived; but in the absence of some very substantial countervailing heroism or other merit (beyond just being an important pioneer), they suggest that he wasn't a terribly good man, and thus not the sort of person that the government should be honoring.

     I often worry when people try to use government power to restrict what private people say. But what the government says should be a matter for decisionmaking by the government. A past government entity decided to honor Mason; the present government may properly decide to stop honoring him, and it's quite appropriate for the public to urge the government to do so.

UPDATE: Clayton Cramer writes, pointing to a paper he had written several years ago:
The actual circumstances of the burning of the village are quite a bit less Hitlerian than some people make it sound. . . .

Mason's party was outnumbered substantially by those in Fort Mystic, and there was another Indian village close enough to provide
reinforcements in short order. Mason's party stumbled onto the outskirts of Fort Mystic, thinking they were a lot further away than they were. The decision to burn the fort was a spur of the moment act as it became apparent that Mason's party was likely to be overwhelmed and tortured to death. Torture was a big part of Pequot operations, as it was for many Eastern Woodland Indians, and the Narragansetts, in their effort to get the English to remove their rivals the Pequots, seem to have mislead the English about cannibalism.
This makes me regret having deleted, without much thought, a clause that I had in an earlier draft of my post -- that my objection assumes that the account critical of Mason is correct. Indeed, the more justified Mason's actions seem to be, the weaker the objections to him would be. But in any event, my broader point remains: It's quite proper for people to urge that the government stop honoring people whose conduct seems to be, on balance, not worthy of great honor. There may and should be substantive discussions about what the person actually did, and naturally if the person is absolved there would no longer be grounds for objection. But given that there is at least a credible argument that Mason behaved quite badly (as well as credible arguments to the contrary), the objections can't be dismissed as hypersensitivity or attempted censorship.


MORE ON THE "RELIGION FROM THE BENCH" CASE: One correspondent writes:
I read your piece on the Volokh Conspiracy about the Catholic judge. I agree that it seems inappropriate. I also find it interesting that there is a second, (potentially) similar
action by a judge in the same week.

Big news here, and I think around the country, is the speech by Chief Judge Young of the United States District Court during the sentencing of Richard Reid. In being sentenced to (I believe I have this right) life plus 110 years (which, since there is no parole in the federal system seems a little unnecessary, but whatever), Reid took the opportunity (as he has apparently before) to declare himself a soldier on behalf of al Qaeda engaged in war with the U.S. Young, rather than just take, gave an impassioned 10 minute speech about Reid, civil liberties and America. Normally, I must say I would find this type of speech from a federal judge inappropriate, but on this one I'm not sure (which I
actually find pretty troubling).

To which I reply:
I'm not troubled by the judge in the Reid case, and I'm not troubled that I'm not troubled. A judge is an agent of the United States of America. He swears an oath to the Constitution. The United States government pays his paycheck. I don't think it's impermissible for the judge to openly avow that that Constitution is morally praiseworthy, that the United States is morally praiseworthy. And, as far as I can tell, it's pretty unremarkable for a judge at sentencing to issue some choice comments about how bad the crime of a criminal was. This seems to me like the judge a) endorsing the theory that underlies the terrorism statutes-- that terrorism isn't lawful combat, b) endorsing the Constitution, and c) saying that these things are morally desirable. All seems to me to be within the judicial charge. By contrast, a judge is not, qua judge, an interpreter of Catholic doctrine. Endorsing the Constitution counts as a public reason; an argument about the correct interpretation of Catholicism does not. (For those to whom this kind of distinction sounds familiar: I freely admit to being heavily influenced by
Kent Greenawalt.

What does anyone else think? What are the appropriate bounds of judicial editorializing? Matthew Yglesias has weighed in.


HIGH SCHOOL STUDENT GETS DETENTION FOR WEARING ANTI-ABORTION SWEATSHIRT: A clear constitutional violation, it seems to me -- hard to distinguish from Tinker v. Des Moines Indep. School Dist. (1969), which held that students couldn't be punished for wearing black armbands to protest the Vietnam War. The government acting as K-12 educator does have more power to restrict speech than it does when acting as sovereign, restricting people's speech on private property. Still, this power extends only to vulgarities and to speech that has a reasonable chance of causing actual disruption (such as fights and the like) in school. Mere offense to some viewers, which is all that apparently happened -- or was likely to happen -- here (and in Tinker) is not enough. Here's an excerpt from the story (though unfortunately the Web version is shorter than the full story, which I read on LEXIS):
A Chardon High School junior was disciplined yesterday after refusing to take off a sweatshirt declaring "Abortion Is Homicide." . . .

School administrators had ordered Bill [Noyes] to take off the sweatshirt or turn it inside out after complaints by two students who said they were offended by the message. . . .

"Abortion Is Homicide" stretches in white letters across the front of theblack hooded sweatshirt. The back reads: "You will not silence my message. You will not mock my God. You will stop the killing of my generation. Rock For Life."

Chardon Principal Doug DeLong said the shirt had to go when it became a disruption for at least two students in the school of more than 1,200. Chardon's policy handbook forbids students from wearing items that interfere with the educational environment, DeLong said.

"It sends a red flag up when students come to the office and complain about something on a shirt," he said. . . .
Thanks to Kevin Holtsberry, who first blogged about the story, and pointed me to it.


STRANGE CITATION. In ACLU v. Reno, 271 F3d 162 (2000)., the Third Circuit held that the Children's Online Pornography Act was unconstitutional under the First Amendment. (This decision was overturned by the Supreme Court last year). In the course of its opinion, the court wrote:
"Because the Internet has an 'international, geographically-borderless nature,' with the proper software every Web site is accessible to all other Internet users worldwide. Indeed, the Internet 'negates geometry. . . it is fundamentally and profoundly anti-spatial. You cannot say where it is or describe its memorable shape and proportions or tell a stranger how to get there. But you can find things in it without knowing where they are. The [Internet] is ambient -- nowhere in particular and everywhere at once.' Doe v. Roe, 191 Ariz. 313, 955 P.2d 951, 956 (Ariz. 1998).
Great quote! -- but it turns out that Doe v. Roe is a sexual abuse case that has absolutely nothing to do with the Internet, and the quote actually appears to come from William Mitchell's City of Bits. My current theory is that this was some lawclerk's clever prank, though maybe it was just a truly peculiar mis-citation. I'm sort of looking forward to seeing this perpetuate itself through the Federal Reporters in the future (there's already been one additional citation to Doe as the source of this quote . . .).


QUOTE OF THE WEEK: From my former boss Judge Kozinski:
Petitioner Pasqual Antonio-Martinez was a rope-maker in Guatemala in the 1970s. Unsatisfied with his paycheck, he took up more lucrative work as an enforcer for a group called the “Guerrilla Army of the Poor.” His new job was to go door-to-door shaking down local villagers for food and money to support the guerrillas, like an out-of-control UNICEF collector. . . .


"PROSECUTORS CHALLENGE HATE STATUTE": Yup, it's the prosecutors who are challenging the arrest, quite rightly discharging their constitutional obligations:
Prosecutors here say a statute used to charge a Charlotte High senior nearly two weeks ago is unconstitutional.

Authorities accused Daniel W. Lynn, 17, of handing out a racially inflammatory letter Jan. 16 at the school. The one-page flier used racist terms in asking "rednecks" to unite and fight black students.

"Get your fellow rednecks back we must come together as a people or soooon … the (blacks) will over populate our schools," it said.

Charlotte County sheriff's deputies arrested Lynn on probable cause for publishing a hate document, disrupting a school function and violation of probation, all misdemeanors.

According to Florida Statute 836.11, it is a first-degree misdemeanor to publish anonymously any written materials that expose individuals or religious groups to hatred, contempt, ridicule or abusive language.

A state court, however, ruled that statute unconstitutional several years ago [EV: See State v. Shank, 795 So. 2d 1067 (Fla. App. 2001)].

"We're bound to follow that (ruling)," assistant state attorney Daniel Feinberg said Wednesday.

"We can't charge any individual under that statute." . . .

Sheriff's Office spokeswoman Sgt. Donna Black said deputies consult the most recent statute books before making arrests. . . .
The defendant sounds like a scumbag, and he might be properly punished for violating school rules related to leafletting (I'm not sure whether there are such rules, and whether they're properly drafted), or for violating his probation conditions (I don't know the details on that, either). But he can't be punished under this statute, which is -- in the words of "Jon Kaney, general counsel for the Florida chapter of the nonprofit First Amendment Foundation" -- "unconstitutional as all get-out."


BURRO AND BURROW: So I actually had an opportunity to use this gag in class yesterday, and managed to catch a student with it. (He was a more or less willing participant in the vaccinate/canary/auspicious/asinine question, which I asked the class as a little diversion, so I don't feel that bad!) What's the difference between a burro and a burrow? Here's the answer.


STANLEY FISH: Eugene, Glenn, and Porphyrogenitus all seem surprised at the good sense of this Stanley Fish column (which I mentioned two weeks ago!) But Fish, like Morris Zapp, is a complicated guy. He plays at postmodernist provocation. But he also takes scholarship very seriously.
Literary criticism and partisan politics are both political in this general sense -- any style of their performance will be controversial in the field -- but the point of the one is to produce a true account of a poem, while the point of the second is to win elections. If you mix them up and try for an account of a poem that will help a favored candidate or advance a political cause (unlikely but possible scenarios), you will only be pretending to practice literary criticism, and you will be exploiting for partisan purposes the discipline in whose name you supposedly act.
He's an academic institution-builder who makes respected judgments across disciplines. He may have postmodernist understandings about grand moral truths, but he also understands that it's coherent, and desirable, to "tell the truth" without any Pontius Pilatian fudging or hand-waving. Read this one, too. The views in evidence in his Chronicle columns have, in general, been admirably hardheaded and devoid of "there's no such thing as free speech"-style posturing.

Tuesday, February 04, 2003


NO, THANK YOU: Visitors from StormFront, which linked to this site as a sample of what Web logs are -- please go away. This is the Internet, and you're technically free to keep reading our page, but since your goal is to find ways to better spread your "pro-white and anti-Jew message," would my being a Jew help persuade you to just close the window? That's right, Jew. In fact, of the nonanonymous bloggers on this site, the great majority are Jews, and the others -- well, they're only worse, because they're Aryans who seem to like Jews, no?

     Look, if you're still reading, don't you get it? We call ourselves The Volokh Conspiracy. That's obviously an allusion to the International Jewish Conspiracy, no? One of the creators of the Internet was Leonard Kleinrock -- coincidence? I think not! We control the banks; we control the media; we're sleeping with your daughters; now we're controlling cyberspace. What's the point of resisting, really?


MORE ON LIBRARY PRIVACY: I hope to post more on the question of library privacy and surveillance law, as my post earlier today drew a number of interesting responses. For now, however, take a look at this editorial from this Sunday's San Francisco Chronicle, Privacy and Security: A Librarian's Dilemma. The editorial explains that some libraries have responded to the USA Patriot Act by deleting records so the government can't get them. Here's one example:
Since Sept. 11, the Berkeley library has . . . reduced the amount of information it keeps. It now expunges records of a book's last reader after 30 days. It erases information on its computer server each day. Branches shred their handwritten Internet sign-up sheets at the end of each day - compared to once a week before Sept. 11 . . . .

"We're not being actively anti-government," said Jackie Griffin, Berkeley librarian. "We're trying to protect people's privacy. We're trying to provide something we have always promised our patrons - that they could use the library in comfort, safety and security."
     Now of course it would be silly to assume that just because Berkeley is doing this, the practice is widespread. And I don't question the legality of what they're doing. But I do find the attitude it reflects pretty disturbing, especially given that (as I understand it) at least one of the Sept. 11 hijackers used a public library computer to make his flight reservations for 9/11/01. The thinking seems to be that national security investigations to stop terrorism are a greater threat to America than terrorism itself, such that it's better to have the FBI come up with nothing than to allow the FBI to collect evidence successfully. Or maybe the real issue is that national secu y investigations pose a more direct threat to libraries, and that's what matters.


"MASTURBATE FOR PEACE": I assume this is a parody -- though who knows, these days? -- but in any event it has some really funny tidbits.


SHOCKING! I almost entirely agree with this article by Stanley Fish, as do InstaPundit and Porphyrogenitus, whom I thank for the pointer.


NUCLEAR REACTORS: Reader Steve Fairfax sent the following e-mail in response to Monday's post on nuclear reactors. As I mentioned before, I know little about the subject, and thus can't independently evaluate the things being said about it; but this message struck me as worth passing along:
My qualifications in brief: 3 degrees from MIT, one in Physics and two in Electrical Engineering and Computer Science. I worked in nuclear fusion (where you try to get light atoms to form heavier ones rather than splitting heavy atoms into lighter ones) for 20-odd years, culminating with being in charge of engineering for MIT's 3rd-generation fusion reactor, Alcator C-MOD. You can see it at I still give guest lectures at MIT to classes in nuclear safety for utility executives, and generally keep up with the field, so I would present myself as technically qualified. I left fusion in 1994 when I was forced to concede that the US government, accurately representing the collective will of the US people, has absolutely no real interest in developing clean, safe energy sources. Now I work in high reliability electric power systems for corporate data centers and similar "mission critical" applications.

Will the steam-moderated reactor work? Probably. The more relevant question is "Will it ever be used?" and the unfortunate answer is probably not.

There are many great ideas for both fission and fusion. Fission has the major advantage that it actually works, today, but fusion would work too, if I could only get someone to write me a check for $10 billion. The reactor I would build would make electricity, not money, which is a still higher goal.

The point I want to make to you is that no nuclear fission idea is likely to become viable in the present political climate. So-called environmentalists determined long ago to kill nuclear power, and they have been very effective. I use the term "so-called environmentalists" because by any objective standard (such as pollutants emitted, ecosystems disturbed, human deaths or injuries, etc.) nuclear power is quite literally orders of magnitude safer and cleaner than any other source of power.

That's a strong statement, and as such it requires strong evidence, which I don't propose to dump on you in an unsolicited email. The key to understanding the issues is to realize that nuclear fuel has roughly 1 million times the energy density of chemical fuels like coal, oil, natural gas, wood, wax, dung, etc. That means you need to disrupt only a tiny fraction as much of the Earth's surface or interior to extract it as you do to get coal or oil. You can afford to spend enormous sums on safety and isolation and disposal of waste, because there is only 1/1,000,000 as much to monitor or track or bury. Did you ever wonder what happens to coal wastes?

That factor of 1 million comes up over and over again, and one has to perform some rather extreme contortions, or simply lie and fear-monger, to win any argument regarding safety or environmental impact of nuclear power WHEN COMPARED TO THE ALTERNATIVES. The fact that we must choose one or the other, and that environmentalist opposition to nuclear power has resulted in our building many more coal and gas-fired power plants, is also widely ignored.

Now that our nation has operated over 100 plants for roughly 30 years, and what was pretty much a worst-case accident at Three Mile Island resulted in no deaths, injuries, or environmental damage, we are no longer talking about hypothetical situations. Every year that we burn oil or gas or coal rather than building new nuclear plants, we kill people with cancers and respiratory illnesses, in mines and at railroad crossings, in fires and steam leaks and explosions. One can go to the cemetery and see the dead, they are not hypothetical, they are dead.

Nuclear waste disposal is purely a political problem, one that the federal government has mishandled to the point that some Nevada residents speak openly of succession. As the proposal by Dr. Filippone clearly demonstrates, there are other, more attractive options. I have a few ideas myself, and I am neither the best nor brightest in this field. I do not claim that nuclear power is perfect or free from risk, but I am certain that it is far, far, safer and cleaner than any other option we have to choose from. The reactors in operation today are basically first-generation products; future designs would certainly offer significant advances in safety, reliability, economy, proliferation resistance, or whatever other attributes the public demands.

I realize that this is not your field, and that your blog is not a forum for debating energy policy. Your statement that it "sure would be nice if this is true" struck a chord. I submit to you that it would be nice if our nation could have a frank, fair, and open discussion of the benefits and dangers of nuclear power and the alternatives to nuclear power. Then, and only then, would Dr. Filippone and all the smart people like him get a chance to improve our health, safety, and welfare.


WILL MICHIGAN MATTER? The more I think about the affirmative action litigation against the University of Michigan, the more skeptical I become about whether the Supreme Court's holding will make much difference. If the Court upholds the UMichigan plans, business will continue as usual, to be sure. Should the Court strike down the plan, however, I suspect that the ultimate outcome on the ground -- that is the outcome in various admissions departments around the country -- might not change much at all, even at law schools (or perhaps especially at law schools).

There is not much doubt that federal law, specifically the Civil Rights Act of 1964, prohibits racial discrimination in employment. It is also clear that this Act, at least as interpreted by the courts, covers discrimination in favor of minority groups -- so-called "reverse discrimination." I believe it is fair to say, however, that many institutes of higher learning, and even some law schools, violate the prohibitions of the Civil Rights Act in their own hiring of new faculty. For instance, I am aware of schools only seeking to interview minority candidates for open positions. I am also aware of individual faculty members taking positions on new faculty hires that are patently illegal, such as refusing to vote for any white male candidate, irrespective of his qualifications. I have also been told that American Association of Law Schools (AALS) facilitates such discrimination by enabling law schools to confine their search to resumes of minority candidates, female candidates, or minority female candidates, but not white candidates, male candidates, or white male candidates.

If institutions of higher learning are willing to violate federal law to advance ethnic and gender diversity on their faculties, why would we not expect that these same institutions -- or at least a substantial subset of these institutions -- would be willing to violate federal law (or, in the case of state institutions, the Constitution) to advance ethnic and gender diversity among their students? I see no reason why universities' willingness to violate federal law would extend to one instance and not the other.

A final note: I should be clear that I have mixed feelings about the Michigan litigation. I believe diversity in the classroom is a positive good. So, too, is prohibiting government institutions from considering race in all but the most extreme circumstances. I am very sympathetic to the argument that private universities should be allowed to consider race in student admissions and faculty hiring to advance diversity or other goals, and I do not believe that the pursuit of diversity necessarily comes at the expense of academic merit. I would have little desire to attend or work at a lily-white institution. I am not calling for an end to all affirmative action. I am merely suggesting that an anti-affirmative action decision from the Supreme Court might not change the way many universities operate.


STANDING FOR THE ELEPHANTS: Earlier today the U.S. Court of Appeals handed down an interesting standing decision in ASPCA v. Ringling Brothers. The case involves a suit against the Ringling Brothers circus for its alleged mistreatment of Asian elephants in violation of the Endangered Species Act(ESA). At issue is whether a former Ringling Brothers employee, Thomas Rider, has standning to sue under the ESA because he used to tend the elephants in question, formed a “strong, personal attachment to these animals,” and is distraught at their mistreatment. Rider alleges that Ringling Brothers’ mistreatment of the elephants caused him to leave his job, and that he is unable to visit the elephants because doing so would cause “aesthetic and emotional injury” due to their mistreatment. This, Rider alleges, should be a sufficient injury to satisfy the constitutional standing inquiry under Article III. The D.C. Circuit agreed, holding that "an injury in fact can be found when a defendant adversely affects a plaintiff's enjoyment of flora or fauna, which the plaintiff wishes to enjoy again upon the cessation of the defendant's actions."

Interesting to note is that the usually meticulous Judge A. Raymond Randolph makes a slight error in his opinion for the court, although it does not impact the holding. According to Randolph’s opinion, Rider’s alleged injury was sufficient for standing purposes (at least in response to a motion to dismiss). Under the Supreme Court's opinion in Friends of the Earth v. Laidlaw, Randolph explains, the plaintiffs did not need to observe the pollution of the river in question in order to allege an injury sufficient for standing. Rather "it was sufficient that they detected the effects of the pollution on the ecology." By analogy, Rider need not witness the alleged mistreatment of the elephants in order to suffer an injury, it is sufficient that he can detect the effects. The problem is that under Laidlaw plaintiffs are not required to "detect[] . . . the effects . . . on the ecology" in order to have standing. To the contrary, the Laidlaw Court explicitly held that injury to the environment is not required for injury to the litigant: “The relevant showing for purposes of Article III standing . . . is not injury to the environment, but injury to the plaintiff.” Indeed, in Laidlawit was uncontroverted that the plaintiffs were unable to detect any effects on the river from Laidlaw's admittedly illegal emissions. Mere knowledge of a legal violation -- even without any tangible evidence of harm to the environment -- was sufficient for standing in Laidlaw.

I should note again that this error does not impact the D.C. Circuit’s ultimate holding. If anything, it makes Rider’s standing claim even stronger. It does, however, help illustrate how permissive standing in environmental cases has become.


YUGONE: This may be old hat to many of you, but I hadn't heard of this before -- Yugoslavia, even in name, is no more. "Lawmakers formally abolished Yugoslavia on Tuesday, replacing it with a loose union of its remaining two republics, Serbia and Montenegro," says Not clear just how vast the change will be in practice, though it seems nontrivial: "The agreement envisages almost complete sovereignty for the two republics, which will be linked only by a small joint administration running defense and foreign affairs. Serbia's capital, Belgrade, will remain the capital of the whole country." Still, it's a bit of a milestone symbolically.

     I was born not far from there -- in the Soviet Union, and specifically in Kiev, on Lenin Street. Now there's no more Soviet Union, no more Lenin Street, and the city is officially Kyiv. Good changes (except maybe the Kyiv part; I suspect that the Ukraine would prosper more if it stayed Russophone, though who knows?), but they still seem a bit odd at times.


FREE DEMOCRATS: Yesterday my sporadic dialup connection swallowed two long posts (with Blogger, if you've disconnected without noticing and you hit "post & publish" then your post is gone.) One was on Indian matters. The other was on the German Free Democrats. I like to keep tabs on the fortunes of liberal political parties--true liberal parties, not social democratic ones. The last couple of days have been a mixed bag for the FDP.

In the Lower Saxony elections, the Free Democrats passed the Greens, and improved their share of the vote to 8.1%. They'll now join the conservative Christian Democrats in a coalition government that will replace the Social Democratic-Green coalition.

In Hesse, the FDP vote share went from 5.1% to 7.9%-- but a) this was still behind the Greens and b) the FDP lost its share of the government of Hesse, because the CDU won a majority of seats and so no longer needs the FDP as a coalition partner.

Separately, former FDP deputy chairman Juergen Moellemann, who contributed to the party's disappointing showing in the federal elections last year because of a scandal involving secret donations used to publish anti-Israeli propaganda, is facing expulsion proceedings in the federal party. Today he survived an expulsion test at the state level, though; North Rhine-Westphalian Free Democrats failed to get the necessary 2/3 vote at a special meeting to consider expulsion. Moellemann's attempt to bring the FDP to an anti-Israeli platform was a terrible mistake (and helped to re-elect Schroeder, since if the FDP had won a couple more points then the CDU-FDP coalition would've had more seats than the SDP-Green coalition). I hope the federal party manages to get rid of him.

Tomorrow I'll reconstruct the Indian post...


VACCINATE, CANARY, AUSPICIOUS, ASININE: These words have something in common etymologically -- they all derive from the names of ___s. What goes in the ___, and what is the ___ that corresponds to each word? The answer is here; no need to e-mail in the guesses.


SMALL COUNTRIES: Michael McNeil has some cool data on countries (and not-quite-countries) with GNPs from the high middling range down to the very bottom. The lowest seems to be poor little Tokelau, which is administered by New Zealand; it has 1,500 inhabitants and a GDP of about $1.5 million, less than the assets of some people I know. Unfortunately, there's no table there of countries sorted by per-capita GDP, which would be interesting, too (though it's available elsewhere).

     Also don't miss the following post on the same blog, which shows various places by area. Cool stuff for geography geeks like me.


WHY I'M NOT A PRESCRIPTIVIST: Steve Postrel writes:
In partial defense of the language police, citing permissive dictionaries to justify new usage is begging the question. They are making a compound claim: 1) This usage is relatively new, and used to be thought incorrect. 2) The acceptance of this usage by editors, dictionary makers, readers, etc. impoverishes and reduces the precision of the language. 3) If we complain about it enough and ridicule the people who do it as ignorant solecists, they will stop this barbarism and we will preserve the richness and precision of English. It seems rather smug to point to the spreading acceptance of a putative barbarism as proof that there is nothing wrong with it.

As it happens, the argument against 2) that you cite in the case of "hopefully" seems compelling. That's a good way to argue the point. You could also say that 3) is almost always false, that by the time something has become widespread enough to complain about, getting rid of the new usage would cause more confusion than it would cure. That has validity in many cases.

I'm not willing to take the total permissiveness line as a general rule, though. For example, I have seen an explosion of what would formerly have been considered the misuse of "begging the question" in all sorts of places I wouldn't expect (WSJ editorial, I think, for example). This growing misuse makes the proper use of the term confusing, and there is no clean equivalent ("assuming what you are trying to prove" is not very elegant). If all of us punish the new usage with ridicule and opprobrium, maybe we can reverse this loss to language. But I admit that I'm not optimistic.
Steve, as usual, makes a forceful and thoughtful argument -- but I don't buy it, and here's why.

     It seems to me there are four approaches one can take to what is "correct" in English:

     I. Descriptivism: Correctness is defined by usage.

     II. Rule-based prescriptivism: What is correct is prescribed by something; but what is that something? Why, the rules of word formation, grammar, and so on. "Television" is wrong because it violates the rule that you can't mix Greek ("tele-") and Latin ("-vision"). "It's me" is wrong because it violates the rule that the object of the verb "to be" is in the nominative, not the objective; it should be "it's I." "Ice cream" is wrong because that can only properly mean cream made out of ice; the right term is "iced cream." "Hopefully, you will pay me money" can only mean "You will pay me the money, while you are full of hope." (All four of these claims have indeed been made by prescriptivists.) But this approach can't work satisfactorily, for three reasons:
  1. Rules have a limited scope; they can't tell you, for instance, what "momentarily" should mean.
  2. They sometimes lead you to ridiculous results, such as that "iced cream" is more correct than "ice cream."
  3. They make you ask: Who made these rules, and why should I think they define what's "correct," especially given the reality -- see (2) -- that longstanding English usage seems profoundly irreducible to these sorts of rules, and that to the extent it is guided by rules, there are often rival asserted rules that say this usage is permissible (for instance, that there's nothing wrong with mixing Greek and Latin, or with using "sentence adverbs" that modify the sentence and not a specific verb)? And to that question, there's not much of an answer.
     III. Authority-based prescriptivism: That leads us to the third option -- what is correct is prescribed by something, and that something is the Authority, some institution that tells us what we should do. This may avoid the first two objections to rule-based prescriptivism, because the authority can speak to each individual word, and can bow to popular demand when some usage (such as "iced cream") beco es well-settled enough.

     But then it just becomes more clear that the question is: Who decides who the authority is? Lots of people try to set themselves up as freelance authorities, but who elected them? And the one obvious answer, which is to defer to people who create dictionaries, who are linguistic professionals, runs into the fact that they're almost all descriptivists these days. And why are they descriptivists? Because they realize that no-one elected them, either, and that the only way they can act based on professional knowledge -- rather than their own personal preferences -- is by appealing to the ultimate authority of actual usage.

     IV. Personal Preference Prescriptivism: This finally leaves us with the fourth option -- what is correct is prescribed by something, and that's my own view about what should be correct. That's actually great if you're setting up the rules for your own writing (see yesterday's post on the subject), but it hardly seems terribly credible when you're trying to tell other people what's right and what's wrong.

     Now note that all of this goes to what's "right" and "wrong." I think descriptivism, which ultimately ends up being (for practical reasons) an authority-based prescriptivism that relies on modern descriptivist dictionaries, is the only way to judge whether a usage is correct -- but one can certainly use the arguments that Steve gives to suggest that some usage is confusing or inelegant or for some other reason should be avoided. It just doesn't seem to me to make sense to confuse those terms with the claim that a usage is "wrong," or the "right meaning" of a word is this-or-that, or that such-and-such "is not a word." If it's in use as a word, it's a word.


STUART TAYLOR CRITICIZES RACIAL PREFERENCES in his National Journal column this week. Well worth reading.


DONE WITH THE VIOLENCE AND THE LIES, NOW ON TO THE SEX: My First Amendment class finished the first unit (incitement) last week, and we're finishing up the second (defamation, and false statement of fact generally) today. We then begin the third unit (obscenity).


OXBLOG ON DINI: A characteristically good point from Josh Chafetz on OxBlog:
I've never seen a biology test that says, "Do you believe in evolution?" I've seen many that say, "Explain the theory of evolution." (Well, they're usually more specific than that, but you get the idea.)
One can argue that letters of recommendation are different from tests, but it seems to me the core point is a good one: University students should generally be evaluated based on what they know, not what they believe.


FBI SNOOPING IN LIBRARIES: There have been lots of news stories in the last year about fears that the FBI may be snooping around public libraries spying on patrons, especially after the USA Patriot Act. Meanwhile, a case is unfolding in federal court in Alexandria, Virginia, where this actually happened, and yet it doesn't seem to be drawing the same kind of attention. The case is the espionage prosecution of Brian Patrick Regan, accused of trying to sell classified information to Iraq, Libya, and China. According to a story by the Associated Press:
. . . FBI employees following Regan in June 2001 saw him at a computer in the Crofton, Md., public library, looking for, and then printing out, information about Iraqi and Libyan embassies in Europe. One surveillance team member, Jason Williams, said he saw Regan type in search terms for Iraqi embassies in Switzerland, Germany and France. He took some notes on what he had found, and printed out some pages, Williams said.

On another occasion that June, two other FBI surveillance team members, Ronald Good and William Wickman, said they saw what Regan had looked at by using the computer's "back" button after he left the library.
Why hasn't this been getting more attention? Perhaps no one knew about this part of the government's case until now. Or perhaps the idea of FBI surveillance at a public library sounds somewhat less sinister when connected to the facts of an actual case.

Monday, February 03, 2003


A DIFFERENT PERSPECTIVE ON USAGE: Here's an interesting view of the subject, which I think is largely compatible with my own, from Wirkman Virkkala:
Prescriptivists come in different varieties, and even those of us who watch our words closely won't go so far as to hold others to the standards that we apply to ourselves. For example, I am a PRESCRIPTIVIST, but a private one, not a UNIVERSALIZING PRESCRIPTIVIST.

By this I mean that while I embrace many of the special rules that get bandied about (though by no means all), I have the sense not to prescribe for others, at least most of the time.

For instance, "hopefully." I try never to use it as a short-hand for "I hope." Why? It seems loose and careless. And why is that Because the "language police" have brought it to my attention, and I've judged that alternative constructions, those that avoid the prohibited usage of "hopefully," are more elegant. But I don't believe that one should universalize this rule. I deem it a class thing. There are some people who use "hopefully" in ways that I won't, and that's OK for them. But because they hold to laxer standards doesn't mean that I will follow suit.

I also use a few uncommon words, and I often fall into a cadence that is not crisp, but approaching the languorous. I certainly don't want the rest of the world to write like me. I'm no Kantian -- I don't believe that everything I do should be a universal law. I aspire to something more than what I demand of others.

Take another instance where prescriptivism is often taken too far: the splitting of infinitives. Avoiding the split does indeed make the
construction seem less casual, since we naturally want to split many, many infinitives; to avoid splitting what is most often split will raise an eyebrow or two, and that's part of the point. Yes, I believe that formal phrasing can be good in many kinds of writing. But at least one time in ten the infinitive MUST be split, because otherwise you sound almost alien. Yes, sometimes the "to" must be separated from the infinitive proper.

One reason I feel to abridge this rule is that the prescriptivist theory behind the prohibition of the split makes almost no sense whatsoever.

So, you might ask, why not split them all the time?

Well, such an extreme reaction simply does not follow, any more than the old saw that without God everything would be permissible. I think it was Popper who argued that it doesn't matter where a theory comes from, or how you got it; it just matters that it passes the testing process. Similarly with rules. Who cares that this prohibition comes from nancy-boy Latin professors applying the rules of a dead language onto a very live one? If the rule improves your clarity or readability or elegance or persuasive power, then go for it! If it doesn't, then abandon the rule.

The Fifty-Minute Hour and Mr. Volokh are wrong, however, about "momentarily." The difference in usage they discuss is not so much between the old and the new but between the British and the American. There are many differences between these two branches of the language, and this word is one instance. For my part, I try to avoid words that lead to confusion like this; that's why I proscribe the usage of contranyms, such as "sanction." At the very least, Americans writing for Americans should not use the British usage!

But I won't get on a high horse about it.


INTELLIGENT DESIGN: So here's a question -- assume the intelligent design arguments are valid, and evolution turns out not to explain the existence of humans. That may prove an intelligent creator, but it tells us nothing about God. After all, the intelligent creators could well be alien beings from outer space (and if the question is how they came about, the answers might well be evolution, since we have no way of knowing whether the specific reasons to doubt evolution of humans on Earth would apply to the evolution of aliens on other planets). True, there's not much independent physical evidence for the existence of aliens, but there's not much independent physical evidence for the existence of God. And while the existence of God can't be disproven, at least right now, neither can the existence of intelligent aliens. It's a big universe, after all.

     But even if a God -- a supernatural creature -- did create humans, so what? This tells us nothing about whether God is deserving of worship, whether worship of God will yield eternal life, what God wants us to do, and even whether God wants us to do anything at all. It certainly doesn't tell us whether the Torah, the Bible, the Koran, or whatever other religious books are correct.

     Now obviously many people do believe that God should be worshiped, that such worship may bring eternal life, and that God wants us to do certain things; and I have no quarrel with that. But I don't see how, even if evolution is disproved, that position would be logically strengthened. On the other hand, unless one is a thoroughgoing Biblical literalist (in which case, I suspect, much of paleontology, geology, and other sciences should trouble one as much as does evolution), I don't see how accepting evolution would logically weaken one's belief in God's goodness, in eternal life, or in God's commandments. (In fact, unless I'm mistaken, many Christians do accept evolution as consistent with Christianity, taking the view that God set into motion the evolutionary process, and perhaps even imbued human beings with some special supernatural qualities -- souls -- that evolutionary theory has no comment on.)

     Naturally, if one genuinely thinks that evolution is bad science, that's a sufficient reason to oppose it. But even if that's so, what exactly is the logical or theological payoff of either result of the controversy?


GRISHAM SETTLES THE SCORE: John Grisham is known for penning page-turning legal thrillers. I think it's also fair to say that he is also known for his hostility to corporate America. In many of his books, the heroes are noble trial lawyers while the villains are sinister corporations and the lawyers who agree to defend them. Grisham is hardly the legal writer one would expect to assault the plaintiff's bar in print -- but it seems that is what he has done in his latest book, The King of Torts. According to this review, Grisham has shifted his sights from duplicitous insurance companies, greedy corporate developers, and tobacco executives to ambulance-chasing plaintiffs lawyers. Assuming this account is accurate -- and I have no reason to suspect otherwise -- it is nice to see that Grisham can be even-handed in his depictions of villainy. There is no doubt many corporations do many blameworthy things --but much the same can be said of the plaintiffs' bar. Not every mass tort civil action is a noble endeavor.


"WHY POLITICIANS LOVE AFFIRMATIVE ACTION": An interesting New Republic piece.


ANY LAW REVIEW BOOK REVIEW EDITORS OUT THERE? I know a good deal about the market for articles and student notes, but not much about the market for book reviews; and now it turns out that I have some questions about the subject (though not for a book review that I would myself write). If you are or were recently a book review editor at a law review, and would be kind enough to answer a few questions for me, I'd be much obliged. Please e-mail me at volokh at


"A NUCLEAR REACTOR THAT GENERATES ELECTRICITY FROM NUCLEAR WASTE": From the Economist; sure would be nice if this is true, though I'm not nearly knowledgeable enough on the subject to opine on that. Thanks to reader Kathy Fendel for the pointer.


SALMON BAKED IN SEA SALT: A friend of mine just raved about the following recipe that I passed along to her ("I FINALLY made that *amazing* salt-encased salmon . . . . It was fantastic!"), so I thought I'd post it in case some people are interested. I've made it myself several times, and really like it -- the salmon ends up extremely tender and moist. Don't worry about the sea salt making it too salty; the skin protects the fish well against this.
Salmon baked in sea salt

1 whole salmon, 5 to 6 pounds
Quite a bit of sea salt (NOT rock salt), probably about 3 to 4 pounds;
     it can be expensive in some stores, but not bad in others, such as Cost Plus
1 egg white per pound of sea salt
1 lemon
1 package dill
Aluminum foil

Remove the gills from the salmon, or have the fish seller do it for you.
Rinse the inside of the salmon.
Put sliced lemon and the sprigs of dill (no need to chop it) inside the salmon.

[The following process looks long and daunting, but it’s actually hot hard.]

Line a large roasting pan -- large enough to fit the whole salmon with aluminum foil.

Mix by hand sea salt and egg whites until the sea salt is sticky; this shouldn’t take long. If the salt doesn’t get sticky enough, add another egg white or two.

Put a layer (it needn’t be thick, but it should be thorough) of sea salt on the foil.

Put the salmon on top of the salt; try to keep the cavity relatively closed so the sea salt doesn’t get in. If the salmon doesn’t fit in the pan, you could let the head or the tail stick out and wrap it in the aluminum foil.

Put a layer of salt on top of the salmon, making sure that the entire salmon (except whatever part you might have wrapped in foil) gets covered.

Bake at 450 F for 10 minutes per pound.

When the salmon is done, the salt should be solid on top of it. Crack the salt, preferably with a hammer, and remove the top layer, trying not to get it in the cavity (if a bit gets in, that’s fine -- don’t worry too much about it).

Peel back the skin, which should be easy.

Remove the top half of the fish, preferably in biggish chunks and in a way that leaves the bones attached to the skeleton; this also shouldn’t be hard.

Remove and discard the skeleton, the lemon, the dill, and any salt that might have gotten into the cavity.

Remove the bottom half of the fish, preferably in biggish chunks and in a way that leaves the bottom part of the skin in the pan.

Discard the aluminum foil, sea salt, and the skin. (The aluminum foil should have kept the salt from sticking to the pan, and will save you some cleaning time.)


DINI AND MICRO-EVOLUTION: Last Friday, I posted a message from Paul Orwin defending Prof. Dini, though mentioning that I generally disagreed with it. I was a bit tired of the debate, so I didn't mention the bases for my disagreement -- I thought that the various posts had mostly covered them -- but here's one significant point about which I got several e-mails, and that I thought I'd mention.

     Many (perhaps most) creationists have no disagreement with micro-evolution -- the observed phenomenon of populations changing their makeup in response to natural selection, for instance when the use of antibiotics leads to the increase in the number of antibiotic-resistant infections. I doubt that they even have disagreement with the possibility of some entirely new traits emerging, for instance when natural selection plus mutation yields antibiotic-resistant infections that had never existed. As I understand it, the chief claim is that evolution cannot adequately explain macro-evolution -- the development of huge new anatomical systems that had never existed before, as is necessary if humans evolved from single-celled organisms.

     Belief in micro-evolution is, I suspect, necessary in at least some branches of medicine; and the evidence for micro-evolution is so clearly visible that it would be odd indeed if someone denied what's right in front of his eyes. Dini didn't ask people to affirm a belief in micro-evolution. Rather, he asked students "How do you think the human species originated?," and said that "If you cannot truthfully and forthrightly affirm a scientific answer to this question, then you should not seek my recommendation for admittance to further education in the biomedical sciences."

     It seems to me that it's eminently possible to be a good doctor and believe that the human species did not originate through macro-evolution; the origin of the human species is very rarely relevant to the practice of medicine. Moreover, I think it's possible to have a fundamentally scientific and thoughtful mindset and nonetheless believe that the human race originated as part of miraculous creation by God. It might seem odd at first; we might assume that people who believe in miracles are highly unlikely to become good scientists or even good appliers of science (which doctors are). But as I've argued before, that doesn't seem empirically true -- people can indeed be good scientists and still believe in the Virgin Birth, the Resurrection, and, I think, the divine creation of humanity.

     In fact, I guess that there are millions of creationist doctors out there, and their creationism does not generally affect their medical judgment. I may be wrong, but that's my sense of people's psychology, and the division that people often make in their heads between belief in long-past miracles and belief in a world that in fact generally operates according to scientific principles.

     So this, I think, helps explain why I think Dini's justification doesn't really work. Dini isn't asking people about their knowledge of something that will be relevant in a typical doctor's practice. He isn't even asking people about their understanding of a theory. Rather, he's asking them to honestly affirm the truth of a particular theory -- not just explain it, but state that this is their belief -- that runs contrary to many people's fundamental religious beliefs. To me, that's no different than asking them to honestly affirm that the Resurrection never happened, or that Jesus never turned water into wine. Perhaps Dini might have the constitutional right to condition his letters of reference on such an affirmation; but I think that such a decision is unfair, and religiously intolerant.


GROUP BLOGGING: As you've doubtless noticed, I've invited several new people to blog with us on this site, and I've been delighted by their input. I thought, though, that I might briefly explain why I think this sort of coblogging makes this site more valuable, both for readers and for us.

     1. Valuable to readers: My sense is that generally readers want (a) high-quality posts, (b) a considerable quantity of such posts, and (c) something of a consistent general approach, but with interesting variety. The desire for high quality (more on the details of what makes "quality" shortly) is obvious; but I think quantity is also generally important, at least to most readers. First, there's a necessary floor: When I go to a site, I want to feel relatively sure that there'll be several new posts since I've last visited (several, rather than just one, because then I have a higher chance of finding at least one new post I really like), or else I'll have wasted my time clicking. And, second, I think that, up to a point, more is better -- that, together of course with high quality, may be part of why InstaPundit is so wildly successful, and why other blogs, such as How Appealing, are quite popular as well.

     Low-quality quantity, of course, isn't very valuable; but that's why I've tried to select cobloggers with great care. I've looked for, and I think I've found, people who are (1) knowledgeable, (2) thoughtful, (3) intelligent, (4) articulate, (5) pleasant to read, and (6) polite and generally calm.

     Maintaining a consistent overall voice is also important, which is why I've tried to find people who are (6) compatible with our libertarian/conservative/centrist perspective, and (7) generally focused on the same broad areas we usually discuss. But while consistency is important, variety is, too. People can easily get tired of my hobby-horses: Guns; free speech; the war; language; pickled herring; guns; free speech; the war; language; cake; guns; free speech; . . . -- it can get tiring. Better to have a whole herd of hobby-horses, it seems to me.

     So that's the theory; what's the practice? I have no idea. I've gotten a handful of messages praising the addition of new bloggers; and I've gotten a handful suggesting that single-writer blogs are more interesting and better focused than multi-writer blogs. But I have no idea what the rest of our readers -- the over 99% who never write in about the subject -- think about this. I can say that we've often gotten visitors through links to various bloggers' posts, so presumably at least some people find these posts valuable.

     2. Valuable to us: But of course the blog works only if it's fun for the writers as well as for the readers. I like coblogging; it gives me the feeling of being part of a joint project with friends of mine, and I hope my friends think the same. (I personally know and very much like all the cobloggers except Jacob; and I hope to get to know Jacob, whom I now know only through his work, better.) It makes me feel like I'm not just getting my own ideas out there, but also the ideas of my friends, ideas that I usually agree with or at least find quite valuable. Just as an editor of a magazine can feel good about publishing others' work, so I feel good about publicizing my friends' views.

     Beyond that, I want the blog to be successful. My sense is more posts and more bloggers will bring more links and more readers (I may be mistaken, but that's my tentative guess), which will in turn create a greater audience for the ideas that I want to spread using this blog.

     As importantly, there are times when I neeed to cut back on my posting -- I might be swamped with work, or off on a trip, or just in need of a break. If the blog will remain silent for weeks as a result, my suspicion is that many regular readers will understandably stop visiting, and they might not come back when I return. But with several bloggers, there'll always be some interesting material that will keep readers coming, so if I stop posting for several days and then come back, the readership will still be there.

     In any case, that's my tentative thinking; I may well be wrong about this, and I'm of course happy to hear others' views on this (though my analysis is necessarily handicapped by my not knowing how representative any reader's views would be). But I thought I'd lay it out, in case others might be curious about why the Conspiracy is getting Vaster, and in case some of you might have been thinking about these broad matters on your own.


ROMAN POLANSKI: Polanski is in the news again, because his new movie The Pianist has generally gotten excellent reviews, and people are asking whether he should be nominated for an Academy Award despite his having committed statutory rape in the late 1970s, and then having fled the country to avoid punishment. I think the question of how one judges people who achieve great things in their fields, but who have serious moral failings in other parts of their lives, is a tough one, and I don't quite know where I stand on it. But I do want to mention, in case it's relevant, something that's often forgotten: Polanski's conduct apparently involved not just having sex with the 13-year-old, but giving her alcohol and a quaaludes beforehand -- something of an aggravating factor, it seems to me.


"AN INSIDER'S GUIDE TO THE 'STANS": An amusing and maybe-or-maybe-not enlightening take on the Central Asian former Soviet republics, from one who sounds like he knows (though I have no idea how accurate it really is). Thanks to Clayton Cramer for the pointer.

Sunday, February 02, 2003


COLORS: I wasn't going to mention this explicitly, but since three people e-mailed me to ask whether the lack of color on the blog is a technical glitch, I thought I'd mention that the answer is "no." We'll be switching back to our normal color scheme late Monday or early Tuesday.

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