Monday, February 28, 2005

Philosophy in Plain English: Chris Bertram of Crooked Timber points out a very cool site,, which offers "translations" of classic works of philosophy into modern English. The idea of the translations is to present the arguments in modern English so the reader can understand the ideas without struggling through the archaic language of the original (and yet without watering down the argument). Here, for example, is a .pdf of the reworked version of Locke's Second Treatise of Government. The reworking is no doubt horrifying to the purists, but it's a very helpful resource for the rest of us.
Another Slatism; Well, Not Quite.--

In my last post, I pointed out that, if one ignored the real difficulties of the spoken word, then almost anyone could be caught in lots of infelicities or passages that would look odd out of context, passages that were as bad as most "Bushisms." I offered two "Slatisms" by Slate editor Jacob Weisberg (who is nonetheless remarkably fluent and careful in his speech), including this infelicity:

"Well this a, of course, when we were up there, we were talking skiing a little bit, and we were were talking talking politics." (NPR, Jan. 23, 2004)

I was just surfing and found that Weisberg had co-written the memoirs of Clinton Treasury Secretary Robert Rubin. The first Rubin transcript I found online had this quotation on the front page (the interview was with ABC):

"For the following three and a half years ago we have had horrendous fiscal policy over the last three and a half years."

I did not find a tape, so I am not sure if the quotation is correct (it may well not be). If Bush had said this (or even if he had not, but there was a false transcript floating around), it probably would have been a Bushism.

But Rubin's meaning is clear and it's spoken English, just like most of Bush's verbal gaffes.

Again, I am not saying that Rubin isn't more fluent than most (I'll bet he is)--and from what little I know, he was a superb Treasury Secretary. Normally, you would have to be a Slate editor to treat an infelicity like Rubin's (or most of Bush's) as even worth comment, let alone ridicule.

Of course, technically this is not a Slatism, because it was "committed" by Weisberg's co-author, but I think it makes my point that, if almost anyone were miked as often as George W. Bush is, there would be hundreds of awkward and inarticulate statements to ridicule--if one were inclined to be as churlish and unfair as the editors of Slate.

I suspect that the reason that Slate continues the series is that collections of these Bushisms are the sorts of books that people pick up as they are checking out at bookstore cash registers.

UPDATE: In checking trackbacks to my earlier post, I see that Isaac Schrodinger points out that he used the word "Slatism" in a post on Friday, apparently referring to quotes misattributed to Bush, rather than my slightly different meaning of awkward or odd sentences spoken by Slate editors. I actually wrote most of this morning's post (including the term "Slatism") on February 10 (after another of Eugene's criticisms of Bushisms), but decided to wait to post until the next one flagged by Eugene.

Further, "Slatism" is a fairly obvious coinage: I see in searching the web that Bendomenech on Jan. 7, 2003 used "Slatism" to refer to an awkward sentence published at I am nonetheless happy to point out that Schrodinger posted his use of "Slatism" several days before I actually posted my use of the term. I didn't see either of Schrodinger's posts until a few minutes ago; I was busy at Harvard on the weekend.

District Court Rules Padilla Must be Set Free: While a trial level opinion in this area merely sets the ball rolling for future appellate proceedings, it is worth noting that today a Bush-appointed District Judge in South Carolina ruled that the Executive Branch has no power to detain Jose Padilla, the alleged dirty bomber whose case previously went up to the Supreme Court. The opinion is available here. The Supreme Court ruled last summer that Padilla's habeas action had been filed in the wrong district; this habeas case was filed in the right district days after the Supeme Court's decision. Today's opinion was authored by Judge Henry Floyd, who was nominated by George W. Bush. Judge Floyd held that there was simply no authority for the Executive Branch to hold Padilla:
[T]the Court is of the firm opinion that it must reject the position posited by [the Government that it has inherent power to detain enemy combatants]. To do otherwise would not only offend the rule of law and violate this country's constitutional tradition, but it would also be a betrayal of this Nation's commitment to the separation of powers that safeguards our democratic values and individual liberties.

For the Court to find for Respondent would also be to engage in judicial activism. This Court sits to interpret the law as it is and not as the Court might wish it to be.
According to Judge Floyd, the government had to handle this as a criminal matter:
Simply stated, this is a law enforcement matter, not a military matter. The civilian authorities captured Petitioner just as they should have. At the time that Petitioner was arrested pursuant to the material arrest warrant, any alleged terrorist plans that he harbored were thwarted. From then on, he was available to be questioned -and was indeed questioned - just like any other citizen accused of criminal conduct. This is as it should be.
He added:
"The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." Const. Art. 1, § 9, cl. 2. This power belongs solely to Congress. Since Congress has not acted to suspend the writ, and neither the President nor this Court have the ability to do so, in light of the findings above, Petitioner must be released.
He concluded:
If the law in its current state is found by the President to be insufficient to protect this country from terrorist plots, such as the one alleged here, then the President should prevail upon Congress to remedy the problem. For instance, if the Government's purpose in detaining Petitioner as an enemy combatant is to prevent him from "returning to the field of battle and taking up arms once again[,]" Hamdi, 124 S.Ct at 2640, but the President thinks that the laws do not provide the necessary and appropriate measures to provide for that goal, then the President should approach Congress and request that it make proper modifications to the law. As Congress has already demonstrated, it stands ready to carefully consider, and often accomodate, such significant requests.
Thanks to Howard for the link.

  UPDATE: Armchair Genius properly notes that the title of my post is a bit inaccurate; technically the Judge held that Padilla cannot be held as an enemy combatant, but that the government could continue to hold him if they charge him with a crime. In any event, the next step is the Fourth Circuit.
Roll Tide!

Kudos to the University of Alabama Student Senate for having the courage to stand up to their own faculty and condemning the faculty's endorsement of a speech code. The indispensible FIRE is on the case, and has the full story on its website.

From the Student's Resolution:

The Student Senate resolution, sent to UA President Robert Witt and Faculty Senate President John Mason, passed unanimously on February 24, 2005. Authored by Student Senator Pat Samples, the resolution states that "[f]ree speech is absolutely vital to the mission of any university, where new and often controversial ideas must be discussed openly and rationally in order to make advances in knowledge" and proclaims that "[b]y defending free speech for all students, one in no way condones any kind of hate or intolerance; [o]n the contrary, one is promoting tolerance of others despite their differences, especially their differences of opinion." The student resolution also warned that adopting a speech code would be a legal liability for UA and would "greatly tarnish its public image." The resolution's call for free speech for all students directly opposes the Faculty Senate's "hate speech" resolution passed last September.

I want to also express my congratulations to several old friends of mine on the Alabama faculty who were willing to stand with the students in favor of free speech.

It really is extraordinary that we live in an age where students have to educate faculty on the importance and educational value of free speech.

The Torch--FIRE's new blog--also reports that this is not the first time that Alabama's students have stood up to bullying by their Administrators, who once tried to prohibit the display of American flags on campus.


Whoops--looks like Randy was already on the case.


Several readers have emailed me noting a comment from Washington Monthly which clarifies that Alabama actually tried to ban the display of all dorm window displays, which would, of course, include the American flag, and that Alabama students protested the ban by displaying the American flag in their dorm windows, which would have been prohibited under the university policy. I apologize for understating the full reach of Alabama's proposed trampling on free speech in the earlier situation.

NPR Story on Bankruptcy Reform Legislation:

Long story on NPR this morning about the Bankruptcy Reform Legislation. Pretty much what you would expect, but they do quote from my testimony in the Senate Judiciary Committee last week. You can listen to it here.

Choosing a Lower-ranked Law School Over a Higher-ranked One:

I agree with Orin that, as a general rule, it's wise to pick a much higher-ranked law school over a lower one. Depending on the extent of the difference in rank, however, other factors can tip the balance:

(1) Geographic preference: If one wishes to work in Cincinnati when he graduates, it's likely better to go to U.C. than to, say, B.C. Especially if you are single, you might strongly prefer to spend three years at, say, George Mason in Arlington than three years at W&L in rural Lexington (and, indeed, urban law schools in desireable cities tend to get better students than do well-thought-of schools in Midwestern university towns; compare George Mason's LSATs to University of Illinois' or University of Iowa's). On a narrower geographic note, some of the Mason students I know who turned down Georgetown or G.W. did so because they are older evening students with families and live and work in Virginia, and can't spare the extra time and energy to get in and out of the city (especially because local employers know that Mason night students have entering scores rather similar to the other Georges' night students). On the other hand, the highest-ranked schools tend to have brand names that carry nationwide, an important factor if you want to be geographically flexible. (And if you want to be a law professor, you MUST try to go to a top 15, and preferably top 5, law school.)

(2) Special programs: I don't know how common such things are, but George Mason has an excellent patent program, and students in that program generally have few problems getting lucrative jobs. Thus, things can come down to factors such as cost.

(3) Cost: Attending a higher-cost, higher-ranked law school can pay big dividends, if you are young and planning (hoping) to work at a big firm. If you're planning to go into a family firm, work for the government or as a solo practitioner, and/or are over forty, capitalizing the extra costs of a private school becomes more of a problem.

(4) Special intellectual focus of a law school: Mason, for example, has a faculty with a strong interest in law and economics. Students interested in economics are likely to thrive at Mason both because they have some background knowledge, and because they are likely to be especially engaged. Better to do very well at school ranked X than to be a mediocre student at a school ranked X+10.

(5) Law school employment connections: For example, A.U. has lots of connections in the D.C. "public interest" law community. Cross-river rival Mason has lots of connections on the Hill, especially among Republicans.

(6) Intellectual interest: Believe it or not, one occasionally meets law students, especially older ones, who are going to law school primarily because they want to learn about the legal system, not to practice. Such students should choose the school that bests meets their intellectual needs, regardless of rank.

(7) Joint degrees: Some schools have relatively unique joint-degree programs. Mason, for example, has joint degree programs with the Economics Departments, which is unusual only in that the Econ department is itself so different from most. If a student is getting a law degree primarily to supplement a primary interest in something else, such as economics, the name brand of the law school becomes less important.

And then there are the intangibles Orin talked about; it's three years of one's life, after all.

E.g. and i.e.:

A recent edit that I got from a law review reminded me that not everyone knows the distinction between these two.

"E.g." means "for example"; it's short for the Latin exempli gratia. "I.e." means "that is" or "that is to say"; it's short for the Latin id est.

So you might say, for instance "European countries (e.g., France and Germany)" but "Benelux countries (i.e., Belgium, Netherlands, and Luxembourg)." Or you might stick with the purely English equivalents, though "e.g." at least is common enough that people should get it from context, and also has the merit of brevity.

UPDATE: Reader Ken White reminds me about this exchange from Get Shorty:

Ray "Bones" Barboni: Let me explain something to you. Momo is dead. Which means everything he had now belongs to Jimmy Cap, including you. Which also means, when I speak, I speak for Jimmy. E.g., from now on, you start showing me the proper fuckin' respect.

Chili Palmer: "E.g." means "for example". What I think you want to use is "i.e."

Ray "Bones" Barboni: Bullshit! That's short for "ergo."

Chili Palmer: Ask your man.

Bodyguard: To the best of my knowledge, "e.g." means "for example."

Ray "Bones" Barboni: "E.g., i.e., fuck you! The point is this: When I say "jump", you say "OK", okay?

Save Arrested Development!

According to reports, Arrested Development is on the verge of being canceled!

A petition has been started to save Arrested Development--you can sign it here.

Arrested Development is the best show on television--if you haven't seen it, watch it this weekend and then sign the petition!

Seeking Reviews of E-Merchandise Sites:

So I'm going to try my hand at some Volokh Conspiracy designs -- I'll probably pick a few that sound promising and provide them as options. Have it your way, that's our slogan here at The Volokh Conspiracy, though for intellectual property reasons we probably won't use that one on the T-shirts.

But the question: What service to use? I'd heard good things about CafePress, but then ran across some negative reviews (first in a comment on the Paraphernalia post, and then in some comments I found online). Zazzle sounds like an alternative, but I've only heard a little about them. I'm not looking for a place that will do the design; I'm planning on having something pretty simple, so I can do it myself. I'm looking for something that will take orders, create the goods, and ship them.

The priorities:

  1. High-quality stuff, not cheapo iron-ons that will crack or peel after a few washings.

  2. As low a price as possible, given constraint #1.

  3. Good customer service for buyers.

  4. Ease of use for me (so for instance having all the products on one service is better than splitting among two).

  5. No or low cost for us.

  6. Variety of products -- for instance, polo shirts as well as T-shirts, coffee mugs and mousepads as well as clothes, and the like.

  7. Whatever else I'm forgetting, though that might have to be a higher priority.

Any suggestions? Please post them in the comments, since I think other readers might be looking for similar information, for their blogs, for their other projects, or just for something noncommercial for themselves and friends.

Slatism of the Day.--

You would think that George W. Bush would make enough verbal gaffes that a journalist wouldn't have to try to trick his readers into thinking that Bush is more inarticulate than he is. But Slate, under the direction of Jacob Weisberg, must come up with a Bushism of the Day to feed their feature and the cash cow of calendars and other merchandise catering to Bush-loathers. Eugene has been insightfully covering these over the last year or so.

Accordingly, on days when Bush has made no real mistakes, Slate must squeeze quotations out of context or pretend that informal, off-the-cuff speech should look on the page like edited prose. Real conversation is a series of starts and stops, with doubling back to respond to the words and facial expressions of the hearers.

First, quotations out-of-context. Consider this example of a sensible statement that seems silly out of context:

"I'm here skiing the New Hampshire primary." (Jan. 23, 2004)

Second, inarticulateness. Consider this example of inarticulateness:

"Well this a, of course, when we were up there, we were talking skiing a little bit, and we were were talking talking politics." (Jan. 23, 2004)

Certainly, "we were were talking talking politics" is inarticulate, but it is the ordinary sort of speaking error that even those far more articulate than Bush would make.

I can prove my last assertion because these are not "Bushisms," but rather "Slatisms." I searched for an online recording of Jacob Weisberg and found both of these on the second one I listened to--Jacob Weisberg interviewing a Kerry family member on NPR (Jan. 23, 2004). And this was an interview in which Weisberg should have had an opportunity to prepare his questions.

I should say that Weisberg is extremely fluent and articulate in his interviewing style, well beyond most speakers and well beyond George W. Bush. Yet this only brings home how unfair and what poor journalism Slate's feature frequently is. If I had listened to more than two of Weisberg's NPR commentaries or interviews, I would probably have been able to come up with many more examples--especially if I were to use the misleading standards that Slate uses in choosing examples.

Personally, I usually try for exteme naturalness in presentation, with a style designed to convey intellectual excitement about otherwise dry data, rather than designed to be read in a transcript. At scholarly meetings, I find the attempt at perfect prose (typical of philosophers sticking closely to their prepared remarks) usually boring and lacking in the spontaneity necessary to give the impression that you really believe what you are saying. That is why lawyers are usually trained not to use fully prepared remarks, but instead to use an outline. Indeed, the advice is that, if you write out the text of your remarks, you should outline that full text, and then tear up the full text.

Professors not opposed to Academic Fraud and Terrorism:

One hundred and ninety-nine faculty members at the University of Colorado at Boulder dishonored their school today by signing an advertisement in the Boulder Daily Camera in support of Professor Ward Churchill. Although the University of Colorado has many distinguished professors, the advertisement makes it clear that the University also has some professors with insufficient concern about academic and professional integrity. The Denver Post article on the ad is here; the Daily Camera ad itself is not on the web--although it would be a good idea for someone to place the ad on the web, as a permanent record of where some CU's faculty stood.

The advertisement purports to defend "Professor Churchill's right to speak what he believes to be the truth." This statement ignores the fact--which is perfectly obvious to to anyone who has been reading Colorado newspapers over the last several weeks--that Churchill is a consummate liar. There is overwhelming evidence--which Churchill has failed to refute in even a minimally plausible way--of the following falsehoods by Churchill:

As detailed by Lamar University's Thomas Brown, Churchill's writings claim that the U.S. Army deliberately caused an 1837 smallpox epidemic among the Sioux by distributing infected blankets. Yet the very sources cited by Churchill state that the epidemic was accidentally spread by travelers and that the army had nothing to do with it.

As detailed by the University of New Mexico law school's John LaVelle in the American Indian Quarterly and the Wicazo Sa Review, Churchill has lied about the 1887 General Allotment Act (falsely claiming that the Act required proof of a certain percentage of Indian blood in order for a person to be eligible to be allotted personal land on Indian reservations) in six books and eleven essays. LaVelle further demonstrates multiple instances of plagiarism by Churchill and of citing sources for the opposite of what they really said.

Churchill's academic career has also included time as Instructor of studio art and art history at Black Hills State College, and he promoted himself as an "Indian artist" until a 1990 law federal prohibited non-Indians from selling their work as Indian art. As detailed detailed by KCNC television, Churchill's 1981 serigraph "Winter Attack" is plagiarized from a nearly identical painting by the renowned artist Thomas Mails. Churchill merely reversed the left-to-right imagery, and colored a bush green.

"Professor Churchill's right to speak what he believes to be the truth" does not protect Churchill's apparently false claims that he received paratrooper training the Vietnam War, and that he served in a long-range reconnaissance patrol unit--although his military records show that he was instead in the motor pool. Mount Holyoke history professor Joseph Ellis was stripped of his endowed chair and suspended without pay for a year because of similar lies about his own Vietnam record.

As detailed by KHOW's radio's Dan Caplis and Craig Silverman and by the Pirate Ballerina weblog, Churchill's entire academic career has been based on advancement through his bogus claim to be part Indian.

The CU 199 purport to "defend an environment in which ideas may be openly exchanged." Yet Churchill himself has attempted to destroy such an environment, at CU and around the nation. Two former students have alleged that their grades were lowered in retaliation for their exercise of freedom of speech. (One student wrote a campus newspaper article reporting the evidence that Churchill is not an Indian; another student suffered retaliation for disagreeing with Churchill's statements in class that the 1995 Oklahoma City bombing was a good thing.) A CU professor reported that Churchill physicially threated her because she favored naming a building after a retired administrator, rather than after an Indian tribe, as Churchill preferred. Churchill called for the murder of anarchist writer Bob Black. He called for the death of a student newspaper cartoonist who had criticized a racist professor in Hawaii who wrote about her fantasy of mutilating and killing a white woman.

Although CU professors are required by state law to sign an oath to support the Constitution of the United States and the Colorado Constitution, Churchill has repeatedly called for the violent overthrow of the U.S. government, and has urged his audiences to perpetrate 9/11 type terrorist attacks in the United States. In doing so, he has provided explicit instructions about where the attacks should take place, and how the attacker should dress so as to be able to get to the target.

Now perhaps Churchill has credible defenses to the above charges, but if so, we have not yet heard them. There is overwhelming evidence that the University of Colorado's current investigation of Ward Churchill's conduct is well-grounded. For the CU 199 to claim otherwise is foolish. The CU 199 allege that to investigate Churchill undermines "the very idea of the university itself." To the contrary, the very idea of a university depends on professors who do their work honestly, rather than with fraud and plagiarism, and depends on professors who respond to their intellectual foes by using counter-arguments, rather than by threatening and promoting violence and homicide. That 199 professors could defend a fraudulent thug and bully like Ward Churchill shows how very far the University of Colorado has fallen from the very idea of a university itself.

UPDATE: Although the CU 199 never say so explicitly, the ad appears to adopt the theory of Churchill's attorney, David Lane, that none of Churchill's litany of misconduct can be the basis for firing him, because the current investigation of Churchill was started by the Regents after Churchill's infamous "little Eichmanns" essay became the subject of public controversy. The ad from the CU 199 states that "the investigation of Professor Churchill's scholarly record has been initiated in direct response to criticisms of his ideas and without any prior format complaint of specific professional or academic misconduct on his part."

The claim of the CU 199 is wrong as a matter of fact, and as a matter of law. According to articles in the Denver Post and Rocky Mountain News (Post archives are available on the web; Rocky archives are not), there have been repeated complaints made to the administration about Churchill's misconduct in the classroom and his threats. Furhter, as reported in Westword in 1994, the National American Indian Movement filed a complaint with the University of Colorado about Churchill's ethnic fraud. As was the norm at CU, none of these complaints appear to have resulted in any administrative action. Given such repeated failures, it is within the Regents' discretion to order their own investigation.

Further, as the Second Circuit case of Jeffries v. Harrelston makes clear, there was nothing improper about the initiation of an investigation following the uproar regarding Churchill's hateful comments. In Jeffries, the head of the Black Studies Department at the City College of New York was stripped of his chairmanship following the uproar resulting from a crackpot racist speech he gave in Albany. The Second Circuit explained that the City College Regents could demote Jeffries "based upon a reasonable prediction that the Albany speech would disrupt university operations." The CU Regents certainly had the right to order the torpid CU administration to conduct an investigation of similar issues. (Although ordered by the Regents, the investigation is being conducted by three CU administrators, two of whom appear to have brushed off previous complaints about Churchill.)

Implicit in the ad from the CU 1999 is that the issues of academic fraud and plagiarism are off-limits because no-one has made a "formal complaint" to the CU administration. But there is no rule that a university must blind itself to a professor's fraud and other misconduct unless someone files a "formal complaint." There certainly should be an inquiry, however, about why the CU Arts & Sciences administration failed to take action following the publication of Professor LaVelle's articles in the late 1990s, and failed to respond to a formal complaint which someone filed with CU about Churchill promoting terrorism at a speech in Minnesota.

Moreover, Churchill's book on the Justice of Roosting Chickens, which contains the "little Eichmanns" essay, is itself a very fit starting point for an inquiry into Churchill's scholarly competence; most of the book is a crackpot history of the United States, filled with obviously incompetent statements. Churchills calls George Washington was "the richest man in North America" during the revolutionary war. Churchill writes about "Future president Alexander Hamilton." He asserts that white people "demonstrably perpetrate crimes at rates as great or greater than persons of color." For this last claim, he supplies a footnote which does not support the claim; in fact, whether one relies on victim surveys or on arrest data, data overwhelmingly show higher crime rates among people of color. Churchill tells his readers that in 1980 the CIA operated in Jamaica "subverting military and police officials into undermining and ultimately deposing the liberal left government of Michael Manley." Actually, Manley did charge that his political opponent, Edward Seaga, was supported by the CIA, but Manley was not deposed; he lost the 1980 election, then returned to power after winning the 1989 election.

In short, the Jeffries case affirms that Regent concern about the disruptive effects of Churchill's hate speech was a lawful, constitutional grounds for commencing an investigation of Churchill's academic record. Although the University of Colorado's administration had repeatedly failed to take action in response to formal complaints about Churchill, the Regents' investigation is under no stare decisis requirement to emulate the administration's errors. Nor are the Regents obliged to ignore additional, substantial evidence of misconduct which has been uncovered by the media in recent weeks. The media have a First Amendment right to write articles and produce radio programs on subjects of interest to their audience and themselves. Churchill has no First Amendment right to silence the media simply because media interest in him was initially provoked by his mean-spirited essay celebrating the 9/11 attacks. Nor are the Regents or the CU administration required by the First Amendment to blind themselves to the new evidence of Churchill's misconduct which the Colorado media have been exposing on an almost-daily basis.

Churchill should not be fired because he is a hate-monger, but the CU Regents have the legitimate authority to investigate whether Churchill's hate-mongering disrupts the University of Colorado, and they have no duty to ignore evidence which is brought forward by third parties that Ward Churchill is an academic fraud. Nor are the Regents obliged to ignore the catastrophic liability that CU could face if one of Churchill's acolytes follows Churchill's instructions to perpetrate a 9/11 style terrorist attack.

The CU 199, however, simply elide these issues. Some of the 199 have impressive records of scholarship in their own specialties; others appear to be politically correct hacks. But the terrible judgement of 199 faculty members in attempting to protect a bully who is unfit to teach in any institution, let alone a state's flagship university, will provide prospective students and parents with further reason to doubt that true intellectual diversity and freedom can be found at CU Boulder.

Related Posts (on one page):

  1. The First Amendment Defense of Ward Churchill:
  2. Ward Churchill and the Jeffries Case:
  3. Professors not opposed to Academic Fraud and Terrorism:
Apropos Words and Editing,

here's a sweet and interesting obituary -- with a personal touch -- for Eleanor Gould, the New Yorker's Grammarian. Thanks to reader Michael Greenspan for the pointer.

Picking A Law School: David's recent pitch to prospective law students encouraging them to turn down invitations to enroll where I teach and accept invitations to enroll where he teaches reminds me of this pretty good essay on the complex relationship between law school rank and career success. VC readers who are in the happy position of choosing among various acceptances to law school should take a look.

  My own take is that going to a higher-ranked, more established, and more prestigious school tends to open some types of career doors more easily; the higher up the ladder your school, the less a student has to achieve once enrolled to benefit from those open doors. This does not mean that students necessarily should go to the "best" school that admits them. Law school is a three-year commitment, and considations such as location, cost, "feel", and specific career interests and priorities need to factor into the decision. Any or all of these can outweigh prestige and rank. Also, some perceived distinctions in prestige are too small to make any real difference; students should not get hung up on the details of the latest US News ranking. At the same time, I think most lawyers would say that the presumption should be in favor of going to the "best" school that admits them assuming that there are substantial differences in the rank/prestige of schools they are considering. Of course, as David notes, actual mileage may vary.

Sunday, February 27, 2005

Clarifying the Record re Mari Matsuda and the ACLU:

In You Can't Say That!, I have a chapter discussing the ACLU's gradual abandonment of civil liberties when they conflict with antidiscrimination laws. As an example of the decline of the ACLU's traditional commitment to freedom of expression, I note that the ACLU gave Professor Mari Matsuda of Georgetown Law Center, a leading advocate of the censorship of "hate speech," an honorary position. I've heard through the grapevine that ACLU president Nadine Strossen denies that Matsuda has ever been given any such position, and her denial made it into at least one review (see p. 154) of the book. Yet Matsuda's Georgetown website, last updated in March 2002 (just when I was completing the book manuscript) states that she serves on the national advisory board of the ACLU. If this isn't an honorary position, it's even worse, as it means that Matsuda is actually helping make ACLU policy. A while back, I emailed Strossen and asked her to clarify (and promised to correct the paperback edition if it turns out that Matsuda has not actually ever been appointed to an ACLU position), but I never heard back.

Legal Rules and Targeting Terrorists: Is the CIA "too cautious" when it comes to targeting terrorists abroad? Shaun Waterman of UPI has this interesting story.
Bobby Fischer will go to Iceland:

Bobby Fischer, who was being held in a Japanese prison for violating the trade embargo against the former Yugoslavia, will now be receiving an Icelandic passport. The Icelandic Parliament had debated the matter for weeks; they did not grant Fischer's request for citizenship but did decide in favor of travel documents. Iceland, of course, had been the scene of Fischer's first triumph over Spassky in 1972; Fischer remains an important figure in the Icelandic national psyche. Here is the full story.

Statutes in Exile: Howard is back, and poses a very interesting constitiutional law question:
  Assume that the [Supreme] Court issues a decision holding that the U.S. Constitution prevents a State from criminalizing certain specified conduct (e.g., early term abortion or consensual sodomy). Later, assume that the Court reverses course and holds that the U.S. Constitution does not prevent a State from criminalizing that same specified conduct.

  Is the effect of the first ruling to wipe from the books in all States, or in any States, the laws criminalizing the specified conduct? Would the second ruling allow States to begin enforcing the laws that were in existence when first ruling issued that the first ruling had declared or implied were unconstitutional? Or would the second ruling require States that wished to criminalize the specified conduct to pass new laws doing so, even if those States had identical laws on the books when the Court's first ruling issued?
Terrific question. I have some vague intuitions about the answer, but instead of "preening [my]sel[f] in front of the blogospheric mirror" I think I'll turn this one over to our readers. If any one knows of a case where this happened or an article or book discussing this issue, please let us know about it in the comment section.

ACLU Approves Of Overwhelming Majority of Patriot Act: One of the odd things about debates over the Patriot Act is that even its harshest informed critics actually only oppose a very small part of the Act; the overwhelming majority of the statute is uncontroversial among the fairly small number of people who understand what's in it. As best I can tell, this has been a well-kept secret for the last 3+ years mostly for tactical reasons: If you want to get the public very worried about a topic to help advance your cause in future legislative debates, you can't very well admit that your objections are actually quite limited.

  In light of that, it's good to see that ACLU President Nadine Strossen apparently has admitted that the ACLU approves of more that 90% of the Patriot Act. As live-blogged at Ex Parte, from a recent address by Nadine Strossen at the annual Federalist Society student symposium: "[ACLU President Nadine Strossen] notes that the ACLU only has a few objections [to the Patriot Act, covering] about 12 of the 160 elements of the Patriot Act." While it's too early to know whether this live-blogged report is exactly accurate, note that the statement echoes the view of ACLU Executive Director Anthony Romero in early 2004 that "much of the Patriot Act is neutral legislation for civil liberties," and that only "about a dozen provisions" are objectionable to him. If anyone has a transcript of Strossen's remarks or a video, please send it on to okerr [at]

Saturday, February 26, 2005

More Responses to Textualism and the Takings Clause: Over at The Right Coast, Michael Rappaport has a thoughtful response to my Wednesday post about textualism and the Takings Clause. Meanwhile, Kip of A Stitch in Haste calls me "smarmy," my post "utterly silly," and the Volokh Conspiracy in general "a collection of bored semi-scholars and intellectual narcissists preening themselves in front of the blogospheric mirror." Hey, that's a pretty good quote -- does anyone else think it would be perfect for one of our t-shirts?

Related Posts (on one page):

  1. More Responses to Textualism and the Takings Clause:
  2. Stuart Buck On Text and Takings:
  3. Textualism and the Takings Clause:
New Media Analysis

My latest media column for the Rocky Mountain News examines the Baby 81 hoax from Sri Lanka (in which, supposedly, nine families claimed the same baby who was recovered from the tsuanami). I also look at media coverage of the UN rape scandals, and of the Saudi high school in Virginia which produced the alleged would-be assassin of President Bush.

People interested in following the Ward Churchill controversy should check out the very comprehensive collection of links from Pirate Ballerina. Another indispensible source is the material posted on the webpage of the Caplis & Silverman Show, from KHOW radio. What the links make clear is that the Churchill case is not about the freedom to express unpopular views about U.S. policy; it's about a consummate fraud and bully, who advocates and provides instructions for Americans to commit murderous terrorist attacks within the United States. It is also clear that the University of Colorado has protected Churchill for many years despite knowledge of his misconduct and fraud.


Hate it, to a degree irrationally disproportionate to its (slight) inferiority to "though." I know reasonable minds may differ, but there it is. "'Though,' not 'although'; 'on,' not 'upon'"; that's my motto (though one that may admit of occasional exceptions as to "upon"). Say, maybe that's what I should put on the T-shirts! Then again, maybe not.

Friday, February 25, 2005


In response to my post on editorial changes, Iain Murray (whose Edge of England's Sword blog has just gotten active again) writes:

[W]hen JRR Tolkien got the edited manuscript of The Hobbit back from his publishers he was outraged to see all references to "Elvish" changed to "Elfin" and all instances of "Dwarfs" corrected to "Dwarves", among many others.

Yup, the Elves were certainly not elfin.

Treaties and Domestic Courts:

Hofstra lawprof Julian Ku blogs in Opinion Juris in response to a Wall Street Journal editorial:

Today's Wall Street Journal has an interesting, essentially right, but somewhat overbroad editorial ($) on the upcoming Medellin case before the Supreme Court.

Medellin, most of you no doubt recall, will consider the domestic legal effect of an International Court of Justice judgment finding the U.S. in violation of its treaty obligations under the Vienna Convention on Consular Relations. In particular, the ICJ has ordered the U.S. to provide review and reconsideration for foreigners (particularly Mexicans) who were convicted of capital crimes and sentenced to death but whose initial arrest violated their treaty obligations. . . .

I'm not an expert on the subject, but if you're interested in it, read Julian's post for more details.

Federalist Society Symposium Being Blogged

on Ex Parte, the Harvard Law School Federalist Society blog. The details seem to be provided in the comments to each post, so check them out.

Jim Lindgren will be speaking tomorrow. Special bonus today: Michael Moore showed up -- and he lost weight.

Free Speech in Alabama: I what I am told is an amazing development, the Student Senate at the University of Alabama has voted unanimously to condemn the speech code adopted by the Faculty Senate.
Yesterday, the Student Senate unanimously passed a resolution that represents a stunning victory for academic free speech. In concise and clear wording, it explicitly repudiates a resolution by the Faculty Senate which calls for a sweeping speech code. Interestingly, the Faculty Senate resolution also passed without a dissenting vote. This is shaping up into quite a David and Goliath battle.
U of A professor David Beito of Liberty and Power provides the student resolution here and the context here.
Some Sensible Words about the Larry Summers flap:

The Economist this week has some sensible words about the Larry Summers "women in science" brouhaha. As they put it: "What is happening at Harvard would be funny if it were not so outrageous." Precisely. The reaction to Summers' speech has exposed the appalling hold that political correctness has on substantial elements of the Harvard faculty. Imagine -- the Harvard President has the nerve to hold controversial ideas at odds with current orthodoxy! And the temerity to actually speak about those ideas!! What does he think a University is, anyway? If the faculty go through with their threats to "censure" Summers with a "no confidence" vote, it will be a black day for that institution.

Today's Bushism:

Today's Bushism at Slate is:

"The United States and the U.S. stand together in support of the Iraqi people and the new Iraqi government, which will soon come into action." — Brussels, Belgium, Feb. 22, 2005

Except that the transcript (which Slate of course doesn't link to) seems to reveal the broader context to be:

PRESIDENT JUNCKER: Good evening, ladies and gentlemen. . . .

As regards Iraq, we applauded the courage of the Iraqi people and the results of recent Iraqi elections, as far as the out-turn was concerned. We are pursuing our common engagement in Iraq. The United States and the U.S. [sic] stand together in support of the Iraqi people and the new Iraqi government, which will soon come into action. To that end, should the new Iraqi government request it, the United States and European Union are prepared to co-host an international conference to provide a forum to encourage and coordinate international support for Iraq. . . .

I leave this to the President of the U.S.

PRESIDENT BUSH: Mr. Prime Minister, thanks. . . .

Yup, it seems like today's Bushism wasn't said by President Bush, but rather by European Council President Jean-Claude Juncker (who is also the Prime Minister of Luxembourg, hence the honorific that President Bush gave him) — or, I suspect, by the translator. I checked all the transcripts I could find on LEXIS, and none attributed this to Bush; all attributed it to Juncker, except one that attributed to an otherwise unidentified "Scheffer," likely an error.

Am I missing something here? Or is this yet another flub, much like the one on Feb. 10? That one was at least based on an erroneous transcript (though the error could have been caught had someone did a quick search to see what other transcripts said, or listened to the audio file). This one seems to be based on an erroneous reading of the transcript.

Many thanks to two readers, one anonymous and the other Kennan Shelton, who alerted me to this.

UPDATE: Slate has put up a correction at the top of today's Bushism, acknowledging that the statement was made by Juncker. This seemingly happened just a few minutes ago (roughly 3 pm Pacific).

FURTHER UPDATE: Stuart Buck coins the word "Slatenfreude."

YET ANOTHER UPDATE: It turns out that OpinionJournal's Best of the Web had busted Bushisms for exactly the same error a couple of years ago:

[Today's "Bushism of the day"]:
"I would like to express my deep condolences for the loss of the Senate."--Commenting on Sen. Paul Wellstone's death, Crawford, Texas, Oct. 25, 2002

Now, let's go to the transcript, which is of a joint appearance with Bush and China's President Jiang Zemin. It begins with Bush speaking:

Thank you for coming, President Jiang.

PRESIDENT JIANG: Mr. President, ladies and gentlemen. I just learned that one plane crashed. I would like to express my deep condolences for the loss of the Senate. And also I would like to express my condolences to the bereaved family.

Slate's correction is here.

Considering George Mason Law School?

Are you considering attending George Mason, academic home of me and co-conspirator Todd Zywicki? People telling you that it's crazy to consider Mason over a "superior" (i.e., higher-ranked in U.S. News) school? Well, I'm meeting an increasing number of GMU law students who have turned down, among other schools, local and regional competitors William and Mary, George Washington, and Georgetown (in fact, I've run into several students who turned down G'town but not G.W.; I didn't think to ask, so I'm not sure if they didn't get in or didn't apply to G.W.). Several years ago, such students were few and far between, but not anymore. I don't have exact numbers, but I'd say it's pretty common (given that G.W. and G'town have way bigger entering class sizes than Mason, it wouldn't take, from their perspective, many students who turned them down to make up a significant proportion of a GMU class--20 each, and you have a quarter of a GMU entering class!). Your mileage may vary of course, and one's choice of law school is a highly individual decision. But if your heart is with GMU, and you want to reject a higher-ranked school, go for it, you will not be alone.

UPDATE: Professor Jonathan Adler of Case Western Law School (and The Corner) writes in to remind me that the phenomenon I identify is not entirely new (though it has clearly accelerated), and that he turned down G'town and G.W. for Mason, "the best choice in the D.C. area."

The Other Second Amendment Challenge to the D.C. Gun Ban:

Bob Levy of the Cato Institute writes:

Parker v. DC (I am co-counsel): Parker was stayed by the DC Circuit pending resolution of Seegars. Accordingly, on 2/16/05, eight days after the DC Circuit's Seegars opinion, we filed a motion to set a Parker briefing schedule and hold oral argument on the merits . . . .

We assert that Parker is factually distinguishable from Seegars. (1) Parker plaintiffs were personally and unambiguously threatened w/prosecution by DC officials during oral argument and in the press. (2) DC's failure to raise standing in Parker reaffirms the city's intent to prosecute. (3) Trial judge Sullivan, after ordering supplemental briefing on standing, did not mention that issue in his opinion on the merits.

Recall that in the Seegars case the U.S. Court of Appeals for the D.C. Circuit rejected the challenge to the D.C. gun ban (which bans possession of handguns and bans home possession of rifles and shotguns unless they're locked and unloaded) because the challengers didn't have "standing" — they hadn't yet been prosecuted, or personally threatened with prosecution. If Bob is right, then the Parker case wouldn't have such a problem, and the D.C. Circuit would indeed have to reach the Second Amendment question. I guess we'll see soon enough what the D.C. Circuit will do . . . .

UPDATE: Here's the challengers' motion, describing their argument.

The Ward Churchill Controversy Is Not About Tenure as Such:

Jim Geraghty (The Kerry Spot, at The National Review, quotes Newt Gingrich on Ward Churchill:

Ward Churchill is a viciously anti-American demagogue. He has every right to free speech, and I support his free speech . . . . We should give him free speech by not paying him.

You don't need tenure in this country anyway. The idea that he would be oppressed without tenure is nonsense. There are 75 whacked-out foundations that would hire him for life. Dozens of Hollywood stars would hold fundraisers for him. His life will become a film by Michael Moore.

The question here, is "What obligation does society have to fund its own sickness?"

We ought to say to campuses, it's over . . . . We should say to state legislatures, why are you making us pay for this? Boards of regents are artificial constructs of state law. Tenure is an artificial social construct. Tenure did not exist before the twentieth century, and we had free speech before then. You could introduce a bill that says, proof that you're anti-American is grounds for dismissal. . . .

The Ward Churchill issue is not about tenure as such. The Supreme Court has held that even government employees, including ones who are untenured, have a right to free speech; and courts have applied this especially strictly to scholarship and speeches by public university professors (and professional standards have generally reinforced this rule and applied it to private universities). If you're untenured, you may be fired for any reason except your exercise of your constitutionally protected free speech rights (and your race, sex, religion, and the like). And a law that says "proof that you're anti-American is grounds for dismissal" would violate the First Amendment, as the Court has interpreted it for roughly half a century, just as a law that says "proof that you're pro-life is grounds for dismissal" or "proof that you're anti-affirmative-action is grounds for dismissal" would violate the First Amendment.

Tenure is an extra protection beyond that given by the First Amendment: It's a contractual (or perhaps a statutory) guarantee that professors can't be fired without good cause, which is interpreted quite narrowly. This means not just that a professor can't be fired for his viewpoints, but also, generally speaking, that he can't be fired if he's a bad teacher (perhaps unless he's an awful teacher), he can't be fired if he produces virtually no scholarship, he can't be fired if he's unpleasant to be around, and so on.

Now tenure does in practice protect professors' academic freedom. Under the First Amendment, a university can't fire a professor because he expresses anti-American, pro-life, anti-war, or pro-biological-gender-differences views. But if the university is free to fire professors for other reasons, then it can come up with some pretext (we aren't really firing this professor because he's a Republican; it's just that we think we can get someone more productive instead), and thus fairly easily get away with the First Amendment violation.

But even if tenure is abolished -- and there are good arguments for it, since perhaps its costs (e.g., retention of some people who are bad teachers or unproductive scholars) exceed its benefits (e.g., protection of academic freedom) -- the First Amendment academic freedom principles would still remain. Perhaps universities could try to push the envelope; public employers can sometimes fire employees because their public speech sufficiently alienates the public, and maybe universities could argue that university professors should be treated more like other government employees this way. But certainly, as I mentioned, a "proof that you're anti-American is grounds for dismissal" law would be unconstitutional even in the absence of tenure.

Finally, if tenure is abolished, and universities cut down academic freedom protections to the minimum that the First Amendment demands (or the Supreme Court reverses its First Amendment protection for government employee speech), do we really think that only extreme anti-Americans will be fired? Or would it be likelier that the overwhelmingly left-wing faculties and administrations will fire lots of professors on the right -- including people who express eminently legitimate views, just on topics that are unpopular with the left?

Go Swanny!

Lynn Swann for Governor! (I know its not my state, but I was born there!)


As I informed one reader, my endorsment of Swanny is based on "unapologetic idolatry for a hero of my youth" (maybe its just as well that I'm not a Pennsylvania voter any more). For those who actually want to know about him as a candidate, a more serious person than I has collected info and links regarding Swann's background here.

The best response I received was from a fellow former-Pittsburgher who said this is just the beginning--when Swann eventually becomes President he can appoint Jack Lambert Secretary of Defense!

Related Posts (on one page):

  1. Go Swanny!
Two Related Puzzles:

A certain kind of war is 153, sort of. And a bit less than 2.72 is 10,000,000. How?

(Show a hint.)

(Show the answers.)

Schuck on Yale and Military Recruiters:

Peter Schuck, author of the wonderful Diversity in America, takes on his Yale Law School colleagues over the issue of military recruiters. Schuck points out (as I have) the hyprocrisy of professors who want to assert expressive association rights for themselves, but not for, say, Bob Jones University (or the Boy Scouts), and also, correctly I think, concludes that whether or not to interview with the recruiters should be an individual, not an institutional, choice. (Via

UPDATE: I don't think it's wrong, much less hypocritical, for an attorney or plaintiff to rely on a precedent he finds distasteful if it helps his case. However, as the quote from Professor Fiss in my piece I linked to suggests, at least some of the Yale professors are posing as principled defenders of expressive association, when what they really believe in is, to paraphrase Nat Hentoff, "freedom of association for me, and not for thee." Others, like Jed Rubenfeld, apparently believe that the "freedom of expressive association holding in Boy Scouts opens up the possibility of a profound, thorough going attack on the nation's anti-discrimination laws." If so, it hardly seems either wise or moral, from their perspective, to argue for an expansion of Dale in the narrow interest of invalidating the Solomon Amendment. Is the cause of being allowed to discriminate against military recruiters really worth expanding freedom of association, when, according to Rubenfeld, that freedom is "a slogan of the people in favor of Jim Crow" ?

FURTHER UPDATE: Will Baude writes in to point out that Prof. Rubenfeld did not join his colleagues' expressive association lawsuit, but filed a separate pro se brief arguing that the Solomon Amendment amounts to compelled speech. Kudos to Prof. Rubenfeld for intellectual consistency!

Word Formation:

A reader writes, apropos my leafleter/leafleteer post:

You write, "standard word formation rules thus give us 'leafleter.'"

Actually, I'm pretty sure standard word-formation rules would give us "leafletter," as in "bat -- batter," "spit -- spitter," etc. The double consonant signifies that the preceding vowel remains short. Per normal English orthography/pronunciation rules, one would expect to pronounce "leafleter" "leaf-leeter."

Here's the simplest rule I've heard, from my brother Sasha, if I recall: In American English, when a verb ends in a short vowel followed by one consonant (e.g., "leaflet"), then in the "-ed," "-ing," and "-er" forms the consonant is doubled if the accent is on the last (or only) syllable. If the accent is not on the last syllable, then the consonant need not be doubled. It often may be doubled, but the more common American use is to keep it single. (In British English, doubling is more common even in the latter context.)

Hence "getting" and "forgetting" but "targeting," "compelled" but "modeled." There are exceptions (e.g., busing), but this seems to be a good rule of thumb.

The War on Terror,

Jonathan Rauch writes, started on February 14, 1989:

. . . On February 14, 1989, Ayatollah Ruhollah Khomeini, the spiritual leader and revolutionary dictator of Iran, pronounced a fatwa (an Islamic legal judgment) against the British novelist Salman Rushdie. It said:

"In the name of Him, the Highest. There is only one God, to whom we shall all return. I inform all zealous Muslims of the world that the author of the book entitled The Satanic Verses -- which has been compiled, printed, and published in opposition to Islam, the Prophet, and the Koran -- and all those involved in its publication who were aware of its content are sentenced to death.

"I call on all zealous Muslims to execute them quickly, wherever they may be found, so that no one else will dare to insult the Muslim sanctities. God willing, whoever is killed on this path is a martyr." . . .

In January, the Iranian media reported that Iran's supreme leader, Ayatollah Ali Khamenei, reaffirmed the fatwa, telling Muslim pilgrims that Rushdie's killing would be authorized by Islam. British officials, reported The Times of London, "anxiously played down" the comments, noting that the Iranian government had not changed its position.

Just so. Khamenei spoke not for a government but for an insurgency, one with millions of followers around the world. The West could not have understood that in 1989, but it cannot fail to understand it today.

Oscars Flashback: With the Academy Awards on Sunday, I keep thinking back to sitting on the Red Carpet at last year's show and The Night Before Party that I attended with my wife. I thought some might enjoy my reposting this VC post from February 29th, 2004:
THE NIGHT BEFORE: So while in LA for the Southern California leg of my book tour, my wife and I attended the Second Annual "Night Before Party" at the Beverly Hills Hotel. It was an amazing scene, and hard to believe that so many A-list celebrities ever attended the same event. The pool had been covered up, and a tent erected over it. Reebok was giving guests their choice of shoes, and Krispy Creme served donuts covered with ice cream or topped with strawberries and whipped cream. Cell phones and cameras were not permitted, but security only stopped you from bringing in cameras--or camera phones. I did not hear a single cell phone go off the whole night, and only noticed a few people furtively using theirs. The celebrities dressed casually with a noteworthy lack of affectation--except of course for Elton John who sat surrounded by younger men. No one wore sun glasses at this evening event. All the celebs were gone by midnight.

It turns out I am very bad at recognizing even very famous actors in a crowd, but fortunately my wife is excellent at spotting them. Were it not for her, I would have missed most of the following (don't write me about misspelling their names): Sylvester Stalone (a little waxy looking), Tim Robbins & Susan Sarandon, Martin Short, David Spade, Ben Kingsley, Ben Stiller, Courtney Cox & David Arquette, Steven Speilberg, Will Smith (with body guards), Rene Zellweger, Christian Slater, Angelina Jolie, Patricia Clarkson ("Pieces of April," Aunt Sarah on "6 Feet Under"), Michael Chiklis (The Shield, The Commish), Kristen Davis (Charlotte on "Sex and the City"), Bonnie Hunt, Antonio Banderas & Melanie Griffith, Luke Wilson, Tom Arnold, Roma Downey ("Touched by an Angel") who touted her lates made-for-TV flick to us, John Spencer ("The West Wing," "LA Law"), Leonardo DiCaprio, Alec Baldwin, Pierce Brosnan, Clint Eastwood, Kevin Spacey, Bruce Dern, standing nearby his daughter Laura Dern, Tom Hanks & Rita Wilson (the only one we noticed smoking), Kevin Spacey (in a Kangol-style cap), Jill Hennessee (Law & Order), Camryn Manheim ("The Practice"), Ted Turner and Donald Trump (hair looking a little more like normal hair in person). It was very crowded, especially at the beginning, and we must have missed a lot more who were there. We know Tom Cruise left just before we arrived, and we somehow managed not to see Michael Douglas with Katherine Zeta-Jones though we were told they had stood in the same spot for nearly an hour.

Most of the males actors are much smaller, not just shorter, than you expect--especially Banderas--except DiCaprio who you'd expect to be small, but is really normal size and height. Alex Baldwin is a bit bulky of course, and Pierce Brosnan is a remarkably big guy, who is not shy about wearing gray stubble. The tallest was probably Tim Robbins, but taller than you'd expect were Tom Hanks and Kevin Spacey. Not surprisingly on the tall side were Ted Turner, Donald Trump, Will Smith, Bruce Dern, and Clint Eastwood.

I asked Eastwood if he was a libertarian, and he replied that he agreed with the libertarian philosophy, but had not changed his registration from Republican, though his wife had. Besides, he noted, that used to be the philosophy of the Republicans. Though it seemed like he was warming to the subject, I did not get to ask him what made him think so because Jeffrey Katzenberg of Dreamworks and one of the hosts of the party (and another little guy), just then interrupted to thank Eastwood for coming, so we moved on.

It was a pretty awesome to see in one night, in one place, and very informally, more prominent actors and actresses than we will ever see in our whole lives--except for on the Red Carpet later today at the Oscars. But that's another story.
In this report, I neglected to mention that, after Katzenberg interrupted our conversation with Eastwood and we started to move on, Eastwood turned away from Katzenberg and said to my wife, "It was very nice to meet you" (just the way Clint Eastwood would say that). In the context of the crowd scene at that spot, it was a very classy move.

At the party, the actors were really expert at not making eye contact, as you might imagine. The only two I recall making eye contact with me as I walked by were Courtney Cox (two different times for so long that I smiled back--I must have looked like someone she knew) and, yes, Elton John. 'Nuf said about that.

The next day we sat on the red carpet in the bleachers. After the attendees exit their cars, they must have their credentials checked before they can walk the red carpet (which all attendees except for presenters are required to walk). We sat on the shorter stretch of red carpet closest to the street and before the big security tent that all attendees must enter before walking the longer portion of the red carpet that you see on TV.

From this vantage point we could see the attendees drive up and leave their cars. Lots of people you would not recognize drove their own cars (which were valet parked), most arrived in limos (with a few driving up in chauffeur-driven Toyota Prisms). More limos in one place than you could possibly imagine. Eventually, SIX SOLID LANES OF LIMOS as far as we could see. We were told that they bring limos in from Las Vegas just for this one night.

For a long time attendees drifted in slowly but as show time approached, a pretty huge crowd forms waiting to have their IDs checked before they can get into the line on the red carpet to enter the security tent. We then discovered that the A list matters here too. When Michael Douglas and Catherine Zeta-Jones arrived, for example, security somehow manages to spot them as the exited their limo. They were then escorted through the crowd of academy members, past the ID table, and to the end of the line on the red carpet before the security tent; they did have to wait in THIS line on the red carpet itself.

While in the line all the stars smiled and waived to the bleachers and were applauded in return. No one ignored the stands if their name was shouted out. Unlike the previous night which felt like a real party where we all were dressed casually while standing around side-by-side and queing together for drinks, food, and free Reeboks, this felt like, well, a movie in which they played the waiving movie stars and we played the cheering fans.

Of course, we could not recognize most of the attendees. But I remember one time when three attractive young women were walking in (before the line formed) one of the women started pointing to her friend and shouting to the stands who she was or what movie she was in. Not being recognized by the fans, while others standing next to you are being wildly applauded, must feel humiliating for some of the actors in a very status conscious business. I'll bet some really hate the red carpet.

I know that, after our experience last year, watching the Oscars on TV will never be the same for us.
Intellectual Orthodoxy at Berkeley and Stanford:

Dan Klein has a newspaper column summarizing his research findings on the intellectual orthodoxy at Berkeley and Stanford in the Palo Alto Weekly newspaper.

From the article:

The popular vote for President went 48 percent Democrat and 51 percent Republican. This nearly one-to-one national diversity is unlike colleges and universities, where a one-party system prevails.

We have conducted a scholarly study of voter registration and find that among Berkeley faculty the Republicans are outnumbered 10 to 1. At Stanford the ratio is 7.6 to 1. Lumping both together gives 9 to 1. Talk about a lack of diversity! If this were a gender, race or ethnic-background study it would be considered almost evidence of discrimination.

Most striking, is that the faculties are becoming less intellectually diverse over time. At Berkeley, tenure-track hires at the Assistant Professor level are 30 to 1 Democratic to Republican and at Stanford it is 12 to 1. For Associate Professors, at Berkeley it is 64 to 1 and at Stanford the ratio is infinite--Stanford does not have a single Republican among its Associate Professors (and 40 Democrats).

Dan says that if this was a gender, race or ethnic-background study, it would considered "almost" evidence of discrimination. I think this understates the case--if the ratio of men to women hires at Berkeley was 30 to 1, that would almost certainly constitute a prima facie case of discrimination. Or to put it more practically, if this was the ratio of male to female hires at Berkeley, I don't think a hypothetical plaintiff would have too much trouble finding a lawyer who would take the case on contingency.

And to think that one reason that Larry Summers is in hot water because only 4 of the last 32 tenure-track hires at Harvard were women. I'm sure Stanford's students and faculty would be overwhelmed with joy at an 8 to 1 ratio of Democratic to Republican hires.

You can find the longer version of Dan's research on his homepage here.


Some clarifications in response to reader emails: First, the observation that the intellectual orthodoxy is getting worse is implicit in the numbers I originally quoted, but not obvious. At the Full Professor ranks, the ratio is 8 to 1 and 6 to 1 Democratic to Republican at Berkeley and Stanford respectively. The observation, thus, is that as full professors retire, and are replaced by the Associate and Assistant Professors, this ratio will worsen over time.

Second, it is true that Republican and Democrat imperfect proxies for intellectual diversity. For instance, many libertarians don't vote, and if they do, they don't register for any party--although I doubt there are so many uncounted libertarian professors at Berkeley and Stanford that it skews the numbers. But that's why it is important to read this article in connection with Klein's other paper, where he does a more nuanced analysis of public policy views, and discovers that views on particular public policy issues match up very closely with this study on Democratic vs. Republican professors. In that paper, he also captures a greater cross-section of instiutitions, beyond just Stanford and Berkeley. So the measure here just gives an easily-quantifiable measure that seems consistent with a more qualitative nuanced analysis.


Of course I'm a lawyer, so I can't do math, but if 4 of the 32 Harvard hires were women, that would mean there were 28 men and 4 women, which of course, would be 7 to 1 (not 8 to 1). So that's still better than ratio for the entire Stanford and Berkeley faculties and substantially better than for their recent hires.


There seems to be some ambiguity about what I wrote. First, I did not say that there was a bias here. I said that if we saw a ratio of 30 to 1 in a general population that we know to be roughly 1 to 1, this usually will create a prima facie case of bias. Then the the burden shifts to the other side to provide a nondiscriminatory explantion for what is observed. So that, for instance, it may be that there are no Republicans in the applicant pool--but that answer, of course, just shifts the analysis back one step, and has been quite plainly rejected in the context of women and minorities.

Second, and more fundamentally, this is key point--when Harvard hires 7 men to 1 woman, this is met with a blue ribbon panel tasked with the duty of getting to the bottom of things and finding out what is really going on. When Klein find a ratio of 30 to 1 Democrat to Republican, the academy has two responses. First, it simply denies the problem. Second, even if it is acknowleedged, the "response" is faculty lounge speculation and hand-waving about how this might all be rationalized. The irony, of course, is obvious--there aren't actually any conservatives there to participate in the conversation! Where is the blue-ribbon panel at Stanford on intellectual diversity? There may very well be a nondiscriminatory explanation here--but we'll never know unless we actually consider it to be a problem worth investigating and actually do the investigation.

Whatever the correct approach, surely it can't be that in one case we task a blue-ribbon panel of leading faculty members to find out what is going on and to recommend improvements, and in the other we shrug our shoulders and sit around and simply speculate?

Thursday, February 24, 2005

Gorilla Sexual Harassment:

The AP reports:

Two fired caretakers for Koko, the world-famous sign-language-speaking gorilla, have sued their former bosses, claiming they were pressured to expose their breasts as a way of bonding with the 300-pound simian. . . .

The suit claims [the Gorilla Foundation's president, Francine] Patterson pressured the two women on several occasions to expose their breasts to Koko, a 33-year-old female sometimes in situations where other employees could potentially view their bodies. . . . They were threatened that if they "did not indulge Koko's nipple fetish, their employment with the Gorilla Foundation would suffer," the lawsuit alleged.

The lawsuit claims that on one occasion Patterson said, "'Koko, you see my nipples all the time. You are probably bored with my nipples. You need to see new nipples.'" . . .

Forget the legal analysis -- just appreciate the full-on weirdness.

Thanks to Slate's Explainer for the pointer.

Mysterious Bushism:

Slate's Bushism today is:

After all, Europe is America's closest ally.

What's at all funny, odd, or otherwise Bushism-worthy here? There are only two conceivable objections I can imagine here.

1. Bush is talking about "Europe" as an ally instead of particular European countries. Yet Europe, in the sense of the European Union, is indeed an entity of its own. And the European Union is often referred to as Europe.

But of course Bush couldn't have possibly meant Europe in the sense of European Union (or for that matter Europe as a cultural grouping of countries), because . . . . Because why exactly? Because Texans aren't up on modern transnational organizations? Well, let me give you the context, since of course Slate never gives you the context, or even a pointer to the context. (And who can blame it? After all, while Web sites like ours can provide links to the full transcripts, to assure people that the quotes are in context, old-fashioned paper-based media like Slate don't have that luxury. Oh, wait . . . .)

Here's the transcript containing the "Bushism" but also the following sentences:

After all, Europe is America's closest ally. I said yesterday, and I want to say it again: The European project is important to our country. We want it to succeed. And in order for Europe to be a strong, viable partner, Germany must be strong and viable, as well. And in order for us to have good relations with Europe, we must have good relations with Germany. And that is why this trip is an important trip for my country and for me.

And so I want to thank you very much for the chance to be here, a chance to reconfirm the importance of the transatlantic alliance, and a chance to talk about important issues. Gerhard went over the issues; I will go over them briefly, as well. . . .

No Europhile — or for that matter non-Europhile urban articulate sophisticate — could have said it better: Alliance with Europe, the European project, good relations with Europe, transatlantic alliance.

2. The one possible other objection is that our relations with Europe aren't so hot in some respects now. Yet surely saying that Europe is our closest ally is just the time-honored and quite reasonable diplomatic trope of talking about aspirations of friendship as reality. That's only a "Bushism" if "Bushism" means "A statement characterized by excessive diplomacy."

So what's up here? How could the editor of a major publication, a publication that aspires to being seen as witty but thoughtful and credible, mock someone for a perfectly normal statement like this — and mock him with no further explanation and commentary, as if the statement were so obviously silly that no explanation was required?

UPDATE: A reader writes:

Bushism of the Day may be signalling a sea-change in the Left from regarding Bush as stupid stupid stupid to ironic.

Bush's stating that Europe is our closest ally isn't evidence of his inarticulate nature, but perhaps the statement has an ironic value inasmuch as Bush's policies are cause for the recent rift, at least from BOTD's point of view.

Huh -- I hadn't even thought of that, partly because it's so unrelated to what Bushisms have supposedly been about, and what Jacob Weisberg has said they're about, in this Bush-loathing introduction to one of his Bushisms books. So I remain puzzled: What's so "Bushism" about President Bush's clear, grammatically and semantically unobjectionable, and diplomatic statement? Though, hey, if Weisberg wants "Bushism" to come to mean "a clear, grammatically and semantically unbobjectionable, and diplomatic statement," that's fine by me.

Spectrum Policy in the National Journal:

Spectrum policy is a major research area for me (see here and here, for example), and I've been a bit disappointed that few journalists have shown an interest in writing on the subject with any depth. I've just run across, though, a very good article in the National Journal by Drew Clark called "Spectrum Wars" that manages to be accessible to laypeople, interesting, and — importantly — not too long. If you want to get up to date on current battles over spectrum, you should read it. And if you're not sure why you should care, then at least take a quick look to see what's at stake in these battles.

Shameless self-promotion: I cover some of the same ground at much greater length in the second half of my latest article, Evaluating the FCC's National Television Ownership Cap: What's Bad for Broadcasting Is Good for the Country, for which I am about to send out reprints. If anyone wants a reprint, please email me — benjamin [at]


A reader e-mailed me asking:

I do not know how many regular readers you have, but in addition to your personalized book have you considered some kind of VC t-shirt? May be a bit frivolous, but I would buy a couple.

He then added, believe it or not, "My socially aware and engaged ten-year old son would be thrilled to wear one. And then as a consequence so would my seven-year old daughter." No, I am not making this up just to drum up potential interest.

In any event, I'm tickled pink that some people might be interested in this, and I'd like to do something along these lines, just for fun (I'm pretty sure we wouldn't make more than a few bucks with this). My secret fantasy: One of us is walking through the airport, and we see a total stranger wearing a Volokh Conspiracy T-shirt. Odds? Pretty long, I figure. But, hey, a man's got to dream . . . .

In any case, I believe there are online services that will produce on the fly T-shirts, coffee mugs, mouse pads, and the like. I think CafePress does it, though I've had some glitches accessing their site, but I'll investigate things in more detail in a few weeks. So this shouldn't be that hard technically.

The question is what would make for a cool design. I expect that it should have our green-and-white header, but it might be nice to have something else — probably some amusing catchphrase, but I don't really know. If anyone has any design ideas, please post them in the Comments.

By posting the ideas, you're giving us a license to use them, though if we use yours, we'll naturally thank you on-blog, and send you a free goodie (T-shirt, coffee mug, or whatever else you choose of what we'll ultimately be offering). Remember, our generosity is legendary, which means semi-mythical.

Another Wording Conundrum:

Leafleter (as I wrote) or leafleteer (as the editors made it)? Quick LEXIS and google searches reveal a near tie, and I don't feel strongly on the subject, so I defer to the editors.

But I hadn't even thought of "leafleteer" as an option, though I take it the analogy is to "pamphleteer." (I'd never say "pamphleter," but that's probably because "to pamphlet" is rarely used as a verb, while "to leaflet" is often used that way, and standard word formation rules thus give us "leafleter.")

Guns and Reason

My new column for summarizes the 20th century history of blacks using firearms to protect their communities from white rioters. Black self-defense was explicitly approved by leaders such as W.E.B. DuBois, A. Philip Randolph, Roger Wilkins, Daisy Bates -- and Martin Luther King, Jr.

Also recently published in is a review of Abigail A. Kohn's book "Shooters: Myths and Realities of America's Gun Cultures." Kohn is an anthropologist who compares and contrasts the gun cultures of California and Australia. The review is written by my summer intern from 2004, Eric Dzinski.

Because I Write in English, Not Latin, Dammit:

Just got an edit in which my "indexes" — referring to the indexes at the backs of books — was changed to "indices." I promptly changed it back.

I don't feel that strongly about this (the forcefulness of this post's title is mild hyperbole), but I prefer to follow the English "-es" plural over the Latinate versions when possible. Sometimes only the Latin form may be common, and sometimes I'm just so used to the Latin version (consider "matrices," which is much more common than "matrixes," and I've thus heard mostly the former and rarely the latter). But when the two forms are equally common, I like to stick with English idiom.

I realize that some people will think that I don't know the Latin version, but I can afford to live with that. Nothing wrong with "indices," mind you (though my sense is that it's more common for the plural of a mathematical index than for the plural of a book index); but when in doubt, I try to avoid the Latinate.

The same journal, by the way, suggested that I change "ubermensches" to "ubermenschen" (though that might have been a bit of pedantic humor). No dice, Kameraden.

By the way, "octopi" as a plural of "octopus" appears to have originated from a misunderstanding of the word's etymology (see the Oxford English Dictionary folks' comment on this), except to the extent that it has simply been a bit of a joke. It's quite acceptable English now, but I bristle at it, and prefer "octopuses," if only to annoy the octopi fans.

UPDATE: Reader Dave Neumann writes that the American Society of Indexers uses "indexes." He adds: "This usage also surprised me when I started working on a Masters degree in Library Science. I come from an engineering background where 'indices' is indeed more often used. You're right about that being more common usage in mathematics."

Stuart Buck On Text and Takings: Stuart Buck responds to my prior post about textualists and the Takings Clause:
[Kerr's] argument is the equivalent of the following: "The Fifth Amendment prohibits the government from putting someone in jeopardy of 'life or limb' twice 'for the same offense.' Granted, this prohibits the government from prosecuting someone twice for the same offense, but it doesn't prohibit the government from prosecuting people for no reason at all. Thus, if you're a textualist, you have to admit that the 5th Amendment allows the government to prosecute innocent people willy-nilly."
A few thoughts. First, I should have been clearer in my first post that I don't think a textualist has to say that a taking for "private use" does not trigger a right to just compensation. The text does not compel a distinction between public use and private use; the more sensible of the available textualist readings is that any government use is a public use triggering just compensation, and the phrase "public use" just means "by the government." The part that interests me is the claim that the government cannot take property for private use; I find this claim quite appealing, and it may be persuasive based on the original intent of the Fifth Amendment or (perhaps more likely) other provisions of the Constitution, but I'm struggling to see it in the text.

  Second, to the extent it matters I don't think Stuart's example quite proves his point. "Offense" in the Fifth Amendment means criminal act; the Fifth Amendment prohibits the government from bringing criminal charges against someone twice for the same criminal act. If the government started bringing criminal prosecutions against people for a crime that Stuart would deem "no reason at all," then this "no reason at all" would be the "offense" for the purposes of the Fifth Amendment. Alternatively, if the government starting hauling people to jail outside of the criminal justice system [Update: not under a war powers authority, but just because the government didn't want to give someone access to the courts], then that would be a violation of the Sixth Amendment jury trial right [and Due Process] the first time, not a Double Jeopardy violation the second.

  Finally, I realize I am being sloppy by not being explicit about exactly what version of textualism I have in mind. As with any school of legal interpretation there are as many versions as there are commentators. I am doing that because I am more interested in exploring the general tension between the text and the intepretations endorsed by many self-described textualists than in the details of any one approach.
Spirit of America:

I just came across an organization called "Spirit of America." Others may have already heard of them, and I don't know much about them, but they seem like a worthwhile and interesting group. Their website describes their mission as follows:

Spirit of America helps Americans serving in Iraq and Afghanistan assist people in need. We fulfill requests from American personnel for goods that improve the lives of local people and thus help advance freedom and peace.

We have provided school and medical supplies, sewing machines, hand tools, water barrels, clothing, soccer gear and toys in response to needs identified by American personnel. We contributed equipment to Iraqi-owned television stations to establish a better alternative to Al Jazeera. We helped Iraqi men whose arms were amputated by Saddam Hussein get a new start on life.

What caught my eye initially was their efforts to protect bloggers and alternative media in trouble spots in the Middle East, which then led me to learn all the other charitable things that they are doing.


As usual, I'm the last one to hear about stuff like this. Nice piece by Daniel Henninger on Spirit of America last spring in OpinionJournal.

Housing Needed in Ann Arbor:

I'm going to be a visiting professor at the University of Michigan Law School for the 2005-2006 academic year. My wife and I are therefore looking for a house to rent in Ann Arbor, furnished or unfurnished, starting approximately August 1 and ending approximately May 31, with some flexibility on either side of both dates. We'd prefer something close to campus and reasonably large (1800+ square feet). If you have any leads, please send them to me at dbernste [at sign]

Parties Are Not Sports Teams--Parties are the Playoffs: There has been much blogospheric reaction to my post yesterday on the Libertarian Party (click trackbacks to read it). And I have received much thoughtful, cordial and sympathetic email--too much to respond to while on the road here in Alabama. I found the post that best defends the position I was suggesting was by Neo-Libertarian. Before adding some additional thoughts of my own, here is just a bit of a very long and well-reasoned post with some comments by me inserted (read it all, as they say):
Now, he's a libertarian in the GOP [This is wrong; I am not in the GOP--REB] and has argued this for at least a few years if not longer. [However, this is correct.--REB] That might put him in a suspect position to die-hard Libertarians. I, however, have been a member of the Missouri LP, registered Libertarian in Virginia, and have signed onto the Free State Project. Perhaps this inoculates me against some of the potential criticisms when I say I agree at least in part that splitting libertarians into two or three or four different parties is silly.
While it might be ideal to focus attention on one party the way the Free State Project hopes to focus attention on one state, I think that this is unrealistic. To take a single example, given the degree to which some libertarians are antiwar, it is too much to expect libertarians to support the party that today more strongly considers us in a literal war against islamo-fascism. My original point is that BOTH parties would be more libertarian at the margins if more libertarians were activists within them.
The most active and energetic libertarians tend to split and join the LP. This means that literally hundreds and thousands of activists, as well as over a million votes (combined for the House races the LP contests) are siphoned off from the GOP.
The key I think is the activists. Some people want to advance liberty by writing books and public speaking. Others want to get into the trenches and organize politically. Some of the most energetic libertarian in this latter group have been drained from both parties, leaving the fields there more open for activists with different agendas.
As it stands, a great deal of people are alienated from the idea of even calling themselves libertarian because the GOP and LP are separate. There are a lot of people with libertarian sympathies who would be much more willing to follow our ideas if we were in their party.
This is an important insight that goes beyond my original post. Americans view political parties as they do their sports teams. Even Independents tend to root for one party over the other. Libertarians have defined themselves as a different team that looses pitifully--and Americans do not like losers. And when you say "libertarian" to them, they think you are referring to the Libertarian team. I think this is why many libertarian-inclined citizens deny they libertarians. That is not their team.
As it stands, a million dollars dunked on a Senate race would probably end up with a Libertarian struggling to break 15% at the polls. But $500,000 in a Senate primary could tip a libertarian-friendly legislator to victory over a more moderate or social-conservative opponent.

This is how Club For Growth has been successful. They pour their money into primaries and try to influence the GOP outcome. This is an important party of the electoral process, and one in which libertarians could be very effective.

Joining the GOP means we bring to the table a lot of things. On Election Day, our current numbers might appear quite small. But on the primaries, we have greater power - a group of active, interested, educated people who will go out and vote. We could have a lot to say about which candidate is nominated. . . .

I know the LP won't dissolve, but I think it ought to consider reforming as an interest group. It already has a website, contacts and affiliates in every state. There is a lot to be done and the LP has a lot going for it. We just need to refocus. . . .
This is VERY important. Incumbents are very conscious of potential primary challenges. If the Libertarian Party chooses to continue--as it will--it can save the effort of registering itself as an official party in the states, and can run libertarian candidates in the primaries. Even the treat of this is likely to get a response from an incumbent. (Another idea I have pushed in recent years that is somewhat inconsistent with the thrust of what I am suggesting here is to run major party candidates in general election against unopposed incumbents. So libertarians would run a Democrats against unopposed Republicans and vice versa. This would assure their candidates of more press coverage and a much larger share of the votes.) He concludes:
Personally, I haven't decided to call myself a Republican yet (I'm far too uncomfortable with the South, for instance) but I'm definitely considering working with libertarian candidates in the GOP. I'd also like to help my favored Republican to win the 2004 nomination. So while I'm not a Republican, I think it's time for libertarians to consider pooling together as much of our resources as possible into the best bet for liberty: two-party politics.

A lot of libertarians and third-partiers LIKE losing because it reinforces their view that the center is corrupt and that they themselves are purists on the fringe. So be it. I'd rather see progressively greater and greater support for liberty from the center of political debate, and I think something like the Republican Liberty Caucus might be the way to do just that.
Bruce Bartlett wrote to remind me that he has been urging a Libertarian Caucus approach for many years.

FINAL THOUGHTS: In our political system, you have to be a member of a political coalition to influence its direction. This means working and compromising with people with whom you share some goals and disagree about others. This is the insight behind Groiver Norquist's vision of the "leave us alone" coalition in the GOP that advances the disparate interests of its members, while marginalizing those who want to advance their agenda by interfering in the lives of others.

Like other Americans, however, many libertarians think of political parties like sports teams. They want their own team to root for and cannot root for the other teams. Voting Libertarian gives them psychological satisfaction, while in the aggregate diminishing their political impact.

Libertarians should stop thinking of parties as teams and think of them instead as the playoffs. In NFL football terms, The Democrats are the AFC and the Republicans he NFC. To get into the Superbowl, you have to survive the season and the playoffs in your respective conference. In effect, Libertarians want to form their own league which no one but themselves is interested in watching. And they assure themselves of never making the playoffs much less the Superbowl.

OK, enough of the sports metaphor. It does not work completely anyhow. Perhaps it is better simply to say that libertarian political activists (and voters) do not have to buy into all of what either party stands for today to realize that they may more effectively advance their ideals by fighting to move the major parties in a libertarian direction. With the benefit of hindsight, we can say that this has not been accomplished by libertarians absenting themselves from the major parties and investing their time and votes in the Libertarian Party.

Related Posts (on one page):

  1. Parties Are Not Sports Teams--Parties are the Playoffs:
  2. Libertarians and Republicans:
Book Recommendation:

Just finished John Scalzi's Old Man's War, which was very good. I bought it in hardcover; cheapskate that I am, I rarely do this except with authors whose work I know well, but I made an exception because of Instapundit's and Professor Bainbridge's recommendations. They steered me well; really good science fiction, fresh and well-crafted.

Oddly, the weakest parts of the book are the first few chapters, which weren't quite as tightly written as the rest of the book. If you find yourself disappointed at first, stick with it; I think you won't be disappointed.

Wednesday, February 23, 2005

Balkin on Johnson v. California: Jack Balkin has some thoughts about how different Justices came out in yesterday's decision in Johnson v. California, a case involving racial classifications applied to prisons. I haven't read the opinions yet so I don't know whether I agree, but Jack's perspective on the Court is always worth reading.
Textualism and the Takings Clause: I don't know much at all about the Takings Clause, so I hope the Takings Clause experts out there can help me (and inform the VC's readers) with a very basic question I have concerning the issues raised in the Kelo v. City of New London case. In Steve Bainbridge's post linked to by Randy below, Steve notes the text of the Takings Clause:
Nor shall private property be taken for public use, without just compensation.
Steve then adds:
Note that the Takings Clause has two independent requirements: (1) just compensation must be paid; (2) the property must be taken for a "public use." This second requirement means that the government may not take away your property to give it to some other private individual (or company) who will then devote it to their own personal or business use.
I have no expertise at all in the Takings Clause, but my understanding is that this is more or less an accurate summary of exsiting Supreme Court doctrine. As best I recall, the Supreme Court has interpreted the Takings Clause this way for a long time.

  At the same time, this isn't what the text of the Takings Clause actually says. The text of the clause says that if private property is taken for public use, then just compensation must be paid. The Constitutional text doesn't address takings for private use at all. Not only would such a taking seem to be allowed by default, but the Constitutional text doesn't even seem to require the government to pay just compensation for it. The text doesn't say, "Private property shall not be taken for private use, nor shall private property be taken for public use without just compensation." It only says "Nor shall private property be taken for public use, without just compensation." Obviously there are good policy reasons why we might not want the Court to read the text this way, and there are also reasons why someone might or might not be a textualist. Still, if you're a textualist it seems that you're kinda stuck with that reading.

  My question is, what am I missing? How can a textualist agree with the Court's current reading of the Takings clause? My very quick look at the cases suggests that the Court picked up the "public use" element as a requirement for a taking back in the days when the Justices limited the legislature's authority to the "police power"; the idea is that a taking has to be a public use for it to fall within the police power. But the "police power" limitation wasn't rooted in the text of the Constitution, either. It seems to me that a good textualist would say that either the taking in Kelo was for "public use" and required comepnsation or was for private use and doesn't require compensation at all. Oddly, though, I can't seem to find any self-described textualists who interpret the Takings Clause this way.

  I have enabled comments.

Libertarians and Republicans: There is an interesting exchange between Ryan Sager and Ramesh Ponnuru about the role of libertarians in the Republican coalition (Instapundit has the links here). This is a complicated subject about which I would have a good deal to say if I had the time to compose a careful post. But I do want to make one point.

In hindsight, I think that the creation of the Libertarian Party has been very detrimental to the political influence of libertarians. Some voters (not many lately) and, more importantly, those libertarians who are interested in engaging in political activism (which does not include me) have been drained from both political parties, rendering both parties less libertarian at the margin.

Put another way, in proportional voting parliamentary systems, there are many political parties and governments are often formed by organizing a coalition in which they must cater to smaller parties, especially when holding a only slim paliamentary majority. In a winner-take-all first-past-the-post electoral system--like we have in elections for both Congress and the presidency--the major parties are each themselves coalitions of political interests. To win an election, they need to gather a coalition of voters to get over 50% of the vote, so the marginal voters become important to them. Of course, they cannot make efforts to reach marginal voters that completely alienate their "base" (which is one the problems facing Democrats at the moment).

While some libertarian political activists are certainly Republicans and Democrats, the existence of the Libertarian Party ensures that there are fewer activists and fewer voters in each major party coalition than would otherwise exist. Therefore, each party's coalition becomes less libertarian. I do not mean to exaggerate the extent of this effect. But even a handful of political activists in local and state party organizations can make a big difference. Whatever one thinks of the initial creation of the Libertarian Party, its continued existence seems to be a mistake for libertarians.

Related Posts (on one page):

  1. Parties Are Not Sports Teams--Parties are the Playoffs:
  2. Libertarians and Republicans:

Tuesday, February 22, 2005

Bainbridge on Takings: Nice post today by Steve Bainbridge on Kelo vs. City of New London: Will Leviathan Prevail?
The Constitution in 2020 Conference: This conference sounds very interesting. It is certainly an all star line up. As there are students organizers for this event, I assume it is not limited to faculty but, if you are a student, you may want to check before registering. The home page is here.

The Constitution in 2020

April 8-10, 2005 * Yale Law School

A conference bringing together leading figures in American law to catalyze debate among progressives about the Constitution's future.

Conference weblog:

It is time for progressives to set a constitutional agenda for the 21st Century. In the early days of the Reagan Administration, a coalition of conservative groups produced a white paper known as "The Constitution in 2000" which, by taking a long view rather than focusing on the immediate issues of the day, was immensely successful in influencing the Constitution under which we now live. If progressives are to rehabilitate that Constitution, they must now, more than ever, articulate constitutional ideals capable of inspiring the next generation. The goal is to set forth a positive constitutional vision for tomorrow, rather than merely to respond to the crises of today. Accordingly the Yale chapter of the American Constitution Society, the Yale Law School, Yale's Arthur Liman Public Interest Program, the American Constitution Society, and the Open Society Institute invite you to a conference on "The Constitution in 2020."

Faculty Organizers:

Reva Siegel (Chair)
Bruce Ackerman
Jack Balkin
Drew Days
William Eskridge
Paul Gewirtz
Robert Gordon
Robert Post
Judith Resnik

America in the World: This theme addresses the challenges posed by the dual issues of terrorism and globalization. Critical issues include: the tension between democracy and globalization, national security, warmaking, immigration, and the interaction of foreign law with the U.S. Constitution.

Liberties and Communities: The questions encompassed by this theme include the relationship between the Constitution and the broader social fabric of the United States, and in particular the constitutional protections provided to individuals acting alone and as members of various groups. Critical issues include: family, religion, federalism, and crime.

New Politics: This theme focuses on the challenges to democratic processes in an age of economic and technological change. Critical issues include: money in politics, voting rights, media concentration, gerrymandering, and the constitution of the public sphere in a digital age.

Social and Economic Inequality: This theme concerns the constitutional obligations of the government to protect against discrimination and to guarantee minimum standards of living. Critical issues include: the nature of constitutional equality, the causes and remedies of inequality, the disparate roles of courts and Congress in vindicating rights of equal citizenship.

Confirmed Speakers Include: Bruce Ackerman, Melody Barnes, Jeff Berman, Drew Days, Walter Dellinger, Guido Calabresi, David Cole, William Eskridge, Noah Feldman, Owen Fiss, William Forbath, Richard Ford, Paul Gewirtz, Robert Gordon, Stephen Holmes, Dawn Johnsen, Paul Kahn, Pam Karlan, Harold Koh, Larry Kramer, Larry Lessig, Robert Post, Judith Resnik, Jed Rubenfeld, Charles Sabel, Reva Siegel, Jonathan Simon, Cass Sunstein, Judge Patricia Wald, Seth Waxman, Robin West, Kenji Yoshino, and more to come.
Things Better Left Unsaid: As Eugene noted below, a lawyer arguing at the Supreme Court this morning finished his argument by saying "I want to leave you with just four words . . . ", at which time his time expired. The Court is very strict about oral argument time; when your time expires, you really have to stop. So the lawyer never got to tell the Court what the four words were.

  SCOTUSblog reports that the lawyer later answered the question on everyone's mind — what are the four words? — when he told reporters what the four words were "Federalism, boundaries, discretion, and precedent." I don't know what book on closing arguments the lawyer got this trick from, but it's hard to think of a worse ending for a Supreme Court argument. (What are the Justices supposed to do upon being left with those words? Are the words supposed to cast a magic spell or something?) As Tom Goldstein puts it, "Ok, so maybe it wasn't such a loss that he didn't get that last line out."
Freedom of Expression in Canada:

I'm about halfway through Democracy Off Balance: Freedom of Expression and Hate Propaganda in Canada. It's not easy reading, but it is a comprehensive, learned, and generally right-headed view of the subject. The views of the Canadian elite on such matters are very similar to the views of much of the American law professoriate and the left-wing of the bar, so the book is valuable not only for those interested in Canadian and comparitive law, but for those who are wondering what a left-wing U.S. Supreme Court would likely do to the First Amendment. This NRO piece of mine has more on disturbing trends in Canada.

Broad Overview of the American Legal System:

A reader writes:

What one book would you recommend that gives a broad overview of the American legal system? Even if I don't go to law school, I need the background just to get a better understanding of public policy.

It's a great question, but I don't know the answer (nor do I know whether such a book exists or even can exist). If you have a recommendation, please post it in the comments, which I'm enabling for this post.

Note, though, that my correspondent and I are looking for a clear, objective description of the legal system as it is. We're not looking for condemnation or praise of the system, or descriptions of the system as it ought to be -- those can be great, but they aren't the subjects of this particular question.

The Rehnquist Legacy: Lawprof, blogger, and former Rehnquist clerk Rick Garnett offers his thoughts on the likely legacy of William Rehnquist over at Legal Affairs; in the same issue, lawprof and former Souter clerk Kermit Roosevelt offers a different take.
Supreme Court Line-Up:

In today's Smith v. Massachusetts, five Justices (Justice Scalia, joined by Stevens, O'Connor, Souter, and Thomas) took the broader view of the Double Jeopardy Clause, and four dissenters (Justice Ginsburg, joined by the Chief, Kennedy, and Breyer) took the narrower view.

I can't recall any other Supreme Court case with precisely this lineup. There have been similar lineups; consider part of the Booker/Fanfan Sentencing Guidelines decision, in which Ginsburg, the Chief, O'Connor, Kennedy, and Breyer were in the majority, and Scalia, Stevens, Souter, and Thomas were in the dissent. But I don't remember precisely this lineup. If you can think of a case in which the Justices split exactly this way, please e-mail me at volokh at

UPDATE: Anton Metlitsky of the Harvard Law Review writes that he "just looked through the Harvard Law Review's Rehnquist Court Statistics issue that we published last November. At least within the past ten years (since Breyer took his seat), Smith is the first occurrence of a majority made up of Stevens, O'Connor, Scalia, Souter, and Thomas. See 118 Harv. L. Rev. 510, 521 (2004)." Dierk Meierbachtol echoes this, though seemingly based on less conclusive research. Meierbachtol also writes:

This got me thinking about other combinations we've never seen on this iteration of the Rehnquist Court. For example, my LEXIS name search shows that Stevens, O'Connor, Scalia, Thomas, and Breyer have never formed a five-justice majority. And neither have Stevens, O'Connor, Scalia, Thomas, and Ginsburg.

Getting Academic Legal Writing Quickly:

Several people have e-mailed me to complain that promises (threatens?) that the book will be shipped in one to three weeks. My publisher regretfully tells me that this is the way amazon operates with some books. If you need the book quickly (and I'm absolutely sure that you do!), go to Legal Books Distributing, which says they'll ship immediately; my publisher says they're quite reliable. (Silly interface glitch: If you enter the book title in quotes, it won't find it.) If you want a personalized copy, follow the instructions here.

I suspect that Legal Books Distributing would also be good for other legal books that amazon takes too long to ship.

New Blog Summarizing New Cases Involving the Internet: -- looks useful. Thanks to Paul Hsieh for the pointer.

USA Today Story on the Supreme Court's "Public Use" Case:

My father (Vladimir) pointed me to this story on the Kelo case that was then about to be argued. It's not a bad story, but the one thing it omits is that the litigation has been shepherded throughout by the Institute for Justice, a public interest law firm that has for 15 years been mounting a concerted campaign for broader property rights protections. I believe they're helping the Kelos pro bono. (My brother Sasha worked on the Kelo case when he was an intern for IJ a few years ago; and the really shameful thing is that the USA Today story didn't mention him though I suppose I understand why that detail wasn't included . . . .)

The article mentions amicus briefs filed by Reason Foundation, the NAACP, and AARP, so the article is pretty detailed. Wouldn't it have been interesting to also mention the organization that has been litigating this, rather than just referring to "Scott Bullock, an attorney for the property owners" (Scott is a long-time IJ employee), and to note that this is part of a concerted litigation strategy, and not just a random case? This is obviously not some awful travesty, and I realize that reporters operate under huge word pressures. Still, I thought the omission was worth noting.

UPDATE: Note that the Knight-Ridder story has a broader discussion.

Funny Item from Today's Property Rights Arguments:

SCOTUSblog (Tom Goldstein relaying Marty Lederman's accounts) reports that the argument generally went badly for the broader-property-rights side -- regrettable but not unexpected -- but also adds this item:

The moment of the day came in Kelo when the city's counsel attempted to close by saying, "I want to leave you with just four words," then his time expired. (Although he did say -- using more words, "I see my time has expired so I won't be able to tell you them.") Justice Kennedy then asked the plaintiff's lawyer on rebuttal, "You don't happen to know what the four words were?" Regrettably, he didn't.

Why Don't Bookstores Routinely Post Listings of Award Winners?

Why don't bookstores routinely post listings of award winners — Hugos and Nebulas for science fiction, Edgars for detective stories, and so on? You'd think that this would help sell books, since they give potential buyers something they could try, with some likelihood that the book would indeed be good. True, some subsequent editions of a book indicate that the book won an award, and many books by award-winning authors note this; but to see that, one has to have come across the book in the first place. A list would help readers who don't even know which books to look at.

I hear a few bookstores do post such lists, at least for some categories, but why isn't this standard operating procedure in the trade? Just take a list and stick it to the proper bookshelf. You don't have to mark the places where each winner sits on the bookshelf, which will require you to move each marker when the shelves are rearranged. Simply put up the lists and then update them each year (and if you forget one year, it's no disaster).

Even amazon, which once had the lists easily available (I discovered Lois McMaster Bujold, one of my favorite SF writers, through an amazon link to the Hugo winners) no longer seems to provide them. [UPDATE: Reader Bill Harshaw points out that the lists are available, if one clicks on Books and then clicks on "Award Winners" under "Around Our Bookstore." But it's not easy to notice, and an ordinary search for something like "Hugo Award Winners" doesn't produce it; wouldn't it have been sensible for amazon to have its search engine yield the list as well as books that somehow match that search?]

I just don't see why bookstores are missing what strikes me as a great sales-boosting tool.

UPDATE: Reader Ben Skott writes:

I worked at Barnes and Noble for two years, during which time I rose to being in charge of our fiction and sci-fi sections. They thought my love of reading, my nearly encyclopedic knowledge (at that time) of who wrote what books, and my scary ability to convince people to buy books they'd never heard of on my recomendation would make me a good section runner.

Anyway, I started putting up the Hugo and Nebula lists in sci-fi, along with an, "If you like X, try Y" list that I made up. Sales of books on those lists went up almost immediately, to the point where I was actually having to up our standard order of Ender's Game (whcih is crazy considering we already carried tons due to it being required reading in local high schools).

I wanted to do something similar with general fiction, at least posting Pullitzer and Nobel winners, but they wouldn't let me. Almost everything in that store is dictated from above. Sci-fi was thought by my manager to be small enough that I could put a personal touch on it. General fiction, on the other hand, was too big and important. He wouldn't stray an inch from the conformed standards. All of which serves to not at all answer your question. I don't know why Barnes and Noble corporate won't post such lists, but in my experience they do their best to not help themselves sell books.

Another reader points out that "there are a LOT of marketing considerations that go on in the big chains -- to the extent that nearly every space is spoken for. A publisher will pay rather big money to have, for instance, an endcap for one month; what that entails is contractually mandated, includes what books shall be presented, what text can be used to advertised, agreements as to competing advertising, etc., etc." Still, my experience has been that there are some empty places where a list can be posted.

Justice O'Connor Bobblehead:

Going once...

Many Thanks to Creighton Law School:

Creighton Law School was kind enough to invite me out to give their annual Koley Lecture this year, and I much enjoyed the visit (plus the opportunity to give my talk on Academic Legal Writing to the Creighton Law Review). I was particularly pleased because I've long admired the inaugural speaker in the lecture series, Dean Rod Smolla, who gave the lecture last year.

Another Academic Scandal,

this time in Germany. According to the Deutsche Welle site,

A German anthropology professor has resigned after a Frankfurt university panel ruled he made up data and plagiarized works of colleagues. Experts said knowledge about human evolution has to be revisited as a result.

According to the commission's findings, Reiner Protsch von Zieten lied about the age of human skulls by dating them back thousands of years. He is also accused of trying to sell specimens that belonged to the university and plagiarizing the work of colleagues.

"The commission finds that Prof. Protsch has forged and manipulated scientific facts over the past 30 years," a university statement read.

The report also said Protsch was unable to properly employ methods to date specimens. He allegedly presented skulls that he said were tens of thousands of years old even though they belonged to people who died just a few hundred years ago. . . .

While Protsch, 66, did not comment on the commission's findings after they were publicized, he already attacked the investigation in an interview with Frankfurter Neue Presse on Jan. 14. . . .

Trust no-one, folks, not even professors. Oh, except us, of course. Naturally. (Thanks to Don Kates for the pointer.)

UPDATE: David Gerstman notes that I've been scooped by Scrappleface. "The inquiry found that one skull, which Mr. Protsch claimed came from a 27,400-year-old human fossil, was actually still attached to the living body of a departmental colleague. 'He's much older than he looks,' said Mr. Protsch. 'My data shows that he may be the missing link between Piltdown man and today's homo sapiens.'"