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Saturday, July 26, 2003


Mailbag Several readers inform me that New York has adopted a jury selection system similar to both my proposal and the Massachusetts system I noted previously. Others note more fundamental problems with the jury system as a whole, and in that regard are preaching to the choir, as I see criminal juries as a necessary evil, and civil juries as simply an evil, at least in complex cases. As I discussed a few years back in Regulation, all of the other English-speaking democracies have largely abandoned civil juries, and the U.S. should as well.

On pharmaceutical price reform, Matthew Yglesias suggests that I support massive price regulation of the pharmaceutical industry. Au contraire. Prices are already massively regulated in the rest of the developed world, pushing prices below the market prices in the U.S., leaving American consumers to subsidize wealthy Canadians, Germans, etc. American consumers are unlikely to tolerate this indefinitely (seniors, my dad included, are already finding ways to import drugs from Canada, Australia, Mexico, Israel, and other lower-priced countries, and this inevitably leads to much political pressure re drug prices), and Congress will respond by passing legislation that will eventually kill the Goose, like the current reimportation legislation. My proposal at least attempts to give allow market prices to reign, by giving the pharmaceutical companies leverage to negotiate better, fairer deals (i.e., deals closer to what market prices would be in non-state health systems) with health system bureaucrats around the developed world, while retaining market prices in the U.S. I acknowledge that it would be even better to leave the U.S. system alone, and find some other way to require other countries' health systems to pay market prices for their drugs.

Several readers have pointed out to me that if the US passed something like my proposal, driving up European drug prices, the Europeans might respond by depriving pharmaceuticals of patent protection. If that reaction wouldn't be against WTO rules, it should be, and it would certainly be an opening salvo in a trade war.

And for those readers who note that structural costs in the U.S. are higher, due to FDA regs and the like, even though I'm dubious this accounts for the bulk of the price differences I'm perfectly happy to add to my proposal a priviso that the FDA be stripped of its power to prohibit sale of a safe drug for lack of efficacy (as the FDA defines it), just as the FDA has no power to prohibit sale of drugs approved for one condition for unapproved, "off-label" uses.


Drug Reimportation My GMU colleague Michael Krauss has written a provocative op-ed opposing the drug reimportation law the House just passed and that is due for Senate consideration. I admit to mixed feelings about the issue. I certainly don't want to import Canadian and European price controls to the U.S. On the other hand, I feel like a patsy pay way more for the same drugs than they pay in other developed countries, and if the pharmaceutical industry thinks that, say, Canada offers inadequate pricing, drug companies should refuse to sell their drugs there. That would certainly stop Americans from importing drugs from Canada. The drug companies argue that the profits that make in the U.S. are necessary to fund their research and development costs. That may be true, but why should the U.S. consumer be subsidizing the rest of the world's health?

Perhaps some creative legislation is in order, like a law requiring drug companies within a few years to offer their products to Americans at the same price they offer them to other developed countries, with the prices standard for purchasing power parity. The key would be that the basic price of the drugs would be set by the U.S. market, not by European and Canadian bureaucrats. And what power this would give to the drug companies in negotiations with those bureaucrats! "We'd love to give you an 80% discount on the market price of Zoloft, but then we wouldn't be allowed to sell it in the U.S. where we make our big profits, so I guess we can only give you a 20% discount relative to the U.S. price." Arguments that this system is unfair to less wealthy countries and their consumers would founder on the PPP adjustment. End result: U.S. prices probably go down a little, prices in Canada and Europe go up somewhat more, and a bit of equity and market economics (if only a bit) is restored.


Not really a post about sex Have you ever wanted to read a book about the science of transsexuals, written in the style of Ridley, Pinker, or Dawkins? Why are there two quite different kinds of transsexuals? Why is it after all, that some men go only to she-male prostitutes? Check out J. Michael Bailey's The Man Who Would be Queen: The Science of Gender-Bending and Transsexualism. I cannot vouch for the contents but for me it was a fascinating read. And it has enough about actual sex to satisfy your prurient side as well. Recommended.

Friday, July 25, 2003


Debating the causes and effects of war: Yesterday, I observed that Josh Marshall and Steven Den Beste were in surprising agreement about the motivations behind the war with Iraq -- as a first step in remaking the Middle East in a way that drains the swamp of anti-American sentiment. They are also in surprising agreement that this reason was played down by the Bush and Blair administrations. They are in not-so-surprising disagreement over the ethical and practical ramifications of this tactic. Marshall believes the lack of candor to be ethically wrong and will compromise our postwar planning; Den Beste believes the ends justify the means and that the U.S. will prevail.

Here's what I think:

1) They’re both wrong on the ethical question . Marshall and Den Beste assert deception because they both assume a monocausal argument for why the U.S. went to war. The truth is much messier.

Quick, why did the Northern states fight the Civil War -- to end slavery or to preserve the Union? Did Germany decide to enter World War I because of its fear of Britain’s existing power, its concern over Russia’s emerging power, or its reliance on a grand strategy that stressed offensive military operations? Did the U.S. fight Gulf War I to reverse the violation of Kuwaiti sovereignty, to prevent Saddam Hussein from potentially controlling 40% of the world’s proven oil reserves, to stop a dictator as evil as Hitler, or to protect “jobs, jobs, jobs”? Did the U.S. intervene in Bosnia to stop genocide, constrain Serbian expansionism, or preserve NATO's credibility? Did the U.S. fight Gulf War II because of the administration’s concerns over Iraq’s violation of UN resolutions, fears that Saddam’s regime was killing or starving non-Sunni Iraqis, hopes to create a viable democratic Arab state, worries over Iraq’s WMD program, or beliefs that the containment strategy was no longer a viable option?

Scratch an honest historian or international relations scholar, and s/he will tell you that all of these answers have some validity. States often go to war for a melange of reasons that go beyond self-defense. Read either the relevant section of Bush’s State of the Union speech or his AEI speech from this February and you will see all of the reasons listed in the previous paragraph mentioned.

This is why I can’t accept the “Bush lied” meme. I agree with Marshall and Den Beste that the administration emphasized the WMD issue more than the others. However, Saddam’s treatment of his citizens and the desire to spread democracy to the Middle East were mentioned on a fairly regular basis. There is a clear dividing line between lying and spinning, and the administration’s explanations for why an invasion of Iraq would be a just war fall into the latter category.

On the ethical question then, I guess I side with Den Beste, in the sense that I don't think the administration acted in an underhanded manner.

2) Marshall is correct on the practical implications: Den Beste’s logic for why we will persevere in Iraq boils down to: “we did it in Japan and Germany and post-9/11 is like the Cold War.”

The historical problem with this argument in the decade after World War II the U.S. actually tried like hell to get its troops out of Europe. The logical problem is that Den Beste admits that the WMD issue was highlighted much more than the need to remake the post-9/11 Middle East. He seems to assume that even though Americans might not have accepted this logic as the motivation for going to war, they will accept it as the motivation for staying in the country.

Marshall correctly points out that the U.S. is undertaking an enormously ambitious project in Iraq, and that the pre-war planning was woefully incomplete. As a result, there has been surprise and disillusionment over the persistent instability during the past three months. Some commentators are already suggesting that the U.S. cut and run. Given the emphasis on the WMD issue, it will not surprise me to hear other commentators say in a few months, “Well, we’ve exhausted our WMD search – let’s go home.”

That would be reckless and disastrous. Americans are willing to stick out long interventions even when things go wrong, so long as they are fully informed and properly briefed. If not, then sudden reverses on the ground can trigger sudden reverses in public opinion.

The good news is that the administration now realizes this. Comments this week by Paul Wolfowitz and Dick Cheney suggest that the administration recognizes the need to acknowledge the costs and motivations behind the occupation. Here’s the end of Cheney’s speech:

We still have many tasks to complete in Iraq, and many dangers remain. There are still holdouts of the regime, joined by terrorists from outside the country, who are fighting desperately to prevent progress of any kind for the Iraqi people….

Our ongoing mission is not easy, but it is essential for our security and for the peace of the world.

We will help the Iraqi people to build a free, sovereign and democratic nation. That free nation will stand as an example to the entire Middle East, proving that freedom and the hope of peace have far more power and appeal than ideologies of hate and terror.

And a more peaceful stable Middle East will contribute directly to the security of America and our friends.

The United States of America has been called to hard tasks before. Earlier generations of Americans defeated fascism and won the long twilight struggle against communism.

Our generation has been given the task of defeating the purveyors of terrorism who are a direct threat to our liberty and our lives. We will use every element of our national power to destroy those who seek to do us harm. But as in the past, we will do far more than merely defeat our enemies.

In Afghanistan and Iraq, and in other places where tyranny has been a fertile breeding ground for terror, we will help those who seek to build free, more tolerant and more prosperous societies.

America's commitment and generosity in rebuilding ravaged lands in Europe and Asia was a hallmark of our foreign policy in the 20th century. It was a good investment for America then, it is just as wise now.

We do this not only because it is right, but because it is essential to our own security, the security of our friends and allies and to our eventual victory in the war against terrorism. Our soldiers serving so bravely in Iraq and Afghanistan today know they are ensuring a safer future for their own children and for all of us.


Draining the Ba'athist swamp: I argued earlier in the week that U.S. forces may have reached a turning point in the occupation of Iraq, not because of the killing of the Hussein boys but because of changes in the military's intelligence-gathering operation.

This Financial Times story offers more support for this conjecture. The key grafs:

US troops have captured as many as 10 Iraqis who are believed to have been members of Saddam Hussein's personal security detachment during a raid on a house in the former dictator's hometown of Tikrit, according to a top American general.

Maj Gen Ray Ordierno, commander of the US army's 4th infantry division, which is responsible for securing the so-called "Sunni triangle" in central Iraq, said the raid came late on Thursday night after an informant tipped off US soldiers that the officials were hiding in southern Tikrit.

The operation netted 13 Iraqis, and Gen Ordierno said "somewhere between five and 10 of those" are believed to have been members of Mr Hussein's security detail. He said US troops were in the process of interrogating the officials, and it remained unclear whether they had been with Mr Hussein since he presumably went into hiding after the fall of Baghdad.

Gen Ordierno said, however, that the capture, combined with the recent killings of his two eldest sons Uday and Qusay showed US forces were continuing to "tighten the noose" around Mr Hussein. He added that while the sons' deaths have had no noticeable impact on Iraqi resistance thus far, attacks on US troops in the region had been cut in half over the last month. (emphasis added)

Click here for CNN's take on the story.

There are other sources for guerilla activity in other parts of the country, but eliminating the Ba'athist threat would greatly reduce the violence in the Sunni triangle and pave the way for greater stability in the country.

UPDATE: The New York Times and Chicago Tribune are also jumping on board this meme.


Pay us more money, state judges order: Quite a remarkable story. Now it may well be the case that the state constitution does indeed entitle them to this salary increase, for complex reasons; but the procedure -- an order with apparently no notice, no hearing, no argument, no nothing -- and in a situation where the judges' own financial interests are stake, seems quite iffy. I realize that there may be exceptions to the conflict of interest rules where all or nearly all the potential authorized judges have the same conflict (the phrase "Rule of Necessity" bubbles up from the recesses of my brain), so maybe the conflict of interest isn't dispositive here. But put together all the striking aspects of the story, and it smells fishy.

     Oh, well, now I really am going.


Firing Racist Cops Can a city fire a police officer for participating in a racist parade float in an incident that was publicized on the local news, as happened in New York City a few years back? My initial reaction was no, that the speech activities a city employee engages in on his own time are protected by the First Amendment. Further reflection, and a lengthy discussion with Eugene, convinced me that the answer is quite complicated: it depends on the answer to the hair-splitting question of whether the officer was fired for his views (violation of the First Amendment), or was fired because his views, and the public expression thereof, are evidence that he will not be a fair and effective police officer (not a violation of the First Amendment). My analysis, published in a Cato Institute Daily Commentary responding to a recent judicial decision in the NYC case mentioned above, can be found here.

More generally, in writing You Can't Say That: The Growing Threat to Civil Liberties from Antidiscrimination Laws, I found that the most difficult issues to resolve regarding conflicts between the First Amendment and antidiscrimination laws involved government acting as an employer. Contrary to my own initial instincts, for example, I came to the conclusion that state universities can, without violating the First Amendment, impose relatively stringent restrictions on what faculty say in their classrooms. After all, a speech code that for sincere pedagogic reasons prohibits, for example, use of racial epithets in class is a far less draconian regulation of speech than routine "content-based" [<----key First Amendment buzzword] curricular and hiring decisions made by state university officials. The right answer in the university context is that the government shouldn't be running universities to begin with, but in the meantime we are living in the world of the second-best.


The last I will write about telemarketing for now Could we have a market in telemarketing calls, as I blogged about earlier this week? This would be an economist's dream solution.

Joshua Hall writes me: "I subscribe to an email marketing service ( can choose the number of emails I am willing to receive and can specify the types of product I am willing to receive ads for. For the intrusion into my life I receive points which can be redeemed for gift certificates and the like. If I actually buy something from an add, I can earn even more points...[ this has] allowed to purchase several of the volumes of the Collected Works of James Buchanan."

Brave New World, no?


Congratulations to David Brooks: The New York Times announced that Brooks will be joining their op-ed page beginning in September, writing two columns a week. Brooks is currently a senior editor at the Weekly Standard. Virginia Postrel and Andrew Sullivan (scroll down) have already weighed in with their huzzahs, but let me throw in mine as well.

This is a very smart move by the Times for two reasons. First, Brooks combines the rare qualities of good writing and interesting ideas. He deserves the slot.

Second, Brooks is the perfect conservative to grace the Times op-ed page. He is as interested in pop-culture effluvia as Maureen Dowd without falling prey to her excesses. As Postrel points out, Brooks may be a conservative, but he's still on the big-government side of the spectrum. Both of these traits will go down well with skittish Times readers, forcing them to take Brooks' ideas seriously.


Jury Duty After hearing an acquaintance gripe about jury duty and the disruption it caused her life, and a family member complain about the low quality of the jury pool in his home city due to exemptions granted to people with responsible jobs, it occurred to me that there is a relatively simple solution to both problems, at least in large cities and counties: why not give people a year's notice of when they will be called for jury duty, and tell them that they will need to be available for two weeks at that time? Just about everyone gets or takes at least two weeks annual vacation, and almost no one can plausibly claim that he is too busy to serve on a jury if given that much notice. Even physicians, attorneys, and others who have a tough time reordering their professional lives to serve on juries with short notice could not plausibly claim that a year's notice is insufficient for patient, case, and other scheduling--physicians and attorneys do take vacations, after all. And while it would be unpleasant to give up one's annual vacation to serve on a jury, if jury duty is to be an obligation of citizenship some sacrifice will be required. To make things less painful, a jurisdiction adopting my proposal could also require employers to grant their employees up to two weeks unpaid additional leave to make up for their paid jury duty vacation time.

Given relatively large and consistent rates of civil and criminal litigation, I don't see any reason why, say, Washington, DC or New York City could not predict reasonably well one year in advance what their need for jurors would be, but if they undershoot, or have occasional trials destined to last than two weeks, the reserve pool could be government workers (who typically get paid by their employer during jury duty), retirees, students, and others for whom short-notice jury duty would less likely be a disproportionate burden.
Unfortunately, my plan would not work well in less-populated areas where the caseload is less predictable. It also wouldn't work well in jurisdictions where counsel is permitted to abuse the judicial process by routintely stretching trials out for more than two weeks. And the officials in charge of jury pools would have to start acting like potential jurors' time is actually valuable, by arranging scheduling so that individuals are called to serve at the beginning of their two week obligation, and would not begin sitting on a trial at the end of the two-week period. But with a little planning and effort, an advance notice system could go along way to increasing public satisfaction with juries.

Update: Reader Jim Ancona informs me that Massachusetts has a jury system that is rather similar to the one I proposed. Jurors are called on a one day/one trial system, and can postpone their service for up to a year to choose a more convenient date. Exemptions are rare. Details can be found here. This is also a good time to clarify that when I said jurors under my system would be expected to be available for two weeks, most of them would out much sooner, as most trials shouldn't last anywhere close to that long.


Supreme Court Retirement Rumor! The rumor around Capitol Hill is that Chief Justice William Rehnquist is planning to retire this Fall, after the Court hears the big campaign finance case. When I first heard this rumor, it seemed implausible: does Rehnquist care so much about campaign finance that he would stick around for several months just to hear this case, especially when time is likely to be of the essence confirmation battle-wise?

But when I thought about it more, I realized there is a plausible, even compelling, rationale for such a move, if Rehnquist wants to maximize the chances that he will be replaced by a strong conservative (as he surely does). The Republicans only have 51 Senate seats, and are at risk of losing the votes of Senators Spector and Snowe (while perhaps picking up the votes of a stray Democrat or two) if the President nominates a hardcore conservative. The Republicans therefore can't afford the possibility of losing John McCain, too. Everything I've heard and read suggests that McCain is absolutely fanatical in his devotion to the campaign finance legislation he authored. Since 1976, when the Court decided Buckley v. Valeo, Rehnquist has consistently voted to uphold campaign finance legislation. If Rehnquist had resigned in June, and the President had appointed a solid conservative, McCain would have had reason to fear that Rehnquist’s almost certain "yes" vote on McCain-Feingold would be replaced by a likely "no" vote (the three other most conservative Justices, Thomas, Scalia, and Kennedy, all consistently vote against campaign finance regs as violations of the First Amendment), sufficient reason for him (being JohnMcCain) to vote against this nominee. By waiting until after the campaign finance case is heard to announce his impending retirement, Rehnquist gets to participate (not only hear oral argument, but, if the Court quickly decides the case, vote) in that case, and McCain's fears are assuaged, allowing McCain to vote for a conservative nominee.
Remember, you read it here first!

Clarification: My understanding is that Rehnquist could announce that he's retiring effective when his replacement is sworn in. Given the urgency of the campaign finance case, and how long it will take a new nominee to be confirmed, there is little risk that he would wind up actually retiring before the Court ruled on the case.


On vacation for several days, and then will be traveling for business for a few more: My posts will be light, though the guest-bloggers and my cobloggers will fill in. My responses to e-mail, though, will be nonexistent, and I'm afraid I might be so swamped when I return that I won't be able to respond to backlogged e-mail even then. My apologies for that.


Greetings Thanks to Eugene and the other Conspirators for inviting me to guest-blog (or is that "guestblog"?) this week. I can't wait to see what color I've been assigned.


Poll results, and more on the Nobel A day ago I asked what topics people would like to see discussed in my future blogs. Macroeconomics -- monetary and fiscal policy -- was the overwhelming winner. "I'm a smart guy, I studied with Richard Posner but I just don't get this macro stuff...", that sort of response. I'll prepare a few posts on everything I know about macro, the topic is less daunting than many people believe, at least once you forget about ex ante prediction.

I also received a few more questions about potential Nobel laureates:

Harold Demsetz - deserving in my view. He started contestable markets and put empirical teeth into property rights theory, industrial organization, and some law and economics. But I don't expect him to get it, somehow his reputation never became highbrow enough. His works revels in its own simplicity (which I don't mind at all).

Israel Kirzner - leader of the Austrian school but very low profile within the economics profession. Hard to see where all the votes would come from.

William Baumol - A very smart guy. No one would object if he got it. But Demsetz (among others) beat him to the key point on contestable markets, and his work on cultural economics doesn't have enough currency. What else should he get it for? I'll bet no.


Arrived safe and sound in Gummersbach Arrived in Germany today. The internet situation at this institute is not ideal and my ability to blog or reply to e-mail will be more limited than I expected. For one thing its internet cafe does not allow for cutting and pasting which makes linking really tough. But the weather sure is nice.


Guest-bloggers Dan Drezner and David Bernstein: I'm pleased to report that from today until next Thursday (the 31st), Dan Drezner (a political science professor at the University of Chicago, ddrezner -at- and David Bernstein (a law professor at George Mason University, deliotb -at- will be guest-blogging here. I think very highly of their work, and I hope that you will appreciate it as much as I do.

Thursday, July 24, 2003


Assassination and Executive Order 12,333: There's a memo on this subject (which I touched on yesterday) at here; it's by W. Hays Parks, who was then (1989) the Special Assistant for Law of War Matters to the Judge Advocate General of the Army. It's been cited as a leading authority by several articles on the subject, and strikes me as quite persuasive. The bottom line matches mine, though it provides far, far more analysis and argument for it: During wartime, killing enemy military leaders (and ostensibly civilian leaders who are involved in military command and control) is quite permissible under the Order, and is not treated as "assassination" (especially when it's done by soldiers acting in uniform).


One last brief follow-up about IVF: A correspondent writes that, though IVF-born people are clearly fully human, "The prior question of what it means to be a human -- formerly only possible through the physical union of a man and a woman -- is deeply implicated by all assisted reproductive technologies."

     That just makes no sense to me; how could "what it means to be a human" possibly be affected by the location of the conception? First, as I understand it, it has always been possible to impregnate a woman by injecting sperm into her -- it doesn't require any advanced technology. I'm not sure whether a turkey baster would literally do the job, but I am pretty sure that it doesn't require vastly sophisticated tools.

     Second, what would we say about an argument criticizing Caesarean sections (not just their use in a particular case, but their availability more generally), as follows: "The prior question of what it means to be a human -- formerly only possible through vaginal delivery -- is deeply implicated by all assisted delivery technologies"?

     I take it our first reaction would be "No, it isn't, and why on earth would you say that it is?" Our second reaction would be "If your concern is that it's unnatural, I'd much rather take the unnatural life-saving technology over the natural death of the mother and the child." Our third, more detailed, argument would be "What it means to be a human depends on what people are like, how they act, what they think, and what their genetic endowment is, but not on whether they entered the world through a vagina or through an incision in the abdomen." Seems to me that nearly the same points (though with "natural death of the mother and the child" being replaced by "natural infertility of the mother") apply to changes in place of conception as to changes in means of delivery.


IVF: I will have virtually no opportunity to blog further about this -- I'm absolutely swamped -- but I did want to follow up a bit, because some readers challenged me on my agreement (see a couple of posts down) that IVF hasn't changed our "idea of humanness and of our human life and the meaning of our embodiment and our relation to ancestors and descendants."

     I've seen a child who I know has been born via in vitro fertilization; and I'm sure I've seen dozens more as to whom I didn't know this. I suspect that all of you have done the same.

     No-one, to my knowledge, views these children as less than human, or differently human, or having a different relation to us than naturally born children. No-one, to my knowledge, views humanness any differently because IVF-born people exist. Next time you talk to someone, imagine that he was born by IVF. Would it remotely matter to your evaluation of his worth, his personality, or anything else that he was conceived in vitro rather than in utero? What possible difference could that make to how we should treat him? And if it makes no difference, then what possible difference does his existence make to our understanding of our humanness?

     I submit the answer is none. Some of my correspondents have urged that somehow IVF has somehow fostered, for instance, the sexual revolution, gay rights, lower childbirth rates in many European countries, or abortion. However, there is absolutely no evidence of this. The sexual revolution predated IVF, and I know of zero evidence that IVF has increased it.

     Likewise, I know of absolutely no evidence that IVF played any role at all in gay rights and lower European childbirth rates, and I know of no reason to think why a technology used overwhelmingly by married couples to have children (how much more pro-family-values can you get?) would have any effect on those movements. As I understand it, IVF generally does involve the culling of some fertilized eggs, so I can understand why people who oppose abortion would oppose IVF on those grounds, too; but abortion of course became constitutionally protected five years before IVF started, and I know of zero evidence that IVF at all accelerated the rate or social toleration of abortions.

     One correspondent pointed out that IVF has led to custody disputes about frozen embryos. I believe that this has indeed happened, in a very few cases. And the effect of those disputes on our "idea of humanness and of our human life and the meaning of our embodiment and our relation to ancestors and descendants" has been . . . . What exactly? To the best of my knowledge, utterly nil.

     So IVF hasn't really hurt people -- and I suspect that it has immeasurably enriched millions of lives. If two people having a child whom they want to have is wonderful, then how could it only be wonderful when the child is conceived in the womb, and not in vitro? If IVF did indeed cause some vast harms, then I can see why one might oppose it. But given that I have seen no evidence of such harms, it seems to me that we should applaud its existence.

     Some others have asked what I think of genetic enhancements, people breeding "super-humans," and so on. I don't have the time to go into this now, though my tendency is to think that many such genetic enhancements -- for instance, those that eliminate genetic disease, or increase disease resistance, or increase intelligence -- would be wonderful things, if of course they don't have unfortunate side effects (a big caveat, I realize). But there at least I can understand why people might think that intentionally changing the details of people's genes may in some measure change our idea of humanness (though I think that's a considerable overstatement). That possibility, though, would flow from the genetic modification, not from the location of the same old egg when it's fertilized by the same old sperm.

     Finally, some have pointed out that even if Kass was wrong as to IVF, he may now be correct as to cloning. Absolutely so; I think he's mistaken as to cloning, but his past errors certainly don't prove this. Nonetheless, I do think that the visible error of the past criticisms of IVF suggests that we should be skeptical about similar criticisms levied against other technologies today. This past error isn't by itself proof, but it is evidence, to be considered alongside the other evidence (some of which I've written about in the past on this blog).


The latest smear: Slate has a quite remarkable column about Ann Coulter's Treason. Conservatives have been lambasting Coulter -- and, while I haven't read her book, people (including conservatives) whom I trust on this have said the lambasting is well-earned. But, according to the Slate piece (whose subtitle, remarkably, is "In her new book, Ann Coulter tells the unvarnished truth -- and makes the conservatives mad"), all this just shows how scummy conservatives are! The logic is perplexing, and I doubt that I can do it justice through the excerpts. But this seems to be the essence, from the last three paragraphs:
All Coulter has done is import this approach -- the flat-out accusatory style of hardball politics -- into the realm of serious political discourse, ignoring the preferred arts of indirection and innuendo. And that's why her critics are agitated. It all comes down to tact -- or tactics. It's OK to denounce a semi-fictional construct: a "Fifth Column" that opposes the Iraq War or "the axis of appeasement" or liberals who "hate" America and wish it ill. Or to imply, as William Safire did this week, that unnamed journalists pressing the WMD case are, "by their investigative and oppositionist nature," u handmaidens of Saddam.

But the indelicate Coulter has crossed the line, stating openly the message others push subliminally. Consider her notorious comment, following 9/11, that the solution to radical Islamists was for the United States to "invade their countries, kill their leaders, and convert them to Christianity." This met with an outcry that was, again, loudest from the right. Within days, National Review online dropped her column. (And Horowitz, to his credit, picked it up for FrontPage.) But no one, to my knowledge, has bothered to point out that her formulation was prescient -- right up to the eerie moment in April when Ari Fleischer was dodging questions about the evangelicals camped on the Iraqi border, poised to Christianize the Muslim infidels.

Ann Coulter may have committed "treason" against conservative good taste. But she's done the rest of us a favor. She has exposed the often empty semantic difference between the "responsible" right and its supposed "fringe."
     The heart of this smear against "the 'responsible' right," it seems to me, is the utter disregard of some deeply fundamental distinctions. Let's start with the last one, about "evangelicals camped on the Iraqi border, poised to Christianize." I well recall the furor about Coulter's column; I condemned the column myself in a conservative academic online forum. The chief criticism against her was that in context ("invade their countries, kill their leaders"), the phrase "convert them to Christianity" appeared to be a call for forcible conversion, a heinous act. Coulter defended herself by saying that she only called for voluntary conversion, but the tone of the paragraph:
We should invade their countries, kill their leaders and convert them to Christianity. We weren't punctilious about locating and punishing only Hitler and his top officers. We carpet-bombed German cities; we killed civilians. That's war. And this is war.
suggested something much harsher.

     The supposed link between the "responsible" right and the "fringe" here -- the indication of Coulter's "prescience" -- is that "Ari Fleischer was dodging questions about the evangelicals camped on the Iraqi border, poised to Christianize the Muslim infidels." I take it that these spooky evangelicals were trying to do what our tradition of religious freedom has long seen as a basic right: Urge people to voluntarily change religion. There are plausible arguments that the Administration should have strongly urged the evangelicals not to do this, as a matter of prudence and diplomacy; that's fine. But the tolerance for voluntary conversion and the call for something that sounded a lot like forcible conversion are utterly different. It is a smear to argue that they are fundamentally an "empty semantic difference."

     Likewise, there is a vast difference between saying that others are unintentionally helping the enemy and that they are committing treason, which is to say intentionally helping the enemy. The unfortunate fact is that some domestic dissent does help the enemy and hinder the war effort. It may on balance still be beneficial, as I've written in the past; and it is certainly constitutionally protected. But it's quite proper to point out that Saddam's forces, who are trying to kill our soldiers and reassert control over Iraq, will get bolder as war-related criticism of the Bush Administration gets stronger.

     What's improper -- and what conservatives accuse Coulter of doing -- is to paint sincere and well-intentioned differences of opinion (even when you think one side is wrong, and is unintentionally helping the enemy) as treason. Unintentional support for evil and intentional support for evil are very different charges. It's a basic part of decent debate that people ought not make the latter charge if the evidence only supports the former. But to the Slate author, this key moral principle somehow reduces to a matter of "tact or tactics."

     Likewise with the other items the Slate piece mentions. Charges of "appeasement," which amount to charges that someone is unwisely negotiating with evil regimes, are very different from charges of treason, which are that someone is intentionally taking the side of evil regimes. We condemn Neville Chamberlain for trying to appease Hitler, but we think him guilty of naivete and awful misjudgment, not treason. Charges of being a "Fifth Column" are charges of intentional betrayal -- but most conservatives on "the 'responsible' right" therefore save them for people who do seem to be taking Saddam's side. I note that the Slate piece actually gives no citations for such allegations. (As to charges that people "hate America," I do think they're thrown around too often by conservatives -- but again, I think "the 'responsible' right" doesn't apply them to "liberals" generally, and, again, the Slate piece gives no specific examples that one can evaluate more specifically.) And the other material from the Slate piece -- read it and judge for yourself -- likewise fails to support its concluding smear.

     To me and my friends on "the 'responsible' right," distinctions between voluntary and forcible conversion, and between accusations of inadvertent and unintended harm and intentional betrayal, are not just matters of "tact," "tactics," or "good taste." And when a writer implicitly admits that to him such distinctions are just ultimately "semantic," then it's hard to give much credit to the rest of his moral -- or logical -- judgment.


Nobel sweepstakes Who are some leading and deserving candidates for the economics prize?

Richard Posner - I think he will win it, his contributions are vast. Some voters might see him as too thinly spread, but he has built the law and economics paradigm. And now that Daniel Kahneman (a psychologist) has been picked, lack of an economics Ph.d. should not hurt him.

Gordon Tullock - One of the most deserving and brilliant economists of the last fifty years (note: he is my colleague and friend), a true polymath. But they already passed him over when they gave the prize to Jim Buchanan (Tullock's co-author). Gordon has to hope for a joint prize with Anne Krueger, for his work on rent-seeking.

Richard Thaler - Someone will get a prize for "behavioral finance." Probably him, maybe with Andrei Shleifer as well, though that is more speculative (note also that Shleifer's chances may have been hurt by an "insider trading" scandal with Russia, but Shleifer also has some impressive pieces in the area of public choice).

Thomas Schelling - brilliant game theorist, a remarkably intuitive economist, he deserves it for his work in game theory. But he probably won't get it, they have already passed him over. (Note: he was my doctoral advisor).

Oliver Williamson - A smart guy with one great idea: asset specificity/opportunistic behavior/sunk costs. Appeals to a broad spectrum of voters, likely to get it.

Empirical labor economics - Someone needs to get the prize for huge advances in this field, arguably the most vital in economics over the last decade. Who? Orley Ashenfelter? Alan Krueger? Steve Leavitt? David Card? Some mix of those, probably.

The New Trade Theories - Paul Krugman and Avinash Dixit are both contenders here. But this stuff is fading. It may merit a joint prize, but all bets are off here.

And how about the very young? The hot topics now involve the integration of economics with psychology and sociology. But these endeavors tend to be decentralized, rather than concentrated in the hands of a few giants. Matt Rabin certainly has a good chance, though exactly which paper should count as his seminal one?

I would give it to Jared Diamond for his Guns, Germs, and Steel, but this is a prayer to happen, too far outside the mainstream.

Someone may get a prize for neuroeconomics someday, which involves scanning people's brains with an MRI as they make economic choices. Here I am rooting for my colleague and friend Kevin McCabe.

In ten years time, I wouldn't mind seeing the whole thing shut down.

And I am still sad that Sherwin Rosen and Fischer Black and Mancur Olson died before they could get it, all were shoo-ins. It is probably too late for Albert Hirschmann, though his work on exit and voice is clearly deserving.


In vitro fertilization, grave threat to human dignity: Science fiction writer and editor Ben Bova writes that:
[July] marks the 25th birthday of the first test-tube baby.

Louise Brown, the first human being to be conceived by in vitro fertilization, is a healthy, happy young woman who lives with her parents in England. Millions of babies have since been born by artificial insemination to couples (or even single women) who could not conceive normally.

It's hard to believe the uproar that the first test-tube baby caused. Pundits, religious leaders, politicians, and even some scientists warned that this was "playing God" and would lead to a moral breakdown of society.

Scientific American quoted Leon Kass, a biologist at the University of Chicago, who warned in 1978 that "the idea of humanness and of our human life and the meaning of our embodiment and our relation to ancestors and descendants" were at risk because of the first test-tube baby.

Fast forward to 2003. Test-tube babies are commonplace and the world hasn't self-destructed. But now people are pointing quaking fingers at the idea of cloning human beings.

"Cloning threatens the dignity of human procreation, giving one generation unprecedented genetic control over the next. It is the first step toward a eugenic world in which children become objects of manipulation and products of will." Who said that? The self-same Leon Kass.

The point is that every new capability in biology -- particularly a new capability that deals with the creation of children -- has been proclaimed to be wrong, evil or immoral by people who fear change. Yet today we live longer, healthier lives than any preceding generation of human beings.

Even the test-tube babies are getting along quite well, thank you.
Indeed. (Note: I haven't checked the original Kass quote myself; please let me know if there's evidence that the quote was misquoted, or taken out of context.) Thanks to Hit & Run for the pointer.


D.C. tax lawsuit The Washington Post runs this story:
Attorneys representing 18 District residents, the D.C. Council and Mayor Anthony A. Williams (D), filed a lawsuit in federal court this morning in an unprecedented effort to overturn a ban on the city's ability to impose a commuter tax.

The suit argues that the ban is unconstitutional because all states have the right to impose a commuter tax, but that the District, whose residents have no representation in Congress, does not. Because the District cannot tax the income of non-residents who work in the city, the attorneys conten[d], D.C. residents are forced to pay higher taxes to support infrastructure used by all workers. . . .

"This is a discriminatory tax law without representation that violates the equal protection clause" in the Constitution, said Walter A. Smith Jr., executive director of the DC Appleseed Center, an advocacy group involved in the lawsuit.

Lois Williams, another attorney on the case, said that suburban and congressional leaders who have dismissed the suit out of hand "don't know anything about legal theories." . . .
     Well, I think I know a thing or two about legal theories, and it seems to me that the Constitution is quite clear: Yes, Congress has the power to govern the District (art. I, sec. 8), which includes the power to preempt any taxes imposed by the District government, which itself exercises only the power that Congress gave it. No, the District is not a State, and thus gets no representation in Congress. No, the Equal Protection Clause has never been understood, and ought not be understood, as eliminating this clear constitutional command.

     The current system is surely "discriminatory," and may or may not be unfair. But it's a discrimination that's created by the Constitution -- and thus cannot be unconstitutional. (Thanks to Capitol Hillblogger for the pointer.)


California recall stuff: I know very little about this myself, but Rick Hasen, a law professor at Loyola of Los Angeles, knows this well, and has been blogging about it. He's generally anti-recall, I think, but his legal analysis seems quite objective.


I Revise My Views on Today in my final blog on, called "Wrapping Up," I briefly summarize some of the many very constructive comments I received from readers--who were remarkably civil even when strongly disagreeing--and revise the views I expressed yesterday concerning the social construction of facts by the Left. I advance a nonideological explanation for the phenonenon I have been noticing lately that was stimulated by a commentary on my blog by JB at riting on the wall. By ideologically neutral, I mean that this explanation acknowledges that the phenomenon occurs on both sides.

After it was written, I received this very thoughtful defense of my original position from a reader that merits careful consideration by those who are more skeptical that the phenomenon I was asking about even exists:

Conservatives, including myself, regularly complain about liberal bias in the media, Hollywood, academia, etc. The silver lining to this annoying reality is that conservatives cannot avoid the world views and arguments of their political opponents. In other words, it is much easier for a liberal to escape confronting conservative views than it is for conservatives to escape confronting liberal views. The consequence is that conservatives are not allowed, particularly by the media, to "make things up". In a strange way, the liberal media forces conservatives to strive to be more careful and honest because conservatives know they will be challenged. As an example, I would point to the issue of gun control (where the media almost always favors greater regulation) and how gun control groups, the NRA, and researchers such as Kellerman, and Bellesiles behave. Even by the standards of political rhetoric, pro-gun control groups would have to be considered among the most irresponsible advocates with regard to factual distortion. In contrast, the NRA, while sometimes rhetorically over-the-top, take great care to be factually accurate. I don't think this is the case because gun control advocate are more prone to lie than NRA members, though NRA members may be more likely to believe in quaint notions like objective reality. Gun control groups know they can fax a press release to a journalist and, very likely, get it printed almost verbatim with little or no question about factual veracity. The NRA, on the other hand, knows it's claims will be viewed with deep suspicion and subject to a great deal of scrutiny. Therefore, I believe, the NRA devotes more effort to factual accuracy and do not have the luxury of pretending all respectable people agree with them.

In addition, I think the typical liberal not-for-profit worker or college professor can, if they choose, live and recreate in something of a politically correct cocoon. When I used to be more liberal in my early 20s in Washington, DC, my liberal/left friends would talk in shocked tones if a conservative showed up at a party or social function. No one ever long had friends who deviated too radically from accepted socio-political norms. My more conservative acquaintances, by contrast, were more consumed with practical concerns, and though some were very intersted in politics, they made little effort to have ideological concerns define their professional or social lives. That was even the case with the Republican staffers that I knew on the Hill. And, of course, a stock broker, dentist, or businessperson does not choose their customers, secretaries, or their place of residence on the basis of politics or ideology and, as a consequence I believe, live and work in more ideologically diverse surroundings. This part of the equation would need more in-depth study of demographic data, etc. as we have less info available than we have with regard to liberal media bias.
Frankly, I am amazed by how much you can learn by blogging.


Reuters attaching people's bylines to politically incendiary stories they didn't write? That's journalist Deanna Wrenn's allegation, referring to this Reuters story, which carries her byline (here is what appears to be the original Reuters version that the journalist refers to below; that particular item doesn't include the byline, but it's entirely consistent with the journalist's story -- as I understand it, some papers include bylines with wire stories and others don't). Here's what the journalist writes in the Charleston Daily Mail:
This is from a story that Reuters news service ran this week with my byline:

"Jessica Lynch, the wounded Army private whose ordeal in Iraq was hyped into a media fiction of U.S. heroism, was set for an emotional homecoming on Tuesday . . . Media critics say the TV cameras will not show the return of an injured soldier so much as a reality-TV drama co-produced by U.S. government propaganda and credulous reporters."

Got problems with that?

I do, especially since I didn't write it.

Here's what I sent last week to Reuters, a British news agency that compiles news reports from all over the world:

"ELIZABETH -- In this small county seat with just 995 residents, the girl everyone calls Jessi is a true heroine -- even if reports vary about Pfc. Jessica Lynch and her ordeal in Iraq.

" 'I think there's a lot of false information about her story,' said Amber Spencer, a clerk at the town's convenience store.

"Palestine resident J.T. O'Rock was hanging an American flag and yellow ribbon on his storefront in Elizabeth in preparation for Lynch's return.

"Like many residents here, he considers Lynch a heroine, even if newspaper and TV reports say her story wasn't the same one that originally attracted movie and book deals."

What I typed and filed for Reuters last week goes on in that vein. They asked me if they could use my byline, which I had typed at the beginning of the story I sent, and I said that would be no problem. . . .

I hope the people of Wirt County have been too busy to notice the Reuters story, the beginning of which takes a tone I never would have used.

I'm not sure what reporter or editor actually wrote the story that has my byline attached.

Reuters did use one quote from the story I wrote last week in the final paragraphs of one of their earliest Lynch stories, which was sent out for publication early Tuesday morning.

By Tuesday afternoon, the quote was reduced to one sentence. Still, my byline appeared.

By Tuesday night, the quote was gone and Reuters was siphoning information from television reports. The beginning of the story was toned down. The part about "media fiction" was removed. But even then, my byline remained.

I understand that news wire services often edit, add, remove or write new leads for stories. What amazed me was that a story could have my byline on it when I contributed only a few sentences at the end -- and in later versions I didn't contribute anything at all. . . .

Apparently, when Reuters asked me last week if they could use my byline, they weren't talking about the story I wrote for them last week. They were talking about a story I never wrote.

That was the misunderstanding.

By the way, I asked Reuters to remove my byline. They didn't. . . .
If Ms. Wrenn is correct, then this is pretty shocking behavior for a news service, it seems to me -- basically, a blatant and knowing falsehood about the article's true authorship (and a libel of Ms. Wrenn, to boot, since it's making a false statement ["Deanna Wrenn wrote this"] that injures her reputation). Thanks to Chuck Simmins for the pointer.


Treason: My friend and fellow lawprof Tom Bell has a very good TechCentralStation piece on the subject, describing the existing state of the law and speculating about how it may evolve in the coming years. Worth reading.


You are emboldening me Being a contrarian by nature, the more you all attack telemarketing, the more I like it.

The ideal situation would be to have a market in telemarketing. That is, you could contract for how many calls you would receive, and what kind of calls. You might, for instance, get a discount on your phone service for allowing ten calls a month, or whatever. Plus we can imagine various kinds of intermediaries, perhaps computer-based in nature, to "screen" your calls, offering to take them at varying prices, based on your previous instructions.

I can imagine fifteen reasons why this is impractical, but I bet that lasts only for a short time. Europe has already experimented with lower cost phone service, if you are willing to hear an ad before you place a call (see my What Price Fame? on this, updates on where it has gone, if anywhere, would be welcome).

So five years from now we could have such a market. Now, does the do not call list hasten or slow down this development? On one hand, it may hasten it, by forcing telemarketers to buy consent. On the other hand, the blanket prohibition of the list may make it harder to arrange these future transactions. After all, you would first have to get your name off the list, I wonder how responsive our governent would be, and how liability would work if there were mistakes, lags, etc.

I could imagine that a do not call list could make it harder to make the transition to a real market in unsolicited phone calls. In which case we are back to the do not call list as perhaps being a bad thing.


What economists really think of Paul Krugman I've received numerous requests for future blogs, I will try to honor them, though it may take a while. A few of you wanted to hear about Krugman.

Everyone, right and left wing, agrees he is a first-rate expositor. His popular books are a model of clarity and lucidity. He may be too harsh on the supply-siders, in the view of some, but even a libertarian economist such as myself agrees with most of what is in the ppular books.

His theoretical work has a reputation that is high, mixed, and falling. His key field is "international trade and increasing returns." That is, he considers how trade models work when firm or industry size begets further size. This was once a revolutionary assumption, though now it is commonplace, due partly to Krugman.

But here is the catch: those models don't overturn the standard case for free trade (though you can spin new and crazy scenarios where protectionism does well, largley by "internalizing" increasing returns to a single country). Krugman himself admits that we should still favor free trade in virtually all cases. So what exactly is the point of these models?

Furthermore, it has become increasingly clear that Krugman was not the pioneer in this area. Perhaps Avinash Dixit has a stronger claim to priority, among others. Krugman lept on the bandwagon, articulately and effectively; he was a superb propagandist, even in the earlier stages of his career. But he was not first.

You could say essentially the same for Krugman's good work on cities and location theory. He is a great second guy to be on the bandwagon.

Now, in his New York Times column, he has turned shrill. Everyone is a dishonest enemy. Reading him is painful more often than not. But on economic issues he is still more often right than wrong. His critique of Bush's fiscal irresponsibility is largely correct, for instance.

Will he ever win a Nobel Prize? "If they run out of other people to give it to," is now the prevailing opinion. But he is no longer seen as a shoo-in. Not that people have found holes in his academic work, his role simply appears less pathbreaking as time passes.

Wednesday, July 23, 2003


Off to Old Europe: This afternoon, I am off to teach students from both old and new Europe at a "Europe and Liberty" summer seminar being held at the THEODOR-HEUSS-AKADEMIE in Gummersbach, Germany by the Paris-based Institute for Economic Studies. I expect to be blogging from there. I am most curious about the reactions of these liberal (in the European sense) students from throughout Europe to recent international events. Drinking sessions should be even more interesting than usual.


Standing offer Being new to blogging, I've been surprised at what posts people respond to. Plus I believe I am the only non-lawyer who blogs on this list (I am an economist). My blogs read to me as quite different than most of the others on The Volokh Conspiracy.

I'll make a standing offer: if there is something you would like to read about, let me know. I can't promise to have anything to say, or get to it soon, but I am curious to know more about the audience and what it wants.


Telemarketing: On your side, but still not convinced My telemarketing posts have drawn far more responses than anything else I have written during my (admittedly short) time blogging.

A few people, claiming to have marketing expertise, tell me it is well known that those who avoid marketers are typically easy marks.

Most of you think that telemarketing is pure intrusion. Many of you note that if there is a self-control problem on the buying side, in your view this makes telemarketing even worse. (Is there no functionality to being "stupidly" impulsive?) Several of you note that the elderly are an especially easy mark, and some of you have put your parents on the list, ostensibly to protect them in this regard.

I'll repeat: my intuitions favor the do not call list. But I don't think it is cut and dried. Consider both the utilitarian and rights perspectives, first on telemarketing more generally:

Utilitarian: I know you all hate being called. But no one has cited any reason to think that these aggregate costs exceed the economic benefits of telemarketing. They might, they might not.

Rights: Are these obnoxious phone calls so much of a rights violation that the utility calculus doesn't matter? Hardly. We allow pollution to support economic activity, even when it kills some people. And if you have a telephone, and you set the volume, you decide not to buy a telezapper, and you decide whether to check your caller ID, is the presumption that an unwanted call is a rights violation? A tough call.

So it is at least possible, perhaps likely, that the institution of telemarketing as a whole is beneficial. I therefore wonder whether we should raise the costs of having more telemarketing, even if we are making numerous victims better off.

Some of you simply think we have the right to opt out, as a do not call list allows. But if there is no clearcut rights violation, and the utility calculus says telemarketing is great, why raise the costs of it?

Furthermore I am worried about the precedent, having government set the default point in a paternalistic way. I would not favor a "do not serve me french fries" list, for instance. I even would fear a "do not knock on my door trying to sell me french fries" list. Some of you have said that the calling and french fries cases are not the same, since telemarketing calls are an intrusion, but again this begs the question if the calls are overall a beneficial intrusion into our lives.

If excess paternalism is a bigger problem than too many calls (I am now beginning to doubt this, having read so many complaining responses!), maybe the government should stay out. And will they keep this list up to date? How reliable will it be? How will the liability work? What about other kinds of blind calls, how are they covered? You can see it gets pretty complicated.


Secret Service and the Ramirez editorial cartoon: Dan Simon defends the Secret Service investigation of the Ramirez editorial cartoon that I blogged about a day or two ago:
The Secret Service has an iron-clad policy of investigating all such depictions -- even those that common sense dictates are not serious threats. In this particular case, the cartoon was actually portraying the president in a sympathetic light, as a victim of a metaphorical assassination by political opponents. But the Secret Service launched a routine investigation anyway.

Why does the Service have such a rigid policy? Well, imagine if it were a matter of agent or managerial discretion within the service -- as Volokh evidently believes it should be -- to decide whether a given depiction of an assassination was plausibly a threat, and hence worth investigating. In no time flat, various political groups would start alleging that the Service's choices of which cases to investigate were politically biased against them (or against the nutbars allied with them). The Service would come under massive political pressure to "lay off" one type of threat after another, until the entire policy was in tatters, and routine investigations of oddball threats were abandoned altogether. Then one day one of those uninvestigated threats would turn out to be real, and accusations would fly about dangerous laxity at the Secret Service. . . .
I don't think this is quite right: It seems to me that the Secret Service, like other law enforcement agencies, has to have the discretion to distinguish possibly real threats from things that clearly aren't threats. Still, this struck me as a reasonable point, and one worth quoting; Simon also has some other interesting related thoughts in his post.


Okay, okay! I slighted Julia Child unfairly in my post yesterday about the Medal of Freedom. Her World War II service was entirely unkown to me; I apologize to readers and to her memory... UPDATE: Moreover, I apologize for the error of having thought her deceased, which she is not.


Assassination ban: Reader Eugenio Labadie points to an AP wire story that says that the killing of Odai and Qusai Hussein violates the Executive Order that banned assassinations. Rep. Charles Rangel took the same view on Hannity & Colmes yesterday: "I really think that these are two of the rottenest bums that have ever been described to me, but do you know something? We have a law on the books that United States should not be assassinating anybody."
(I suspect he was using "a law" loosely, to refer to the executive order.)

     Here's what appears to me to be the current text of the relevant part of the order, from "Executive Order 12333 -- United States intelligence activities":
2.11 Prohibition on Assassination. No person employed by or acting on behalf of the United States Government shall engage in, or conspire to engage in, assassination.
     I don't know if there's been any authoritative interpretation of this order -- and remember that it's just an Executive Order, and to my knowledge violation of such orders with the approval of the Executive (i.e., the President) is not a crime or otherwise actionable -- but in any event, does it apply here? I can't imagine that the order was meant to apply, or was understood as applying, to the killing of the members of an enemy military organization in time of war. That's what you do in a war: Kill enemy soldiers. Sometimes you kill them in battle, sometimes you send special forces to kill them by surprise. Sometimes you kill the grunts, sometimes you kill the generals (and it's often both more effective and more just to focus on the latter).

     Odai and Qusai had been among the leadership of the Ba'athist regime with which we were at war. Remnants of that regime appear to still be at war with us, and I suspect that there was good reason to think that Odai and Qusai were working with those remnants. Can the Executive Order really be meant to prohibit that? Seems like that would be a very strange thing for an Executive to do.

     All this, by the way, assumes that our soldiers were sent in to kill Odai and Qusai; I'm not sure that this is so -- if they were sent to capture them, but there was a firefight and the soldiers had to kill the enemy in order to win the firefight (quite plausible, given accounts such as this one from the L.A. Times), then that's of course not an assassination at all.

     Incidentally, one might argue that because the Order is in a section on "intelligence activities," it should only apply to people working for the CIA and such agencies. I'm not sure that this alone will fly, because the order is pretty broad in its coverage -- it says "No person employed by or acting on behalf of the United States government," and our soldiers surely qualify as that. Rather, I think the order simply can't apply to trying to kill the enemy during a war, whether that's done by intelligence operatives or by soldiers.


Constitutional distinctions that turn on the seriousness of an offense: A question for readers who are knowledgeable on constitutional law -- and one that's limited to what the Court has decided, not whether the Court should have decided it: Can you help point me to any cases in which the Supreme Court has either (1) refused to draw constitutionally significant distinctions between crimes based on their supposed harmfulness, or (2) been willing to draw such distinctions?

     Classic examples in which the Court has held that it can't reasonably draw such distinctions are Branzburg v. Hayes (refusing to provide First Amendment protection for newsgatherers' refusals to testify, even when the protection would supposedly be limited to trials of relatively minor crimes), Mincey v. Arizona (refusing to create a Fourth Amendment exception for searches of murder crime scenes, reasoning that murder can't be effectively distinguished from other crimes), and, to some extent, its recent Cruel and Unusual Punishment Clause jurisprudence. An example in which the Court has been willing to draw such a distinction is Welsh v. Wisconsin (considering the gravity of the offense as a factor in the Fourth Amendment exigent circumstances doctrine); another is Coker v. Georgia (holding that the death penalty may not be imposed for rape, though it could be for murder). Justice Brandeis urged a similar distinction in his Whitney v. California opinion, in which he reasoned that advocacy of very minor crimes shouldn't be punishable at all; and some of the "clear and present danger cases," especially the 1950s Communist cases, also purported to consider the magnitude of the danger, i.e., the seriousness of the urged crime, rather than just its likelihood and imminence.

     If you know of other such cases, can you please e-mail me about them (at volokh at I would distinguish, by the way, the cases that focus chiefly on the prosecution's effect on the *defendant*, such as the cases that decide when a jury is required, or when a lawyer must be appointed. I'm interested in the harmfulness of the offense as going to the government's interest in being able to act (e.g., subpoena someone, arrest them, search their property, lock them up for life), rather than to the defendant's interest in having the best procedures for defending himself against the charge. Thanks!


Social Construction of Reality: Randy's post on the social construction of reality is quite provocative. In response to his queries, the best historical example with which I am familiar would be the constant redefining of ideologies by the Communist, fellow-traveling, and anti-anti-Communist left between 1930 and 1950. At various times, fascism was described as a variant of socialism or the last stage of capitalism. Sometimes it was viewed as an ideology of the left, at others as an ideology of the right. In the late 1930s, Nazism and Fascism were recognized as variants of socialism. Once Hitler declared war on the Soviet Union, however, fascism was instantly transformed into a right-wing ideology. Fascism did not change, but the relationship between fascist countries and the Soviet Union did. Maintaining the appearance of consistency required elaborate explanations that redefined the ideological spectrum. While this reconstruction or reality may have been centered in the Soviet Union, it was echoed throughout the American and European left at the time. It would be comforting to think that such social construction of reality was a pathology specific to Soviet communism or other extreme movements, yet Randy's post would suggest otherwise.


In Search of Free Trade: George W. Bush campaigned as a free trader, but he has not been a free trade president. Most notably, the administration imposed tariffs on steel and backed gross increases in farm subsidies. No less significant is U.S. Trade Representative Robert Zoellick’s pursuit of bilateral free trade agreements (FTAs) with individual countries. While such agreements offer the appearance of liberalizing trade, they actually represent a dangerous diversion from multi-lateral and unilateral trade liberalization efforts. As Columbia University economics professor Jagdish Bhagwati warns, the proliferation of bilateral FTAs “add[s] to the maze of preferences that blight the trading system: a "spaghetti bowl" of rules of origin and tariffs.”

In yesterday’s WSJ, Udayan Roy, an Associate Professor of Economics at Long Island University, further explained some of the problems with FTAs:
If tariffs are placed on the products of certain countries while those of others are allowed into the U.S. tariff-free, competition . . . will not work. Trade can indeed ensure the efficient use of the world's scarce resources, but not if some countries get special treatment under our tariff laws.

Moreover, if some country, let's call it Country X, has already succeeded in finding a market in the U.S., it would have only a limited interest in an FTA. Its less successful rival, on the other hand, would be eager to sign an FTA and to thereby grab Country X's share of the U.S. market, not by making a better or cheaper product but by obtaining special treatment under our trade laws. . . .

And once Country X's rival gets its special privileges, what incentive would it have to go to the WTO talks and sign a multilateral free trade agreement that would eliminate those special privileges? Mr. Zoellick claims to be working hard to get a multilateral agreement, but his simultaneous pursuit of bilateral FTAs may undermine the chances of a multilateral agreement.
While talking about the virtues of trade liberalization, the administration appears to be pursuing a more nationalist trade policy. Zoellick regularly speaks about the virtue of using trade for strategic ends – as if global prosperity were not itself of economic value. Not only is Zoellick’s approach economically counter-productive, it can hamper broader trade liberalization through the WTO. The U.S. has legitimate complaints about the trade practices of other countries, but has failed to comply with WTO judgments against the steel tariffs and other trade restrictive policies. With the WTO meeting in Cancun just around the corner, now is no time for the administration to back away from real free trade.


Lies and the Left My latest blog on asks whether the Left is now living in its own "socially constructed" world. At the end, I ask some questions to which I would really appreciate hearing some answers. Check it out.


Another great Stu's Views:


Lynne Stewart opinion: Many thanks to Phil Carter for passing along the link -- it's here. Hope to read it and comment on it later.


Follow-up: Some of you really hate telemarketing I've been told in no uncertain terms by many readers that telemarketers are aggressors and evil invaders of privacy.

But I still wonder whether the "do not call" list is an issue of property rights/harassment or an issue of self-control. I still think many people on the list are afraid they will get calls, respond, and buy something. Frankly I am not convinced by all of you who say "I don't want this stuff." Sure, you don't, but what about the market as a whole?

One direct mail (note mail, not calls) marketer wrote me and told that when they send to people on the "do not send" lists, the rate of response does not fall.

Plus none of you can explain why the telemarketing industry opposed the reform, if the people on the "do not call" list don't want to buy stuff and are just a waste of time and money.


Longer Version of "Justice Kennedy's Libertarian Revolution" Now Available: Last week, I posted a link to my NRO column on Justice Kennedy's Libertarian Revolution: Lawrence v. Texas. Now the longer (but still under 20 pages) and better developed version of my paper that will appear in the Cato Supreme Court Review is available for download here. Here is the abstract:

This brief article explains why Lawrence v. Texas could be a revolutionary case if the Supreme Court follows Justice Kennedy's reasoning in the future. As in Planned Parenthood v. Casey, Justice Kennedy finds a statute to be unconstitutional, not because it infringes a right to privacy (which is mentioned but once), but because it infringes "liberty" (a word he uses at least twenty-five times). In addition, Justice Kennedy's opinion protects liberty without any finding that the liberty being restricted is a "fundamental right." Instead, having identified the conduct prohibited as liberty, he turns to the purported justification for the statute and finds it inadequate. This represents a marked rejection of the fundamental rights jurisprudence as it has developed since Griswold v. Connecticut, and the adoption - sub silentio - of a "presumption of liberty."


More on what is Faux I am coming to learn that one of the joys of blogging is receiving messages like this one from Professor King Banaian of St Cloud State University:

I've read your writings for awhile: Though I'm in macroeconomics rather than law and econ, I ended up teaching the course three times as a "good soldier" in my department. I was reading today and saw mention of Pink Voyd, which I found humorous and so I clicked on the link to your July 5th post. And in big orange letters I see

Hampton Beach Casino Ballroom

I grew up in Manchester, NH, and in the late 1970s I was an undergraduate at St. Anselm and a bassist in a band called Evasive Action. We didn't know what we wanted the band to be, just to go out, play, show people a good time, meet girls, etc. Had we had a keyboardist, we certainly would have been playing Floyd. Across the street from the casino ballroom -- which was closed then -- just in front of the beach, is a band shell. 24 years to the day you heard the Voyd, we played in that shell. It was your basic hot July day with everyone jamming Hampton, and we were on for two sets because the band after us failed to show up. Warhol says fifteen minutes, but we had almost 90. We covered Steely Dan, Dire Straits, the Cars, and even did a couple of songs we had written ourselves, silly songs that are best forgotten (God knows I have.)

Was my band any good? No, no better than many garage bands. But we understood that people simply came for a good time, and you can create a good time with music without necessarily doing anything special musically. I'll bet Pink Voyd gets that, too.

You're not there to see Roger Walters play, and you're not there to hear a particular song. Sometimes, you're just there to experience live music with other people. A friend and I went to hear Larry Garner last month in a blues club in Philadelphia. We came away thinking we had a great time not because of what Garner played but by the atmosphere of the club. I dress like your average academic, which in this club meant I was seriously underdressed. People were out for an evening, to have an experience with friends, and since it was special you dressed special, you made it special. So when Dan Simon says "it depends on what you're looking for in your aesthetic experience," it should be added that it depends what you contribute to your aesthetic experience.

Glad you had a great time in Hampton. Boy, I miss that place.


The elusive "Freedom to Read Amendment": Reason's Hit & Run writes:
Congressmen Sanders, Otter, and Conyers have proposed a Freedom to Read Amendment to the PATRIOT Act, which would revoke the power to investigate citizens' reading habits without probable cause -- one of the law's most heavily criticized provisions. The ACLU has set up a page from which you can send a free fax to your representative urging that he or she support the bill. So go click, and try not to think about how mindbogglingly depressing it is that we need a "Freedom to Read Amendment" in the United States.
I'm not sure what I think about this, largely because I have no idea what this Amendment would do. Reason doesn't link to its text, but it does link to the People for the American Way press release and the ACLU fax-your-representative page -- and neither of those link to the text, either. I tried searching for the text via google, and found some pages that praised the amendment; but the ones I checked don't seem to link to the text, either.

     Now maybe the amendment's text hasn't yet been finalized (though the ACLU says that the Congressmen "have proposed an amendment," which suggests that the amendment must exist somewhere). But if that's so, then isn't it a little early for people to be asked to fax in something that makes some pretty definite statements about what the Amendment would supposedly do, e.g., "The Sanders-Otter-Conyers Amendment would return legal standards and warrant procedures that were in place for libraries and bookstores before the passage of the USA Patriot Act"? And if the amendment's text is final, why not provide a link to it? (Or was it there, and I missed it?)

     In any event, if any of you know where I can find the text (I'll also try to do a quick LEXIS search for it when I get back into the office in the morning), please let me know. (And, no I don't think it's the same as the Freedom to Read Protection Act, which was introduced several months ago, though perhaps it's based on that.)

Tuesday, July 22, 2003


Does federal law restrict bloggers' ability to endorse candidates? Stanford Professor Larry Lessig had Presidential candidate Howard Dean guest-blogging on Larry's blog. But now Larry writes:
The appearance by Governor Dean here has created lots of excitement, some stir, and a bit of anger. I’ve been requested by the University to move my blog to a personal server, which is fine and right given FEC regulations. . . .
I understand that Larry isn't objecting to this, but I do want to object, since the FEC regulations govern you and me and everyone else, and not just Larry and Stanford.

     I'm trying to figure out right now what the legal theory is here; but if the theory is that Stanford may not let its servers be used for blogs that endorse a political candidate -- or for blogs that just provide a candidate with a forum, since Larry didn't clearly endorse Dean -- then that theory is breathtakingly broad.

     First, it seems that it would apply equally to ordinary Web pages, op-eds posted on a faculty member's site, e-mail distribution lists, and the like.

     Second, it would apply to student speech as well as faculty speech.

     Third, it would apply to newspapers as well as blogs -- after all, how is Larry's conduct really different from the Stanford student newspaper endorsing a candidate, or letting a candidate write a column? (And if it is different, perhaps on the theory that the Federal Election Campaign Act exemption for "any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate" applies only to old media and not the Internet, then that's very bad, too.)

     Fourth, if the claim is that Stanford may not host this because it's a corporation, and its hosting is therefore an impermissible corporate expenditure, then America Online can't host it, either, can it? (The prohibition would be narrower if the legal theory was that Stanford can't host it because it's a nonprofit corporation, but I don't know why that would be the distinction under the Federal Election Campaign Act.)

     Fifth, all this would of course apply equally to sites that criticize candidates as well as endorse them.

     As I mentioned, I'm looking into this further, and it may well be that there's less here than meets the eye. But if the FEC regulations do indeed restrict universities from hosting Internet speech that supports or opposes candidates, then that's very troubling, and in my view unconstitutional -- just as it would be unconstitutional for the FEC to restrict newspapers from publishing speech that supports or opposes candidates.


The wooden periodic table -- with samples: (OK, photos of samples, but apparently the owner really does have them.) It's really cool. Thanks to Mitch Sklar for the pointer.


Patents and First Amendment law: Reader Tim Shell writes, citing this story:
Yahoo now owns a patent for positioning paid advertisments in search results. This is something Google does and Yahoo might be expected to attempt to force Google to stop this.

Does this patent violate the First Amendment's free press protections? Isn't Google or any other search engine free to publish their results however they see fit? Is charging a premium for well-positioned search results really any different from charging more for a more prominently placed ad in a magazine?

I'd consider this subject blogworthy and would be interested if you had any opinions on it.
     An interesting issue. I don't think there's a First Amendment problem here, because patent law is a content-neutral rule that only incidentally affects speech: The government isn't deciding which viewpoints or subject matters are favored and which are disfavored -- it's just giving people the ability to control a certain communication technology, without regard (on the government's part) to the content of the communications. The First Amendment is implicated, because patent law here does enable people to restrict others' communication; but because the law is content-neutral (and especially given that patent law leaves people free to communicate in lots of other ways), it's constitutional.

     Moreover, if the insight behind patent law -- that patent law provides an important incentive to invest in developing new technologies -- is sound, then we wouldn't want the First Amendment to preempt patent law here: Stripping communications technologies of patent protection would lead to less innovation.

     Now I'm not certain that patent law has this positive effect (though I suspect that it does), and there are good arguments that patent law (or the patent office) has recently gone too far in protecting business methods and computer software. This patent might well be an example of patent law going too far, though I really don't know. Still, this is a matter that First Amendment law leaves to Congress and to the Patent Office to decide.


Judge Alex Kozinski on Bjorn Lomborg's The Skeptical Environmentalist: Judge Kozinski's Michigan Law Review book review of Lomborg's book is now up here. Much worth reading.


Two counts in Lynne Stewart case dismissed: According to the AP,
A judge dismissed the two main terror counts against a civil rights lawyer and a translator on Tuesday, saying charges they conspired to support a terrorism organization were unconstitutionally vague.
U.S. District Judge John G. Koeltl left intact charges that attorney Lynne Stewart and two others conspired to defraud the United States and that Stewart made false statements. . . .

Stewart was charged last year with helping deliver messages from her client, Sheik Omar Abdel-Rahman, who is serving a life sentence for conspiring to blow up New York City landmarks and assassinate Egyptian President Hosni Mubarak.

Prosecutors say she and co-defendants Mohammed Yousry, an Arabic translator, and Ahmed Abdel Sattar, a U.S. postal worker, helped relay messages from the blind Egyptian cleric to the Islamic Group, a radical Egyptian-based terrorist group. . . .

The judge said the defendants were correct to argue that a law outlawing the mere use of phones and other means of communication without specifying what is illegal was unconstitutionally vague. . . .
I'm trying to track down the opinion itself now; if anyone has a URL, please e-mail it to me at volokh at


John Dingell vs. Ward Connerly: There's an interesting exchange of letters between the two on race preferences and other matters. Connerly, it seems to me, gets in some very effective (and generally quite sound) digs.


Thorny Problems of Free Speech Law: I've finally prepared the reading materials for my Harvard seminar -- glad to have that out of the way. Should be a fun set of topics; the first five weeks will focus on:
  1. When may courts restrict parents' speech in child custody cases, or make custody or visitation decisions based on the parents' speech?

  2. When may the government restrict groups' or speech organizers' ability to choose who speaks for them, who can come to the group's meetings, or how the people can be paid? This issue is implicated by antidiscrimination laws, by child labor laws, and by attempts to prosecute pornographers on the grounds that they are pandering -- i.e., hiring people for purposes of prostitution.

  3. When, if ever, may the government restrict speech on the grounds that it will offend a captive or otherwise unwilling audience?

  4. When may the government punish false statements of fact (other than the fairly well-settled areas of libel law and fraud law)?

  5. What should we think of the Oregon courts' experiment with creating a very different constitutional structure for their state constitution's Free Expression Clause? State courts are free to interpret their own constitutions differently from the way the U.S. Constitution is interpreted. (Sorry, I can't easily capture the Oregon framework in a sentence or two, except to say that in some areas -- e.g., obscenity, commercial advertising, fighting words, and others -- it's considerably more speech-protective than the federal framework.)
We'll also discuss my "crime-facilitating speech" question (though I still have to finish writing the paper that will serve as the basis for that class session). The remaining six weeks will be focused on the students' own papers. I'm much looking forward to the seminar -- should be a lot of fun for me, and, I hope, for the students as well.


Regulation of Gins Many people sent comments on my typo in my earlier post (writing "gins" for "guns"). Most attempted some feeble humor. But the following was my favorite:

Was reading the conspiracy and noted your 11:16 post about the regulation of gins . . . the government can regulate my gin when they pull the martini glass from my cold, dead fingers . . .;-)
By the way this was not a product of spell checking as some assumed, but rather the product of hasty posting, then leaving my post. The best thing about such mistakes is that it reminds you there really are readers out there.


Is gay extramarital sex adultery? The Concord Monitor reports on a case before the New Hampshire Supreme Court that raises this question (in the context of a straight marriage, not a gay one, of course). I would have thought that the answer was surely yes, but I guess it's not so clear. (I did a quick search through the New Hampshire statutes and didn't find any explicit definition of the term.) Thanks to Andrew Sullivan for the pointer. (Thanks to How Appealing for pointing out that the paper is the Concord Monitor, not the Christian Science Monitor, which is what I had originally said.)


Article about blogs for lawyers: Gary O'Connor and Stephanie Tai have just published an article on blogs for lawyers in the Journal of Appellate Practice & Procedure; it's available here.


A bit more on ostensibly factual claims hiding normative judgments: Robert Light writes, in response to my "inconceivable post" below:
[M]y first and very cursory response would simply be that it IS accidental since nature means "generation, growth" (i.e. in the ancient Greek, the Greeks of course being those who invented the concept of nature, -- er, no, they discovered nature as that which happens/occurs in contradistinction to convention, "nomos"). And nature certainly does not intend for any one human being to be infertile.
I don't see how this works. It's not clear to me what it means for "nature" to "intend" something -- but if nature can indeed intend things, then of course nature intends 70-year-old women to be infertile. A completely natural, universal, and predictable process makes this so. If you see God as the author of nature and of natural processes, then presumably God intended menopause to happen, or else it wouldn't happen.

     Ah, one might say, but the woman was at one point fertile. Maybe, though I believe that there are some people who are born permanently infertile, through entirely natural processes. But in any event, the marriage between two 70-year-olds is a marriage in which the woman is infertile -- not accidentally infertile, but infertile as a result of a natural and universal process that would presumably, to Catholics, be divinely inspired and (again, if nature can intend things) naturally intended. And yet to Catholics, that marriage is still a sacrament, even though it is entirely, nonaccidentally, and naturally incapable of producing children.

     As to "nature" meaning "generation, growth" in Greek, I don't know my >ancient Greek, but I'm not sure how it is in any event helpful. As we know, nature includes both birth and death ("A time to be born, and a time to die"), both natural fertility and natural infertility (bees are natural, for instance, even though most of them are sterile). Am I missing something here? (Also, may I blog this message, together with my response?)

     More generally, I find this genre of philosophical argument -- which basically turns on definitional claims about the supposed "essence" of some thing or the supposed "intentions" of "nature" -- to be quite unhelpful, and generally misleading: It purports to turn on facts about the physical world, and to deduce moral judgments from those facts. But in reality, the foundation for the argument isn't fact; it's a morally laden characterization of the fact.

     Likewise for claims that other readers have made about how the true purpose of sex is obviously reproduction. This starts with a fact -- one thing that sex sometimes leads to is reproduction, and this has obviously been a tremendously important function -- but then makes an unsupported leap to a broader claim that this is somehow the one morally important and legitimate purpose. Sex, of course, has other effects: pleasure, for instance, and emotional bonding; both of these effects have also been quite important in human history, and continue to be important to humans. So the normative broader claim, about what the legitimate purposes of sex should be, doesn't really follow from the factual foundation. And yet the normative claim is often cast as if it itself were a factual assertion, which it isn't.

     I have nothing against moral argument -- I often make such arguments myself. But it seems to me that the moral claims should be clearly asserted and clearly defended, as the normative judgments that they are. What bothers me is when they are hidden behind supposedly factual claims that, on closer examination, aren't really factual at all.


What are Reasonable Regulations of Guns? My guest stint on is turning into a series on the Second Amendment. For the latest installment on "Reasonable Regulation" click here.


I sure hope this isn't so: The Drudge Report reports:
A LOS ANGELES TIMES comic Sunday that graphically showed President Bush being held at direct gun-point has raised concerns within the Secret Service, the DRUDGE REPORT has learned.

The shock cartoon by the paper's Michael Ramirez depicts the president's hands behind his back with a gun to his head -- assassination style -- as an unidentified man wearing a vest which reads "politics" appears ready to pull the trigger!

"We take all images such as this very seriously," a top secret service source who requested anonymity said from Washington. "Regardless of the politics behind any speech, images of the president, such as this, raise concern."

The sketch appears to be a take-off of a Pulitzer prize winning photo that memorialized the Vietnam war for the 60s Generation. It attempts to make the point that partisan politics are more of a threat to Bush than guerilla war. . . .
The cartoonist is obviously not trying to threaten the President's life; if the Secret Service is wasting its time on this (and I hope that the account is inaccurate), that shows pretty bad judgment on the part of its managers.

UPDATE: My hopes are dashed. The L.A. Times reports:
An editorial cartoon in The Times that depicted a man pointing a gun at President Bush prompted a visit to the newspaper's offices Monday by a Secret Service agent, who asked to speak to cartoonist Michael Ramirez.

The agent was turned away.

A Secret Service official said the inquiry was routine, according to Karlene Goller, an attorney for The Times who met with the agent and later spoke to an official in the agency's Los Angeles office. The government asks questions of anyone publishing material that might be construed as a threat against the president.

Goller said she met with the Secret Service agent, Peter J. Damos, in the newspaper's security office and told him he could not speak to Ramirez. After some discussion, Damos left.

Reached later by telephone, Damos declined to discuss the incident with a Times reporter.

Ramirez said Damos had called him earlier in the day and asked if he could visit. Ramirez said he assumed the call was a hoax, and jokingly said yes. "So when he showed up," Ramirez said, "I was completely surprised."

The cartoon, which ran in Sunday's Opinion section, was intended to defend the president, according to Ramirez. . . .

"President Bush is the target, metaphorically speaking, of a political assassination because of 16 words that he uttered in the State of the Union," Ramirez said. "The image, from the Vietnam era, is a very disturbing image. The political attack on the president, based strictly on sheer political motivations, also is very disturbing." . . .
I agree with the Secret Service that they need to investigate statements that might be threats against the President, even if it's not clear that the statement is a threat. That's why you investigate: To find out what an ambiguous statement really means. But here there was no ambiguity, nothing "that might be constued as a threat," at least by a reasonable person. Seems to me that the Secret Service should be focusing on real threats, not on this.


Why election litigation is on the rise, and why that's not very good: Prof. Rick Hasen, a top election law expert, has an interesting column on this.


Always check whether the intercom is on: Dan Weintraub of the Sacramento Bee promises juicy stuff to come:
. . . [A] bunch of [California] Assembly Democrats plotting budget strategy in a closed hearing room [didn't realize that the Capitol intercom system that normally broadcasts committee hearings was left on]. . . . [Y]ou will likely be hearing a lot about this tomorrow, and the gist is this: the Dems were speculating that a delay in adopting the budget would both hurt the Davis recall and help their effort to pass a ballot measure next year lowering the vote requirement for a budget from two-thirds to 55 percent. . . . There were hints that it might be in the Dems best interest to drag out approval of the budget this summer, even as they speculated that the Senate would soon reach a deal and send a budget to the Assembly. Scandal? No. But more than a bit ironic, given that the Democrats have been accusing the Republicans of delaying the budget for partisan motives. Look for more on this in the morning papers.
Interesting -- I wonder what will actually come out when the tape is made fully available. (Thanks to Rick Hasen for the pointer.)

UPDATE: This morning's L.A. Times does write about this:
Los Angeles Assemblywoman Jackie Goldberg and others discussed holding up the budget to dramatize the consequences and build support for a ballot initiative that would make it easier to raise taxes.

"Since this is going to be a crisis, the crisis could be this year," Goldberg said, according to a transcript. "No one's running [for reelection]. And maybe you end up better off than you would have, and maybe you don't. But what you do is you show people that you can't get to this without a 55% vote."

The ballot initiative would let the Legislature approve any tax increase with a 55% vote. The state Constitution requires a two-thirds majority. That means that under the current makeup of the Legislature, at least eight Republicans must join the slim Democratic majority for a tax increase to pass.

Fabian Nunez, also of Los Angeles, agreed. "If you don't have a budget, it helps Democrats," he said. . . .

Republicans noted that many caucus members have charged the GOP with holding the budget process hostage. Yet, those same Democrats are now caught on tape discussing ways to hold things up.

After about 90 minutes, a staffer interrupted to alert lawmakers that their meeting was not private at all:

"Excuse me, guys, you can be heard outside," an unidentified staff member said.

"Oh [expletive], [expletive]," Goldberg said. . . .

Democrats who attended the caucus session included Patti Berg, Eureka; Judy Chu, Monterey Park; Mervyn Dymally, Compton; Loni Hancock, Berkeley; Hannah-Beth Jackson, Santa Barbara; John Laird, Santa Cruz; John Longville, Rialto; Alan Lowenthal, Long Beach; and Patricia Wiggins, Santa Rosa.

Goldberg made no apologies about her comments with regard to the timing of a "crisis."

She said it was part of a discussion over whether it would be better to make deeper cuts this year, to show Californians the severity of the state's money troubles, or to disguise the problem this year and make more drastic cuts next year.

"It meant whether or not we do the things this year or next year that let the public understand how serious the situation is," Goldberg said. "They think if we skate by, it was all hyperbole up here.

"We're in a crisis," said Goldberg. "You don't have to precipitate one. The question is whether we should make that crisis happen now when it's really happening.... When you wait a year, you double the amount you have to cut.... Is it better to do it now or next year?" . . .
If anyone finds a place where the recording (or, better yet, the transcript together with the recording) is posted online, please let me know.

UPDATE: A reader writes:
It is unlikely that there is a tape of more than the last few minutes of the meeting you were referring to. It was not a regular committee meeting, so there would be no official tape; instead, it was a group of legislators meeting in a room where they thought they could speak privately -- a mistake, but there you have it.

It was not until later in the meeting, apparently, that Republican staffers realized the conversation was being broadcast over our "squawk boxes," at which point they began taping. Soon thereafter, the legislators were informed their meeting was being broadcast, uttered the understandable epithets, and closed up shop.


Airport blogging: I'm sitting in the Johannesburg airport, awaiting the next leg of my long trip home from Malawi. I was up at 4 am local time this morning, to catch the very first minibus from going through Liwonde Township in the direction of Lilongwe. There will be lots-- and I mean lots-- of Malawi blogging to come; soon I'll start to remind you of Cliff Clavin talking about Florida. But right now I'm still processing, and thinking, and composing thoughts; and I'm not ready to write even the first long post about my past couple of weeks.

I'm also, slowly, emerging from the most complete news cocoon I think I've ever been in. (Even when I was backpacking around the Australian outback I could get the Aussie daily papers, if sometimes late, and the Economist in bigger towns.) Once I got to Lilongwe I bought up the local English-language papers and newsmagazines; not until I got to Jo'burg was more news available. I've clearly got some catching up to do.

But I notice, in my e-mail inbox, the sort of news that I routinely blog. Three academics will receive the Presidential Medal of Freedom tomorrow according to the Chronicle (subscribers only). They are:
Jacques Barzun is a former Columbia University professor and dean, and author and scholar of modern European thought and culture. His critically acclaimed books include Race, A Study in Modern Superstition; Marx, Darwin, Wagner: Critique of a Heritage; and the more recent From Dawn to Decadence: 500 Years of Western Cultural Life: 1500 to the Present.

James Q. Wilson has written influential works on the nature of human morality, government, and criminal justice issues. A noted social commentator and professor at both Harvard and UCLA, his books include Varieties of Police Behavior: The Management of Law and Order in Eight Communities, The Moral Sense, and The Marriage Problem: How Our Culture Has Weakened Families.

Edward Teller left his native Hungary to escape the rise of Nazi Germany. After arriving in America, he established himself as a premier physicist. His work on national defense projects such as the Manhattan Project and the Strategic Defense Initiative helped protect our Nation and bring about the end of the Cold War.
Wilson and Barzun have left intellectual legacies of great importance; Wilson is one of those rare figures for whom no label narrower than "social scientist" will suffice.

The rest of the recipients are a mixed bag, as is often the case for the Medal of Freedom (as for the National Humanities medal). They range from the ridiculous to the sublime-- Julia Child to Vaclav Havel. I'm kind of surprised that no Republican president has given the award to Charlton Heston before this. Byron White is an obvious choice, I guess-- do all deceased Supreme Court justices receive the honor?-- but one for which I can summon little enthusiasm. Dave Thomas, the late founder of Wendy's, is... well, he seems to have been a really nice guy and was a very successful businessman, than both of which there are worse things.

One oddity: the White House announcement doesn't clearly distinguish between recipients living and dead.

It'll probably be another day and a half or more before I'm able to blog again; see you then...


More on telemarketing Numerous libertarians have defended the new "do not call" list as a rare example of how government can do right. I am inclined to agree with them. Still, being a contrarian by nature, I wonder what is the case on the other side.

Take those people who have put themselves on the list. Do they really not want to be called? Maybe they are afraid that they really like being called. That they will buy things. That they will be impulsive.

Arguably those people have a rational controlling self, and an impulsive buying self, to borrow some language from Thomas Schelling. Why should we assume that the rational controlling self is the only one who counts (do you really want a life devoid of spontaneity?)? Why should our government be in the business of altering this balance in one direction or the other? Isn't the market a better mechanism for balancing the interests of the conflicting selves?

How many of you out there will be consistent? How about a government list for people who do not want to be allowed into casinos? Do not want to be allowed to buy cigarettes at the local 7-11? Do not want to be allowed to order dessert?

Reading our (untrustworthy) press on this issue, I get the feeling that telemarketers are not thrilled by the do not call provision. According to some, they ought to welcome it, as now they can call in a more effective and targeted fashion. If they don't welcome it, we are back to wondering whether those on the do not call list are in fact itching to buy things.

I will also note a potential externality resulting from the list. Say that telemarketers will now call non-listed people more. That could increase your incentive to put yourself on the list, if the volume of calls gets too high. You might have been perfectly happy with the status quo ex ante, but now you can't have that. So the non-listed people can be worse off. And if the listed people are only better off in an ambiguous sense...well, you see where this is heading...

Just my contrarian thought for the day.


Inconceivable: (Teaser: Though this post starts out as YAPAGM, yet another post about gay marriage, it actually has a slightly different payoff at the end.) Another recent message on gay marriage made me think a bit more about philosophical arguments, especially philosophical arguments based on fairly old sources. The author, who was described by another party, as being "extremely well schooled in Thomistic-Aristotelian metaphysics," made various arguments, culminating with:
Third, the Catholic Church permits marriages between infertile parties because infertility is only an accidental circumstance. Per se, the genesic act is perfected per Aristotelian principles, unlike sodomy, jerking off, etc., where the genesic finality (metaphysical) of the faculty is vitiated ab initio.
     My first reaction was, apropos the term "accidental," "I do not think that word means what you think it means." As I've mentioned before, there's nothing at all "accidental" about many kinds of infertility, especially the infertility of post-menopausal women. This infertility is the result of a predictable and universal event (or at least nearly universal -- for all I know, there might be a very few women who naturally never go through menopause even though they live a normal lifespan, but that has to be staggeringly rare). I assume that from a Catholic perspective, this event (menopause) is authored by God, so there's no accident there. There's nothing "accidental," in the normal sense of the English word, about it -- just imagine your reaction if a friend of yours told you "I married this 70-year-old woman, and, what do you know, it turns out that by sheer accident she's infertile." If anything, fertility would be the "accidental circumstance" where marriages with post-menopausal women are concerned.

     The Catholic Church, though, as I understand it, doesn't frown on marriages between 70-year-olds -- in fact, I take it that it treats them as a sacrament. It may well have perfectly cogent reasons to do so and yet reject marriages between homosexuals, which are just as infertile as marriages between 70-year-olds. But the claim that "infertility is only an accidental circumstance," at least in normal modern English, is not such a reason.

     Now to the philosophy: It may well be that the word "accidental," in "Thomistic-Aristotelian metaphysics," does not mean what we think it means. I suspect that it refers to a subtly different concept than we think of as "accidental," or perhaps even a radically different one (I set aside whether this is a sensible concept, because that turns out not to be germane to my ultimate point here). Nor should this surprise us. The legal term "actual malice" doesn't mean "actual malice," to the consternation and confusion of many law students and even more laypeople. The mathematical term "rational number" doesn't refer (and was never intended to refer) to the most common English-language sense of "rational." There's nothing inherently improper when a complicated system of reasoning, analysis, or description uses terms in specialized senses.

     But users of this system should be careful to recognize that these specialized senses make their arguments unintelligible to outsiders. Sometimes that doesn't matter much, for various reasons. But if the system is being used as a source of rhetoric -- of argument that is meant to persuade people, including people who are not trained in the system -- then this specialized terminology can weaken the system's influence.

     Those who are "extremely well-schooled" in the system might accidentally forget that others aren't that well-schooled in it. (This is one reason why lawyers sometimes accidentally use legalese even when they're consciously trying not to: Many legalese terms don't seem like legalese to lawyers; they just seem like the normal way of speaking.) And even if these extremely well-schooled people are speaking to insiders (e.g., Catholics who have at least some exposure to the specialized lingo), those insiders may be so impressed by the argument of the experts that they'll just blithely quote it to outsiders, as it was quoted to me. The quoter expects the argument to be a knock-down winner -- after all, it is born out of a tradition that includes Aristotle and Aquinas, and was repeated by a great scholar. But the listener is entirely unimpressed: He literally speaks a slightly different language than the specialized language in which "accidental" doesn't quite mean "accidental."

     So I suppose that this is a reminder to all who are proud to have access to a deep and complex source of specialized knowledge, whether the Catholic tradition, the Talmudic tradition, the common-law tradition, objectivism, Marxism, deconstructionism, or for that matter theoretical physics: No matter how much you value this discipline's specialized language, when you want to persuade people, you should speak their language, not your own.

Monday, July 21, 2003


More on "When is Faux Real"? Blogger Dan Simon of I Could be Wrong has a nice response to my blog When is Faux Real? on my experience with tribute band, Pink Voyd. If you missed my earlier blog, you might also have missed my follow up about Chris Isaak, When is Real Faux?


How Would You Organize the Militia? Check out my latest blog on in which I explain why the militia still exists and propose how it might be better organized than at present. This is continuation of the discussion I began last Friday of the issues raised in my paper Is the Right to Keep and Bear Arms Conditioned on a Militia? which will be published in the William and Mary Bill of Rights Journal.


A bit more on older drivers: Reader Jeff Bishop responds to my post below, by saying:
"However, drivers who are above 70 pose no more of a danger than other drivers, and less of a danger than most. Why? Because they drive less: If you count crashes per licensed driver, and not per mile driven, you'll find that this number is relatively constant, and quite low, for all listed ranges from 55 up."

Isn't that a little like pointing out that far fewer people die from crack overdoses than from alcohol poisoning, and concluding that crack must be safer than alcohol?
Not really. As I understand it, far fewer people die from crack overdoses than from alcohol poisoning because far fewer people use crack than use alcohol. But that's not so as to older drivers: The relatively low rate of crashes per older driver does not flow from their being fewer older drivers (since of course the rate is per older driver). Rather, it comes from older drivers engaging less often in hazardous activity, even though that activity is more hazardous when they do it than when others do it.

     The better analogy is: Would you rather have someone next door who drinks once a week, and gets so drunk that he becomes a menace to his neighbors every 50 times that he drinks (i.e., once a year)? Or would you rather have someone next door who drinks every day, and gets so drunk that he becomes a menace to his neighbors every 350 times that he drinks (i.e., once a year)? The answer is probably that both are equally unpleasant. The latter may handle his liquor better than the former -- but because he drinks more often, the harm to you is the same.

     My correspondent also writes:
Also, the social utility of allowing a given old person to drive is probably much lower, since he is more likely to be retired.
That is one of the plusses of measuring crashes per mile driven: If we take away an average 27-year-old's driver license, we'll prevent twice as many crashes as if we take away an average 82-year-old's driver's license -- but we'll also be decreasing the 27-year-old's productivity in the workforce. If one thinks that the net social benefit of driving is roughly proportional to miles driven, because that captures the value of driving to work, driving for work, driving to school, and so on, then we should be looking at accidents per mile driven rather than accidents per driver.

     At the same time, I think that there's more to having a car than social productivity; there is also a substantial value to personal independence, and taking away a person's driver's license can dramatically reduce that, especially in Los Angeles and very many other places like it. I realize that there are countervailing values, too, such as human life and limb; when someone becomes dangerous enough as a driver (I say "dangerous enough" because we're all dangerous in some measure), we may therefore be justified in taking away his license. But the costs of such a loss can't be captured solely by focusing on the economic production that is helped by the driving, or on miles driven as a rough proxy for that economic production.


How dangerous are those older drivers, anyway? Reader Gregory Tetrault points to this study, which suggests that:
    • Drivers who are above 70 are worse drivers, on average (per mile driven) than 30-to-70-year-olds (the average crashes per mile driven are pretty constant in the 30-to-70 age ranges);
    • drivers age 70 to 74 are a bit worse than 30-to-70-year-olds, though better than 25-to-29-year-olds;
    • drivers age 75 to 79 are halfway between 20-to-24-year-olds and 25-to-29-year-olds;
    • and drivers 80 and above are worse than 20-to-24-year-olds, though much better than 16-to-19-year-olds.
    "Bad" is measured by the number of crashes reported to the police (again, per mile driven), not fatal crashes; as reader Gregory Tetrault points out, old people are less likely to survive serious crashes, so counting fatal crashes per mile driven would measure the dangerousness of old people to themselves (and possibly to their passengers, who are more likely to be old) more than it would measure their dangerousness to others. I'm now tracking down a paper that purports to measure fatality risk imposed on others by older drivers, but I don't yet have it.

  1. However, drivers who are above 70 pose no more of a danger than other drivers, and less of a danger than most. Why? Because they drive less: If you count crashes per licensed driver, and not per mile driven, you'll find that this number is relatively constant, and quite low, for all listed ranges from 55 up. A 30-year-old is thus much more likely to get into a crash than an 80-year-old -- and, one might therefore say, is much more likely to be a danger to you -- simply because he's out on the road more.
What you do with these numbers is up to you; there are pluses and minuses to either measure of risk. But this does suggest that statements such as "80-year-old drivers are, on average, more likely to be a danger than other drivers" are at least incomplete.

     My friend Glen Whitman, an economics professor, has some more on the L.A. Times article that prompted my earlier post on this subject.


Another license plate story, or maybe it's a computer programmer humor story, but since I'm a computer programmer, I like those. This is from reader (and former user of my HP 3000 software) Michael Greene:
After I quit working on an HP3000 . . . I wrote video games for a few years. The target machine was an Atari VCS which had a 6502 microprocessor. The coding was all done in assembler and if you looked at any page of code, you would more than likely see several XOR 'FF' instructions. Lots and lots of bit testing took place and that instruction was indispensable. In any event, a friend who had made a pile treated himself to a new Porsche, and chose XOR FF as his plate.

A few weeks later, he got a note from the DMV rejecting the request. Some clerk somewhere figured he was trying to pull a fast one and sneak a sexual allusion onto his plate. He took a day off work, drove up to Sacramento and confronted the nay-saying clerk with a 4" thick listing of his work.

He got his plate. . . .


World's shortest joke: My friend Jack Schaedel reminded me of this one a couple of weeks back. It's two words long:
Pretentious? Moi?


Unequal enjoyment: Several days ago, I pointed out that the Sixth Amendment requires not just that the criminal defendant have certain rights, but also that he enjoy them:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
Reader Terrence Berres points out that this need not be true for all the trial participants, though; see Keplin v. Hardware Mutual Casualty Co., 24 Wis. 2d 319 (1964):
We have examined the pages of the record cited as illustrative of impatience and boredom by the court with the plaintiffs' evidence and fail to find any such impatience or boredom, much less error. While a trial judge should conduct a trial free from prejudicial error, there is no requirement he enjoy it.
How sad! But maybe in criminal cases, where the Sixth Amendment rights apply, the rule is more fair, and the judge, the prosecutor, and the witnesses must have a grand old time with the defendant's constitutional rights, too.


License plate puzzle: Saturday, I saw this license plate on the road:
What does it mean? I think I've guessed, though I didn't confirm it with the car's owner. Don't bother googling it -- the query yielded exactly one page (though it will yield more once this post is spidered), and though I can't understand what it means (it's in German), it doesn't seem too promising. My proposed answer is here.

UPDATE: Readers Gary O'Connor and Carter Wood report that the German "ghuket" is a term from late 19th century dialent spoken in Wittenthal, Baden, Germany -- it's apparently a form of "gucken," which means "to look" or "to see." No, I don't think that this is the likely explanation for the license plate.


How well do the classics sell? Barnes and Nobel Presents Book is a new periodical, new to me at least. The July/August issue lists the 50 Bestselling Classics over the last year (to read, google "How They Sell Now (Classic Bestsellers)", I don't have the code here to offer you the appropriate link, sorry!).

Number one is The Hobbit, which sold 542,000 copies in 2002. Next was Catcher in the Rye at 524,000 copies. To Kill a Mockingbird was fourth with 462,000, not bad for someone's first and last book. Atlas Shrugged comes in at number 19, 130,000 copies sold in 2002. To me, the list looks like it is driven by either school reading requirements or movies, Rand being one notable exception


Sundry bits from USA Today I've long been a fan of USA Today, a newspaper which places the market, and not the government, at the center of American life. I get to read it more when I am on the road (Jackson, Mississippi right now).

A few interesting tidbits from today:

Phone telemarketers are claiming that "do not call" lists could eliminate up to 2 million jobs (Money section). Are we really to believe that 2 million people are out there, doing nothing but calling those who don't want to be called? I know sometimes it seems so, but I would be embarrassed to cite such a statistic in public. And if somehow it were true, that would be an incredibly strong argument for do not call lists.

The Life section tells us that music sales are down, but not in all genres. Hard rock is up an incredible 232.1%. Jazz did well (up 21%), mostly because of Norah Jones. Most of the other genres are down for the year so far, with a range of six to eleven percent. Since moviegoing is down five percent, maybe downloading is not the major economic problem for the industry.

The Sports section cites Charles Barkley on TNT's Sportscenter, speaking of Kobe Bryant: "They say you face a jury of your peers, but I've never looked at a jury box and seen anyone I knew."


Uh-oh: Reader John Anderson points to this New York Daily News story (though keep in mind the usual warning not to believe everything you read in the papers; it's possible that the newspaper materially erred here, though I've heard no specific evidence of that):
Angela Lipsman is a really smart kid, but a really, really dumb rule is keeping the 15-year-old from getting a college degree.

Angela, who skipped high school and went straight to college last year, has earned her associate's degree and is on her way to a bachelor's -- but she can't have the sheepskins because she never got a high school diploma.

Even worse, the gifted girl's proud dad is being investigated by child protective services for alleged educational neglect -- for letting his daughter go to college.

"It's not fair," said Angela, who has a 3.84 grade point average and 71 credits from Borough of Manhattan Community College and Fashion Institute of Technology. "I'm still going to school and I'm still getting an education."

The hard lesson came from an Albany judge who ruled against Angela's age-discrimination suit challenging the state Education Department's edict that kids have to stay in school until age 16 and can't get general equivalency diplomas until they turn 17. . . .

"It's very demoralizing," said [Angela's father, retired teacher Daniel] Lipsman, who vowed that he'll "go to prison before my daughter goes to a city high school." . . .
Fortunately, "Schools Chancellor Joel Klein offered hope to Angela, who recently learned she has enough transfer credits for an associate's degree from Albany-based Excelsior College. 'We are evaluating the student's college credits to determine whether the credits may be applied toward a high school diploma,' Klein said in a written statement." So maybe some government official will actually show some sense here after all.

     I have a personal stake in this being resolved in Lipsman's favor, because it turns out that I'm in a similar position: I actually technically dropped out of school at age 12, in order to go to college. In fact, I have neither a high school degree nor a GED -- and despite that, they're actually letting me teach our nation's youth! Shocking, I know, but I hope the Authorities will let that slide.


Bad drivers and bad statistics: Following the death of 10 pedestrians who were hit by an 86-year-old driver who apparently lost control of his car, people have been talking again about imposing more requirements on older drivers. This might or might not be a good idea; I don't know enough about the subject to have an informed opinion. But the argument from this L.A. Times article struck me quite weak:
Here in New Hampshire, . . . the state strictly enforces one of the country's toughest laws governing older drivers [which apparently compels "anyone 75 or older to take a road test when renewing a driver's license"]. . . .

[Elvin] Frame spent his 76th birthday at the motor vehicles office here this week, taking the road test required of all drivers his age . . . . Statistics suggest that the law affecting every New Hampshire driver "reaching his or her 75th birthday" has been successful. Granite State motorists over 70 were at fault in 13 fatal crashes, 11% of last year's total, according to state figures. Nationally, drivers over 70 were responsible for 13% of last year's traffic fatalities."
Is there really a significant difference between this 11% and the nationwide 13%? Had there been two more New Hampshire traffic fatalities caused by over-70 drivers (out of the over 100 total traffic fatalities in New Hampshire), the averages would have been identical. These don't seem terribly probative numbers to me.

     Moreover, it's not even clear what the numbers are for the drivers who are affected by the law, which is limited to drivers over 75, not over 70. Finally, the law has been in effect, according to the article, since 1955. What have the statistics been in other years? Is the fraction of traffic fatalities caused by older drivers consistently lower in New Hampshire than in the nation as a whole? Or was this past year just a statistical blip? The article doesn't tell us. (I suppose it's possible that the traffic fatality data has only been broken down by age of the driver at fault starting this past year, but I doubt it, and the article doesn't say anything to this effect.)

     These sorts of numbers may seem impressive, but they really mean very little, especially when they (1) represent just one year, (2) show very small changes of the sort that can easily be caused by chance, and (3) don't even purport to measure the precise group that the law affects (over-75-year-olds). Even if none of these problems were present, we'd still have potential problems flowing from potential confounding factors (perhaps New Hampshire drivers are somehow different from the average American driver in other ways) -- but with these problems, the statistic, I think, is worse than useless.

Sunday, July 20, 2003


LawPreview on Monday at GW I will be giving my third and last 6-hour lecture on contract law for LawPreview tomorrow (Monday) at George Washington School of Law. If you are attending, let me know you are a Volokh Conspiracy reader.


The Tenor of the Second Amendment Debate Greg Goelzhauser offers a very thoughtful response to my guest blog on Glenn in which I post a link to my new paper on the Second Amendment: Is the Right to Keep and Bear Arms Conditioned on a Militia?. In my blog I make the following observation:
The new refrain is that, while the amendment does indeed protect an individual right, the exercise of this right is conditioned on the existence of and participation in a state militia. Curiously, the fact their position has changed is never acknowledged, but nevertheless they remain just as self-righteous in their new beliefs and just as acerbic as ever about individual rights scholars. This revised anti-individual rights view (along with the disparaging tone toward individual rights scholars) has most recently been presented in a book entitled, “The Militia, and the Right to Arms, or How the Second Amendment Fell Silent” (Duke, 2002) by H. Richard Uviller and William G. Merkel.
Greg highlights the language in bold and responds (in part):

I suppose my objection is to criticizing such a tenor in an abstract manner. If the new anti-individual rights scholarship deserves condemnation for "disparaging" remarks on the grounds that its hubris is not supported with evidence, by sound argument, etc., that's fine. But the Second Amendment scholarship has been dominated by scholars that have preferred to write in an almost condescending tone towards those in disagreement with them.

Hyman Roth once told Michael Corleone, "When I heard it, I wasn't angry...I let it go.... This is the business we've chosen...." Well, I think Professor Barnett should let this go. Such "disparaging" remarks, I think, can go a long way in making important points, despite their seemingly useless nature. The important thing to keep in mind is that they, alone, are not enough; the scholarship is what's important, the mode of delivery simply adds an artistic dimension. I suppose the chances of making my point clear are likely diminishing in proportion to the further increase of words in this post. But I think it important that the anti-individual rights group not be "called out" in this way, especially not in the context of the Second Amendment debate. If the tenor needs to change--I'm not so sure it does--it needs to be changed on both sides. . . .

If, as a scholar, your argument is met with a differing position putting forth "extreme confidence" that yours is wrong, when you hear it, don't be angry . . . let it go. This is the life you've chosen. If you're prepared to attack both sides, fine; if not, please, "let it go."

Even apart from the fact that he uses my all-time-favorite line from the Godfather series--one that I use often to make this exact point--this is an issue worth pondering. I once wrote an article responding to a vicious smear piece that happened to be published in the Boston University Law Review the main thesis of which was that individual rights scholarship was the product of an NRA conspiracy. My response (coauthored with Don Kates) was called, Under Fire: The New Consensus on the Second Amendment and was the first thing I ever wrote on the Second Amendment. After it was accepted, I instructed the articles editor at the Emory Law Journal to go through it and flag any rhetoric he thought was too sharp. I then excised 98% of what he had found. And STILL, in subsequent articles I was accused of using a nasty tone. This is an accusation never made of my work on any other subject.

So what to make of all this? To begin with, I think Greg is right. It is almost always better to remain calm and respond to ad hominum attacks with reasoned argument. Indeed, in my new article, I confine my mention of their tone to one paragraph on page 21 of 25 pages in a discussion of Uviller's and Merkel's repeated assertion that finding the right to arms to be an individual right unconditioned on the existence of the militia is a radical claim because such a right would not be subject to reasonable regulation. While they note in a footnote that Laurence Tribe, William Van Alstyne and Akhil Amar--to whom they refer as "the most respected members of the orthodox legal academy to embrace an individual rights reading of the Second Amendment"--acknowledge that the right may be regulated, they fail to mention that ALL academic individual rights scholars hold this position including the ones they repeatedly disparage. After supporting this claim, I then add:

One suspects they omit this fact about other individual rights scholars—who they never call “scholars” much less “respected”—so they can repeatedly belittle them as “advocates,” (cite) or a “dedicated band of individual rights advocates,” (cite) or “a growing entourage of individualist interpreters of the Second Amendment.” (cite). Indeed, when mentioning historian Professor Joyce Malcolm, whose book To Keep and Bear Arms: The Origins of an Anglo-American Right was published by Harvard University Press, they go so far as to mention that Bentley College where she teaches is “an undergraduate business school in Massachusetts.” Though individual rights scholars have come to expect such cheap shots from their academic opponents, it still disappoints.
Presumably, by page 21 of evidence, this remark about tone will not be perceived as itself inappropriately sharp. After reading the whole book with its gratuitous insults, it seemed pretty restrained to me.

Nevertheless, Greg was commenting on my blog, not my paper, and his overall point is worth making and, as a writer, remembering--even though it is sometimes very hard not to let oneself be provoked by the tone of one's intellectual opponents and then respond in kind.

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