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Saturday, May 10, 2003


More Web stuff from and about the apparent Case Western killer: Reader Mike O'Ronain e-mailed this, and I thought I'd pass it along (with a few omissions of irrelevant material); I don't have the time to turn the URLs into links, but you know what to do. Please note that I haven't checked the links or their contents.
Biswanath Halder's Domain was created om June 19, 2001 from Cleveland, OH

".ws" stands for "Web Site"

"Biswanath Halder's Homepage"

IP Address: []

"Guest Book" for this page points to:

Alternate "Biswanath Halder's Homepage"

IP Address: []

Resume(s) of Biswanath Halder

This web site is a BLOG in Cleveland, Ohio from the same apartment building
as Biswanath Halder!
Tuesday, August 8, 2000 (comments)

I'm less sick, and livin' it up at DMS! PS...Biswanath Halder (that odd old
Indian guy you always see at Fribley and Leutner) lives on the third floor
of my apartment. . . .
Saturday, January 13, 2001 (comments)

Woke up to the sound of Biswanath Halder calling so I can take him to this
place where they'll fix his computer. He's this wierd Indian guy that lives
on the third floor, I could go on and on about it but he gives Indians a bad
name so I won't. . . .

Could Biswanath Halder Indian Muslim?

[click here]

The E-mail address is one of the ones he uses.
UPDATE: Reader Neil Farbman points out:
The link in the last part of your posting of Mike O'Ronain's email (the part asking asking "Could Biswanath Halder Indian Muslim?") seems to be a vote by Biswanath Halder against the creation of a discussion group for Indian Muslims, so I think it's hardly evidence that he is Muslim.
Sounds right to me. I should also have made clear in the original post that I haven't checked the links or the contents (I've added that to the first paragraph now), but was just passing along the e-mail that I received.


Citations: David Bernstein asks:
Why do standard citation manuals require authors to state the city in which a book was published? Does it really help in locating a book to know that the book was published in "New York" or "London"?
Answer: yes, in at least three ways I can think of offhand.

1) Big global publishing houses often have different lists in different countries. Take Oxford University Press. It has thirteen separate publishing branches, and some of them publish quite a lot that's only available from them. Citing a book as New Delhi: Oxford University Press tells me how to find a book; just citing OUP may not, as the India office publishes a great deal of material not available from OUP USA or OUP UK.

2) The same book may have different distributors in different countries-- it may be available in the U.K. from OUP but in the U.S. from Harvard. A citation just to "OUP" might send the American researcher on a wild goose chase. This problem is much less severe in the internet age-- the availability of an American and a British Amazon that can be compared with each other usually solves it-- but it remains non-trivial.

3) But the real trouble comes with out-of-print sources-- or sources that have become out-of-print by the time some future researcher is trying to track down the references. Publishers go out of business. Different publishers had the same name, and didn't worry about it as they were separated by hundreds or thousands of miles. A long-since out-of-print source from a publisher that no longer exists would be much more difficult to track down without a geographical reference. One might not even know where to begin. An English-language source won't be in the Library of Congress if it was a 19th-century Australian political pamphlet. This problem is particularly on my mind these days, as I'm dealing with 18th- and 19th- century French sources; almost none of the publishers still exist. The city references help-- a lot.

The bluebook format seems to me to assume that no one's going to have any interest in tracking sources down who's not an immediate contemporary. My lawprof friends should know that, if you write something of enduring significance and publish it in a standard law review, future researchers may well curse you out for your discipline's rejection of longstanding conventions...

UPDATE: Nate Oman graciously dissents. (permalink bloggered; currently the second post.) He contrasts the bluebook style with a particularly dreadful hybrid style-- one that uses endnotes rather than footnotes (barbaric in the first place) and then, in the endnotes, uses Harvard citations instead of full citations, requiring a further leap to a list of works cited. This is awful; it's also pretty rare. Most journals and book publishers that use Harvard citations do so precisely in order to avoid extensive footnotes and endnotes.

In case that didn't make any sense to you, consider the following examples:

1) As Rawls (1971) argues, utilitarianism fails to respect the separateness of persons. [If you want to know what Rawls (1971) denotes, you go to the back of the article or book to the bibliography. Standard Harvard style.]

2) As Rawls (fn1) argues, utilitarianism fails to respect the separateness of persons. [At the bottom of that page:] FN 1: John Rawls, _A Theory of Justice_, Cambridge, MA: Harvard University Press, 1971. [This is classic Chicago style, and my strong preference. A variant would use an endnote rather than a footnote.]

3) As Rawls (n1) argues, utilitarianism fails to respect the separateness of persons. [At the back of the article, chapter, or book:] N1: Rawls 1971. [Then, iIf you want to know what Rawls (1971) denotes, you go to the back of the article or book to the bibliography.]

(3) is what Nate criticizes. I just went through a dozen journals I susbcribe or have subscribed to, and didn't find this anywhere. It would be the worst of both worlds-- but at least on a quick survey I can't find anyone who uses it, and even if there are some outlets that do it's surely not the only alternative to the bluebook!

Bluebook style is driven by the hundreds of footnotes per article in law reviews; every bit of compression of information helps. (And the hundreds of footnotes are, as I understand it, in part driven by the student-edited structure of law reviews.) It's a pretty good settlement, given that law review articles take the form that they do; it economizes on space pretty efficiently. But I can't see it as being actively preferable to Chicago-style footnotes.

A further note: David Bernstein had originally asked only about the merit of including city of publication. But the bluebook omits not only city but also publisher name. Nate thinks that including the year of publication, and the editor and translator if appropriate, will suffice to inform the reader of the edition of a work being consulted. Long out-of-print editions or works, or works from other countries, can be very difficult to track down if one has neither publisher nor city.

And Nate on the one hand criticizes both Harvard and Chicago styles for requiring one to look in more than one place for a reference, while on the other hand saying that incomplete information is OK because, these days, one can look everything else up online. Why is it harder to consult a bibliography conveniently contained within the same two covers as the original reference than to consult a search engine?


Alleged Case Western's killer past libel lawsuit: Reader Gerry Canavan points to this site that contains various documents relating to this suit. I haven't looked closely at them, but they do seem to shed some light on Biswanath Halder's personality. Some details of the libel seem connected to how he was behaving during the killings.


"Hospital seeks Klingon speaker": I found the key factual assertion -- that of the 60,000 mental patients in Multnomah County, enough insist on speaking only Klingon that this justifies hiring a special interpreter -- to be hard to believe; but I thought I'd pass this article from along in any case:
Position Available: Interpreter, must be fluent in Klingon.

The language created for the "Star Trek" TV series and movies is one of about 55 needed by the office that treats mental health patients in metropolitan Multnomah County.

"We have to provide information in all the languages our clients speak," said Jerry Jelusich, a procurement specialist for the county Department of Human Services, which serves about 60,000 mental health clients. . . .

"There are some cases where we've had mental health patients where this was all they would speak," said the county's purchasing administrator, Franna Hathaway.

County officials said that obligates them to respond with a Klingon-English interpreter . . . .


Soft America and Hard America: InstaPundit is right: This piece by Michael Barone is definitely worth reading.


Good luck: We're in the home stretch of the University of Chicago's annual wackiness, the Scavenger Hunt. Some of our student bloggers are busy hunting; many students are no doubt still working on the road trip segments; high government officials' phone numbers are being distributed; sleep is being skipped; and strange things appear all over campus. (I assume the trees with laminated leaves taped to the branches are part of it...? UPDATE: Apparently not.) Anyway, good luck to all the hunters.


A rare opportunity: Little Green Footballs points us to a Web page that apparently belongs to the alleged Case Western killer, Biswanath Halder. LGF specifically points out to Halder's antiwar activism, but the rest of the Web site, including his resume is interesting, too. I doubt that it gives one that much insight into the killer's mind, but who knows -- perhaps it might; and anyone with an Internet connection can try to figure it out.

     One point that may be worth flagging: His older resume reports that he got his B.S. degree in India in 1963, which suggests that he's likely (though of course not certainly) about 60; news accounts say he's 52. Obviously, this might mean the site belongs to the wrong guy, but it does show him as a 1999 MBA from Case Western, which matches the Web site; and it seems unlikely that there'd be two Biswanath Halders that fit this description. In any event, perhaps that is an interesting item, albeit a fairly small one, that one can get from the site (assuming, of course, that the site is honest, and that this is the same Halder); might there be other such items?

UPDATE: The AP story has been revised to say that Halder is 62, which fits the resume better; and other details suggest that this is the same Biswanath Halder.


New decision on surveillance of Internet search terms: During the debate over the USA Patriot Act, some opponents of the Act argued that the amendments to the Pen Register statute (18 USC 2701-11) gave the government the power to monitor the terms that users entered into Internet search engines with only a Pen Register order. As the Electronic Frontier Foundation warned in its analysis of the Patriot Act:
Be careful what you put in that Google search. The government may now spy on web surfing of innocent Americans, including terms entered into search engines, by merely telling a judge anywhere in the U.S. that the spying could lead to information that is "relevant" to an ongoing criminal investigation.
     As I explained in a recent law review article, this criticism is off-base (if you're really interested, look at pages 644-648). Whether the government may collect search terms that appear in URLs depends upon whether the search terms are "contents" under the Wiretap Act, and does not involve the Pen Register statute. Whether search terms are "contents" remains unclear, I noted, and the Patriot Act unfortunately did not clarify whether the government needs a Wiretap Order to conduct such monitoring. But the Patriot Act did not lower the privacy protection offered to search terms. (This hasn't stopped reporters from repeating EFF's claim as simply a factual statement about what the Patriot Act does, but that's another matter.)

     I mention all of this because yesterday the First Circuit decided a case applying the Wiretap Act to the Internet that seems to conclude that URL search terms are in fact "contents" under the Wiretap Act. You can read the opinion here; read my summary of the case here. There are some analytical weaknesses in the opinion and its scope isn't entirely clear (see the case summary for the details), but the opinion supports the view that the Wiretap Act protects URL search terms-- and it does so by interpreting language in the Wiretap Act that was unchanged by the Patriot Act. In other words, the opinion suggests that URL search terms are protected by the Wiretap Act, not the Pen Register statute, even after the Patriot Act.


"Vector control districts": Several people have written in to tell me that "vector control districts" are Californian administrative districts that have as their purpose the controlling of disease vectors, i.e. rats, mosquitoes. Some correspondents thought of them as yet another in the endlessly-proliferating number of pesky, slightly-intrusive, slightly-expensive Californian agencies and levels of government. Others thought their services obvious public goods. My original correspondent, the one who had listed them alongside taxes and state schools, writes: "It was on the list for humorous juxtaposition."


Elsewhere: You should be reading: Lawrence Solum's postings on the confirmation wars; David Plotz's "Rebuilding Iraq" series; Josh Cherniss on the relationship between Straussianism and neoconservatism (not nearly as close as has been made out) (plus more from Matt Yglesias); and Dan Drezner on a Middle Eastern free trade zone (a href="">ditto).


Case Western shootings: Matt Rustler has some thoughts.

Friday, May 09, 2003


Hypocrisy: Apropos this post from yesterday morning, Tom Round pointed me to a nice quote from an article by Jamie Boyle (a lawprof at Duke whom I know mostly through his work on intellectual property):
For some, integrity is attractive because we have given up on the notion of objectively correct moral positions and seek only consistency within a single person. (This idea can often be seen in the contemporary media where it is assumed that values are relative and actual assessments of good and evil impossible. In such a world the only way to sin, is to fall short of a standard that one has set oneself; thus hypocrisy and cover-up become the ultimate sins.)


Judicial fashion errors: Patrick Belton's (Oxblog) complaints about proposed new attire for the English judiciary remind me of this unfortunate dress choice, from the highest state court of Maryland (the Maryland Court of Appeals):

And, no, it's not just this one judge's fault -- it's apparently their uniform, doubtless handed down from earlier days when people thought it actually looked good. Thanks to How Appealing, where I first saw these robes; incidentally, I vaguely recall some picture that also included a hideous-looking cap, just to complete the ensemble -- if that's not my imagination, and someone actually has a pointer to it, please e-mail it to me at volokh at

UPDATE: It gets worse; reader Margaret Marks e-mailed me a pointer to this picture of the German Federal Constitutional Court, from Der Spiegel:


FURTHER UPDATE: Reader Yasser Mawji writes "The pictures you've posted thus far are actually quite tame compared to the almost farcical Santa Claus outfits worn by the Justices of the Supreme Court of Canada," and points me to the following as evidence:

Yup, we have a new winner. (STILL FURTHER UPDATE: Reader Ken Landa points out that these are ceremonial dress robes, and not the normal ones; the court's usual robes are much more sedate.)


Anne of Green Gables meets Sonny Bono: Well, not quite, but close enough. I understand that there's something of an Anne of Green Gables Cult, especially among the fairer sex, so I thought some readers might be interested in reading the following, from BNA's Internet Law News:

Canada has introduced a bill that would extend the copyright term for certain posthumously published works. Bill C-36, which may become known as the Lucy Maud Montgomery Copyright Term Extension Act, is of particular interest to the hiers of the Canadian author of Anne of Green Gables fame, whose unpublished work, including ten volumes of previously unpublished diaries, was scheduled to come into the public domain on January 1, 2004. If enacted, the bill would delay that until 2018. Bill at <> [Canadian Parliament] Backgrounder at <> [Industry Canada]
(Actually, this isn't quite as troubling as the Sonny Bono Copyright Term Extension Act, which extended the term of protection for a huge range of published works, though some people might object to both laws on similar grounds.)


Gun industry: I was talking to a journalist recently about gun laws, and he suggested that many gun control proposals fail because of opposition from the "powerful gun industry."

     Whatever one might say about the merits of gun control, the journalist's claim is mistaken. The gun industry, as the New York Times has pointed out (Mar. 18, 2000, and June 15, 1999), is composed of "small, marginally profitable companies," with a combined revenue of $1.5 billion to $2 billion per year. "By contrast, Ford and General Motors have revenues of over $140 billion a year each," and despite that, car design and use is pretty heavily regulated; likewise, alcohol, gambling, and many other industries (many of which are quite heavily regulated) are much more powerful than the gun industry. According to, in the 2000 federal election cycle (the last one for which they have full information), the total political contributions (counting only those of $200 or more) from industry members, PACs, and employees were under $4.4 million, which made the industry the 64th ranked contributor out of the over 80 that counted.

     The political power of the gun-rights movement stems not from the wealth or power of the industry, but from the number and passion of pro-gun-rights voters. The main force in these campaigns isn't the industry but the NRA, and, in the words of Prof. Robert Spitzer, a strong proponent of gun control,
The key to the NRA's effectiveness lies in its highly motivated mass membership and the organization's ability to bring pressure from that membership to bear at key moments and places. Central to this effectiveness is the fact that gun control opponents are more likely to engage in political action -- letter writing, contributing money, attending meetings, and the like -- than gun control proponents. As Congressional Quarterly observed, the NRA's strength rests with "a body of gun lovers linked by a common activity that continues even when the legislative front is quiet." And the New York Times observed: "The real power of the rifle association stems from the fervor of its members, their apparent devotion to a single, overriding issue, and their determination to judge politicians on a 'for-us-or-against-us basis."
(Robert Spitzer, The Politics of Gun Control 108.)

     I'd also say that the gun movement benefits from the support of many people who aren't NRA members but who are strong gun rights enthusiasts. But it's the pro-gun voters and activists, and not the gun industry, that are the main political force in favor of gun rights; and even the NRA itself is powerful only because of those pro-gun voters and activists.


Assault weapons ban: Jacob Sullum criticizes it, quite soundly, in my view.


Ideas and sentiments: A libertarian reader writes:

You seem to spend a lot of time criticizing people as homophobic or racist. Is this useful politically? Since neither of those views is inconsistent with libertarianism (in the absence of the initiation of force), wouldn't it make more sense to criticize the views of people who believe in things like government schools, taxation, or even vector control districts? [?? JTL] Those ideas are inconsistent with human liberty and more dangerous than racism, sexism, bigotry, homophobia, ageism, ad infinitum.
Well, first of all, I don't measure my writing agaist the standard of whether it's useful politically in some general way. (Useful to whom?)

Second of all, I do think that it *matters* for political effectiveness that one draw some boundaries. The large number of people who aren't especially committed to one political philosophy or another look for cues in deciding whom to support. A very important cue is, does this group include people I know I find morally unacceptable? Does it flirt with them, or tacitly rest on their support? As informational shorthands go, this one isn't too bad. People who aren't sure whether to support Jesse Jackson can learn something by his reactions to Louis Farrakhan. People who aren't sure whether to support George Bush can learn something by his reactions to, and his association with, Rick Santorum or Trent Lott. People who aren't sure whether to support libertarians could pretty reasonably decide to rely in part on libertarians' reactions to the Confederacy-supporters or anti-Semites or militia-group members on their fringes. The mainstream conservative movement learned this a long time ago; William Buckley knew that conservatism couldn't be effective without drawing clear lines between itself and, say, the John Birch Society.

Third: extended argument about the rights and wrongs of one or another kind of state action require, well, extended argument. I engage in such arguments in my scholarly work. Drawing attention to shameful sentiments and ideas-- sentiments and ideas already widely regarded as shameful-- is a comparative advantage of short blog posts and other public pieces.

The second and third points both rest on the following thought: there is a broad consensus about certain items in social life, a consensus that's worth preserving and taking care of even at some marginal cost to items that, on one's own political-philosophic view, might be more morally important. (This is a vaguely late-Rawlsian idea, but doesn't track the overlapping consensus especially closely.) In November-December almost everyone could have told some story about the relative unimportance of Trent Lott's professional future. The left might well have thought that more of its substantive aims could be accomplished if he stuck around as an albatross to hang around the Republicans' necks. (I had an exchange with Mark Kleiman on a point like this that I'm too lazy to look up and link to right now.) Surely it would be worth having a racist Senate Majority Leader if that meant a marginal increase in the number of poor children for whom health insurance could be secured! The right might have thought that the risk of Lott quitting the Senate and the seat switching hands, or just the risk involved in suffering an embarrassing defeat a month after a major electoral victory, meant that there would be a substantive cost to their preferred policies in getting rid of him. His presence in office didn't, by itself, affect the distribution of rights or resources, so why not just treat theLott question as a purely strategic one?

The answer, I think, is that preserving some bit of shared common ground about decent public discourse has some priority. For similar reasons, procedural norms have a priority in politics that they don't have simply morally. Everyone in politics has an obligation to monitor their own side as well as the other side for rulebreakers, violators of procedures, those who pose some threat to the stability of democratic institutions or to the rule of law, and to take action against such rulebreakers-- even if they might importantly advance goals that one thinks are morally more important than the procedures. (Now I'm out of Rawls-land into George Klosko-land.) Bloggers and journalists can be good at monitoring that sort of thing, too.


Arggh: Just got out of a nearly 4-hour-long faculty meeting. At UCLA Law School -- though not at all law schools -- decisions about whom to hire and to promote are ultimately made by either the entire tenured or tenure-track faculty, or sometimes by the entire tenured faculty. Specialized appointments committees do play a role, but the ultimate decision whether to hire or promote someone is ultimately the faculty's, not the dean's or (generally speaking) the committee's. Whether this is a good system is an old debate, which I won't rehearse here. Suffice it to say, though, that while this system might be better than the alternatives, it sure isn't terribly pleasant. I love my job, but faculty meetings are not among its high points.


Clark medal: Hooray for my colleague Steve Levitt, as I've already said. But Brad's funny post makes me wonder about this business of having, as it were, an award that is either for lifetime achievement through age 40 or for expected value of lifetime achievement taken at age 40. (Yes, yes, "40 or less.") Is there anything else like this in academia?

I've heard it said that in mathematics, lifetime achievement by age 40 just is lifetime achievement, more or less, that nearly all of most scholars' breakthrough work is done when they're very young. But that's not true for economics. The Clark medal is a "rising star" prize; it's not a substitute for the Nobel. Clark winners often go on to win Nobels, but not only in virtue of the work they'd already done before winning the Clark.

If I were asked to judge such a prize for political science, I wouldn't begin to know how to proceed. I wouldn't be asked, since I'm untenured and below 40; but I can hardly imagine such a prize for the discipline. What would it measure? I know what a best book award is for. I know what an outstanding contribution to public administration might look like. I can make sense of best-dissertation-in-a-field. These are the kinds of awards given in political science. I can name a few people in my generation who've already made very significant contributions to political science-- but they're by definition not in the subfields that have increasing returns to time (area-knowledge-intensive comparative politics and historical work in political theory, for example), so the expected value of lifetime achievement measured now wouldn't track achievement-up-'till-now very closely. I get the sense that the Clark medal is supposed to capture both.

The Clark medal is described as being awarded by consensus; and the choices tend to be universally regarded as deserving. I'm quite sure that those things couldn't be true of a comparable award in political science. A real lifetime-achievement honor, like the presidency of APSA, might be like that; we do have enough of a consensus about who's made decisive contributions over a span of decades. But for people who have barely-if-at-all reached tenure? No. I have no confidence that there would be clear enough cases that the winner wouldn't be wholly dependent on the makeup of the committee.

What about those of you in other disciplines? Eugene? Kieran? Chris? Do your disciplines have anything like that? Could it make sense for them to? Would you trust such a prize?


Lone wolf FISA amendment is in, Patriot Act sunset stays: According to the New York Times, the Senate has reached a compromise on some changes that were being considered to the surveillance laws. First, Senator Hatch dropped his plans to seek a repeal of the Patriot Act's sunset provision, and in exchange, key Senate Democrats dropped their opposition to the so-called "lone wolf" amendment to the Foreign Intelligence Surveillance Act, which the Senate then quickly passed. On the whole, I think this is a positive compromise. The "lone wolf" amendment is on balance probably a good thing, and it will be better in the end if Congress can go through the Patriot Act section-by-section before it expires rather than repeal the sunset as a whole.

     So by now you're wondering, "but Kerr, what is this 'lone wolf' amendment?" Well, it's an amendment to the Foreign Intelligence Surveillance Act of 1978, aka FISA, a law that was designed to regulate U.S. government surveillance of foreign spies inside the United States. One of the questions that has kept coming up since 9/11 is whether changes in FISA are needed given that the threat has changed: in 1978, we worried about Soviet spies; today, we worry about al-Qaeda and their allies. What's the difference from the standpoint of surveillance law? Well, the new threat is a lot less centralized -- it consists of various secret groups and cells, and it can be hard if not impossible to see the connections among the groups. The "lone wolf" amendment is designed to allow monitoring under FISA when the government has probable cause to believe that an individual is a terrorist, but there isn't probable cause establishing a clear connection between that individual and another terrorist or a known terrorist group. In ot er words, the new law allows a "lone wolf" terrorist to be monitored under FISA. Current law requires proof that the individual is connected to a terrorist group or foreign power before a court would allow a FISA order to authorize monitoring under FISA; the new amendment takes away that limitation. Is the change a good thing? This isn't a slam dunk, but I think on balance it's a sensible amendment given the new threat. Reasonable minds can certainly differ, however.

     Finally, I can't help but point out the spin in the New York Times story on the Patriot Act provisions that currently face a sunset. The article announcing the compromise begins, "Senate Republicans backed down today from an effort to make permanent the sweeping antiterrorism powers in a 2001 act. . . ." Sweeping? Is that really accurate? Sure, that's the characterization that opponents of the Patriot Act put on the law, at least when they're talking to reporters. But I think it's misleading. The provisions facing the sunset aren't really that sweeping; they're more modest than an outsider would think or the press has reported. Controversial, yes; but sweeping, not really.


Victory Day: Today is "Dien' Pobiedy" (Victory Day) in Russia; I assume it's still celebrated there, as it was in the Soviet years, when it was a huge holiday, much more than V-E or V-J Day in the U.S -- on May 9, 1945, the Germans surrendered to the Russians.

     The Russians -- in this post, I include under that name all the other nations of the Russian Empire, such as the Ukrainians -- did tremendous evil in Eastern Europe (though probably less than they did to their own people, in part because the absolute worst of the Soviet regime was mostly over by 1945); and many of their devastating losses in World War II (the number that I'd heard was 20 million Russians killed) flowed from Stalin's crimes and folly, both before the war and during, as well as from Hitler's invasion. Nonetheless, had the Soviet Union surrendered, and spared themselves some of that blood, Hitler would likely have been able to retain Europe, and kill and enslave who knows how many more people.

     Western Europe thus probably owes its freedom to the Russians as much as to the Americans, though obviously the Russians quickly depleted after the war any goodwill to which they might have been entitled. Likewise, my parents, who as Russian Jews would have been butchered had the Nazis prevailed, owe their lives to Stalin's refusal to surrender, though they rightly loathed nearly all of the Soviet regime's other decisions. It is of such odd realities that history is made.

Thursday, May 08, 2003


The Dumb Idea: Suing Over Judges: Several readers want an explanation as to why I wrote filing a lawsuit in federal court to challenge the Democratic filibusters of various judicial nominations is such a dumb idea. James Joyner gives it a qualified defense, while a reader from Northwestern University School of Law believes Senate Republicans have "a cognizable claim" and poses the question: "Is it politically dumb, legally dumb, constitutionally dumb, or some other kind of dumb?" My answer: All of the above. I'll (Briefly) take each in turn (albeit in a different order).

Constitutionally and Legally Dumb: There is certainly an argument that the effect of the Democratic filibusters is to alter the pre-existing constitutional norm, but I find it implausible that it is actually "unconstitutional." The Constitution identifies instances where majority votes are required as well as instances in which super-majorities are required, but the Constitution also grants each House the authority to determine its own rules of procedure -- as the Senate has done. Thus, even if one believes (as I do not) that the operation of the Senate's traditional rules contravene the intended constitutional design, such a claim is not judicially cognizable. If ever there was a "political question," this is it. Because the filibuster is a question of the Senate's internal rules, and the Constitution explicitly allocates authority over such rules to the Senate itself, such a case would be nonjusticiable. A court could only intervene by interposing itself into the internal business of the Senate -- something courts are (rightfully) loathe to do. Adding to the justiciability hurdle, I doubt members of the Senate even have standing to bring such a claim.

Politically Dumb: Insofar as the deadlock over judicial nominees has political fallout -- and the political fallout may well be negligible -- it hurts Democrats more than Republicans. The issue helped GOP candidates in the 2002 elections, and what little polling I have seen on the subejct since suggests that swing voters reject Senate Democrats' tactics more than they fear the President's "right-wing" nominees. (And I have yet to see a single poll that suggests the opposite.) Moreover, as others have noticed, filing a lawsuit could open Republicans to charges of hypocrisy.

Some Other Kind of Dumb: Finally, I think that a lawsuit challenging the Democratic filibuster reinforces the all-too-prevalent idea that all political disputes can and should be resolved in the courts. For reasons I won't go into now, I think that this is a pernicious idea, not to mention one that conservatives (theoretically) reject when they call for "judicial restraint" and "non-activist" judges (hence the charge of hypocrisy above).

ON A RELATED NOTE: Laurence Solum's latest post on the judicial nomination fights is very thoughtful (certainly more thoughtful than this hurried post) and a must read.

UPDATE: The Federalist Society has posted an exchange between law professors Stephen Presser and Michael Rappaport on the constitutionality of filibustering judges. Both are conservatives, though one (Presser) thinks the filibuster has constitutional problems, while the other (Rappaport) does not. I ultimately side with Rappaport's conclusion that "Although the Senate Democrats have a faulty constitutional vision, their tactics have not been unconstitutional." Note that neither endorses the idea of going to court to resolve the issue.

UPDATE: The Washington Post reports that Senate Majority Leader Bill Frist is going to seek a rule change to end the filibusters. The rule change is based on a proposal originally proposed by Democratic Senators Tom Harkin and Joseph Lieberman, and now championed by Senator Zell Miller. Let's see if it still gets such Democratic support. If so, the above would be moot.


Roberts, Circuit Judge: Howard Bashman reports the happy news that John G. Roberts, Jr. has been confirmed to the D.C. Circuit. Howard's assessment that Roberts is "one of the most highly qualified candidates imaginable to join the U.S. Court of Appeals for the D.C. Circuit" seems quite right to me. I look forward to reading Judge Roberts' opinions.


Another Bushism of the Day. Here's today's Bushism of the Day:
"I think war is a dangerous place." -- Washington, D.C., May 7, 2003
Here's the full context, which, as I keep saying, would have pretty useful for Slate to at least link to:
Q: Well, President Bush, you have expressed your condolences because of the death of the two Spanish journalists in Iraq. My question would be, do you think this was a mistake, firing against the Palestine Hotel, under which fire Jose Couso died? And, if so, would you apologize, do you think it's necessary to apologize before the Spanish government and the family of these journalists?

BUSH: I think war is a dangerous place. And I think that nobody would kill a journalist intentionally.
     With the context, it seems to me, the "Bushism" feels quite a bit different. While I might be wrong, the amusement value of the Bushism doesn't come from the reference to war as a place -- a reference that's literally unsound (a war is an event or a state of an affairs, not a place), but that might actually be either a permissible figurative usage (various non-places, for instance, are sometimes said to be "a bad place to be"), or at least a minor slip (check out the syntax of the first question that Bush was answering; people often do make slips in their oral remarks).

     Rather, the amusement comes from the quoted statement's seeming vacuousness: "I think war is a dangerous place." Well, duh!, one might think; what a rocket scientist he must be, declaiming sagely that he thinks war is a dangerous place. "War is hell," only derivative, bland, and mealy-mouthed.

     When one sees the context, however, the statement means something very different: Bush is stressing that these accidents will inevitably happen (because battlefields are dangerous places), probably suggesting that war correspondents knowingly face danger, and implicitly saying that since all we're talking about is an accident ("nobody would kill a journalist intentionally"), the condolences were enough and no further apology is required.

     Now I realize that the Bushism of the Day column is mostly trying to make a joke; but I think that, like many political jokes, it's a bit more than a joke: The suggestion is that Bush's statements substantively deserve to be mocked. But this time, like in some past Bushisms, looking at the statement in context provides a very different perspective. It's too bad that Slate doesn't provide any of that context, not even via a link.


Academic Legal Writing now available through the West Group site: See here. Thanks to Alice of a mad tea-party for letting me know; the publisher told me it would be up soon, but I didn't realize it would be that soon.


High school: Just came back from giving a lunchtime talk on guns to a student political club at Crossroads, a local private high school. They only gave me 30 minutes, so there wasn't time for a debate; I just gave some of the key data, and explained why I'm skeptical of gun control -- they should have someone else next week to present the other side. There were about a dozen students there (plus a teacher), and they seemed really interested in the subject. I much enjoyed it, as I expected I would.


"Nullius in verba." This is one of my favorite mottoes -- it's the motto of the Royal Society of London for the Improvement of Natural Knowledge, founded in 1663, and it means "nothing in words," a commitment to knowledge through experiment rather than scholastic theorizing.

     Of course, it does consign my own profession to irrelevance; but I like it anyway.

UPDATE: A little knowledge, or perhaps a little research, is a dangerous thing. Though I have certainly seen "nullius in verba" translated this way, Dr. Weevil (who knows his Latin) tells me, and Sasha echoes, that this is not the best translation (and possibly not even a plausible one, though that's less certain); the better translation is apparently "in the words of no one," and it might allude to a quote from Horace. That, the claim goes, would express a preference for experimentation as opposed to reliance on authority -- think of the Royal Society as an early version of the "Show-Me State."

     But, hey, I now like the motto of both translations, correct and otherwise. Double the fun!


Good news on terrorism: While there's always a chance that today is another September 10, it's important to note the signs that the war on terrorism is going well so far.


Conservatives, urban and rural: For some reason this morning I clicked on John Derbyshire's latest, something I'm not really in the habit of doing. It's... surprisingly interesting, and refreshingly honest. When Trent Lott was the hot topic, and then again when Santorum was, there was a lot of (in my opinion well-deserved) commentary about the uneasy relationship between nice intellectual conservatives in big east coast cities and the Bible Belt/ rural conservatives who provided the votes. Derbyshire owns up to the tension, sort of. He recognizes that it's there, recognizes how much he (and the opera-going and/or Star-Trek-loving NR crowd in general) doesn't share with the rural base. He's still willing to throw his lot in with them, and for reasons that at least look like reasons. Everyone should sometimes wonder whether their preferred political order mightn't rest on cultural foundations that aren't to their liking. Remember that Tocqueville thought a lot of the associational life of America was silly, and devoted to absurd causes, teetotalling and alcohol prohibition being the leading example. He still thought that that associational life had crucially desirable socio-political consequences. Of course, I wish that the cultural foundations were less to Derbyshire's liking-- he may not advocate sodomy laws, but his obsessive denigration of gay folks surely rivals that of the most devoted Leviticus-thumper. But still.

Then along comes a clear reminder that there are people it's simply indecent to even be in a broad-tent coalition with, that even in 2003 the most unreconstructed kind of southern racism is still out there. There are bounds of decency to be observed in every political direction; and everyone who hopes to be effective in politics has to engage in complicated and probably-unsatisfactory balancing acts. But, as I've noted before, I'm not a Republican because I'm unwilling to draw the line where the Republican Party draws it-- trying to exclude David Duke and Pat Buchanan but include Trent Lott and Rick Santorum and Pat Robertson and Louis Sheldon and their base constituencies. I still think it's right to push conservative intellectuals, especially those closely associated with the Republican Party, on their relationship to those base constituencies. I think they were wrong to limply say that, well, if anybody asked them they wouldn't support sodomy laws, instead of condemning Santorum and actively calling for the repeal of such laws. But I do recognize that no one's always going to be free of uneasy relationships to sort-of allies.

Of course, given budgetary developments in the past three years, not being a Republican is easier than ever-- libertarians are supposed to be tempted vote Republican and thereby trade in their opposition to intrusive government in exchange for getting a small government. If the Republicans increase the size of the state faster than Democrats, there's no temptation to be weighed at all.


Political extremists vandalize professor's homes: The UCLA Daily Bruin reports the following, and a memo from the Vice Chancellor bears this out:
Animal rights protesters vandalized the home of two UCLA researchers last week, according to a police report filed by the victims.

On-campus demonstrations that coincided with World Week for Animals in Laboratories were followed by protests in some researchers' neighborhoods Monday.

John Schlag, a neurobiology professor, and Madeleine Schlag-Rey, a neurobiology researcher, two targets of animal rights activists, said their home was damaged by protesters.

At 10:15 p.m. Monday night, Schlag said they heard a lot of noise on the street, followed by loud banging and kicking on their door.

"The way it proceeded . . . we felt that the door was going to be kicked in," Schlag-Rey said.

The Schlags, whose research focuses on the mechanisms of human sight, filed a police report with the Los Angeles Police Department that listed a broken street lamp and a broken door window as a result of the vandalism. Neighbors told the police that the suspects were wearing masks and dark clothing.

It is not yet known whether anyone has been arrested in connection to the incident.

The following morning, the Schlags noticed that a screen in the front of their house had been broken by a large rock thrown from the street. . . .

Though the police report labels the suspects as "protesters," Erica Sutherland, a member of the loosely organized animal rights group that ran the past week's events on campus, said members of her organization "don't participate in any illegal activity."

Sutherland, a third-year sociology student, said that she and other Students for Animal Liberation members were involved in demonstrations outside researchers' homes where protesters "educated neighbors."

"I think it's incredibly important that neighbors know that they are living near animal abusers," Sutherland said. . . .

Sutherland explained that she sees home protests as "completely fair" because the animals that are utilized in research can't escape their cages, and so the researchers shouldn't be able to hide or escape either.

Schlag-Rey had a different view. She said she sees the home protests, along with fliers distributed in their neighborhood that label the Schlags as "fanatics," more as a means of intimidation. . . .

The Schlags' studies on visual systems and eye movement in monkeys and humans may help researchers better understand disorders like dyslexia and hyperactivity, they said.

Schlag-Rey added that knowing where visual centers are located in the brain is useful for neurosurgeons who remove brain tumors; this information would allow them to steer clear of damaging patients' visual capabilities.

The Schlags emphasize that the protesters actions will not deter them from their research.

"We as researchers are not intimidated -- we are not hiding," Schlag-Rey said.
Pretty similar story to some anti-abortion extremism; too bad that the Los Angeles Times didn't cover this -- though the crime is fairly minor, the attempt to intimidate researchers for political reasons seems newsworthy. Naturally, such vandalism ought to be punished, though that's hard to do when the protesters wear masks. Cities are also constitutionally allowed to bar even peaceful residential picketing (the Supreme Court so held in Frisby v. Schultz (1989), which involved anti-abortion protesters), but to my knowledge Los Angeles doesn't have such an ordinance.


Draft of my forthcoming article now online: My forthcoming article on unauthorized access computer crime statutes is now available online in draft form: Cybercrime's Scope: Interpreting "Access" and "Authorization" in Computer Misuse Statutes, 78 New York University Law Review (forthcoming Nov. 2003). It's the first article to focus on an important question in the field of computer crime law that has vexed the courts in the last few years. Here's the issue. The federal government and all fifty states have enacted new criminal statutes that prohibit "unauthorized access" to computers, the most well known being the federal Computer Fraud and Abuse Act, 18 U.S.C. 1030. But what does it mean to "access" a computer? And when is access "unauthorized"? These questions turn out to be surprisingly difficult, and quite interesting from the standpoint of criminal law (how do we criminalize new forms of misconduct, and how do we interpret the scope of these new criminal laws?) and cyberlaw (how will the interpretation of the new laws shape how we use the Internet?). They also have lots of practical importance for the courts.

     As always, I'd be delighted to receive any comments on the paper; the final version won't be out until November, so there should be some time to tweak it between now and then.


Bennett's losses: It now appears, according to an interview quoted in The Corner, that one of the authors of the stories about Bill Bennett is saying the total losses were somewhat over $1 million over ten years, not $8 million -- i.e., a $100,000/year hobby:
SCARBOROUGH: OK, did he lose $8 million, though? He reported $8 million in losses, but is it minus $8 million?

GREEN: No, no, let's be real clear about that. No, no, let's be clear about that. That is net loss more than $1 million. These gambling records that we've got, they show losses, they show wins. He hit plenty of jackpots, $10,000, $15,000, $40,000, up to $80,000 jackpots. The problem is, is, he'd turn around and he would play them right back.
Makes me especially glad that I updated my original post very shortly after I initially posted it to reflect the uncertainty about the facts:
Bill Bennett and gambling: People are condemning Bill Bennett, who has taken on the role of a spokesman for virtue and morality, for what seems to be a gambling habit that has lost him $8 million over the last ten years. (UPDATE: Several people suggested the $8 million might be gross losses, without any offset for winnings; I checked several press accounts, and they've generally said that he's lost over $8 million over the last decade, which in normal parlance means net losses. The Newsweek article, for instance, says "Some casino estimates put his total losses over the past decade at more than $8 million." Nonetheless, Bennett suggests that he's "come out pretty close to even," though others doubt this, so it's possible that the reported losses don't include winnings. See here for the New York Times account, which reflects this uncertainty.)
Losing over $1 million is still not "pretty close to even" in my book, though the term "pretty close" is a relative one; when the initial allegation is that you lost over $8 million, a response that, no, you came out "pretty close to even" means something different that if you were initially alleged to have lost just the $1 million. But more importantly, the change in accounts reminds us that we're not sure what the actual number was -- over $1 million, more, or less.


Have a friend or family member in law school? If you do, it seems to me that my brand spanking new Academic Legal Writing: Law Review Articles, Student Notes, and Seminar Papers -- personalized, if you'd like -- would be a thoughtful and useful gift. If the person is on a law journal, he may need to write a so-called "student note," which is essentially a student-written scholarly article; but in any event, if he takes any seminar classes, he may need to write a seminar paper. Unfortunately, while law schools require students to write these sorts of works, they never really teach them how to do it; the first-year writing class teaches legal writing generally, not academic legal writing in particular.

     If your friend or relative has just gotten onto a law journal, is just entering law school, or is starting the second or third year (most academic writing happens in those years) -- or is even out of law school, but interested in getting into teaching, or in writing law review articles for other purposes -- the book could be very useful. For some blurbs for the book from some top people (former Stanford dean Paul Brest, New Republic legal affairs editor and law professor Jeff Rosen, Bryan Garner [editor of Black's Law Dictionary and noted writer on legal writing], and others), plus the Foreword (by Judge Kozinski), the Table of Contents, the Introduction, and part of Part I, see here. The book is 189 pages long (not counting the endnotes and the index): meaty and thorough, but not daunting.

     If you'd like to buy a personalized copy of the book, just send me ( a paypal draft for $23.95 ($18.95 cover price, plus $4 to cover postage and the envelope, and $1 to cover the paypal fee), or $25.60 if you're in California, to cover the sales tax (yes, I will pass it along to the state), together with (1) the name and address to which you want the book sent, and (2) the inscription you'd like me to use. Or, if you prefer snail-mail, just send a check (for those amounts minus the paypal $1) and those two all-important pieces of information to:
Eugene Volokh
UCLA School of Law
405 Hilgard Ave.
Los Angeles, CA 90095
If you'd like an unpersonalized copy, I'd be happy to provide that, too, though you'll also be able to buy the book soon from and, and it's already available from the West Group site.


Quote of the day: From Oxblogger David Adesnik, over in Matt Yglesias' comments section:
[H]ow often does a Harvard blogger get to make fun of someone for being nerdier than he is?

Answer: Only when said someone is a member of the faculty at the University of Chicago!


Mark Kleiman on drugs: Mark Kleiman, who's one of the nation's top drug policy experts, reacts to a Slate piece on hallucinogens.


From Stu's Views, which I recommended a week or so ago:


Hypocrisy: Jonah Goldberg, in The Corner argues (as I have) that many of the "he's a hypocrite" arguments against Bennett actually rest on claims that his distinctions are wrong, and not really that he's hypocritical. He then goes on to say:
But for some reason this culture has a real problem saying people are wrong, but thinks it's easy to call people hypocrites. Worse, our culture thinks it's worse to be a hypocrite than to be wrong.
     I think this is an accurate and important point. Many people are reluctant to argue that people as wrong, because we realize that many moral disagreements come down to differences in fundamental moral axioms. We may believe that people who don't share our axioms are wrong, but we know we can't prove our axioms or disprove theirs, so arguing that they're wrong seems unsatisfying. "You're wrong, life doesn't begin at conception." "No, you're wrong, it does." People who like logic, and like to feel that they've won on logical grounds, don't much like these arguments -- some are embarrassed by them (perhaps because out of a sort of moral relativism as good manners, which suggests it's impolite to condemn others' moral axioms), some think they're practically unlikely to persuade, and some think that they're just logically unsatisfying.

     Arguments based on supposed inconsistency, though -- either hypocrisy, where a person's actions are allegedly inconsistent with his theories, or simple inconsitency, where two of his theories seem inconsistent each other -- seem more promising. The arguments don't require people to accept your moral axioms, or require you to condemn theirs; they operate based on logic alone. "X's arguments aren't just inconsistent with my views -- they're inconsistent with X's own. X, you should change your views. Others, you shouldn't accept X's positions." And sometimes such arguments can indeed be very effective: If you can show something to someone using arguments drawn from their own worldview, they're much more likely to accept it.

     But often these arguments about logical inconsistency are actually just arguments about moral axioms pretending to be purely logical arguments. "Those conservatives are such hypocrites -- they say they're pro-life, but they also vote for capital punishment." Well, that's because they draw a moral distinction between the lives of innocents and the lives of murderers. You may disagree with them on the merits, but this disagreement turns on differences in moral axioms, not the other side's lack of logic. (One can also object that "pro-life" is a bad term because it doesn't embody this distinction, and I'm therefore not wild about it; but, just like "pro-choice," which is surely not in favor of all choices, it's a term we're more or less stuck with for now, for want of a really good and politically acceptable alternative.) Likewise when people say "Those liberals are so inconsistent -- they support sexual freedom and freedom of expression, but not economic freedom." That's not inconsistency -- it may be error, but not inconsistency; liberals simply draw a moral distinction between noneconomic and economic life that others don't fully accept, and one can't dismiss this distinction as logically inconsistent, even though one can argue that it's morally or pragmatically unsound.

     Incidentally, this has a parallel in constitutional arguments: At times people argue that the courts shouldn't enforce liberty claims (such as ones based on substantive due process or a right to religious accommodation) outside certain specific enumerated guarantees, or at least grudgingly accept that the courts won't enforce such claims, because they concede that the legislature is generally entitled to enact its moral judgments (whether about sex or about economic life) into law; but they suggest that courts should apply equal protection rules to require that the judgments be implemented consistently. "OK, we reluctantly accept that the government may regulate sexual practices because it thinks they're immoral, but it should do so evenhandedly, without discriminating between homosexuals and heterosexuals." "Fine, we have no basis to set aside the legislature's judgment that businesses shouldn't charge above a certain rate, but there's no reason for it to impose them on some businesses but not on others." "We concede that the legislature may choose to ban marital status discrimination in housing without providing an exemption for landlords whose religion prohibits them from renting to unmarried couples, but the legislature may not then carve out an exemption for small apartment buildings where one unit is occupied by the landlord without also providing an equal exemption for the religious landlords."

     Sometimes, this equality argument might work, either because there's just no conceivable explanation for the different treatment, or because we have some reason to think that the grounds for distinction (e.g., race, religion, sex, etc.) are improper. But often the equality argument is just a way to bring up the very sorts of objections to the legislature's moral judgment that used to be made under the now-rejected liberty arguments. The distinctions within the legislative enactment are often as much part of the legislature's moral judgment as is the enactment itself: The legislature might just think that sexual practices done by certain people are morally different from sexual practices done by others, that the relationship between producer and consumer in some businesses is morally different from the relationship in others, or that landlords who have to live in a small complex have greater moral claims to choose their tenants than other landlords.

     Courts could, of course, challenge the propriety of these distinctions. But they'd have to acknowledge that they're second-guessing the legislature's moral judgment, rather than just applying impersonal, objective standards of logic.

     So I say again that it's quite proper to argue against people on moral grounds; and sometimes, it makes sense to claim that one's opponents are inconsistent. But often the other side's supposed logical inconsistencies in reality reflect substantive moral disagreement (or sometimes empirical disagreement), and not logical inconsistency at all. Better then to acknowledge that, and join the debate on the moral or empirical grounds, which are the real grounds of disagreement.


Confirmation Litigation: Newsday reports that some Senate Republicans are considering whether to file a lawsuit challenging Democratic obstruction of Bush's judicial nominees. (Link via who else). As much as I want to see some of these judges confirmed, this has to be one of the dumbest ideas I have ever heard.


Now look what I've started: One tart comment, and now Tushnet (Eve, not Mark) takes on Balkin.


Where are men from? Women, it is said, are from Venus, and men are from Mars. But many men (including me) just aren't very martial. Maybe we're from other planets: The mercurial are from Mercury; the jovial from Jupiter (that's where I'm from); the saturnine from Saturn. Sailors are from Neptune -- there's actually a very old and now obsolete term, "Neptunist," which referred to "[a] nautical person." The solitary (OK, the root is wrong here, but work with me here) are from the Sun. And the really far-out and eccentric are from Pluto.

     What's more -- and I am not making this up -- homosexuals are apparently from Uranus. From my New Shorter Oxford: "Uranian . . . . B n. A homosexual. Now arch. or literary." This is attested to the early 20th century, with "uranism" for "homosexuality" dating to the late 19th; I have seen it credited to Karl Heinrich Ulrichs, a German lawyer and early gay -- er, Uranian -- rights activist. The etymology apparently goes back to Plato, but philosophy makes my head hurt, so I'll leave it at that.


Private detectives and privacy: I've been thinking about writing a very short law review article on this issue some time, but I'm not sure I've fully thought through all the counterarguments -- maybe you folks can help.

     I have long been skeptical about claims that the law should recognize a right of informational privacy -- a right to stop others from communicating certain information that they've learned about you, whether it's your sexual practices, your shopping habits, or what have you. I think that contracts in which one side promises confidentiality should be fully enforceable, and I think that sometimes such a promise should be inferred into a contract (unless one of the parties specifically disclaims any such promise) when social expectations lead people to assume that confidentiality is being promised. But a broader right, often defended as giving us the right to "control . . . information about ourselves", is not proper. I've even argued that such a right would often violate the First Amendment.

     So here's my question: If you believe that people really do have a right to control information about themselves -- and therefore that businesses shouldn't be able to gather and communicate such information (let's set aside the contract argument for a moment) -- then shouldn't private detectives be outlawed? After all, the job of private detectives is generally to find out information about other people, information that they would like to keep confidential. This might be whether they're committing adultery, or whether they're embezzling from their employer, or whether they're involved with someone's daughter -- but all of this involves gathering information about other people.

     And even if the information is something that we think people don't have a legitimate right to keep private (e.g., their embezzling), in the process of gathering this information, the private detective may often gather other information: How much money the subject seems to be spending, what his vices are, who his acquaintances are, what he's bought recently, and so on. They may gather it by following the person, by questioning people from whom they've bought things, and so on. Even when the private detective is investigating a runaway child, whom the parents are entitled to try to find, the detective may report to his employers private information about lots of people who are related to the investigation, but who aren't guilty of any crime. This is the very sort of information that people often say should be kept private, and that the law should prevent others from communicating.

     Now one possible distinction is that private detectives gather information only when it really needs to be gathered (e.g., when someone might be committing a crime or violating a trust), while businesses that gather information about what we buy do so for less worthy reasons. But is that really so? There's no requirement that detectives' investigations be for noble motives; they could be animated by a worthy desire to defend oneself against crime or breach of trust, an unworthy desire to snoop into one's children's lives, or simply economic self-interest, akin to that which animates much gathering by businesses of information about clients and potential clients.

     Another possible distinction is that the detective usually conveys the information only to one person, which isn't much of a breach of privacy. But this person remains generally free to communicate it to others -- and, what's more, the person who hires the detective is often the one in whose hands the personal information about the investigated person will be most dangerous. What's the greater invasion of privacy -- that your personal dealings have been revealed to your parents, your prospective business partner, or your spouse (and perhaps the detective actually doesn't find evidence of adultery, but rather finds that you've done things that are not improper but that you legitimately want to keep private), or that various businesses know the kind of goods you buy at the supermarket?

     Finally, of course, most of us don't have to worry about being investigated by private detectives. Detectives are expensive, and our dealings are rarely of enough interest to people who are rich enough and motivated enough to hire detectives. But that just means that the aggregate privacy harm caused by private detectives to the average person is relatively small; the harm caused to the people who are investigated may be quite large.

     Naturally, the law should prohibit detectives from doing certain things -- breaking into our homes, probably photographing into our bedrooms with telephoto lenses (this may already be tortious), bribing our psychotherapists or lawyers to reveal information that they have a legal duty to keep private. But if you really believe that all of us have the right to control information about ourselves, shouldn't private detective work be per se illegal in the great majority of cases? Conversely, if you think that we should have a right to learn information about people, and to hire others to help them get this information, then how can we at the same time have a right to "control information . . . about ourselves"? Let me know, please, what arguments I've missed -- I may well use your input in my article, though I may or may not respond to it on-blog.

     (Incidentally, for purposes of this question I set aside the situation where the subject has consented to the investigation, perhaps as a condition of being hired into some sensitive position. Let's focus on detectives investigating people without their consent.)


The campaign reform case and retirements: From Roll Call:
The possibility that one or more Supreme Court justices could retire prior to the high court’s consideration of the new campaign finance law is sparking concern among legal experts that such a development could leave the high-profile case one judge short.

Amid speculation that Chief Justice William Rehnquist may hang up his robe when the court’s current term ends in July, and in light of the Democratic-led blockade of judicial nominees in the Senate, some campaign finance lawyers are wondering if the Bipartisan Campaign Reform Act might end up being decided by an eight-member court, or if such a court would be able to come to any decision at all. . . .

But if the fate of the McCain-Feingold law is squarely in Rehnquist’s hands, the fate of Rehnquist’s possible replacement could depend a great deal upon folks like Feingold, who is the ranking member on the Judiciary subcommittee on the Constitution, civil rights and property rights. If Rehnquist were to retire, “We can expect that if President Bush nominates someone who the [Democrats] view as not being centrist, there’s likely to be a confirmation fight,” [Loyola law professor Rick] Hasen concluded. Indeed, at a hearing this week on the breakdown in negotiations on judicial nominations, Feingold defended Democrats’ right to filibuster judicial nominees with “extreme views” that the “White House seems intent” on pushing through “in the shortest possible time.” . . .

If eight Supreme Court justices were to end up deadlocked 4-4 on campaign finance issues, last week’s controversial lower court decision, which struck some provisions in the soft-money ban and altered how issue ads are regulated, would become the rule of the land for the foreseeable future.

One D.C.-based GOP attorney who is also involved in the case said there is a “real likelihood” that any Bush nominee to the Supreme Court could face a long and sticky confirmation process given the current state of regard to judicial nominees.

“But I would be surprised if Justice Rehnquist or anyone else retires before September or October, when this is likely to be heard or decided by year-end,” the lawyer continued. “In other words, a retirement could come but not be effective until a later date -- and this case would be done by then, I presume.” . . .

Wednesday, May 07, 2003


O-S-C-A-R: One of my Roman law textbooks says:

The reception [of Roman law in Europe starting in the late Middle Ages] has often been deplored. It has been charged with facilitating unhealthy political and social developments; with substituting a highly technical legal system, intelligible only to specialists, for the living legal conscience of the people;[fn] and, especially in Germany, with cutting short the organic development of ancestral institutions.

The footnote says:

This, in fact, did arouse much bitterness against Roman law and its representatives. (It would seem that here is the origin of the slang expression "baloney": it means bolonais, i.e., originating in Bologna -- in other words, legal nonsense.)

Hans Julius Wolff, Roman Law: An Historical Introduction 206 & n.9 (1951). An historical! A lovely story about baloney. Unfortunately, it's not corroborated by the Oxford English Dictionary, which says, in its entry for baloney, boloney (n. and int.):

[Commonly regarded as f. BOLOGNA (sausage) but the connection remains conjectural.]

and doesn't list any English usages from before 1928, in the Saturday Evening Post, Nov. 28, p. 21: "Gee, that's a long shot. Boloney! That's not the ball -- it's the divot." Moreover, my French dictionary only lists "bolonais" as meaning "from Bologna," and my dictionary of French slang, which I took care to purchase when I was last in Paris, doesn't contain the word.


Houston, we have a problem: I actually got to use that expression at the Law Review, once when, during the day of bookproofs -- that's the long day (and sometimes night) each month when the Executive Editors (such as myself) would put an issue to bed -- an emergency came up and we had to call the President. The president of the Review at the time, my friend Bert Huang, was born in Houston.


Writers' block unblocked (or was it just plain laziness?). I'm happy to report that the article that I've been procrastinating about for the last few weeks -- a short essay on free speech and intellectual property that I promised to a conference put together by the University of Houston School of Law (the conference will fortunately be in Santa Fe, which I'm told is rather more scenic than Houston) -- has now been going very nicely. I've generally found that once I get a rough draft, no matter how rough, about 3/4 done, both finishing the last quarter and polishing the rest are much less painful. That's not true for everyone; some people like writing the first draft, but hate polishing it. But this is the way I work.

     Actually, if I really felt that "it just wouldn't write," and thus had to regretfully withdraw from the conference (something that I don't do lightly, and have never done this late in the process), I had a way to start my withdrawal: "Houston, we have a problem." But I'm certain that I would have felt too mortified to use something that jocular. Fortunately, it won't have to happen; I'm pretty sure that this won't be one of my most significant pieces, I'm sorry to say -- I do have some novel things to say, but not that many, and not that important -- but it ought to be fairly good, and I think it may be useful in some ways. Plus, this is certainly a hot area, so I will be glad to have written some more in it. (One reason I accepted the invitation to the conference was precisely that I knew I wanted to say something about the topic, and I correctly thought that only a looming deadline would be able to make me do that.)


Over 999,999 served: The Conspiracy has crossed the million-visitor mark. UPDATE: This is according to SiteMeter; the Extreme count passed a million a long time ago.


Strange reporting of the sniper story explained?: Back in October, I wrote two posts about somewhat odd stories in the New York Times about an alleged confession in the D.C. sniper case. My first post is available here; the second is here. The Washington City Paper has a pretty interesting story this week about Jayson Blair, the author of the Times pieces on the sniper, who has since been fired for plagiarism. It contains an extensive discussion of the stories that struck me as odd-- if you're interested, read the City Paper story here, and search for "DiBiagio" to start the discussion.


The ugly truth: It seems that my morning (and several times a day) ritual of Twinings tea with two packets of Equal and a squirt of ReaLemon tastes a lot (and, when poured into my dark blue UCLA Class of '93 mug, also looks a lot) like boiling water with two packets of Equal and a squirt of ReaLemon.

UPDATE: No, I didn't forget to put the tea bag in this morning; it was a controlled experiment, when I noticed that my sweetened lemon tea mainly tasted good because of the sweetener and the lemon. The tea is still useful when I drink it in the morning, on account a' it has caffeine. As for the sweetened lemon tea, hold the tea, apparently that's already been invented.


Current release date for Neal Stephenson's Quicksilver appears to be, according to the publisher's site, September 23, 2003. But it's slipped before, and might again.


Time magazine story: I sent the Time people an e-mail referring to Orin's post below, and requesting that they publish a correction. Let's see what they'll do.


Bill Bennett:

Here's the column about this, with ordering instructions -- it's apparently a real product. I've been in some measure defending Bennett, but this seems pretty funny, and a fair dig. Thanks to Andrew Sullivan for the pointer.


Time Magazine gets law wrong on library records access: This Time Magazine story on Section 215 of the Patriot Act has a big error that loyal Volokh Conspiracy readers should be able to spot. Here's the excerpt:
Before the Patriot Act, authorities could examine library records only after proving in open court that there was probable cause to suspect that a crime had been committed. . . . Now the government needs merely to convince a FISA court that looking at book-borrowing histories or library Internet usage is relevant to an ongoing terrorist investigation, whether or not a crime has been committed.
     As I posted yesterday, pre-Patriot Act law did not require a probable cause search warrant. A mere grand jury subpoena sufficed in the criminal context, and didn't even require that a crime be committed. The same is true today-- that very low standard is unchanged by the Patriot Act. Section 215 didn't change the law that governs access to library records in criminal investigations-- rather, it changed the standard in terrorism investigations by lowering it to mere relevance.

     Also, it's worth pointing out that probable cause is not "proved in open court" before a search warrant or other probable cause order is obtained. The affidavits are evaluated by the judge in ex parte proceedings hidden to the public. (This makes sense; if the government had to hold a public hearing as to whether a search could be conducted, criminals would send someone to the hearings to make sure that they weren't up next.) In most cases the affidavits are placed in the public record, but they can be sealed for cause.


More on slot machines: A reader, who says he works on slot machine software, reports that the matter varies from state to state:
Actually, there are some video poker machines that have 102% paytables. The casinos don't set many of them to that paytable (for obvious reasons), but they are out there. And if you consider that a 98% slot is just a little worse odds than craps, and better odds than roulette (or most other table games), you can come very close to even or better than even in the long run. . . .

New Jersey doesn't allow any slot to have a payback exceeding 100%.
Minnesota limits payback to less than 95%.
Most reel-based slot machines in Vegas have a top paytable of 98.5-99%, and most of the slots on the floor are set to that paytable. When you're paying 98 cents for dollar bills, volume makes all the difference.
(By the way, I should say that while I've heard of these better-than-even-with-perfect-play machines, I'm rather skeptical that it's practically possible for people to exploit them, especially over the long run -- among other things, I suspect that at some point the casino will kick the best players out. Still, it does seem like slots and video paker can be less of a losing game than some suggest.)


Slot machine payouts: This is highly tangential to the Bennett matter, but the question came up, so I thought I'd pass along some of the information that I've seen. Press accounts report that at many casinos, the payouts for some machines are over 95% (N.Y. Times, July 14, 1996), and that at some casinos, they're over 98% (Riverside Press Enterprise, Feb. 22, 2002); some Web sites likewise say that some machines pay out over 98%, or even that with perfect play at video poker (highly unlikely, of course) that one can indeed win over the long run, and that the casinos make their profit on the many imperfect players. I'm not sure how trustworthy the Web site accounts are, or for that matter, how trustworthy the press accounts are. But I know that some people have assumed that slot machines usually have a take of 10% or more, and that doesn't seem to be true as to many slot machines.

     Of course, I am not advising that you play the slots; I don't like gambling myself, and I find slot machines to be among the most dispiriting and unpleasant forms of gambling. The limits of my gambling are an occasional game of poker, literally nickel ante, with low raise limits, where people usually leave at most $10 up or $10 down (and of course, with no take for the house). I can see why poker with friends might be pleasant, but solitary gambling in a commercial establishment gives me the creeps. But while gambling is a losing proposition, it appears to be not quite as much of an expected loss per pull as some have suggested.


The book has arrived! Yup, my Academic Legal Writing is here, in print, glossy cover and everything. I'm so excited! Unfortunately, it's not yet available on or (the latter has a page set up for it, but lists it as not yet available) -- drat.


i-Loo: A Microsoft press release:
MSN Launches World's First ‘Internet Loo’

New WWW.C Offers Convenience Surfing Relief to Festival-goers this Summer

London - UK - April 30th 2003 - The UK’s most popular website is creating the world’s first ‘Internet Loo’. The iLoo will be mobile and is part of MSN’s mission to allow instant logging on ‘anytime and any place’.

In time for the summer festival season, MSN is in the process of converting a portable loo to create a unique experience for surfers looking for an alternative to the bog-standard festival loo experience. Users will be able to sit down, undock a wireless keyboard and conveniently access the first ever WWW.C.

A plasma screen will be located directly in front of them which can be adjusted to a desired height level. MSN is also in talks with toilet paper manufacturers to produce special web paper for those in need of URL inspiration.

Tracy Blacher, Marketing Manager at MSN said: “The internet’s so much a part of everyday life now that surfing on the loo was the next natural step. People used to reach for a book or mag when they were on the loo but now they’ll be logging on! It’s exciting to think that the smallest room can now be the gateway to the massive virtual world.’ . . .

MSN plan to install an external ‘Hotmail station’ on the outside of the MSN iLoo so people can do something useful while they queue. This will include a waterproof keyboard and plasma screen enabling users to surf the Internet whilst waiting.

The MSN iLoo has passed the planning stages and is in the early phase of construction. Details of its launch have not yet been announced but the MSN iLoo will be making an appearance at a majority of the summer season festivals. . . .
I wonder, though: (1) Given how unpleasant portable toilets are, wouldn't most people want to be done as quickly as possible, which means with a minimum amount of distraction? (2) If that's not so -- if people will indeed use this -- is it really good to have portable toilets that give people an incentive to occupy them longer, and keep others from using them for more urgent matters than Internet surfing? If I were either a festival organizer, I'd be hesitant to get something that gives users an incentive to linger, unless I get a really hefty cut from the access fees.

     On the other hand, maybe this is just a "performance art as corporate promotion" gimmick.


Another word puzzle: This one is, I think, pretty hard. There's a word that, if you add a "u" to it (not necessarily at the beginning), becomes nearly its opposite. (Just add the "u"; don't rearrange any other letters.) The original word is somewhat vulgar slang, and the new word is rather fancy and somewhat uncommon, though not ridiculously so. The words aren't precise antonyms, but they're somewhat close to it. Certainly calling a person one of these words (there's a hint for you) is practically inconsistent with calling him the other. The answer is here.


Gambling, taxes, and Bennett: My friend and colleague Victor Fleischer, of the Tax Policy blog, e-mails:
The casinos are likely to know how much Bennett won, as well as what he lost. Among other things, if he wins more than $10,000 the casino has to fill out a tax form. (Gambling winnings are, of course, taxable income, and losses may only be offset to the extent of winnings.) [From another e-mail: Nevada Gaming Regulation 6A requires that gaming patrons present identification and complete a currency transaction report, which is submitted to the Board within fifteen days when more than $10,000 worth of chips is purchased.] Casinos also track high rollers very closely, monitoring how much time they spend in the casino and what games they play as well as how much they win or lose.

Nonetheless, it seems possible from the context of the story that the casinos might be out to humiliate Bennett, in which case it's possible they distorted the reporting of his gambling experience by reporting gross losses rather than net. This would be highly unusual, given how gamblers and casinos discuss these things, but I suppose it's possible.

More likely, like most gamblers, Bennett is in denial about the extent of his losses. . . .

[Also, r]egarding the source of the information: Could happen one of two ways, I guess -- 1) Some casino owners don't like his politics and want to humiliate him, and so they break their usual custom of respecting privacy, or 2) a rogue casino employee leaks it to a reporter. But yes, . . . casinos usually do not talk to the public about their patrons -- although I think it is a custom and not a rule, and they do often compare notes with each other[,] say, to catch a suspected card-counter. . . .

Could be Bennett has a cause of action against the casinos, if he can figure out the leak. Not that he would want to pursue the case.


Here's an anti-Bennett argument that makes more sense: William Saletan in Slate does point to what, if it's quoted in context, indeed seems to be an inconsistency on Bennett's part. The value of Saletan's argument, it seems to me, is that it does point to Bennett's specific language that applies equally to gambling and to other things, rather than just asserting that gambling is a vice like other vices:
As drug czar in 1989 and 1990, [Bennett] constantly emphasized that anyone who patronized that addictive industry was responsible for its victims. On Meet the Press, he advocated mandatory sentences for "recreational, yuppie" marijuana users, blaming them for "the murder and mayhem in Washington, the fact that we have babies now being born addicted to cocaine. . . . These people are accessories to all those things, and they need to start paying a price." He told the Wall Street Journal that the "casual user . . . is driving the whole enterprise." He told USA Today, "For your middle class or your yuppie user, let's do what they do in Phoenix: Weekend in jail, counseling program, and you pay the cost of it." He criticized celebrities who admitted to past drug use, warning that such disclosures gave kids the idea that "you can do drugs and still be rich and successful."

You can argue (contrary to the National Gambling Impact Study Commission) that gambling doesn't trap and destroy people the way drugs do. But again, Bennett can't. The Index of Leading Cultural Indicators 2001, to which Bennett wrote the introduction, says, "Approximately 2.5 million adult Americans are pathological gamblers; another 3 million have been classified as problem gamblers. . . . According to the American Psychiatric Association, 'pathological gambling is persistent and recurrent maladaptive gambling behavior . . . that disrupts personal, family, or vocational pursuits.'"
I don't think the argument is open-and-shut -- for starters, the harms of drugs that Bennett was pointing to (cocaine-addicted badies, murder, and mayhem) seem to be considerably greater than those of gambling ("disrupt[ing] personal, family, or vocational pursuits"). Of course, many people (myself included) believe that at least the murder and mayhem effects of drugs stem more from the criminalization of drugs than from the drugs themselves. That, though, is a pretty contested issue; and my understanding is that even illegal gambling doesn't lead to quite as much crime as illegal drug dealing does, so if you do think that drugs should be illegal for other reasons as well (e.g., you think, as many do, that the aggregate harmful effects of drugs -- both crime and other forms of death and injury -- exceed the harmful effects of criminalization), you might think that the criminalization of drugs is necessary, and the harmful effects of the criminalization are indeed morally the responsibility of the drug users and not the drug warriors. But in any event, I do think that this specific point is more powerful than the general "he's a moralizer, how come he's being immoral?" arguments.

     Incidentally, while the Saletan quote is something of an indictment of Bennett's position on gambling, it's even more an indictment of his position on marijuana. Are there really problems with marijuana-addicted babies? Is there that much marijuana-related murder and mayhem? (I'm sure there's some, but my sense is that it's much less than with harder drugs.) Are the aggregate harms of legalizing marijuana (the harm of greater marijuana use minus the harm of criminalization) really greater than the aggregate harms of many other things, including gambling?


Total Information Awareness: Phil Carter reports on TIA being narrowed to information that's already in government databases. He supports the new narrower TIA, though he would also support a broader one, and thinks this may be the first step in that direction:
I think [excluding private-sector databases] is a mistake, because this data remains invaluable for the detection and prevention of terrorist activity.

But perhaps we're seeing the first baby step here towards TIA, and the Pentagon needs to "proof" the concept first before the American public will accept the use of this data. The purpose of all DARPA projects, initially, is to prove the concept. But now, the Pentagon also needs to make the TIA project as criticism-proof as possible, if it has any hope of survival. The DARPA folks are testing TIA for their own security-oriented purposes, and that of other interested agencies (like DHS). But they also need to demonstrate this system to the public, in order to build public trust in the system and answer the criticisms thus far that it will infringe on civil liberties. More to follow...
The "More to follow..." may be simply Phil's way of saying that he'll blog more on the subject, but it's also a suggestion that the slippery slope may well be in operation here -- I'd call it a mix of the simple attitude-altering slippery slope, either an erroneous evaluation slippery slope or an accurate evaluation slippery slope (depending on whether you think the public will correctly estimate the value of the project), and cost-lowering slippery slope (in the sense that providing the government with more experience about how to run TIA-type projects will lower the cost of broadening them in the future). But some slippery slopes are good, if you already think that what's at the bottom of the slope (e.g., the broader TIA) is good, or if you're not sure whether it's good but you think the first step might indeed provide useful information about the likely value of the next step, and you think that the political system will act soundly based on that information. And of course it's possible that the slippage won't occur, because the public will maintain the line between the government simply organizing the data that it already has, and the government also incorporating data from private sources. Interesting stuff.


More on the Baghdad looting: From the New York Times (thanks to InstaPundit for the pointer):
A top British Museum official said yesterday that his Iraqi counterparts told him they had largely emptied display cases at the National Museum in Baghdad months before the start of the Iraq war, storing many of the museum's most precious artifacts in secure "repositories."

The official, John E. Curtis, curator of the Near East Collection at the British Museum, who recently visited Iraq, said Baghdad museum officials had taken the action on the orders of Iraqi government authorities. When looting started, most of the treasures apparently remaining in display halls were those too large or bulky to have been moved for protection, Mr. Curtis said. . . .

In Iraq yesterday, American and Iraqi officials appeared to support this assessment, saying they still did not know precisely what was missing from the National Museum, because they had not yet had access to sites where art objects may have been hidden, or to rooms inside the building that were among the looters' targets. . . .

Such measures would mirror actions taken in Iraq before the Persian Gulf war in 1991, primarily as a protection against bombing of Baghdad.

Mr. Curtis's remarks may help explain recent reports by both Iraqi officials and American authorities that losses at the National Museum are less extensive than previously feared. For instance, Col. Matthew F. Bogdanos, a Marine reservist who is investigating the looting, said recently that Baghdad museum officials had listed only 25 artifacts as definitely missing.

Mr. Curtis said it appeared that a vast majority of the looting at the National Museum had not taken place in its display halls but in its basement storage rooms, where more commonplace objects were kept.

Some 100,000 to 200,000 objects were stored in the basements, British Museum officials said. Many of them may never have been photographed or cataloged.

As a result, Mr. MacGregor said, they are precisely the types of objects that can easily slip into the black market for looted artifacts. . . .


Sometimes, statistics isn't the answer: Brad DeLong complains about my supposed "lack of statistical literacy," pointing to my initial post about Bennett and gambling. He quotes my post as saying:
People are condemning Bill Bennett, who has taken on the role of a spokesman for virtue and morality, for what seems to be a gambling habit that has lost him $8 million over the last ten years.... Nonetheless, Bennett suggests that he's "come out pretty close to even," though others doubt this...
He then points out (as best I can paraphrase, but check the post out yourself and see) that if Bennett's expected loss was $8 million, then the chances of his actually having lost any less than $6 million were tiny. He therefore concludes that
The thing that people who paid attention in their statistics classes know--and that people who did not, don't--is how quickly and viciously the central limit theorem bites. Either (a) William Bennett is the luckiest man who ever lived, or (b) William Bennett's claim to be 'pretty close to even' is the biggest lie.
and then suggests that "that UCLA's senior law faculty (say) (along with many, many, many others) needs to be dragooned into an elementary statistics classroom, forced to learn the central limit theorem, and then have their tenure revoked if they cannot use it effectively."

     Well, let's take a close look at the argument. First, the argument simply assumes that Bennett's expected loss was $8 million. Where does that assumption come from? The alleged casino accounts are that Bennett's estimated loss was $8 million, but I highly doubt that the casinos are talking about his expected loss. They don't know how many times he pulled the lever; they're presumably operating based on their accounting of his purchases, debts, and cash-outs, not based on statistical estimates. Nothing in the story hints that the casino sources deduced this information using expected values. So if the loss estimated from various sources was $8 million, then the chances of his actually having lost any less than $6 million have nothing to do with statistics -- they have to do with how reliable the sources are. If the estimates are correct, then obviously he lost more than $6 million. If they're mistaken, then he may have lost a good deal less.

     Second, here's the full quote, without the ellipses, which may explain why I'm agnostic on the matter:
People are condemning Bill Bennett, who has taken on the role of a spokesman for virtue and morality, for what seems to be a gambling habit that has lost him $8 million over the last ten years. (UPDATE: Several people suggested the $8 million might be gross losses, without any offset for winnings; I checked several press accounts, and they've generally said that he's lost over $8 million over the last decade, which in normal parlance means net losses. The Newsweek article, for instance, says "Some casino estimates put his total losses over the past decade at more than $8 million." Nonetheless, Bennett suggests that he's "come out pretty close to even," though others doubt this, so it's possible that the reported losses don't include winnings. See here for the New York Times account, which reflects this uncertainty.)
Suddenly, the real issue becomes a bit clearer than it was when the intermediate sentences were removed. Some casinos are estimating the total losses at over $8 million, but Bennett explicitly says otherwise; instead, he's saying that he's come out pretty close to even (whatever exactly that means), and thus (returning to the previous paragraph) that the supposed casino estimates are mistaken or highly incomplete. This has little to do with statistics -- it's a question of fact. Bennett may be lying, but only if you think the casino estimates are sound, something that the article certainly doesn't prove. That's why I'm not sure who's right.

     So I'm rather perplexed by Prof. DeLong's post. Statistics are often tremendously important, as I've often pointed out to people myself. But this question, like many other important questions, has little to do with statistics, and more to do with whether you trust Bennett, anonymous sources, or neither.

     (Many thanks to Steve Verdon for similarly coming to my defense on this.)


Taxes, sex, and the constitution: My friend and new colleague Victor Fleischer asks "Are the proposed Earned Income Tax Credit reforms unconstitutional?" -- and it turns out the answer is "probably yes," for interesting reasons. (Yes, interesting even to people who aren't tax policy mavens.)


AHA to stop investiagting plagiarism: According to the Chronicle (subscription required), the AHA "announced this week that it will no longer investigate complaints alleging plagiarism or other forms of professional misconduct by historians." William J. Cronin, the head of the division that has handled such complaints,
argued that because the organization had no power to impose sanctions, the rulings it made on cases were largely meaningless. "We would send two letters, one to the person who was accused and the other to the person who made the accusation. That's it," he said. "How can you run a court that doesn't have any power to punish?"

He added that several recent high-profile cases of alleged plagiarism and scholarly fraud had convinced him and others in the association that the AHA should focus on education, not adjudication. "The Emory case was instructive to us," he said, referring to Michael Bellesiles, the former Emory University historian who resigned last fall in the wake of allegations that he had committed fraud in his book Arming America. "The institution had the power to do something, and it relied on AHA to understand the criteria that should be used for making that judgment. We're in a far better position to do that than to provide enforcement."
Carla Rahn Phillips, Cronin's predecessor, publicly criticized the decision. The Chronicle reports that the American Psychological Association, American Sociological Association, and American Political Science Association investigate charges of scholarly misconduct and ethical violations including plagiarism, and that all plan to continue to do so.

Tuesday, May 06, 2003


Privacy protection of library records before the Patriot Act-- surprising news: Librarian associations are making a lot of noise about Section 215 of the Patriot Act, which they fear can be used to obtain library circulation records and thus violate the "right to read." This raises an interesting question: what standard has law enforcement traditionally been allowed to use to obtain library circulation records before the Patriot Act? My research so far is telling me that law enforcement generally has been allowed to use a mere subpoena for this information. This is pretty interesting, because it suggests that Section 215 on the whole probably offers more privacy protection in the terrorism context than the law has traditionally offered in the criminal law context-- although to be fair, neither regimes offer much protection, and Section 215 clearly lowered the privacy protection in the terrorism context.

     The most extensive discussion of this issue I have come across so far is an Iowa Supreme Court case from 1983, Brown v. Johnston, 328 N.W.2d 510 (Iowa 1983). In this case, a library challenged a subpoena obtained by a state investigator who wanted to gather library circulation records to see if anyone had checked out books relating to the subject of a crime he was investigating. (In case you're interested, the crime was cattle mutilation-- remember, this is Iowa.) The court rejected the argument that an ordinary subpoena couldn't be used to collect library records. Here's the analysis:
  Brown and the library board also claimed constitutional protection of their right of privacy, based primarily on the first and fourteenth amendments to the United States Constitution, see N.A.A.C.P. v. Alabama, 357 U.S. 449, 460-61, 78 S.Ct. 1163, 1170, 2 L.Ed.2d 1488, 1498-99 (1958), as well as the fourth and ninth amendments, see State v. Pilcher, 242 N.W.2d 348, 356-57 (Iowa 1976). The effect of forced disclosure of library records would be to chill citizens' reading of unpopular or controversial books because others might learn of it, according to them, any such inquiry would invade their fourth amendment zone of privacy.
  Constitutional privileges against forced disclosure have been recognized in analogous circumstances. The Supreme Court recognized a qualified reporter's privilege based upon the first amendment in Branzburg, 408 U.S. at 680, 92 S.Ct. at 2656, 33 L.Ed.2d at 639; and the president's executive privilege was recognized in United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). Similarly, this court acknowledged a first-amendment privilege against forced disclosure in Lamberto v. Bown, 326 N.W.2d 305 (Iowa 1982) and in Winegard v. Oxberger, 258 N.W.2d 847 (Iowa 1977).
  These privileges, however, are not absolute; each claim of privilege must be weighed against a societal need for the information and the availability of it from other sources. Even if we assume, as Brown and the library board urge, that a library patron's privilege exists, based upon the patron's right of privacy, it is only a qualified privilege. We must weight the effect of forced disclosure of these records against the societal need for the information.
  Branzburg and Nixon are closely analogous. They, like the present case, involved claims of privilege in connection with criminal investigations. Branzburg held that a first-amendment privilege claimed by a reporter must be subordinated to the interest of society in well-founded grand jury indictments. Branzburg, 408 U.S. at 685, 92 S.Ct. at 2658, 33 L.Ed.2d at 642. In Nixon, the Supreme Court refused to apply the executive privilege claimed by the president in response to the government's request for information in a criminal investigation, because of the court's concern for the fair administration of criminal justice. Nixon, 418 U.S. at 711, 94 S.Ct. at 3109, 41 L.Ed.2d at 1066. See also Re Farber, 78 N.J. 259, 273, 394 A.2d 330, 337, cert. denied, 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670 (1978) (refused to apply first-amendment privilege in criminal investigation).
  We believe the rationale of these cases controls here. It is true the State's investigation was only preliminary; and as Brown and the library board argue, no suspects were identified nor was the search for information limited to any named library patrons. This does not diminish the need for the information, however, as we assume the whole purpose in examining the record was to gain enough information so that the investigation could be narrowed.
  The State's interest in well-founded criminal charges and the fair administration of criminal justice must be held to override the claim of privilege here. Brown and the library board have cited no cases to us which have reached a contrary conclusion under similar facts, and we have found none.
    Notably, some states have construed state laws as limiting the use of subpoenas in this way. For example, the Supreme Court of Colorado recently suggested that the Colorado state constitution would require a higher factual showing for such a disclosure sought by state officials (although it wouldn't apply to the federal government). See Tattered Cover, Inc. v. City of Thornton, 44 P.3d 1044 (Colo. 2002).


Additional information on suspicious 'Patriot Raid' story: As Instapundit notes, Chris Kelly has done some research into the somewhat odd story that came out last week about an alleged Patriot Act raid. (Read the original story here, and my earlier post about it here.) Chris concludes that he's less suspicious of the account than before. It's important to note, however, that his earlier suspicions concerned whether the raid took place at all, and if it did, whether the author's basic account was way off base. His tentative conclusion: the raid did in fact occur, and at least the basic outlines were as the author had said.

     We owe thanks to Chris for his research, but he doesn't quite cover what to me is the all-important question: assuming the raid occurred more or less as the author says, did the raid have anything at all to do with the Patriot Act? Law enforcement officers across the country execute hundreds of search warrants every week, and at least some of those end up targeting people who turn out to be innocent. Most of these cases receive little or no attention. What made this story newsworthy is the author's claim that this raid was not just an everyday immigration raid, but rather "a Patriot Act raid." The alleged connection is what made the story powerful-- the story attempts to connect the concern over the Patriot Act's potential for abuse to an actual concrete event. As best I can recall, no one has done this in the 18 months since the Patriot Act has passed. The author's evidence that the raid was a "Patriot Act raid" was ite thin, however-- a statement that one of the officers allegedly made during the execution of the search. The question is, does this connection between the raid and the Patriot Act actually exist?

     Okay, so here are the questions I think we should be asking about this event:
1) Did the raid have anything at all to do with the Patriot Act?
2) If the answer to (1) is "yes," what Section of the Patriot Act applied, and in what way?
3) If the answer to (1) is "no," did an officer executing the search in fact state -- incorrectly-- that the author was being held under the Patriot Act, as the author alleges?
4) Did the officers obtain a valid search warrant before executing the raid, or was it a warrantless search?


If the individual right to bear arms is recognized, what test should be applied to gun controls? In my post on the Supreme Court and Silveira, I suggested that even those Justices who support an individual rights view of the Second Amendment might be willing to uphold laws that don't substantially burden the right. Reader Brett Cashman writes:
Isn't the gold standard for civil liberties questions the "strict scrutiny" test, whereby legislative enactments trenching on constitutional rights need to achieve a compelling state interest by the least intrusive means possible?

I guess you can argue the assault weapons ban as a glass-half-full proposition (i.e., it's not very burdensome, instead of it's pointless and stupid), but doesn't that argument fail on "compelling state interest" grounds? What's the state's compelling interest in a legislative enactment that doesn't accomplish much of anything?

I'm not a lawyer, but I'd like to be one someday, and so this is something that interests me.
This is an excellent question, and a good occasion for me to quote a post from nearly a year ago. This will not give you a clear answer about what the right test is -- I've been trying for years to write an article on this issue, and it still isn't done -- but it might explain why this is not an easy question:

     As I’ve mentioned earlier, I believe the Second Amendment secures an individual right to bear arms; and 44 of the 50 state Bills of Rights protect a right to bear arms, almost all in clearly individual terms.

     But what exactly does this right mean to existing gun control laws? Should laws banning felons from owning guns be struck down? Background checks? Waiting periods? Assault weapons bans? Handgun bans? Prohibitions on concealed carry of guns?

     These are very interesting questions, and I’ve been thinking about them for several years. I even started writing a law review article on the subject, but then set my very early scribblings aside, partly because other projects arose, and partly because I knew I didn’t have much of an answer.

     But I do want to respond to one argument I’ve heard from pro-gun advocates, which is that “Any restrictions on gun rights must be subject to ‘strict scrutiny’ -- must be proven to be ‘narrowly tailored to a compelling government interest’ -- because that’s the test applicable to all constitutionally protected rights, such as free speech.” (I warned you that there’d be legalese; and there’s more coming.) The flip side of the argument is that “If courts refuse to apply strict scrutiny to gun rights, then they’re protecting these constitutional rights less than they protect other rights, which is wrong.”

     The difficulty with this argument is that strict scrutiny is not the test applicable to all constitutionally protected rights. It’s not even the test applicable to most such rights. Here’s a qucik and necessarily oversimplified list:
  1. Free speech: Some categories of speech (e.g., false statements of fact, obscenity, threats, etc.) are entirely unprotected, or protected at a fairly low level. Most speech is protected, but content-neutral restrictions that leave open ample alternative channels for speech are subject to a relatively weak intermediate scrutiny. Strict scrutiny applies only to (1a) content-based restrictions or (1b) content-neutral restrictions that fail to leave open ample alternative channels, and then only if (2) the restrictions apply to speech that's outside the First Amendment exceptions.

  2. Religious freedom: When it was interpreted as a substantive right, laws that placed substantial burdens on the right were subject to a weak form of strict scrutiny -- one much weaker than the more familiar "strict in theory, fatal in fact" scrutiny applied to content-based restrictions on core protected speech, or on race classifications. Religious freedom is now interpreted as an equality right, and subject to strong strict scrutiny, but only when a law discriminates against religious practice.

  3. Establishment Clause: Has its own test that doesn't mirror strict scrutiny.

  4. Fourth Amendment: Has its own test that turns partly on "reasonableness" and partly on historical requirements, and that doesn't mirror strict scrutiny.

  5. Criminal procedure provisions of the Fifth, Sixth, Seventh, and Eighth Amendments: Have their own tests that turn mainly on historical rules, with lots of historically influenced exceptions from constitutional protection. Generally do not mirror strict scrutiny.

  6. Takings Clause: As to physical takings, requires compensation without regard to strict scrutiny; as to regulatory takings, subject to a weak and ill-defined set of tests.

  7. Contracts Clause: Subject to a very weak form of intermediate scrutiny (though I think this is a big mistake).

  8. Abortion rights: After Planned Parenthood v. Casey, substantial burdens on pre-viability abortions (or post-viability abortions needed to protect the woman's life or health) are impermissible. Burdens that are not considered substantial are permissible.

  9. Right to marry: Substantial burdens on the right to marry are subject to a test that has been described as somewhere in between intermediate and strict scrutiny; but there haven't been enough cases to fully clarify this. There are apparently categorical limits to the right, for instance as to incest, polygamy, and same-sex marriage.

  10. Equal protection -- classifications based on legitimacy of birth: Intermediate scrutiny.

  11. Equal protection -- classifications based on citizenship: Strict scrutiny for classifications imposed by states, though with a categorical exception for certain activities that go to the core of sovereignty (e.g., voting, being a police officer). Rational basis scrutiny for classifications imposed by the federal government.

  12. Equal protection -- classifications based on sex: Ostensibly intermediate scrutiny, though in recent years phrased as something close to strict scrutiny, except in certain areas where there are significant biological differences between the genders, and possibly in other areas (such as military service) as well.

  13. Equal protection -- classifications based on race: Strict scrutiny.
     Some people criticize the courts for using so many different standards of review, and think that this seeming inconsistency only reflects judges’ personal preferences for some rights over others. Others -- myself generally included, though I certainly think there’s lots that’s wrong with many of the tests I mention above -- argue that different rights have different purposes, run up against different sets of government interests (and private interests), and can't all be governed by the same verbal formulation.

     But more importantly, it's simply not the case that all constitutional rights are governed by the strict scrutiny test, or that if the courts fail to apply the test to the right to bear arms (under the Second Amendment or under state constitutional provisions), they're therefore necessarily protecting the right less than it should be protected. The list above should show that this direct comparison simply doesn't work.


Iain Murray (Edge of England's Sword) goes to the Competitive Enterprise Institute: Iain Murray -- a first-rate blogger, who has actually guest-blogged for us before -- will be joining CEI, an equally first-rate organization. (Sasha worked there for a year, and really liked it.) Iain's past employer had some serious objections to Iain's blogging, which I think was quite unfortunate; I'm happy to hear that Iain will be able to continue blogging, though might have to cut back on the volume in some measure. (Work does that to you!) Special bonus: He gets to work with the lovely Hanah Metchis, of Quare.


Will the Supreme Court agree to hear the Silveira case? A lot of people are asking this question, which I think is very hard to answer. A few general thoughts:
  1. Except in rare cases (for instance, when a federal statute is struck down, and the federal government is petitioning for review), the odds are against the Court granting cert, even when there's a disagreement among the circuits -- a so-called "circuit split" -- on the legal question (as there is here, with the Fifth Circuit finding that the Second Amendment secures an individual right, and the other circuits, including the Ninth, rejecting that view).

  2. Here, the split does cut somewhat in favor of the Court agreeing to hear the case; and this is a sexy, juicy topic, which sometimes also cuts in favor. Sometimes, conventional wisdom says, the Court tries to duck the really controversial issues, but I'm not sure how true this is generally, and especially here.

  3. But the Court generally prefers to hear cases when its decision about the underlying legal issue, on which there's a conflict -- here, whether the Second Amendment secures an individual right -- is likely to make a difference to the bottom-line outcome. This isn't a hard-and-fast rule, but my sense is that this is the Justices' tendency; when something really rides on the legal question, the issue becomes less abstract.

         The trouble is that, even if there are five votes for finding that the Second Amendment secures an individual right, I highly doubt that there'll be that many votes for finding that assault weapons bans violate this right. This is because assault weapons are actually not materially different from other semiautomatic weapons; they are neither materially more harmful, nor are they materially more beneficial. If you can't own an assault weapon, you can still buy another weapon that's just as dangerous, and also just as effective. So I think this makes assault weapons bans pointless -- but it also makes them not very burdensome.

         My guess is that at least some of the Justices who might be inclined to take an individual rights view of the Second Amendment would also be willing to give the government a lot of room to regulate gun ownership, so long as the government doesn't ban guns. Their view would be "Whether or not we find an individual right, the assault weapons ban is a permissible regulation, because it's not very burdensome." (Think of this as the "substantial burden" test from the right to abortion, the right to marry, the pre-Employment Division v. Smith Free Exercise Clause cases, and some other fields, as applied to the right to bear arms.) So on the one hand they might find it appealing to grant certiorari, hear the case, and decide in favor of the individual right while reaffirming that the individual right position still leaves the government considerable power. But on the other hand, they may be reluctant to decide the theoretical question (individual right vs. collective right) when nothing ends up really riding on the subject; they might, for instance, want to wait until they can consider one of the cases changing the District of Columbia gun ban, where the result probably would ride on the individual vs. collective right question.

  4. One can also try to think this through by doing a head-count of the Justices, and guessing how they're likely to vote. But this is complicated by several factors:
    • Any petition for certiorari will likely be considered in early October, before the start of the next Term. If there are retirements, then the new Justices -- whose views we can't easily predict -- will have to decide the matter.

    • Since few of the Justices are on the record as to the Second Amendment -- Justice Scalia and Thomas have expressed some sympathy for the individual rights view, but even they aren't definite, and the other Justices have never expressed anything more than highly tangentially connected opinions on the subject -- it's hard to guess how they'd vote; and this is complicated by the fact that gun control is only partly a conservative vs. liberal issue. Many conservatives (perhaps including, for instance, Chief Justice Rehnquist) may be disposed towards leaving the government maximum flexibility in "crime control measures" such as gun bans. Some liberals (consider Judge Pregerson and Judge Gould in the Ninth Circuit) may be open towards recognizing an individual right. It's really hard to call this one.

    • If you're a Justice and aren't sure which way your colleagues will go, you might hesitate to vote for certiorari, for fear that they'll vote the wrong way. (When Justices are voting on the merits of a case, they generally feel obligated to vote the way they think is right on the merits; but as I understand it, votes on certiorari decisions are seen as different, and strategic voting is seen as permissible there.) So if you suspect there are three votes for the individual rights view, three for the collective rights view, and three who are uncertain, you might be reluctant to grant certiorari (and it takes four votes to grant certiorari). Much depends, of course, on whether you're more worried about the risk of reaching the wrong result or about the status quo -- and whether you think that things will be better for your position or worse for it the next time the issue comes before the Court.
So that's a long way of saying "I don't know" -- but I hope that now at least you know why I don't know.


Great "Day by Day" cartoon today:
And I highly recommend the strip more generally.


Interesting question about race in public schools, based on what seems to be a real practice in North Carolina:
Each month my daughters' elementary school sends home a newsletter with updates about goings-on at the school and in the school district. This month I noticed a listing of "strategies" that the school is implementing in order to meet the goals of its School Improvement Plan for 2003-2006. One of the strategies is this: "Minority students will be clustered when assigned to classrooms to reduce sense of isolation."

Query: may a public school district not under any sort of desegregation order or decree take race into account in assigning students to classrooms in order to achieve the objective of "reducing a sense of isolation?"
This is from fellow con law prof Eric Muller, and his blog links to the newsletter. I'm pretty sure the answer is "no," but the question is more interesting than my answer.


A bit more on Bennett: Reader Ethan Preston writes:
Four quick points about Bill Bennett's situation.

1) You are right to maintain a distinction between "hypocrite" and "logically inconsistent"/"mistaken." Presuming others' good faith is a charitable habit that promotes good civic discourse. In general, arguments should be won on their merits.

2) I think the perception is this: Bennett and his ilk do not presume others' good faith and much of his powerbase are not swayed by the merits of argument in any event. (Your counterhypothetical of the anti-abortionist is not, in my experience, atypical from the reality -- the slogan "abortion is murder" is not hyperbole for many.) Thus, Bennett's influence is largely immune to civic discourse.

3) Bennett is a powerful man, and his attackers perceive his influence as negative, even ruinous. Because his followers are not susceptible to the merits of counterarguments, he is only vulnerable to foul play and character assassination. (The fact that Bennett plans to curtail his gambling indicates that he is sensitive to unreasonable objections.) In order to curtail his ruinous influence, Bennett's critics are willing to stoop to character assassination (because civic discourse doesn't work, even though it should and even though they might prefer to use civic discourse).

4) The real problem and danger for Bill is that he got caught on a Slow News Day. Bottom line? Slow News Days are bad news for good civic discourse.
I particularly like item 4.


Zeusexuality: An anonymous reader, responding to the "zoosexuality" post from this morning, also suggests a similar term -- Zeusexuality, an orientation for having sex with Zeus, which apparently happened a good deal in ancient Greece (though the tales generally suggest that much such sex was not entirely voluntary, and thus perhaps shouldn't count as an orientation). What's more, I now realize that much Zeusexuality also constitutes zoosexuality, since Zeus would sometimes appear as a swan, a bull, and the like. Learn something new every day.


From Judge Kleinfeld's dissent in Silveira:
The panel’s protection of what it calls the “people’s right to bear arms” protects that “right” in the same fictional sense as the “people’s” rights are protected in a “people’s democratic republic.”
Pretty harsh, but actually literally quite accurate (though note that "people's right to bear arms" seems to be a characterization, albeit an accurate one, not a direct quote -- the direct quote, I suspect, is "the Second Amendment right to “bear arms” guarantees the right of the people to maintain effective state militias, but does not provide any type of individual right to own or possess weapons"). The original panel opinion, by the way, is here.


Hooray! Just got the signatures -- i.e., the printed but not yet bound pages -- for my Academic Legal Writing book. Haven't found any errors so far, but I'm not really looking, since it's too late to fix them in any case; my publisher says it's being bound even as we speak. Should be available at and Real Soon Now, presumably in a matter of days. Naturally, I will keep all of you posted.


Scalia's visit: Antonin Scalia has been at the U of C for the past two days. His major address was closed to all but students, so I can't report on it-- but from what I hear it's more or less the same talk I heard him give at Brown in 1990 and at Princeton in 1995, so that's OK. In any event, Will Baude and Amanda Butler report, react, and respond.


I did not know that! An article in the academic journal Sexuality & Culture taught me a new term -- "zoosexuality," which is the sexual orientation corresponding to the practice of bestiality. I suppose this also means that people who engage in bestiality are therefore "zoosexuals" (doubtless pronounced "zoh-oh-sexuals," as in "zoology," rather than "zoosexuals," as in "zoo"). A quick google search reflects that I'm way behind the curve, and that lots of people are indeed apparently familiar with these terms (though "bestiality" still out-googles "zoosexuality" by a factor of ostensibly 1000:1). Learn something new every day . . . .


Dissents in Ninth Circuit Second Amendment case: As How Appealing reports, the Ninth Circuit has denied rehearing en banc in Silveira v. Lockyer, which held that the Second Amendment doesn't secure an individual right to bear arms. Six judges, however, dissented (Republican appointees Kozinski, O'Scannlain, Kleinfeld, and T.G. Nelson, and Democratic appointees Pregerson and Gould); people have been having trouble getting the opinion from the Ninth Circuit Web site, so I've uploaded it here. More later.

UPDATE: Yup, Judge Pregerson, one of the most liberal judges on the Ninth Circuit -- and perhaps in the whole country -- dissents, saying that the Second Amendment secures an individual right. Oh, and two of the dissents cite Glenn Reynolds (that's InstaPundit to you and me), and one even cites me . . . .


The reality of sincere disagreement: I guess that one thing that's troubling me about the Bennett matter is the assumption -- which I've particularly seen in some e-mails -- that Bennett is a hypocrite because he thinks that gambling and social drinking (behavior that he himself engages in) is fine, but that drug use is immoral.

     As I mentioned in an earlier post, he might be wrong on this distinction, but it's a distinction that's pretty firmly embedded in our law -- all 50 states allow drinking, many allow some form of gambling, none allow drug use (except medical marijuana, and the use of some drugs by prescription). Now this judgment may well be mistaken. Bennett may well be mistaken for following it. But given the reality that otherwise reasonable, decent people disagree on these subjects, it seems quite plausible that Bennett is one of those people. The term "hypocrite" ought not become a synonym for "logically inconsistent" or "mistaken" (or even "logically inconsistent or mistaken in a manner that favors his personal preferences").

     Ah, but what about the fact that Bennett's moral distinctions track his personal preferences? Isn't that evidence of hypocrisy? Well, I'm not sure that hypocrisy would be the right term for that -- but beyond that, there's an alternative explanation for this coincidence: Maybe it's Bennett's personal prefrences that track his moral distinctions. Maybe he started gambling, social drinking, and heavy eating precisely because he thought they were morally acceptable, but never got into drugs precisely because he thought they were morally wrong.

     It's like pro-life people saying "Heh, funny that you think abortion is permissible -- mighty convenient for you, given that you might want to well get an abortion [if you're a woman] or urge your girlfriend to get an abortion [if you're a man]; and yet you oppose murder (or even much more minor assaults), since you yourself might be murdered or assaulted." I suppose there are some pro-choice people who do indeed think abortion isn't immoral just because this belief is convenient for them. But there are also some pro-choice people who would be willing to get (or counsel) an abortion precisely because they think abortion isn't really immoral. Even those who believe that abortion and murder is morally indistinguishable should, I think, concede that at least some of their pro-choice opponents may be wrong, but aren't hypocrites.

     At this point, it seems to me that Bennett should be given the same benefit of the doubt. He may well sincerely believe, together with probably the majority of the country, that gambling is substantially morally different from drug use; and he may act the way he acts because of his beliefs, and not vice versa (though it's also possible, as with many human motivations, that his beliefs and actions on this are intertwined in a more complicated way). Now this might not be so. Perhaps there's some extra evidence to the contrary. But so far, most of the arguments that I've seen are at their core based on simple substantive disagreement with Bennett's moral distinctions -- and not grounds enough, I think, for some of the pejoratives that Bennett has received.


HYPOCRISY AND SUBJECTIVITY. Eugenes post below, and to some extent also also his post above, imply that sincerity and hypocrisy are mutually exclusive. I dont quite see them that way, though its true that hypocrisy is often defined as a false adherence to beliefs and that this makes it sound like a subjective state. Most hypocrites (or perhaps I should say most people, since most of us probably are guilty of hypocrisies) are able to persuade themselves that they are acting consistently with their professed principles and thus can be said to be acting in good faith. I dont know of anyone who thinks that Bill Bennett has been walking around believing that drug use is okay but saying something different, or that he doesnt really think there is any real distinction between drug use and gambling the sorts of charges against which Eugene seems to be defending him. The claim, rather, is that his defenses of his gambling (it's his business, he's doing it moderately and handling it responsibly, it's not hurting others, etc.) tend to work quite well as defenses to moral criticisms of drug use as well.

But at any rate I don’t want to quibble over the "hypocrite" label. I’ll gladly concede that Bennett believes that he has a leg to stand on. I just don’t agree with him. And when a professional moralist draws a distinction in order to excuse his own conduct, I think it is open to spectators who find his distinction not only unpersuasive but untenable and self-serving to think less of him and conclude -- whether they apply the "hypocrite" label or not -- that they aren’t interested in hearing from him anymore. (Eugene may be right in saying above that Bennett doesn't deserve all of the pejoratives that have been directed his way, but let's focus on the best of the anti-Bennett arguments rather than the most extreme of them.)


Ask me a query, and I'll reply: In our search engine referrer logs, we see this query that brought someone to this site -- unhelpfully, as it turns out:
cottleston pie + analysis
Nope, sorry, Cottleston Pie is definitely one of those poems that we think should not be analyzed.


Conspirator being kicked upstairs: Our coconspirator Todd Zywicki, has been named Director of the Office of Policy Planning at the Federal Trade Commission, and thus will be off the blog while he's serving. When he's done, we'll be delighted to welcome him back. Congratulations, Todd!


Gambling and drugs: Philippe writes below:
As I understand [Bennett's] claim [which Philippe quotes], it's not a utilitarian argument that "bad" drug use creates more costs than "good" or harmless drug use creates benefits and therefore should be banned (though Bennett does makes some other utilitarian claims, too). This language, as I read it, illustrates his view that smoking marijuana, for example, is just plain "wrong". For many of us with a libertarian bent, that claim has long seemed conclusory and vacuous. But the annoyance it provokes is now greatly compounded by the revelation of Bennett's love of high-stakes gambling because it is hard to see why drug use is morally wrong if gambling is not. The utilitarian case against the two practices may be different, but I repeat that Bennett hasn't confined himself to that sort of case. The moral lines he has drawn thus appear not only disagreeable but arbitrary.
I sympathize with Philippe's substantive argument; I too don't see marijuana use as "wrong." I don't think that the lines between gambling and marijuana use are arbitrary; I think many people, for instance, believe that drug use is immoral because it involves a voluntary loss of one's rational faculties, something that gambling doesn't involve.

     But the main criticism that I've heard of Bennett isn't that he's mistaken on the moral issues (a criticism that could be made, and has been made, long before the gambling story broke, and is in any event more apt as to alcohol vs. drugs than as to gambling vs. drugs) -- rather, it's that he's a hypocrite, which is to say someone who doesn't act in accordance with his stated ideals. The question, then, isn't whether he's right about gambling being morally acceptable and drug use being morally unacceptable; it's whether he sincerely believes in this distinction.

     I can't read Bennett's mind, but at least at this point I've seen no evidence that he's hypocritical here. And I do have one piece of evidence that suggests that he might be quite sincere in his beliefs: While Philippe and I may agree that marijuana use isn't immoral, the federal government and every state in the union ban it, at the same time that many states allow many forms of gambling. Now many people who support this distinction might support it on utilitarian grounds, but I suspect that many others -- tens of millions, I'd wager -- support it on moral grounds. Rightly or wrongly, they do think that there are important lines between gambling and marijuana use. At this point, I'm quite willing to believe that Bennett shares those views.

Monday, May 05, 2003


So long: Thanks to Eugene and the other co-conspirators for the guest spot opportunity. And let me take this last chance to shamelessly plug my own blog for those who have enjoyed reading my posts here. Ta.


Donna Shalala comes through: I blogged last week that the University of Miami student government refused to recognize a proposed conservative student group because their charter supposedly overlapped too much with the Republican student group; fortunately, it looks like the university's president, Donna Shalala, has done the right thing here:
May 2, 2003

Statement from Donna E. Shalala
Recognition of Student Organizations on Campus

“Several articles have appeared in the media today regarding the University of Miami’s Committee on Student Organizations (COSO) and its decision to deny a student group recognition as an official student club. Such recognition is important because it allows student organizations access to funding, space, and other benefits through student activity fees.

“The Committee on Student Organizations is enforcing a rule that was developed years ago by others. I think it is perfectly acceptable for the Committee on Student Organizations to develop recommendations or standards for the formation of student organizations on campus. But the purpose and content of those organizations absolutely should not be subject to review.

“On the surface, the Committee on Student Organizations’ policy may sound logical and defensible, given limited resources and space, but the end result is that the policy protects existing organizations and makes it challenging for new organizations to be formed.

“I have asked the Committee on Student Organizations to implement a new policy that is consistent with the principles of free speech, academic freedom, and competition.”

“In addition, I have asked them to convene a meeting immediately to review the application for the Advocates for Conservative Thought.”


Below Eugene expresses his dissatisfaction with the "anti-Bennett" argument. Let me restate it. Here is Bill Bennett in 1989 in the Wall Street Journal when he was serving as director of the Office of National Drug Control Policy: "I remain an ardent defender of our nation's laws against illegal drug use and our attempts to enforce them because I believe drug use is wrong. A true friend of freedom understands that government has a responsibility to craft and uphold laws that help educate citizens about right and wrong." As I understand this claim, it's not a utilitarian argument that "bad" drug use creates more costs than "good" or harmless drug use creates benefits and therefore should be banned (though Bennett does makes some other utilitarian claims, too). This language, as I read it, illustrates his view that smoking marijuana, for example, is just plain "wrong". For many of us with a libertarian bent, that claim has long seemed conclusory and vacuous. But the annoyance it provokes is now greatly compounded by the revelation of Bennett's love of high-stakes gambling because it is hard to see why drug use is morally wrong if gambling is not. The utilitarian case against the two practices may be different, but I repeat that Bennett hasn't confined himself to that sort of case. The moral lines he has drawn thus appear not only disagreeable but arbitrary.


Why North Korea should scare you: Both the New York Times and the Financial Times report that the Bush administration has given up trying to deter North Korea from making highly enriched uranium or plutonium. The focus has instead shifted to "blocking the sale of nuclear material to countries or terrorist groups."

This scares the hell out of me, for several reasons. First, the only war the new strategy could work is to have a perfect embargo, which is an oxymoron. All embargoes have leaks, and as the FT story notes, this one would be easy to evade:

Unlike North Korea's missiles, which can be seen by satellites as they are loaded into ships and sent to Iran, Syria, Yemen and other nations, weapons-grade nuclear material is easily transportable. Experts say that material would be relatively easy to transport over North Korea's long border with China, part of the reason that Mr. Bush is working to engage the Chinese leadership in confronting North Korea about its nuclear program.

"It's a fantasy to think you can put a hermetic seal around North Korea and keep them from getting a grapefruit-size piece of plutonium out of the country," said Ashton B. Carter, a Harvard professor who worked on Korea issues in the Clinton administration, said today. "To allow North Korea to go nuclear is a major defeat for U.S. security."

Second, North Korea has a clear incentive to sell the stuff. The regime desperately needs hard currency to sustain its regime, and both rogue states and terrorist groups can provide ready cash.

Third, and most disturbing, is that the shift in U.S. strategy reveals that multilateral pressure has failed to work on Pyongyang. It was clear over the past few months that other regional players -- China in particular -- had applied pressure on North Korea to play ball. Also, as this Reason article from six weeks ago makes clear, the "red line" that North Korea was told not to cross was the reprocessing of plutonium.

Clearly, that pressure failed to have any effect. The military option -- which was on the table in 1994 -- is now off the table, according to the FT report.

South Korea's new president, Roh Moo Hyun, who will visit Washington for the first time next week, "has made it clear he won't consider military action of any kind," said one senior administration official. "It's a different atmosphere than in 1994."

As I said in January, when it comes to North Korea, all policy options stink. Now some of those options -- economic or military coercion -- appear to be off the table. That leaves only three options, all of which are unpalatable: do nothing and wait for the embargo to crack (or hope that the North Koreans are bluffing about reprocessing plutonium), encourage Japan to develop a nuclear deterrent as a way of scaring Pyongyang straight, or pay the North Koreans off.

The first option relies on very wishful thinking.

The second option would have wide-ranging and unpredictable regional implications.

The third option rewards a totalitarian state that is in many ways worse than Saddam Hussein's Iraq.

Developing... and in a realy scary way.


The real scandal -- casinos or casino employees compromising their clients' privacy: Timothy Noah, in Slate's Chatterbox asks why the casinos told the press about Bennett's losses, information that is generally kept private. The speculation appears to be that the casinos either thought that Bennett and his colleagues at Empower America were after them, or more broadly just didn't like his moralizing.

     But whatever their reason, isn't their leaking to the media pretty slimy behavior? Precisely because gambling is frowned on by many people, people expect that casinos won't go to the media about their clients' habits, just as people expect that pornography sellers won't tell Newsweek who's buying their porn. Either casino management or casino employees violated this expectation; and if it was just the employees, then the employees also violated their employers' trust, since I'm told that casinos do indeed generally have fairly strong confidentiality policies.

     What's more, this behavior, unlike gambling, does pretty directly hurt people -- it breaches an implicit promise to protect their privacy. It may not be illegal (the promise may not have been definite enough to be binding), but it certainly seems unethical -- much more unethical than Bennett losing his own money (unless it turns out that Bennett had lied about the losses, either to the public or to his own family).


France: I'm not big on France-bashing -- I disapprove of how the French government has handled matters recently, but I don't see that as a reason to boycott, rename foods, and the like. This having been said, I liked the latest joke (or is it?) coming around; author unknown:
American to Frenchman: "Do you speak German?" 

Frenchman: "No." 

American: "You're welcome."
UPDATE: Readers e-mailed me to say that Tom DeLay was quoted as using it, and may have been its author (though he isn't specifically quoted as taking authorship credit).


Apropos Vince Foster: The OIC v. Favish certiorari grant (see below) reminded me of a bumper sticker I saw when the Foster matter first hit the news:
If Vince Foster had a gun, he'd be alive today


More on precautions: Dan's post below about the precautionary principle reminded me of this post of mine from last August, which further illustrates the problem with the precautionary principle; I thought I'd take the liberty of reposting it -- please skip it if you've already read it.
WHAT IF THIS BRAZILIAN PEASANT WOULD HAVE PRODUCED THE MIRACLE DRUG? Some argue that it's vitally important to protect biodiversity -- and particularly various plant species -- because it's possible that the imperiled species may be important to medicine. "What if this dying species would have produced the miracle drug?" I am not an expert on biodiversity questions (though Juan is), but I've certainly heard the argument often enough, and it's certainly plausible. I've always seen it put as a matter of speculation; I haven't seen any statistics that purport to quantify this possibility. Surely, though, such speculation is not unreasonable.

     But the trouble is that, as Juan points out, protecting biodiversity isn't costless; it requires real economic sacrifices by real people. These sacrifices will leave some people poorer, and therefore on average less healthy and less educated (poverty tends to do that).

     So what if the child of a Brazilian peasant, who would have been better-educated (or would have survived a childhood disease) had his father been able to make money from clear-cutting a chunk of Brazilian forest, would have become a pharmacologist and would have invented a miracle drug, or a new cancer therapy, or some breakthrough in biological science? And what if our trying to protect biodiversity by saving plants left the child dead, sick, or uneducated, so that this great breakthrough would have been denied us?

     This is of course sheer speculation -- just like speculation that some hitherto unidentified endangered species would have produced a miracle drug. But it's plausible speculation -- certainly the genius of humans has proven helpful in producing new drugs or therapies or theories at least as often as the inherent attributes of plants has been helpful. And we know that poverty does generally inhibit education and thus people's ability to contribute to medical advances, just like killing species does inhibit the species' ability to contribute to medical advances. True, if this Brazilian peasant didn't invent the cure for cancer, someone else might have. But maybe they wouldn't have done so for years, and it isn't just one Brazilian peasant, but lots of people like him. And of course if this plant didn't yield the miracle drug, some other plant -- or some artificial process -- might have.

     Of course, one might well argue that this argument proves too much. Wouldn't it then be an argument against contraception (at least by those wealthy enough to raise educated children), since any unconceived child might have grown up to be an Einstein? On the other hand, maybe the child would have grown up to be a Hitler. That way lies madness, one can say -- one can't block otherwise valuable policies (such as protecting biodiversity) based on sheer speculation that maybe they would deny us some completely unknowable future advance.

     But if that's so, then where does that leave the pro-biodiversity argument, which urges us to block otherwise valuable policies (such as economic development by the harvesting of natural resources and turning forest into arable land, something that Europeans and Americans did plenty of, and that was certainly valuable to our advancement) based on sheer speculation that maybe they would deny us some completely unknowable future advance.

     So the bottom line, it seems to me, is that this particular argument for protecting biodiversity ("What if this dying species would have produced this miracle drug?") has some pretty distinct limits, especially when it demands real sacrifices that translate not just into poorer lives for people, but into less education and thus less advancement for the world as a whole. Precautionary principles sound like a good way of avoiding unknown risks, but the difficulty arises when there are unknown risks in both directions.


As a precaution, fire will be un-invented: The European Union, as well as a great number of NGOs and environmental activists, believe that new technologies should be regulated according to the precautionary principle. A typical definition is:

When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically. In this context the proponent of an activity, rather than the public, should bear the burden of proof.

Spiked has the results of a survey question put to scientists regarding which important discoveries would not have taken place if science adhered to the precautionary principle. The result is a literal A-to-Z of relatively important devices.

Go check it out. If you think this is just a fringe idea, click here and here.


If you want me to read a blogpost or Web page you or someone else wrote, please include its text within the message. Yes, it doesn't take that long to just click on a link; but it does take some time, when aggregate over the dozens of such messages I get a day, and it takes especially long if I'm working from home. Including the text dramatically increases the chance that I'll actually look at the text.


Where are they now? According to the AP,
The plaintiff in a landmark 1964 U.S. Supreme Court ruling on a suspect's right to a lawyer has been convicted in a 20-year-old murder case.

A Cook County jury on Wednesday deliberated for about an hour before finding Daniel Escobedo guilty of killing shopkeeper Ki Hwan Kim with an ice pick in 1983. The 65-year-old Escobedo now faces a possible sentence of natural life in prison. . . .

Escobedo was the plaintiff in the landmark Supreme Court ruling in Escobedo v. Illinois, in which the high court threw out Escobedo's conviction in the slaying of his brother-in-law, finding that Chicago police had violated his constitutional rights by denying his repeated requests for a lawyer.

The ruling was later expanded in the case Miranda vs. Arizona . . . .

In the years following the ruling, Escobedo was arrested roughly 25 times for offenses ranging from attempted murder and indecent liberties with a minor to felony possession of firearms. He was released from prison in 1978 after serving 22 years on a drug conviction.
Thanks to Goldstein & Howe's SCOTUSBlog for the pointer.


Whoops: OK, one last X2 post (for now), picking up on this Hit & Run post from Jeff Taylor. Jeff points out that Ebert seems to have missed what Wolverine's powers are. Following the link, I also note the following: Ebert says "Magneto, who has serious personal issues with mutants, has devised an invention which I will not describe, except to say that it provides some of the movie's best visuals." I'm not at all sure what this means. Magneto is a mutant; he has issues with the rest of humanity. Maybe Ebert meant that Stryker has personal issues with mutants. But what does he invent? (Magneto doesn't particularly invent anything, either.) The major gadget of the movie, the one with really cool visuals, is a holdover from the first movie, and had been invented by Xavier with help from Magneto long ago. Ebert calls Deathstrike a "turncoat mutant," misses the point; she's not acting out of her own volition. He similarly fails to understand that Nightcrawler wasn't acting under his own volition. I'm not going to criticize him for not knowing things from the comics-- he asks whether Cyclops wears his visor to bed, to which the answer is given in the comics but not in the movie. But the movie is pretty careful with details, and Ebert seems to have missed a lot of them.

By the same token, the Tribune's Michael Wilmington seems to think that Cerebro is Xavier's codename and that Senator Kelly is still, well, Senator Kelly.

Any other items that reviewers were confused by and/or weren't paying enough attention to figure out?

By contrast, neither David Edelstein nor A.O. Scott commits any bloopers that I noticed. I always found Janet Maslin an especially poor guide to fantasy, SF, and comic book movies (recommending some real crap as well as not understanding the good stuff), but Scott's a very good one.

UPDATE: Ooh, this one's pretty spectacularly bad: Stephen Hunter in the Post who appears a) to be looking for excuses to insult the fans and b) to have decided that a sequel shouldn't depend on any information from the first movie, or maybe just decided he didn't want to bother to watch the first movie. Go read the whole thing for the snotty tone; note here that he manages not to understand the powers of several major characters:
The moody Wolverine (Jackman, a little old for this kind of silliness) can flash blades out of his wrists. Okay, but, really, how useful is that? He's no better armed at that point than a man with a bayonet. Then there's a kid who can flip fireballs across the room and another who appears to be able to shoot fire out of his sunglasses. On the other hand, Storm (Halle Berry) can control weather, Jane Grey (Famke Janssen) can part the waters like Moses, and Dr. Xavier appears to be literally able to stop the universe -- that is, halt time. So what would a knife fighter have in common with God? Or possibly I'm thinking too hard about this stuff... The rest remain ciphers, the saddest being Anna Paquin, whose character's mutant talent, other than ugly mall-droog hair, appears to be to make things happen backward. I guess. She's some kind of Mistress of Rewind.
That "thinking too much" crack misses the mark; closer is when Hunter says "But then I never figured anything out!" (Thanks to Bryant Durrell for the pointer.)

On another note: Tapped has linked to this post with a challenge: "Where did Lady Deathstrike come from?" What follows is hardocre comics geekiness, and not about the movie at all since in the movie the answer is simply [SPOILER] that she's a Wolverine-like mutant whom Stryker captures, brainwashes, and adamantiumizes. Read at your own peril:

Deathstrike's father was the Japanese scientist who created the technique for bonding adamantium to human bones, a technique that was stolen from him by the Weapon X project. She was originally an human martial artist and an ally of Daredevil's against her father, a reactionary Jaoanese nationalist. But she switched sides, and became convinced that her father's honor demanded reclaiming what was stolen from him-- and she interpreted this not to mean Weapon X files or computers but the actual adamantium from Wolverine's skeleton. She went after him with a big sword. That didn't work out so well for her. So she turned herself over to the (now we're getting into some serious weirdness) the other-dimensional sorceress Spiral, servant of Mojo, archenemy of Longshot. Spiral mystically turned her into a cyborg with nasty metal-- possibly adamantium but I'm not sure-- claws coming out of her fingernails. That, combined with her pre-existing martial arts capabilities, made her a much closer match for Wolverine, and at least once she beat the spit out of him pretty badly. She joined forces with a bunch of other cyborged survivors of Wolver-attacks and they continued to go after him. It continued, in general, not to work out very well for them. She's supposed to be a figure of some pathos as well as nastiness, as she voluntarily renounced her humanity for the sake of a quest for vengeance.

See prior posts here, here, and here. Elsewhere: John Holbo, Matt Yglesias, Ryan Pitts, Amy Lamboley, Kevin Drum, Peter David. John's title wins best pun of the week-- though my saying that I think so may reveal more about me than about the post. Will Wilkinson continues the turn to philosophy in X-Men postings...

FURTHER UPDATE: Hey, look, another one. Anthony Lane in the New Yorker writes [SPOILERS]
When A can read B’s mind, and B can turn into C, and C can vanish in a puff of smoke, the old logic of means and motive seems hopelessly antique, yet nothing takes its place. If Jean has such a crush on Scott (James Marsden), for instance, why do they meet in a force field of telekinetic flame? What’s wrong with a kiss?...According to Kurt Wagner (Alan Cumming), the movie’s resident Nightcrawler, “Most people will not see anything beyond what they see with their own two eyes.” Well, for goodness’ sake, man, you can hardly blame them. Wagner himself is a Bible-quoting devil with ridged skin, yellow eyes, lashing tail, and a German accent as heavy as rusted iron, whose opening gambit is to cause fear and mayhem in the Oval Office, thereby intimidating the President himself.
Apparently the whole mind-control bit was too subtle for a lot of reviewers.

Newer X-posts that are about things other than silly reviews: Glen Whitman, who rightly complains about the "mutation is passed on the Y-chromosome" idea-- though I think it's possible that that was said just to screw with the father who had just blamed the mother, not because it's supposed to be true; Ben Sheriff, who argues that Iceman should have frozen the river (something I maintain was waaay beyond his power levels-- see my comments in this Matt Yglesias post); Reihan Salam at TNR on the turn away from integrationism in the comics.

(Earlier posts here and here and here.


The Vince Foster controversy (remember that?) is reaching the Supreme Court, though in a highly attenuated context: Whether the Freedom of Information Act requires the Office of Independent Counsel to turn over certain photos of Foster's dead body, or whether that's exempted under FOIA's privacy exemption. This in turn raises, among other issues, the question whether (to quote the Ninth Circuit opinion) "the personal privacy in the statutory exemption extends to the memory of the deceased held by those tied closely to the deceased by blood or love and therefore that the expectable invasion of their privacy caused by the release of records made for law enforcement must be balanced against the public purpose to be served
by disclosure." The case is Office of Independent Counsel v. Favish.


Bill Bennett and gambling: People are condemning Bill Bennett, who has taken on the role of a spokesman for virtue and morality, for what seems to be a gambling habit that has lost him $8 million over the last ten years. (UPDATE: Several people suggested the $8 million might be gross losses, without any offset for winnings; I checked several press accounts, and they've generally said that he's lost over $8 million over the last decade, which in normal parlance means net losses. The Newsweek article, for instance, says "Some casino estimates put his total losses over the past decade at more than $8 million." Nonetheless, Bennett suggests that he's "come out pretty close to even," though others doubt this, so it's possible that the reported losses don't include winnings. See here for the New York Times account, which reflects this uncertainty.)

     I find myself being of two minds about this, though ultimately I think I side with Bennett's defenders. I've never liked gambling, and I'm particularly appalled at the dangerous loss of self-control that problem gambling (though not all gambling) involves. And losing $8 million over ten years, or even risking that much and losing an appreciable fraction, does sound pathological -- the sort of thing that ruins people's lives, and for virtually no benefit.

     On the other hand, lots of rich people spend huge amounts of money on hobbies, both hobbies that offer virtually no prospect of financial payback (e.g., high-level yacht racing) and hobbies where the payback is extremely unlikely, and where the person is clearly doing it for the fun and not as a calculated investment (e.g., many owners of horses or baseball teams). I don't know how much money Bennett has, but if he has enough, losing $800,000/year (or perhaps less, depending on how one reads the accounts) stops looking like a problem and starts looking like a hobby. He may even get $800,000/year worth of pleasure out of the activity; I actually find the idea of getting so much pleasure out of that to be a bit icky, but that may be just me: I'm not a risk-seeker, and I know many people are. And while it's certainly possible that this really reflects a lack of willpower on his part (he really wants to quit, but he can't bring himself to do it, much like I really want to write that damned article of mine, but I'm procrastinating by reading science fiction books and writing blog posts), it's hard to tell; the value of the $800,000/year to him may not be that great. Much depends on his wealth and yearly income -- have there been any published accounts of that, other than that he's fairly wealthy?

     So the "he's ruining his life" and "he's showing a lack of character" arguments seem to be not very strong, at least absent more evidence. How about the "many people ruin their lives gambling, and he's setting a bad example" argument? I'm pretty skeptical about that. As I think Bennett mentioned, he doesn't object to people doing things in moderation -- the example he gives, I think, is drinking -- even though others do them to excess. Given that moderation in gambling should be (as I argue above) judged relative to one's means and not by an absolute standard, he may well be just gambling moderately here. He would thus be behaving properly by his lights, and by the standards that he aims to teach. I don't think he has a responsibility to do more than that, by refraining from behavior that is indeed proper for him, especially since as an empirical matter I think it's highly unlikely that people will say "Sure, I'll gamble away my inheritance; after all, my moral hero Bill Bennett gambles away a lot of money, too."

     Ah, some have said, but Empower America -- Bennett's organization -- has spoken out against legalized gambling. Here, too, I think the argument doesn't quite work, unless Empower America has based this on the assertion that gambling is per se wrong. Policy arguments often turn on different considerations than purely moral ones. If the drinking age in a state is 18, a 20-year-old can sensibly support lifting the age to 21, even if he drinks, and drinks responsibly; though his drinking may not be wrong, he may conclude that enough other 20-year-olds abuse alcohol that raising the drinking age would be socially beneficial. Likewise, a social drinker may sensibly say "I don't do bad things when I drink, but enough other people do that I think drinking should be banned. When the ban takes place, I will abide by it, because I respect the law, but until then, I won't voluntarily cease drinking, because it's not my drinking that's causing the harms." That may be both consistent with the speaker's moral theory (drinking isn't inherently immoral, if done in moderation) and with his public policy theory (drinking by some people is harmful, so drinking should generally be banned.)

     So while the fact that some people drink/gamble/use drugs to excess isn't a moral argument that you shouldn't do this, it may be a policy argument that the conduct should be banned. (I set aside the libertarian question of whether it violates people's rights to ban it, and the pragmatic question of whether banning it does more harm than good, since those are not the nature of the criticism of Bennett, as I understand it.) Certainly if Bennett argued that gambling should be illegal, and did it when it was illegal, he could be properly faulted for it. But I've heard no argument that this is in fact what he's done.

     What about Bennett's taking some steps (though, as I understand it, not heroic steps) trying to hide his gambling? Isn't that wrong? Well, if he covered his tracks by lies or crimes, it would be. But if he simply tried to keep this confidential, I don't think that's particularly troubling. Even writers on moral issues are entitled to try to keep their behavior private, if they do so without using improper means (e.g., lies or crimes), and especially if the behavior is itself not immoral. (Of course, if it turns out that he has lost a net of $8 million over a decade, his statement that “Over 10 years, I’d say I’ve come out pretty close to even” would be false, and could be faulted on those grounds.)

     Finally, there's the old "bad judgment" argument: Even if what Bennett did wasn't wrong, it shows bad judgment, precisely because he must have known that it would come out, and that it would weaken his moral standing (whether for good reasons or bad). I've always been rather troubled by these arguments. Sure, if I were advising Bennett on what to do, I'd tell him to keep away from the slots. But even people who want to write about moral themes have their own interests and desires. They can't be expected to live their lives solely with an eye towards minimizing controversy that might undermine their moral message. Sometimes -- again, if their behavior isn't otherwise immoral -- they're entitled to say "Look, I enjoy doing this, and if this means that some people will turn against me and my ideas when they come out, that's a price I'm willing to pay." So while the criticisms of Bennett are predictable, it doesn't mean that they're proper.

     But of course these are all generalities. If Bennett had in the past written that gambling is evil -- not just dangerous, but immoral -- then it would be proper to ask "So, do you really think it's immoral or don't you?" So far, though, the arguments that I've heard have generally not focused on such specific writings of his, but more on the generality that "people who try to teach morality" (or perhaps just who try to teach a certain sort of morality) "shouldn't gamble like this." At this point, while I share the distaste that many people have for this sort of high-stakes gambling, I don't think this anti-Bennett argument is persuasive enough.


Word puzzle: The prefix "in-" often means "not" -- e.g., "inflexible." Find two words that retain the same meaning (or very nearly the same meaning) when you add the prefix "in-" to them; and, if you want a harder problem, find three. Don't e-mail in the answers; they are given here.


Behind-the-scenes diplomacy in Africa: Last month I blogged about how Robert Mugabe was trying to catch up to Castro as a totalitarian despot. Amnesty International just issued a report confirming the increasing denial of human rights in the country

Part of the reason Mugabe was succeeding was the malevolent neglect of regional heavyweights such as South Africa or Nigeria -- indeed, these countries were pushing for the Commonwealth to lift its sanctions against Zimbabwe because Mugabe had actually improved the country's human rights situation.

What was the U.S. doing? To quote from my post:

Is the Bush administration looking the other way, or rather, looking at Syria? Not exactly. This Australian report suggests the administration is trying a "North Korea" strategy of having Zimbabwe's neighbors take the lead, quoting a "senior official" in the State Department as follows:

"What we're telling them is there has to be a transitional government in Zimbabwe that leads to a free and fair, internationally supervised election.... That is the goal. He stole the last one, we can't let that happen again.... It has to be internationally supervised, open, transparent with an electoral commission that works..... "

Will this strategy work? The U.S. official spins a positive reaction, saying: "The neighbourhood is starting to realise that there is a downside to giving aid and protection to Comrade Bob," the official said, using a derogatory nickname for Mugabe.... There is stuff happening, there is stuff happening behind the scenes."

Now, the "we're working behind the scenes" line is a great stonewalling tactic, because there's no way to immediately confirm or deny it, and as time passes attention focuses elsewhere.

In this case, however, the behind-the-scenes pressure may not have been a line. The New York Times reports that change may be afoot:

Presidents of three African nations are scheduled to travel to Zimbabwe on Monday to push for talks between the government of President Robert Mugabe and opposition leaders.

The meeting comes at a time when Zimbabwean society has been battered by a combination of economic crises and political conflicts, marked by severe shortages of food and fuel and by strikes that have temporarily shut down most major businesses and industries.

In South Africa and other nations, outrage has mounted over reports of systematic human rights violations by the government, including the arrest and torture of hundreds of opposition supporters in March.

Bheki Khumalo, a spokesman for President Thabo Mbeki of South Africa, confirmed that Mr. Mbeki would go to Zimbabwe, along with President Olusegun Obasanjo of Nigeria and President Bakili Muluzi of Malawi, who is chairman of a South African task force on Zimbabwe.

Responding to news reports that the three leaders planned to urge Mr. Mugabe to step aside and allow the establishment of a transition government, Mr. Khumalo said: "The issue of when and whether President Mugabe retires is a matter for President Mugabe to decide. What we can do is go there, hear what is happening and see what can be done to get the parties back to negotiations. It is clear that they have to work together."

Score one for behind-the-scenes diplomacy. If Mugabe were to actually step down, score one for the citizens of Zimbabwe.


"Free speech for me, but not for thee": The Boston Phoenix reports on a brief filed in the Nike v. Kasky that argues that corporations shouldn't have free speech rights. For a detailed explanation of why I don't buy this argument, see this blog post from last year. For now, let me note one problem: Under the logic of the brief, which argues that the First Amendment doesn't apply to "business corporations," newspapers, magazines, movie studios, and the like (the overwhelming majority of which are organized as corporations, and probably have to be so organized in order to effectively raise money from investors) wouldn't have First Amendment rights, either.

     The government would be able to punish a newspaper for publishing allegedly "misleading" material -- or for that matter, nonmisleading material, since the brief argues that corporations should generally lack free speech rights. Careful when you strip away others' rights, folks; you may lose more than you bargained for.

     (The only conceivable protection for newspapers -- and here I'm inferring from what the brief says, since it studiously avoids the media corporation question -- would come from the theory that "Corporations are entitled only to those constitutional protections that are necessary to effectuate their purpose for existence," and that broad free speech rights are necessary to newspapers but not other businesses. But it's far from clear that this statement would indeed protect newspapers: Broad free speech rights are not strictly necessary for newspapers to function; newspapers could function with much less protection, including perhaps just that protection that the legislature chooses to give them. Newspapers certainly exist in England, where they get only the protection that Parliament chooses to provide; they may be less willing to make certain statements than in the U.S., but their existence disproves the assertion that broad constitutional protection, enforceable by judges, is "necessary to effectuate their purpose for existence." And if one reads "necessary" to simply mean "helpful," then surely a corporation's ability to defend its practices against public criticism would be "necessary" for it as well.)


Coincidence? I think not. Plans for "Grease 3" announced. Dow Jones down 50 in early trading.

I need to start some blogging on serious matters soon, before Matt Yglesias' opinion of me falls any further...


I blame Sean McMullen for the further delay on the article draft that I'm supposed to be writing. McMullen's Voyage of the Shadowmoon, which I just finished reading, is top-notch. The last couple of chapters are a bit weak, but the rest is very good indeed. I highly recommend it. (McMullen is also the author of Souls in the Great Machine, which I recommended a couple of weeks back, and which prompted me to buy Voyage of the Shadowmoon; the two are set in very different worlds, but they share the same style and verve.)


Worst rationalization ever: Andrew Sullivan links to this Washington Times piece on the artists' letter supporting Fidel Castro in the wake of his recent crackdown on dissidents and drive-thru executions. What's truly appalling is the rationalization by Gabriel Garcia Marquez of his continued support for Castro:

The Colombian writer defended himself in Tuesday's edition of the daily newspaper El Tiempo after U.S. feminist writer Susan Sontag told reporters that it was "unpardonable" for him not to have spoken out over the recent Cuban crackdown.

"I don't answer unnecessary and provocative questions," said the author, whose sympathies for the Cuban revolution go back decades.

Moral support from such respected figures as Mr. Garcia Marquez is highly valued by a Cuban government whose material resources have dwindled since the Soviet collapse.

"I myself could not calculate the number of prisoners, dissidents and conspirators that I have helped, in absolute silence, to emigrate from Cuba over no less than 20 years," Mr. Garcia Marquez, 76, said in his defense.

So let me get this straight. Garcia Marquez's rationalization for his support of Castro is that he's fully cognizant of the totalitarian nature of Castro's regime?

The people who signed this petition -- here's the web page to read the petition and view the list of signatories -- are so blinded by their hatred of the United States that they have lost any semblance of a moral compass.


More on speaking up for fundamentalists: [I wanted to add quite a bit of new material to this post from Friday afternoon, so I thought I'd report the original post, together with the new material, which starts with "FURTHER UPDATE." All the material before "FURTHER UPDATE" is a copy of the Friday post.]

     Bo Cowgill points to my Jews-and-sex post and writes:
Eugene Volokh finds a study suggesting that Jews have more sex. Yet another reason for fundamentalists of all breeds to hate them, I suppose . . . .
     I'm surely no fundamentalist myself, but I don't think this criticism of fundamentalism is quite right. To my knowledge, groups that are generally identified as fundamentalist Christians are generally not particularly likely to be anti-Semitic; in fact, as I understand it, many of them are fairly staunch supporters of Israel. (Yes, one can oppose Israel and not hate Jews, but it's not terribly likely -- though I agree that it's theoretically possible -- that one would support Israel and hate Jews.) True, many fundamentalists believe that Jews cannot be saved if they don't accept Jesus, but that's because they believe that no-one can be saved unless they accept Jesus; and they don't hate Jews because of it.

     Fundamentalists get a lot of grief; some of it may be deserved, but quite a bit, in my experience, has been undeserved. It seems to me that people ought not make erroneous generalizations either about Jews or about fundamentalists.

UPDATE: Reader John Thacker points to this Anti-Defamation League article that supports my factual assertion -- Evangelical Protestants (which generally refers to what many people would call fundamentalist Christians) are not particularly anti-Semitic.

FURTHER UPDATE: Bo Cowgill faults the ADL article for not citing the details of the polls on which it relies; but I quoted it not because of the polls, but because of the source. When Abraham Foxman of the ADL -- an organization that specializes in investigating and fighting anti-Semitism -- says that a group isn't particularly anti-Semitic, that's pretty significant (though of course not dispositive) evidence in favor of my factual assertion. (Yes, Foxman is also defending a group with which the ADL has been making common cause; but the very fact that the ADL has allied itself with the group suggests that the group probably isn't particularly anti-Semitic.)

     To his credit, Cowgill does at least in some measure withdraw his claim -- while he's not sure about the factual issue, he "concede[s] that the Christian right may not be the [cabal of anti-Semitism] that other fundamentalist groups are." This is a pretty big concession, since presumably Jewish fundamentalist groups aren't anti-Semitic; I've heard no evidence that, say, Hindu or Buddhist fundamentalist groups (whatever that might mean) are anti-Semitic; I know of no evidence that Christian non-right fundamentalists are anti-Semitic; so ultimately, with the concession, the entire assertion (both his original one, about how "fundamentalists of all breeds" hate Jews, and the new one, about "other fundamentalist groups") must presumably refer just to Moslem fundamentalist groups.

     But in any event, I think that it would be better if people were a bit more careful about making broad and not really well-supported pejorative generalizations about religious groups (whether Christian fundamentalists or fundamentalists generally). I take it that if someone found a (purely hypothetical) study showing that fundamentalists have (say) more stable marriages, and then commented that this is "Yet another reason for Jews to hate them, I suppose," we wouldn't think highly of that assertion. Likewise, I think, when the labels are reversed.

FURTHEST UPDATE: Bo Cowgill graciously retracts his earlier assertions; and I apologize if I got a bit too testy about this subject. Bo's original statement was an offhanded gag, and I might have taken it too seriously, though it did echo some quite serious statements that I'd heard in the past, and that I thought deserved a response.


Roomba: So I scattered about 4 pounds of baking soda on my study carpet one day last week, and ran the Roomba. Result: Probably about 80%-90% of the soda got cleaned up. Possible unfairness to the Roomba: 4 pounds is a lot, probably more than the Roomba would normally be called on to suck up, and the dust container was nearly full.

     Then I reran the Roomba the next day. Result: Probably about 80-90% of the remaining soda got cleaned up, leaving some in the corners, and a few spots where the Roomba apparently just hadn't gone. Also, one more problem: The Roomba sometimes get jammed on wires and such, so sometimes I would start it in the morning and then come back to find that it hadn't gotten much of the way through the room.

     So the tentative bottom line: It appears that one pass with a Roomba is probably considerably less efficient than one pass with a manual vacuum cleaner (and of course there's the likelihood that the manual vacuum will provide deeper cleaning, as well as cover the whole area; haven't tested that), though the Roomba covers the ground more effectively than I thought it would, and it may actually be more efficient than sufficiently sloppy human vacuumers like me. But of course the theory behind the Roomba is that you wouldn't use it the same number of times that you use a vacuum cleaner; rather, you'd use it more often, since you can just plug it in and then leave. So if you Roomba a room 2 or 3 times a week, you'll probably get a better result than vacuuming once a week, or even more rarely. (Of course, it's probably better still if you both Roomba and manually vacuum, but it would also be better if you ate better and got more exercise, too, and you're not doing that, are you?)

     What am I going to do? I think I'll keep my Roomba, and run it every couple of days in various rooms, especially our bedroom. Just seeing all that gunk that the Roomba sucked up into the gunk container made me feel that I ought to vacuum more often. That might well be an error; maybe that gunk isn't hurting me, and maybe the Roomba is just making me Define Cleanliness Up, but I figure that cleanliness is as close to godliness as I get, so I might as well get a bit cleaner. What's more, my wife and I will be visiting in Boston for four months this Fall, and we probably won't have a weekly housekeeper visit there, so the Roomba will come in really handy then. For $200 minus the 20% Bed, Bath & Beyond discount coupon we got, plus the sales tax, I think it's worth it.


Another reason phone-in polls are unreliable -- the British royal family may be trying to throw off the vote. No, that's not a Lyndon LaRouche theory; it's from The Sunday Mirror:
According to royal biographer Ingrid Seward . . ., [Prince William] shows all the signs of being tired with his royal role already. She says one of his most vivid childhood memories is of Diana voting 250 times in a TV phone-in poll for the abolition of the monarchy. And when the show asked whether William should take the throne instead of Charles, it was William's turn to pick up the phone -- he dialled the "No" number again and again.


Yo Ho Ho and a bottle of Pabst. Orin appears to take at face value the record companies announced interest in schemes to damage the computers of people who download music illegally. Me, I had assumed that the worst of these plans were just Orinisms -- misinformation strategically dispensed to make pirates more nervous about engaging in such behavior and thus deter a bunch of them at the margin. But if the pirates are smart enough to read Orins stuff they can be a little calmer now.

Sunday, May 04, 2003


Pabst Blue Ribbon: So I went to a trendy lounge in my neighborhood on Friday night and decided to partake in the Pabst Blue Ribbon revival. I proudly ordered "a round of PBRs" for my friends, and received a knowing smile from our server. Another patron in the bar who saw us drinking Pabst even gave us a thumbs up. A lot of retro fun for a round of drinks that cost 4 people a total of $12 at a place like that. The only downside: alas, the beer really does taste like tap water. Unfiltered tap water. Unfltered D.C. tap water. In fact, given the growing availability of Belgian beers here in D.C., I think I'll let other folks fuel the trend and instead stick with the likes of Delirium Tremens, Leffe, and Chimay.


Sad news: The Old Man of the Mountain is no more. Just the thing to brighten a birthday-- the news that one's childhood-favorite natural landmark has "died of old age..."


Was Miranda Outrageous? A Response to DeLong: J. Bradford DeLong is taken aback that I would characterize the 1966 Miranda v. Arizona decision as "outrageous." Indeed, he suggests I find it "appalling" that police inform the less well-educated of their rights, and prefer a "two-class system of rights." Where he gets all this from my simple characterization of Miranda is beyond me, especially since he goes on to identify a few reasons -- it often fails to protect the accused and imposes costs on the innocent -- to think the Miranda standard makes for bad policy. One of his commenters goes farther, saying I'm just "crazy." I believe this merits a (brief) response.

First, I would recommend that those interested in this subject to actually read the Miranda decision in its entirety. As a legislative report or policy paper, it is quite interesting. As a brief for reform, it is reasonably persuasive (although the majority acknowledges that its examples of police misconduct were "undoubtedly the exception" by the time of the decision). As a judicial opinion, however, it is truly outrageous, as the Court takes it upon itself to pass judgment on police practices across the nation -- practices that were not before the Court.

My objection to the Miranda decision is not that it does too much for criminal defendants. As DeLong suggests, the current rules often work to the advantage of the police, and not to innocent defendants. Police misconduct was a serious concern in 1966, and it remains a serious concern today. Rather, my objection is that the Miranda holding was an exercise of raw judicial power. A slim majority of the court invented a constitutional standard out of thin air and -- without any constitutional warrant -- applied it to every police station in the country. In my view, this was wholly inappropriate for the Court to do (though I would admit that the question as to whether Miranda should now be overruled is a much closer question).

I should be clear that my objection is not to the practical result in Miranda as much as it is to the Court's approach. Miranda-style warnings had already been adopted by some police departments (and, if I recall correctly, the F.B.I.), and I believe that reading a criminal defendant his or her rights upon arrest is probably good policy (and I have no doubt that our system needs safeguards to protect against coerced and other false confessions). I identified Miranda as an "outrageous" decision because it is a noteworthy example of a Court majority substituting its policy preferences for those of the people without sufficient -- indeed, scarcely any -- constitutional basis.


Baker, Bush v. Gore, and Politics, High and Low: In response to my last riposte, Jack Balkin argues that the left's complaint about Bush v. Gore is fundamentally different than the right's complaint about Baker v. Carr (or any number of other activist decisions). While both decisions may be characterized as "political," Balkin suggests that the Baker and other Warren Court innovations involved "high" politics -- the politics of principle -- whereas the election case appears to be a manifestation of "low" politics -- the politics of partisan advantage. I appreciate the distinction (though I recommend Lawrence Solum's critique and Balkin's response), but I don't think it does much work to resolve the doctrinal question as to why one case is acceptable and the other is not -- particularly if one is not interested in the enterprise of justifying constitutional change. In Baker, Justice Frankfurter warned that the Court's narrowing of the political question doctrine in order to remedy political justices would inexorably draw the Court into the center of political fights, and undermine the Court's institutional authority. He recognized that there was nothing in the political question doctrine as reformulated by Baker to keep the Court out of cases like Bush v. Gore, certainly nothing that would suggest the sort of distinction Balkin postulates. In the end, I would argue that a willing embrace of "high politics" in judicial decision-making inevitably poses the risk of drawing the court into "low political" fights.

On Balkin's other point, I would agree that Bush v. Gore was not the first case in which those on the left were forced to recognize that loosing activist jurisprudence could produce conservative results. Certainly there are many examples throughout constitutional history of activist judges of all political stripes. I would also agree that, upon reflection, one can make important distinctions among various types of activism. (Note that in the post to which Balkin is responding I described my "gut reaction" to certain arguments -- not my sober reflections.) Still, the existence of other chickens does not mean that the election case is anything but a rather fat hen who has found her way home.


Will record companies risk jail time to stop illegal downloading?: Today's New York Times has an interesting article about options the record companies are currently exploring to try to deter illegal downloading of their copyrighted materials. I'm probably more pro-copyright owner than most (how many law professors would write an article called "A Lukewarm Defense of the Digital Millennium Copyright Act"?), but some of the things the record companies are thinking about doing strike me as pretty clearly illegal. This is pretty odd given that the record companies are otherwise trying to defend their own legal rights.

    For example, the record companies are considering sending malicious code to downloaders' computers:
A more malicious program, dubbed "freeze," locks up a computer system for a certain duration — minutes or possibly even hours — risking the loss of data that was unsaved if the computer is restarted. It also displays a warning about downloading pirated music. Another program under development, called "silence," scans a computer's hard drive for pirated music files and attempts to delete them. One of the executives briefed on the silence program said that it did not work properly and was being reworked because it was deleting legitimate music files, too.
     I have one recommendation for the record companies: take a look at 18 U.S.C. 1030(a)(5). This statute prohibits "knowingly caus[ing] the transmission of a program, information, code, or command, and as a result of such conduct, intentionally caus[ing] damage without authorization, to a protected computer." The word "damage" is defined in 1030(e)(8) as "any impairment to the integrity or availability of data, a program, a system, or information." (In case you're wondering, causing you computer to "freeze" impairs the availability of data, and deleting files impairs the integrity of data). The statute does require that the conduct cause $5,000 of harm, but in the case of "an investigation, prosecution, or other proceeding brought by the United States," the losses "resulting from a related course of conduct affecting 1 or more other protected computers" can be aggregated to reach the $5,000. This means that if the record companies unleash this malicious code on illegal downloaders, the overall harm suffered by all the downloaders can be aggregated for the purpose of a federal criminal prosecution. Even better, the overall dollar value of harm done determines the seriousness of the offense, such that if the record companies do this on a widespread scale, they would face serious criminal liability.

     The article notes that the record companies are being held back from this plan in part by legal considerations, but the only laws that the article mentions specifically are the federal and state Wiretap Acts. I found this a bit odd, as I don't see a Wiretap Act violation here. The Section 1030 violation seems pretty clear, though.

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