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Saturday, August 09, 2003


Pacific Bell Sues Recording Industry for Customer Privacy You can read the press release from the Electronic Frontier Foundation here. Here is an excerpt:

The Electronic Frontier Foundation today applauded a lawsuit brought by Pacific Bell Internet Services against three organizations that are manipulating copyright laws to violate the privacy of ISP customers.

The case concerns 97 subpoenas directed to Pacific Bell over the past two weeks. The Recording Industry Association of America (RIAA) has issued thousands of subpoenas to various ISPs, seeking the identity of music fans who use peer-to-peer (P2P) file sharing networks.

The lawsuit alleges that the RIAA, along with MediaForce, a company that issues millions of "cease-and-desist" letters to ISPs, and Titan Media, a gay-themed adult entertainment company, have distorted certain provisions of the Digital Millenium Copyright Act (DMCA) in an attempt to force Pacific Bell to breach its customers' privacy.

Pacific Bell seeks a declaration from the court that any further subpoenas and cease-and-desist letters for peer-to-peer file sharing activity must follow some court-established safeguards ensuring that there is some evidence of illegal activity before divulging personal information about ISP customers.

"The misuse of the subpoena process by an adult entertainment company emphasizes the potential for abuse with insufficient privacy protections in the law," explained EFF Legal Director Cindy Cohn. "Without vetting by any court, companies can issue subpoenas that disclose the identities of targeted individuals and link their names to gay-themed adult porn, making it impossible for them to regain their privacy later even if the allegations are patently false."
Links to related documents are provided there, including this one to the complaint.


Carpal Tunnel: I had some carpal tunnel problems last Fall, which mostly resolved themselves after cortisone injections and replacement of my keyboard with a Kinesis Classic ergonomic keyboard, and of my mouse with a 3M Renaissance Mouse. I recommend both products. (My orthopedist was eager to do surgery, and didn't even bother recommending ergonomic products).


Can North Korea blackmail us? Assume that the North Koreans want nuclear weapons to blackmail the United States, and not just for deterrence. They offer to sell us a nuclear weapon for $100 billion, or, if we decline to buy, to sell it to al Qaeda for $1 million. Would we buy?

Now attacking them might appear to cost more than paying up. But I think the US would have to attack. The North Koreans may play the game repeatedly, others might follow in their footsteps, and we would figure we just have to take our chances. At least we would have advance warning of a possible nuking and could step up security, if they hand off the nuke before we take them down. And I think an American President could credibly signal that such an attack would be forthcoming (of course this is tougher if we elect a wimp), think of this as one argument for having invaded Iraq (note: perhaps we should be happy that WMDs in Iraq are scarce, it shows we are really tough and will attack on all sorts of pretexts, though it could make the next preemptive attack politically more difficult to market to voters).

The same attack response follows if North Korea announces the same deal but with the lower nuke hand-off probability of 0.99. Or 0.98. We simply have to attack.

So this will deter the North Koreans, at least if they are not crazy.

Now, is there any low probability of handover where we would pay up rather than attack? What if the probability of handover is 000.1? The probability might already be this high, and of course we haven't attacked to date.

So if the threat is subtle enough, and low enough, we pay them (we already pay Egypt not to attack Israel, don't we?) rather than attacking.

Of course the smaller the chance of a handoff, the smaller a sum they can extract. So it might be a sum we could live with, of course it would be disguised so as not to outrage the American public. Merrill Goozner argues that aid has deterred North Korea's nuclear ambitions in the past (this piece also offers good criticisms of the preemptive strike idea).

Given that we pay the North Koreans under this scenario, why should they hand over a nuke to al Qaeda? They would be endangering their gravy train.

The general logic is this: if a country is already very poor and desperate, just start paying them, so they want to keep you around. If they are not poor and desperate, they have enough to lose to keep them in good behavior.

Of course all this falls apart if the North Koreans (or whoever) are just crazy, I hope to return to that scenario soon, but if the North Korean problem is only that -- fear of craziness -- we can be reassured just a bit, although of course your taxes will go up.

That's the optimistic scenario for the North Korean case. Your thoughts are again welcome.


Primitive warfare, or a cure for your depression over nuclear proliferation Lawrence Keeley's War Before Civilization will make you feel better about today's world. He argues that participation in primitive warfare, in proportional terms, is often deadlier than participation in modern warfare. Plus primitive warfare can be more ruthless, arbitrary, and frequent. For a summary of the book, read this.

Friday, August 08, 2003


A little bit of soccer -- er, football -- humor: From Layman's Logic:
It's important to have goals in life. It's just unfortunate so many of mine are own-goals....


Slate-watch: InstaPundit points out that "The Volokh Conspiracy has become Slate-watch," and in a sense that's true: I've often posted criticisms of Slate pieces. But that's largely true because I read Slate so often, probably more often than any other non-blog news and commentary source. I do often find things I disagree with there, and I'm happy to criticize them. But on balance, the frequency of my criticisms of Slate flows largely from my generally liking it enough to keep reading it.


The meaning of words: A reader writes, apropos my post on the "traitor" libel lawsuit:
You write:
The site makes clear that by "traitor" it means those people who "do not support our President's decisions."
Lewis Carroll writes:
When I use a word," Humpty Dumpty said, in a rather scornful tone, "it means just what I choose it to mean -- neither more nor less."
Is this considered judicial doctrine now? As long as you make clear that even though the words you use are actionable, what you mean by them is not, anything goes? Can I shout, "FIRE! By which I mean the Holy Spirit!" in a crowded theater? May I walk up to you in a dark alley and demand, "Your money or your life!" as long as I come up with some more benign interpretation of the phrase to tack on? Can I define "k.i.l.l." to mean "konquer in 'lectoral landslide" and go around talking about politicians of various stripes?
     The reader is of course right that words do have meaning, and the law must recognize their meaning. But it's a mistake to infer from this that words have only one meaning, that's unchanging across contexts. It is a fact of social life that the word "traitor" means different things in different situations. Sometimes it means someone who has committed the crime of treason. Sometimes it means someone who you think has violated some moral obligation (that's how "traitor" was used in the labor context, in the Austin case). Sometimes it means someone who you think is working, albeit perfectly lawfully, against the interests of his country.

     Perhaps it would be better if human language, as it was actually used, was more rigid and unambiguous, with different words always being used to capture these different meanings, and with no-one ever speaking figuratively or hyperbolically. But that's not the way human beings actually talk. And the law is built for humans, not Vulcans, and it recognizes the reality of what words actually mean to listeners, not what they should mean.

     So the question is (usually) how the reasonable listener would understand the words. Sometimes the understanding is influenced by context: If someone shouts "FIRE!" in a crowded theater in which there is no fire, but that someone is an actor, and the audience is likely to realize that this is just a line in a play, then that's not punishable. Likewise, in some contexts "traitor" is likely to be seen as hyperbole, and in others it's likely to be seen as literal. Sometimes it's influenced by shared dialect or language: If a word means one thing in British English and another in American English, the law (whether libel law, contract law, threat law, or what have you) will generally turn to the dialect that reasonable listeners would have understood the statement to be in, and not (say) categorically assume that all cases in American courts must interpret words in their American English meaning. And sometimes it's influenced by clearly expressed words that are likely to be processed and understood by the listener. (The problem with the "By which I mean the Holy Spirit!" hypothetical is that we rightly fear that listeners would panic after the "FIRE!," and not hear the qualifier.) The reader is right that the unexpressed spin that exists entirely in the speaker's head will likely not affect how the law interprets the statement -- but the likely reactions of listeners will affect this.

     To some, this might sound post-modern, or a subjectivist denial of objective standards. A funny thing to hear from a conservative, they might conclude. But if this is indeed a post-modern view (and I'm not sure quite what that term means), then (1) the post-moderns are quite right here, and (2) they surely weren't the first to discover this. Sure, some people make too much of the ambiguity and context-sensitivity of language. But in our reaction to their error, we ought not commit the opposite error of ascribing to words a fixity of meaning that the words do not indeed possess in real human interactions.


Update on the Protocols of the Elders of Zion controversy (see several posts down), from The Daily Cal:
An Arabic-language student accused a UC Berkeley graduate student instructor Wednesday of teaching anti-Semitism.

UC Extension student Susanna Klein alleged that Near Eastern Studies graduate student instructor, Abbas Kadhim, said "The Protocols of the Elders of Zion," a document Nazis used as propaganda against the Jews, was written by Jews and was not a forgery, as many historians believe.

"The Protocols of the Elders of Zion" is a set of minutes printed in 1897 purportedly from a meeting of Jewish leaders intending to take over the world.

"By making such a statement, Mr. Kadhim spreads potentially dangerous anti-Semitic propaganda," Klein wrote in a letter to Ralph Hexter, executive dean of the College of Letters and Science.

Other students in Kadhim's Arabic language class disputed Klein's allegations, saying he was simply presenting a viewpoint held by many Iraqis.

"I was explaining the conventional wisdom of Iraqis in a social context," Kadhim said. . . .

Several other students in the class also submitted a complaint, about Klein, however, claiming she was disruptive and that she also accused classmates of being anti-Semitic on several occasions.

Klein is affiliated with DAFKA, a pro-Israel group on campus. In April, Klein was cited on suspicion of battery by UC police during a pro-Palestine rally.

Police said she dressed up as a suicide bomber and spat on a student during the rally, in which she said she felt threatened when she was physically restrained from walking through Sproul Plaza.

She appeared to be "extremely belligerent," wrote one student in the complaint to the chair of the Near Eastern Studies Department.

But peers described Klein as a brilliant student. She maintained an "A" in the course, and if she stays enrolled, she is on her way to a 100 percent in the class, Kadhim said. . . .


Communist movie review in Slate: Well, not really -- but it seems about as Communist as the movie that it describes (S.W.A.T.) is "fascist," a term used by the Slate front-page headline ("The cop movie S.W.A.T. marries fascism and political correctness") and twice by the article itself. Curiously, though, there's not a thing in the review's description that remotely supports the charge of "fascism," even in the loose sense of "lack of regard for people's constitutional rights." (The closest that it comes is in the phrase "[The movie] makes jokes about the loss of civil liberties, but it's only the criminals who get holes blown in them"; the review doesn't describe the jokes, though, which makes it hard to be sure that they are indeed particularly "fascist.")

     The Samuel L. Jackson character is described "as the avuncular fascist commander" -- but the review says nothing that explains why he's fascist. The review's last paragraph says "I was all revved up to have a whale of a fascist good time, and S.W.A.T. left me let down and pissed-off"; but why exactly was this so, even as a joke? My vision (perhaps incorrect, but as I understand it quite conventional) of S.W.A.T. is that it's supposed to let the police kill the bad guys who are holding hostages, without killing the hostages -- hardly a terribly fascist approach, which would lead me not to expect "a whale of a fascist good time" from a movie about S.W.A.T. If there is anything actually fascist (even in a figurative sense) in the movie, the review surely doesn't give us anything.

     Oh, come on, you might say; obviously "fascist" here is just hyperbole here, used for humorous effect. It doesn't really mean "following the views of Mussolini or Franco" or even "violating civil liberties." But what then does it mean? What is the idea or attitude that the highly pejorative term "fascist" is now being used to describe, even jokingly (and if it is a joke, it's a joke that's hostile to whatever attitude is being described)?

     As best I can tell, this attitude is no more and no less than the unabashed use of force in defense of innocent people (whether oneself or others). That, after all, is what S.W.A.T. is supposed to be about -- the use of force against criminals in defense of the innocent victims whom the criminals are at that very time threatening. Nothing in the review suggests otherwise; in fact, all the factual descriptions (e.g., that the S.W.A.T. people are shooting at criminals who are armed with "rocket launchers and M-16s") suggests that the use of force in defense of innocent people is all that's going on here.

     Moreover, consider even the review's reference to women using guns to defend themselves against rape (emphasis added):
I even curled up with S.W.A.T. magazine the other day. It's not related to the film; it's just for SWAT guys and wannabe SWAT guys. It has a great ad for M-6 tactical laser illuminators with a picture of a pretty blonde in a nightgown sitting up in bed with her laser sight on some creep in the shadows -- it's like, "Rape this, scumbag." The actual caption is, "Protect What's Yours" -- which could either mean "your woman" or, in the unlikely event the reader is a female, "your maidenhead."
Is it just me, or is the reference to "your maidenhead," with its quaint odor of Victorian obsession with virginity, meant to be derogatory? My suspicion is that pretty blondes (or for that matter ugly brunettes) in nightgowns who pull a gun on some creep in the shadows feel that what's "theirs" is their body and their right to control that body, which is worth protecting whether or not the body still contains a maidenhead. And my view is that they'd be right to feel this, and that the proper response to their defending themselves should be praise, not snideness. Or would only fascists think such things?


Federal criminal appeals: Lawprof Eric Muller at IsThatLegal? points out an important error in an Associated Press story about a recent Justice Department initiative. (I'm not an expert on this particular detail, but my understanding matches Eric's on this, and I've generally found Eric to be a highly trustworthy source):
Today's Associated Press story about John Ashcroft's program to keep tabs on lenient judges has a significant error in it. The story reports that "[t]he effect of the [program] will be to shift most decisions on whether to appeal a sentence that is less than called for in the sentencing guidelines from federal prosecutors to Justice Department lawyers in Washington."

This is false. It has always been the case that "Justice Department lawyers in Washington" have made the decision about whether to file any sort of appeal in a federal criminal case, including an appeal of a sentence. Here's how the process worked when I was at the US Attorney's Office in Newark, NJ, from 1990-1994: after an adverse decision in a federal district court, I had to prepare a lengthy memo making the case for an appeal and submit it to the Chief of the Appeals Division in my office. She, in turn, had to get the approval of the U.S. Attorney himself. Then the memo was sent to the Appeals Section of the Justice Department's Criminal Division in Washington, DC. An appellate attorney would prepare his own memo, using my memo as a basis, but commenting extensively on the advisability of an appeal in the broader context of the Justice Department's overall enforcement strategies. Both of those memos would then go to a lawyer in the Solicitor General's Office, who would prepare another memo on the same question and make a recommendation (appeal or no appeal) to the Solicitor General. The Solicitor General would then receive the entire stack of memos and would decide whether or not to appeal.

And that was the process for every single case in which I, as a line Assistant, thought an appeal was advisable.

I don't know the statistics, but in my personal experience we were forbidden from appealing more often than we were allowed to do so.

This program of Ashcroft's is creepy, to be sure. But it does not transfer power to Washington. That's where the power has always resided.


Schwarzenegger and libel law: A Newsweek snippet says:
Many juicy tales of Schwarzenegger's alleged “zipper problem” are filed and ready, says the operative, but have been held for legal reasons. That could all change if Arnold enters the race -- once he's a potential "public official," it will get harder for the famously litigious star to sue for libel. . . .
I don't think this is quite right, because Schwarzenegger is already a public figure -- he's both a household name because of his bodybuilding and movie career, and someone who was already involved in politics (via a California ballot measure for which he led the campaign a few years back, and also via service on politically appointed, though mostly philanthropic, organizations). All high-level public officials and candidates for public office are treated as public figures; but so are other people who are as famous as Schwarzenegger.

     However, I suspect that the article's general point -- that Schwarzenegger will now be unlikely to sue his critics for libel -- ends up being true, but for a different reason: I suspect that such lawsuits will be damaging to Schwarzenegger's campaign, because they'll focus media attention on the original allegation; one story (Schwarzenegger had sex with so-and-so) becomes two (Schwarzenegger had sex with so-and-so, and now he's suing) or even three (Schwarzenegger had sex with so-and-so, now he's suing, and people are alleging that he's trying to silence his critics in violation of their First Amendment rights). Any benefits of self-vindication, or of deterrence, will be swamped by these substantial short-term costs.

     In other campaigns, libel lawsuits would also be potentially damaging because they'd allow some pretty broad-ranging discovery, which might uncover other things that Schwarzenegger might not want to air; with a campaign this short, though, this would probably be less of an issue.

     (Thanks to reader Jackie Treehorn for pointing me to the Newsweek piece.)


Treason, and this date in history: Matt Rustler points out that
[O]n August 8, 1942, six of the petitioners in the famous case of Ex parte Quirin [the Nazi saboteurs] were executed. . . .

[T]he first group of the men landed on June 13, 1942 near Amagansett, New York. The last of them were arrested on June 27. At some intervenining point a military tribunal sentenced them to death. On July 29, the Supreme Court heard their motions for leave to file petitions for habeas corpus. The opinion denying those motions was handed down on July 31. And on August 8, six of them were executed. . . .


Citation Counts: Brian Leiter of the University of Texas law school recently released a ranking of the top 40 law faculties based on per capita citations to faculty scholarship. He also noted six problems with relying on citation counts as a proxy for scholarly distinction:

(1) "First, there is the industrious drudge: the competent but uninspired scholar who simply churns out huge amounts of writing in his or her field." ....

(2) "Second, there is the treatise writer, whose treatise is standardly cited because like the output of the drudge it is a recognized reference point in the literature. Unlike the drudge, the authors of leading treatises are generally very accomplished scholars, but with the devaluation of doctrinal work over the past twenty years, an outstanding treatise writer--with a few exceptions--is not necessarily highly regarded as a legal scholar."

(3) "Third, there is the 'academic surfer,' who surfs the wave of the latest fad to sweep the legal academy, and thus piles up citations because law reviews, being creatures of fashion, give the fad extensive exposure." ....

(4) "Fourth, there is work that is cited because it constitutes 'the classic mistake': some work is so wrong, or so bad, that everyone acknowledges it for that reason." ....

(5) "Fifth, citation tallies are skewed towards more senior faculty." ....

(6) "Sixth, citation studies are highly field-sensitive. Law reviews publish lots on constitutional law, and very little on tax." ....

I'm pleased to note that my own law school, George Mason, did very well (number 23) in this study, even though we don't have any drudges, are very low on treatise authors, are unusually immune to academic fads (unless you still think law and economics is a fad), don't have a "classic mistake" figure on our faculty, have disporportionately few senior faculty, and are disproportionately interested in undercited private law areas.

Update: My former student Jon Klick adds in an email that GMUSL has three of the world's most cited economists, Dick Ippolito, Gordon Tullock, and Nobel Prize winner Vernon Smith, on its faculty, a fact undervalued in Leiter's law review citation survey.


More on nukes Reader Avi Klein recommends this book for containing key essays on nuclear proliferation.

I continue to think about the problem. At some point, victims of tyrants could deter the tyrants, Kuwait with a nuclear weapon could have deterred Saddam, though the thought of hundreds of nuclear powers remains a scary one. But if no one is crazy (a big if), the biggest effect might be to lock in the status quo in various ways.

Or imagine American splinter groups using deterrence. A wealthy American philanthropist (or radical Israeli settlers?) could "seed" nuclear groups, which would hold the bad guys of the world hostage. If al Qaeda can be independent of a state power, and thus non-deterrable, other more benevolent [sic] forces can be as well. You might challenge or wonder whether American groups could be viewed as independent of their state in the same way.

My biggest fear with nukes involves a kind of demonstration, copycat, or mimetic desire effect. Once someone nukes a city or port for terrorist reasons, the whole idea is suddenly more imaginable and many groups start trying. I know this doesn't make sense in most rational choice models, but I think it is often how the world works. (Ask yourself: why did the Chilean reforms spur liberalization throughout Latin America?...only some of it was competition for capital flows.) One of the worst things about al Qaeda is simply that they got everyone else thinking about the possibilities.

If you try to model it, rational deterrence doesn't work either, try watching Dr. Strangelove, why bother retaliating once you have been zapped? But in worked in practice, at least so far. A key question is how people frame the issue of what is legitimate, or within the realm of the possible, and here game theory is far behind in trying to understand the world.

I hope to write about the North Korea "game" soon.

In the meantime, if it is any consolation, primitive warfare was a scary business too.


American progress in Iraq Very astute reader Gary Haubold referred me to this article from the Washington Post. The upshot is that the bounty price for killing an American soldier in Iraq seems to have gone up from about $1000 to $5000.


Beowulf's Children: Just finished rereading Beowulf's Children, by Larry Niven, Jerry Pournelle & Steven Barnes, and was reminded what an excellent science fiction book it was. Just as good as Legacy of Heorot, to which this is the sequel. Highly recommended.


Protocols of the Elders of Zion: An item yesterday at reports the following letter from a UC Berkeley student; a reader e-mailed the link to me, so I assume that quite a few others have seen it, too:
Dean of Letters and Sciences
University of California at Berkeley Campus

Dear Sir,

I am writing to call your attention to an incident that occurred August 6, 2003 during the Iraqi Arabic (Arabic15) class, in which I am currently enrolled. The instructer, Abbas Kadhim, announced before the entire class during a discussion on Zionism that he believes that the infamous text "The Protocols of the Elders of Zion" is not an anti-Semitic forgery but was in fact written by Jews.

"The Protocols of the Elders of Zion" was a forged text supposedly written by Jews. In it, the Jews describe a plan of achieving world domination. All reputable historians consider the document to be a forgery perpetrated by the Tsar's secret police.

I asked Mr. Kadhim if he was being serious about his claim. He assured me that he was one hundred percent certain in his belief that Jews were behind the "Protocols." By making such a statement, Mr. Kadhim spreads potentially dangerous anti-Semitic propaganda.

I say "propaganda" because for over a century the forgery was used to justify and encourage anti-Semitism to the point of killing Jews: The "Protocols" led to violent pogroms in Tsarist Russia, and Hitler incorporated much of the "Protocols" in his Mein Kampf to prepare the German public psychologically for the Final Solution.

I am disgusted that UC Berkeley is giving a forum to an ignorant, anti-Semitic, and prejudiced individual such as Mr. Khadhim to voice his views. I request that the University of California investigate the matter forthwith and dismiss Mr. Kadhim from its staff.


Susanna Klein
I e-mailed the instructor involved, and got the following response (quite promptly, actually):
Dear Professor Volokh,

Thank you for your e-mail. I am encouraged that there are people who still check the facts before riding a wave.

The reference to the Protocols was not part of the core of the class material. It came about as a result of an un-invited monologue by Ms. Klein, as I was explaining the social of the "Iraqi oaths" for students. I was merely telling the students about the Iraqi conventional wisdom, as opposed to the other side.

As you know, this issue of authenticity and the identity of the author -- or authors -- of the Protocols has not been settled between the Middle Eastern disputants (that is to say, no one said to the other, "you are right.").

The noise between Egypt and Israel about the TV show (A Knight without a Horse) recently is only one good example. The show presented the conventional wisdom which I mentioned. It was not endorsed by the government of Egypt, but by many Arab intellectuals and the masses.

I am not in the business of endorsing one view over the other, at least in that debate that happened in the class.

Being misunderstood is a frequent risk all of us, teachers, have to run. It is interesting however, that in a small room, only one student heard one thing and all other students heard another!!!


Also, please take a look at this article that has a reference to the student who made the claim (The last paragraphs).
Who's right and who's wrong about what was said, and how it was meant and understood by most students? I don't know, but I thought I'd present both sides' statements.

Thursday, August 07, 2003


Pumping Iron: Slate describes this as "the movie Arnold doesn't want you to see," presumably because it shows Schwarzenegger as "swaggering, comically vain" ("I was always dreaming about very powerful people, dictators, people like Jesus, being remembered for thousands of years"), "an unscrupulous bully with a mighty mind for head games," and so on. (The story says that "Schwarzenegger, however, takes pains to point out how much he was acting the part of the villain. 'I played the kind of Germanic machine,' he says now. 'I tried anything and everything to look like this evil guy.'" But it also expresses some skepticism about that.)

     It's been a while since I watched Pumping Iron, but if my recollection is correct, then the "movie Arnold doesn't want you to see" line seems to be misplaced. This is a movie about a 1975 bodybuilding competition. Schwarzenegger turned 28 in July 1975. He was at a self-obsessed age, in a self-obsessed field, living in a self-obsessed era. Vanity came with the territory, and a bit of unscrupulousness, too.

     When a 56-year-old politician comes across as vain and an unscrupulous bully (as too many do), that's bad. But I doubt that it would mean much to people that he was this way when he was an ambitious young man. Moreover, the classic suspicion about actors and bodybuilders is that they're airheads; Pumping Iron makes pretty clear that Schwarzenegger was never that.

     The real question that some voters will ask themselves is: How did Schwarzenegger change between 28 to 56? Here, actually, the Schwarzenegger persona shows signs of mellowing in just the right way, retaining the apparent strengths while shedding some of the weaknesses. The ridiculous physique of the bodybuilder has apparently mellowed to the solid physique of the actor, which seems to signal self-control as well as physical strength. Vanity has apparently mellowed into self-confidence, or at least a screen persona that conveys self-confidence. Craftiness in dealing with other bodybuilders has apparently mellowed into a considerable degree of business acumen. Ambition in what is seen as a silly field has mellowed into ambition in a worthier field (films) and now into ambition in another worthy field (politics). Viewing Schwarzenegger's life through the lens of Pumping Iron may actually yield a fairly flattering image, an image of a man who has grown up, harnessing the virtues of his youth while (perhaps) suppressing his vices.

     None of this, of course, necessarily has anything to do with what Schwarzenegger's character is really like; I have no idea about that. I'm speaking here of his persona -- the way he presents himself to the world. But he has so far seemingly done a pretty good job of managing that persona; and I doubt that it would be undermined by Pumping Iron, even if every California voter decided to see it.


Burning My Bridges: I guess this will ruin my chances of a federal judgeship (hah hah) but the Ashcroft Justice Department is turning into a disaster. Let's see: little respect for state sovereignty (medical marijuana, same sex marriage, etc.), attempts to deny American citizens charged with terrorism-related offenses and arrested on U.S. soil access to federal courts, use and abuse of antiterrorism statutes for unrelated law enforcement purposes, and, as Instapundit reports, a nascent crackdown on that ever-present threat to American society, the pornography industry, in the middle of what is supposed to be a war on terrorism. Geez. At least judicial nominations seem reasonably sound, though I can't say I've followed them closely.


Is Medical Marijuana More Dangerous than Steroids? Jacob Sullum of Reason welcomes Arnold into the race, noting evidence that the Terminator has libertarian sympathies. And I'm wondering whether Arnold's history of steroid use would make him something less than an enthusiastic drug warrior. If so, this would be a huge positive, as the drug law reform movement needs a big state governor willing to stand up to the federal government's attempts to nullify state liberalization efforts.


Libel suit over someone calling a former Senator a "traitor": James Abourezk, a former U.S. Senator from South Dakota (for whom, incidentally, Tom Daschle used to work back in the 1970s), is suing the operator of for calling him a "traitor." If he can show that he's not guilty of the crime of treason, and the site operator knew that the "traitor" allegation was therefore false, then he'll win, yes?

     Well, no. "Traitor" is sometimes a factual allegation (this person performed certain actions that constituted the crime of treason), but it's often just a statement of opinion that "I think this person isn't patriotic enough." And the law recognizes that the same word may mean different things in different contexts. If the word will be understood by the reasonable reader as a factual allegation, then the accusation may be libelous (if it's false). But if it will be understood as a value judgment, with no embedded false factual claims, then the accusation isn't punishable. (See also this post, which made this point about a month ago, obviously outside the context of the Abourezk lawsuit.)

     The Supreme Court has explicitly held this, in Letter Carriers v. Austin, and also (as to allegations of "blackmail") in Greenbelt Pub. Ass'n v. Bresler. I quote from Austin:
Appellees . . . argue that the publication here may be actionable under state law, basing their claim on the newsletter's publication of Jack London's "definition of a scab." Appellees contend that this can be read to charge them with having "rotten principles," with lacking "character," and with being "traitor[s]"; that these charges are untrue; and that appellants knew they were untrue. The Supreme Court of Virginia upheld the damages awards here on the basis of these charges.

We cannot agree. We believe that publication of Jack London's rhetoric is equally entitled to the protection of the federal labor laws. The sine qua non of recovery for defamation in a labor dispute . . . is the existence of falsehood. . . . But, in our view, the only factual statement in the disputed publication is the claim that appellees were scabs, that is, that they had refused to join the union.

The definition's use of words like "traitor" cannot be construed as representations of fact. As the Court said long before Linn, in reversing a state court injunction of union picketing, "to use loose language or undefined slogans that are part of the conventional give-and-take in our economic and political controversies -- like 'unfair' or 'fascist' -- is not to falsify facts." Such words were obviously used here in a loose, figurative sense to demonstrate the union's strong disagreement with the views of those workers who oppose unionization. Expression of such an opinion, even in the most pejorative terms, is protected under federal labor law. . . .

Appellees' claim is similar to that rejected by the Court recently in Greenbelt Cooperative Publishing Assn. v. Bresler. There, petitioners had characterized the position of the respondent, a public figure, in certain negotiations as "blackmail," and he had recovered damages for libel on the theory that petitioners knew that he had committed no such criminal offense. The Court reversed, holding that this use of the word "blackmail" could not be the basis of a libel judgment . . .:

"It is simply impossible to believe that a reader who reached the word 'blackmail' in either article would not have understood exactly what was meant: it was Bresler's public and wholly legal negotiating proposals that were being criticized. No reader could have thought that either the speakers at the meetings or the newspaper articles reporting their words were charging Bresler with the commission of a criminal offense. On the contrary, even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered Bresler's negotiating position extremely unreasonable."

It is similarly impossible to believe that any reader of the Carrier's Corner would have understood the newsletter to be charging the appellees with committing the criminal offense of treason. As in Bresler, Jack London's "definition of a scab" is merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members towards those who refuse to join.
The rules under libel law are generally the same as the rules the Court discussed above; and under those rules, and other similar speakers should win. The site makes clear that by "traitor" it means those people who "do not support our President's decisions." Readers would understand that -- as is often the case -- the site is expressing a moral opinion about those who don't support the President's decisions, rather than making a factual claim about criminal actions that they have allegedly committed. I don't approve of the site's rhetoric; but its operators have a constitutional right to engage in it.

     The defendants' brief, by the way, seems to me to quite good and quite persuasive.


Behavior that gets rewarded, gets repeated: Spam is sent because spam works; according to Wired News,
A security flaw at a website operated by the purveyors of penis-enlargement pills has provided the world with a depressing answer to the question: Who in their right mind would buy something from a spammer?

An order log left exposed at one of Amazing Internet Products' websites revealed that, over a four-week period, some 6,000 people responded to e-mail ads and placed orders for the company's Pinacle herbal supplement. Most customers ordered two bottles of the pills at a price of $50 per bottle.

Do the math and you begin to understand why spammers are willing to put up with the wrath of spam recipients, Internet service providers and federal regulators.

Since July 4, Amazing Internet Products would have grossed more than half a million dollars from, one of several sites operated by the company to hawk its penis pills.

Among the people who responded in July to Amazing's spam, which bore the subject line, "Make your penis HUGE," was the manager of a $6 billion mutual fund, who ordered two bottles of Pinacle to be shipped to his Park Avenue office in New York City. A restaurateur in Boulder, Colorado, requested four bottles. The president of a California firm that sells airplane parts and is active in the local Rotary Club gave out his American Express card number to pay for six bottles, or $300 worth, of Pinacle. The coach of an elementary school lacrosse club in Pennsylvania ordered four bottles of the pills.

Other customers included the head of a credit-repair firm, a chiropractor, a veterinarian, a landscaper and several people from the military. Numerous women also were evidently among Amazing Internet's customers.

All were evidently undaunted by the fact that Amazing's order site contained no phone number, mailing address or e-mail address for contacting the company. Nor were they seemingly concerned that their order data, including their credit card info, addresses and phone numbers, were transmitted to the site without the encryption used by most legitimate online stores.

"There was a picture on the top of the page that said, 'As Seen on TV,' and I guess that made me think it was legit," said a San Diego salesman who ordered two bottles of Pinacle in early July. The man, who asked not to be named, said he has yet to receive his pills, despite the site's promise to fill the order in five days.

A former employee of Amazing Internet Products, who requested anonymity, reported the company's tendency to expose order log files to Wired News. The file was viewable by anyone with a Web browser who truncated one of the Internet addresses published by the company. . . .
Thanks to reader Gary Haubold for the pointer.


Kaus on Schwarzenegger:
The central question of the hour, of course, is the size and composition of the giant mound of tabloidy scandal material that's about to be dumped on his head, and whether A.S. gets caught in a tangle of lying trying to respond. . . .


Legal tender, again, but probably for the last time: I've gotten a flood of e-mail about legal tender. Some people pointed to a Department of the Treasury FAQ, which confirmed that a vendor who operates on a pay-first system can refuse to do business with people who offer bills that it dislikes, but wasn't completely clear whether a vendor on a pay-after system has to take any bills in discharge of a debt. Others asked what the vendor's obligation with regard to change might be; can it just refuse to give change? Can it take the large bill and promise to send the change later, when it has it? I don't know the answers to that, except I do know that I'm glad I mentioned up front that my sense was "more an educated guess than the product of real research" (especially since the item below suggests I was at least partly requested).

     However, let me close this topic with a message from Joseph Sommer, who's actually a lawyer with the Federal Reserve Bank, and knows his money law very well:
You're right on the "pay up front" part of your answer. A person can always turn down a legal tender, that comes in as an offer. There's a recent case cite for this: Nemser v. New York City Transit Authority, 530 NYS 493 (Sup. Ct. 1988). Some cranky soul tried to get on a bus with a dollar, rather than a token that cost a dollar. He lost.

You're wrong on the "then pay" part of your answer. A legal tender may be rejected even after the payee has performed, and a rejected legal tender does not discharge the obligation. All that happens with a rejected legal tender is that "interest . . . ceases to accumulate . . . parties secondarily liable are discharged and securities on property
are lost." Herman Oliphant, the Theory of Money in the Law of Commercial Instruments, 29 Yale LJ 606, 609 (1920).

Corbin on Contracts has some pretty good background on all this, when he discusses discharge of contractual obligations. Hayek had a pretty good appreciation of what was going on, in his "Denationalisation of Money" book. So did J. Willard Hurst, in his book on money. The key to this all is that the US law of legal tender is private law, not public law. People are free to do what they want, as long as they face the consequences. Ultimately, an aggrieved party in only has a right to a judgment and subsequent enforcement. (This wasn't the case for Continental currency, but I digress).

There was an awful lot of serious commercial litigation on legal tender in the 19th century, when our monetary system wasn't all that well established. The Oliphant article is at the tail end of this. But then again, there were a lot of TV repair shops in the 1960's. Once the systems became sufficiently reliable, the legal tender cases dropped out of the courts, apart from the Nemsers and gold bugs of the world. And we take our TVs for granted these days.

There is one fascinating constitutional nexus here. Read UCC 4A-406(b). Try to reconcile this with Article 1, Section 10, cl. 1. Well--it's fascinating for money nerds, at least.
I haven't read 4A-406, and still have some questions: The chief, I take it, is that failure to pay in a casual retail transaction is often enforced not through threat of lawsuit, but through threat of arrest. If you don't pay for your meal at a restaurant, the owner may call the police to arrest you, or in theory may even try a citizen's arrest himself. What if you offer to pay with a $100, and then when the restaurant balks, say, "OK, if you won't take my money, I'm leaving, though here's my address in case you want to sue me for the rest"? (Or is this where the restaurant's legal right -- if it has this right -- to take the cash and promise to give me the change later kicks in?)

     In any event, I think I have to quit this topic; need to do some real work. Still, this is a reminder of how some even very simple-seeming legal concepts ("cash is legal tender") can end up being quite complicated -- sometimes because the law is needlessly complex, but sometimes because the world itself is pretty complex.


Apologetically, a new e-mail policy: I try to at least skim each e-mail I get, and until now, I've been trying to respond to each, since not responding to an e-mail has always felt rude to me. I'm afraid, though, that I'm getting so many messages that I have to reluctantly stop responding to most of them. I sincerely apologize for that -- as I said, it feels rude to me, even with this announcement. Still, if I'm to keep blogging (and to keep actually doing real work, too), I think this is what I have to end up doing. So please forgive me if you send a message and receive no response -- and please do keep sending messages, since many of them end up being fodder for future posts. Sorry, and thanks for reading.


Problems with nuclear proliferation Following up on my blog post from yesterday, I can see at least three major problems with continued proliferation:

1. Sheer numbers. The more people control nuclear weapons, the greater the chance of a madman (or a "sane" man, but who pursues destruction, if I wish to tip my hat to economic terminology). One correspondent pointed out that we should trust the conservatism of committees more than individuals, thus North Korea is an especially great danger, Saddam was too.

I agree with the logic here, but if this is the only problem I am not in a total panic.

2. Detectability. The greater the number of nuclear powers, the harder it is to tell who gave al Qaeda the nuke they snuck into Port Elizabeth. Could we credibly threaten to nuke three countries, if we were not sure which one did it? On the other hand, could something like this really remain a secret for long? Would a government give nukes to terrorists, hoping to keep it secret? Just think how those same terrorists could blackmail the government that gave them the nukes.

This one worries me, but I can still sleep at night.

3. Non-deterrable nuclear threats. Like terrorists. Or how about terrorists operating in or near Israel? Western Europe? To me this is the big problem.

How much does proliferation across countries make it easier for terrorists to get nukes? Well, the "outright gift scenario" I covered above. What other scenarios are there? Rogue scientists? Network effects and falling costs? Danger of stolen raw materials?

Let us say that this scenario is the big worry. Should we really be forcing countries to keep their nuclear programs secret, illicit, and poorly documented, especially if common nukes are inevitable in the longer run?

I hope to write more on this soon.


Are right-wing Op-Ed writers more dogmatic and partisan than left-wing writers? Apparently so, according to Michael Tomasky, as reported by Slate. An alternative interpretation is that everyone is dogmatic, but that Democratic administrations waffle more on the content of policy, and thus receive a more mixed reaction from their journalistic allies.


Arnold tidbits: Steve Jens writes:
It's been a long time since I saw the movie Demolition Man (1993). It wasn't a great movie, though it was better than the critics said it was. The story begins when a cop, played by Sylvester Stallone, is cryogenically frozen (in the near future, i.e., the late '90s) as a punishment for using excessive force. One of the criminals whom he had previously put away (played by Wesley Snipes) manages to escape from the cryogenic prison in 2032, so the authorities unfreeze Stallone to help catch him.

Shortly after he is unfrozen, Sandra Bullock is showing him around, and says something nonchalantly about "President Schwarzenegger". Noticing his expression of surprise, she goes on to explain that, yes, he was born outside the country, but that he had been so popular that the states had ratified the sixty-first amendment to the constitution. . . .
And from Kaimi Wenger:
Well-cultured cineasts are familiar with the classic movie The Running Man, which featured unforgettable dancing, matronly grandmothers betting on death games, and not least of all a titanic struggle between two beefy actors, Arnold Schwarzenegger (the hero "Ben Richards") and Jesse Ventura (the evil but popular "Captain Freedom").

In 1998, Jesse Ventura became a different kind of running man, running for the governor's office and winning in Minnesota. His Running Man colleague Arnold is now apparently following in his footsteps.

One has to wonder whether Ben Richards will have the political knack that Captain Freedom showed. Richards seemed rawer, less politically adept, and besides he gave us the memorable one-liner, "I'm not into politics, I'm into survival." However, Richards did eventually beat Captain Freedom in the movie. . . .

Wednesday, August 06, 2003


Al Sharpton has the gall to accuse the media of downplaying his candidacy because he's black. In fact, given his record (beyond never holding elective office, there's the Tawana Brawley hoax, anti-Semitic incitement in Crown Heights before Yankel Rosenbaum's murder, anti-white incitement before multiple murder by arson at Freddie's clothing store in Harlem, etc.) it's ridiculous that anyone even pretends to take his candidacy seriously. I find it appalling that all (or any) of the other Democratic candidates appear on the same stage with him. He's the closest Democratic equivalent of Republican (and former Democrat) David Duke, and should be given the same treatment from the media and political elite as Duke gets. Is there anyone in the Republican Party willing to make this an issue?


Schwarzenegger will run, according to The Drudge Report. Supposedly that's what Schwarzenegger will say on the Tonight Show tonight. Don't know how reliable the story is, but it's juicy enough to pass along. (There's a Russian phrase, "Za chto i kupil, za to i prodal" -- literally, "For what I bought it, I sold it," but figuratively, "This rumor is free, and worth every penny.") If it's true, it will be quite an accent-off: Arnold vs. Arianna. Say, maybe I should jump in, veez my seeck Rrrussian eccent.


Public attitudes about school choice: The First Amendment Center's State of the First Amendment 2003 report asks the following question (1000 respondents, margin of error +/-3%), among many others:
46. Parents should have the option of sending their children to non-public schools, including those with a religious affiliation, using vouchers or credits provided by the federal government that would pay for some or all of the costs.
Strongly agree 40%
Mildly agree 22%
Mildly disagree 12%
Strongly disagree 23%
Don't know/refused to answer 4%
Note that since the preceding questions asked whether "Government officials should be allowed to post the Ten Commandments inside government buildings" and "The government's use of the phrase 'In God We Trust' on U.S. money and coins violates the constitutional principle of separation of church and state," some respondents may have interpreted the question as asking whether school choice was constitutionally permissible. Nonetheless, the question itself asks whether "Parents should have the option" and not whether the government should have the power to give parents that option.


Legal tender: Reader Mitch Reifel writes:
Just sort of a legal curiousity. The Starbucks I frequent now has a sign: We can no longer accept bills larger than $20. They are following many gas stations in the area that don't accept bills larger than $20 "after dark".

Is this legal? While I am generally agreed to the view that businesses should be able to set their own practices (and customers can go elsewhere if they don't like them), currency issued by the U.S. is another matter and I thought, legally, Starbucks has to accept a $50 for "all debts public and private". There is also the issue of keeping confidence in a
fiat currency, which is in the best interest of the U.S. government.
A great question, and I think I have an answer to it, though I should say that this is more an educated guess than the product of real research (though I'm not sure that real research will find much, since few people would litigate about this in a way that creates a precedent). 31 U.S.C. sec. 5103 does say that
United States coins and currency (including Federal reserve notes and circulating notes of Federal reserve banks and national banks) are legal tender for all debts, public charges, taxes, and dues.
This means that if you pump your gas or get your coffee, and then pay, the $50 will properly discharge your debt. But if you have to pay up front, the gas station or the Starbucks can just refuse to take your money and give you the gas or coffee. They have no obligation to deal with you -- but once they do deal with you (for instance, because it's on a products-first, pay-later basis), your offer of the $50 satisfies your legal obligation to pay.

     Again, I'm not positive that this is so; I think this is probably be the right answer, given general business law principles. If you know the opposite to be true, please let me know.


Moving: My departmental, New Republic, and sometimes-here-at-the-Conspiracy colleague Dan Drezner has moved to one a'them there fancy Movable Type sites:


InnerChange and college: The InnerChange discussion reminded me of an ad I heard in the radio a week or two ago -- it was urging people to go to college by arguing something like "Census Bureau studies show that people who go to college earn $1 million more over their lifetimes than people who don't go to college." (I don't remember the precise text of the ad, but for our purposes let's just focus on this particular line.)

     Does such a study, if it's being accurately reported here, show that a college education is successful at increasing people's earnings? Well, maybe going to college increases your earnings -- but maybe the people who go to college are on average more ambitious, industrious, or intelligent than people who don't go to college. If the latter is true, then they might have earned the same amount (or more) even if they hadn't gone to college.

     I actually suspect that going to college does increase your earnings -- but the study that the ad mention doesn't support that suspicion; such a study is simply not capable of telling us anything about whether college education increases earnings. The same seems to be true as to the InnerChange study.


A bit more on recidivism studies: Several readers have e-mailed with points such as this one (referring to the post about the InnerChange study):
How is this any different than measuring the success of an AA program? You don't count the people who drop out on step 4 because they did not complete the program. You can't measure the success of a program that wasn't even completed. You only look at people who have completed all 12 steps, and by and large they tend to stay on the wagon. The same with this program. If you complete all steps of the program (including getting a job), then a successful program would result in reduced recidivism. A bad program would not. Since graduates did have reduced recidivism rates, then one could say it was successful.
Actually, I don't think that one can say that the program "was successful" in this situation, and here's why.

     Imagine that we have a pool of 1000 prisoners; and let's say that their recidivism rate is 25%. That doesn't mean that each prisoner has a 25% chance of reoffending -- presumably there are some that are nearly sure to reoffend, others that are nearly sure not to reoffend, and others might or might not reoffend. And there are preexisting character traits that influence each prisoner's likelihood of reoffending, though of course there might also be programs that we can send the prisoners through that would influence this likelihood, too.

     Let's say that someone proposes a program: Cure reoffending by scratch therapy -- each prisoner gets his back expertly scratched three times a day, and also then has to go to work, not have any disciplinary problems, and so on. I give this as an example because I'm pretty sure that scratching is highly unlikely to have any real effect on recidivism, and because I really enjoy having my back scratched.

     Now, 200 prisoners go through this program. Of them, 100 drop out, because they don't go to work, have disciplinary problems, or just don't like staying in antirecidivism programs. These have a 40% reoffense rate. The remaining 100 graduate. These have a 10% reoffense rate. (The numbers are of course purely hypothetical, but they're not implausible, because we'd expect people who are willing to go to work, who are willing to avoid disciplinary problems, and who are interested in completing antirecidivism programs to be the sorts of people who are less likely to reoffend.) Would we say that "Since the graduates did have reduced recidivism rates, [the program] was successful"?

     I don't think so: We'd point out that the 100 graduates have certain traits that the average criminal might not have -- they're willing to go to work (not even that they did go to work, but just that they're willing to do so), they're willing to avoid disciplinary problems, they like staying in antirecidivism rates, and of course they had lots of good back-scratching. Maybe the cause of the lower recidivism rates was the back-scratching, in which case the program was a success. But maybe the cause was their possessing these other good traits, in which case the program had no effect.

     The same applies with InnerChange. One difference, of course, is that it's plausible that the InnerChange program would have some positive effect; with my back-scratching example, it's not plausible. So it might be the case that InnerChange would "be successful," in the sense of decreasing the likelihood that a participant would reoffend rather than just selecting those participants who already had a low likelihood of reoffending. But a study that focuses only on graduates of InnerChange (or of AA) can't tell us that.

     Unfortunately, it's very hard to design a study that does tell us whether InnerChange decreases the likelihood that a participant would reoffend -- one would have to compare people who graduated from InnerChange with people who didn't go to InnerChange but would have graduated had they gone, and how can you figure that out? And I'm not saying that InnerChange is a proven failure; it's not. But it's also inaccurate to say that the study has shown InnerChange to be a success.


Using foreign law when making decisions under the U.S. Constitution: Some people have been troubled by some Justices' willingness to consider foreign decisions and norms when interpreting the U.S. Constitution, for instance, in the recent race preferences case (Grutter v. Bollinger) and sexual autonomy case (Lawrence v. Texas). In particular, Justice Ginsburg's remarks reported in this story have gotten some criticism (for instance here):
The Supreme Court is looking beyond America's borders for guidance in handling cases on issues like the death penalty and gay rights, Justice Ruth Bader Ginsburg said Saturday.

The justices referred to the findings of foreign courts this summer in their own ruling that states may not punish gay couples for having sex.

And in 2002, the court said that executing mentally retarded people is unconstitutionally cruel. That ruling noted that the practice was opposed internationally.

"Our island or lone ranger mentality is beginning to change," Ginsburg said during a speech to the American Constitution Society, a liberal lawyers group holding its first convention.

Justices "are becoming more open to comparative and international law perspectives," said Ginsburg, who has supported a more global view of judicial decision making. . . .
     I share some of the concerns about American courts looking to foreign sources of law -- they are, after all, making law for Americans, not Europeans, interpreting a Constitution that was written by Americans and for Americans. Our legal texts, traditions, history, precedents, and modern attitudes are not those of foreign countries, and our law need not match theirs.

     Nonetheless, I think it's important not to overstate some of the objections to this. Considering out-of-jurisdictions court decisions as influential (though of course not binding) is itself part of the American legal tradition. That happens pervasively within the U.S.: State courts that are interpreting the state's constitution, or developing the state's common law, are often influenced by other state courts' decisions. And historically that has also happened, though to a smaller extent, with regard to foreign courts as well -- decisions of British courts, for instance, are not uncommonly cited by American courts (especially in common-law-making cases), again, not as binding but as persuasive.

     Naturally this should happen only when a decision calls for the exercise of a judge's normative or pragmatic discretion; if the text is clear, for instance, it should prevail. But for better or worse, under our current system judges do exercise considerable normative and pragmatic discretion, especially when interpreting broadly and vaguely worded text. And their discretion may, I think, be informed by judgments from other jurisdictions. Certainly it has historically been so influenced.

     Part of the reason for this is that judicial decisionmaking in the U.S. has long been understood as an enterprise where judges try to draw enlightenment from a wide variety of sources. This is one reason that precedent, even not strictly binding precedent (e.g., precedent from another state), is so important -- if a bunch of other state courts have come to a particular decision, that itself is an argument (though far from a dispositive argument) that this decision is right. The same is potentially true in some measure with regard to decisions of other democratic Western countries.

     So in principle considering foreign courts' decisions as one influential source of wisdom, when the domestic law sources aren't dispositive, and thus require the judge to exercise normative and pragmatic judgment, is part of American legal tradition, and is legitimate (more so in some fields, such as international law, admiralty law, and such, than in others, but theoretically legitimate in all fields). Naturally, one still can and should argue that judges shouldn't be influenced by particular foreign law in particular cases -- for instance, when the domestic sources are clear, or when the foreign traditions are very far from the domestic ones, or for that matter when one just thinks that the foreign law rules are wrong. (Again, incidentally, these are the same arguments one can use for why a state court shouldn't rely on particular decisions of other states, even though in principle it's quite legitimate for state courts to do so.) And I generally think that, by and large, American constitutional traditions are different enough from European ones that European court decisions shouldn't be given much weight at all in American decisionmaking.

     But the matter is, I think, rather more complex than just arguing something like "U.S. judges are interpreting the U.S. Constitution, so they have a constitutional duty to completely ignore other countries' approaches" -- just like we don't think that state courts must say "California judges are interpreting the California Constitution, so they have a constitutional duty to completely ignore other states' approaches."

UPDATE: I have been reconsidering this issue, and while I still think that much of what I say above is correct, I have come to view the matter with more alarm. See here for my post on that.


Is the Howard Dean campaign spamming people? This post suggests so, and seems to have pretty strong evidence. The Dean campaign has been praised for being quite Internet-savvy as political campaigns go -- it seems that they may have gotten a little too savvy (and not savvy enough).


Does the faith-based InnerChange program work? Some, such as the Bush Administration and OpinionJournal, read a recent study and say yes:
[A] just-released study confirm[s]sharply reduced recidivism rates for Texas inmates who've completed an innovative joint venture between Chuck Colson's Prison Fellowship Ministries and the Texas Department of Criminal Justice. . . .

The theology underlying the idea is as old as the Apostles: sin and redemption. And the InnerChange Freedom Initiative incorporates these notions into a three-phase program. In the first phase, the aim is to build a moral foundation in prisoners through biblical study, work, support groups and mentoring. The second phase introduces off-site work (e.g., with Habitat for Humanity) that helps reintroduce prisoners to the community. Phase III is the support given an ex-offender after he has been released, to keep (no pun intended) his spirits up and help him with everything from jobs to housing to family. . . .

All this, no doubt, will be profoundly discomforting to those who like the results but don't like the religion; a similar program in Iowa is already being sued by the Americans United for Separation of Church and State. But the question is joined: Can you achieve the positive social outcomes of faith-based programs if you strip out the faith? . . .

To put it another way, critics of the faith-based approach may claim that their only issue is with religion. But if these results are any clue, increasingly the argument against such programs requires turning a blind eye to science.
My friend and UCLA colleague Mark Kleiman reads the same study and says no:
[W]hen you look carefully at the Penn study, it's clear that the program didn't work. The InnerChange participants did somewhat worse than the controls: They were slightly more likely to be rearrested and noticeably more likely (24 percent versus 20 percent) to be reimprisoned. . . .

So, how did the Penn study get perverted into evidence that InnerChange worked? Through one of the oldest tricks in the book, one almost guaranteed to make a success of any program: counting the winners and ignoring the losers. The technical term for this in statistics is "selection bias"; program managers know it as "creaming." Harvard public policy professor Anne Piehl, who reviewed the study before it was published, calls this instance of it "cooking the books."

Here's how the study got adulterated.

InnerChange started with 177 volunteer prisoners but only 75 of them "graduated." Graduation involved sticking with the program, not only in prison but after release. No one counted as a graduate, for example, unless he got a job. Naturally, the graduates did better than the control group. Anything that selects out from a group of ex-inmates those who hold jobs is going to look like a miracle cure, because getting a job is among the very best predictors of staying out of trouble. And inmates who stick with a demanding program of self-improvement through 16 months probably have more inner resources, and a stronger determination to turn their lives around, than the average inmate.

The InnerChange cheerleaders simply ignored the other 102 participants who dropped out, were kicked out, or got early parole and didn't finish. Naturally, the non-graduates did worse than the control group. If you select out the winners, you leave mostly losers.

Overall, the 177 entrants did a little bit worse than the controls. That result ought to discourage InnerChange's advocates, but it doesn't because they have just ignored the failure of the failures and focused on the success of the successes. . . .
Read the study here and see for yourself. My quick skim of the study suggests that Mark is right: The study does not show that the program helped anyone, in the sense of making them better off than they would have been without the program. Perhaps the program did help people; but the "science" doesn't seem to show that.


Arguments against the FDA, and unregulated surgery Market-oriented economists commonly argue that the costs of the FDA exceed its benefits, especially once we consider the requirement that new drugs be demonstrated to be "safe and effective."

I was reading in today's International Herald Tribune about a new intestinal operation (I cannot find a link), and the reporter noted in passing that new operations, unlike new drugs, do not face direct government regulation. Sure there is medical malpractice. And surgeons face a variety of "on the ground" restrictions on what they do, some of which are governmental in nature. But you do not submit "new surgery ideas" to a federal agency for approval. And physicians tend to ignore the government regulations that are in place, it seems. So maybe the market for surgery can help us understand how a freer market in drugs would work, or not work. If anything, you would think that surgery needs more regulation than drugs, not less. You can imagine a customer using the Web to evaluate the safety of a drug, absent government regulation. But to my medically untutored mind, operations seem at least as idiosyncratic in their success and effects, and thus harder for markets to monitor in quality.

If you've seen anything on the drugs/surgery parallel, please let me know.


Jumping to Conclusions: Let's get this straight. Scientists studied 182 women who were pregnant and at or around the World Trade Center during or after the terror attack. Fourteen of these women had "small," but not low birth weight babies, compared to an expected total of seven. The same study "found no increase in infant mortality, premature births, or low birth weights." Exposure of these women to dust and smoke from the WTC was not measured.

What we have here is a correlation between women who recall being near the WTC terror site while pregnant and an elevated rate of small babies. Given the lack of any other correlation between women with this recollection and negative pregnancy outcomes, and the relatively small sample size, to leap from this correlation to a claim of causation is unjustified. Even with larger sample sizes and harder statistics, epidemiologists are typically reluctant to draw any causal inferences with a relative risk of less than three. Here the relative risk is two.

In a more rational and scientifically literate world, the headline of this story in the Times would not be Smoke and Dust at World Trade Center Is Linked to Smaller Babies, but something like, "No Link from WTC Smoke and Dust to Problem Pregnancies; Birth Size Issue Finding Needs Further Study."


Nuclear proliferation and game theory More and more countries will get nuclear weapons, I was wondering whether there is any relatively optimistic scenario.

The best case scenario is that having nuclear weapons makes a government more powerful and thus more conservative. Remember the old chess saying "The threat is stronger than the execution"? Maybe a country with nuclear weapons can extract greater rents from its neighbors, this might make it more likely to play it safe. For instance, if Iran had the bomb it would be more dominant and more influential in the Middle East, and in some ways more prestigious internationally. It might be less concerned with, say, obliterating Israel.

A less positive scenario has new nuclear countries playing a "mixed strategy" from game theory: "Pay up, or I will deliver a bomb to Al Qaeda with p = 0.1". Maybe North Korea would do this. Sooner or later a bomb would go off. A key question is whether American deterrence could prevent such mixed strategies in advance (this is a very interesting game, I won't spell the whole thing out.)

So far nuclear powers appear to have followed the first route rather than the second. Why exactly, in the terminology of game theory, would new nuclear powers be any different?

Another key question is the following: across how many different powers could MAD (mutually assured destruction) be stable?

Your thoughts here would be welcome, I would like to write more on this, I haven't seen much conceptual work on these questions.

Tuesday, August 05, 2003


A strategic departure from strategic party-line voting: Reader Anthony Argyriou points out an important qualification to my "vote the party line" advice from yesterday; I was thinking of blogging about this myself this morning, but his post put it so well that I thought I'd just quote it. Naturally you can change Republican/Libertarian to Democrat/Green or some such.
I generally vote Republican or Libertarian, using the following formula: Vote Libertarian when my vote is very unlikely to make a difference. The last Field poll before an election historically has a bias of 1% to 3% for incumbents and Democrats, and all polls have a margin of error. If the Republican candidate is more than 6 to 7% behind, or more than 3% ahead, the race is pretty much decided, and voting Libertarian sends a stronger message than voting Republican. . . .
Again, I think this is an important exception from my recommendation -- but I think it's ultimately consistent with the core strategic principle, which is (usually) "vote for the party, not for the candidate." One may reasonably depart from this when one thinks that voting for the Libertarians will send an important signal, and when one thinks that it's a cheap signal to send, because the Republican candidate will win (or lose) in any event. But the bottom line is still that what chiefly matters is which parties get elected, or at least get a big chunk of the votes.


Guided voting: Internet voting hasn't taken off yet -- among other things, there are quite understandable concerns about fraud and hacking -- but I think that it's only a matter of time. Here are some thoughts of mine on some unexpected implications of Internet voting; you decide whether they're good implications or bad, and whether they strengthen or weaken the case for implement Internet voting. (Note that this is adapted from my short Loyola (L.A.) Law Review article on the subject.)

     Internet voting, I believe, would facilitate an offshoot technology, guided voting, that might dramatically increase -- for better or worse -- the power of ideological interest groups at the expense of the political parties, and might thus dramatically change American politics.

     Most voters know little about which way they really want to vote in most election races, especially for primaries, nonpartisan races, and many initiatives and referenda. This is what economists call “rational ignorance”: Even given occasional events like the November 2000 Florida presidential race, your one vote is highly unlikely to affect the election, and thus to give you much personal benefit. But the many hours you’d need to educate yourself on every race is a real personal cost. So people therefore don’t spend the time to learn much about the issues.

     Instead, they rely on signals, such as party affiliation, endorsements, or the identities of the people signing the arguments for or against an initiative. These signals aren’t perfect: Few of us agree entirely with any party or endorser. But they’re the best we have, given that we’re not going to figure everything out ourselves.

     Unfortunately, today even this rough data is not that easy to gather from all the articles you read and mailers you get; and if you forget your cheat sheet at home, you might just not vote on some issues, or make a very rough guess. Say, though, that some trusted nonpartisan organization sets up a central site -- let’s call it When you go to the site, you can click on the names of various interest groups you agree with: the National Organization for Women, the National Rifle Association, the ACLU, Operation Rescue, and so on.

     The site will then consider the endorsements provided by all the groups you’ve marked, and give you an aggregate recommendation. If the groups disagree, the site can tell you which side got a majority of the group endorsements; or you might tell the site which groups’ endorsements it should count more heavily than others when giving you the aggregate result.

     Now here’s the key technological feature: This site will then download and execute -- on your request -- a small program that places the recommended votes right into your electronic ballot form. Then one more click by you, and your filled-in ballot gets sent to the elections board. A few clicks, and you’ve voted. No need to read voluminous campaign literature, or pore through printed recommendations.

     This is what I call “guided Internet voting”: a mixture of government-operated Internet voting with a interest-group-supplied, voter-accepted program that influences the voter’s choice. The voters would be still the ones casting the votes. Their reliance on the interest groups’ suggestions, though, would be somewhat greater than it is today, and the reliance will be easier and more automated.

     Of course, some people might not want to delegate so many of their voting decisions to interest groups, even groups they mostly trust. On the other hand, most people already delegate these decisions to newspaper editorialists, friends, and so on: They realize that, after long study, they might be able to better decide which vote better comports with their own true views -- but few people want to undertake the long study. Guided voting would be such a convenient alternative.

     And here’s the key political effect: Just as guided voting is convenient for the voter, so it is empowering for the interest group, which would be able to more effectively influence its members’ and sympathizers’ votes. True, the group will still have to persuade people to trust its recommendations. But once it does get this trust (and some groups, such as membership-based ones, might find this easier than others), the trust will translate automatically to a direct influence on the people’s votes.

     Moreover, guided voting would for the first time let groups actually measure exactly how influential its recommendations are. The organizers can tell each group how many voters in each district followed its recommendation. They can even count the votes in which this group’s recommendation made the difference, rather than just being redundant of the other recommendations that the voter was following.

     So when group X comes to a legislator to lobby him about some issue, it won’t just say “We have 2000 members in your district” or “We’ll spend $30,000 in your district on this issue.” Rather, it will for the first time be able to say “Our recommendation last election changed 15,000 votes in your district. What will you do to make sure that we recommend you next time?”

     And this system should evolve quickly after Internet voting is introduced. It shouldn’t be hard to write a downloadable program that finds the ballot window on the computer, identifies the boxes, and fills them in properly. Interest groups should have a strong incentive to provide such programs, both to increase the vote for their favored candidates and measures, and to give the groups more influence with the candidates. There’ll be a similar incentive for the groups to get together into a consortium, since the centralized Web site’s existence will increase the number of voters who take advantage of the groups’ electronic advice.

     And voters should likewise have an incentive to use these programs. They’re convenient, and they also give each voter a cheap extra opportunity to voice his views (by supporting a particular group) in a way that politicians should notice. Non-single-issue voters can like this model, too: They might hesitate to accept just the NRA’s recommendations, but they could feel better about following the advice of several groups put together.

     Interest groups would be big political winners under this system. Parties, though, might not fare as well. Today, parties are the information clearinghouse to which many voters turn for advice. If I am a loyal Republican, it’s efficient for me to vote party line for Republican candidates, and to follow the party’s advice on nonpartisan races and initiatives. The party label is a powerful brand name that busy voters can turn to when they don’t want to spend too much time researching the issues themselves.

     But guided voting makes it less necessary for people to rely on parties. Today, someone might vote for the Democratic choice because she likes the Democrats’ views on abortion, the environment, and education. But if she can directly follow the advice of the National Abortion Rights Action League, the Sierra Club, and the National Education Association, she might not care as much about the party label. The candidates to whom guides her will probably end up being Democrats, but the interest groups will have much more influence over those candidates, because the groups will be the ones who deliver her vote and the votes of many like her.

     Government officials might, of course, try to ban the computer programs I describe, on the grounds that they are a sort of ballot tampering. Many states ban electioneering near physical polling places. Likewise, the government might try to ban the distribution of recommendations into a ballot window on a person’s computer.

     But, first, such restrictions violate the First Amendment; their very point is to prevent organizations from giving a certain kind of voluntarily requested advice about the election. Second, the public may oppose laws that stop voters from using, in their own homes, a computer program that makes it easier for them to vote and to express support for their favorite interest groups. Third, many of the interest groups whose power guided voting would increase are already pretty powerful, and may fight any attempts to block such guided voting.

     The government might also try to block guided voting technologically. But it’s not easy to create a technological mechanism that stops a computer’s owner from running a companion program alongside the Internet voting program -- at least unless the mechanism is so clumsy that it makes Internet voting more trouble than it’s worth.

     The easiest way, and maybe the only way, to prevent guided Internet voting is not to allow home Internet voting at all. If people must vote at polling places (whether the voting is on traditional machines or using Internet-connected computers), then guided voting will become much harder. could still print out recommendations, but fewer people would follow them, because following them will be less convenient; and little differences in convenience can translate into big differences in usage.

     I’m not sure whether guided Internet voting is good or bad. I instinctively like empowering political interest groups, which despite their flaws do articulate important substantive visions. But I can see the costs of such greater power, too: More power to ideological interest groups may mean less room for political compromise, and it’s not clear that society is better off if voters delegate (however rationally) even more of their decisions to others.

     My point here is simply that home Internet voting, like it or not, will lead to guided Internet voting as well. Thus, if people oppose guided voting, they might want to oppose home Internet voting proposals, too, even if they might otherwise like the idea of unguided home voting. But if Internet voting is indeed adopted, then interest groups should prepare to take advantage of it.


Boys and war: My favorite Russian poet and singer is Bulat Okudzhava. He fought as a teenager in World War II -- which was of course monstrously deadly for the Soviets, and especially for the Soviet army; one site I ran across says that 7.5 million Soviet soldiers died. Some of Okudzhava's poems, many of them very good, are about war -- both about the soldiers' courage and duty, and about grief and despair. Here's a prose paragraph in which he remembers first enlisting (not as good as his poems, but easier to translate):
I had finished the ninth grade [in the Russian 10-year system, this would make him 16 -ed.] when the war began. Like many of my peers, I desperately wanted to go the front. A friend and I every day went to the military headquarters. They gave us packets of enlistment orders and said, "Take them around to people's homes, and tomorrow we'll enlist you yourselves." This lasted half a year. Finally, worn down by our insistence, the captain said: "Write your own enlistment orders; my hand refuses to do it." We filled in the blanks and took them home -- he to mine, and I to his.


Eugene Volokh from September 11, 2002: Exact Quote: ANOTHER 5000 "UNIQUE VISITOR" DAY, just like yesterday, thanks chiefly to more InstaPundit links. It won't last at this level -- it never does -- but it's still pleasant to see. (end of quote, my Russian keyboard has no apparent quotation mark signs.)

Eugene is rarely wrong in my opinion, seeing this one made me chuckle, now he is getting some days of over 10,000.


Defining treason down: From the inimitable Ann Coulter:
What are we to make of people who promote the idea that America is in the grip of a civil-liberties emergency based on 100 hazy stories of scowls and bumps and one-week detentions? Manifestly, there is no civil-liberties crisis in this country. Consequently, people who claim there is must have a different goal in mind. What else can you say of such people but that they are traitors?
     Indeed, what else can you say? "I disagree with them"? "They are mistaken"? "It's good that people are watching out for civil rights abuses, but they're exaggerating matters somewhat"? No, of course not -- in fact, if you respond to obvious traitors with such inadequate reactions, why, then, I bet you must be a traitor, too!

     Thanks to Matt Welch for the pointer.


The "Right to Discriminate": The Washington Post recounts a speech by Judge Guido Calabresi, my former (and beloved) Torts professor, at the first annual conference of the American Constitution Society, a group meant to be the liberal counterpart to the conservative/libertarian Federalist Society:

At this panel, the judge from New York's 2nd Circuit is waving aloft a copy of the Constitution. His voice booms at times as he chronicles the radical right's assault on a decent society that loves rather than oppresses. With a pointing finger, he exhorts the crowd of young law students to stop the assault on the powerless.

"We shouldn't sit back quietly . . . while they try to undo the laws of the last 50 years, the laws respecting human dignity and individual rights," Calabresi says. "Even Judge Bork, before he went completely off the deep end, said you cannot undo the New Deal." The judge lets out a heavy sigh. "I think part of their agenda is to create a constitutional right to discriminate. Think about that. A right to discriminate."

His red leather-bound Constitution was a gift to him, he points out with a snicker, from "some right wing group."

Hmm. I don't know of anyone in the Federalist Society orbit who advocates a constitutional right to discriminate, as such. Richard Epstein advocates a constitutional right to liberty of contract, a right that would include the ability to discriminate, among many other things. Eugene has vigorously argued that much of the "harassment" part of antidiscrimination law conflicts with, and is a violation of, the First Amendment. And my forthcoming book (which I know Judge Calabresi has seen, and I hope got his attention), argues that the scope of antidiscrimination law must be limited so that it does not conflict with vigorous protection of the constitutional rights to freedom of speech, free exercise of religion, expressive association, and the right to petition government. But none of this is the same as supporting a "right to discriminate."

As for the Constitution in Judge Calabresi's hand, it's a beautiful edition published by the Cato Institute and is available at Amazon or from Cato itself.

Update: Several readers write in to note the irony of liberals accusing conservatives of supporting a "right to discriminate" a month after liberals celebrated and conservatives mourned when Grutter held that universities may discriminate in admissions. Even if racial preferences in university admissions are justified on diversity, reparatory, or redistributive grounds, they are still quite literally discrimination.

Further update: Lest you get the wrong general impression of Judge Calabresi, I should add that he was a scrupulously fair dean and teacher. When he was dean Yale Law School hired several right-of-center professors (Ellickson, Langbein, Schwartz, etc.), and indeed had a much better record in that regard than any other Top 15 law school during that period, including Chicago. He also banned students from booing and hissing their classmates, a practice that had apparently become common under the previous dean and was targeted at conservatives.

Yet another update: Marty Lederman emails:
Your readers have steered you wrong on this score. There's no "irony" at all. Although we liberals do not think there is a constitutional prohibition on certain forms of affirmative action by the state (see Grutter), we also do not think that private parties have a broad constitutional right to engage in any form of discrimination, whether it be in the nature of affirmative action by a private university; invidious discrimination by a school (see, e.g., Runyon v. McCrary; Bob Jones); "identity"-based discrimination by the Boy Scouts (see Dale); a right to discriminate in "association" by shopkeepers (see Heart of Atlanta), or law firms (Hishon) or newspapers (AP v. NLRB); etc.... Thus, I'm afraid our views on Grutter are not terribly germane to our views on any private constitutional right to discriminate.

Well, my reader-correspondents did not, I think, take the irony to be that Judge Calabresi and other liberals support a constitutional right to discriminate in some circumstances while criticizing conservatives for supporting such a right in other circumstances. Rather, they assume that Judge Calabresi was criticizing conservatives for being "soft on discrimination," so much so that they seek to elevate it to the status of a constitutional right. And indeed the criticism, at least as reported by the Post, seems in context broadly moral rather than narrowly legal. As such, there is irony involved in criticizing conservatives for being soft on discrimination while supporting institutionalized discrimination at universities, though of course the irony dissipates somewhat if one believes that the affirmative action form of discrimination is clearly morally distinguishable from others forms of discrimination.

What gets many conservatives' goat, I gather, is that many liberals refuse to recognize racial preferences as a form of racial discrimination, even though, as I note above, they obviously are, even if one thinks they are justified. Despite the rhetorical power of invoking nonidscrimination norms, almost all of us believe that there is some limit to the antidiscrimination principle; few people would assign marriage partners or lovers randomly, even though the current system allows people to engage in all sorts of invidious discrimination. The only question is where the line between permissible and impermissible discrimination should be drawn. One obvious place to draw the line is where antidiscrimination laws conflict with the First Amendment, as they increasingly do, and not find, as too many courts have, that the government's purported "compelling interest" in "eradicating discrimination" trumps First Amendment freedoms.


Pricing the rule of law In July Russia arrested Platon Lebedev, the business partner of the country's richest man, Mikhail Khodorkovsky, and placed this whole business empire under legal siege (one asset, the oil company, is called Yukos, which you may have seen in the newspapers). The word is that while this guy is no angel, the arrest is politically motivated, one group of thugs trying to take over the assets of others. And apparently Khodorkovsky was wanting to bankroll liberal, pro-Western opposition to Putin. Since then the Russian stock market has fallen fifteen percent.

Monday, August 04, 2003


The political views of Latinos are troubling for advocates of limited government, who also tend to be advocates of liberal immigration policies. As the New York Times reported yesterday, and has been well-known for some time by those who follow such things, Latinos, like prior waves of immigrants from poor Catholic countries, tend to be socially conservative and in favor of big government in the economic realm. In the famous Nolan Chart, Latino voters are disproportionately in the "authoritarian" quadrant, the opposite quadrant from limited government-oriented libertarians.

Given that Latinos are already considered a very important swing vote, and will become ever more important as they become a larger percentage of voters, the current volume of Latino immigration can't be good news in the short to medium term for fans of limited government. [In the longer-term the descendants of immigrants' views will likely become close to the median, as has occurred with Irish, Italian, Polish, and other Catholic voters--though Jewish voters remain way to the left, especially on issues like church-state relations and abortion]. Bloggers (and others) who complain about President Bush's big spending ways should note that this is a predictable side effect of the Republicans' need to capture a healthy percentage of the Latino vote (among other factors).

Does that mean that I'm in favor of stricter limits on immigration? No. I think immigrants do a lot of good for the country, and allowing people to immigrate here from poor countries is the best international antipoverty program the U.S. is likely to ever create. I wouldn't consign millions of people to poverty in Latin America just so the percentage of GDP spent by the government would go down from, say, 25% to 20%--even though, all else equal, the higher figure will lead to more poverty in the U.S. in the long run. But the case for liberal immigration rules is by no means open and shut, given political externalities. I sure wish we still had some of the constitutional restraints on government economic power that prevailed before the New Deal and Progressive eras, which, combined with current 14th Amendment restraints, would make the issue much more one-sided.

Author's note: I dislike the term "Latino," because it masks the fact that people given that designation come from different countries with different cultures. The Times story, however, focused on "Hispanics" (an even less edifying term) while noting that the sample size from its poll did not allow it to break down "Hispanics" by national origin.


More on party-line voting: Eugene's post below prompts me to post a link to this post of mine from last fall on the same subject, with this post-election follow-up.


Agency Offensive: EEOC officials in Cleveland and are pressuring local employers to ban foul language and swearing in their workplaces, or face a hostile EEOC when employees complain of "harassment." An employer may certainly choose to ban such language on its own initiative. But for the government to tell them to do so, or to pursue harassment claims based on protected speech, violates the First Amendment. (Via

Stories like this always remind me of the episode of South Park in which, after a visit from the “Sexual Harassment Panda,” the children of South Park begin to sue each other for harassment over minor insults. Eventually, the children pursue deeper pockets, the school where these insults take place. The school is bankrupted, while Kyle’s attorney father, who represents all of the plaintiffs, becomes wealthy. This leads to the following exchange:
Father: “You see, son, we live in a liberal democratic society. The Democrats [sic—it was a mostly Republican EEOC and Supreme Court] created sexual harassment law, which tells us what we can and cannot say in the workplace, and what we can and cannot do in the workplace.”

Kyle: “But isn’t that fascism?

Father: “No, because we don’t call it fascism.”

BTW, in retrospect not enough was made at relevant times of the ironies that (1) Clarence Thomas was head of the EEOC when it more or less adopted the Mackinnon view of sexual harassment; and (2) that Bill Clinton signed into law Federal Rules of Evidence 413-415; these rules (arguably) allow a plaintiff who accuses someone of sexual harassment to pursue otherwise illicit "character" evidence about other alleged sexual misconduct by the defendant, which is how Monica Lewinsky came to world attention.


Methamphetamines = chemical weapons? That's the view of a local North Carolina prosecutor's office:
A Watauga County prosecutor is using a law intended to combat terrorism to fight the spread of methamphetamine laboratories in northwest North Carolina.

District Attorney Jerry Wilson has charged Martin Dwayne Miller, 24, of Todd with two counts of manufacturing a nuclear or chemical weapon in connection with a methamphetamine arrest Friday. Miller also is charged with eight other drug-related offenses.

He was being held in the Watauga County Jail under $505,000 bond.

"This is a two-edged sword," Wilson said. "Not only is the drug methamphetamine in itself a threat to both society and those using it, but the toxic compounds and deadly gases created as side products are also real threats." . . .

The most serious drug charges related to methamphetamine carry much lighter sentences than the weapons of mass destruction law.

The law carries a sentence ranging from 12 years to life in prison on each count. Wilson said he decided to use it while researching ways to slow the advance of methamphetamine into the region.

The law reads, in part, that the term nuclear, biological or chemical weapon of mass destruction applies to "any substance that is designed or has the capability to cause death or serious injury and . . . is or contains toxic or poisonous chemicals or their immediate precursors."

The chemicals used to manufacture methamphetamine are toxic and highly combustible. . . .
     I generally support many of the recent anti-terrorism laws, but one serious argument against them has always been that they won't be limited to terrorism, but will apply in situations whether the extra penalties or lowered protections that the anti-terrorism law provides are unjustified. This seems like an excellent example of this tendency; and it should also remind us more generally to be cautious when we hear assurances (even sincere assurances) that some broadly written law won't really be interpreted literally: In our fairly decentralized systems, local officials (or, for civil statutes, plaintiffs and their lawyers) often have ample incentive to push the envelope. (For the text of the statute, see here, and search for 14-288.21.)

     A LEXIS search reveals (to my surprise) that this story hasn't yet made its way outside the local Southeastern papers, except to the Village Voice. Thanks to for the pointer.


Why Jonathan Pollard shouldn't be freed: My friend Eugene V. Kontorovich, a lawprof at George Mason University, has a Jerusalem Post op-ed making the case against freeing Pollard. I've generally managed to remain rationally ignorant of the Pollard controversy, so I'm not positive about the soundness of Kontorovich's arguments; but they generally seem quite sensible to me. And the closing, which relates to whether Israel should be trying to spring Pollard, seems to be especially apt:
There are two types of gestures Israel could request. The first type does not harm American security, and indeed could simultaneously benefit both countries. These would be "free" goodwill gestures from Washington's perspective. The second type of compromise is zero-sum, where a benefit to one side requires sacrifice by the other. Pollard's release would be such a concession.

Israel can secure many more concessions that are costless from Washington's perspective than it can secure zero-sum concessions. The latter will come at the expense of the former.

For example, Israel could request that America not insist on any releases of Palestinian prisoners held by Israel, or that America honor Prime Minister Ariel Sharon's reservations to the road map, and refrain from criticizing Israel's anti- terror operations. Such requests cost America nothing, and indeed, reaffirm the two nations' alliance in a common war against Islamic terror.

If, however, the US springs Pollard, potentially undermining its own security, it will be difficult to ask for further road-map-related concessions in the name of Israel's security.

Indeed, if President Bush wanted to win temporary Palestinian acquiescence in the road map by pressuring Israel into a massive release of prisoners, he could pick no better strategy than releasing Pollard, and then demanding that Israel do its painful bit for peace.

In the wake of Pollard's release it would be very hard for Israel to deny American requests to let hundreds of captured Palestinian terrorists go back to business. Of course, any comparison between Pollard and Palestinian terrorists is odious. But the unavoidable danger of tying his fate to the peace process is that while Israel might ask for his release as a reward for prior Israeli concessions, it would in fact commit Israel to future prisoner releases.

Instead of asking Washington to free criminals it is not inclined to free in exchange for America asking Israel to do the same, Israel and its friends should insist that just as the US decides its national security questions according to its own lights, Israel should be allowed to do the same.


Why I'm a party line voter: Many people, I find, are opposed to "party line" voting (by which I mean voting in partisan general elections based almost entirely on candidates' party affiliation, rather than focusing more on each candidate's own particular politics or character). Such party line voting, they argue, shows laziness, stereotyping, or lack of independence. I, on the other hand, think that in most situations party line voting is just the most sensible, pragmatic approach. A few words on why.

     1. Elections of legislators (federal or state). Which particular people are in the legislature definitely matters -- but which party has a legislative majority matters far more. Legislative power is generally exercised by organized legislative party blocs, not by individual representatives who make up their own minds.

     I generally think the country would be better off if the Republicans (for all their warts) are in control than if the Democrats are. So if I and those like me vote for a Democratic candidate over a Republican because we think that this particular Democrat is better (smarter, more honest, or even more in agreement with us on many issues, despite his party affiliation), and this candidate's election ends up giving Democrats control of the relevant legislative chamber, then we've hurt the causes that we favor: By electing this candidate, whom we like, we've essentially elected a party that we dislike. And even if the candidate breaks with the party in some cases (which may be part of why we voted for him), in most situations -- both when voting on legislation, and, as importantly, voting on whom to put on various legislative committees and the like -- he'll follow party discipline.

     2. Elections of Presidents and governors. Presidents and governors ostensibly exercise executive power by themselves, so I may well imagine that an honest, smart Democrat may do a better job than a dishonest, dumb Republican.

     But in reality, electing a President or governor also means electing his party, and not just him. First, he'll probably select a cabinet that's drawn from a wide chunk of his own party (since, among other things, he needs to maintain good relations with the party faithful). He may well appoint some judges that he might not much like, but that help cement relations with various wings of his party. And a Democratic President may let a Democratic Congress get its way on more issues (even ones on which he doesn't fully agree with them), or may block the Republican Congress's proposals (even ones which he doesn't much disagree with), because that's what his party base will want. (Naturally, all this applies equally to Republican Presidents.)

     Consequences: This suggests to me that one should basically ask "Which party do I want to see in power?," and then vote for candidates of that party nearly all the time -- because you are in effect electing a party, more than you are electing a person. There are, of course, some exceptions:

     A. The truly awful candidates. Some candidates are so bad -- either so personally dishonest or corrupt, or so far from your own views -- that you might refuse to vote for them, even if you generally support their party. First, you might just feel that you can't endorse this person; second, even if your view is purely instrumental, you might think that it's better for your party if this member of the party is defeated than if he wins. I'd have voted against David Duke in Louisiana for both of those reasons.

     B. Trying to affect the position of your own preferred party. In some situations, you might feel more strongly about sending a message to the leadership of your preferred party than you do about winning this particular election. I take it that this is what some (though not all) Nader voters who otherwise preferred Democrats were thinking in 2000, as were some Libertarian voters who otherwise preferred Republicans. I think this is a dangerous game to play, but if that's what you're self-consciously trying to do, then I can see why you'd vote against your otherwise preferred party. Again, though, the focus should be on which party you want to elect, and not whether you think this particular candidate is a better person than the other one.

     C. Nonpartisan elections and primaries. Naturally, none of this applies to nonpartisan elections or to primaries where you're choosing from several candidates within the same party.

     D. Intentionally voting for split government. You might conclude that it's better for the country if control of the House, Senate, and the Presidency are split; if that's so, then you might intentionally vote for one party in one race and another in another.

     E. Different preferences at different levels of government. My suggestion that you should choose your preferred party operates at each level of government; you might, for instance, conclude that you want the Republicans to run the country, but you want the Democrats to run the state government of your own state. That's consistent with my proposal (though who controls the states may affect who controls the federal government, and vice versa, the effect is weak enough that supporting different parties at different levels may make sense); I would just say that you should then vote for Republican candidates virtually all the time at the federal level, and for Democratic candidates virtually all the time at the state level.

     F. The voter who is really in the middle. If you are really so much in the middle that you are indifferent whether the Democrats or the Republicans win, then it of course makes sense to vote for the particular candidate that you like most, since the strategic party power considerations are by hypothesis irrelevant to you -- you'd rather elect the smart Republican over the dumb Democrat because you just don't care whether the Republicans or the Democrats are in power. I think few people really feel that way, though; I think that even if you aren't a consistent supporter of one party or the other, and even if you disagree with much that either party would do, you can probably identify what you think is the lesser of two evils (or the greater of two very slight goods) in any particular election.

     G. The voter who is near the middle, and who really cares a lot about a particular candidate. This is a more common variant of F -- say you mildly prefer the Democrats over the Republicans, but you think that this Republican candidate is much better than the Democrats, in a way that really matters: Either he has the brilliance or charisma to really add a lot to legislative deliberations, or he is running for an executive office, where one person's character, intelligence, and policy preferences really can make a huge difference. This too may be reason enough for you to abandon party-line voting; but again, you'd have to really feel that this one candidate can do so much good that the expected value of this good really exceeds the expected harm of the wrong party (from your perspective, of course) getting power.

     H. Expressive voting. Of course, there's been something of a fiction behind this whole discussion of strategic voting -- the fiction that your vote will make much of a difference. In fact, your one vote is highly unlikely to affect things (though in a few elections, including even Congressional ones, the result does turn on a handful of votes). We therefore vote largely because of how it makes us feel about ourselves (e.g., because we've been taught that to be a dutiful citizen, one should vote, or because we feel good about voting for a particular person we really like). So under that approach, if it makes you feel good to think that you vote based on each candidate's individual merit, that's what you should do, and never mind the practical consequences, since as a practical matter, your one vote is extaordinarly unlikely to actually have any practical consequences.

     Still, I find it hard to feel good about casting a vote that, if duplicated by many others, would actually lead to a result that I dislike. That might ultimately be more an esthetic rather than rational judgment here, but that's what expressive voting necessarily involves. Thus, so long as I feel that I ought to vote, based on the fiction that my vote does have some practical effect, I prefer to go through with the fiction, and ask what practical effect that I'd like to have. And since my preferred practical effect is having the Republican Party be in power, I almost always vote party line.

     Finally, I'm sure that there are other reasons to depart from party line voting, though I suspect that most are variants on some of the ones I identify above. I'm not saying that party line voting is always the right approach (right in the sense of being most likely to lead to the results that you, as a voter, like) -- but I think there is enough reason for me to adopt it as a very strong presumption in my voting choices.


On the importance of proactive antiterrorism From the Forward:

In June, Fatah power broker Marwan Barghouti wrote a note from his Israeli jail cell to Khaled Mashal, Hamas's negotiator in Damascus, urging a cease-fire with Israel. Barghouti, who despite being on trial for the murder of 26 Israelis, passes for a "moderate" in the lethal caldron of Palestinian politics, observed that since the September 11 attacks, the wars in Afghanistan and Iraq, among other events, "have destroyed countries and movements." The Islamic militants risked the same fate, Barghouti warned.

These mostly overlooked yet critical five words — "have destroyed countries and movements" — vindicate the Bush-Blair anti-terrorism strategy, as well as Prime Minister Sharon's proactive approach to Palestinian terrorism. As the American army searches for enough weapons of mass destruction to justify anti-war critics, while the media harps on 16 words which may have been inaccurate during the verbal avalanche preceding the war, these five words prove that three decades of Western appeasement have ended — and the message is resonating in Damascus, Ramallah, Tehran and Baghdad, if not yet in London, New York and northern Tel Aviv.


Expression of Christian beliefs on homosexuality illegal in Canada? While Ireland debates whether Christian condemnation of homosexual activity is illegal (see Eugene's post below), advocating traditional Christian opposition to homosexual sex is apparently already illegal in Canada, as I discuss here:

For example, the Saskatchewan Human Rights Commission ordered the Saskatoon Star Phoenix newspaper and Hugh Owens to each pay $1,500 (appoximately $1,000 U.S.) to each of three gay activists as damages for publication of an advertisement placed by Owens conveying the message that the Bible condemns homosexual acts. The ad conveyed this message by citing passages from the Bible, with an equal sign placed between the verse references and a drawing of two males holding hands overlaid with the universal nullification symbol—a red circle with a diagonal bar.


Any gains the gay rights movement has received from the [general] crackdown on ["offensive"] speech in Canada have been pyrrhic, because as part of the Canadian government’s suppression of obscene material, Canadian customs frequently target books with homosexual content. Customs seizures have included Pornography, a book by MacKinnon collaborator and prominent feminist Andrea Dworkin, and several serious novels. A gay organization had to spend $14,000 (approximately $9,600 U.S.) in legal fees to force customs agents to allow The Joy of Gay Sex into the country. Police raids searching for obscene materials have disproportionately targeted gay organizations and bookstores. Two gay activists at the University of Toronto were fined for selling Bad Attitude, a lesbian magazine with sadomasochistic content. According to the ACLU, “more than half of all feminist bookstores in Canada have had materials confiscated or the sales of some materials suspended by the government.” The Canadians are, therefore, living proof of the way progressive censorship rules can come back to bite the constituencies that endorsed them.


Spreading Pope's message may lead to prosecution: I disagree with the Pope's message on homosexuality, but this is just outrageous:
Clergy and bishops who distribute the Vatican's latest publication describing homosexual activity as "evil" could face prosecution under incitement to hatred legislation.

The Irish Council for Civil Liberties (ICCL) has warned that the language in the 12-page booklet is so strong it could be interpreted as being in breach of the Act.

Published by the Congregation for the Doctrine of the Faith, it states that Catholics have a duty to oppose the introduction and operation of legislation recognising same-sex unions. It identifies politicians as having a duty to vote against any such moves.

According to the document, Catholic teaching states that while homosexuals should be treated with "respect, compassion and sensitivity", homosexuality was "objectively disordered".

"Those who would move from tolerance to the legitimisation of specific rights for cohabiting homosexual persons need to be reminded that the approval or legalisation of evil is something far different from the toleration of evil," it states.

It also claims that allowing children to be adopted into same-sex unions would mean "doing violence to these children". This would place them "in an environment that is not conducive to their full human development".

Ms Aisling Reidy, director of the ICCL, warned yesterday that the statement could be in violation of the 1989 Incitement to Hatred Act. Those convicted under the Act can face jail terms of up to six months.

"The document itself may not violate the Act, but if you were to use the document to say that gays are evil, it is likely to give rise to hatred, which is against the Act," according to Ms Reidy. "The wording is very strong and certainly goes against the spirit of the legislation."

Under the Act literature which is threatening, abusive or insulting, linked with the intent of stirring up hatred, is illegal.
     Those who opposed "hate speech" legislation by warning about slippery slopes -- that bans on Nazi speech will eventually lead to bans on Catholic speech, or the speech of other groups that have dissenting views about sexual orientation, gender relations, religion, and such -- are apparently being proved right. And remember: This is in Ireland, in which, as I understand it, devout Catholicism is still a strong political force. How will religious groups that spread dissenting moral ideas fare in other European countries, where they are small, powerless minorities? (Thanks to my friend and fellow lawprof Rick Garnett for the pointer.)

UPDATE: Reader Henry Farrell writes that the complaint may not be that likely to go far:
The piece of legislation that [the story] mentions, the Incitement to Hatred Act, has been on the books since 1989. To the best of my knowledge, which may not be 100% accurate (the most recent report I've been able to find is from 2002), there has been only one successful prosecution under the Act in its fourteen years on the statute book. It's a notoriously ineffective piece of legislation; there are periodic mutterings about revising it, but so far to no effect. It's notable that the prediction comes from a civil society group - the ICCL - which has a direct stake in the debate (it's hostile to the church), and in stirring up some political controversy. The Catholic church's standing in Irish life has diminished over the last fifteen years, thanks to a series of abuse scandals, but that the chances that it will be prosecuted under this statute are zero. . . .
Well, I hope this is so, but the trouble with these sorts of laws is that one can never be quite sure, given how broadly and vaguely they tend to be worded. In relevant part, for instance, this Act prohibits people from publishing or saying things that "are threatening, abusive or insulting and are intended or, having regard to all the circumstances, are likely to stir up hatred," where "hatred" is defined as "hatred . . . on account of their race, colour, nationality, religion, ethnic or national origins, membership of the travelling community or sexual orientation . . . ." So saying that homosexuality is evil -- or, for that matter, that Catholicism is evil -- may well be criminal, because it is "insulting" and is "likely to stir up hatred" (even if the speaker isn't intending to do stir up hatred). After all, people do often hate things and people that they believe are evil.

     Furthermore, if the chief reason that the Catholic church isn't going to be prosecuted is that it still has high "standing in Irish life," then that simply shows that the law is likely to be applied in discriminatory ways -- ideological and religious groups that have low standing in Irish life could be punished for expressing their views, while the Catholic church would be immune. So while I'm happy that the law seems not to be applied often, it's there, leading Irish newspapers discuss it with no hint that it has essentially fallen into irrelevance, and its text does outlaw a broad range of debate about a broad range of issues.


Should we force China to revalue the yuan? There has been recent controversy as to whether the U.S. should pressure China to allow a higher yuan. Most of the facts are pretty simple. The Chinese government spends millions of dollars every day to keep down the value of the yuan, and it restricts capital movements. Estimates suggest that the yuan would rise 20 to 50 percent under laissez-faire. Chinese exports have been very strong. The United States has lost several million manufacturing jobs under the Bush administration.

But Americans have little to worry about. A weak yuan means that we buy Chinese exports more cheaply than otherwise (China now exports about $125 billion to the United States, if you can trust the usual figures, and is likely to become our second largest trading partner, so we save quite a bit). Basically Chinese citizens subsidize Chinese exporters, since it is costly for the Chinese government to keep the yuan down. Walmart shoppers benefit, at the expense of those living well below the poverty line.

If China takes away some of our manufacturing jobs, so much for the better. Our economy will end up switching to higher-paying jobs, as it has throughout the history of international trade. And far more jobs will be created selling to the Chinese, or by buying inputs more cheaply from China (Walmart is the biggest private sector employer in over twenty states, or think of buying your factory materials from China).

I can think of two scenarios where China might benefit from an artificially low yuan. First, perhaps rapid export development will bring beneficial consequences for China as a whole. It might shift the balance of political power further toward commercial interests, and thus make China freer and more capitalist. Second, subsidizing exporters might be the only way of letting the massive number of Chinese state-owned firms dwindle into relative insignificance (efforts at "privatization" often fail, due to corruption). So the weak yuan policy is not bad a priori.

But most likely, it is simply special interests at work, Chinese exporters grabbing what they can. In that case American interference would be a kind of altruism, improving the Chinese polity at the expense of American shoppers. I can think of worse things to do, but I will return to my original advice not to worry.


You really ought to go read: Chris Bertram's terrific interview with Michael Walzer in the new issue of Imprints. Chris asks some great questions-- and they provoke characteristically thoughtful, interesting, and sometimes wise answers from Walzer. (Link, unsurprisingly, via Chris, on Crooked Timber.) [UPDATE: Chris e-mails that " the questions were from the Imprints collective as a whole - so I can't really take credit for them in the way you suggest."]

Rather than swipe big chunks of the interview and blockquote them, I'll just urge you to pay special attention to the analysis of Europe, America, demonstrators, and Iraq-- much more serious, I think, than the Habermas-Derrida effort-- the commentary on Israel and Palestine; and the reflections on political philosophy, egalitarianism, and political theory, including his recollections of the Philosophy & Public Affairs group.


The Volokh Borg is delighted to announce that it's assimilating David Bernstein, my friend and fellow law professor. David teaches at George Mason University School of Law, and specializes in (among other things) tort law, evidence law, constitutional law, and environmental law. David was of course a guest-blogger last week, and I'm very happy that he's agreed to join us on a more permanent basis.

Sunday, August 03, 2003


A reminder about sending reference to blog posts: If you include both the URL and the text of the post -- even if the text looks ugly, because some formatting is lost -- this substantially increases the chance that the recipient will read the item. True, clicking on a link isn't that much work. But when one is in a hurry, has a couple of dozen such messages in one's mailbox, and is reading them over a slow connection, the extra time needed to click through on each message piles up.


Should you be glad you did not buy that Monet? Recent research by Michael Moses and Jianping Mei indicates that artistic masterpieces offer inferior pecuniary rewards over time, relative to lesser known artworks (see "Survey of art prices produces some surprises" in this weekend's FT, I can't find a useful link). The works in the top quarter of a Sotheby's index rose by 6.6 percent a year, on average, since 1925. The works in the bottom quarter rose 11.5 percent a year, almost twice as much.

From Moscow, I can't track down the original source, but I am suspicious of a "survivor bias" in the results. The achieved returns sound way too high for either category. If they are using Sotheby's data, maybe they only pick up those works valuable enough to stay in the Sotheby's sample over time. This will miss the large number of total losers, and of course the total losers will really plague that bottom quarter of the distribution.


Tragic, yet I laughed Yesterday's Moscow Times offered a story that Stalin plotted to have John Wayne murdered, because he was so outraged by the movie actor's anti-communism. Khrushchev cancelled the plots after Stalin's death. The article cites a new book by Michael Munn, John Wayne - The Man Behind the Myth. Two Russian assassins supposedly were to kill Wayne in his Warner Bros. office, until the plot was uncovered. The article cites Reuters, I found a Google link in German (don't worry about your fluency, check out the photo juxtaposition). Caveat emptor, but who knows?


Why people download music but don't steal, continued... A new Pew study tells us that most music downloaders do not even think about the law.

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