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Saturday, September 13, 2003


A good argument for copyright in music You've just earned a $250,000 advance for your rock band, and you don't see any real profit from it. Why not? Read this post to find out why. The money gets soaked up by managers, agents, recording expenses, marketing costs, lawyers, studios, and so on. In fact musical artists often end up owing their music companies. The indicated post is an anti-music company screed, but it is (unintentionally) one of the better arguments for copyright I have seen. True, most musical artists never see much copyright income, it gets grabbed by other parties along the way. But without copyright income the artists would be deeply, deeply in debt, or more realistically would never have the chance to record in the first place.

Most economists that I know think copyright lasts for too long, and that "fair use" is interpreted too strictly. Rappers should be freer to sample than under current law. But if there were no copyright, it would be hard to fund a music industry at anything close to current levels.

Thanks to Chris Siebenmann for the lead on the link.


Hey, that's right! If it was Dan's bloggiversary this week, then it must've been mine, too, because we independently started our blogs within a couple of days of each other. I had reserved the blogspot real estate earlier, but only actually started writing on Septmber 7.

Friday, September 12, 2003


Bork's Latest: Robert Bork's new book, Coercing Virtue: The Worldwide Rule of Judges is out. I saw an American Enterprise book catalogue that stated that AEI is printing 100,000 copies of the book. As a fellow author, with my own topical law book coming out on in a couple of weeks, I wish Bork luck. But even given Bork's celebrity, can there really be 100,000 people out there sufficiently interested in the rather esoteric topic of judicial activism around the world to buy the book? I guess we'll see. The book is currently number 63 at Amazon, whatever that means.

UPDATE: Readers who think Bork is a reactionary may be amused to discover that Amazon lists an earlier Canadian version of the book as having a publication date of 1902. Of course in my view, not all developments in American constitutional law since then have been for the better.


No call for hiring preferences for conservatives, after all: I'm happy to report that David Horowitz has stressed that the material discussed here is not in fact intended to be a call for politics-based preferences in public university hiring; and that the Academic Bill of Rights mentioned in the post has been changed to say "No faculty shall be hired or fired or denied promotion or tenure on the basis of his or her political or religious beliefs" rather than "solely on the basis of . . ." (emphasis added). This makes me feel a lot better about the proposal, which was originally described in news reports as being a call for preferences, not just against discrimination.


More briefs in the South Dakota cyber-libel / "treason" lawsuit: I blogged about this several weeks ago, and I joined an amicus brief supporting the Web site operator. The other side's brief, and the response to that brief, are now up on the site (scroll down to "The Legal Arena"); the South Dakota Politics blog is also covering this.


Reuters @#!*#! Reuters "reports" that "[t]hree years ago, a Palestinian uprising for statehood erupted after Israel's opposition leader at the time, Ariel Sharon, visited the compound."

Dear Reuters:

I was wondering if your staff has even the vaguest awareness that the Palestinians had just been offered a state weeks before (at Camp David) by the one man with the power to give it to them, Ehud Barak. Therefore, the "uprising" could not possibly have been over statehood. Months later, Barak renewed the offer (at Taba), and made it more generous than even dovish Israelis would have thought possible. The "uprising" continued, and indeed became more violent. The sticking point was not statehood, but whether the Palestinians would accept one state, on the West Bank and in Gaza, or would hold out for two by insisting on the "right of return." They chose the latter.

David Bernstein

P.S. Your "reporting" has consequences. I've gotten several emails in recent weeks suggesting that the Palestinians wouldn't be so dang violent if Israel would just offer them a state. Please try to stop misinforming the public.


Brief request: Thought I'd mention this again -- if you want to pass along a post on your blog or on someone else's, I'd love to see it, but it's much easier if you include the text of the post as well as the URL. It doesn't take much time to click on a link, but on a slow connection, it does take some, and when one has dozens of messages to slog through, that extra time can make a difference (often the difference between looking at the text and not looking at it). I suspect that other bloggers have a similar perspective.


Scientific Evidence Rules: I'm writing a paper on the rules for the admissibility for scientific evidence in state courts, and two states leave me stumped: Virginia, which has clearly abandoned the common law Frye general acceptance test, but has not clearly replaced it with anything else; and California, where opinions from the 1980s suggest that the state supreme court wants Frye applied only to very limited categories of scientific evidence in criminal cases, but where there is no post-Daubert [important USSC case on scientific evidence] case discussing whether Frye should nowadays also apply in civil cases, as it does post-Daubert in the overwhelming majority of Frye states. It's quite obvious to me that there must be many, many, lower court rulings on these issues in both states. For example, I know of two trial court opinions in California applying Frye to evidence in toxic tort and product liability cases. However, such opinions are unpublished and are not publicly available. If any readers out there know of such cases and would be willing to send copies of relevant opinions to me, I would be much obliged. I can be contacted at dbernste at


The Red Sox and the Reverse Tinkerbell: Tom Boswell, who surely is one of the best (if not the best) sportswriters out there, has a wonderful column about whether or not this, in fact, is finally "the Red Sox' year." Precisely because nobody thinks this is the Red Sox' year -- the Red Sox GM is quoted to the effect that they should trademark the slogan "This is not the year" -- it is going to be. Another Reverse Tinkerbell -- the more that people believe it to be true, the less true it is; to the extent nobody believes it's true, it becomes true. Nice!


More on Jews and Jesus: Why do Jews accept practicing Buddhists who are born Jews as Jews, but generally not "Hebrew Christians" of the variety that sincerely believe themselves to be Jews who believe in Jesus (as opposed to Jews who acknowledge they have become Christians to the exclusion of any Jewish identity)? For that matter, why are conversion rates to Christianity among American Jews so low? Last I read, in the U.S. there are about as many Christian converts to Judaism as Jewish converts to Christianity, an astonishing statistic considering (a) the relatively large percentage of Jews who don't believe in Judaism as a theological matter, and could thus in theory adopt Christianity; (b) Christians missionize among Jews, but not vice versa; (c) becoming a Jews would seem to many an inherently dangerous act, at least over the generations. Admittedly, the statistic is a bit skewed because committed Jews are more likely to insist that their non-Jewish spouse convert than Christians who marry Jews are to insist that their partners convert, but the overall small number of Jewish converts is still remarkable [EDIT: Statistically speaking, it's the small number of Jewish converts, not the ratio of Christian to Jewish converts, that is the really interesting fact. I concede, thanks to several readers, the statistical invalidity of my original comparison, given the disparity in numbers between Chrisitians and Jews.]. At least from the nonscientific sample biographies I've read or heard, for the most part people in the US who have Jewish ancestry but are practicing Christians are such because a past mixed marriage halted the transmission of Jewish identity, not because the Jewish ancestor converted. Barry Goldwater is an example that springs to mind.

The answer is at least in part that Jews have a residual distrust of Christianity born of centuries of oppression in Europe, both by the official church (which, for example, encouraged the Spanish Expulsion/forced conversion and then tried to ferret out hidden Jews via the Inqusition), and by local priests and ministers (who, for example, often fomented pogroms on Christian holidays through anti-Semitic sermons in church). Jewish believers in Jesus are especially culturally suspect because for centuries converts from Judaism to Christianity tended to be among the biggest troublemakers for Jews, for example often organizing
"disputations" in which Rabbis were forced to engage in public debates about the relative merits of Christianity and Judaism. Riots, burnings of holy books, etc., often followed. The converts themselves were often motivated to convert not by sudden religious inspiration but by a desire to absolve themselves of debt or settle a score against the Jewish community.

It's therefore not surprising that one often reads how a large percentage of American Buddhists, Moonies, or other minority religions are Jews. Born Jews looking for spiritual sustenance outside of Judaism are relatively unlikely to turn to Christianity because there is still the inherited recollecton of organized Christiandom as a deadly enemy. I've explained this to Christians, who typically get offended. But that's not true Christianity!, they protest. Moreover, whatever the sins of European Christiandom against Jews, American Christianity has arguably if anything overall been philo-Semitic. All true. But I'm talking about deep-seated, inherited cultural fears, not objective analysis.

Note that this is not analogous to anti-Semitism. Inherited distrust or whatnot of Christianity does not mean that Jews dislike Christians, or think ill of them, or even want them to stop practicing Christianity. Contrary to what some right-wing kooks argue, there is no Jewish ACLU plot to destroy Christianity; the Jews most likely to join "secular humanist" groups are those least attached to the Jewish community, and thus least aware of the underlying historical antagonism between Judaism and Christianity. These individuals tend to come from militant socialist families, the spiritual and perhaps literal descendants of Jews who used to have fancy banquests on the Yom Kippur fast day to show their contempt for religion. The origins of such militant secularism among an element of the Jewish community is not something I've seen explored in much detail, perhaps a reader can point me to the relevant literature. But the militant secularists are typically as hostile to Judaism as to Christianity.

What collective memories of oppression in the name of Christianity does mean is that many Jews could not conceive of themselves as Christians, and, moreover, see the adoption of Christian beliefs by Jews, as opposed to, for example, adoption of Buddhism, as abandonment of the group.

Obviously, this is simply my own interpretation of things, not any sort of "official" analysis. And the potential hole in my argument is that a relatively large percentage of Central European Jews (such as the Gabor sisters' ancestors) did in fact convert to Christianity in the 19th Century. But perhaps this reflects a difference in outlook between Central European and Eastern European Jews. American Jews are overwhelmingly descended from the latter group.


Commercial speech: It looks like the interesting questions raised by the Nike v. Kasky case -- when is a business's speech fully protected by the First Amendment, and when is it commercial advertising -- will not be resolved in this litigation. The U.S. Supreme Court dismissed the case on procedural grounds, though leaving open the possibility that the Justices would hear the case again when there was a final judgment and an appeal from that judgment; but the case has now settled, so there won't be a final judgment to appeal from. Here's an exerpt from a Nike press release:
The settlement

Under the disclosed terms of the settlement, Nike has agreed to make new workplace-related program investments totaling $1.5 million, augmenting the company's existing expenditures on monitoring, training and development.

Nike's contribution will go to the Washington, D.C. - based Fair Labor Association (FLA) for program operations. Over the next three years, the funds will specifically address three primary areas:

* Increased local capacity building and improved quality of i independent monitoring in developing countries;

* Worker development programs focused on education and economic opportunity, and;

* Multi-sector collaboration to advance a common global standard to measure and report on corporate responsibility performance among companies.

Nike also agreed to maintain its existing funding commitment to its after-hours worker education programs in its footwear facilities and micro-loan programs at a minimum of $500,000 over the next two years.

The legal issues

As you know, the U.S. Supreme Court dismissed this case in late June and, in doing so, refused to overturn the California Supreme Court ruling which severely restricts the ability of businesses and other organizations to speak out on matters of public importance. Although they were in the minority arguing that the case must be heard at this stage, Justices Breyer and O'Connor supported our position on the immediacy of the threat to free speech. They recognized that "the questions presented directly concern the freedom of Americans to speak about public matters in public debate, no jurisdictional rule prevents us from deciding these questions now, and delay itself may inhibit the exercise of constitutionally protected rights of free speech." They also wrote that the California Supreme Court's decision was inconsistent with the First Amendment because it "authorizes a purely ideological plaintiff, convinced that his opponent is not telling the truth, to bring into the courtroom the kind of political battle better waged in other forums." Justice Breyer further predicted that Nike would eventually prevail on its First Amendment claims.

Although the U.S. Supreme Court issued no formal decision, the five members of the Court who joined in written opinions expressly rejected the central holding of the California Supreme Court that Nike's speech could be restricted as purely "commercial." As such, we believe we would have prevailed if we were able to return to the U.S. Supreme Court. However, in order to have the distinction between commercial and truly free speech examined again by the Supreme Court, Nike would have to lose at trial in California. A victory at trial would not have reversed the California Supreme Court's very broad definition of commercial speech. As you can imagine, we did not relish the thought of spending the next several years expending extensive resources litigating the claims raised in the suit, especially when even victory at trial would leave us with an unsatisfactory outcome on the fundamental question of whether Nike could speak with confidence in California going forward.

After making the assessment set out above, we concluded that settlement that focused on benefits to workers was the right choice. We firmly believe that this settlement is consistent with our long-term commitment to helping to improve the lives of workers, their families and their communities.

Like you, we remain quite concerned about the implications of the California Supreme Court ruling on issues of transparency -- specifically companies who wish to report publicly on their progress in the areas of corporate responsibility. Nonetheless, we believe that there will be other legal challenges, as well as legislative efforts to amend the California statute.

And, we will do our part in supporting those efforts.

Corporate responsibility reporting

Due to the potential difficulties posed by the application of the California ruling, Nike has decided not to issue its corporate responsibility report externally for its fiscal year 2002. We will also continue to limit our participation in public events and media engagement in California.

As you know, Nike has been in a unique position both in this specific lawsuit and in relation to globalization issues. The case had a chilling effect on Nike's ability to speak out on issues of public importance. It prohibited us from talking to consumers, partners and critics about our response to critical globalization issues of labor, the environment and workers' rights. And, unfortunately, it continues to have that effect for us, and from what we have heard from other companies and institutions, it is also causing them to review their policies and external communications as well.

Regardless of the speech implications, we remain committed to continuing to integrate corporate responsibility into the heart of our business. Nike has learned a great deal since the suit was filed five years ago, and the way we address the complexities of globalization will continue to evolve.

Again, we thank you for your support throughout this litigation. It is not often that the U.S. government, the ACLU, organized labor, dozens of media organizations and the U.S. Chamber of Commerce come together in defense of the same legal position.


Jim Carter

Vice President and General Counsel


Comic strip radio: Begging to Differ has a cool idea: Put up a bunch of online comic strips this Sunday. I haven't explored online comics much (except Day by Day, which I read religiously), but this sounds like a good way to showcase new items so people can indeed find new gems.

     In a world of information overload, these sorts of showcase media -- which involve a reviewing agent that winnows the options down to enough that people can quickly look through them -- are invaluable, just as radio is invaluable for introducing people to music they would otherwise not have heard about. Check it out Sunday or Monday.


The conceptual plausibility of intellectual property: I've recently gotten some messages asking why intellectual property makes sense at all. Sure, they say, it's good to have property in land and in tangible items -- but the concept just doesn't make sense for expression (copyright) or inventions and ideas (patent).

     I want to speak briefly to this. I think the concept does make sense, and cannot be quickly dismissed on conceptual or moral grounds. The analogies between tangible property and intangible property are indeed fairly significant. Intellectual property may yet been shown to be pragmatically unsound, in some or even all of its parts; I'm certainly not an unconditional defender of intellectual property law. But the sound arguments against it, like the arguments for it, are more complex than some suggest. (The impatient may want to skip to item 2 and the well example in item 4 below, which may be less familiar than the other materials.)

     1. Property as a right to use plus a right to exclude. You own your house, and you own your car. This means (oversimplifying) that you have a right to use this property, and a right to keep others from using it. As it happens, the right to exclude is usually necessary to make the right to use work -- if others could use your car without limit, there'd often be times when you couldn't use it. But as we'll see shortly, that needn't be so. (Not all property interests involve a right to use plus a right to exclude, but let's set that aside for now.)

     In lay usage, people often think of property as being necessarily something physical; but law generally doesn't require this. In particular, copyright and patent are treated as property because, like property in land or goods, they are (not unlimited) rights to use a work or an invention, plus (not unlimited) rights to exclude others from using it. That's really what it means to say that they are "intellectual property."

     2. Property as a limits on others' freedom of action. From this follows another important point: All property that has a right-to-exclude component is a limit on others' freedom of action. If you own your land, this limits my freedom to walk on it.

     Now we often don't perceive this as limits on freedom of action, because we're used to it, and aren't much troubled by it. But sometimes we do sense it: For instance, when there's talk of taking public beaches (i.e., beaches open to all, with no individual having a right to exclude others) and turning them into someone's private property, people might say "Hey, that means I won't be free to go to that beach any more." Likewise, homeless people who want to take shelter on private property may be keenly aware that the owner's right to exclude interferes with their liberty to go onto that property.

     These limits may be legitimate, because we might conclude that you shouldn't have a moral or legal right to walk onto my property. (After all, my right to life is also a limit on your freedom not to kill me, but a justifiable one.) But that just means the question is "Which forms of property are proper limits on others' freedom" -- not that some forms of right-to-exclude property are limits and others aren't.

     So copyrights and patents are certainly limits on others' freedom. They keep me from copying your computer program on my computer in my office from disks that I lawfully own. But in this respect, they are similar to, not different from, property rights in tangible items.

     3. Why have property? Property feels right to many of us because of a sense that each of us should own the fruit of our labor. (Incidentally, that's why copyright and patent feel right to many people, too.) But this is at least not the whole story, because some property -- such as land -- wasn't created by its owners.

     Say there's a large stretch of land that's commonly owned, such as the West of the U.S. once was. (Ignore the complications raised by the presence of American Indians.) The government decided to open the land for private ownership. It didn't have to do it; it could have kept it as a giant park, and no-one's property rights would have been harmed. But it gave or sold the land to people who didn't create it, thus limiting the freedom of action of all others.

     The reason for this was incentive: If people have the right to exclude others from their land, they'll have more incentive to invest effort in improving the land -- build homes, plant crops, and so on. We could have had open parkland with everyone free to sleep and pick fruit anywhere, but few shelters or orchards. Instead, we limited people's freedom, and got more homes and hotels (though ones that cost money to sleep in) and agriculture (though you need to buy apples from people, not just gather them).

     So far, the argument tracks copyright and patent law quite well. The theory of intellectual property is likewise that giving people the right to exclude others from new works or inventions will give people an incentive to invest effort in creating and inventing. We would have less legal freedom of action -- you'll be more limited in what you can do in your own office or garage -- but we'd have more wealth, because there'll be a lot more works and inventions, albeit ones that it may cost you money to use.

     4. The rivalrous and the nonrivalrous, and the example of the well. There is, of course, an important distinction: Only a limited number of people can sleep in your house, or eat your apples. If people were free to come on your land and consume your crops -- "rivalrous goods" -- then you (and the people whom you sell rights to) wouldn't have a place to sleep or food to eat. But if people were free to copy your book or reproduce your invention, you'd still be free to do the same yourself, since these items are "nonrivalrous." So no need for property law here, right?

     But that makes sense only if you see property law as focused solely on securing the rights to use. If property law -- in land and in goods -- also legitimately protects the right to exclude, not just as a way of protecting the right to use but also as a way to give people enough incentive to invest time and effort, then intellectual property law does make sense even if such property is nonrivalrous.

     Consider an example: Imagine that there are a few hundred farmers living out in relatively well-irrigated countryside. Each farmer can dig a well, which will amply serve the farmer and many nearby farmers; that's just the property of a well -- even a small well provides lots of water, much more than one farmer would need. Moreover, the water table is huge, and the farmers aren't going to exhaust it. But, it turns out, the well takes a lot of money to dig (the money goes for renting equipment and paying laborers).

     Say that you create a well on your property, and start charging your neighbors, who don't have such wells, for access to it. Many of your neighbors are willing to pay; your well is closer and more convenient than other competitor wells. But some others just come and take the water for free. "This water is nonrivalrous," they say. "If I take the water, I'm not going to interfere with your or your customers' right to use it, nor will I really interfere with any work you do on your land on the way to the well."

     You'd be upset, but that's not my concern. My concern is that if this starts happening, and other neighbors see that they can take water without paying, other farmers won't drill as many wells: They'll know that if they do spend the money to dig the well, they probably won't be able to recover this investment. Maybe they'll find some less effective and more expensive ways of getting payment (for instance, they may invest more money into putting up very high-tech fences -- technological self-help rather than reliance on law), but this will still mean many fewer wells built, and much more expensive water.

     Even for the nonrivalrous good, destroying the right to exclude has taken away much of the incentive to invest. It hasn't taken away all the incentive; even destroying all property wouldn't take away all the incentive to invest effort. But it has taken away a lot, likely enough to make society on balance considerably worse off.

     I give this as an example because the well is tangible property, not intangible property. Most of my pro-property readers would have no trouble concluding that the well owner should have the right to protect the property. But why? Here there's a situation where tangible property really is nonrivalrous. (There are other, more limited, examples of this, too, having to do with excess capacity in mostly empty theaters, airplanes, and so on, though there the excess capacity is much more limited, and removing the right to exclude eventually will remove the right to use.) Others' use of the well doesn't interfere with my right to use.

     This scenario, I think, shows that there indeed is more to property than securing the right to use; there's also the need for an incentive to create new works (plus perhaps a moral right to have exclusive control of the fruits of one's labor, but actually I'm not relying on this here). And if this is so for tangible property, then this may be so for intellectual property too.

     * * *

     Now this has been an extremely limited defense: I've only shown that intellectual property is conceptually similar to tangible property in many ways, even though intellectual property limits others' freedom of action (so does tangible property), and even though intellectual property is nonrivalrous.

     There are many other criticisms of intellectual property that can be made. Perhaps, for instance, it limits others' freedom of action too much. Or perhaps, at least in certain fields, there really isn't much need for intellectual property as an incentive to create. But it is these criticisms, which often turn on complex empirical judgments, that have to be the heart of an attack on intellectual property law -- the merely conceptual criticisms that I outline above do not suffice.


The new Victor Davis Hanson book, Mexifornia I don't usually blog about books that don't grab me, but there has been so much attention devoted to Victor Davis Hanson at VC, see for instance this recent post by Randy Barnett. I too am a fan of Hanson but I was disappointed by his recent Mexifornia. You can pretty much guess the contents from the title. California is being swamped by Mexicans who do not assimilate, and the American Southwest runs the risk of losing its social capital.

To his credit, Hanson sidesteps right-wing immigrant-bashing and presents a subtle rather than hysterical account. This book is a useful corrective to the "naive" pro-immigration stance that simply cites Julian Simon on the gross benefits of immigrants and ignores all the micro-problems. The problem is that I didn't learn anything from the text, and don't have any better idea of how to improve policy. I already knew that bilingual education was not a good idea. Nor do we hear much about the $12 billion in remittances expected to pass from the United States to Mexico this year, and what that sum means for the Mexican poor. At the end of the day I am still pro-immigration, even if we are not doing it very well.

By the way, did you read in today's Wall Street Journal that Latinos are flocking to Europe? In Switzerland Spanish will soon overtake Italian as the third most commonly spoken language. About a million Swiss residents speak Spanish as their primary language.


Fascinating reading: Don't miss Timothy Garton Ash on "Orwell's List."


An exchange about the Federal Marriage Amendment letter: A reader whom I much respect sent me three questions about the letter opposing the Federal Marriage Amendment. Here are my answers:
1) Why do you refer only to the people and elected representatives of states? The omission of state judges seems curious, since it's their prospective action, as well as federal judges' action, that backers of the amendment fear. Do you think it would be okay for the federal government to block state judges from creating gay marriage? Do you object to such action by state judges at all?
     Good question; perhaps we should have gone into this in a bit more detail. Two responses.

     First, the Amendment would have prohibited gay marriages even if they were enacted by referendum or by the legislature. Whether or not a narrower amendment that only disabled state courts would be OK, this was a broad amendment, not the narrower version.

     Second, I think that while state courts shouldn't enact gay marriage this way, I don't think it's the federal Constitution's business to protect state citizens from state court interference with the state legislature. The citizens of Vermont have all the power they need to change the Vermont Constitution (or even throw the Justices out); state constitutions aren't hard to change, and many state judges are elected. Let them hash it out.

     I feel more strongly about the first point than the second, though. If Congress and the other states decided to protect state citizens from their own courts, I'd grumble but wouldn't be that upset. But the FMA would also interfere with normal state legislative processes -- and that, I think, is wrong.
2) The "precedent" claim you make seems like a particularly weak kind of slippery-slope argument. Didn't we already breach this principle when Congress insisted, with some support from the courts, on state bans on polygamy more than a century ago? Why didn't the ban on bans on interracial marriage create a precedent for monkeying around with state marriage laws? And wouldn't the precedent here be that it takes a constitutional amendment to do so--which wouldn't mean you'd get an amendment every year.
     Actually, I think here the slippery slope risks are quite important. If conservatives support incursions on a matter that's so quintessentially a state-law question -- despite the few examples my correspondent gives, marriage is overwhelmingly governed by state law, much more than, say, economic affairs or even criminal law -- then it would make it much harder for conservatives to resist subsequent incursions in the future; and it would add to many moderates' perception that federalism and states' rights really aren't very important.

     Of course, there are a few situations where the federal government has already encroached here. But the normative force of a principle (feds out of this area, each state's citizens should decide) isn't just punctured by one exception. We often accept principles as rules, with attitude-altering effect, even when they have a few exceptions. But the more exceptions they are, the weaker the principle's force will be -- the more it will look like no rule at all.

     Consider the very exceptions my correspondent gives. Congress did insist on state bans on polygamy -- but it was a long time ago, and even then Congress was acting within its explicitly constitutionally delegated power, first over the Territories, when it banned polygamy before they became states, and then over the admission of new States, when it insisted on certain constitutional provisions in the new states' constitutions. That doesn't really undermine the principle that the federal government's power over marriage in the states is very narrow, and that it had no power to demand that, say, Illinois (an already admitted state) ban polygamy.

     The prohibition on antimiscegenation laws did affect existing states -- but it was an application of the Fourteenth Amendment (whether or not it fit within the original meaning of the Amendment), which was an amendment that (1) was enacted to limit the power of states, and (2) was particularly aimed, in large part, to block states from discriminating based on race. If the striking down of antimiscegenation laws undermines the principle that the federal government's power over marriage in the states is very narrow, it does so only to a very limited degree. The FMA, I think, would undermine this principle much more broadly.

     Finally, I agree that some people might interpret the FMA as standing for the principle that it takes a constitutional Amendment to interfere with state autonomy. But others -- many more, I fear -- would interpret it as standing for the principle that even conservatives, the traditional champions of relatively greater state power, don't really care much about state autonomy; and that therefore the principle that Oregonians should decide certain matters (such as marriage law) for themselves and Kansans for themselves is really pretty much dead. That, I think, would be too bad.
3) Just to clarify the value of federalism: If you're someone who believes that gay marriage is a bad idea almost by definition, presumably there is no reason to think that circumstances in Idaho make it desirable while making it undesirable in Utah. Nor is there a reason to think that state-level experimentation will reveal some new fact that will make it desirable. If you are an opponent of gay marriage, as opposed to a supporter or agnostic, what is the value of leaving the question up to the states? Is there an argument that should sway such a person?
     Sure: The argument that the citizens of a state are entitled to pass even bad laws in their own states. The value of federalism is partly experimentation, but partly local self-government -- Oregon should set marriage rules for Oregonians, Kansas for Kansans. That, it seems to me, is much worth preserving.

Thursday, September 11, 2003


Just thought of something... And maybe everyone else has long since thought of it, but I don't remember seeing it discussed. Part of the reason for the ongoing weasel-words about Saddam Hussein and terrorism is, undoubtedly, an attempt to link the Iraq war with 9/11 more tightly than any evidence supports, in order to sway American public opinion. (That's not to say that there aren't important ways in which they're linked, or that winning the war in Iraq isn't an important tactic in winning the war against al Qaeda and its allies, because the establishment of a viable Arab free society would clearly help. It's just to say that, poll results to the contrary notwithstanding and his own desires notwithstanding, there's no reason to think that Saddam Hussein or his government had any hand in 9/11. The link to al Qaeda through Ansar al-Islam matters, but AaL wasn't the branch of al Qaeda that coordinated 9/11.)

But there's another reason, too. We keep hearing the-- true-- statement that SH's regime funded terrorists. As I said, part of the reason for not specifying which terrorists is the desire to let Americans think that Osama bin Laden was on the Iraqi payroll without ever saying so. But part of it, too, is that specifying that it was Palestinian terrorists who were getting subsidized-- including via payments to the families of dead suicide bombers-- would carry the unavoidable implication that we frowned on that activity in particular. And that would mean being impolite to our very good friends in Riyadh who, well, do that all the time. If subsidizing Palestinian terrorists constitutes justification for an American invasion, then some odd consequences follow. And so we never say so.


Arafat: Israel is reportedly ready to exile Arafat. D-U-M-B. It's hard to see what this would accomplish. Exiled, he could continue to foment terrorism via phone, email, etc., under less Israeli surveillance, plus he would enjoy the adulation of the Arab and European leftist masses, and the U.S. would be angry. Arresting Arafat and putting him on trial for his crimes would be a sound idea. Bombing his headquarters--with him and the other terrorists hiding there still in it--wouldn't exactly be diplomatic, and would likely cause a short term spike in retaliatory violence, but would certainly send a message to other Palestinians about their fate if they continue to engage in terrorism. It's worth considering; it might also trigger a Palestinian civil war of succession, but having Hamas, Islamic Jihad, and the various PA factions, including the Al Asqa martyrs, turn their guns on each other is not the worst of all possible scenarios. Maybe Jordan would need to come in to settle things down, which would be a boon for everyone concerned and perhaps the only short-term hope for a peace agreement (Yitzhak Shamir really blew it by failing to offer Jordan most of the West Bank in the mid-80s, when King Hussein still wanted it.) But exile? All I see are negatives. Better to leave him where he is.


Corporation Law and Economics Blog: My friend and colleague, UCLA lawprof Stephen Bainbridge, has just started a blog on corporation law and economics, a subject that he knows a great deal about. I highly recommend it.


Zogby International Poll of Iraqis: Here is the link to what Zogby International says about the poll of Iraqi public opinion that it conducted for AEI (described in yesterday's Wall Street Journal): Zogby International Conducts 1st Scientific Survey of Iraq. Here is the opening:

Zogby International conducted interviews of 600 adults chosen at random with consideration for ethnic background, gender, religion and social class, throughout locations in Iraq. Interviews were conducted August 3-19, 2003 in Basra, Karkouk, Mousel and Al Ramadi.

The following ethnic groups - Arabs, Kurds, Turkaman, and Assyrians - were interviewed, as well as the following religious groups - Shiaa, Sunni and Christians. Interviewers traveled to public places (shopping areas and coffee shops) chosen from different social neighborhoods. The survey's margin of sampling error is +/- 4.1%.


Victor Davis Hanson--"The Great Divide": Much has appeared today on 9/11. As usual, I find Victor Davis Hanson's thoughts of interest. The title is The Great Divide: Looking back on the fires of 9/11. In the middle of a long series of questions he thinks were raised by 9/11 and its aftermath is the following passage that should be of interest even to some who oppose our current efforts in Iraq:

And why were those countries where we based thousands of troops the most likely to oppose our efforts in Iraq — whether Germans, Belgians, Greeks, Saudis, or Turks? — and their newspapers to vent virulent anti-Americanism? How helpful were tens of thousands of American soldiers stationed all over Europe to our post-9/11 security — or did we discover that 60 years after their arrival they had created age-old pernicious feelings of envy, distrust, and complacence rather than gratitude among their wealthy hosts?
This is followed by some questions that will raise different hackles:

Did either the nonexistent or the measured response after a series of attacks on Americans the past decade — in Lebanon, Africa, Saudi Arabia, New York, and Yemen — suggest to our terrorist enemies that it was wrong and unwise to kill reasonable and affable people, or did the easy killing imply that self-absorbed and pampered Lotus-eaters would not much care who or how many were butchered as long as it was within reasonable numbers and spread out over time? In this regard, why do suicide bombers blow up women and children alike in both Jerusalem and New York? And if there is not a connection to be made in method and ideology, why not?


New California Recall Poll: Just got this press release; I don't have the URL for this text (UPDATE: reader Joe Zwers just sent me the URL), so I just thought I'd quote the text. Iyengar and Fiorina are big guns in the field, and my sense is they're very highly regarded, and I have no reason to think they're biased here. But of course I have no idea whether this is sound.
From: Kate Kennedy To:
Subject: New California Recall Poll Cc:

For more information, contact:
Kate Kennedy (202) 380-0608

Californians Cast Recall “Votes” in Stanford University/Knowledge Networks Survey

Schwarzenegger has wide lead in closest approximation to date of ballot voters will use on decision day

Menlo Park, CA; September 10, 2003:
In conjunction with the Hoover Institution at Stanford University, Knowledge Networks has used its projectable Web-enabled panel to conduct a survey of likely California voters that closely approximates the daunting ballot they will face in the state’s October 7th special recall election. As on the actual ballot, the Stanford/Knowledge Networks poll asked voters whether they favor the recall of Governor Gray Davis. The survey then presented the official list of 135 replacement candidates to choose from.

The new poll of 528 likely and registered voters was conducted August 29th to September 8th and shows Californians favoring the recall of the Governor by 62% to 38% (with a margin of error of +/- 4.3 percentage points). Evidencing a strong split along party lines, 91% of Republicans – compared to 42% of Democrats – favor recalling the Governor.

Among the replacement candidates, the survey found that Republican Arnold Schwarzenegger has a commanding lead over his main rival, Democratic Lieutenant Governor Cruz Bustamante, by a margin of 40% to 28%. Only 3% of Republicans indicated that they will vote for Bustamante; but 19% of Democrats said they would vote for Schwarzenegger.

The runners-up are Republican Sen. Tom McClintock (8%), Republican Peter Ueberroth (7%), Independent Arianna Huffington (1%), and unspecified write-in candidates (7%). Bill Simon, who has withdrawn from the race but will still be on the ballot, collected 2%.

For more detailed results and information on the methodology, please view the appendix at


The Stanford/Knowledge Networks survey is the first to ask voters to choose from the same list of 135 candidates that they will see on election day. Previous polls have restricted voters’ choices to the top candidates and have allowed respondents to select “undecided” or similar options.

The Hoover Institution, founded at Stanford University in 1919 by Herbert Hoover, who went on to become the 31st president of the United States, is an interdisciplinary research center for advanced study on domestic public policy and international affairs, with an internationally renowned archives. Lead Hoover/Stanford researchers on the ballot study were:

• Shanto Iyengar, Professor of Communication and Political Science, Chairman of the Department of Communication, Stanford University

• Morris Fiorina, Senior Fellow of the Hoover Institution and Wendt Family Professor of Political Science, Stanford University

• David W. Brady, Senior Fellow and Associate Director of Research, Hoover Institution, Stanford University

Knowledge Networks is the leader in high-quality, innovative market research. The company's unique Internet platform allows for quick turnaround of results and for the use of high-quality video and audio in surveys.

In conjunction with its expertise in brands, media, advertising, and analytics, Knowledge Networks uses its consumer panel and other resources to provide insights on consumer behavior and opinions. In addition to government and social policy work, Knowledge Networks specialties include media, brand health, segmentation, and research on pricing, product configuration and advertising.

For more information on KN's extensive practice in government, academic, and non-profit research, go to

For more information, contact J. Michael Dennis, Vice President and Managing Director, Government and Academic Research, at (650) 289-2160 or, or David W. Brady, Senior Fellow and Associate Director of Research, Hoover Institution, Stanford University, at (650) 723-9702 or


Great Lileks piece. Thanks to InstaPundit for the pointer.


Same-sex marriages and Full Faith and Credit: Several people e-mailed me to ask about whether states have to recognize out-of-state same-sex marriages, given the Full Faith and Credit Clause. I'm afraid I can't go into the details on it now, but I think the answer is no: Between the limited scope of the Full Faith and Credit Clause (it hasn't generally been read as interfering with a state's power to reject out-of-state marriages that are contrary to what the state sees as public policy) and the federal Defense of Marriage Act (which expresses Congress's judgment that states ought not be required to recognize out-of-state same-sex marriages), I think courts will find that the Clause does not mandate such recognition.

     If I am mistaken, and courts do conclude that states must recognize out-of-state same-sex marriages, then I do think that an amendment would be proper. As I said, I tentatively support same-sex marriages, but I don't think that the Court should force states to recognize them, or that one state should be able to force other states to recognize them; I think the choice should be left to each state.

     I oppose the Federal Marriage Amendment because it denies states that choice, by barring states from recognizing same-sex marriages. But I would support (if I thought it was necessary, and right now I don't, for the reasons mentioned above) an amendment that genuinely secures the choice, by giving states full power to decide whether to recognize or allow same-sex marriages.


More on marriage and amendments: I should also mention that I would support in principle an amendment that states "No part of this Constitution shall be interpreted as requiring any state to recognize or allow same-sex marriages," or words to that effect. My one objection is that I don't think such an amendment is necessary: I don't think the Supreme Court would indeed interpret the Constitution as requiring states to allow same-sex marriages, and I suspect that states wouldn't even be required to recognize out-of-state same-sex marriages. And I think this is a significant objection, because I don't think the Constitution should be amended unless there's a real need to do it.

     But setting aside this objection, I agree that the Constitution should be read as leaving the matter to states. I tentatively support same-sex marriage, but I don't believe that there's any warrant in the Constitution (whether in the Equal Protection Clause or elsewhere) for the Supreme Court to impose it on the country. If the Supreme Court does so hold, then it would be quite proper for the people to reverse that judgment.

     Needless to say, this is just my view; I do not know what my cosigners' views on this might be.


"So help me God": And on the other loose end from yesterday-- the use of "So help me God" in the citizenship oath, and my query as to whether (in that setting and in others) those words could be omitted from the oath...

Turns out that the Curmudgeonly Clerk had an extended post just last week about the phrase in oaths in judicial proceedings. Things are more complicated than I had thought in that setting; in at least some courts, one cannot simply refuse to repeat the final four words. The Clerk also includes lots of links to relevant material that I won't reproduce here; just go see the post.

E-mail on the topic, providing me with a further education:
In an analogous context, the district court in Bessard v. California Community Colleges, 867 F. Supp. 1454 (E.D. Cal. 1994), held that RFRA-- which still applies to federal oath statutes and regulations-- prevents a government from substantially burdening religious exercise by requiring a Jehovah's Witness to swear to "bear true faith and allegiance to the Constitution of the United States." The government can instead simply require the objecting employee to swear to act loyally, as in the oath upheld in Cole v. Richardson, 405 US 676: "I do solemnly swear (or affirm) that I will uphold and defend the Constitution of the United States of America and the Constitution of the Commonwealth of Massachusetts and that I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence or by any illegal or unconstitutional method."

To my knowledge, and notwithstanding the specific words for the oath prescribed by 5 USC 3331, the federal government typically permits persons to make this alternative affirmation (as it did in your reader's
case), in order to comport with RFRA. Your reader for some reason calls this "discrimination," but I think it's more accurately viewed as "reasonable accommodation."

I believe the Free Exercise law is similar with respect to religious objections to "So help me God." A leading case is Society of Separationists v. Herman, 939 F.2d 1207 (CTA5 1991), although I haven't researched the question in several years.
But the following sounds less than reasonable to me:
I though I'd pass along a small anecdote from a friend (this comment was made a while back):

'When I enlisted in the Air Force, it was with 9 other guys in a group ceremony. The age range was 18-21. We were told we could choose to say swear or affirm at one point yet no alternative was given for the last
line, which is "so help me God". I stopped at "so help me" and since there was 10 voices no one noticed. When I re-enlisted and had to repeat the oath, I asked about the last line and was told it was accepable to
omit the entire "so help me God" line. The officer who was going to witness the oath for me asked me if I was going to omit the line and when I said yes he refused to do it. I didn't press the issue, I just found another officer to do it but that is the type stuff that bothers me about this issue.'

I asked him what happens when it's 3 or 4 enlistees taking the oath and one of them leaves the words out... And I lost his answer, sorry! It involved the word "ostracization," FWIW.


Dual citizenship and oaths of allegiance: (See previous posts and here and here.)

Brian Weatherson and commentators have picked up on the question of dual citizenship and voting here. For what it's worth, I agree with Brian that one could construct forms of dual citizenship that meet my concerns about democratic responsibility; and with one of his commentators that the logic of doing so also leads to some voting rights for long-term resident aliens. Sometimes one sees references to "dual nationality" as a concept distinct from "dual citizenship," usually in the absence of the double set of political rights.

E-mail on dual citizenship etc:
The big problem with the legal force of the 'I hereby renounce under oath all allegiance to any foreign state' clause (or its more eloquent 'princes and potentates' version) is that... well, it generally has none. For instance, a British citizen who becomes a naturalized American can only enforce that clause by going to a British consulate and swearing *another* oath, since the British government doesn't recognise oaths of allegiance to foreign states. (This also raises the question of whether a British resident in the US who signs up for the military, then deserts and makes it to Britain, could be extradited.)

So the ball is always in the court of the first nationality as to whether it considers the taking of a second citizenship as a renunciation. And if the other state shrugs its shoulders, the US can't really force people to give up their original citizenship and become stateless in advance of taking the Oath of Allegiance, in the way that one surrenders an out-of-state driver's license.

A British friend recently had a baby with his Norwegian partner, and wanted to travel to Norway to show little Oskar off to his grandparents. Trouble was, as the couple are unmarried and Norway isn't in the EU, he couldn't get his son a British passport automatically; however, he could get a Norwegian one.

Had Oskar been registered for a British passport first, he could hold dual nationality. But now, as a Norwegian, he would lose his citizenshipby getting a British passport. And, because Norway's 'renunciation' laws are quite strict, he may lose his Norwegian citizenship anyway if he doesn't take up residence in Norway before his 22nd birthday.
With respect to my comment that "a U.S. citizen may forfeit his or her American citizenship by voluntarily acquiring citizenship of another country. (De facto, as I understand it, this rule isn't triggered unless a dual citizen assumes office in a foreign government or takes up arms in a foreign army.)" Benito writes:
I can think of two high-profile instances in which this wasn't a problem, namely Americans who joined the Royal Air Force (through England or Canada) before the actual U.S. participation in WWII; and the Jewish Americans who fought in the Israeli Army during the 50s and 60s. In both cases, not much was made of it because the citizens were fighting for governments that were allied with us or we quietly supported the action (or eventually participated in it).

There's also the Abraham Lincoln Brigade, made up of Americans who went to Spain in the 1930s to fight in the Spanish Civil War on behalf of the Spanish Republic and against Franco. They were not stripped of citizenship, despite their Communist leanings that became unpopular after WWII. (In fact, as I type this I'm just a few miles away from Memphis' own memorial cemetary for veterans of the Spanish Civil War.)

I have zero legal education and wouldn't know where to look for laws that may have specifically exempted these actions, but I don't think any of the above cases lost their citizenship, though I'm sure that the Volksdeutsche (German Americans who returned to Germany to fight for Hitler) did.

I get the impression that we don't harrass mercenaries with this law, and I don't recall John Walker Lindh being stripped of his citizenship by joining up with the Al Qaeda forces in Afghanistan.
As I understand it, a great deal depends on the DoJ and the State Department thinking that a case is worth the trouble. Even the conditions under which one may be treated as having renounced U.S. citizenship don't automatically trigger such a loss; someone has to notice, and to care, and to think it's worth a political and court fight. But my recollection is that military service and government office at least sometimes trigger such notice, while simply taking another country's citizenship oath doesn't.


An old manuscript, a story I just read yesterday, by Franz Kafka:

It is as though much had been neglected in the defense of our fatherland. Previously we didn't pay attention to it and went about our work; but the events of recent times trouble us.

I have a cobbler's workshop on the square in front of the Emperor's palace. Barely do I open my shop at the break of dawn than I see the entrances to all the lanes running into here occupied by armed men. But they are not our soldiers, but apparently nomads from the north. In a way incomprehensible to me they have pressed all the way into the capital, even though it is very far away from the border. But at any rate, they are here; it seems that every morning there are more.

According to their nature, they camp in the open air, since they abhor dwelling houses. They busy themselves with the sharpening of swords, the tapering of arrows, with exercises on horseback. Out of this quiet square, always scrupulously kept clean, they have made a real stable. We do sometimes try to run out of our shops and at least remove the worst filth, but it happens more and more rarely, since the effort is useless and, moreover, puts us in danger of falling under the wild horses or being wounded by whips.

One cannot speak with the nomads. They don't know our language, and indeed they barely have one of their own. Among each other they communicate similarly to jackdaws. One is always hearing this shriek of jackdaws. Our way of life, our institutions are to them just as incomprehensible as indifferent. Because of this, they also seem to refuse any sign language. You can dislocate your jaws and wrest your hands out of their joints, they still haven't understood you and will never understand you. Often they make faces; then the whites of their eyes roll up and they foam at the mouth, but they don't mean anything by that, even to frighten you; they do it because that is their way. What they need, they take. One can't say that they apply force. Before their grasp one steps aside and surrenders everything to them.

They've also taken some good pieces from my inventory. But I can't complain about it, when for instance I look at how the butcher across the way is doing. Barely does he bring in his merchandise than it is all torn away from him and is devoured by the nomads. Also their horses eat flesh; often a rider lies near his horse and both feed themselves from the same piece of flesh, each at one end. The butcher is afraid and doesn't dare to stop the meat deliveries. But we understand that, collect money, and support him. If the nomads got no meat, who knows what it would occur to them to do; but who knows what will occur to them even when they get meat daily.

Recently the butcher thought he could at least spare himself the trouble of the slaughter, and in the morning he brought a live ox. He's never going to dare to do that again. I was lying for a good hour, way back in my store, flat on the floor, and I had piled all my clothes, blankets, and pillows over myself, just so as not to hear the roar of the ox, which the nomads jumped on from all sides to rip pieces from its warm flesh with their teeth. It was quiet for a long time before I had the heart to go out; like drunkards around a wine cask, they were lying exhausted around the remains of the ox.

Just then I thought I saw the Emperor himself in a window of the palace; otherwise, he never comes into these outer rooms, but always lives in the innermost garden; but this time he was standing, at least it seemed that way to me, at one of the windows and was looking with downcast head at the goings-on in front of his castle.

"What's going to happen?" we all ask ourselves. "How long are we going to suffer this burden and torment? The Emperor's palace has attracted these nomads, but can't figure out how to drive them away. The gate stays shut; the guards, once always festive and marching in and out, keep themselves behind barred windows. The salvation of the fatherland is left to us craftsmen and shopkeepers; but we are not equal to such a task; we've never even claimed to be capable of that. It's a misunderstanding, and because of it, we're going to die."


"More Linux, More Freedom": That, I'm told, is the text of this German political campaign sign. Fellow lawprof Bob Brauneis passed this along to a cyberlaw professors' list on which I participate, and also gave the following background:
Monica Lochner-Fischer is a representative in the Bavarian legislature, and is apparently herself a computer programmer. On one of her webpages, there is a lot of information on the city of Munich's choice to use Linux as the operating system on all city computers, Microsoft's complaint about the campaign poster that I took the picture of, and her visit to Microsoft to defend the poster. Take a look at:
     Disclaimer: This post is intended only for your amusement. It is not intended as an attempt to express any views, or get into any debates, exchanges, or holy wars, about Open Source Software generally, LINUX in particular, or for that matter anything else.


E-prayer: According to this story:
. . . For 51 rupees ($1.10), plus the message charge, devotees can SMS PUJA (prayer) to the BPL Mobile cellular operator to have prayers said for them at the city's most popular temple to the elephant-headed god Ganesh.

BPL says more than 5,000 people have used the service -- avoiding lines of thousands of people outside temples -- since it was launched on Sunday at the start of the annual 10-day festival for Ganesh. . . .

After the prayer, the temple sends the BPL customer a receipt, special offerings and a portrait of Ganesh.
SMS apparently refers to a phone text messaging service. Thanks to fellow cyberlaw professor Michael Madison for the pointer.


Property and government intervention: A reader writes, apropos RIAA's copyright lawsuits against music copiers:
[Y]ou know government intervention is never the best way to solve the problems of business. I say let them die and we'll see what interesting folks come along to introduce the new music industry model to replace the dinosaurs.
     Actually, government intervention is sometimes a necessary part of solving the problems of business. Say that your business is growing apples; but you find that after you invest a lot of time and effort into planting the trees, people go onto your land and take your apples. You try to put up fences, but people just break them down.

     One important solution to this is government intervention -- the police and the court system helping you stop the people who are taking the apples. It's a commonplace, and correctly so, that stable property rights are necessary for business to thrive, because without some guarantee that your property will be respected, you just won't invest the time and effort in creating or improving that property.

     We don't say "let the current apple producers die and we'll see what interesting folks come along to introduce the new apple industry model to replace the dinosaurs, one that doesn't rely on law enforcement to protect the investment." We don't say that in large part because we suspect that without property rules, there'll be a lot fewer apples produced, because the return on investment of alternate models (e.g., apple orchards that are constantly protected by an army of guards, or orchards in faraway places that are hard for thieves to reach, but that are likewise expensive to ship from) will be so low. Instead, we turn to trespass and theft law; and enforcement of property rules -- including rules against trespass on land, or theft of tangible goods -- is government intervention.

     Now it might well be that intellectual property rules are improper government intervention. Perhaps property rights in land and tangible goods should be enforced by the government, but property rights in intellectual property should not be, either on moral or empirical grounds. But that is the argument that people should be making -- an argument that explains why certain property rights are proper and certain others are not -- and not just a flat "government intervention is never the best way to solve the problems of business" argument.

     (Actually, I think that the empirical case for intellectual property rights in music is a lot weaker today than it was decades ago, because these days effectively producing and effectively distributing music is much cheaper than it was back then; but that is a story for another day.)


Federal Marriage Amendment: I just thought I'd pass along the text of a letter that some fellow lawprofs of mine and I submitted to the Senate Subcommittee on the Constitution, Civil Rights and Property Rights in connect with the hearings on the Defense of Marriage Act (in which there was some discussion of the Federal Marriage Amendment):
Dear Chairman Cornyn:

We are legal scholars who believe in states’ rights and in limits on federal power. We therefore want to convey our criticisms of H.J. Res. 56, which would amend the U.S. Constitution to (among other things) provide that "Marriage in the United States shall consist only of the union of a man and a woman."

The proposed amendment interferes with the rights of states, rights that have been consistently recognized since the founding of our Nation. Under our federal system of government, family law has long been the province of the states. A basic principle of American democracy and federalism is that government actions that control a citizen’s personal life and liberty -- such as government actions that control people’s decisions about whom to marry -- should be made at the level of government closest to the citizen, rather than by the U.S. Congress or by the legislatures of other states.

States already actively regulate marriage; for example, 37 states specifically prohibit marriage between same-sex couples. That is a choice that they are now free to make. The Amendment will wrongly deny those states -- which is to say, the states’ citizens and their representatives -- this choice.

Of course, the Constitution does impose certain limitations on States, but only when this is needed to protect the national government, the national economy, or individual rights -- for instance, where article I, section 10 prohibits states from creating separate currencies, or where the Fourteenth Amendment requires states to treat people equally. But there is no need to federalize the definition of marriage. If Oregonians, for instance, choose to define marriage more broadly than citizens of other states do, there’s no reason for the federal government to step in. (Nor is such a sweeping amendment necessary to satisfy the narrow goal of letting each state choose whether to recognize out-of-state homosexual marraiges. There’s no need to impose a one-size-fits-all solution on the whole nation, either by banning all homosexual marriages, or requiring them to be recognized throughout the country.)

Moreover, if marriage is federalized, this will set a precedent for additional federal intrusions into state power. Once even the traditionally state-law field of marriage is made subject to federal control, it will become much easier for supporters of broad federal power to argue for federalizing still more fields.

Finally, the proposed amendment is not necessary to protect the institution of religious marriage. Under the First Amendment, religious institutions already have the freedom to determine which unions they will solemnize. Even if a state legally allows homosexual marriage, any church within the state has the perfect freedom to refuse to solemnize such marriages (just as the Catholic Church, for instance, refuses to solemnize marriages of divorced people, even though such marriages are quite legal)

The Federal Marriage Amendment is unnecessary; it harms the rights of states and of their citizens; and it thereby undermines the longstanding traditions of American federalism. We urge you to oppose it.


Eugene Volokh
Professor of Law
UCLA School of Law

Randy Barnett
Austin B. Fletcher Professor
Boston University School of Law

David Bernstein
Professor of Law
George Mason University School of Law

Dale A. Carpenter
Associate Professor of Law
University of Minnesota Law School

David Post
Professor of Law
Temple University Law School

Ernest Young
Judge Benjamin Harrison Powell Professor of Law
University of Texas School of Law

[All institutions listed only to show the signers’ academic affiliations]


Downloading and the music market I agree with Eugene's recent posts (click here and here and here) about the music market. There is no simple solution to the problem of unauthorized music downloads. So we need to brace for what is going to happen.

I expect that music companies will start spending much less on advertising and promotion. They perform a sorting function for consumers, direct them to new fads and trends, and create images for performers. As revenue from CDs continues to fall, music companies will no longer find it profitable to make these investments. We will still have music, but the music world will feel a bit more like "Mao's gray pajamas," less colorful and less of a commercial spectacle. Of course some people will like this, but don't underestimate how much your favorite indie band relies on commercial image production.

Sorting will still occur, but probably it will be done through the Internet, on a not-for-profit volunteer basis. Consumers will look to something like blogs to tell them what to listen to, we already see this happening.

My thirteen-year-old stepdaughter, Yana, loves MTV and Top Twenty radio stations (on my satellite radio). In part she likes the music, but she also likes to listen to what her friends listen to. This sort of coordination will be harder to achieve, since less money will be spent making some artists "focal."

Music companies also advance studio costs to artists. Expect music to have lower capital costs, more digital production in the garage, less hiring of orchestras for rock groups.

It is the artists just below the mega-artists in status that will get hurt the most. Downloaders are often still willing to buy their top, all-time favorites, such as Eminem. Buying the CD makes them "part of the movement" and helps them identify with the artist. They will buy a few CDs in any case, and pick their favorites, no doubt CD sound is better than MP3s. But few artists are everyone's all-time favorite. So most top artists will make much less money. More artists will be motivated by the quest for fame, and by love of music, instead of love of money.

I feel that I will be able to live with this new musical world. I would not argue that it will be better, from an economic efficiency point of view, than the old musical world. But the music companies and the artists will be bigger losers than the consumers. And consumers with quirky tastes, such as myself, might well be better off. Consumers who look to music for its social functions will probably be worse off, ironically these are the young downloaders themselves.

Wednesday, September 10, 2003


Sharpton: Instapundit links to a post by Mark Kleiman criticizing Slate for being soft on Al Sharpton. I've posted before about Sharpton, wondering why the Republicans don't say anything about the respect with which this loathesome demagogue is treated in the Democratic Party. The response I received from several Republican activist correspondents is that the GOP picks up votes every time Sharpton is on t.v. with the other Democrats. A logical, but troubling, explanation, as it puts short-term political gain above the public interest in sending Sharpton into political oblivion. Sharpton is no mere political foil like Hillary, representing liberalism incarnate, but is literally dangerous, already thought by many to be indirectly responsible for several deaths in the Crown Heights riot and the Freddy's clothing store arson, both of which followed anti-white and anti-Semitic rabble-rousing by Sharpton.


More on citizenship oaths: It turns out that John Miller had made some of the same complaints as Gregg Easterbrook about the new citizenship oath. I think my responses to Easterbrook are also responses to Miller's verion of the argument.

My post prompted some interesting e-mail.
I agree with your comments about the language of the revised oath. However, I object even more strongly to the last clause of the oath: "so help me god."

It is apparent that a belief in god is expected by our federal, state, and local governments. The federal government still prints "In God We Trust" on currency, still asks people to swear on the Christian Bible, and still requests that we end our oaths with "so help me god." I feel that atheists like myself are blatantly discriminated against. I recently became a staff physician at a Veterans Administration Medical Center. All VA employees are expected to take the military oath that also ends with the phrase "so help me god." I refused to do so and had to explain why and sign a document in place of the oral oath. That looks like discrimination to me.

Even devout Christians have objected to "so help me god" at the end of the oath. Some because the phrase can be construed to mean that the oath-maker is expecting god to help him keep the oath. Others object because they feel
the Bible proscribes invoking god while making an oath.

For these reasons, I want all references to god removed from governmental discourse. We are all equal American citizens, whether we are monotheists or not.
I agree that "so help me God" is objectionable. But I was under the impression that, whenever this was part of a standard government oath, people could freely omit it, or substitue "solemnly affirm" (for those Protestant sects that object to oath-taking). I've never heard of a procedure like this. Does anyone know whether "so help me god" is enforced as part of the (old or new) citizenship oath? Is there a general legal principle on when and whether oath-takers may simply and unilaterally omit those words?
Two points [...]1. One sentence provides: "... I hereby renounce under oath all allegiance to any foreign state." The next sentence provides: "My fidelity and allegiance from this day forward is to the United States of America." There's an odd inconsistency, in that there's an "allegiance" in each sentence but a "fidelity" only in the second. Does that mean that the immigrant doesn't renounce fidelity to the foreign state, only allegiance? Seems like a troublesome loophole.

2. Why is the renunciation only to "any foreign state"? Setting aside how much I will also miss the "princes and potentates" language, aren't there foreign "powers" that should be renounced, even if the affiant isn't a citizen of them? Can a newly minted American renounce his allegiance to Germany but retain his allegiance to Bavaria? What about his allegiance to Al Qaeda? (I'm also thinking of the UN, but that's too much of a stretch even for this disgruntled American.)
Part of why I'll miss "prince or potentate" is because it's a stand-in for the complexity of international society. "Foreign state" is a simplification. It's true that international society has been much simplified in the direction of being a world of states since, say, 1789. But it's not so entirely. I don't think Bavaria is a problem; but al Qaeda certainly is. As far as "allegiance" and "fidelity" goes: I could imagine someone saying that "fidelity" is an emotional state that isn't under one's conscious control. But that seems to be ruled out by the use of fidelity in the "this day forward" sentence. I have no idea why the two sentences aren't kept parallel; but I don't see how one could swear that one's "fidelity... from this day forward is only to the United States" in a way that didn't necessarily renounce fidelity to anyone or anything else. Indeed, the more I look at it the more that sentence seems troublingly overinclusive. To renounce allegiance and fidelity to foreign states, princes, and potentates is one thing. To swear that one 's fidelity is henceforth only to the United States seems quite another, and excessive. What about one's spouse? Family? Church? etc.
I enjoyed your attention to G.Easterbrook's post regarding the new
citizenship oath. You're in the weeds, though: the big issue with this oath, as with the previous one, is how it interacts with dual citizenship. Recently, for example, Peter Jennings became a US citizens, taking (I assume) the "princes and potentates" oath. Yet a few days later, he said that he was very happy to have "dual citizenship" and (presumably) to share his loyalties with Canada. I believe the US permits such dual citizenship with quite a few countries.

But how does the loyalty "oath" square with the government's decision to permit dual citizenship? What kind of renunciation does the oath require if one need not turn in a foreign passport? I'd love to see you folks discuss that on Volokh's blog.
The U.S. was very slow to even permit dual citizenship. It still officially discourages it. And, in the reverse of the Jennings situation, a U.S. citizen may forfeit his or her American citizenship by voluntarily acquiring citizenship of another country. (De facto, as I understand it, this rule isn't triggered unless a dual citizen assumes office in a foreign government or takes up arms in a foreign army.) But, for some years now, the U.S. has treated the renunciation part of the naturalization oath as carrying no legal weight-- to begin with under court orders, and eventually as a matter of policy. My correspondent is quite right that there's something odd here. If we don't mean it, we shouldn't make immigrants swear it; and if we do mean it, we should insist on the renunciation of foreign citizenship.

I'm a moderate skeptic about dual citizenship-- this is an unfashionable position among the political philosophers I know, many of whom treat it as a phenomenon to be celebrated. I worry both because I doubt that the era of interstate war is over (and so a moment comes when a dual citizen must decide) and because I don't want to see a large global class of permanent absentee voters-- immigrants who hold the franchise in their countries of origin but don't have to bear the consequences of their votes. I think this is likely to encourage cultural conservatism and ethnic extremism, in a manner similar to the American financial support for the IRA, for Israeli settlers, etc. Or think of Edward Said's decade of opposition to the Oslo accords on the self-indulgent, Morningside-Heights grounds that the struggle ought to continue forever, never mind how much misery it brough to Palestinians who actually lived in refugee camps or under military occupation. On the other hand, dual citizenship is clearly well-established in the contemporary world, and it's only going to become moreso whether I like it or not. If that's so, then probably the oath ought to be changed, so as not to commence people's American citizenship with acts of perjury.

We have some people on the Conspiracy who've sworn the oath. What do they think?

(See updates above here and here.)


Recorded music: A reader writes:
If the record industry would create a product people want on a medium of their choice and sell it at a price people are willing to pay, all of this debate would be irrelevant. Until the whole industry takes a good hard look at its archaic business model and adapts to the present it will continue to have to sue punters, contrive software that hackers cannot resist and other meaninless short-term stop gap measures that will work neither broadly nor effectively while alienating their core consumers - young people. . . .

I have seen college students interviewed on tv state plainly that if music were cheaper they wouldn't download it illegally. If music were cheaper by 50%, people would buy 100% more than they currently do. This is all simple economics. Why the record execs sit around thinking that market economics doesn't apply to them baffles me. But what really scares me is that their incessant whining and lobbying will result in some sort of infringement on our internet freedom that will go well beyond stopping the downloaders. This seems to be happening already. . . .
     This is an interesting argument, and it may in some measure be valid right now -- given that it's pretty slow and annoying (when I last checked) to download music, if CDs were cheaper, or, better yet, if downloadable music were available really cheaply and conveniently, people might be willing to pay some amount for it.

     But for how long? As more people get high-speed connections, downloading for free will become more and more appealing. "A price people are willing to pay" isn't some fixed quantity -- it's a function of, among other things, how easy it is to get the item for free. (Air is tremendously valuable, but I won't pay you much for a gallon of air under most circumstances, because I don't have to.) And as getting music for free gets cheaper and cheaper, people will be willing to pay less and less, to the point of perhaps paying virtually nothing.

     Well, then, why not tolerate file sharing now, try to fight it by offering really inexpensive material, and then crack down on file sharing only when it gets so easy that even the inexpensive product doesn't sell? Unfortunately, I don't think that will work either: The record industry is having a hard enough time persuading people that the law or social norms should suppress free file sharing now. If the industry expressly tolerated such behavior for several more years -- even if it tolerated it by effectively competing against it -- then it may become virtually impossible to persuade people in the future that free file sharing should be stopped. You can just imagine the counterarguments: "How can you say that free file sharing is wrong now, in 2010, when it's really convenient, when you didn't really fight it from 2003 until now?" "We've relied on your acquiescence in file sharing; you can't retract it now." "Because you didn't enforce your putative rights, we think you've lost them." And if I'm right that at some point free file sharing will be so cheap and effective that it will lower the "price people are willing to pay" for most recorded music to zero, then this means that the industry has to do whatever it can to keep free file sharing from becoming even more established as something that's legal and proper.

     This also relates to the reader's claim about "simple economics." Actually, to my knowledge there's no general law of economics that "If music were cheaper by 50%, people would buy 100% more than they currently do." Consumption is a function of competition, and if the competition (free, fast, and easy file sharing, circa 2010) offers the product for nothing, then many people won't buy the music even if it's cheaper by 90%. (A few people might be willing to tip, and others might buy various merchandising items, but the revenue will fall dramatically, and will be nearly nil for many groups whose fans aren't much into merchandising.)

     But more broadly, most industries involved in "market economics" don't face arguments that say "stop enforcing your property rights; instead, don't try to legally block people from getting your product for free -- try to deter them by selling it at a price that people are willing to pay."

     Now of course one can still argue that there shouldn't be intellectual property rights in music, especially if enforcing them requires lawsuits against private copiers. But the argument can't just be a matter of "simple economics"; and, I think, it should acknowledge the likelihood that, if the competition is music available for $0, it will be very hard for any music producer or distributor to make any meaningful amount of money without a legally enforceable property right (or some other "stop gap measure").

     Perhaps if that happens, the result won't be too awful -- maybe lots of people would still make lots of great music, even if they could make little money from it, or if they'd have to tour a lot more or focus a lot more on merchandising in order to make money. But that's the argument that would have to be made. The "simple economics" / record companies should just "sell[] at a price people are willing to pay" argument doesn't really work.


Plan A and Plan B: I'm happy to report that the men's restroom in Harkness Commons -- the cafeteria that's nearest the Harvard Law School -- offers its patrons both a condom vending machine and a baby changing table. I'm not sure whether it's a worthy ecumenicalism, or perhaps a subtle warning, but I approve in any event.


A good day in the NYT: See this article (by John Tierny) on the oil trust fund idea for Iraq; this one on cotton, Uganda, and agricultural subsidies; and this editorial on the Cancun negotiations.


Arens, Live! Likudnik and former Israeli Defense Minister Moshe Arens is taking questions on Ha'aretz's website. This is fascinating, not so much because of his answers, which are mostly trite, but because the questions are coming from all over the world, including from Palestianian areas and from Arab countries officially at war with Israel.


California Senate demands that Davis apologize for his crack about Schwarzenegger's accent:
The California Senate voted 19-2 on Tuesday to demand an apology from Democratic Gov. Gray Davis for what many regard as an ethnic slur made against Arnold Schwarzenegger.

The vote came on a motion by state Senate GOP leader Jim Brulte. Nineteen Democrats did not vote on the motion, which passed by a simple majority.

During the floor debate, some Democrats faulted Davis for telling a supporter -- in a conversation he thought was private but was overheard by a reporter -- that anyone who can't pronounce California should not be governor of the state. Davis later said he was only joking. . . .

"I am not going to deny that when the governor made fun of Mr. Schwarzenegger's accent it was very, very painful, especially for someone like me who speaks with an accent," Sen. Martha Escutia, D-Norwalk, who voted for the motion, said on the floor.

Escutia said she would have preferred the Senate not formally seek an apology from Davis, but that the governor offer one without political coercion. . . .


People unclear on the concept: From the Cherry Hill (N.J.) Courier Post:
A Camden County College student was hit in the head with a purse this week after a class discussion on morals and values escalated out of control. . . .

The discussion was part of a contemporary issues class taught by J. DeBurst Begley at the college's Broadway location.

When student Jodi Mercado stated that people's surroundings affect who they are and how they act, the professor stated that Mercado's opinions are influenced by the color of those people, according to a police report.

A heated discussion followed during which student Shirley Troutman of Camden approached Mercado while yelling at her, police said. Two students intervened, but Troutman swung her purse, striking Mercado, police said.

Troutman has been mailed charges of simple assault and harassment, and faces a Sept. 24 hearing in municipal court, police said. . . .

Authorities are also investigating the incident as a possible bias crime because the victim is white and the student and professor are black.


Count me in: Henry Farrell writes:
Like Jacob Levy I’m waiting on the release of Neal Stephenson’s Quicksilver: and the early signs are good. Dave Langford, who’s part way through reading it for Amazon UK pronounces it to be a “joy to read, with a genuinely fresh slant on 17th/18th century history (or ahistory).” And Jacob and I are not alone -- I confidently predict that September 23 (the book’s release date) is going to see prolonged blog-silences from everyone from Glenn Reynolds to Atrios.
I'm delighted that the early signs on Quicksilver seem promising -- I loved Cryptonomicon, and it will be hard for the new book to measure up. But in any event, I'll add my name to the list of people who won't be as productive as usual for several days starting September 23.


More on the "download tax": Signifying Nothing suggests:
[W]hy not use the same sources of data that ASCAP and BMI rely on for distribution of their royalties? As I understand it, ASCAP and BMI rely on the frequency of radio play to determine the share of royalties that an artist will receive, even for those royalties that come from live performance venues and the DAT tax. Why not use frequency of radio play to determine the share of royalties under this new proposed system?
     The trouble with this approach is that it uses market share in one medium -- radio -- as a proxy for the share of a new and very different medium, Internet distribution. There's lots of reason to think that this will be a highly imperfect proxy: For instance, some songs may be huge hits with those demographic groups who mostly listen to music on their MP3 players, but not with those demographic groups who mostly listen to music on their radios. Other songs may have a fan base that's pretty large nationwide, but not large enough (or not appealing enough to radio advertisers) that they can get much airplay.

     More broadly, though, this approach will tend to reinforce -- to the point of nearly locking in -- the market share of the already popular bands and styles. Those songs that get played on the radio make a lot of money; those that don't get played on the radio make very little money (people don't buy them, because they can get them for free, and the artists don't get the royalties, because they have no radio airplay even when they get lots of downloads). This means more of the moneymakers get produced, and get advertised so the public wants them and the radio stations notice them; fewer of the nonmoneymakers get produced and noticed by radio.

     Occasionally this self-reinforcing cycle will be broken, if enough radio stations notice a band or a new style and start playing it: Radio stations are market actors, too, and have an incentive to innovate. But it will be even harder to break than it is today.

     So it seems to me that the judge-by-radio-airplay-share approach would be great for Britney Spears and the other very popular acts -- perhaps even better, depending on the size of the tax, than the current system. But it would be really bad for smaller bands, which will make even less money than they do under the current album sales system until they break into radio, something that they'll find increasingly hard to do (especially if their big fans mostly aren't radio listeners).


New AEI Poll of Iraqi Public Opinion: AEI and Zogby have published what they say is the first scientific poll of the Iraqi public opinion. What Iraqis Really Think, a summary of the poll results, appears in todays Wall Street Journal (and is available for free to nonsubscribers who register with Its results address and should alleviate some of the concerns expressed by my friend David Beito at Liberty and Power and Gene Healy at Brainwash. Here are some of the results:

• Iraqis are optimistic. Seven out of 10 say they expect their country and their personal lives will be better five years from now. On both fronts, 32% say things will become much better.
• The toughest part of reconstructing their nation, Iraqis say by 3 to 1, will be politics, not economics. They are nervous about democracy. Asked which is closer to their own view--"Democracy can work well in Iraq," or "Democracy is a Western way of doing things"--five out of 10 said democracy is Western and won't work in Iraq. One in 10 wasn't sure. And four out of 10 said democracy can work in Iraq. There were interesting divergences. Sunnis were negative on democracy by more than 2 to 1; but, critically, the majority Shiites were as likely to say democracy would work for Iraqis as not. People age 18-29 are much more rosy about democracy than other Iraqis, and women are significantly more positive than men.
• Asked to name one country they would most like Iraq to model its new government on from five possibilities--neighboring, Baathist Syria; neighbor and Islamic monarchy Saudi Arabia; neighbor and Islamist republic Iran; Arab lodestar Egypt; or the U.S.--the most popular model by far was the U.S. The U.S. was preferred as a model by 37% of Iraqis selecting from those five--more than Syria, Iran and Egypt put together. Saudi Arabia was in second place at 28%. Again, there were important demographic splits. Younger adults are especially favorable toward the U.S., and Shiites are more admiring than Sunnis. Interestingly, Iraqi Shiites, coreligionists with Iranians, do not admire Iran's Islamist government; the U.S. is six times as popular with them as a model for governance.
• Our interviewers inquired whether Iraq should have an Islamic government, or instead let all people practice their own religion. Only 33% want an Islamic government; a solid 60% say no. A vital detail: Shiites (whom Western reporters frequently portray as self-flagellating maniacs) are least receptive to the idea of an Islamic government, saying no by 66% to 27%. It is only among the minority Sunnis that there is interest in a religious state, and they are split evenly on the question.
• Perhaps the strongest indication that an Islamic government won't be part of Iraq's future: The nation is thoroughly secularized. We asked how often our respondents had attended the Friday prayer over the previous month. Fully 43% said "never." It's time to scratch "Khomeini II" from the list of morbid fears.
• . . . 57% of Iraqis with an opinion have an unfavorable view of Osama bin Laden, with 41% of those saying it is a very unfavorable view. (Women are especially down on him.) Except in the Sunni triangle (where the limited support that exists for bin Laden is heavily concentrated), negative views of the al Qaeda supremo are actually quite lopsided in all parts of the country. And those opinions were collected before Iraqi police announced it was al Qaeda members who killed worshipers with a truck bomb in Najaf.
• . . . We asked "Should Baath Party leaders who committed crimes in the past be punished, or should past actions be put behind us?" A thoroughly unforgiving Iraqi public stated by 74% to 18% that Saddam's henchmen should be punished.


Additional Thought on Jews For Jesus: I'm not an expert, but from what I've read on this, missionary groups have often disingenuously tried to attract Jews by claiming that Christianity is "really" Jewish, and having prayer services, holiday celebrations, etc., that incorporate Jewish symbols, celebrate Jewish holidays, etc. The message is that one can still lead a Jewish life while believing in Jesus. As Eugene says, this jars Jewish sensibilities, but isn't inherently ridiculous; people still think Jerry Seinfeld is Jewish, even though he practices (last I heard) Buddhism. This strikes me as theologically "worse" than observing mitzvot while also believing in Jesus.

The problem, however, is that the "Jewish" aspect of some of these missionary groups, and I believe Jews for Jesus is among them, is wholly disingenuous. Once these groups have "hooked" their Jewish recruits, the Jewish patina eventually slips away, and to stay within the community, which by that time has become very important to the recruits, the former Jews are expected to join an evangelical church and drop all distinctly Jewish practices and observances. It seems to me fundamentally dishonest to missionize by, e.g., holding a "Jewish-Christian" Passover Seder, only to eventually reveal months later that your denomination believes that Passover is not a valid holiday for believers in Jesus, born Jews or not, the New Testament having completely superseded the Torah. Moreover, these "Jews for Jesus," if they followed through, truly did leave the Jewish community and its concerns and traditions behind (in a way that, e.g., Jerry Seinfeld may not have), making "Jews for Jesus" in that sense an oxymoron--the entire point was to gradually shift their perspective from thinking of themselves as Jews to thinking of themselves as Christians.

Amusingly (I guess), I have read that in some "Jewish Christian" churches, when the time came to drop the Jewish observances, the Jewish converts revolted, and insisted on keeping Jewish traditions, and they received support from their non-Jewish spouses and other members of the congregation who weren't aware of the initial deception. When the missionizing organizations objected, the "Jewish" congregants split off, founding "synagogues" that may or may not accept Jesus as Messiah, and taking some of the non-Jews with them.

On the other hand, more recently there have been missionary groups that accept the idea that Jews can be believers in Jesus, and thus be properly missionized, while still retaining Jewish customs and observances. This still jars Jewish sensibilities, but it's not dishonest like the groups that use Jewish practices they think are illegitimate as a recruiting tool.

At the same time, some evangelical groups in the South believe that Christians should be observing the Sabbath on Saturday and otherwise observing aspects of the Mosaic law, including observing the three festivals (Passover, Shavuot, and Succoth). In a few cases, congregations, or parts of them, have even explored conversion to Judaism.

It seems like a strange world we live in, but I remember reading that in the early part of the 4th century there were approximately two hundred sects in the Roman Empire that had beliefs somewhere in between what became normative Rabbinic Judaism and the doctrines of what became the official church.

More generally, on the subject of whether conversion to Christianity makes one or one's descendants into non-Jews, there was a huge rabbinic literature on the subject resulting from the cases of Spanish and Portuguese Jews who converted to Christianity during the persecutions of the 14th and 15th centuries, but who eventually escaped (or their descendants escaped) to other countries where they sought to resume living Jewish lives. The issue has also arisen recently with regard to Ethiopian Christians seeking to emigrate to Israel, who claim recent Jewish ancestry and allege that they were forced to convert but always considered themselves Jews.


Ashcroft Agrees to "Queer Eye" Makeover, from the Borowitz Report.


Three more brief items about Jews for Jesus: Just a few more items that flowed from messages that I got several days ago, and that I felt I ought to briefly respond to before I dropped this:
  1. A couple of people suggested that Jews for Jesus are much more alien to Judaism than, say, Reform Jews are, because they accept certain theological doctrines such as the Trinity, which diverge from the hard-core monotheism of Judaism.

         I hesitate to get into the whole "Is belief in the Trinity incompatible with monotheism debate?," given how much blood (literally) has been spilled over it. But it seems far from obvious to me that an acceptance of such a belief makes one vastly alien to traditional Judaism, while a rejection of the kosher laws, the Sabbath rules, the sexual purity laws, and a wide range of other rules -- a hallmark of many Reform Jews -- is not thus alien. Some people argued that adding new doctrines means the creation of a different and incompatible religion, while rejecting traditional doctrines does not; but that just doesn't strike me as particularly persuasive.

         This having been said, I agree that people can conclude that Christianity is theologically incompatible with Judaism -- just as others can conclude that Reform Judaism is theologically incompatible with Judaism. Judgments of when theological differences render two doctrines fundamentally alien to each other are quite subjective. But the case for this just doesn's strike me as terribly persuasive.

  2. Several people suggest that it's inherently deceptive for "Jews for Jesus" to claim that their beliefs are consistent with Judaism (setting aside whether there are more specific deceptive practices involved in how they do this). Again, though, I'm not quite sure why it's any more deceptive for them to say this than for Reform Jews (and I should stress that I have nothing against Reform Judaism) to say the same about their belief system.

         I suppose some Orthodox Jews might say that it is indeed deceptive to portray as "Judaism" a system that rejects many of the commandments given to the Jewish Nation in the Torah; but I suspect that most Jews would say "Look, we understand that you think that Reform Jews are just wrong, but they're entitled to present their own approach to Judaism as the better one, and it's not deceptive for them to call it Judaism." Again, I don't quite see the difference between Reform Jews and Jews for Jesus in this respect.

  3. Jeff Silver has a detailed post responding to my original post; I want to respond to just one item:
    [W]e Jews are a community, one that transcends -- when we are our better selves -- differences of observance, of nationality, of language. Whether yankees fans or red sox fans (or, non-baseball fans pu pu pu), we are all one people. Becoming a Jew for Jesus is not just a bothersome difference of opinion over a matter of observance; it is a very public renunciation of membership in the community. Indeed, Jews for Jesus are without exception people who feel no connection to the Jewish people, and don't want one.
    Actually, it seems to me that the situation is not quite so. As best I can tell, Jews for Jesus do claim to feel a connection to the Jewish people (I don't know how I could figure out whether they think so deep down inside, but I see no reason not to take them at their word for this). They would like to be members of the community. They don't think that their religious beliefs should exclude them from membership in this community, just as they see that Reform Jews aren't excluded from the community, and just as they see that even secular Jews aren't excluded from the community. Rather, it seems to be the mainstream Jewish community that is trying to exclude them -- to tell them that they aren't really Jews any more.

         Naturally, Jews are entitled to do so, just as Orthodox Jews would be entitled (if they chose to, though as I understand most don't) to say that Reform Jews aren't practicing something that can legitimately be called "Judaism," or as Protestants would be entitled to say that Catholics or Mormons aren't really Christians. But none of these claims strike me as particularly persuasive.

         The two things that seems pretty clear is that, given pretty broadly accepted Jewish teachings, Jews who accept Christ are still members of the Nation of Israel; and that they are also maintaining a set of beliefs that are not consistent with Reform, Conservative, or Orthodox Judaism (Jews for Jesus believe, for instance, that the Messiah has already come, whereas the other streams do not). The claim, though, that "Jews for Jesus" is an oxymoron, even if "Jews" is meant in the sense of "people who subscribe to a form of Judaism," where "Reform Jews" is not an oxymoron, doesn't seem to me to be proven.


ABA Accreditation: The University of Colorado law school is nearly doubling its in-state tuition to meet expenses imposed by the American Bar Association, primarily a new building (via Paper Chase). Graduation from an ABA accredited school is necessary in almost every state for a J.D. to become a practicing attorney. I suspect many students would give up such luxuries as laptop connections in the library in favor of much lower tuition, but the ABA's primary role in legal education seems to be to ensure that it is as expensive as possible. (Keeps out the riff-raff, you know!)


The economics of reconstruction: This unpublished paper barely mentions Iraq, and it is academic rather than inflammatory or partisan. Chris Coyne and I try to figure out why some previous post-war reconstructions have succeeded and others failed. The bottom lines: 1. Turning points can be quite rapid and drastic, once expectations are aligned properly. 2. Reconstructions succeed when "games" of conflict evolve into games of cooperation and coordination. 3. Underlying social capital is critical for success. 4. You need agreement on what political institutions are going to look like.

Your comments and reactions would be most welcome, as always.

And what about Iraq? Contrary to the critics, I think things could get much better very quickly. There is an underlying ethic of business and education. But we don't yet have common expectations on what the political order will look like, and that is a big mistake.

Tuesday, September 09, 2003


PATRIOT Act & Civil Liberties, continued: Dean Esmay has nice words about my prior civil liberties post at this link. Reading the comments to his post underscores my point that there is quite a bit of heat, but not much light, in most PATRIOT Act commentary.

On a related note, this paper on "State Wiretaps and Electronic Surveillance After September 11" by Charles Kennedy and Peter Swire provides some interesting context. It notes that changes in federal law governing electronic surveillance tend to produce equivalent changes in state law. This is significant because the majority of wiretaps are authorized in state courts, and oversight of state-level surveillance is less extensive than at the federal level. This, unlike some of the hysterical screaming about Attorney General Ashcroft, is a real reason to be concerned about otherwise minor changes in federal surveillance law.

UPDATE: Here's part two of Slate's Lithwick & Turner on the PATRIOT Act.


Jews for Jesus: These posts have produced much more e-mail (nearly all of it critical) than the usual post does; I hope to blog a bit more on the subject in the days to come, but all I can afford is a bit. So my apologies in advance if your messages remain unanswered. And, hey, isn't the "download tax" more interesting?


"Download tax": A Slate column makes an alternative-to-copyright-enforcement proposal that I'd heard before:
The most obvious method would be the creation of a "blanket compulsory license" for digital media akin to those already used by radio and TV broadcasters. Compulsories, as they're called in the entertainment industry, would work like this: Music fans could download all the music they want for free online, but they'd pay a sort of "download tax" on computers, MP3 players, ISP accounts, and other transport mechanisms for digital music (the Audio Home Recording Act of 1992 imposed such a fee on DAT tapes and players). The collected fees would be paid out to musicians and copyright holders based on their real or estimated share of downloads. If that sounds crazy, remember it's also the means by which radio stations and their listeners already share all the music they want, without fear of being sued.
     Let's set aside whether it's fair to tax all computer users, including those who don't use their computers to play music, to pay for benefits that are enjoyed by only a subset -- maybe that's no less unfair than most taxes (though note that the radio licensing fee is not a tax, but a contract, and one that only music stations practically need to sign). Rather, let's look at the practical opportunities this offers to those who want to -- perfectly legally -- get an extra share of those "collected fees":
  1. The NRA records a song called "Those Second Amendment Blues." It doesn't even have to be good.

  2. Gun rights advocates start online campaigns -- "Download this song, even if you don't want to listen to it, since the NRA gets a tenth of a penny each time it's downloaded." They also distribute simple programs or scripts that let you automatically download it and throw it away; if the metering system doesn't keep track of every downloader's IP address (consider the possible privacy problems if it does), the program can also keep downloading the song again and again, though perhaps only when it senses that the computer isn't being used for other purposes.

  3. The Second Amendment Blues now gets tens of millions of downloads, more than the latest Britney Spears song. The NRA gets a huge stash of taxpayer money, quite unrelated to actual consumer demand for the song.

  4. Other groups of course do the same. The money ends up being distributed mostly to advocacy groups, religious groups, and the like, and to those artists who have fan bases that are willing to engage in the same sort of behavior. The royalty loss is borne either by the taxpayers, or by the other artists. The result is therefore entirely unrelated to how much anyone actually listens to the music. And, at the same time, bandwidth use goes through the roof.

  5. No-one has done anything illegal, at least unless we start passing laws banning downloads for improper purposes (and think how intrusive it would be to enforce those). Even if the proposal prohibits copyright owners from trying to drum up such downloads, the above works quite well even if the NRA studiously avoids any connection with the people who start the "download early and often" campaign.
     In the radio context, it's much harder to play this sort of game -- ASCAP and BMI, the royalty collection and distribution bodies, rely on sources of data about sales that aren't as easy to dramatically throw off. But here, if each download costs nothing in money and very little in effort, the "real or estimated share of downloads" data may quickly become extremely unreliable, especially given the incentive for people to manipulate it (though, again, manipulate it in ways that will likely be perfectly legal).

     And I'm not sure that much can be done to prevent these games. One solution would be to tax people by the megabyte downloaded -- or perhaps when these sorts of things start happening, ISPs will themselves institute this sort of billing system. You'd also have to do the same for people who get free access, for instance schoolkids or college students, at least once they download more than a threshold amount. That might deter this sort of behavior, if the per-megabyte costs are substantial. But that's a pretty significant unintended consequence of this proposal, and one that many people won't be wild about.

     The RIAA massive lawsuit proposal has its flaws, too, of course. But I'd be hesitant to accept the download tax as a superior alternative to the current regime, at least until problems like this get worked out.


A different view on last Thursday's hearing: Someone I know who also attended the hearing on marriage last week passes along the following observations, which take a different view than the one expressed in Dale Carpenter's remarks that I posted yesterday. I thought that these were as worth passing along as the original ones, so here they are:
1. From what I could tell, and contrary to Professor Carpenter’s views, the hearing was indeed NOT about the Federal Marriage Amendment, or about any other proposed language to add to the Constitution, but instead was about the Defense of Marriage Act of 1996. The focus of the hearing was apparently to determine whether DOMA is or is not constitutional or under threat of constitutional attack. Consider the hearing title: "What is Needed to Defend the Bipartisan Defense of Marriage Act of 1996?” Look also, for example, at the testimony of the other two legal witnesses. In fact, there is no amendment proposal pending in the Senate, and Representative Musgrave, sponsor of the FMA in the House, did not appear to defend FMA. Indeed, no one was there to defend the FMA. That’s awfully strange – indeed, incompetent – if in fact the hearing was designed to be about the FMA.

2. Generally, one first determines that a statute won’t work, before thinking about language for a constitutional amendment. To me, that just seems like careful lawyering and policymaking, and it appears that that is precisely what Senator Cornyn was doing. Moreover, it seemed to me that the case was pretty clearly made that, yes, DOMA is indeed under threat of constitutional attack. Indeed, it’s hard to imagine how it could have otherwise been the case. See #3.

3. Professor Carpenter says: “I did not take a position on the merits of the constitutional arguments for same-sex marriage, nor was I asked to.” That’s an awfully strange comment, given that most of the legal discussion, both in written testimony (including Professor Carpenter’s own testimony) and during the hearing, was on precisely this topic – whether, under Romer and Lawrence, constitutional arguments can be made that there is now a constitutional right to same-sex marriage, and that therefore DOMA and the traditional marriage laws of all 50 states are now under threat of constitutional attack. In questioning, Senator Cornyn pointed out the comments of same-sex marriage constitutional litigators like Lambda Legal Defense and Education Fund (“it is inevitable now” that courts will strike down DOMA and recognize same-sex marriage) and the ACLU (“the [Lawrence] decision opens to challenges the Defense of Marriage Act”). Indeed, Professor Carpenter himself acknowledged that he disagrees with his co-counsel in the Lawrence case, Erik Jaffe, who has said that “[t]he ruling [in Lawrence] certainly contains room to make solid arguments for marriage rights.”

4. I seemed to recall that Greg Coleman did not take a position on FMA, but simply concluded in his professional opinion as one of the nation’s top appellate lawyers that, if Congress wants DOMA enforced, a constitutional amendment is likely necessary. I don’t recall if the others endorsed FMA. But in any event, it is not right to say that there were four pro-FMA witnesses. It would be more accurate to say that there were two pro-DOMA/FMA policy witnesses (Reverend Hammond and Maggie Gallagher), and two appellate litigators, one of whom (Mike Farris) seemed very strongly in favor of DOMA/FMA policy, but who also didn’t talk about the legal/textual details of FMA. Again, the hearing was about the policies and enforceability of DOMA, and not really about the FMA at all.

5. Senator Schumer’s argument, in effect, was that a statute would suffice to fix the problem, and that you should never amend the Constitution where a statute is sufficient. He made that argument even though, as Senator Feingold conceded earlier in the hearing, of course if a statute is struck down as unconstitutional, a constitutional amendment is necessary. It’s unclear what about this argument Professor Carpenter found to be “intelligent.”

6. Bottom line: Putting aside the policy arguments for and against gay marriage (which the hearing certainly addressed, and which brought out both sides of the debate in a robust and intellectually honest way), it seems to me that, on the legal argument, the case was clearly made that the American people should not necessarily trust the courts to enforce DOMA, and that if the American people value DOMA, they need to think about taking addition legal actions to defend DOMA.

7. I do agree with Professor Carpenter’s assessment that the hearing was “civil and cordial.” In his opening remarks, Senator Cornyn said: “Americans instinctively and laudably support two fundamental propositions: that every individual is worthy of respect, and that the traditional institution of marriage is worthy of protection.” Nicely put, I thought. He also echoed Senator Kennedy’s earlier remarks, from 1996, in which Senator Kennedy said: “there are strongly held religious, ethical, moral beliefs that are different from mine with regards to the issue of same-sex marriage which I respect and which are no indications of intolerance.”


Leni Riefenstahl dies at 101 I picked this up from Cronaca, one of my favorite blogs. At first glance the blog subject is archaeology but they are consistently smart and interesting on many topics.


More Jews for Jesus: My friend Rabbi Yitzchok Adlerstein writes:
Be peeved no longer. You are right about the view of traditional Judaism that there is no opt-out clause. Once a Member of the Tribe, always a MOT. Your friends, however, who call Jews for [Jesus] an oxymoron are also correct. The key to harmonizing these positions is in a phrase you employed in describing their position: "one can't ... theologically be a Jew and a Christian at the same time." This is arguably the case. Theologically, ideologically, experientially, one cannot practice "Judaism" in any mainstream form and Christianity at the same time. The term "Jews for Jesus" simply does not, in the popular mind, mean people of Jewish background who have embraced Chrisitianity. It does mean people who claim that their Jewish lives are enhanced by accepting Jesus as the traditional Jewish savior. They see Christianity as enhancing and fulfilling Judaism, rather than negating it. That makes as much sense as awarding a mink coat as a door prize at a PETA convention.

A Jew by birth, or by halachically valid conversion, remains a Jew inexorably. For hundreds of years, Jews whispered stories about young children, stolen from their parents, who would be raised by non-Jews, and sometimes rising to high places. They spoke of a Jewish Pope. (Cardinal Lustiger of Paris is halachically Jewish, and will continue to be so even if one day the College of Cardinals chooses him to become the Bishop of Rome.)

Edith Stein - complete with canonization - remained legally Jewish. So did Benjamin Disraeli, even after his Anglican baptism as a child. If Edith Stein had survived Auschwitz, changed her mind about the Church, married and had kids, those kids would be halachically Jewish, without any conversion.

If there was a Jewish pope, though, he was not a Jew for Jesus. He was a halachic Jew who walked out of Jewish religious life, and into that of an ideological competitor, not ally. Jews for Jesus remains an oxymoron, and a dangerous one at that, preying on the religious ignorance of the most unchurched religious group in America - Jews.

Reminds me of the questions Queen Victoria posed one day to Disraeli. "And you, Disraeli, which Testament is yours? The Old or the New?" Sadly, he responded, "Your Highness, mine is the blank page between them."

For Jews whose religious knowledge comes up blank, Jews for [Jesus] is still a threat that takes unfair advantage of their vulnerability by selling theological snake-oil as legitimate medicine.
     I appreciate the Rabbi's arguments, and they may well be properly persuasive to many devout Jews. But I wonder just how one figures out that it makes no sense for people to "claim that their Jewish lives are enhanced by accepting Jesus as the traditional Jewish savior."

     After all, many Jews claim their Jewish lives are enhanced by not following some of the halachic rules -- e.g., the rules related to which food they can eat, to whether they can engage in homosexuality, to what the proper roles of men and women are, and so on. Other Jews claim their Jewish lives are enhanced by recognizing as a Messiah someone who most other Jews don't recognize as a Messiah (I speak here of the Lubavitcher Jews). I suppose that some people would view "Reform Jew" as an oxymoron, because to them a "Jew" is someone who actually recognized the obligation to follow the commands given the Jewish people in the Torah.

     And yet my sense is that most Jews wouldn't take this view of Reform Judaism: They might or might not say that Reform Jews have an unsound view of Judaism, but they don't see Reform Judaism as an oxymoron, even if they see it as a theological error, and even if they see it as an ideological competitor of their own preferred view.

     I guess I don't quite see why being a Jew for Jesus, even in the sense of believing that Christianity is compatible with many aspects of traditional Judaism, is any more self-contradictory than being a Reform Jew, in the sense of believing that Reform Judaism is compatible with many aspects of traditional Judaism. And I don't see why either group is being illogical in concluding that this belief enhances their lives, perhaps including their lives as Jews.

     In any case, though, I very much appreciate the Rabbi's reaction.


Expert Witnesses: While I blog more often on constitutional law and history issues, another significant academic interest of mine is the admissibility of expert testimony. Ted Frank at has an excellent post on the frequency with which experts are excluded at the appellate level. I was going to post on this issue myself, but Ted beat me to it.


Ever-further-behind on reading: I'd been planning to read Norman Rush's Mortals, Iain Pears' The Dream of Scipio, and maybe Margaret Atwood's Oryx and Crake before Quicksilvercomes out and shoves all other fiction aside for a while. I've just realized that's not likely to happen. And the term starts the same week Quicksilver is released...


Trade roundup: Commentary and coverage are, appropriately, heating up. See the special Cancun section of TCS (including this piece by Dan Drezner; a new Cato symposium and site; today's front-page NYT article; The Economist; Irwin Seltzer in the Weekly Standard-- though that last seems to characterize the agriculture subsidy fight as between the US and the EU, when right now it's between the Cairns Group (opposed to subsidies and protectionism) and a joint US-EU position.

Oh, and I'm proud to note that of the 30 finalists in the Institute for Humane Studies' "A World Connected" globalization essay contest, six are from the University of Chicago. I know one of them by face and name, but haven't ever (IIRC) taught or talked at length with any of them. As far as I can tell no other institution has more than one finalist.


Freedom of speech and university professors as government employees: A couple of people asked me whether my analysis last Friday of the Eric Rasmusen matter is affected by Rasmusen's being a government employee. Can't the university as employer restrict its employees' speech -- whether the speech is on university property or outside it -- when the speech offends the public or students, or makes students feel uncomfortable in the professor's classes?

     The answer is generally no. The government as employer, the Supreme Court has held, may indeed restrict its employees speech on matters of public concern if the disruption caused by the speech to the employer's mission exceeds the value of the speech. (How exactly one is to compare these two hard-to-measure and seemingly incommensurable items -- disruption and value of speech -- is not an easy question, of course.) This is the so-called "Pickering balancing test," so named after the case which first enunciated it.

     However, lower courts have generally held that professors' out-of-class speech -- such as letters to the editor and the like -- is nearly categorically protected (setting aside unprotected speech, such as knowingly or recklessly false statements of fact, threats, and the like). And this, I think, is quite right, given the traditional role of universities: Even offensive political expression should not be seen as disruptive within a community that's supposed to be dedicated to debate and the exchange of ideas.

     Perhaps some extraordinary evidence of actual disruption might be enough to satisfy the Pickering test even in the university context -- but the mere risk that some students might feel uncomfortable in Rasmusen's classes (a risk that would equally arise if the professor had harshly condemned adherents of a political party, or the rationality of some religion, or for that matter people who adhere to certain theories within a particular academic discipline) can't be enough. See, e.g., the Levin v. Harleston litigation in the Second Circuit, where the courts held that a university may not retaliate against a professor who had written letters to the editor stating, among other things, that "the average black is significantly less intelligent than the average white" and that some discrimination against blacks is proper because of the higher level of criminality among blacks.

     Note that the rules are likely different as to in-class speech by faculty members, for a variety of reasons. Among other things, students have to listen to their teachers' in-class speech or risk getting a lower grade, while they needn't read the professor's blog; the university is trying to teach its students a particular body of knowledge, and it may insist that those whom it hires to impart this knowledge communicate what the university believes is correct information rather than incorrect information; and professors' in-class speech is seen more as the speech of the university than is professors' outside-class speech. (A piece of evidence on the latter point: People will often say "I studied Free Speech Law at UCLA Law School," rather than "I studied Free Speech law from Volokh"; but they'd rarely say about one of my articles "I read an article on free speech and harassment law by a UCLA professor.") A university may thus have considerable power over the curriculum, teaching style, and perhaps even the viewpoints that their faculty members teach, though the exact extent of this power is not well-defined.


Oath: The indispensable Gregg Easterbrook now has a blog at TNR Online. It is, of course, very good. but I think he's a bit off-base with this:
The Immigration and Naturalization Service[...]is about to rewrite the Oath of Allegiance recited by naturalized U.S. citizens. The proposed change of the existing oath, which was standardized in 1929, is somewhat spooky.[...]Here is the proposed new Oath of Allegiance, written by the lawyers at the Department of Homeland Security:

Solemnly, freely, and without any mental reservation, I hereby renounce under oath all allegiance to any foreign state. My fidelity and allegiance from this day forward is to the United States of America. I pledge to support, honor, and be loyal to the United States, its Constitution and laws. Where and if lawfully required, I further commit myself to defend the Constitution and laws of the United States against all enemies, foreign and domestic, either by military, noncombatant, or civilian service. This I do solemnly swear, so help me God.

This language is a little cleaner, but check that weird new qualifier: A citizen will defend the Constitution and the laws of the United States "where and if lawfully required." Is Homeland Security suggesting there is some circumstance when it is not lawful to defend the Constitution? Times when the laws of the United States should be ignored? And just exactly why shouldn't the vow to defend the Constitution be absolute?

It seems more than a little unsettling that with the Justice Department already essentially insisting, under the Patriot Act, that it can selectively interpret the Bill of Rights, we now find that the Department of Homeland Security thinks new citizens should vow to defend the Constitution only sometimes.
The "support, honor, and be loyal to" clause isn't conditional. What's conditional is the imperative to "defend the Constitution and laws of the United States against all enemies, foreign and domestic, either by military, noncombatant, or civilian service." In other words, the really active stuff, like showing up for military service when drafted. I don't know about you, but I only do this "sometimes," as in "really rarely," as in "arguably never." In a free society most people do this kind of thing "sometimes" at the most. And I strongly approve of saying "lawfully required," not just "required." It means that an immigrant isn't swearing to ask "how high?" whenever anyone in a uniform tells them to jump; they're not swearing to obey arbitrary commands or unconstitutional statutes, or for that matter swearing to join the military before being conscripted. They're even retaining a good-conscience right to disobey a conscription order if they think that conscription is unlawful (e.g. under the 13th Amendment). (Like anyone else, they'll go to jail for refusing; but they won't be oathbreakers in so doing.)

Yes, there are circumstances in which one might unlawfully be called upon to defend the constitutional order. I think the draft itself is one such, but a Presidentially-imposed draft without Congressional approval would certainly be one. (I think that the President is currentl authorized to activate the draft; we've had a dormant draft, with Selective Service registration, since '79. But it took Congressional action to authorize that registration.) Being ordered to quarter troops in one's home would be another. (Quick, anyone who's not a law student: which amendment?) The police and judges during the Civil War who carried out Lincoln's suspension of habeus corpus were obeying an unlawful command that was (arguably) taken in defense of the constitutional order as a whole. Note that there's no necessary relationship between an action's constitutionality in its own right and its efficacy in preserving the constitutional order as a whole. It's not an analytic truth that only constitutionally-acceptable rules will ever be necessary to carry out that defense.

I'll miss the "princes and potentates" language; I think there's a place in ceremony and ritual for a touch of archaism. But I don't find the passage Easterbrook refers to worrying; quite the contrary.


55-40 = "stalled": Reader Shannon Maders points to a remarkable AP story and ABC headline:
Poll: Support for Calif. Recall Stalled
Poll: Support for Recalling California Governor Has Stalled; Bustamante Holds Slim Lead

Support for the recall of Gov. Gray Davis has stalled, a new poll suggests . . . .

The Field Poll, set for release Tuesday, found that 55 percent of likely voters support the recall, down from 58 percent in an August poll, but the difference remained within the poll's margin of error. Forty percent said they opposed the recall, a gain of three percentage points from last month. . . .
I don't get it: How is 55%-40% opposition "stalled"? If they had said that support seemed to be weakening, that might be more sensible, though even that wouldn't be quite right, since the difference is statistically insignificant. But what does "stalled" mean here? It's not like the yes-on-recall percentage has to be constantly increasing in order for the recall to win, in which case "stall[ing]" would indeed be bad (e.g., if a Presidential primary candidates delegate total had "stall[ed]" ahead of his competitors, but below the majority needed to win outright). The percentage just has to stay over 50%, which this percentage seems to be doing.


California recall Field Poll data: This FoxNews story summarizes it. My favorite item:
The poll also shows 55 percent of Californians support recalling Democratic Gov. Gray Davis with 40 percent opposing it. . . .

The last Field Poll, taken in mid August, . . . showed 58 percent of Californians supported recalling Davis with 37 opposed to it.

"The poll shows we're making progress," Davis spokesman Gabriel Sanchez told Fox. "We're just beginning with our campaign and we're already making progress."

Sanchez said the governor gained six points from the last Field Poll, pointing to a three-point drop in support for the recall and a three-point gain in opposition to it. . . .
So going from 58-37 against to 55-40 against is "gain[ing] six points," eh? A nifty bit of mathematical spin, but it doesn't entirely pass the giggle test, I think, unless the Davis campaign would also say that the need to "gain fifteen points" in order to reach a 47.5-47.5 from the current 55-40.


Orin Kerr: A reader asks "What ever happened to Orin Kerr?" To remind those who missed the message, we lost our coblogger to Justice Kennedy, for whom Orin is clerking this year. We hope to get him back next July, when the Term is over.

     Orin's career path is unusual for a Supreme Court clerk: He was out for six years after his appellate clerkship, spending three years as a prosecutor and then three as a law professor; most Supreme Court clerks start right after their appellate clerkship, or spend at most a couple of years working between their clerkships. Come to think of it, though, our coblogger Erik Jaffe also had a similar path -- he worked for five years as a litigator between his clerkships -- and David Post worked for (if I recall correctly) six years between the clerkships. Still, it's fairly unusual, even though somehow not among the Conspirators.


Why People are Irrational About Politics Mike Huemer visited my university yesterday and gave a talk, this was my first chance to hear him. He is a young and fearless philosopher (U. Colorado), smart enough to tackle the big issues, ambitious enough to never quit, and in touch enough to write for broader audiences and peers at the same time (a tough trick if there ever was one). He is an epistemological realist, an ethical intuitionist, and a political libertarian, too extreme for my tastes but always provocative. My favorite paper by him is "Why People are Irrational about Politics". He argues that politics is not especially tricky, nor are most disagreements rooted in values. Instead people have self-interested biases, hold beliefs to construct favorable self-images, use beliefs as tools of social bonding, and suffer from coherence and confirmation bias.

You also can read Mike on your prima facie right to own a gun (I disagree) and the fabrications in Michael Moore's Bowling for Columbine, as you may know criticisms of this film are all over the blogosphere by now.


Suing over leaks of poll results: Reader Matt Gaffney asks, prompted by an allusion in a Mickey Kaus item ("Sue him!"), why journalists can get away with leaking not-yet-published poll results. "If [journalists] can use information they didn't pay for, why can't I download free music without getting sued by RIAA, since that's just information as well?"

     A quick and oversimplified answer: Copyright law protects creative expression, but doesn't protect facts or ideas. If you're a historian, pollster, scientist, or journalist, and you uncover a cool not hitherto known fact, copyright law generally will not protect you. And this is an intentional feature of copyright law -- though both creating expression and uncovering facts may require substantial work, and may benefit from the incentive provided by a legal monopoly (such as copyright), giving people monopoly control over facts is generally more harmful to public discourse than giving people monopoly control over creative expression. We don't want historians to be able to decide who gets to write about the facts that they've unearthed; in fact, the Supreme Court has strongly suggested that laws that give people the power to control the use of facts generally violate the First Amendment. (There are complexities here with what fellow copyright profesor Justin Hughes calls "created facts," and in some measure poll results might possibly fall within this complex and controversial category, but between the lack of copyright protection for facts and the extra latitude provided to fair use -- which applies when you quote a couple of numbers from a story, but generally not when you literally copy an entire song -- poll results are pretty clearly not protected by copyright.)

     Journalists who leak poll results could still conceivably be sued under other theories:
  1. Contract law: If the journalist promised to keep results secret in exchange for getting them before they're published, then this contract can be enforced against him, and likely against his employer. See Cohen v. Cowles Media. But this generally doesn't apply to third parties to whom the journalist leaks the information, since they aren't bound by the contract.

  2. Hot news misappropriation law: A few cases have set forth the "hot news misappropriation" tort, which does create a short-lived property right (which would last a matter of hours or days, not many years as in the case of copyright law) in hot news. It's not clear, though, that this theory remains legally valid these days, both as a matter of tort law, and as a matter of First Amendment law.

  3. Trade secret law: If the poll results haven't yet been published, and if they've only been released to a few people who have had to enter into nondisclosure agreements, they might be protected as trade secrets, which might in theory allow lawsuits even against people who haven't entered into the nondisclosure agreement but know or should know that their sources did enter into such an agreement, and leaked the results in violation of this agreement. I discuss this in the last part of this article, and argue that such applications of trade secret law violate the First Amendment. The matter is unresolved, because there have been very few cases applying trade secret law this way; some have accepted the free speech defense, and others (most recently the California Supreme Court in DVD CCA v. Bunner, decided just two weeks ago) have rejected it.
So the bottom line: There is some potential legal peril in leaking facts, especially unpublished ones, but -- unless you or your publisher have indeed entered into a nondisclosure agreement yourself -- a lot less than in copying creative expression (such as songs) that's protected by copyright law.


Rocky Mountain News on the university political affirmative action proposal: A good editorial. Summary sentence: "Conservative politicians incensed at the leftist tilt of higher education are correct that there is a problem, but wrong if they believe legislative action should be any part of the solution."


Do you know where your children are? Today's Washington Post reports on a new device, costing $280, that records how your teenager has been driving your car. It measures and records seat-belt use, speed, hard braking, acceleration, and other variables. Within three months you will be able to buy a global positioning system for your car, again to discipline or find your errant teenager.

I know these devices are voluntary, and that they will save lives. But somehow I was not happy to read this article. "It is a powerful tool that's going to be used in criminal investigations in traffic homicide cases," said one prosecutor (an interesting question is who has the rights to the data).

One attorney said: "The [recorders] will get a lot more Orwellian than they are now...This is not something that is 20 years off. This is very much a near-term thing."


More on Movie Prices: Reader Andrew Ducker reports that EasyCinema is trying to revolutionize movie theater pricing in the UK by buying rights for a flat fee, and charging ticket prices based on capacity. Profits will come from ticket sales, not from concessions. EasyCinema comes from the same folks who revolutionized the European air travel market with EasyJet.


Richman Responds: Sheldon Richman responds to my criticism of his article on Jenin and Israel. His response is more balanced than his original piece. I will acknowledge, in Sheldon's defense, that various European newspapers published hysterical and wildly inaccurate accounts of a purported massacre by Israeli forces in Jenin (and have never apologized for doing so). I recall one British report, linked to by Drudge, in which the author claimed that she had been to many battle scenes, but never had witnessed so much death and destruction--remember, the actually number of Palestinian fatalities in Jenin was around fifty, mostly armed fighters! One simply can't trust the European media when it comes to Israel.

Sheldon also accurately points out that an Israeli military commander's comments fueled rumors of a massacre, by inaccurately stating that hundreds were dead in Jenin (the real number of deaths, Palestinian and Israeli, was under one hundred). Two points about this: (1) the commander, who later said he meant "dead and injured" regardless never said hundreds of civilians were dead; I remember reading the report at the time, and in context I thought he was referring primarily to opposing armed forces, as there had been hundreds of armed Palestinian fighters in Jenin before the IDF moved in. As it turns out, most armed Palestinians in Jenin either fled before the fighting or melted at the appropriate time into the non-targeted civilian population, cutting casualties below expectations. So even if the commander meant dead, he may have simply have expected more deaths by gunmen than occurred; (2) even hundreds of civilian deaths would not create a prima facie case of a "massacre" except among people predisposed to think ill of Israel. [UPDATE: Some Arab and Muslim sources won't give up the massacre story, even though it's been utterly debunked by even anti-Israel investigators.]

Sheldon is highly critical of the deaths of the twenty or so noncombatants who died in Jenin. Operation Defensive Shield, including the Jenin battle, involved some of the most intense urban warfare of recent times, and before the Operation, it was widely believed that Israel could not retake the West Bank from the PA without causing thousands upon thousands of casualties--go back and read pre-Operation Defensive Shield stories about how Israel's hands were tied by the impossibility of retaking the West Bank without causing massive death. Ex ante, taking Jenin while causing "only" a few hundred incidental civilian deaths would have been considered by objective military analysts to be nearly impossible, and, if successful a sign of Israel's concern for civilians, not a massacre.

Indeed, almost any other military with such superior air power would have simply pummeled its enemy from the air, causing massive civilian death. Israel, both because of its own doctrine of "purity of arms" and because it is held to double standard by the rest of the world, instead adopted innovative ground tactics that (1) kept civilian deaths extremely low, under the circumstances; and (2) created far more Israeli casualties than an air campaign would have.

[Aside: A few days ago, Israel missed the opportunity to wipe out the entire Hamas leadership by using a small bomb designed to minimize incidental civilian casualties. The morality of using this smaller-than-needed (as it turned out) bomb is questionable, as far more civilians on both sides are likely to die as a result of the failure of the mission than would have been killed by a bigger bomb. Methinks Israel, having just won a huge diplomatic victory by persuading the EU to name the political wing of Hamas as a terrorist group, did not want to risk alienating the EU by killing civilians.]

More problematic than the specific issue of Jenin is Sheldon's moral equivalence: "No civilized person could countenance the murderous bombing by a Palestinian in Haifa (killing 28) that sparked Operation Defensive Shield (or any murder of innocent Israeli civilians). By the same token, those who respect individual rights should also condemn state violence directed at Palestinian innocents." First, I don't see how Operation Defensive shield was "directed" at Palestinian innocents. If it had been, given Israel's military power, tens of thousands would have been killed, instead of dozens. Civilians did die and suffer, and civilians always do in war. But, what exactly was Israel to do? I daresay that no nation would have allowed the situation that existed in March 2002 in Israel--with bombs constantly going off in cafes, hotels, buses, discos, and other public spaces--to continue, and any government that did allow such a situation to continue would be derelict in its duties, to say the least. To stop these bombs meant war (or, really, bringing the war declared by Paletinian terrorists to them, instead of letting them dictate the terms of engagement). Military action inevitably means that some innocent civilians are harmed, especially when one side has the explicit policy of hiding its armed forces in civilian areas. Logically, one must necessarily distinguish between Palestinian violence at the time, which had both illegitimate means (intentional targeting of civilians) and ends (destruction of Israel, the doctrine of the groups involved), and Israel's response, which had legitimate means (military operations that targeted opposing armed forces and attempted to minimize civilian casualties) and ends (stopping the indiscriminate massacre of Israeli civilians).

Monday, September 08, 2003


Taking Liberties with Threats to Civil Liberties: I share the libertarian concerns that the "war on terror" poses a potential threat to civil liberties. The only problem -- as our co-blogger-on-leave Orin Kerr pointed out (see, e.g., here) -- is that so many of the allegations against Attorney General John Ashcroft, the Bush Administration, and the USA-PATRIOT Act are inaccurate or exaggerated, if not both. The folks at Reason -- who I typically like -- have been vocal about the Patriot Act, for example, but they've also made mistakes. Here NRO's Ramesh Ponnuru takes Reason editor Nick Gillespie to task because "doesn't know what he's talking about when it comes to the Patriot Act." In response, Gillespie pulls up lame. I admit I'm no expert on the Patriot Act, but this exchange gives me reason to doubt Reason on this one.

Meanwhile, Dahlia Lithwick is back, co-authoring the first in a series of articles analyzing the Patriot Act's most controversial provisions, and suggesting not all Patriot Act concerns are overblown.


BCRA Oral Argument: I attended the oral argument in the campaign finance reform case today (all 4 painful hours of it). My general reaction was that the questions from the Court were more encouraging than I expected (I had exceedingly low expectations), but the answers from the First Amendment side were far less than encouraging. On the positive side, the Chief Justice seemed more skeptical of BCRA than many had suggested he might be. Justice Stevens at times also raised skeptical questions, but they seemed more in the nature of devil's advocacy than any signal of intent. Justice Scalia was sharply critical and shockingly suggested that the actual language of the First Amendment might have something to do with the case. Nobody else seemed to embrace that suggestion. Justice O'Connor gave few clues other than some questions indicating mild skepticism regarding regulation of state political party spending.

Overall I think the pro-BCRA contingent fairly cogently pushed the logic of the various First Amendment exceptions created by Buckley and made a mostly consistent (if repugnant) case for ever increasing regulation. The anti-BCRA advocates sought to hold the line of the silly distinctions created in Buckley and consequently lacked much coherence themselves. Only time will tell whether that strategy ultimately will pay off with the Court cutting the First Amendment baby in half or whether the logic of lost principles will lead to a further erosion of free speech. Whatever the merits of the tactical decision, I, for one, plan on improving the rest of my day -- and the treatment of the First Amendment -- by beating my head against Eugene's First Amendment casebook. I'll post more tomorrow after my stomach settles.


The Horror, Part II:
Student reaction [to a strike at Yale] seems split between partisans of both sides, with quite a few who remain neutral, if not oblivious. No classes have been canceled; the university left one dining hall open for freshmen and handed meal vouchers to more senior students. "We're the biggest victims," Daniel Kahn, a junior majoring in political science, said as he watched the strikers march on Grove Street. "Our parents are paying a lot for us to go here and we're missing meals and getting awakened at 8 a.m. by the sounds of their chanting."
University students really have it tough these days.
UPDATE: While I do find it ridiculous that this Yale junior would portray himself and his classmates as the "biggest victims" of the strike, as opposed, to, say, the striking workers' children, I actually sympathize a bit with this guy, having almost never been awake at 8 a.m. in my college days (and not that often today) myself. Ear plugs and a white noise machine would likely solve, or at least alleviate, his problem. I never go to a potentially noisy hotel without them.


Religious Freedom Restoration Act protects religious use and importation of hallucinogens, the U.S. Court of Appeals for the Tenth Circuit ruled last week, in a case (UDV-USA v. Ashcroft) involving a Brazilian emigre church that views the use of hoasca, a South American hallucinogen that's prohibited under U.S. drug law, as a sacrament.

     Given the little that I know about the facts of the case, I think the court made the right decision under the RFRA -- even though I think that courts should not create religious accommodations under the Free Exercise Clause (which I believe should be read as focused, with a very few exceptions, on laws that discriminate against religious practices). When RFRA is used to grant exemptions from federal laws, a court isn't substituting its own judgment for Congress's -- rather, it's implementing Congress's judgment that Congress's own enactments should be subject to religious exemptions. And if Congress disagrees with the court, for instance because it concludes that the drug really is harmful enough that it should be banned even for religious use, it can then supersede the courts' judgment simply by enacting a statute that limits RFRA's scope in these cases.

     This, I think, makes the RFRA exemption scheme (what I call a "common-law model" of religious exemptions) superior both to schemes that require the legislature to individually carve out exemptions from each statute (what I call a "statutory model") and to schemes that let courts decide, as a constitutional matter and with no possible reconsideration by the legislature, that some statute must yield to a religious objector's beliefs (what I call a "constitutional model"). I discuss this general issue in much more detail in this law review article.

     Special bonus: My UCLA colleague and fellow blogger Mark Kleiman was an expert for the plaintiffs (UDV-USA, the Uniao do Vegetal [USA]).

     Oh, incidentally, the Center for Law and Religious Freedom of the Christian Legal Society filed an amicus brief on the UDV's side. Some other religious groups also filed amicus briefs, but the case report doesn't make clear which side they were one.

UPDATE: Mark Kleiman tells me that the other amici -- the National Association of the Evangelicals, the General Assembly of the Presbyterian Church (U.S.A.), and the Queens Federation of Churches -- also supported the UDV.


Sometimes movies do cost more on Saturday night Read Michael Williams on the practices of some Los Angeles theaters.


Al Franken apologizes to John Ashcroft for Franken's falsehood: No, really; The Smoking Gun has a copy of the apology letter. Here's an excerpt from the Gun's summary of the story:
In June, Franken wrote to Ashcroft seeking the AG's story for "Savin' It," which the performer described as a book "about abstinence programs in our public schools." On its face, the letter (which you'll find below) reads like a joke, with Franken advising Ashcroft to "share a moment when you were tempted to have sex, but were able to overcome your urges through willpower and strength of character. Be funny!" Franken also asked, "Did a young woman ever think you were homosexual just because you wouldn't have sex with her? Be serious!"

Franken's missive, written on letterhead from Harvard University's John F. Kennedy School of Government, claimed that he had already received abstinence stories from other prominent Republicans, including Condoleezza Rice and Senator Rick Santorum. However, in his July 11 apology, Franken admitted that he had not received those abstinence stories and called his solicitation to Ashcroft, "an imprudent attempt at satire." . . .
     Not the classiest journalistic behavior, it seems to me, even for a humorist. Certainly if Franken were at one point planning to publish the responses in a very different context than the one for which he was soliciting them, that would be pretty unethical. I realize that some practical jokes may be legitimate even if they involve some amount of mild deceit, but soliciting people's accounts of their sex lives under false pretenses, and then mocking them in public (again, if that were Franken's original plan), strikes me as outside this permissible zone.

     But even if Franken just wanted to entertain himself, or possibly report that he had indeed sent such a letter, the reference to others who supposedly contributed to the book strikes me as particularly unpleasant. Had the gag been more obvious, I'd have a different view of it. But other than perhaps the "sex-free leaders" item (which is subtle enough that people might skip over it), it doesn't have enough cues to be a pretty clear satire; and people reading the letter might therefore wrongly assume that Rice, Santorum, and the others were indeed involved with this project.

     So, again, I do think that comedians need to be cut some slack, and claims that are pretty clearly satirical shouldn't be taken seriously. But Franken's actions seem to have gone beyond the line; he did indeed have something to apologize for.


Eat my duck, please: Mark Steyn reports:
Here's a news item from the too-lame-to-be-true category. But it is. It seems Bill Clinton and Mikhail Gorbachev have collaborated on a retelling of Prokofiev's beloved children's classic, ''Peter And The Wolf.'' In the original, you'll recall, Peter and his friend the duck are out frolicking in the meadow when the slavering wolf shows up and embarks on his reign of terror. He gulps down the duck as his hors d'oeuvre, and has the cat lined up to follow. But fortunately, Peter gets hold of a rope and uses it as a noose with which to muzzle the wolf and take him into captivity.

In the Clinton version, you won't be surprised to hear, Peter realizes the error of his lupophobia and releases the wolf back into the wild. The wolf howls a friendly goodbye. Which is jolly sporting of him when you consider that it's all our fault in the first place. ''Forgetting his triumph, Peter thought instead of fallen trees, parched meadows, choked streams, and of each and every wolf struggling for survival,'' narrates our Bill, addressing the root causes and feeling the wolf's pain. ''The time has come to leave wolves in peace.''

No word on the fate of the duck. Is she left in peace? Or in pieces? . . .
Read the rest, which naturally is about more than just about literal wolves; a bit over the top in places, but generally right on target.


Federal Marriage Amendment hearing last week: Dale Carpenter, a professor at the University of Minnesota School Law, has these impressions of the Federal Marriage Amendment hearing last Thursday. Naturally, this is a somewhat biased perspective -- Carpenter is anti-FMA, though as I understand it he is generally moderatively conservative or libertarian on many other issues -- and I'm not sure how correct they are. Still, they seemed thoughtful and interestng, and worth posting:
As you may know, Thursday I testified before a Senate subcommittee on the question, "What is Needed to Defend the Bi-partisan Defense of Marriage Act of 1996"? It was basically a kind of preliminary hearing on the proposed Federal Marriage Amendment (FMA) though the chair (John Cornyn, R-TX) tried to deny that. Here is a link to my written testimony, prepared in the space of about 4 hours late on the night before the hearing:

. . . Among other points, I made the argument that the FMA is unnecessary, even if one opposes same-sex marriage, because courts are unlikely in the near term to impose gay marriage on the entire country. I did not take a position on the merits of the constitutional arguments for same-sex marriage, nor was I asked to. At one point or another the following Senators came in to make brief statements or ask questions: Schumer, Leahy, Feingold, Kennedy, and Durbin.

There were six witnesses, four pro-FMA and two anti-FMA (including me). I think it went very well for our side. A staffer for Sen. Feingold told me he thought the hearing went far better than they ever imagined. The arguments made by the witnesses for the FMA were not very strong, consisting mostly of dire warnings about Lawrence and incantations about children needing mothers and fathers, as if same-sex marriage would make mothers and fathers illegal. . . . Plus, because no Republican senators showed up besides Cornyn himself, the questioning basically consisted of very skeptical questions from the Democratic senators directed at the pro-FMA witnesses and softball questions directed at me.

I came away with even more respect for Chuck Schumer, whose questions seemed very pointed and intelligent. At one point Schumer so rattled a pro-FMA activist college professor from some school called Patrick Henry U that he practically challenged the Senator's manhood. I was moved by the genuine emotion showed by Sen. Durbin who voted for DOMA but, speaking directly to witness Keith Bradkowski (a guy who lost his partner of 11 years, a flight attendant, when his plane went into the north tower), practically apologized for that vote. Durbin almost broke down explaining that the Senate had done gay couples an injustice.

An odd feature of this for me, personally, was that I knew so many people on the other side of the debate. I knew two of the four witnesses for the other side, including Maggie Gallagher (who edits the website) and Greg Coleman, an appellate lawyer and co-clerk of mine 10 years ago for Edith Jones. We are friends. Also, I knew a couple of the staffers for the Republicans who were in a conservative debating society that I and some others founded back in law school. As for Cornyn, I had encountered him once before: when I sued the Texas GOP 7 years ago on behalf of LCR for refusing to give us a booth at the state convention, he was on the Texas Supreme Court, which reversed a decision in our favor. I could tell he remembered me.

The tone of the hearing was actually very civil and cordial. Cornyn was not mean. I believe the hearing was intended as a sop to social conservatives. The Republicans, as evidenced by the fact that they didn't even show up, are not (yet) serious about this amendment. That's a relief. But Massachusetts could change all that.


MEChA, Cruz Bustamante, and "Colonial nation-state[s]": Mickey Kaus in Slate points out a flaw in the "MeChA doesn't really have a radical platform any more" argument. (Recall that Cruz Bustamante, the California lieutenant governor and the leading Democratic candidate to replace Gray Davis (should Davis be recalled), was a MeChA member in his youth, and has not really disavowed the group.)
One of the MEChA supporters quoted by the L.A. Times's Matea Gold in her defense of the controversial Chicano organization was Ralph de Unamuno, identified by Gold as "a UCLA graduate student who served as an advisor to the university's chapter." In Gold's piece, de Unamuno calls anti-MEChA charges "extremely slanderous," and adds:
It makes everyone feel pretty bad because, if you talk to most people in MEChA, most of their time is spent mentoring high school students or doing cultural events on campus ...
Comes now Shark Blog, pointing out that this same mentorly Mr. de Unamuno appears to have himself written a recall-pegged MEChA defense in a 'Myths/Facts' format. De Unamuno's essay in particular rebuts the "myth" that "MEChA's goals are to give the southwest back to Mexico." In reality, he argues:
MEChA is not a Mexican or Mexican-American organization. In 1999, MEChA changed its Philosophy and declared itself to be part of the intercontinental Indigenous Struggle of the Americas. Thus, we are internationalist in scope, and stand in solidarity and support the aboriginal rights of all the Indigenous peoples of the Americas and we no longer recognize the borders of any Colonial nation-state.
Oh, OK, so they aren't really Mexican nationalists any more; rather, they just don't recognize the borders of the U.S., and presumably also Mexico and other countries. Nothing radical there! (Go to Kaus's post for the links.)


A lovely little example, from the pen of Judge Posner, via How Appealing:
[A]n interpretation of an insurance policy is not rendered doubtful . . . just because a snippet of contractual language taken out of context provides literal support to the insured's position. That way madness lies. Suppose you order a Cosmopolitan in a bar, and the bartender gives you a copy of the woman's magazine and insists that you pay for it; can he appeal to literal meaning to defeat your contention that it is not what you agreed to?


Geographical puzzle for today: What are the three most populous countries in Africa? The answer is here.


20 Questions Here is Will Baude's recent interview with me. I talk about Eugene, The Volokh Conspiracy, the future of blogging, my new blog, the differences between lawyers and economists, Mexican art, ethnic food, favorite recent novels, and many other matters.


Movie prices on Saturday night David Bernstein asks why movies don't cost more on Saturday night, when it is more crowded. Here are a few possible reasons, admittedly no single one of them clears up the puzzle:

1. Spillovers: Most people simply go see another movie if they can't get into their first choice.

2. Buzz: It creates buzz when people have to wait in line, show up early, etc. You want to create a Saturday night atmosphere of the movies being the place to be.

3. Audience effects: Word of mouth drives many movies, and this is most important amongst the young. They mind long lines least, and mind high prices most. To the young -- the critical moviegoing demographic -- moviegoing is at least as much a social event as about seeing the movie.

4. Fairness: For whatever reasons, many customers resent it when prices change on a daily basis. Those priced out of the market may feel like they are "second class moviegoers," which harms word of mouth and long term audience loyalty.

5. Concessions. Movie theaters probably earn more on their concessions than on the movie, a big chunk of movie revenue goes back to the moviemakers. So you want young viewers who will buy plenty of popcorn, which again might suggest queuing and a low price. The theater owner also cares more about audience loyalty to the theater than maximizing profit on a film-by-film basis.

5. Other products: Increasingly, theater runs are "advertisements" for subsequent DVD or videocassette sales, of course this does not explain earlier times.

6. Intertemporal substitution: People who don't think they can get in Saturday night just go another night. When you look at seating for the entire week it is harder to see excess demand.

7. Advice: Use Moviephone or if you really want to get in.

You might ask similar questions about the Super Bowl, restaurants, and why snow shovels don't cost more when there is a blizzard. Jacob Levy asks why popular movies don't cost more. I don't think there is a single "silver bullet" answer for any of these questions, but these observations may help us diminish the size of the puzzle.


Utah government commission gets clearance from Mormon church: Here's an excerpt from the AP story:
Hoping to clear the way for eliminating the firing squad as a means of execution, a Utah commission asked for and received a statement from the Mormon church saying it does not oppose the change.

In a one-sentence statement provided Wednesday to the Utah Sentencing Commission, The Church of Jesus Christ of Latter-day Saints said it "has no objection to the elimination of the firing squad in Utah."

The clarification was needed, according to one commission member, because of a purported church doctrine that held that justice was not done unless a murderer's blood was shed. . . .

Commission member Paul Boyden said recent letters to the editor to newspapers indicate some in Mormon-dominated Utah still believe the firing squad is necessary for religious reasons. Commission members feared that belief could hurt the chances of the proposed change in the Legislature.

"If we hadn't (asked for the church's position), this probably would have been a question among some legislators and it may have not made it out of committee," Boyden said. . . .
     Are there possible Establishment Clause problems with this? I don't think so: It seems to me that government bodies often have to, as a matter of practical politics, get support from various influential nongovernmental groups; and I don't think the Establishment Clause prohibits this. It would be troublesome if the Commission had a formal rule, or even an informal policy, that gave the church (or churches generally) special veto power because of their religiosity. But it seems to me that if the Church's support is being solicited simply because of its ideological influence -- much as government officials may routinely solicit the support of both political parties, or other influential organizations such as the NRA or the ACLU (and may even decide not to go ahead with their contemplated policy if they can't get enough support) -- then that's a proper and necessary part of the political process.

     Still, this seems like an interesting incident, which is worth noting and discussing. Thanks to Tom Round for the pointer.


Doesn't sound good: According to the Rocky Mountain News,
Top Republican legislators are working on a plan that would require Colorado colleges and universities to seek more conservatives in faculty hiring, more classics in the curriculum and more "intellectual pluralism" among campus speakers.

Next year, the GOP leadership hopes to implement the "Academic Bill of Rights," which sets out "to secure the intellectual independence of faculty and students and to protect the principle of intellectual diversity."

In hatching the idea, Gov. Bill Owens and Republican legislators quietly met in June with David Horowitz, a controversial and outspoken Los Angeles conservative who is leading the national effort with his group called Students for Academic Freedom.

"Universities should not be indoctrination centers for the political left," Horowitz wrote in a letter to supporters.

"It should not be a fight for young students to get a complete education, to learn more than half the story," he wrote. "It shouldn't be a battle for conservatives or Christians to gain teaching positions, to have their work seriously considered, and to be tenured."

Senate President John Andrews, a Centennial Republican who attended a June 12 meeting with Horowitz at the Brown Palace Hotel, said he hopes to see some plan approved by either the colleges' governing bodies or the Colorado Commission on Higher Education — with legislative assistance — next year.

"I do agree with David Horowitz when he says that the longest-lasting and most brutally effective blacklist in American history has been that which has excluded conservative thought and voices more and more from American campuses since the '60s," Andrews said. "Blacklisting is the American way. We need to find a way to get beyond that." . . .
     I sympathize with the criticism of the way universities do things: I do suspect that there's a good deal of discrimination against conservatives in hiring, especially outside the sciences. Some of it may be deliberate, and some may be subconscious -- when one is judging the quality of a person's work, it's very hard to set aside one's disagreement with the political disagreement that one may have with the work, even if one is consciously trying to do so.

     But how exactly would the Colorado Legislature require universities to "seek more conservatives in faculty hiring," or even for that matter "more 'intellectual pluralism' among campus speakers"? I suppose that there might be some unobjectionable ways of doing this -- for instance, insisting that the university not discriminate based on politics in applicants, though such a rule would necessarily be hard to enforce (as all nondiscrimination rules are).

     From the quick description, though, it smacks of some political equivalent of race-based affirmative action programs, whether billed as quotas, preferences, goals, recruitment programs or what have you. And it seems to raise all the problems that race-based affirmative action programs would: the specter of political discrimination against liberals; hard to resolve classification debates about who's "conservative," or which speakers add "pluralism" and which are largely duplicative of other speakers that have already been invited; new double standards that are added on top of old ones, and that in practice will not succeed in canceling out the old ones; and "pluralism" becoming a euphemism for political quotas or preferences, much as "diversity" has become in the race context. Excerpts from the proposed Academic Bill of Rights support this interpretation, e.g.,:
All faculty shall be hired, fired, promoted and granted tenure on the basis of their competence and appropriate knowledge in the field of their expertise and, in the humanities, the social sciences and the arts, with a view toward fostering a plurality of methodologies and perspectives. No faculty shall be hired or fired or denied promotion or tenure solely on the basis of his or her political or religious beliefs.
The "view toward fostering a plurality of . . . perspectives" suggests that universities really are supposed to give "plus factors" to those who belong to certain political or ideological camps; and the provision that no-one shall be discriminated against "solely on the basis of his or her political or religious beliefs" (emphasis added) reinforces that, because it implicitly suggests that an applicant's political or religious beliefs may properly form part of the hiring decision.

     This "solely" qualifier is exactly the language that supporters of race preferences use to try to justify hiring people based on race -- after all, they say, they agree that no-one should be hired solely based on race. But virtually no-one is ever hired, not hired, promoted, or not promoted solely on the basis of any such condition: There are always other attributes that are considered. Even if a university promotes someone largely because he's a Protestant Republican (whether because the department is biased in favor of Republicans and Protestants, or is told that it should "foster[] a plurality of . . . perspectives"), it would also of course consider rival candidates' publishing record, educational background, and so on. A Jewish Democrat who had won a Nobel Prize (or whatever equivalent there might be in the discipline) would doubtless have been hired in preference of the Protestant Republican candidate; so even though the Protestant Republican candidate might have gotten a huge boost because of his political or religious beliefs, he wasn't solely hired on the basis of those beliefs.

     I recognize that there are actually plausible arguments for departments engaging in some such "pluralism"-based preferences, especially when the issue involves methodologies and not just abstract viewpoints; and though the First Amendment generally prohibits government agencies from discriminating based on political affiliation in hiring, it may be somewhat more forgiving in this area than the Fourteenth Amendment's prohibition on race discrimination should be, or than the Civil Rights Act of 1964, interpreted as it is written, should be.

     But in practice, I suspect that any attempt to implement this sort of "pluralism"-based preference system, especially under legislative pressure, would be corrosive and corrupting. Hiring debates focus more and more on candidates' political preferences. More accomplished candidates will find themselves set aside in favor of less accomplished ones that can be spun to higher-ups and legislators as providing more "pluralism." Candidates will have to spin themselves as filling some "pluralism"-based niche, and will have to rebut charges that they aren't "authentic conservatives" or "genuine Southern Baptists" (remember that religious belief cannot be the sole basis for a decision, which seems to call for allowing it as a partial basis for a decision).

     Sounds familiar? Some, I suspect, might support this proposal because it seems like payback to the Left for the Left's championing of race preferences -- but, if implemented, it will only add to the problems caused by race preferences, and, whether or not it's implemented, I think it will only weaken the moral and political force of the campaign against such preferences.


Movie prices: Not the same thing at all; but David's question reminded me of this old Tim Noah piece on why it doesn't cost more to see good movies.

In New York in particular, it seemed to me that a few years ago most movies most of the time were sold out-- always at the Angelika, during the first few weeks of release for most other things; and lots of movies don't last longer than a few weeks in the theaters anymore. That was when we, and everyone else we knew, turned to Moviefone, buying tickets and checking availability in advance. (That was back when Moviefone was the only phone number you needed, before the movie chains started spinning off their own proprietary Fandangos and suchlike.)


Linking Policy: I've received quite a few emails recently challenging various statements made in articles that I have linked to. I therefore thought I'd mention that just because I link to an article, doesn't mean I agree with or endorse everything in that article. Sometimes, I will link to an article that I find interesting but not fully persuasive. Other times, I will link to article because it is the source of a fact or of a point I wanted to make, and linking to the article is the equivalent of a footnote. Unless I specifically endorse a particular idea in a linked article, readers shouldn't assume that I agree with it. I have received some very interested critiques that would have been better addressed to the author of the linked piece. UPDATE: Of course, I don't mind comments on the linked pieces, just don't expect me to necessarily defend them.


Traitor to My Class: America pretends to be a classless society, but certainly there are class, or at least demographic, differences. Members of the narrow demographic category I'm in--attorneys (or professors) who attended elite universities, living in an urban metropolis--are expected to share certain tastes. Here are a few ways that I diverge from my demographic group:

(1) I drove an American car for nineteen years. On Friday, I picked up my first non-American car, a preowned Lexus IS300 Sportcross;
(2) I sometimes eat at McDonald's (love the Fruit and Yogurt Parfait) and Taco Bell (Bean Burrito or Steak Soft Taco, no cheese);
(3) Before their economic woes destroyed the company, I used to shop at KMart (though I did avoid the clothing department, and Target, which I prefer now, hadn't come to town yet; I can't stand Walmart, especially the "greeter");
(4) My favorite vacations are in American national parks, not European cities;
(5) I don't always vote, and when I do it's sometimes for Republicans;
(6) I've taken a Carnival Cruise;
(7) I sometimes listen to Dr. Laura's show if it's on when I'm in the car (which is the only time I listen to the radio).

Number 7 actually inspired this post. Wednesday, I blogged about libertarian dislike for Israel, and also about Dr. Laura's hypocrisy and lack of humility. A very small fraction of the American public would have any interest in the former topic, whereas Dr. Laura has 12 million daily listeners. Yet I received lots of email about libertarians and Israel, and none about Dr. Laura (though one blogger did link to and comment on my post). I suspect that few of the Volokh Conspiracy's readers ever listen to Dr. Laura, and don't care to (even putting the issue of her controversial views on gays aside). Wrong demographic.


Movie Theater Prices: I've asked economist friends the following question, and have not received a satisfactory answer: why do movie theaters charge the same price for movies on weeknights, when they tend to be relatively empty, as on Saturday night, when they tend to be full? This question occurred to me years ago when I lived in Manhattan for a Summer. Just about every movie at every theater was sold out on Saturday night. The lines, chances of getting in, etc., were so bad that I gave up Saturday night moviegoing. When a business has such great demand and limited supply the obvious solution (until more supply can be brought in, at least) is to raise prices. So, why don't theaters price discriminate between weekend nights and weeknights, the way they do between matinees and other shows?
UPDATE: Apparently, in Los Angeles movie theaters do often vary prices by date and time.


False symmetry:, which I usually much like, carried the following item last Wednesday:
"A federal appeals court overturned more than 100 death sentences in Arizona, Idaho and Montana Tuesday, ruling that condemned inmates in the three states were wrongly sent to death row by judges instead of juries," the Associated Press reports. But if judges are incompetent to render death sentences, what makes them think they're competent to overturn them?
(Eric Rasmusen also endorsed this argument.) I realize that the question was somewhat tongue in cheek, but it also seems to me that it was somewhat serious. And it seems to me that the serious part of the claim was quite unsound.

     Imagine that you were prosecuted for murder, and the judge said "Sorry, under state law, you're not entitled to a jury in murder cases. I'm trying you, and finding you guilty." This is unconstitutional, because it's a violation of the right to jury trial (a right that's very likely secured by your state constitution, and under the federal Bill of Rights, which has been held to be applicable to the states under the Fourteenth Amendment). A reviewing court's job is to set your conviction aside, and require that the state retry you before a jury, as the Constitution provides (assuming that the state does want to retry you).

     So we have here a situation where the judge is incompetent to render a verdict in a criminal trial (at least where a serious crime is involved), because the Constitution requires a jury trial unless the defendant waives it. On the other hand, the reviewing judges are quite competent to reverse such a verdict, because under our longstanding legal tradition, legal decision are reviewed by judges (not juries), even though factual findings are generally made by juries (not judges). There's nothing particularly odd about this sort of asymmetry, which is part of our constitutional scheme.

     The question raised by the Arizona, Idaho, and Montana death sentences was somewhat different: It was (with a few technical twists that I won't focus on here) whether the jury trial guarantee is applicable to the sentencing phase of death penalty cases, as well as to the guilt phase. A couple of years ago, in Ring v. Arizona, the Supreme Court held that the Sixth Amendment did guarantee a jury trial in such situations; Justices Scalia and Thomas, who are generally defenders of the death penalty, in large part joined the majority on this. The Ninth Circuit held that this decision applies to unexecuted death sentences that had reached the end of their state court appeals before Ring was decided, a plausible application of the Supreme Court's retroactivity rules.

     So one certainly can criticize the result, for instance on the grounds that Ring was mistaken in its interpretation of the Due Process Clause, or that the Ninth Circuit was mistaken in its application of the retroactivity rules. But the asymmetry argument made in OpinionJournal was not, I think, a sound form of criticism.


My new blog, but I will continue at Volokh Alex Tabarrok and I have started a new blog,, up and running now, please visit our site. Economics is the focus, and we will offer fresh material every day. At first Alex and I will do all the blogging, but over time we will be moving to the group blog format, just as Eugene and Sasha have.

I will not duplicate content on and I might very occasionally cross-reference a blog post, as I would reference someone else's work, but you won't be able to use one blog to find out what I am doing on the other. All my postings will be unique, be it at this blog or the other.

I offer my thanks again to Eugene for introducing me to blogging. In a recent interview (I will let you know when it is on-line) I described him as a "force of nature," an understatement if there ever was one.

Sunday, September 07, 2003


Today brings another installment of Michael Ignatieff's ongoing NYT Magazine series on human rights, warfare, intervention, and the post-9/11 world (today's NYTM acknowledges that "[o]ver the past year, Ignatieff has functioned for the magazine as an in-house historian and political philosopher). It's characteristically thoughtful and interesting, animated by his usual combination of moral sensibility and political understanding.

And yet, and yet. There's something in it that bothers me. For a start, consider this:
The Iraq operation most resembles the conquest of the Philippines between 1898 and 1902. Both were wars of conquest, both were urged by an ideological elite on a divided country and both cost much more than anyone had bargained for. Just as in Iraq, winning the war was the easy part. The Spanish fell to Commodore Dewey even more quickly than Hussein's forces fell to Tommy Franks. But it was afterward that the going got rough. More than 120,000 American troops were sent to the Philippines to put down the guerrilla resistance, and 4,000 never came home. It remains to be seen whether Iraq will cost thousands of American lives -- and whether the American public will accept such a heavy toll as the price of success in Iraq. The Philippines also provides a humbling perspective on nation-building in Iraq. A hundred years on, American troops are back in the Philippines, hunting down guerrillas, this time tied to Al Qaeda, and the democracy that Teddy Roosevelt sought to bring to that nation remains chronically insecure.
I'm pretty sure that Ignatieff just doesn't understand what happened in 1898-1902. I hope that's so.

"Both were wars of conquest"-- I'm not sure what that means in this context. The United States conquered the Philippines, with the aim and effect of taking possession of it. Ignatieff knows perfectly well that that's not what's happened in Iraq. The U.S. wasn't especially eager to give the Philippines up even after fifty years. Nobody's going to be happy if the U.S. is still in direct control of Iraq after fifty months; fifty weeks will be pushing it. At no point will Iraq become a territorial possession of the United States.

"both were urged by an ideological elite on a divided country"-- well, not really. The Spanish-American War was, as Ignatieff notes earlier in his essay, wildly popular. The war fires were stoked by Hearst, which may be what he means; but by the time conflict broke out, it was only elite opinion that was divided.

It's the mention of the guerilla war that really troubles me, though. For a prominent human rights intellectual to discuss the American suppression of the Filipino independence fighters and only mention 4,000 American deaths is strange and surprising; the U.S. killed an estimated 200,000 Filipino civilians during the conflict. Ignatieff broadly supports the Iraq war (as far as I can tell); yet he thinks it most resembles America's first overseas campaign of mass killing.

"The democracy that Teddy Roosevelt sought to bring to that nation" is even worse. As far as I can tell the U.S. had at that stage no interest in bringing democracy to the Philippines, or at least no interest that was any more immediate than the inchoate desire to civilize and bring democracy to American Indians-- eventually-- had been. A Philippine Republic was declared after the Spanish-American War ended; and it was to put down that republic that the U.S. troops were sent in. The general in command of the conflict is reported to have said "It may be necessary to kill half of the Filipinos in order that the remaining half of the population may be advanced to a higher plane of life than their present semi-barbarous state affords." And, as with American Indians, the interest in killing half the population somehow always seemed more pressing than the interest in advancing the other half to a "higher plane of life".

It's the reference to Teddy Roosevelt that reassures me, paradoxically enough. It reassures me that Ignatieff really doesn't know the relevant history, and that he doesn't mean to be comparing a war he (roughly) approves of to the conquest and slaughter of the Philippines. Elsewhere in the essay Ignatieff says that Roosevelt brought the U.S. into the Spanish-American war in order to protect access to the Panama Canal that he was planning to build. The problem is that at the time Roosevelt was only Assistant Secretary of the Navy, albeit a particularly pushy occupant of that office. He left that post to fight in Cuba, and after the Spanish war sought and won the governorship of New York. He became President (as a result of McKinley's assassination) shortly before the three-year war in the Philippines came to an end, and his presidency was strikingly unmarred by any attempt to bring democracy to that country once the republican guerillas had been suppressed. Ignatieff doesn't quite say that Roosevelt was President during the Spanish-American War; but he does seem to attribute the war entirely to TR. The name "McKinley" never appears in the piece.

The analogy between the two conflicts shows up elsewhere in the piece, when the anti-imperialists of 1898 (Mark Twain et. al.) are compared with Noam Chomsky. If it were really the case that the Iraq war was closely similar to the Spanish-American/ Philippine-American Wars; if it were really the case that one's choices were to line up with Noam Chomsky in the present or with bloodthirsty types like TR in the past; if there were a contradiction between thinking that Twain, Sumner, Gompers, and their peers were right then and that this war is right now; then I'd be a pretty unhappy camper. But I think Ignatieff just has a thin, and rosy, understanding of 1898-1902.


A novel idea in popular music Top artists are now assembling collections of their favorite tracks by other artists. The new Artist's Choice, by the Rolling Stones, is excellent. It has everything from James Brown to Eddie Cochran to Muddy Waters to The Beach Boys, all remixed and sequenced very nicely. Andre Williams's Jail Bait is the lesser-known gem on the disc. It doesn't matter if you already own these cuts, you will rediscover them and enjoy the new presentation.

You can get Tony Bennett's picks, Johnny Cash's are on the way, search Amazon for "Artist's Choice" for a listing.

For an excellent collection of electronic music, an area with brilliant but scattered contributions, see The Orb's Back to Mine, search that name on Amazon as well for a longer list of discs.


Indiana University reverses course on Rasmusen: According to the Bloomington Herald-Tribune,
An Indiana University business professor can continue to post controversial arguments about homosexuality on his IU-based personal Web site, university officials said Friday. . . .

Complaints about Rasmusen's Web log started making the rounds of the IU campus this week, with the start of classes. Dan Dalton, dean of the business school, asked Rasmusen on Thursday to remove the log from his Web site, and he did, moving it to a private Geocities site -- with a link from his IU site.

But after checking on Friday with IU's office of legal counsel, Dalton told Rasmusen the university wouldn't keep him from posting his views on the site. . . .

Dalton cited a statement from IU's information technology policy office on personal Web pages, which can be created and maintained by faculty, staff and students.

"Free expression of ideas is a central value within the academy," the policy says, adding that some material on the sites may be offensive to some visitors. "Absent a violation of law or university policy, the university will not take action with respect to material on a personal home page," it says.

Dalton learned about the Web log on Thursday, and he said he asked Rasmusen to remove it over the narrow question of whether it was appropriate to post offensive material on an IU site.

"If this had been a private Web site, I would never have asked for that courtesy," he said.

He said he's also concerned that people viewing the site would get the false impression that IU doesn't welcome gays and lesbians as students, faculty and staff.

"There is always that risk, because it will appear on an Indiana University site," he said. . . .

[Doug Bauder, coordinator of IU's gay, lesbian, bisexual and transgender student support services office,] said the statements on homosexuality are highly offensive to many people in the IU community, both gay and straight. He said an anti-harassment team, of which he is a member, has received five complaints about the log from students, he said. . . .
I'm delighted to hear that IU has recognized its responsibilities under the First Amendment, and under general principles of academic freedom (which I think require the university to be tolerant of dissenting ideas as a matter of professional ethics, not just of legal obligation). Thanks to reader Paul Nelson for the pointer.

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