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Saturday, June 14, 2003


Progress and compromise on CAPPS II: The Washington Post reports that criticism of CAPPS II from privacy advocates has led the Transportation Security Administration to change the program:
  The Transportation Security Administration has altered plans for a computerized passenger screening system, in part because of criticism that earlier proposals would have been overly intrusive, according to documents and interviews with government officials.
  Under the new approach, the system known as CAPPS II would draw less personal information about passengers into the government computers, the documents show.
  . . . .
  An earlier version of the system would have used a more intensive mix of government computers and artificial intelligence to analyze passenger records. Previous plans also suggested that officials wanted far wider latitude in how they used records about passengers' lives. The government and business officials behind those efforts are no longer involved in the project.
  New details about the system are expected to be included in a Privacy Act notice to be published in the Federal Register next week.
  . . . .
  According to a draft of the document, the notice will sharply narrow how officials intend to collect and share personal information about passengers. It also probably will describe plans for a "passenger advocate" for handling complaints about inaccurate scores or other problems.
  The new notice is intended as a signal that officials are committed to finding the right balance between security and privacy. "We care about those issues, and we're addressing them," one senior government official said.
I believe the sound you hear is the sound of the system working.


Howard Gets Snazzy Check out How Appealing's new look.


Posner, Bork, and Mediocrity Jack Balkin defends his suggestion that President Bush nominate Richard Posner to the Supreme Court by arguing that he (Posner, not Balkin) is arguably the greatest legal mind of his generation. Other really smart guys in academia, Balkin suggests, really are not in the same league. This is a fair point. Posner is frighteningly prolific, writing more than most academics while serving as a federal judge. And, while I would not recommend the President appoint Posner to the High Court, I would support his confirmation (for the reasons I suggested here), though I doubt someone with Posner's "paper trail" could ever be confirmed.

On the other hand, I think Balkin is a bit unfair to Bork – at least the Robert Bork of 1987. His academic reputation when he was first nominated to the D.C. Circuit was stellar. At the time, at least, The Antitrust Paradox was arguably the single most important work in the field (it was first published in 1978), and Bork was widely respected as a constitutional law scholar as well. Indeed, in the mid-1980s it was often remarked in Democratic circles that a Bork nomination would be impossible to stop because his credentials were so great. (One persistent rumor is that Scalia was nominated to the Supreme Court first because the Reagan Administration thought a Bork confirmation would be such a sure thing.) That said, I completely agree that the post-1987 Bork has been a disappointment. Since he has retired from the bench, he has become increasingly curmudgeonly. He clearly lacks the intellectual curiosity and fire of his younger days. In my view, Bork was a towering legal mind when he was nominated, even if he no longer is today. I would also add that, as with Posner, I am not sure Bork would have been my first choice for a Supreme Court nomination, but I would have supported his confirmation.

While Balkin and I both seem to want excellent legal minds on the bench, Mathew Yglesias puts in a plug for mediocrity. I recognize his point, but wonder if he misunderstands mine. I stand by the position that federal appellate courts should be filled with excellent legal minds -- largely for the reasons Balkin articulates here -- but they need not all come from academia – indeed, they should not. John Roberts is a man of incredible accomplishment, highly deserving of his nomination, and he was never an academic.

I also maintain that it is healthy for there to be a smattering of former academics on the federal appellate bench. To me, a well-constituted appellate court would consist of individuals with various backgrounds. To my mind, the current D.C. Circuit comes close to this ideal. Including the judges with senior status, there are former academics, former executive branch officials, former trial court judges, former prosecutors and defense attorney, and former appellate advocates. In my experience, this mix is as, if not more, important than an ideological mix to a well-functioning court.


The Euro for whom? Did you read in today's papers that the U.S. is still printing Iraqi dinars with Saddam's face on them? Otherwise the display of Saddam's face is forbidden, by the way.

What is the best medium-term solution for an Iraqi currency? Probably the Euro. Given Iraq's oil wealth, the necessary reserves wouldn't be a problem. The dollar looks too much like U.S. imperialism. A native Iraqi currency, once stabilization is complete, could be either too weak (hyperinflation?) or too strong (oil wealth). Economists write of "the Dutch disease," when a resource-rich country develops a currency so strong that the other export industries do not prosper. But Iraq needs economic diversification very badly.

Should Britain adopt the Euro? Probably not. Why should they, except for the fact that everyone thinks they should? So far the Euro has turned out to be a "least common denominator" monetary policy. What is so great about that?

Friday, June 13, 2003


So much to say, so little time to say it in: I had plans to talk about a lot more than just the two subjects of global warming and Tony Blair during my latest stint here at the Conspiracy. Real life, however, intervened. I'll have more -- lots more -- to say on these and other subjects over at The Edge. Feel free to drop by. Even if you disagree with me, I welcome your polite comments. And with that, adieu.


Don't worry, legal geeks of America, Howard is okay: The eery quiet today over at How Appealing was just a blogger bug.


AEI's Secret Revealed: I was at the AEI conference Orin refers to in the post below. One of the opening speakers, the inimitable Jeremy Rabkin of Cornell University (here's a taste of his general thesis) referred to the protestors. "They accuse AEI of standing for racism, war and the global spread of capitalism," he remarked. "Odd, I thought. 'Racism' doesn't sound right..."


Protesting AEI: A group that calls itself the "Bush is Taking the Shirts Off Our Back to Pay For This War Coalition" recently held a protest at the American Enterprise Institute. The reason for the protest: AEI is too conservative and has too much influence with the Bush Administration. About a dozen protesters showed up at the protest, which was timed to coincide with an AEI forum on the influence of non-governmental organizations. DC Indymedia covered the event:
  Adam Eidinger, who has worked as an organizer with the Shirts Off Coalition . . . . spoke directly to the building looming behind him (and perhaps the faces behind tinted glass one could barely make looking down at the sidewalk), calling AEI "sons of bitches" who "won't get away with it, this time."
  "It" was, as Eidinger had observed moments before, the trend of AEI (an NGO itself, funded largely by neo-conservatives and corporations they're connected to) holding forums and promoting policies ahead of the curve of the Bush administration implementing or publicizing policies eerily like those AEI endorsed. Some former members of AEI and the group it houses, the Project for the New American Century, also have roles as advisors within the Bush administration at the White House and the Pentagon, among other agencies.
     As if holding forums and promoting policies wasn't bad enough, it gets worse; it turns out that the AEI's forums are free and open to the public. According to the DC Indymedia news report:
  [A] young white man walked up to [protester] El-Amine and innocuously asked for copies of the flyers. When El-Amine asked what he thought of AEI, the reply came: "I think they do good research." El-Amine inquired further: "...but what do they do with the research?" The two went back and forth a little bit, and the man ended with "well, they obviously have a lot of influence... they do a good job of leveraging that."
  The young man turned out to be Evan Baehr, an employee at AEI. When he heard the criticisms leveled towards AEI, Baehr pointed out that the conferences are open and free to the public. He invited El-Amine to come in and ask questions. He thought AEI might be pressured into taking on outsiders to its panels if Public Citizen or like groups showed up at the forums anyway.
  It seemed not everyone in the rally knew they could go in, nor were there any apparent plans to go in to the conference today . . . .


Reagan v. Bush 43: According to the Alliance for Justice, there are now more active George W. Bush appointees on the federal bench than there are active Reagan appointees. An interesting fact, although "active" is a key word here; lots of judges that Reagan appointed have taken senior status by now, and are therefore no longer on active status even if they continue to hear cases.


Israel: My colleague Jonathan Zasloff passes along the following:
The next time someone tells you that Israel isn't a liberal democracy, have them read this, from Ha'aretz, June 13, 2003:
Tens of thousands people gathered Friday evening at Umm al-Fahm football satdium, to attend a mass demonstration called by the Islamic Movement northern branch. The organizers said they were expecting 100,000 people from across the Arab sector to attend.

The demonstration takes place exactly one month after the arrests of 15 of the movement's senior leadership, including the head of the movement, Sheikh Ra'ad Salah. . . .

Israel Police has announced that its main contribution was to be to position forces at the entrance to the town, and direct traffic toward the stadium.

Last Sunday, Tel Aviv District Court extended by 12 days the remands of five senior members of the organization, as some 200 supporters demonstrated outside the courthouse ahead of the hearing. The five -- including Salah and Dr. Sulieman Agbariya, mayor of Umm al-Fahm -- were allegedly involved in transferring foreign funds through
Israel to Hamas knowing that the money would be used to help the Islamic group's terrorist activity.
It would be interesting to see what the public reaction would be if a American group, whose leaders were under indictment for actively assisting Al Qaeda, held a public rally at a football stadium attacking the United States government for putting the "Arab public in danger." They should, of course, be allowed to do so.

But here is the question: can you imagine a similar sort of rally taking place in ANY Arab country? Under the Palestinian Authority?

No thoughtful observer would deny that Israeli Arabs (or "Palestinian Israeli citizens" as many of them call themselves) suffer unacceptable discrimination in Israel (although it should be mentioned that the social and economic gaps between Muslims and non-Muslims is far narrower in Israel than it is in any European country). But the next time someone tries to deny that Israel is a free society, keep this in mind.


So what would I do? In the comments section on my home blog, I have been asked what I would do given my concerns over the current state of the climate change debate. I think we need to look at all the possible outcomes of the two major strategies for dealing with climate change. Those strategies are prevention -- stop emitting gases, with all the tremendous costs that will impose on economies worldwide, in the hope of stopping potentially catastrophic global warming -- and resiliency -- encourage economic and technological growth as a bulwark against future changes. We should then look at these strategies in the context of four possible outcomes: that global warming, due to human activity, is imminent, catastrophic and unavoidable, that global waming will happen, but it is unpreventable, that global warming will happen but be benign and/or gradual, and, finally, that human activity is not warming the earth. (This approach is fully set out in the conclusion of Jonathan Adler's book, The Costs of Kyoto, published by my organization, CEI.)

The decision matrix then looks something like this:

Global warming catastrophe:
Prevention -- we have a world poorer in wealth and technology, but with stable weather. Prevention represents a "good buy."
Resiliency -- we have a world richer in wealth and technology with worse weather. We will have to work harder and faster to keep up.

Global warming unpreventable:
Prevention -- a world poorer in wealth and technology, with worse weather. This is "all pain, no gain."
Resiliency -- a world richer in wealth and technology, with worse weather. We might say "at least we can buy an umbrella.

Global warming benign and/or gradual
Prevention -- a world poorer in wealth and technology, with the benefits of warming foregone, or better weather. We might have stopped a good thing.
Resiliency -- a world richer in wealth and technology, with better weather. A good thing all round.

Human activity is not warming the earth
Prevention -- a world poorer in wealth and technology, with stable weather. We "over-insured."
Resiliency -- a world richer in wealth and technology, with stable weather. Nothing happened.

There is more and more research coming out that suggests that the earth was once warmer (the medieval warm period -- see this study for the latest thinking) and that man and nature benefitted from it. And a very recent study shows that the surface warming trend has been associated with a significant increase in plant growth, so the idea that global warming may be beneficial is not as outlandish as it might seem.

My point in all this is that we need to be aware of the risks of the prevention strategy. It is only beneficial in the worst case scenario, and even then we have a poorer world less able to withstand other shocks. It seems clear to me that the resiliency strategy is less risky for mankind as a whole. So that's what I'd pursue.


How Not to Change a Constitution: It is a measure of Tony Blair's self-confidence that he was able to announce what is quite possibly the most sweeping revision of Britain's unwritten constitution since 1689 as an aside in a Cabinet reshuffle yesterday. Britain, it appears, is to have a Supreme Court. You wouldn't know it, however, from the way it was announced. The most ancient office of state in the UK, barring the monarchy itself, has been abolished. The office of Lord Chancellor was certainly a bit of an an anomaly, being a member of the executive (as a Cabinet Minister and head of the Lord Chancellor's Department, the chief legal department), legislature (as presiding officer in the House of Lords) and judiciary (head of the judiciary and the person who appoints judges), but the causal brushing aside of 800 years of history is breathtaking in its arrogance. One of Blair's biggest critics from his own party, and a senior lawyer himself, had this to say:

Labour MP Bob Marshall-Andrews QC said: "If you are going to change 1,500 years of constitutional history, you do it carefully, you have consultation, a White Paper and experts, and then finally you bring it before Parliament, because Parliament decides the way we are governed, not the prime minister on the back of an envelope in Downing Street.

The announcement of the abolition of the office and the establishment of a Supreme Court came in this press release. There are no further details about what Tony Blair has in mind for the new court. Without a written constitution, it is difficult to see how the new Court can function, given that its rulings can be swept aside by Parliament, which, constitutionally, is omnipotent except in the matter of changing its omnipotence. The Daily Telegraph, an avowedly conservative paper, goes so far as to call this a coup d'etat:

The Prime Minister has, in fact, carried out a coup d'état by stealth. By proposing to scrap the Lord Chancellorship without prior consultation with the judiciary, peers or the Opposition, Mr Blair shows his contempt for the rule of law, as it has evolved in Britain over the past thousand years and more. This is not merely another ministerial office that is Mr Blair's to do with as he pleases. It is woven into the seamless robe of constitutional custom and practice, which may easily unravel unless change is accomplished gradually and by common consent.

Only last April, Lord Irvine defended his office before a Commons select committee against demands from the European Union that a politician should not also sit as a judge. Yet the fact that the Lord Chancellor not only appoints judges but is invariably a distinguished judge has ensured that the English judiciary remains both the most independent and the least politicised in the world. To abolish this bulwark of the law by the stroke of a prime ministerial pen is a usurpation of executive power over the judiciary. If abolition is desirable, it should have been mooted, not amid the secrecy and personality politics of a Cabinet reshuffle, but after a thorough debate and on the basis of consensus. ...

The Lords, in particular, may well have doubts about the Prime Minister's cavalier treatment of their prerogatives, and in particular the effective abolition of the Upper House's residual role as the court of highest appeal. Though the new Supreme Court would presumably include the present law lords, it would lose its intimate connection with the legislature. This is a shockingly casual way to interfere with the peculiarly informal separation of powers that is one of the glories of British governance. Our system has served us better and for longer than any other nation's. Mr Blair presumes to tear its delicate membrane apart.

The British constitution survived unwritten for over 300 years because no-one, not even the socialist governments of the 40s, 50s and 60s, broke its conventions. Blair has seen fit to ride roughshod over those conventions. In the unwritten British sense, his actions are clearly unconstitutional.


John Ashcroft's Justice Department comes to Al-Jazeera's aid: Remember the attacks on Al-Jazeera's website a few months ago? It turns out that the Justice Department has been investigating the case, and has now charged a California man with a criminal offense for at least one of the attacks:
  A Web designer has agreed to plead guilty to felony charges of redirecting traffic from the Web site for the Arab TV station Al-Jazeera to a site showing an American flag and the words "Let Freedom Ring," prosecutors said Thursday.
  John William Racine II, 24, of Norco, Calif., agreed to plead guilty to wire fraud and unlawful interception of an electronic communication, prosecutors said.
  He will be arraigned Monday in U.S. District Court in Los Angeles.
  Racine allegedly acted after learning in March that Al-Jazeera's Web site had posted photos of American prisoners of war and soldiers killed in Iraq, according to a plea agreement.
  Racine's attorney, Richard J. Leedy, did not return a call seeking comment. There was no listing for Racine in Norco.
  In Dubai, United Arab Arab Emirates, the technology manager at Al-Jazeera welcomed the charges but said the hacking of the Internet site was a costly operation that could not have involved just one person. was subject to several attacks during March, including one where visitors were redirected to a pornography site.


Student evaluations: Eric Muller on reading his.


Howls: Eugene writes below, about the Nixon wage and price controls:
Certainly libertarians today would howl loudly about this, as would many small-government Republicans (though not the heirs of the Nixon Republicans). I wasn't there, and haven't studied the history of the era, but I strongly suspect that libertarians and small-government Republicans of the era were shocked and appalled, and objected loudly.
Indeed. As I recall, Nixon's edict was the precipitating event for the founding of the Libertarian Party by a group of activists who thought the Republican Party had finally become entirely hopeless.

Whatever has become of the LP since then, I think that fact was and is important. Largely under Nozick's influence, academics often talk as if the defining issue for libertarians is opposition to welfare or poverty relief by the state. (Not that Nozick himself thought this; he talked about it more because it was an interestingly hard case.) But Republicans had been administering and expanding the welfare state for years; and Friedman and Hayek and their followers had been arguing about extent and incentives, but didn't believe that state-directed poverty relief was wrong per se and both Hayek and Friedman advocated a particular form of it. It was the assertion of control over the price system that broke the activists' back. (The other major schism that had created libertarianism as an approximately-'organized' movement had been a few years before, within the Young Americans for Freedom, over Vietnam and conscription.)


A TRULY SUPREME COURT: Jack Balkin suggests that President Bush should nominate Richard Posner to be Chief Justice of the Supreme Court should William Rehnquist step down this year (something I doubt will happen, but that's another post). While Posner would not be my first choice, I generally agree with his reasoning: "If you want a truly Supreme Court you should put people of his caliber and quality on it." I agree, but I have my doubts as to whether this is truly Balkin's standard for Supreme Court nominees. If you recall, the last time a President nominated a sitting federal judge who had been one of the most highly regarded legal academics before joining the bench, the candidate was skewered for his academic writings. That the candidate also had significant executive branch experience and helped remake whole areas of the law was immaterial. For those who don't remember. The judge was Robert Bork. It is no surprise that after this experience, Presidents stopped nominating individuals of his caliber to the High Court. My question for Balkin is this: If he wants a "truly Supreme Court," should Bork have been confirmed? If not, why is Posner acceptable? (And if the answer is: Posner's less conservative, then what does that tell us?)

Of course, the above assumes that Posner would be remotely confirmable -- something I very much doubt. He has simply written too much that is too controversial. His elevation would be attacked from the left and the right. As a result, Posner is destined to finish his career on the Seventh Circuit.

Personally, I am a big fan of nominating academics to the federal bench. A healthy dose of former academics is good for the appellate courts. President Reagan nominated several to the appellate courts (e.g., Easterbrook, Scalia, Posner, Williams, Ginsburg). Clinton nominated only a few (e.g., Moore, Kagan), as has our current President (e.g. McConnell, Bybee). I would also add that I generally believe that the Senate should focus on the qualifications of the nominees rather than their ideology. I would vote to confirm a highly regarded and accomplished academic even if I disagreed with his or her views. I believe the Senate should have conifrmed Elena Kagan, and regret rumors that other academics did not get nominated because of potential Senate opposition. Excellence on the courts is a worthwhile goal -- it is simply one that the current confirmation process discourages.


28 years ago, on Friday, June 13, 1975, our parents brought Sasha and me out of the Soviet Union.

Thursday, June 12, 2003


Michael Kinsley on economic liberty: Michael Kinsley writes in Slate about liberty -- mostly about the Patriot Act and similar things -- but closes with this paragraph:
Americans are not so innately freedom-loving that we would never let it dribble away without noticing. I can prove this because it actually happened, within the adult lifetimes of anyone over about 50. On August 15, 1971, more or less out of the blue, President Nixon declared a freeze on wages and prices. Legislation authorizing this had passed Congress the year before, with little controversy. The freeze evolved into a system of formulas about who could get paid what, requirements about filing forms with the government and keeping records and posting notices, all enforced by a growing bureaucracy of wage and price cops. The controls lasted a couple of years at full strength and then faded away over the next couple.

The notion that the government could tell everyone from General Motors to a baby-sitting teenager what they could charge -- and did so -- seems shocking in retrospect, at least to me. There was no real national emergency. It was part of a cynical re-election strategy to gun the economy while holding inflation temporarily in check. But at the time, controls were not just accepted but popular. When they disappeared, even those (like me) who had opposed them found it strange and, at first, unnatural. You mean, anyone can just charge whatever they want? How does that work? The analogy isn't perfect. The right to set your own price isn't as profound as the right to express your own political opinion. But it is, if anything, even more a part of every citizen's daily life. And yet when they took it away, we freedom-loving Americans didn't even miss it.
Well, I'm delighted that Michael Kinsley believes that economic liberty is a fundamental part of people's liberty. Certainly libertarians today would howl loudly about this, as would many small-government Republicans (though not the heirs of the Nixon Republicans). I wasn't there, and haven't studied the history of the era, but I strongly suspect that libertarians and small-government Republicans of the era were shocked and appalled, and objected loudly.

     Of course, the notion of economic liberty -- the right not to have the government dictate your wages and prices, the right to enter and run your business on your own terms, the right to hire, be hired, fire, or quit with little government supervision, and so on -- has not been terribly popular with liberals for many decades. (I'm speaking here not just of a constitutionally secured liberty, but just a liberty that ought to be protected by law, and that the political process generally shouldn't take away.) Unfortunately, as the Nixon Administration shows, it has been unpopular with some ostensible conservatives, too, though this just shows that Nixon wasn't that conservative on economic matters. I'm glad to hear that Michael Kinsley supports economic liberty, and I hope that it's a harbinger of its increasing popularity with the center (which is where I generally place Kinsley). More people should be shocked by wage and price controls, rent controls (a form of price control), and many other similar prohibitions.


USA Today seeks Harvard blondes: Dan Markel sends on an unusual e-mail recently circulated by the Harvard Club of Washington DC that contains the following announcement. I checked with the USA Today and yes, it's real.
  USA Today screening of Legally Blonde

  USA Today seeks five or six blonde female Harvard Law School grads in the Washington DC area who have spent time working on Capitol Hill and are willing to write a critique of the upcoming comedy Legally Blonde 2: Red, White & Blonde. In the sequel, Reese Witherspoon's lawyer Elle Woods is in DC trying to get a bill passed that would outlaw product testing on animals.
  There is a free early screening of the movie at 7:30 pm Thursday June 26 . . . . A USA Today reporter will attend the screening as well and have a photographer take the picture of each blonde Harvard Law School participant. . . .
  The deadline for the written critiques would be Friday June 27. They don't have to be long but should address certain points, such as: whether the legal process and what Elle encounters on the job is at all realistic, whether they ever encountered some of the trouble that Elle has with being taken seriously sometimes, whether she is a good role model despite her fondness for pink and chihuahuas, whether this promotes or harms the image of female lawyers in any way, and any other points they might have once we all see the movie.
  . . . Interested blonde Harvard Law School grads should send their names and a daytime phone where they can be reached to [address deleted]. It helps to have already seen the first Legally Blonde movie, but this is not required.
     It's good to see that the USA Today is really going for the important stories these days, and that the Harvard Club s doing its best to help the newspaper with this important issue. I'm also willing to go out on a limb and predict that the movie's portrayal of life as a lawyer is not realistic.


Why Blair isn't in trouble A lot of people on this side of the Atlantic are saying that Tony Blair is in more hot water over the non-appearence of WMDs in Iraq than the President is. This may be true on one level, in that there's a lot of heat generated in the House of Commons on the subject (as viewers of The Daily Show with John Stewart saw a few days ago), but in practice, Blair is in no danger. To understand why, you need to know a bit about how the British constitution works.

To retain office, a Prime Minister must command the confidence of both the Cabinet and the House of Commons. Historically, Prime Ministers have come and gone as shifting alliances within Cabinets unseated them and replaced them with former allies. Since the party system grew stronger in the twentieth century, however, Prime Ministers have tended to lose power outside elections only when they lost their majority in the House. When that happened, the opposition would call a vote, "This House has No Confidence in Her Majesty's Government." A government that loses a confidence vote must, by convention, call a general election (if it didn't the Monarch would presumably call on someone who can command a majority in the House to be Prime Minister instead). Things changed again when Margaret Thatcher's unpopularity in the country caused her to lose the support of her Cabinet colleagues in 1990. She resigned when it became clear that the Cabinet would not back her to the hilt when Michael Heseltine challenged her for the leadership of the Conservative Party.

So, if Blair is to be damaged fatally, something must happen to cause him to lose the confidence of his cabinet colleagues, or for well over 100 members of his own party to rebel against him in a confidence vote. Let's take the latter first. It's incredibly unlikely. Blair has faced rebellions before, but whenever there was any real sign of the Government being defeated in a serious vote, only 60 rebels at most voted with the opposition. In many ways, it would be a classic case of turkeys voting for Christmas, as Blair remains more popular than his government as a whole by 8 points. A Labour party without Blair, split and divided, facing a general election would almost certainly lose power. Well over a hundred Labour MPs, including many of those who rebelled, would lose their seats.

So the only realistic scenario for Blair losing power is if the Cabinet rebels against him. This is also unlikely. To begin with, many in the Cabinet are loyal "Blairites," who have hitched their star to Tony's. They are centrists, hated by "Old Labour" socialists, owe everything to him, and recognize his role in maintaining the Labour party's poll ratings. There is also a doctrine called "collective responsibility," which holds that a decision taken by the Cabinet binds all its members to support it. So, the Cabinet discussions that led to Blair's decisions on the war bind all of them, even the now-resigned Clare Short, who was a member of the Cabinet at the time the decisions were taken. If Blair admits he was wrong on WMDs, the admission affects the entire Cabinet. No Cabinet Minister would be in a position to succeed Blair, should he resign on that basis. The only way these senior figures could stab Blair in the back would be if it was revealed he deliberately misled his colleagues. This is unlikely to have been the case. Blair may have misread the evidence, but all his colleagues agreed with his interpretation.

Nor has the WMD "scandal" had any real effect on the Government's poll ratings. It is not trusted, but it wasn't trusted well before the Iraq crisis began, owing to its excessive relaince on spin (one Minister was forced to resign several months after one of his aides said it would be a good day to release some bad news on 9/11). It retains a substantial 8 point lead over the opposition conservative party among likely voters, according to the latest MORI poll, and an even bigger 15 point lead among all voters.

It's also the nature of British politics that issues fade from the people's memory, rather than fester. As Iraq recedes, the fuss over WMDs will be seen as pretty irrelevant by most voters. Only a "smoking gun," if you'll pardon the phrase, proving that Blair deliberately misled his colleagues, the House and the nation, will change that.


The DMCA and the right to fair use: One of the arguments occasionally made against the Digital Millennium Copyright Act is that the act is unconstitutional because it violates the right to fair use guaranteed by the First Amendment. As I understand it, the argument generally goes like this: 1) copyright law allows a fair use defense; 2) the Supreme Court has suggested that copyright's fair use defense may be required by the First Amendment; 3) the DMCA prohibits people from circumventing access controls to a copyrighted work even if the infringement that would occur would be a fair use; and 4) by prohibiting conduct that would be fair use, the DMCA violates the First Amendment.

     I am sympathetic to this argument from a policy perspective. I greatly value the fair use defense, and the DMCA seems an awkward attempt at solving the problem of online copyright infringement. As a constitutional argument it strikes me as weak, however, for reasons that go beyond the narrow holding of the Corley case.

     As I see it, the problem is that an affirmative defense only works in conjunction with its corresponding cause of action. While the Constitution may require an affirmative defense to liability under a specific cause of action, we don't normally speak of someone having a "right" to do the act just because a particular law would not (even could not) punish it.     Consider the insanity defense in criminal law, which, like fair use, is generally treated as an affirmative defense that excuses liability. Some courts have held that the insanity defense is required by the Due Process clause, and that legislative efforts to abolish the insanity defense are unconstitutional. See, e.g., Finger v. State, 27 P.3d 66 (Nev. 2001); State v. traburg, 110 P. 1020 (Wash 1910). However, we don't talk about having Due Process rights to commit crime while insane. That would be pretty odd, in fact; imagine a defense attorney claiming that a prison sentence violated his client's constitutional rights by incapacitating his client and therefore making it impossible for him to commit crimes that would then be excused by the insanity defense. The trick is that although the Due Process clause may require a state to have an insanity defense, that does not mean that the law has to otherwise allow acts that if committed would fall under the insanity defense. At a conceptual level, I think the right to fair use is similar. It may be that the First Amendment requires a fair use defense to copyright infringement. As I see it, this does not necessarily mean that the First Amendment invalidates any other law (such as the DMCA) that prohibits acts that would constitute (or at least lead to) protected fair use.

    Again, this doesn't mean that the DMCA is a good thing from the standpoint of public policy. But I think it does point to a weakness in one of the occasional constitutional arguments raised against it.


Islam and the law F.E. Peters, Islam: A Guide for Jews and Christians, is the best introduction I know of to Islamic ways of thinking about the law. Most of the book is not even about the law, but it doesn't matter (recall the general bookreading principle: if you wish to learn about X, don't start with a book directly on X, in today's hyperspecialized academic world it will assume too much and swamp you with unnecessary detail).

The book is very readable, most of it concerns how the Koran relates to the Hebrew and Christian Bible. We are then told how the law follows. One of the best non-fiction books I've read in the last six months, and one of the best books on Islam, period (Kenneth Cragg's The Call of the Minaret is another favorite of mine, plus we must not forget Rene Girard's general treatments of Christianity, which also treat the law, best start is Things Hidden...).

Peters, the author, is a professor at NYU but he has the stones not to use a single footnote. "You're either going to believe me or you're not," is his attitude, I suppose, I applaud it.


Sad news: Brian Leiter is reporting that Bernard Williams, Deutsch Professor of Philosophy at Berkeley and the former holder of a number of prestigious posts at Cambridge and Oxford, has died. Williams was much less well-known to the general public than his friend Isaiah Berlin, but he was a tremendously important voice in, and critic of, moral philosophy. He was a humanist and a pluralist like Berlin, but unlike the latter, Williams was deeply intellectually involved with ancient Greece, and remained in conversation with analytic philosophy throughout his life. He was among the most influential critics of utilitarianism as a moral philosophy (by which I mean to distinguish him with Rawls' critique of utilitarianism as a political philosophy). Earlier in his long career he wrote on issues in the philosophy of identity and philosophy of mind that I can't comment on, but which I'm led to understand was also quite important.

Williams' most recent book was Truth & Truthfulness: An Essay in Genealogy, a critique of postmodernism. His most important works were Ethics and the Limits of Philosophy, Shame and Necessity, Moral Luck, and Making Sense of Humanity. I know of one collection of essays about his work in ethics and moral philosophy, World, Mind, and Ethics.

I only saw Williams speak once, when he gave a version of the "Truth and Truthfulness" argument at Chicago in the spring of 2001. As was often the case with Williams, it wasn't especially easy going; but, as was always the case, it was well worth it, and at the end one felt a sense of genuine understanding, above and beyond the particular points scored in particular arguments. Williams' writing in his NYRoB essays was typically elegant and lovely; his writing in academic settings was elegant but often dense and somewhat difficult. This, I think, kept his later work (1980s and onward) from ever fully crossing over from philosophical to wider audiences and becoming as influential as the critique of utilitarianism, or as influential as it ought to be. This is a shame; Williams' work combines rigor with moral depth in a rare fashion. He will be missed.

See this profile from the Guardian. UPDATE: The Guardian has now published an excellent obituary. Link via Chris Bertram. UPDATE: Chris links to further obituaries.


Climate change debate somewhat hazy I've been dealing with climate science issues in detail for approaching a month today. As a result, I am amazed whenever I hear anyone say that "science shows" anything in the climate change debate. The plain fact is that normal scientific methods simply aren't applicable in the climate science area. Normally, you come up with a hypothesis and run experiments to check it. The trouble is that you can't run experiments with the climate. We have no other Earth to act as a control (anyone who points to Venus as an example is showing his ignorance there and then). The science can therefore only progress by building models, which, if acceptably accurate, might predict what will happen. But those models are based on theory. If they cannot predict what is currently happening (as we know from observation) accurately, there is something wrong with them and/or the underlying theory. Theorists, however, are often wedded to their theories.

Take, for example, the satellite temperature data. There has been a warming trend in measurements taken on the Earth's surface (although most of it happened in the early 20th century, and there is huge debate as to whether heat island effects and land use changes caused the change rather than any actual change in the Earth's global average temperature, which itself is a pretty meaningless statistic. But I digress). The greenhouse theory says that this warming should be reflected in the atmospheric temperature measurements. But it isn't. Satellite temperature data show no warming trend. This has led some prominent modellers to suggest recently the satellite data must be be incorrectly measured, and if you just add a few mathematical corrections, they fall into line with the models. QED. Except that the weather balloon data also show no warming trend, and back up the satellite data. You might remember that pre-Galilean astronomers used to perfrom complex mathematical adjustments to their measurements of the position of the planets to back up their model of the Sun revolving around the Earth.

Anyway, this is all shown again in recent scientific debates surrounding the role of aerosols in climate change. The last Intergovernment Panel on Climate Change (IPCC) didn't really consider the role of black carbon aerosols (ie. soot) in the atmosphere (the atmosphere is an incredibly complex thing). Yet half the world burns wood and dung for fuel and heat, producing vast amounts of soot -- the Asian "brown cloud" is just one example of its effects. Research into the effects of soot is strongly suggesting that it warms the atmosphere. A recent study from James Hansen, one of the founders of the global warming theory, estimates that black aerosols are responsible for much of the warming trend to date, which has been far less than the greenhouse theory suggests.

Yet there's another side to aerosols. Other, sulfate aerosol particles -- non-soot pollution, basically -- reflect energy, and are therefore held to cool the earth. The IPCC took these into account, suggesting that they therefore masked what was really happening with global warming (thereby explaining why the warming trend is less than the theory suggests) and that, as atmospheric pollution decreased, global warming would accelerate. Hansen's paper suggests that the two forms of pollution cancel each other out, thereby leaving the greenhouse theory open once again to the question why temperatures have not increased as much as they should.

So once again there is a revision of the theory. New Scientist reports how a group of scientists in Berlin have decided that the aerosol cooling effect must, in theory, be bigger than presently supposed. The original short Perspectives piece in Science magazine the workshop was based on had said that this might mean either that the earth’s temperature is more naturally variable than thought or that the climate is more sensitive to forcing than thought. The Berlin workshop settled on the latter, and produced the prediction that, when sulfate aerosol production wanes, the earth might warm between 7-10° C. based on the IPCC’s worst-case scenario. The worst-case scenario is based on the improbable idea that the entire world will raise itself to the economic output levels of the United States.

New Scientist admits that the calculations on which these dire predictions were “back-of-the-envelope” figures. Despite this extreme uncertainty, Will Steffen of the Swedish Academy of Sciences was quoted as saying that “the message for policy makers is clear: ‘We need to get on top of the greenhouse gas emissions problem sooner rather than later.’”

This is a perfect illustration of the way the greenhouse theory is manipulated. The base theory suggests warming that isn't happening to the extent it should. Science then suggests something else. A new theory is produced, or an old one updated, to make the new data fit with the base theory. Worst-case scenarios are dreamed up and promulgated, normally worse than before. Action is then demanded now from policy-makers to avert the worst-case scenario.

Whatever this is, it isn't real science. It's science distorted to fit a politically-accepted view of nature. Those who question the progress of the science are vilified and pilloried. Galileo would recognize what's going on here, I think.


RACE AND JURIES: Eric Muller of Is That Legal? points to an interesting AP story this morning about a criminal trial in Pittsburgh. The trial is being delayed at the jury selection stage because the judge has concluded that at least 10% of the juror pool must be African-American. (IMPORTANT UPDATE: Reader Ashby Beal writes in with this report: "Just called the Allegheny County prosecutor's office who confirmed that the ruling is aimed only at the pool" of jurors, not at the actual racial makeup of the specific jury in the case. In other words, the judge is not requiring that at least two jurors must be African-American-- although apparently the defense attorneys did ask for such a ruling-- but only that the 10% of the jury pool as a whole must be African-American.) According to the story, the local public defender's office conducted a study in which they found that African-Americans make up 12% of the local population, but only 5% of the people who report for jury duty.

     Eric offers the following comments:
  [L]egally speaking, there's really nothing to be outraged about here. It has been settled law for decades that the Sixth Amendment requires a jury pool or "venire" to reflect a fair cross-section of the community. A jury venire is not a fair cross-section if the selection system is calibrated to underrepresent a "distinctive group" in the community. Racial groups are, under the Sixth Amendment, "distinctive." The district where this murder trial is to occur is twelve percent black, but the venire is never more than five percent black. So this ruling strikes me as an elementary application of well settled law.
  (Note: this area of the law says nothing about the representativeness of actual juries that get seated to hear particular cases. It addresses only the larger pool of prospective jurors from which actual juries are drawn.)
  To the extent that people are talking about this story, it is because some people seem to be upset that this area of Sixth Amendment law appears to run counter to the "colorblindness" theory that is all the rage in some constitutional quarters. And, in an important sense, it does do that: this area of the law works from the assumption that race is not completely irrelevant to people's life experiences, perspectives, and perceptions.
  So it's worth taking a moment to think: if you're bothered by what this Pennsylvania judge is doing, is it because you think that the assumption underlying this area of law is actually false? Or for some other reason?


Harm-facilitating speech: Another reminder for me to finish writing that article on the First Amendment and harm-facilitating speech that I've been working on for years now -- this issue keeps coming up all the time, on the Internet and off it. Usually it involves crime-facilitating speech (e.g., teaching people how to make bombs, grow drugs, commit contract murder, infringe copyright, and so on), but sometimes it facilitates other harms, such as torts, successful attacks by military enemies (that's the famous hypothetical about a newspaper publishing the sailing dates of troop ships), or suicide. Here's the latest:
The instructions downloaded from the Internet were explicit, and, according to police, followed precisely by a 52-year-old St. Louis woman in taking her own life June 2.

Printouts from the Web site left nearby described how to use helium to cause asphyxiation, exactly as she did. This is the Web site's recommended method. . . .

The suicide victim would not have killed herself but for that content, St. Louis Circuit Attorney Jennifer Joyce said last week. She wants to pursue voluntary manslaughter charges against the person responsible for providing that information. It is a novel legal tactic and one that faces several hurdles. . . .

Information about how to commit suicide is already available in books. The most famous one is the 1991 bestseller "Final Exit,'' published by a leader of the euthanasia movement. Now the Internet -- and its far reach -- is a player. What was once taboo or hard-to-find can be tracked down in an instant with a search engine. Type in the right words and hundreds of sites appear. Google even has a formal directory for sites listing methods for suicide.

Few cases of Internet-inspired suicides have been documented in the United States. But it is a troubling development for mental health experts, who see these Web sites as having a dangerous allure to someone who is thinking about taking his or her own life. So-called suicide sites already have prompted alarm in other countries, like Britain, where the government announced in March it is investigating the feasibility of censoring sites that promote suicide. . . .

Missouri is among 35 states that have criminalized assisted suicide, what is commonly thought of as a physician giving lethal drugs to a terminally ill patient. It is under this law that prosecutors are considering charges in the St. Louis woman's death. . . .
I'm skeptical about the causation claim -- "The suicide victim would not have killed herself but for that content" -- partly because there are so many other highly reliable ways of committing suicide, and there's a pretty good chance that the victim would have used those if she didn't know about the helium, though of course there's no way of knowing for sure.


Solicitors: I'm off today to speak on Slippery Slopes at the State Solicitors Conference in beautiful Oklahoma City. State solicitors are generally (though it varies from state to state) the state-level equivalents of the federal Solicitor General -- they're typically in charge of the state's appellate litigation, especially before the U.S. Supreme Court and state supreme courts. It's a relatively new office for many states to have, but my understanding is that it's gotten more popular in the last several decades.

     Three of the people who clerked at the Court the year that David Post and I did are state solicitors (Gary Feinerman [Illinois], Nate Forrester [Alabama], and Brian Morris [Montana]); I'm told at least two of them will be there, one more reason that I look forward to the trip. Hope to blog a bit from the hotel tonight, though much depends on how sleepy I am.


Aw, shucks Thanks for such a kind introduction, Eugene. If anyone is interested in reading the Britannica article Eugene refers to, you can find it here.


Iain Murray guest-blogging: Please welcome back Iain Murray of the Competitive Enterprise Institute and The Edge of England's Sword (one of the most dramatic blog names I've seen), who'll be guest-blogging today and much of the day tomorrow. Iain's main interests are in the use and abuse of scientific and statistical information (among other things, he wrote the Encyclopaedia Britannica's item on the use of statistics in the gun control debate), and in what the Anglosphere countries can learn from each other. Iain is reachable at blogmail at

Wednesday, June 11, 2003


Excellent movie about democracy It is called Secret Ballot, and is just out on DVD.

This Iranian movie is both a paean to democracy as an ideal and a satire of how democracy works in practice. The basic plot line concerns a woman and a soldier, who are told to visit an island and round up votes there. The story is based around the various reactions they receive, which range from indifference to hostility to piqued interest. The movie offers a profound treatment of the rule of law, the relationship between democracy and force, the relationship between democracy and gender, the varied motives of voters, private property, the ironies of political participation, and life under a constitution, among other themes. I can't remember the last time a rental so held my interest.

The first ten minutes are a bit slow, don't be put off. Much of the cinematography is breathtaking. The two leads are excellent, though they (remarkably) are amateurs.

Are you familiar with Iranian cinema more generally? If not, you are in for a real treat, as Iran has produced many of the best movies of the last twenty years. Those with philosophic or legal interests are especially likely to enjoy Iranian movies.


More privacy vs. free speech, and free speech wins. As the court put it, "while 'there is some justification for the complaint . . . as to the conduct of this newspaper reporter,' the courts 'do not sit as censors of the manners of the Press.'" For reasons generally described here, I think that's right. Thanks to How Appealing for the pointer.


Duty to rescue: Another interesting, thoughtful, and readable opinion from Judge Posner, this time on when people have an obligation to try to help others who are in danger. I mention this because the case is worth reading, and also because it gives me a chance to again plug my Duties to Rescue and the Anticooperative Effects of Law (special bonus: though it's a law review article, it's unusually short). Thanks to How Appealing for the pointer.


"Landlord Snubs Al-Jazeera":
Qatar-based al-Jazeera is a 24-hour news network that has drawn praise for being more independent than most Arab media -- and criticism, especially in the United States, for showing video of American POWs during the Iraq war and for its perceived sympathy to Saddam Hussein.

The network wants to sublease 17,000 square feet of studio space from a television production company in a K Street office building. But landlord Cafritz Co. denied permission for the sublease, describing al-Jazeera and its television production arm in a letter as "potentially being a target for people who do not understand or do not agree with its business principles and philosophies of those of its ownership."

Conus Communications Co., which is trying to sublet the space to al-Jazeera, sued Cafritz in D.C. Superior Court last month, seeking a court injunction to allow the sublet.

Conus says its lease with Cafritz at 1825 K Street NW says the landlord cannot unreasonably refuse a sublease so long as it meets several conditions, which it argues al-Jazeera does. . . .
There are more interesting details in the story.


SAD: The Smoking Gun has a report about a 23-year old Wisconsin man named Kevin Rutkowski who was charged and arrested with vehicular homicide:
Police officers estimated that an inebriated Rutkowski was driving about 100 mph before he slammed his car into a truck driven by David Heffernan. The 57-year-old victim was ejected from his vehicle after it crossed the median and flipped over. When Marathon County Sheriff's deputies arrested Rutkowski, who fled the accident scene, he was, remarkably, wearing a t-shirt with the phrase "I can't be drunk...I'm still drinking."
Check out the booking photo here.


Law and Literature, and then some I'm not a lawyer, but George Mason University School of Law is generous enough to let me teach Law and Literature there. I'm thinking of some additions to next year's reading list, including the following:

Henry James - The Spoils of Poynton (about inheritance and "hold-up" behavior, short and compelling)
Njal's Saga - the Icelandic classic
Joseph Conrad - Under Western Eyes (on the psychology of terrorism and surveillance, I have yet to read this one yet)
Coetzee - Waiting for the Barbarians (about prison camps, very libertarian)

Last year's readings include parts of the Torah (still the most profound meditation on the law), Bleak House by Charles Dickens, I, Robot by Isaac Asimov (a wonderful treatment of the ambiguities of the law), and Tolstoy's Hadji Murad (who is a terrorist and who is a freedom fighter? In my opinion this novella is Tolstoy's greatest work and that is saying something. Just don't fall into the trap of idolizing Hadji, his character suspiciously resembles that of the Russian emperor!). And of course Shakespeare.

On another note, the French government released Papa Wemba on bail two days ago, on charges of "human trafficking." Papa Wemba is arguably the leading musician in central Africa (his country used to be called Zaire, I won't confuse you by citing the Congos). He has cut literally hundreds of records, many of which are excellent, no one can keep track of them. The claim is that Wemba got French entry visas for hundreds of his fellow citizens by claiming they were members of his band. The entrants then disappeared and never showed up on stage to shake a tambourine. And he is charged with having done the same in Belgium.

Hero or villain? I opt for the former. Here's hoping for an acquittal.


Legal academia: Here's a question for any law professors out there: Do you consider yourself an academic who happens to teach in a law school, or are you a lawyer who happens to be teaching? To put the same question in a slightly different way: If you were told that you couldn't teach law any more, would you look for a non-law teaching job, or a non-academic legal job? I haven't asked lots of law professors this question, but I would guess that most law professors fall into one camp or the other.

Tuesday, June 10, 2003


Larry Lessig's copyright reregistration mandate proposal, and the Takings Clause: A week ago I pointed people to Larry Lessig's proposal to broaden the public domain:
We have launched a petition to build support for the Public Domain Enhancement Act. That act would require American copyright holders to pay $1 fifty years after a work was published. If they pay the $1, the copyright continues. If they don’t, the work passes into the public domain. Historical estimates would suggest 98% of works would pass into the pubilc domain after 50 years. The Act would do a great deal to reclaim a public domain.
I thought it was an interesting idea, but expressed a concern: "I think that the forfeiture for nonpayment of the registration fee may constitute a taking of property, and may thus put the federal government on the hook for compensation, at least in some cases." I had e-mailed a law professor friend of mine who supports the proposal, and he acknowledged that there might be a Takings Clause issue there, but thought it would be worthwhile for Congress to pay the (likely quite modest) required compensation in those cases; so I felt comfortable airing this tentative concern.

     My further research, however, shows that my concern was unfounded, at least as a matter of existing constitutional law. Texaco, Inc. v. Pond, a 1982 Supreme Court case, specifically held that the government may indeed require that owners of old property interests (there, mineral rights) periodically register their claims, and if they don't register them, the interests would be forfeited. This seems quite analogous to Larry's proposal.

     I'm still not completely sure that such a registration requirement would be entirely fair to the copyright owner -- it is pretty harsh for the government to take away your property because you failed to comply with such a requirement; in tax cases, for instance, the government may sell your property for nonpayment of taxes, but at least it acknowledges the duty to give you the leftover proceeds (if any) once the taxes are recouped. But it's not unconstitutional under current law. The fact that this is current law, and the skies haven't fallen, eases my slippery slope concerns. And there are indeed good policy arguments for clearing away those property interests that aren't really being exploited by the owner, and are just interfering with the potentially valuable behavior of others.

     Note that my objection, incidentally, was in the first place only to the retroactive imposition of the $1 requirement. For new copyrights, Congress can generally set up the terms under which the property is given; my objection was to the imposition for copyrights that were awarded without such a requirement (or a comparable one, such as the pre-1976 Act renewal requirement.)

     So on balance, I still think Larry's proposal is interesting; I'm not completely persuaded by its merits, but I think it's definitely worth discussing. It seems highly unlikely to be enacted -- but that likelihood itself depends on how effectively defenders of a broad public domain organize politically, and how well they sell their agenda. That's one reason that discussions of these proposals can be quite helpful to the pro-public-domain cause, even when the proposals at first seem politically implausible.


Nominations crisis? Is it my imagination, or has the much-debated crisis over the confirmation of lower court judges passed? Altogether, 28 judges have been confirmed so far this year: eight to the circuit courts, and twenty to the district courts. In just the last three months, we've seen the confirmation of Michael Chertoff, Deborak Cook, Jeff Sutton, John Roberts, Timothy Tymkovich, and Jay Bybee, among others (see the entire list here). I suppose a crisis gets more media attention than a return to business-as-usual, but it seems to me that recently the Senate has been confirming lower court judges at a pretty decent clip.


Hobbes and Hobson: Many people have been e-mailing me to suggest that Jennifer Granholm could have legitimately meant to say "Hobbesian choices." It is of course possible. There have been some clever intentional puns playing on the Hobbesian-Hobson resemblance. And sometimes one might want to talk about a Hobbesian choice without any reference to Hobson, as in the Hobbsian choice between anarchy and tyranny. (Though I should note that, as far as Hobbes was concerned, this might be a Hobson's choice, too! Indeed, avoiding the need to choose between multiple options, ensuring that major decisions weren't really decisions at all but outcomes wholly-determined by reason, was one of Hobbes' major concerns.) More likely, I think, is that we're gradually getting some linguistic drift. Becuase "Hobson's choice" is a phrase, and people are more likely to have heard of Hobbes than of Hobson, they import what they know about Hobbes (typically not much) into what they imagine the meaning of the phrase "Hobbesian choice" to be. Unfortunately, the latter lacks any deternminate meaning. Because people associate Hobbes with unpleasantness, nastiness, and life-and-death contests, they start to use the phrase to refer to any choice that has some of those characteristics.

By the way: if you want to argue with me about this, please don't wrtie to inform me that there's someone named Thomas Hobbes, and that 'Hobbesian' refers to him. I teach Leviathan every year (as well as other Hobbesian works on occasion). I'm a professional political theorist. I know about Thomas Hobbes. But-- at least pre-linguistic-drift-- the phrase Hobson's choice has nothing to do with him, and most uses of the phrase "Hobbesian choice" outside technical academic settings are likely to be confusions between the two.


Bushism of the Day / Thatcherism of the Day: Here's today's Slate "Bushism of the Day":
"We are making steadfast progress." -- Washington, D.C., June 9, 2003
And the problem is . . .? "Steadfast" did originally mean "standing firm, not giving ground," and still sometimes has a connotation of not changing (rather than either progressing or regressing). But my New Shorter Oxford tells me the more common modern meaning is "unshaken, constant, unwavering." "Steadfast progress" thus means "constant, unwavering progress," with the connotation (or so it seems to me) of a constant, unwavering advance in the face of obstacles (the sorts of things that might cause one to waver). And this fits well with the context of President Bush's remarks -- the American administration of Iraq, a situation that does call both for American steadfastness and progress:
And we talked about the need for our coalition to continue to make steadfast progress in Iraq so that the people of Iraq will be able to eventually run themselves. And we are making steadfast progress."
     A quick LEXIS and google search reveals that "steadfast progress" has indeed been used by various people in this very sense. Perhaps the Bushism authors think that Bush meant "steady progress" and just misspoke; but I see no evidence for this assumption on their part. It seems to me likely that Bush intentionally meant progress that isn't just steady, but steadfast in the sense of not wavering.

     If, however, Slate wants to call this a Thatcherism of the Day, then I, as a fan of Margaret Thatcher, would be happy to accept the term (and President Bush might, too). Consider this UPI story from May 18, 1983:
Prime Minister Margaret Thatcher, promising to reduce taxes, inflation and unemployment, launched her election campaign Wednesday with a sharp denunciation of the opposition Labor Party's ''extreme'' policies. . . .

''The choice before the nation is stark: either to continue our present steadfast progress towards recovery, or to follow policies more extreme and more damaging than those ever put forward by any previous opposition,'' the prime minister wrote in the manifesto.


Diversity in media, and satellite radio The recent FCC decision to relax ownership regulations on
radio stations sent up much criticism. We have
heard the usual refrain about big companies swallowing up
small ones and limiting diversity. But almost certainly the
policy is irrelevant.

First, the legal ownership cap has gone up from 35 to 45 percent, hardly a big change.

Second, and more importantly, radio options have become
much more diverse in recent times.

Internet radio is well known, but satellite radio is perhaps a bigger development. (Yet many of my musical friends are not yet familiar with it.) You get 100 stations, 70 of them music, most of them commercial-free. $10 a month, once you buy your radio (not expensive,certainly less than $200, for car or home), and superior sound quality.

XM commands most of the market, but they are hardly the only source of programming. My favorite World Music station (Ngoma, #102) draws feeds from South Africa, among other places.

Few if any of the stations are designed to appeal to the "average listener." Most try to please the experts in a given genre. The Classic Country, Bluegrass, Caribbean, and Opera stations are especially good. The Classical station will play Faure's Violin and Piano sonata, instead of short catchy tunes by Boccherini and Telemann.

Satellite radio, for me, is a bigger advance than Cable TV.

If anyone thinks it is the FCC that ensures media diversity, take a look at XM.


Preservation grants and churches: My Wall Street Journal column on this is up. Here are the first paragraphs:
Imagine that the National Gallery had a policy of buying only secular art. Pretty foolish, we'd think: The history of art is intertwined with religion -- you can't assemble great art collections while excluding religious works. Until this year, though, the Department of the Interior had a similarly exclusionary policy for historically and architecturally important buildings.

The National Historic Preservation Act provides funds to help repair landmarks. In exchange for the money, the building owner promises to give the public substantial access, and to keep repairing the building for 50 years to maintain its historical integrity. The act essentially lets the government buy a preservation easement in the buildings, to maintain our cities as living museums of history and architecture. To its credit, Congress provided the funding for a wide range of historic buildings, whether or not the buildings have religious uses. But for decades, the executive branch excluded churches, synagogues and other religious sites.

Two weeks ago, the Bush administration eliminated this exclusion, and rightly so. . . .
The piece goes on to respond to the Establishment Clause objections to such programs; for a broader defense of the theory that equal treatment of religion doesn't violate the Establishment Clause, see this article of mine from a couple of years ago.


Embargoes: Slate has a nice piece explaining what it means for publishers to "embargo" a book or a study; but the concluding paragraph is a bit incomplete:
But why do newspapers and magazines abide by a book embargo? For one thing, they have to, legally; in 1983 after The Nation published 300 words from Gerald Ford's then-forthcoming memoir, the publisher sued the magazine; the Supreme Court ruled that the magazine was guilty of copyright infringement.
Copyright law may often require publishers to abide by the terms of an embargo when they want to quote an author's specific expression; but copyright law doesn't prohibit them from reporting juicy facts using their own words, and probably doesn't prohibit them from engaging in very short quoting (a sentence or two out of a book, for instance). Publishers may have other legal theories in such cases (e.g., a "hot news misappropriation" claim), but those theories are quite unlikely to work, so long as the newspaper account only extract facts or very short quotes, and so long as the newspaper didn't contractually promise to honor the embargo.

Monday, June 09, 2003


Drat -- another blogger bug: Blogger seems to be omitting the posters' name at the start of each post; the problem seems to be with Blogger, not our template. Hope it magically clears up soon, just as it magically appeared.


A troubling sort of property: I recently read an article that criticized recent steps -- such as the TRIPS agreement -- by which rich countries have pressured poor countries into protecting intellectual property. Now the general issue about whether rich countries should do this is a complex one; but the issue raised by one of the epigraphs with which the article starts is not. The epigraph is from an article that's available here; the article was apparently written by an activist in the Philippines in response to an argument that "copying licensed software is a form of stealing":
If it is a sin for the poor to steal from the rich, it must be a much bigger sin for the rich to steal from the poor.

Don't rich countries pirate our best scientists, engineers, doctors, nurses, and programmers? When global corporations come to operate in the Philippines, don't they pirate the best people from local firms? If it is bad for poor countries like us to pirate the intellectual property of rich countries, isn't it a lot worse for rich countries like the US to pirate our intellectuals? In fact, we are benign enough to take only a copy, leaving the original behind; they are so greedy they take away the originals and leave nothing for us.
Let's think for a moment about how this argument goes: The rich countries are "steal[ing]" and "pirat[ing]" people from poor countries. "Stealing" or "pirating" something means taking something that's owned by someone else. The only way that American companies' hiring foreign employees can be "stealing" or "pirating" is if those employees are some other person's (or country's) property.

     There are plausible arguments both for and against treating expression or ideas as intellectual property. But the case against treating people as property was, I had thought, pretty universally accepted -- I was apparently mistaken.


A nice story from the Washington Post:
As undercover assignments go, posing as a teenage girl online to catch pedophiles has its share of challenges for the typical FBI agent.

Should he ever capitalize words in instant messages?

Is it okay to say you buy your clothes at 5-7-9?

And what about Justin Timberlake? Is he still hot or is he so two years ago?

For those investigative details, the FBI calls on Karen, Mary and Kristin -- Howard County eighth-graders and best friends.

During the past year, the three have been teaching agents across the country how to communicate just like teenage girls, complete with written quizzes on celebrity gossip and clothing trends and assigned reading in Teen People and YM magazines. The first time the girls gave a quiz, all the agents failed. . . .


Welcome Tyler: Last week it turned out that Eugene was mistaken to think that Randy increased our diversity along the Jewish-gentile dimension. But Tyler's addition means I'm no longer the only non-lawyer at the Conspiracy!

(NB: Yes, my "non-lawyer" credentials are going to be complicated by my year of study at Chicago Law in 2004-05 on a Mellon New Directions fellowship. But a) that's some ways in the future and b) I'll still be a political theorist; the point of the fellowship is to allow junior faculty to get training that will complement, enrich, and deepen their research, not to get them to abandon their previous projects and training.)


Jack Balkin on my Academic Legal Writing book: "Th[o]rough! . . . Pleasing! . . . Cicero! . . . Frenzied!" Well, maybe that's not exactly the most apt pull quote; you should probably just read Jack's post itself (which is about various things, including rhetoric, ethics, and the book) to get the gist. Jack, for those of you who don't know, is a professor at Yale Law School, and an excellent writer.

     If his post moves you to buy the book, you can get a personalized copy from me, or a normal copy from


Habermas and Europe: If you haven't already, be sure to read Chris Bertram's careful and thoughtful commentary on Habermas' new essay on Europe. I share Chris' concerns, and don't at the moment have anything to add to them; he's written an important response to an important but disturbing piece.


Gil Milbauer has moved off blogspot; update your links accordingly.


Tyler Cowen: I'm delighted to report that my friend Tyler Cowen, an economics professor at George Mason University, has agreed to join The Conspiracy. Among other things, Tyler is the author of In Praise of Commercial Culture and Creative Destruction: How Globalization is Shaping the World's Cultures, Director of the Mercatus Center at George Mason, and the author of the indispensable online Ethnic Dining Guide to the Washington, D.C. area, which I often used when I was living in D.C. in Fall 2001 (see this Washington Post article about the guide and about Tyler). Look forward to many great posts from Tyler about all his areas of interest.


Choices: This appallingly bad NYTM article from yesterday about federal tax cuts and state and local budgets contains the following:
''The budget meetings are extremely depressing,'' Michigan's new Democratic governor, Jennifer Granholm, told me during a recent visit to Washington. ''We've got to contemplate cutting burial services for indigents, or cutting after-school programs for at-risk kids, or cutting programs even for talented and gifted children. These are Hobbesian choices.''
It's 'Hobson's Choice,' not 'Hobbesian choices,' and in any event you should not use that word; I do not think it means what you think it means. This is a very common mistake, but one that irks me. There are four possibilities here:
1) Granholm said and meant 'Hobbesian,' and Bai simply accurately transcribed it despite knowing the correct phrase himself.
2) Granholm said and meant 'Hobson's," and Bai, who doesn't know the phrase, wrote 'Hobbesian.'
3) Granholm said 'Hobbesian,' but the standard practice of correcting slight verbal mistakes in published newspaper articles should have resulted in Bai changing it to what she meant, which was 'Hobson's' (though it wouldn't be a correct usage of that phrase).
4) Granholm and Bai both, mistakenly, think it's 'Hobbesian.'

I only sort of care whether Granholm knows the difference. But I think of the NYTM as being a place where good writing is published and edited well. I hope it's not the case that the NYT copy-editing guide has lost sight of this problem.

Note 1: Why Hobson's choice doesn't mean what you think it means. Hobson offered his guest their choice of horses, so long as they chose the one closest to the stable door. Hobson's choice situations are those in which there is only one option, not no good options, tragic options, and so on. The choice of color on a Model T was a Hobson's choice. Sophie's choice was not.

Note 2: I hope to have time later today to say more about the substance of the article. A couple of quick things. One is that there's one real problem in many state balance sheets that doesn't get addressed in the article and that might not be an ideological dividing point. Many, but not all, of the states with income taxes link them to the federal income tax. On state income tax forms, the taxpayers are told "Multiply the 'tax' line of your federal 1040 by .15" or some such. (Other states have taxpayers go through a full set of parallel calculations-- report your income, take your deductions, etc-- and at the end say "Multiply your state AGI by .03; this is your total tax.") The states that index their income tax to the federal one have involuntarily given a very substantial tax cut this year, following one two years ago, with no corresponding spending cuts on the table. They're now in what even my libertarian heart is willing to view as the unfair circumstance of having to pass a 'tax increase' just to stay where they were in rates (let alone revenue).

I understand why states would structure their income taxes like this; it reduces the paperwork burden on taxpayers. It's still, all things considered, not a particularly good plan, and it's contributed a great deal to the current overall states'-deficit.

Second: while Bai makes some "unfunded mandates" noises, the article makes clear that he doesn't really think there's an interesting difference between unfunded mandates and any other state and local spending. The basic model of public finance envisioned in the piece is: the federal government is responsible for all expenditures of the federal, state, and local governments.
If Bush and Congress cut taxes, and your governor doesn't raise them, then the buck ultimately stops with your mayor, who has to find ways to pay the police and firefighters, paint schools and pave roads.
If federal policy has any significant effect on the mayor's ability to pay police and firefighters, then something's badly wrong to begin with. And the article several times suggest quite strict zero-sum calculations; every federal spending cut will be made up by an increased spending burden on the states or localities. There really appears to be nothing that's simply a federal issue for which the federal government has the responsibility to decide how much, or how little, to spend.

A maybe-later-today post: how the Republican "block-grant federalism" revolution has complicated matters.

Sunday, June 08, 2003


WMD Question: Like many, I find the failure to find WMD in Iraq troubling. I would like to know what happened to the stockpiles of weapons UNSCOM determined Iraq had in the late 1990s, and why U.S. intelligence sources did not have better information. One chilling possibility is that chemical and biological weapons were transferred to other countries or (worse) terrorist organizations in the weeks before the invasion. If this were to be the case, it seems to me that this would not undermine the justification for war against Iraq. To the contrary, it seems to me that such a scenario would suggest that the "rush to war" was too slow, and the invasion was too late. Just a thought.


Roe Overturned, Abortion Outlawed -- NOT! The abortion rights activist group NARAL Pro-Choice America (formerly known as the National Abortion and Reproductive Rights Action League and before that the National Abortion Rights Action League) has launched a new television advertisement warning that abortion rights in America hang by a thread. Specifically, the ad shows a newspaper with the fictional headline "Abortion Outlawed, Court overturns right to choose." The ad was prepared in anticipation of a fight over the next Supreme Court nomination. The clear implication of the ad is that if the Senate confirms a justice who votes to overturn Roe v. Wade, abortion will be outlawed. As a result, the ad is highly misleading, as it rests on highly suspect premises.

First, and most importantly, the ad makes the common -- yet completely false -- assumption that to overturn Roe -- or, more properly, to reject the idea of a constitutional right to privacy that includes a limited right to abortion -- is to outlaw abortion. While Roe rejected the argument that Fourteenth Amendment extends to unborn fetuses, the central issue in Roe and all of the subsequent abortion cases is not whether the Constitution protects fetuses, but rather whether the Constitution prohibits states from protecting fetuses. This is an important distinction, as it means that to overturn Roe is not to outlaw abortion, but to return the issue to state and local governments. To be sure, some states may well outlaw abortion if Roe is overturned, but this will only occur if democratically elected legislatures in various states opt to enact such legislation. It is entirely possible that Roe could be overturned, and the legal status would remain unchanged in much of the country.

Second, and related, is the idea that there are any members of the current Court who would vote to oulaw abortion from the bench. I have no doubt that several of the current justices are ardently pro-life, and abhor abortion. Yet there is not a single justice on the Supreme Court who has authored an opinion suggesting that legal abortion amounts to a constitutional violation. Justice Scalia and Chief Justice Rehnquist, for example, have always maintained that the proper judicial resolution of the abortion question is not to declare abortion legal or illegal, but rather to return the question to state and local governments. Before becoming a Supreme Court Justice, Thomas made favorable references to the argument that the Fourteenth Amendment requires that states outlaw abortion, but he has not authored or joined an opinion endorsing this view since he has been on the Court.

Finally, there is the assumption that Roe hangs by such a slender thread that one judicial nomination could tip the balance. This assumption too is unfounded. At present there are only three votes to overturn Roe on the Court -- Rehnquist, Scalia, and Thomas. There are three more justices who have voted to uphold limited restrictions on abortion rights while reaffirming the "central holding" of Roe -- Kennedy, O'Connor, and Souter. Of those, it is clear that Kennedy is willing to accept more restrictions than others, including a prohibition on "partial-birth" abortion. Yet Kennedy has also given no indication that he would vote to overturn Roe itself. The remaining three justices have made clear their opposition to state restrictions on abortion. Thus, even if one of the liberal-most justices were to be replaced with a fire-breathing right-to-lifer, in all likelihood the Court's abortion jurisprudence would only change around the margins.

None of the above is meant to express a position as to whether or not Roe was a proper decision, abortion should be legal, or the Senate should consider a judicial nominee's view on such issues. I have merely sought to show that some of the popular arguments on these issues rest on questionable premises.

On a related note, Jack Balkin has an interesting post on why the federal partial-birth abortion ban is unlikely to pass muster with the Supreme Court. Meanwhile, as Jacob noted here, the debate on whether the ban would represent a proper use of Congress' enumerated powers raged at The Corner (scroll up for more).


MORE ON THE PRIVILEGES OR IMMUNITIES CLAUSE: For those who have not yet received their copy of Michael Kent Curtis's No State Shall Abridge, Tim Sandefur of Freespace reminds me of a nice short treatment of the Privileges or Immunities Clause by Kimberly C. Shankman and Roger Pilon called Reviving the Privileges or Immunities Clause to Redress the Balance Among States, Individuals, and the Federal Government. Here is the executive summary:
Shortly after the Civil War, the American people amended the Constitution in an effort to better protect individuals against state violations of their rights. Under the Privileges or Immunities Clause of the new Fourteenth Amendment, constitutional guarantees against the federal government could be raised for the first time against state governments as well. Although targeted initially against the "black codes" that were emerging in the postwar South, the amendment was written broadly to protect all Americans.

But 125 years ago, in 1873, in the infamous Slaughterhouse Cases, a deeply divided Supreme Court effectively eviscerated the Privileges or Immunities Clause. Since then courts have tried to do under the Due Process and Equal Protection Clauses of the amendment what should have been done under the more substantive Privileges or Immunities Clause. The result has been an erratic and often groundless Fourteenth Amendment jurisprudence that has pleased neither liberals nor conservatives, yet both oppose reviving the clause. Liberals tend to favor the latitude judges now have. Conservatives fear revival will lead to still more "judicial activism."

Both sides are wrong. Conservative "originalists" cannot ignore the plain language and history of the Privileges or Immunities Clause. Liberals need to appreciate that a properly read and applied clause will better protect individual rights. In the current federalism debate, both sides should understand that power will be devolved to the states and the people in a principled way only if the principles inherent in the Privileges or Immunities Clause are revived--along with the clause itself.

Thanks also to Jack Balkin for his warm welcome into the Blogosphere. There is no one I enjoy jousting with more than Jack. BTW, why are people so bemused that political libertarians are fine communitarians in their private lives? (Jack's characteristically pithy title for his entry is Libertarians Form Communities.) Perhaps for the same reason they always seem to find it startling that libertarian conferences have rules that must be followed.

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