Saturday, August 13, 2005

Slate's "Has-Been";

I've often found the arguments in Slate's new "Has-Been" column/blog (written by Bruce Reed, "who was President Clinton's domestic policy adviser, [and] is president of the Democratic Leadership Council and editor-in-chief of Blueprint magazine") to be rather puzzling. Here's the most recent example:

. . . The Post reports that in 1981, John Roberts sent a memo to Sandra Day O'Connor advising her to plead the 5th if asked about her views on legal questions. Roberts warned that answering questions would raise the "appearance of impropriety" and prejudice her views in future cases before the Court. . . .

[I]f it's improper for future Court justices to discuss specific legal questions and precedents, why do we need law schools?

In a few weeks, thousands of first-years will raise their hands for the first time in Civil Procedure class and begin compromising their futures as blank-slate Supreme Court justices. Pity the 1-L who shows up unprepared for class and tries to convince the professor that answering any questions would raise an "appearance of impropriety." . . .

What an odd and, in my view, inapt comparison. (Yes, I realize that it's supposed to be funny or witty, but I take it that it's also intended to make a serious point.)

1. To begin with, if you really want to play out the analogy, it seems to me that any law students would be entirely within his rights not to express his views about certain subjects. The student must be able to make arguments about those subjects, and understand others' arguments. But if I ask a student what he thinks about Roe v. Wade, a student tells me "I'd rather not express my views about abortion, but here are the arguments for the decision and here are the arguments against it," I would gladly accept such an answer. In fact, I think it would be unethical for me to insist that a student reveal his own views in such a context, since such a revelation would be quite burdensome on his privacy, and would give very little pedagogical benefit. (It's sometimes useful to know a student's views, for instance when I deliberately try to get students to argue against their own views, but this utility is in my view outweighed by the student's privacy.)

2. Of course, Senators understandably care about nominees' personal views on legal questions, though professors generally don't and shouldn't care about their students' views on legal questions. But that just highlights the inaptness of the analogy between questions asked of nominees and questions asked of students. Students are asked questions to gauge their knowledge; nominees are asked questions to predict how they will vote.

3. And of course an "appearance of impropriety" response from a student is silly for the simple reason that the student's answer won't create an appearance of impropriety. Probably 99% of students won't become judges, and we generally make rules with an eye towards the 99% rather than the 1%. Even as to the remaining 1%, few people will think that an answer given in law school will lead the judge to feel bound by the answer — and thus unable to reconsider the issue based on the parties' arguments — thirty years later.

On the other hand, as I argued in more detail here — and as lots of people have said, and Mr. Reed must surely have heard — there is at least a plausible argument that a nominee's expressions of his views at confirmation hearings may indeed improperly constrain him in the future:

[I]magine a justice testifies under oath before the Senate about his views on (say) abortion, and later reaches a contrary decision. “Perjury!” partisans on the relevant side will likely cry: They’ll assume the statement made with an eye towards confirmation was a lie, rather than that the justice has genuinely changed his mind. Even if no calls for impeachment follow, the rancor and contempt towards the justice would be much greater than if he had simply disappointed his backers’ expectations.

Faced with that danger, a justice may well feel pressured into deciding the way that he testified, and rejecting attempts at persuasion. Yet that would be a violation of the judge’s duty to sincerely consider the parties’ arguments.

Now one can surely argue that, despite this risk, the nominee should be required to express his views, because the representatives of the people are entitled to consider those views when deciding whether to give him a position of great power. But Mr. Reed's misplaced law school analogy, it seems to me, does nothing to advance this argument.


Supporters of the Iraqi "Resistance":

The Volokh post asking for names of respectable people who support the Iraqi resistance (that is, support the totalitarian terrorists trying to destroy Iraqi democracy) has, so far, yielded an apt quote from Michael Moore, and not much else. As a result, Orin suspects that there may not be many such people--although, as one of Orin's commenters points out, some people who hold the position may not articulate it in polite company.

Well, I just ran "support the Iraqi resistance" through Yahoo, and looked at some of the top hits. Among the supporters of the so-called "resistance" are James Petras (an emeritus professor at the State University of NY), the famous Indian novelist (and winner of the Sydney Peace Prize) Arundhati Roy (who waffles about whether she personally is urging people to engage in violence, but is unequivocal about wanting the "resisters" to take over the country), comedienne Janeane Garafolo analogizing the Iraqi resistance to Americans resisting an illegitimate Russian-Chinese invasion of the United States, and Virginia Rodino (Green Party candidate for U.S. House in Maryland in 2004), who declares herself "in solidarity with the courageous Iraqi resistance.” This is obviously not a comprehensive list, just what was easy to find in a few minutes.

An interesting thread on Democratic Underground shows that among rank and file activists (not the more famous types that Eugene originally asked about), there is a substantial diversity of opinion about whether anti-war activists should support the "resistance."

Defending the Bad Guys?: If I can put just a toe in the water on the debate as to whether there are a susbtantial number of Western critics who "support the insurgents," or, as the WSJ put it, "side with the Iraqi resistance," I have two quick comments. Or rather, one quick comment and one longer comment. The quick comment is that at least on the question of identifying American (as opposed to Western) critics who have voiced such views, my sense is that the search doesn't seem to be finding much. Based on the evidence so far, at least, there seem to be only a handful of critics in the U.S. who have clearly and unambiguously expressed such views.

  Second, I wonder if the question doesn't generate more heat than light given the different ways that people might perceive what it means to "support the insurgents" or "side with the resistance." In particular, I wonder if our different best guesses of the likely outcomes in the war are exerting too much of an influence on our perceptions of what "side" people are on.

  Here's my thinking. To simplify things, let's assume that we can break down the possible futures in Iraq into four basic possibilities:
  1) The U.S. beats back the insurgency and democracy flowers in Iraq (call this the "optimistic stay" scenario),
  2) The U.S. digs in its heels, spends years fighting the insurgency, loses lots of troops, and years later withdraws, leading to a bloody and disastrous civil war (the "pessimistic stay" scenario);
   3) The U.S. decides that it's no longer worth it to stay in Iraq, pulls out relatively soon, and things in Iraq are about as best as you could hope for, perhaps leading to a decent amount of democracy (optimistic leave), and
  4) The U.S. decides that it's no longer worth it to stay in Iraq, pulls out soon, and plunges Iraq into a bloody and disastrous civil war with the bad guys assuming control eventually (pessimistic leave).
  Let's assume that all of us want the best for the United States and democracy in Iraq, but that we are also deeply divided on wisdom of the war in Iraq. Because we all want the best for the U.S. and the prospects of democracy in Iraq, we will all rank options (1) or (3) over options (2) or (4). But because we are divided on the war in Iraq, and therefore are divided on whether U.S. troops are likely to help or hurt things, we will likely split on our perceptions of the likelihood of the different scenarios coming true. If you were for the war, you are likely to see the realistic choice set as between scenarios (1) and (4), and to prefer (1); if you were against the war, you are likely to see the realistic choice set as between scenarios (2) and (3) and to prefer (3).

  The insurgents, on the other hand, seem to want something more like option (4). (At least as far as I can tell — others are much more expert on this than I am.) The problem with claims that one side "supports the insurgents" or "sides with the resistance" then, is that it doesn't clearly distinguish between those who want option (4) over (1) and those who want option (3) over (2). For example, imagine a commentator announces that he wants the U.S. to leave Iraq immediately, but doesn't explain why. Those who are against the war are likely to construe it as advocacy for (3) over (2), as they see those as the two basic options. Those who are for the war may see it as advocacy for (4) over (1), as they see those as the two basic options. And if you're against against the war and favor (3) over (2), you're like to be pretty ticked — and reasonably so — by the suggestion that you're actually in favor of (4) over (1).

  Anyway, all of this is pretty oversimplified. There's a lot more to it that this. But in the end, my sense is that the question may end up generating more heat than light.

Friday, August 12, 2005

People Who Falsely Claim That Their Opponents Support the Bad Guys:

Henry Farrell (Crooked Timber) is running, in response to my query about Westerners who defend the Iraqi insurgents, a query about people who "make egregious claims that a substantial section of those who opposed the war are, in fact, rooting for the other side."

Falsely claiming that someone (or the majority of some group) is rooting for the bad guys in a war is indeed pretty egregious misbehavior. (Accurately claiming that, of course, is not egregious.) I haven't followed the responses, so I can't speak to their merits, but to the extent that they uncover and condemn such false claims, they are doing reasoned debate (and basic decency and fairness) a great service.

As to whether it is indeed accurate to say that a "substantial section of those who opposed the war" is rooting for the other side, I can't speak helpfully to that, since "substantial" is pretty vague, and since I haven't followed closely the range of public commentary on the subject. My tentative guess is that the percentages of Americans and Europeans who want America to lose in Iraq may be quite different, though I'm not sure. But whether the number is "substantial" in either place is hard to tell in any objective fashion.


[Andrew Morriss (guest-blogging), August 12, 2005 at 9:16pm] Trackbacks
Reputation and LSATs:

Our last important result concerned the reputation variables - one for academic reputation based on surveys of law faculty and one for lawyer/judge reputation based on a survey of lawyers and judges. U.S. News doesn't include much detail about the surveys (things like response rates would be nice), but I've filled out the academic one a few times and so know a little about it. Essentially each person who gets a survey is asked to rate all the law schools from 1-5.

We found that changes in academic reputation were associated with higher median LSAT scores for the top quartile but not for the other three quartiles.

An important question about the reputational variables is whether they are cause or effect. It seems implausible that very many law professors (or lawyers or judges) have even moderately well-informed views of the quality of more than a handful of law schools. Prof. Jeffrey Stake at Indiana, in a paper in the same symposium as ours, found evidence of an "echo" effect in reputation.

If you look at reputation across time, there is quite a bit of stability at the top and a lot of movement (especially in lawyer/judge reputation) at the bottom. (I have some nice graphs to post but haven't figured out how to do it yet. As soon as I do, I will.)


What is Chicken?:

On the Roberts-Friendly issue raised by Orin, it is clear that this raises a key question to ask Roberts at his confirmation hearing--"What is chicken?"

(This post is for all my Contracts law students through the years...).

For more on all chicken law issues, I refer you, of course, to the classic treatment by Jim Huffman, "Chicken Law in an Eggshell."



Ronald Bailey (Hit & Run) writes:

What Is Diversity Anyway?

"The white populations of the District, Arlington and Alexandria have grown this decade even as the region's outer counties have grown more diverse, according to new census estimates," according to a story in yesterday's Washington Post. As a part-time resident of DC, I was curious about the Post's take on the idea of what constitutes increasing or decreasing diversity in any community. The Post noted that the percentage of whites living in town rose from 28.2 percent in 2000 to 30.3 percent in 2004. My puzzlement is whether this represents an increase in "diversity" or not? Or as the Post story seems to imply, is "diversity" maximized when no white people live in a community at all? Just wondering.


Were the votes of Justices Ginsburg and Breyer in NOW v. Scheidler

"in effect backing the terrorists against their victims"? Four of the smartest bloggers out there — Megan McArdle, Mark Kleiman, Kevin Drum, and Eugene Volokh — are discusing the merits of the NARAL ad.

Kleiman writes:

But one of the defendants in the earlier case [Bray] was in fact a previously convicted clinic-bomber, and the amicus was filed in support of Operation Rescue, hardly a peaceful protest movement. (Three years after the brief was filed, a civil jury in Chicago found that Operation Rescue was a racketeering enterprise, in a case that is once again making its way up to the Supreme Court.)

Eugene Volokh points out that the Court, by 6-3, upheld the position in the brief, and argues that therefore the brief can't be said to have been outside the mainstream of legal thinking. Fair enough.

But that brief had political as well as legal meanings. Operation Rescue was then engaged in a violent, and largely successful, attempt to deny access to abortion to as many women as possible by closing down the clinics. . . .

If the Bush I Administration had in fact opposed anti-abortion violence and merely doubted that the anti-Klan law could properly be made to apply, it could have offered legislation making interference with the clinics a federal matter; such legislation was in fact passed under the Clinton Administration. But of course the administration did no such thing.

By arguing that the most successful terrorist campaign waged in this country since the days of the Klan was a matter for state and local jurisdiction (an echo, of course, of the argument offered against federal anti-lynching legislation in the 1930s and 1940s), Roberts and the rest of the Bush I crew was in effect backing the terrorists against their victims. That's not "excusing" violence, but it's not exactly opposing, either.

The obvious irony here has not been noted. Kleiman points to NOW v. Scheidler, a case that I did some pro bono work on a few years ago for NOW. It involved the use of violence (including allegedly bombing) to block clinics, women, and doctors from doing or having abortions. Although NOW won its first round in the US Supreme Court, it lost its second round (2003), and a third round is now pending.

If I read the commentators correctly, unlike the Bray case for which Roberts was attacked, NOW v. Scheidler explicitly involved violence and bombing, which Kleiman correctly terms terrorism. Nor were the justices in the Scheidler case acting as lawyers for their client (as Roberts was); they were acting as judges interpreting federal statutes in light of the Constitution.

In the 2003 Scheidler case (8-1 against NOW), how did the two Clinton appointees vote? Both Justice Ginsburg and Justice Breyer voted against NOW and in favor of those who were found by a jury to have been responsible for violence. If one were to use Mark Kleiman's inflamatory characterization to describe their actions, both Ginsburg and Breyer were "in effect backing the terrorists against their victims."

If you read Justice Ginsburg's concurrence in Scheidler (joined by Justice Breyer), you see much the same sort of argument about RICO and the Hobbs Act that Roberts made in Bray about the scope of the Civil Rights Act. Here is the entirety of Justice Ginsburg's 2003 concurrence in NOW v. Scheidler:

I join the Court's opinion, persuaded that the Seventh Circuit's decision accords undue breadth to the Racketeer Influenced and Corrupt Organizations Act (RICO or Act). As Justice Stevens recognizes, "Congress has enacted specific legislation responsive to the concerns that gave rise to these cases." Post, at 6 (dissenting opinion). In the Freedom of Access to Clinic Entrances Act of 1994, 18 U. S. C. §248, Congress crafted a statutory response that homes in on the problem of criminal activity at health care facilities. See ante, at 9-10, and n. 9 (noting petitioners' acknowledgment that at least some of the protesters' conduct was criminal, and observing that "[t]he crime of coercion [a separate, and lesser offense than extortion] more accurately describes the nature of petitioners' actions"). Thus, the principal effect of a decision against petitioners here would have been on other cases pursued under RICO.**

RICO, which empowers both prosecutors and private enforcers, imposes severe criminal penalties and hefty civil liability on those engaged in conduct within the Act's compass. See, e.g., §1963(a) (up to 20 years' imprisonment and wide-ranging forfeiture for a single criminal violation); §1964(a) (broad civil injunctive relief); §1964(c) (treble damages and attorneys' fees for private plaintiffs). It has already "evolv[ed] into something quite different from the original conception of its enactors," Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 500 (1985), warranting "concern[s] over the consequences of an unbridled reading of the statute," id., at 481. The Court is rightly reluctant, as I see it, to extend RICO's domain further by endorsing the expansive definition of "extortion" adopted by the Seventh Circuit.

The lone dissenter was Justice Stevens. And, no, I don't think that the 8-1 Supreme Court was right on this one for reasons too technical to explain here.

The problem with an ad like NARAL's goes much deeper than any factual twisting. Many lawyers and judges really do believe that their political preferences are foreclosed by statutes or by the Constitution — perhaps not all the time, but often. My own speculation is that Ginsburg and Breyer were motivated both by a respect for law in this case and by a desire to discourage RICO suits against other legitimate protests. Also, one might argue that the very success of NOW's lawsuit in the 1990s had significantly decreased clinic bombings and violence, ironically reducing the need for a big damage judgment to stop the terrorism that had been occurring years before.

Let me brutally clear: I think it would be offensive to tie Ginsburg and Breyer to abortion clinic bombers based on their votes and opinion in Scheidler, just as I think it is offensive to tie Roberts to abortion clinic bombers based on the government's brief in Bray (especially since Roberts was acting for a client and Bray was not as clearly limited to violence as Scheidler is).

UPDATE: In brief, to explain my legal view of the 2003 opinions in NOW v. Scheidler: Even if the Court was right that the scope of Hobbs Act extortion is limited to obtaining money or ordinary property (the Court's holding here is certainly defensible), the Court completely botched a crucial issue that it barely mentioned. The Hobbs Act was not the only basis of NOW's suit; the RICO claims were also based on the Travel Act, which had been held by the Court to invoke state law definitions of blackmail and extortion, whatever they are called by the various states. These state extortion statutes punish compelling action as well as obtaining property. Accordingly (contrary to my memory of the NOW v. Scheidler majority's holding), federal RICO extortion should not be limited to obtaining property, even though the federal Hobbs Act may be.

2d UPDATE: Mark Kleiman responds thoughtfully here.

Many John Roberts-Related Documents --

his memos, decisions, oral argument transcripts, questionnaire responses, and more -- are linked to from this Washington Post page.

Praise for Southwest Airlines:

I just had a VERY pleasant customer service experience with Southwest Airlines, which is not something I can say about my interactions with most other airlines these days (of the "legacy carriers," btw, Continental is easily the best). Just thought I'd pass it along.

Is John Roberts Another Henry Friendly?: John Roberts, Robert Gordon, and I apparently have something in common: We all love Henry Friendly. Judge Friendly, who served on the Second Circuit Court of Appeals from 1959 to 1986, was a remarkably good judge who Roberts appears to admire greatly. In this piece over at Slate, Gordon (who clerked for a judge who clerked for Friendly) tries to make the case that John Roberts (who clerked for Friendly) probably won't follow in Judge Friendly's footsteps if confirmed to the Supreme Court.

  If I'm not mistaken, though, the evidence Gordon assembles is rather sparse. Gordon offers more reasons to think Roberts will resemble Friendly than reasons to think he won't. Granted, Gordon offers a number of grounds for believing that Roberts is a conservative. But as best I can tell, Gordon comes up with weak reasons to think that Roberts' views might be inconsistent with those of Judge Friendly. Here the four reasons he offers, in the order they appear in Slate:

  1. As a young lawyer, John Roberts wrote a memo on the role of habeas corpus that largely mirrored and heavily cited Friendly's views, but that contained a suggestion on one issue that Friendly apparently thought was incorrect. Roberts suggested in his memo that the right to habeas corpus could be suspended in federal court so long as it was available in state court, while Friendly apparently disagreed.

  2. On questions of statutory interpretation, Roberts may be more of a textualist that Friendly. Friendly was was more of a cautious purposivist than a textualist, and was willing to cite and rely on legislative history in some circumstances. In contrast, there is some evidence that Roberts appears to be less willing to cite legislative history. (Technically, Gordon makes this point in the course of noting that Roberts once cited Friendly out of context on a question of statutory interpretation, but I gather that the purpose of pointing that out is to touch on a possible difference in their approaches rather than to criticize Roberts for being overly eager to cite Friendly.)

  3. As a young political appointee in the Reagan Justice Department, Roberts wrote internal memos that appear more political and less judicious than Friendly's judicial opinions.

  4. Some of Friendly's notable opinions written during his 28 years as a judge reached liberal conclusions. In contrast, Roberts has not written any opinions in his two years that reached notably liberal outcomes.

  It seems to me that these four reasons form a rather weak basis for Gordon's claim. The first point seems doctrinally interesting but doesn't clearly indicate to me a major philosophical divide (although I should say that it's not my area, so it's possible that it does for reasons that aren't clear to me). The second seems to be mostly a reflection of changing views of statutory interpretation in the last fifty years. The third seems to be comparing apples and oranges, something that Gordon notes is a possibility. The fourth also compares apples and oranges, as it's hard to compare 28 years of Second Circuit opinions from the Warren and Burger Court era with two years' worth of DC Circuit opinions from the late Rehnquist Court period.

  Of course, no two people are the same, and it's always hard to compare one judge's views a half century ago to views of a different judge (especially as a young man) nominated for a different Court today. And it may be that Roberts is to the right of Friendly. At the same time, if those are the only reasons to think that Roberts is different from Friendly, I end up thinking it's more likely that they are unusually similar than that they are particularly different.

Councilman and the Need for Legislative Reform: I've been mulling over yesterday's First Circuit en banc opinion in United States v. Councilman, an important Internet wiretapping case. I realize that this post isn't likely to be of much interest to general readers, as it's pretty technical stuff, but I wanted to offer some thoughts on the decision and where we go from here for readers who may have been following the case (all remarks are in my personal capacity, by the way).

  First, the First Circuit's opinion is remarkably narrow. The Court did not resolve the big question that many have believed was at the heart of the Councilman case, namely, the scope of "intercept" in the context of Internet communications. Instead, the Court construed Councilman's brief as only raising the question of whether a communication could both be in "electronic storage" and also constitute an "electronic communication." The majority quite properly concluded that the answer was yes, and thus reversed the district court. On the question of the meaning of intercept, the court concluded that Councilman had drafted his brief in such a way that the meaning of intercept was "simply a variation on, and entirely subsumed within" his argument on the meaning of electronic communication. Given that, there was no need to wade into the "morass" of issues raised by the definition of "intercept."

  This is a somewhat frustrating answer from an analytical perspective, as the meaning of "intercept" and the meaning of "electronic communication" are quite distinct. Further, Councilman's argument that a communication could not both be in storage and an electronic communication was always quite weak. Consider this: At the time of the conduct in Councilman, the Stored Communications Act, 18 U.S.C. 2701-11, the federal statute that protects the privacy of Internet communications in storage, applied only to electronic communications. Thus, if Councilman's argument on this point was right — and remarkably, judges Torruella and Cyr thought it was — the Stored Communications Act by definition could never apply to anything. (That is, the statute only applied to stored electronic communications, but the Councilman argument adopted by Judges Cyr and Torruella insists that Congress clearly intended that there could be no such thing as a stored electronic communication.) This reading of the statutory scheme would have been rather remarkable.

  In the end, then, the First Circuit answered a very easy question, and decided that given the defendant's brief it didn't need to decide the hard one. What this effectively does, I think, is put the ball back in Congress's court. The en banc opinion leaves the major issue open, and the issue is sufficiently central to the basic framework of Internet surveillance law that some kind of statutory solution seems very much needed. My own recommendation is for Congress to pass Senator Leahy's bill, S. 936, The E-mail Privacy Act of 2005, which I blogged about back in May. Leahy's bill is a very good fix, and will resolve the "morass" of issues that were briefed before the First Circuit but not resolved by its en banc opinion.

Westerners Who Defend the Iraqi Insurgents:

In response to my recent quote of an OpinionJournal post, some people questioned whether there really are a substantial number of Western commentators who defend the Iraqi insurgents, or at least justify their actions as being a supposed campaign for self-determination, allegedly justifiable rage at Western misbehavior, and so on. I think this is a good opportunity to collect examples of such people, to show that they do exist, and are worth criticizing.

If you have some such worthies in mind, please post the following in the comments:

  1. The name and brief description of the person (e.g., columnist for this or that newspaper, official in this or that prominent organization).

  2. An exact quote in which they defend the insurgents or seek to justify their actions.

  3. The URL of the article where the quote can be found. Please refer to original sources, rather than copies of the sources on other sites, copies of copies, and so on. (If you have LEXIS access and found the article there, but the article is not available online, include the name of the newspaper, magazine, or broadcast, the date, and the name of the article.)

Please also

  • Stick with quotes that are pretty unambiguous — no need to dilute the clear stuff with questionable material.

  • Stick with journalists, officials, or at least famous people; avoid comments by unknown people on others' blogs.

  • Check the thread before posting, to avoid duplication.

Many thanks — this should be a useful resource for people who want to respond to questions about whether such people actually exist. (For a sample of where I've done this once before on another topic, see my page on calls for total bans of handguns or all guns, which I posted in response to the common argument that supposedly "no one is talking about banning guns, so your slippery slope concerns are just paranoia.")


[Puzzleblogger Kevan Choset, August 12, 2005 at 11:49am] Trackbacks
Presidential Order:

In what order have I arranged the Presidents below? (Feel free to do some online research, but don't just google this list, etc.)

  • Pierce

  • Tyler

  • Andrew Johnson

  • Truman

  • Theodore Roosevelt

  • Arthur

  • Cleveland

  • Madison

  • Fillmore

  • Coolidge

  • Grant, McKinley

  • Lyndon Johnson

  • Ford

  • Taft

  • Jackson

  • Nixon

  • All other Presidents


A Math Puzzle:

Sometimes, in idle moments, I notice patterns in numbers I see, for instance phone numbers. For some reason, they especially relate to sums and differences and multiples of 9. (Is it just me, or do others do this, too?)

So, if I see a number that starts with 357, I might observe that 7+5-3 = 9. If it starts with 263, I notice that 6+3 = 9 (though I have to throw out the 2). If it starts with 442, that's obvious: 4-4 = 0. But for some 3-digit prefixes, you can't do that — UCLA's 825, for instance, can't yield a multiple of 9 no matter how you add or subtract any (nonempty) subset of the digits.

(1) What about the 4-digit suffixes? Is it the case that for any 4-digit suffix, you can find some nonempty subset (either 1, 2, 3, or 4 of the digits) such that, when the proper +s or -s are inserted, you can get a multiple of 9? My office suffix, 3926, is too easy, since 9 alone is a multiple of 9, as of course is 3+6. What about others?

(2) More generally, say that you're looking for multiples of some number N (or, if you want to make it less general, use N=29). What is the lowest number X such that for any X positive integers, it is guaranteed that some nonempty subset of those X integers will, with the proper +s and -s added, yield a multiple of N? Thus, can you be sure that for any 4 integers, some subset will with the right +s and -s yield a multiple of 29? What about for any 5 integers? For any 6 integers?

REMINDERS: (A) Only addition and subtraction will qualify. Don't tell me how you can get the result using square roots or multiplication or what have you.

(B) As one of the examples illustrates, it's OK to get to a multiple of N by getting to 0, and subtracting two equal digits if necessary.

(C) Remember that the problem isn't asking for specific sets of positive integers that can be used to get to a multiple of N. It's asking for the lowest number X such thar any set of X integers will be guaranteed to yield a multiple of N (i.e., if you take some nonempty subset of the integers, and throw in +s and -s in the right places, the result will be a multiple of N).

I've deleted the comments posted before this clarification was added.


A Nanny State Pediatrician:

This is an actual quote from a spokesman for the American Academy of Pediatrics from the HHS/FTC Joint Workshop on obesity and marketing a few weeks back (p. 142 of the Hearing transcript) expressing the Academy's support for a ban on advertising directed at children as a tool to fight children's obesity:

Contrast that with the amount of time that children spend seeing--let's bandy about the number--40,000 or so commercial messages each year, the 20 percent of two to seven-year-olds that have televisions in their bedrooms, the 68 percent of eight to 18-year-olds that have television in their bedrooms, it hardly seems like a level playing field for parents and pediatricians.

With respect to the difficulty of pediatricians influencing children's diets, I grant his point. But with respect to parents, give me a break--68% percent of parents allow their kids to have televisions in their bedrooms and then complain that they are defenseless against advertising? If this is a concern, I can think of one obvious defense for parents to "level the playing field"--how about removing the tv from the bedroom? I'll bet that would actually make a difference in children's obesity rates.

This leaves aside the fabulism of the 40,000 figure--a figure that I have debunked elsewhere.


I should have been more clear in my original post that my comments (this time) were not addressed at the question of the merits of restricting food (or other advertising) directed at children. It was just meant to focus on the implication that somehow the presence of the televisions in kids' rooms came about exogenously and that parents are truly powerless to prevent the exposure of their kids to television.


Thursday, August 11, 2005

NARAL Pulls Anti-Roberts Ad,

the AP reports.


[Andrew Morriss (guest-blogging), August 11, 2005 at 7:31pm] Trackbacks
Law school games:

The importance law schools have placed on U.S. News rankings mean that schools are engaging in some gaming behavior. Indeed, law schools are - more or less - in the position of taxpayers figuring out how to manipulate the tax code to minimize their taxes. There is a fair amount of play in a number of the reporting rules and schools have taken advantage of this. Some, of course, have crossed over the line and engaged in "tax fraud".

Like the IRS, U.S. News has been modifying the rules to try to stop the gaming. Most recently, it switched to using the 25th/75th percentile LSAT and GPA numbers rather than the median numbers, reasoning that since the former are reported to the ABA, law schools would be less likely to fudge them.

We found that two strategies seemed to have worked in raising median LSAT scores. (Note, we simply examined the data - we didn't interview all 190 or so schools to see if they had explicitly adopted these strategies for U.S. News purposes.)

Schools can decrease the first year class by cutting from the bottom of the admitted pool (and, if they want to, make up the revenue by increasing the number of transfer applicants they take, since transfer applicants don't count for U.S. News purposes.) We found that schools in the first quartile whose first year class size had shrunk increased their median LSAT scores relative to those who didn't, with a 10% significance level (higher than we'd like, but there were only 44 schools in this group.)

Schools in the other quartiles played a different game - here we saw some schools shifting students from full time to part time (part timers don't count for U.S. News), which we measured by comparing the proportion of total 1L class in the full time program across time. This worked too - a 10% shift from FT to PT gave a 0.54 point median LSAT gain.

There are other games schools can play too - hiring unemployed grads to do filing for a few weeks, for example, fits the "employed at graduation" definition (any job will do).

Some of these games are harmless. Some are not. All are a diversion from competing on educational quality, innovative programs, etc. We recommended that U.S. News consider revising its part time rules (which is likely to hurt a number of schools with large part time programs) and the NYT Magazine story by Alex Wellen reported that U.S. News is considering doing so.

Sidenote: I highly recommend Alex's book, Barman, an account of law school, the bar exam, and practice with the interesting feature of noting the U.S. News ranks of everyone in it. Alex had a much more interesting law school social life than I did; the book offers a perceptive account of legal education. He has a nice web site too.


Murder of Steven Vincent:

OpinionJournal's Best of the Web writes:

The Scotsman has an explanation for the murder in Iraq of journalist Steven Vincent. See if you can finish this sentence:

An American journalist who was shot dead in Basra last week was executed by Shiite extremists who . . .

. . . had been worn down by grinding poverty?

. . . were angry over Israel's treatment of Palestinian Arabs?

. . . resented the presence in their country of foreign troops?

. . . sought to avenge the abuses at Abu Ghraib?

If you said any of the above, you're wrong. Here's the full sentence:

An American journalist who was shot dead in Basra last week was executed by Shiite extremists who knew he was intending to marry his Muslim interpreter, it has emerged.

That's right, Steven Vincent was killed to prevent him from intermarrying. Those Westerners who side with the "Iraqi resistance" against America and its allies are defending the equivalent of the murder of Emmett Till.

UPDATE: Some people interpreted the OpinionJournal item, and this one, as criticizing all opponents of the Iraq War. That's an interpretation that's in the mind of the interpreters -- I see no support for it in the text of the post.

The item is quite clearly a criticism of those Westerners who do endorse the Iraqi "resistance," or at least explain its actions in ways that lessen or eliminate the killers' culpability (poverty, supposed desire for "self-determination," supposedly justifiable anger at various American, Israeli, or other Western sins). That's the group the item identifies. It's the group against which the item's argument makes sense. The item doesn't criticize any broader group of Iraq War opponents.

Fortunately, the group being criticized is not a vast group. So? They're still worth condemning.


Specter Complains to NARAL About the Roberts Ad:

His letter is here.


The Kelo Dissent and Substantive Due Process: Jack Balkin offers up a provocative post at Balkinization. I don't know enough about this stuff to have any thoughts on it, but I gather lots of VC readers will find it interesting.


Conglomerate is hosting a forum on the Disney decision, featuring many leading commentators.

Book Review of LoPucki, Courting Failure:

My new article, "Is Forum-Shopping Corrupting America's Bankruptcy Courts? Review of Lynn M. Lopucki, Courting Failure: How Competition for Big Cases is Corrupting the Bankruptcy Courts," (forthcoming in the Georgetown Law Journal) is now available for download on SSRN and BEPress.

As the title indicates, this is a book review of essay of Lynn LoPucki's fascinating and stimulating new book Courting Failure, which compiles LoPucki's voluminous empirical work over the past decade together with many fascinating case studies of problems with the current Chapter 11 process, including its treatment of many of the recent bankruptcy corporate scandals (such as Enron, WorldCom, etc.). In addition to being stimulating and informative, it is a rollicking great read and is written in a style that would be entertaining to a more general audience. It is also sure to be very controversial and will frame the academic and policy debate in this area for the next several years.

Here's the Abstract for my review:


In his new book, Courting Failure: How Competition for Big Cases is Corrupting the Bankruptcy Courts, Professor Lynn LoPucki's book argues that that current bankruptcy venue rules have spawned an improper "competition for big cases" that has "corrupted" America's bankruptcy courts. LoPucki argues that this competition has harmed the bankruptcy system and the economy, transferring wealth from creditors and employees to incumbent management and bankruptcy professionals. He also argues that the competition that has corrupted the American bankruptcy system is being replicated internationally, resulting in a similar competition and similar harm on the global stage.

This essay reviews LoPucki's book and its central theoretical and empirical arguments. LoPucki offers powerful empirical evidence that something is amiss with much of current American bankruptcy practice. This essay will try to flesh out in more detail the model and theoretical foundations that implicit underlie LoPucki's indictment of bankruptcy forum-shopping (and other forms of forum-shopping as well). Empirical evidence standing alone is insufficient to draw conclusions about whether forum-shopping is in general good or bad without a clearly-stated hypothesis to test. Instead, it is necessary to also have a theoretical model sufficient to generate testable hypotheses as a predicate both for determining whether forum-shopping is good or bad on net, as well as the likely effects of reform proposals. Although LoPucki identifies several problem areas in the current Chapter 11 reorganization process, it is not as clear that all of these problems can be clearly attributed to runaway forum-shopping. Instead, they may simply be good-faith errors or mistakes, for which continued competition may be beneficial, in that the competition may actually expedite the process of self-correction.

This review essay develops a model of the institutions and incentives governing the forum-shopping competition described by LoPucki in an effort to determine whether the empirical observations proffered by LoPucki can be best explained as the outcome of improper forum-shopping competition. The essay then closes with an analysis of provisions of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005, noting that many of the provisions in the legislation offer substantive responses to many of the problems identified by LoPucki.

Its a fast and entertaining read and I recommend it highly. Comments are much appreciated.


Councilman Update: Great news -- the en banc First Circuit has issued its opinion in United States v. Councilman, a very important Internet privacy case, and reversed the district court. I'm working my way through the opinion now and will offer some thoughts later in the day. Thanks to Howard for the link.

David Kravitz (BlueMassGroup) --

who, as I've mentioned before, is a Blue Massachusetts liberal -- condemns what he calls "NARAL's anti-Roberts smear."


Cool Legal Opinion from 1908: In the course of writing an article on encryption a few years ago, I came across a very interesting Texas state court decision from 1908 on the liability of telegraph operators for failing to deliver messages in a foreign language. What I find interesting about the decision is how modern it sounds, even a century later. Some of the language is archaic, to be sure, but the opinion has a vaguely Posnerian flavor. The case is Western Union Telegraph Co. v. Olivarri, 110 S.W. 930 (Tex. Civ. App. 1908), aff'd 135 S.W. 1158 (Tex. 1911). The opinion was written by a judge named William S. Fly.

  In this case, a woman in San Antonio, Texas sent a Western Union telegram in Spanish to her husband in Mexico. The telegram stated that her newborn children were ill and likely would die, and asked the husband to come to San Antonio to take care of her. Western Union failed to deliver the message, and the woman sued Western Union for her pain and suffering when her husband did not arrive. The established rule at the time was that the telegraph company could be liable for mental anguish damages arising from a failure to deliver a telegram correctly if the company knew or should have known the importance of the message.

  In its defense, Western Union argued that messages in a foreign language were like encrypted messages, or, as they termed it, "cipher messages." Telegraph customers often encrypted their messages with simple encryption schemes to protect the privacy of their communications. Telegraph companies were not liable for the consequences of misdelivered encrypted communications: By their nature, the importance of such communications was not clear to the telegraph company. Writing for the court, Judge Fly rejected the metaphor and offered the following analysis:
  We do not think a message in a foreign tongue for delivery in a country where that tongue is written and spoken can be placed in the same category as a cipher message. That kind of message is sent for the purpose of concealing from the telegraph company, as well as all other parties, except the person to whom it is sent, the purport of the message. The telegraph company, not being in possession of the key to their meaning, cannot possibly understand such telegrams, and is under no obligation to make any inquiries in regard to them. In fact disclosure of their meaning would defeat their very object in sending them. The telegram, however, to a person in a foreign country in the language of that country, is not intended to conceal, but that language is used as the usual vehicle of thought and desire, as being easier, not only to be comprehended by the person to whom it is sent, but easier to be received and understood by the agents of the telegraphic company receiving it in the foreign country. Telegraph companies hold themselves out as being ready and competent to send messages to all parts of the world in the different languages, and to hold that it is a defense to an action for negligence to prove that the receiving agent of a telegraph company did not understand the language in which the message was couched would place it in the power of such company to almost paralyze the commerce of the world by its negligence with immunity, because of a failure to furnish capable agents to carry on the business it is accepting.
  No requirement that messages received by it shall be in the English language was attempted to be shown by appellant, and by its acceptance of messages in foreign languages it is holding itself out as being capable of handling them in a judicious and expeditious manner, and it would be evidence of inefficient service on its part to handle messages accepted by it, if it shows that it could not tell a rush message in a foreign language from one not so urgent. The duty rests on it to give matters pertaining to life and death the precedence in service, and, if its agents cannot tell one from the other because it is not couched in the English language, it is attempting to do that which it knows it cannot do, and should be held liable for its negligence in connection therewith. By the slightest diligence appellant's receiving agent could have ascertained the urgency of the telegram. No effort was made to ascertain the purport of the message.
  It is undoubtedly the duty of a telegraph company to deliver all messages with reasonable dispatch, the main reason for adopting telegraphic communication being the desire for rapidity and great dispatch, and, if there is any sound reason for placing liability for failure to deliver in a reasonable time on the condition of the telegraph company's knowledge of the importance of the telegram, which the writer does not believe, there can be no reason for holding that a telegraph company cannot be held liable for failure to deliver at all, because it did not understand the message. The better rule, it seems to the writer, would be to hold telegraph companies liable for the consequences of their negligence in failing to promptly deliver messages, according to the terms of the contract of transmission, whether the agents of those companies know the importance of the messages or not. This view is, however, not in consonance with the decisions of this state, wherein it is held that damages for mental anguish in this class of cases cannot be recovered unless an agent of the telegraph company had knowledge of the importance of the telegram, or was by the language of the message put upon inquiry which would have disclosed its importance. Under the operation of that rule we are of the opinion that the duty devolved upon appellant to have agents in its offices in a city of the size of San Antonio, where it is holding itself out as a transmitter of messages by telegraph to Mexico, who have intelligence and education sufficient to understand telegrams presented to them in the Spanish language, and that, if the agent did not understand that language, he should have required from the sender a translation of the message into the English language.
  Interesting, isn't it? Pretty sophisticated analysis, especially for an opinion in 1908. Does anyone know more about Justice Fly? I googled him, but didn't find much.

Suicide Rates:

A little-known piece of data that came up in a lunchtime conversation with colleagues a week ago: Unlike homicides, which are highest among older minors and young adults, suicide rates are lower among teenagers, rise in the 20s, rise again in the 30s, and then remain fairly stable, though with an odd trough in the 60s and something of a bump in the 80s.

My sense is that this will be a surprise to many, since media accounts often tend to focus on suicides among the young. That's understandable, because such suicides seem more tragic (more years of life lost), more preventable (on the theory that they're more likely to be impulsive reactions to shocks, such as a lover's departure, that adults over time get used to), and less understandable (since it's less likely that the suicide is a response to an incurable and painful physical illness, which I suspect suicides among the old are more likely to be). But in fact the young are less prone to suicide than the middle-aged and the old.

In any case, here's the data, from CDC's invaluable WISQARS site:

Age Group

Number of Deaths

Population Crude Rate
00-04 0 19,575,536 0.00
05-09 4 19,960,444 0.02
10-14 260 21,093,745 1.23
15-19 1,513 20,347,666 7.44
20-24 2,497 20,329,966 12.28
25-29 2,423 18,901,904 12.82
30-34 2,623 20,812,587 12.60
35-39 3,141 21,805,533 14.40
40-44 3,710 22,941,937 16.17
45-49 3,473 21,264,091 16.33
50-54 2,835 18,764,692 15.11
55-59 2,186 14,972,666 14.60
60-64 1,432 11,595,687 12.35
65-69 1,197 9,585,105 12.49
70-74 1,266 8,708,218 14.54
75-79 1,231 7,433,706 16.56
80-84 1,028 5,310,113 19.36
85+ 826 4,570,405 18.07

Suicides among women show a somewhat different pattern among the middle-aged and the older, though they're still relatively low among the young:

Age Group Number of Deaths Population Crude Rate
00-04 0 9,566,970 0.00
05-09 1 9,742,000 0.01
10-14 64 10,288,734 0.62
15-19 233 9,879,547 2.36
20-24 345 9,899,299 3.49
25-29 420 9,289,295 4.52
30-34 491 10,316,427 4.76
35-39 657 10,900,923 6.03
40-44 889 11,549,817 7.70
45-49 865 10,787,388 8.02
50-54 647 9,585,588 6.75
55-59 478 7,718,022 6.19
60-64 303 6,076,871 4.99
65-69 222 5,143,790 4.32
70-74 188 4,840,096 3.88
75-79 177 4,357,148 4.06
80-84 144 3,304,789 4.36
85+ 122 3,193,882 3.82

Figures for men alone are not much different from the total ones, because men account for the great majority of suicides.


[Puzzleblogger Kevan Choset, August 11, 2005 at 12:10pm] Trackbacks
Length of Presidential Term:
  • Each of the following Presidents served exactly one full term in office (i.e., they did not start in the middle of the term by replacing someone else; they did not leave in the middle of the term through death or resignation; and they did not seek or win reelection). However, one of them served a different number of days than the others. Who, and why?

    John Adams, John Quincy Adams, Martin Van Buren, James K. Polk, Franklin Pierce, James Buchanan, Rutherford B. Hayes, Benjamin Harrison, William Howard Taft, Herbert Hoover, Jimmy Carter, George H.W. Bush

  • Each of the following Presidents served exactly two full terms in office. However, one of them served a different number of days than the others. Who, and why?

    George Washington, Thomas Jefferson, James Madison, James Monroe, Andrew Jackson, Ulysses S. Grant, Grover Cleveland, Woodrow Wilson, Dwight Eisenhower, Ronald Reagan, Bill Clinton

(No google, no wikipedia, etc. These both can be figured out.)


NCAA Mascot Litigation?

Florida State's President T.K. Wetherell is making rumblings that it will sue if the NCAA follows through with its prohibition on allowing teams with "hostile or abusive" mascots from entering postseason tournaments:

"We're not going to change the name - that's not an option," Wetherell told the Tallahassee Democrat Friday evening. "We would not do that."

Wetherell, who was angered by the decision, said he had it in his mind "to paint (the Seminole logo) three times as big on the field (at Doak Campbell Stadium)."

The NCAA Executive Committee surprised FSU when it announced the bans on Friday.

Wetherell reiterated comments he made to the Democrat on Wednesday that, in the face of a ban, he would seek legal action against the NCAA. He said that because the NCAA, in his opinion, deviated from its procedures in reaching its decisions, "the first thing the court would do is throw it out based on the NCAA's process."

Wetherell also mentioned that FSU might have grounds for economic restitution.

"I don't foresee any circumstances short of the NCAA reversing this decision that will not put us in court," said Wetherell, whose day included wrist surgery after he fell in the morning. "We've got lawyers looking at it right now."

The same article has this interesting perspective on the issue by Max B. Osceola, Jr., a member of the Tribal Council of the Seminole Tribe of Florida, which has endorsed the use of the Seminole mascot and eas not consulted by the NCAA:

Osceola said the Seminole Tribe of Florida disagrees with the NCAA's decision and determination that FSU's nickname and symbols are "hostile and abusive."


"It's like history - they left the natives out," Osceola said. "They have non-natives telling natives what's good for them or how they should use their name. You have a committee made up of non-natives telling people that they can not use a native name when you have a native tribe - a tribal government, duly elected and constituted - that said they agree with Florida State.

"There are some names, like the NFL team the Washington Redskins - that's derogatory. Those are abusive and hostile but not this."

I have not seen any response to FSU's comments from NCAA headquarters in Indianapolis, Indiana or from NCAA President Myles Brand, former President of the University of Indiana University.


If anyone can illuminate me on the likely nature of FSU's claim here, I would be interested. My impression is that they are thinking about breach of contract, on the basis that the comment that the NCAA failed to follow its own procedures. I could also see trying an antitrust action if the NCAA excludes them from participating in profitable postseason competition on the basis of this particular rule, but it isn't exactly clear to me what that action would look like. Presumably this might collapse into the breach of contract claim, as the antitrust claim presumably would be predicated on the theory that the NCAA exceeded its authority or failed to follow its own procedures. As for civil rights or First Amendment claims, I'm no expert on that, so perhaps Eugene or someone else can provide guidance on that. The NCAA is a private organization, and it has been my understanding that in general the First Amendment would not apply in this context.

So if FSU brings a claim, presumably it would be predicated on its contract with the NCAA. I would be interested in the insights of any readers or other Conspirators on this.


A Hoosier informs me it is properly Indiana University, not University of Indiana. I have corrected the post accordingly.



What's $286 Billion Among Friends?: The Washington Post has a very good analysis of the politics of the new transportation bill:
  Three years ago, President Bush went to war against congressional pork. His official 2003 budget even featured a color photo of a wind-powered ice sled — an example of the pet projects and alleged boondoggles he said he would no longer tolerate.
  Yesterday, Bush effectively signed a cease-fire — critics called it more like a surrender — in his war on pork. He signed into law a $286 billion transportation measure that contains a record 6,371 pet projects inserted by members of Congress from both parties.
  Six thousand, three hundred, and seventy one pet projects. Wow. My favorite part is the defense of the bill offered by White House spokesman Trent Duffy. In response to criticisms from conservative groups that the bill cost too much,
  Duffy replied that Bush pressured Congress to shave billions of dollars off the bill, and he said spending is "pretty modest" when spread out over five years. The transportation bill, at $57 billion a year, is a fraction of Medicare's $265 billion.
  Besides, Duffy said, "the president has to work with the Congress."
   I'm sure that some amount of highway spending was needed, and I don't know enough about the topic to know what the "right" amount of spending was. It's easy to complain about pork in the abstract. Still, when $286 billion dollars in new spending is described as "pretty modest" because if you spread out the costs over five years the annual costs are less than Medicare, it's hard not to wonder what is going on.

Wednesday, August 10, 2005

Faculty Rankings of Empirical Legal Studies:

Tracey George of Vanderbilt has another article on rankings from the same symposium that Andy Morriss has been blogging on the past few days. Her paper is "An Emprical Study of Empirical Legal Scholarship: The Top Law Schools" and is available on SSRN. The paper uses a variety of measures to compile a rank the "top" law schools in terms of their commitment to and intellectual leadership in the field of Empirical Legal Studies. Table 6 of her article reports her summary overall ranking of an unweighted average of the criteria she uses to come up with the "Overall Ranking of All Law Schools in Study":

ELS Ranking Law School

1-tie University of California, Berkeley

1-tie George Mason University

1-tie Northwestern University

4-tie University of Pennsylvania

4-tie University of Southern California

6 Cornell

7-tie University of Chicago

7-tie Stanford University

9-tie University of Michigan

9-tie Yale University


[Andrew Morriss (guest-blogging), August 10, 2005 at 5:30pm] Trackbacks
Job market influences on schools’ position:

One of the most striking results we found was that schools in strong legal job markets did better in terms than schools in weak legal job markets in raising their median LSAT scores. We used Am Law 200 firm growth (number of lawyers) as our measure of the legal job market because (1) we had data on it; (2) large firms are widely if not universally viewed as desirable by prospective law students.

The 3 metropolitan areas that grew the most in terms of Am Law 200 jobs between 1993 and 2004 were New York City (+9,920), Washington, D.C. (+4,916) and San Francisco (+2,937). Our regressions suggest that being in New York was worth about 1.65 median LSAT points to a school.

Interestingly, variables measuring general economic and population growth didn’t produce significant results.

We then counted up the number of Am Law 200 firms interviewing on various law school campuses in the NALP forms for 2004-2005 and did some looking at which schools did better at attracting these firms. Not surprisingly, law schools located in areas with lots of Am Law 200 firms had more Am Law 200 firms interviewing on campus, as did top 16 schools, tier 1 schools generally, and bigger schools.

In short, big firms will travel to interview students at the top schools, but interview at lower ranked schools only near their offices. This is not shocking, of course, but it is something law schools need to recognize if they intend to raise their rank / LSAT numbers. Investing in increasing the chances for students to interview at large firms – indeed, at all sorts of legal employers – is likely to be a good strategy. Coordinating off-campus programs in large law markets like NYC or investing in CSO activity in those markets are the kinds of things law schools outside the high growth MSAs need to consider.

Read the whole thing here.


A Curious Claim:

I received this in an email today from the campaign of Jerry Kilgore, who is running for VA Governor:

Senator George Allen routinely reminds us that a bumper sticker is worth $200 in free advertising or $300 if on a pick-up truck or S.U.V.

Why in the world would a bumper sticker on a "pick-up truck or S.U.V." be "worth" more in free advertising than say a mini-van or a sedan? Does it have something to do with attracting rural swing voters in Virginia to vote Republican? Or is it just some sort of joke that I don't get?


Breyer on Giving Foreign Courts "A Little Boost Sometimes": In a talk yesterday at the American Bar Association annual meeting, Justice Stephen Breyer gave an intriguing reason why he thinks the U.S. Supreme Court should cite foreign law: It can give "a little boost" to the judiciaries of other countries, helping to advance the rule of law outside the United States. Here's what Breyer said, in the course of justifying the practice of citing foreign law:
  "To tell you the truth, in some of these countries, they're just trying to create these independent judicial systems to protect human rights, contracts. If we cite them sometimes — not as binding, I promise, not as binding --well, that gives them a little boost sometimes . . . It sort of gives them a leg up for the rule of law."
  This reminds me a bit of the remarks by Justice Stevens in May suggesting that the U.S. Supreme Court should cite foreign courts to make sure that the U.S. Supreme Court remains influential outside our borders. It also seems to be another piece of evidence supporting the "shout out" theory of citing foreign courts offered by Professor (and former Breyer clerk) Tim Wu in Slate last year.

  Your thoughts?

[Andrew Morriss (guest-blogging), August 10, 2005 at 2:29pm] Trackbacks
More rankings:

The idea of more rankings touched off a lot of comments to my last post, so I'd like to push the point a bit further before moving on to additional findings from the paper. (Everyone can read - and download - the whole paper here, and help Bill and me crack the top 10 downloaded papers on SSRN).

My point about specialty rankings was not that a series of such rankings would solve the U.S. News problem, but that there is a market opportunity for a wide range of entities to get into the rankings business there because U.S. News uses a very, very small sample (one faculty member at another school told me that she had discovered that under 50 people responded to one of the most recent specialty surveys) from surveys to rank specialty programs. A much better job could readily be done by any journal interested in exploring the details of programs, and the universe of law schools with serious specialty programs (i.e. more than a professor or two) in any given area is small enough that the ranking could include more detailed qualitative information on the programs.

There is also a lot of room for competitors to U.S. News - and law schools could do a lot to encourage that by stating publicly that they are willing to provide data for alternative attempts at rankings. Unfortunately the main voice of law schools thus far - the joint letter from lots of deans - mostly condemns rankings as inherently flawed, which does not suggest that there will be much cooperation forthcoming to potential competitors. If all a new ranking system had to go on was the ABA data, it would probably come down to simply reweighting the U.S. News system (already possible at Jeff Stake's The Ranking Game).

Of course, there has to be a limit - law schools spend an enormous amount of time filling out questionaires for the ABA, AALS, U.S. News, their universities, etc. (Don't even get me started on the data needed for reaccreditation.) When I was associate dean I had to help with those sometimes and they took a fair amount of time. But law schools (and the ABA) could do a lot to facilitate comparisons. So far, they've chosen not to do so.


Had DataMining Tools Identified Four of the 9/11 Hijackers?: Yesterday's New York Times has a fascinating but rather vague report that a year before 9/11, a military intelligence unit had used datamining tools to identify Mohammed Atta and three other of the 9/11 hijackers as likely members of of an Al Qaeda cell. As Mickey Kaus notes, however, the Times story appears to significantly downplay the role of datamining tools in the identification of the cell. I'm not quite sure what to make of the story, but hopefully we'll know more details soon.

Copyright and Religion:

Copyright maven Bill Patry has posts about this interesting subject, here and here.


The United States' Position in Bray v. Alexandria Women's Health Clinic:

Recall that this is the case in which abortion clinics and abortion rights organizations sought an injunction against anti-abortion trespassers. The federal government filed a friend of the court brief arguing that the federal civil rights statute didn't apply to this behavior, and that the behavior was properly punished by state criminal law and tort law. (For more on the legal issue, read the Court's opinion.) John Roberts cosigned the brief, and delivered the government's oral argument.

I thought I'd add one detail, though, that people haven't noted: Not only was the government's position -- the one that Roberts is faulted for arguing -- accepted by six of the nine Justices, those six included two Justices who voted in favor of recognizing abortion rights in Casey v. Planned Parenthood. Justice Kennedy signed on to the majority opinion in its entirety. Justice Souter agreed with the majority on the issue that had been briefed by the government, but dissented in part because he thought another issue -- which the government's brief and oral argument, as best I can tell, had never addressed -- might be a winner for the plaintiffs. (The majority thought this separate issue hadn't even been presented below; Justice Souter argued that it had been adequately raised; but the government apparently didn't think it was in play, and therefore didn't address it.)

Whether this particular federal statute, as interpreted by the Supreme Court over many decades, should be read as barring illegal private interference with abortion rights, is a contested question -- the Court did split 6-3 on it (Justices Blackmun, Stevens, and O'Connor were in the dissent, Rehnquist, White, Scalia, Kennedy, Souter, and Thomas in the majority). But, as others have pointed out, one can certainly oppose criminal trespass and obstruction of entrances and yet think that this is a matter for state law, not federal law as written in the 1870s and interpreted by the Court since. And it's quite clear that this is an eminently mainstream position, taken by centrists and liberals Justices (e.g., Justices White and Souter) as well as conservatives, and by pro-abortion-rights people (e.g., Justices Kennedy and Souter) as well as by people who believe the Constitution does not secure abortion rights.


[Puzzleblogger Kevan Choset, August 10, 2005 at 10:52am] Trackbacks
Prolific Filmmakers:
  • What person has the most credits listed on their IMDb page?

  • What person has the most credits listed under one category (e.g., Actor, Producer, Director, Writer, etc.)?

  • What person has credits in the most categories?

For example, Tom Hanks has 45 Actor, 26 Producer, 7 Director, 3 Writer, 3 Miscellaneous Crew, 1 Composer (he wrote songs for "That Thing You Do"), 64 Himself (appearances on things like the Oscars), 11 Archive (Saturday Night Live compilations, etc.), and 80 Notable TV Guest Appearance listings. Thus, he has 240 total credits, 80 credits under one category, and is represented in nine different categories.

I have answers in mind for the first two (though it's possible they can be beaten).


Tuesday, August 9, 2005

[Andrew Morriss (guest-blogging), August 9, 2005 at 11:30pm] Trackbacks
Rankings & more rankings:

Brian Leiter posts a lengthy and informative email from Paul McKaskle, former dean of the University of San Francisco (mentioned in a comment to my earlier post, but I wanted to highlight it for those who don't read all the comments). Dean McKaskle makes some interesting points about rankings in general and suggests a two tier division of schools - the very top and the rest. He suggests that the biggest advantage of the very top schools for students is the presence of a larger percentage of other excellent students.

Dean McKaskle has some very good points in his criticism of the U.S. News rankings. There is a lot about U.S. News rankings that troubles me: the ease of gaming, the less-than-relevant measures, and so on. But prospective students need something on which to base their decisions about where to apply, which school to accept. U.S. News is clearly meeting a demand for information.

So what to do? One answer is that we're seeing a proliferation of information resources for prospective students. I get contacted by prospective students (not all referred by the admissions office) who see something in my web bio that interests them and prompts them to ask for more information about Case. Brian Leiter is publishing both his own assessments of quality for the top schools and lots of specific information on faculty movements in Leiter's Law School Reports, information that gives prospective students some sense of whether a school is trending up or down. Bulletin boards are allowing the exchange of information, including things like scholarship offers, among prospective students. This is making life harder for schools since they have better informed applicants who have more specific questions.

I think that one of the best things law schools could do is to encourage a proliferation of rankings (and not just 1-180 lists of schools, but all forms of rankings).

Consider business schools - there are multiple, major business school rankings that use different methodologies and examine different aspects of MBA programs. Prospective MBA students have better resources to assess schools than do prospective JD students. U.S. News' "rankings" of specialty programs are even more primitive than its rankings of law schools generally. I'd like to see a Business Week or Wall Street Journal ranking of business law programs, a Wired ranking of law and technology programs, and so on. Dual degree programs are currently unranked and proliferating. Let's get more information on the web and have it in a format like Jeff Stake's Ranking Game . That will let prospective students mix and match characteristics that they think are important. If they need to be educated about why certain things are important, by all means, let's educate them. But law schools ought to be embracing more data disclosure as a means of combating the influence of U.S. News.


[Andrew Morriss (guest-blogging), August 9, 2005 at 9:56pm] Trackbacks
The winners keep winning:

We found that within each segment of the market (i.e. the top quartile and everyone else), the schools that started out ahead in the 1992 U.S. News ranking (the first year the magazine published rankings) did better in terms of change in median LSAT. The data bears this out.


1992 U.S. News Rank


S.E. of Mean


Std Dev.

Valid N

US News Median LSAT 1993

Top 16






Rest of 1st Quartile






Second Quartile






Third Quartile






Fourth Quartile






Change in Median LSAT 2004-1993

Top 16






Rest of 1st Quartile






Second Quartile






Third Quartile






Fourth Quartile






2004 Median LSAT

Top 16






Rest of 1st Quartile






Second Quartile






Third Quartile






Fourth Quartile






Our small sample size for the top quartile meant that we didn’t get a significant coefficient on being in the top 16 within the top quartile in most of our regressions, but we did find a significant and positive coefficient on being in the second quartile compared to being in the rest of the “non-top quartile” schools. Our best guess (and it I s just a guess, since we didn’t get conventionally significant results) is that the effect is likely real for the top quartile too and the top schools are likely to be pulling ahead. Testing again in a few years would give us better data that might prove or disprove that hypothesis.

This result is exactly what we would expect if students are sorting themselves according to their LSAT scores and the reported scores in U.S. News. And Russell Korobkin has argued that this sorting effect is the primary benefit of the magazine’s rankings. Russell Korobkin, In Praise of Law School Rankings: Solutions to Coordination and Collective Action Problems, 77 TEX. L. REV. 403 (1998) (Abstract here). Starting position isn’t everything (geography and strategy matter a lot too, as I’ll discuss later this week). And, as Brian Leiter has noted, there is evidence that students are paying attention to components of the U.S. News rankings rather than just to the overall composite ranking. But starting position does matter, at least in the second quartile and below.

We think this has important implications for the schools in Quartiles 2-4. Moving their LSAT scores up is going to be hard and these schools might question whether or not trying to do so is really the best strategy. If they want to compete for higher LSAT students, however, these schools are going to need to innovate, compete vigorously on the dimensions they can affect (such as numbers of employers interviewing on campus and tuition costs).

For several decades, American law schools have pursued a remarkably homogenous approach to legal education. Emory law professor George Shepherd attributes this largely to the ABA accreditation standards and says “[t]he ABA forces one style of law training, at Rolls-Royce prices.” (George B. Shepherd, No African-American Lawyers Allowed: The Inefficient Racism of the ABA’s Accreditation of Law Schools, 53 J. LEG. EDUC. 103, 105 (2003).) (A summary of a talk he gave on the subject is here.) Law schools in the fourth and even third quartiles may want to consider trying some different strategies. I’ll discuss some of Bill and my ideas about this in subsequent posts but one obvious one is to cut tuition prices by cutting faculty costs (more adjuncts, higher teaching loads). The ABA standards are a real constraint in this area (and kept the Massachusetts School of Law, one of the few recent real innovators in delivering legal education, from being accredited).


FactCheck.Org Comes to John Roberts' Defense,

and criticizes the NARAL ad:

An abortion-rights group is running an attack ad accusing Supreme Court nominee John Roberts of filing legal papers “supporting . . . a convicted clinic bomber” and of having an ideology that “leads him to excuse violence against other Americans” It shows images of a bombed clinic in Birmingham, Alabama. . . .

In words and images, the ad conveys the idea that Roberts took a legal position excusing bombing of abortion clinics, which is false. . . .


Maxine Waters on Kelo:

My imnpression is that liberals and the left have been somewhat divided in their response to Kelo (unlike conservatives and libertarians who seem to be largely critical, with a few exceptions). Howard Dean and Bernie Sanders both seem to be critical of Kelo, Nancy Pelosi seems to be ok with it.

Today's Washington Times ran this column by Rich Lowry discussing Rep. Maxine Waters's response to Kelo that indicates that she really doesn't like it:

"Government should be in the business of protecting private property," she told me in an interview, sounding every bit a member of the free-market group the Club for Growth. "Private property is precious in America."

What has galvanized Waters and a surprising left-right coalition in defense of private property is the Supreme Court's instantly notorious Kelo decision in June saying government can use its eminent-domain power to take property from one private owner and give it to another. The Constitution says eminent domain — used to force the sale of property — must be exercised in cases involving "a public use," a phrase the court has stretched to encompass any private purpose that will produce more tax revenue. Almost immediately, Waters was on the House floor denouncing the decision, part of a backlash that has dozens of states considering tighter rules in how they use eminent domain.

Waters is a longtime scourge of eminent domain. A few years ago the L.A. Unified School District wanted to take a park and private homes in the community of South Park to build a new school (which at least is a legitimate public use). Waters made it clear that if eminent domain were used, the residents, many of them low-income, would appeal it property by property, holding up the process for years. "We backed them off," she says. If anyone is trying to grab your home, you could do much worse than have Waters — whose public mood seemingly fluctuates between outraged and irate — on your side.

She is acting on a crucial insight — the right to property is the most important check on governmental power and abuse, especially for the poor and vulnerable. The National Association for the Advancement of Colored People filed an amicus brief in the Kelo case arguing against expanding eminent domain and recalling that it was often used in 1960s "urban renewal" projects to dispossess black property owners — "'urban renewal' was often referred to as 'Negro removal.'" Indeed, the naked logic of the Kelo decision is to take property from working- and middle-class people who aren't in a position to build big-box stores, casinos or condos and give it to wealthier interests, who can create more tax revenue and inherently have more political influence. Poor property owners usually don't have the wherewithal to fight back. "I think they'll just be run over," Waters says.

Alabama just adopted a law prohibiting the state and its localities from taking property for private development. Delaware has tightened its law, and even Connecticut — home to the dispute that spawned Kelo, when homes were to be taken for a Pfizer development — is suspending its use of eminent domain while it considers whether it has taken it too far (quick answer: "yes"). Congress is considering denying federal funds to support any projects that involve taking property for private use, and Waters is supporting two of the Republican-sponsored Kelo backlash bills. "I'm working with people I've never worked with before," she says.

My casual impression is that the response to Kelo reflects a division along class lines in the liberal coalition, as upper-middle class liberals such as Pelosi (and similar commentators such as here) are generally fine with Kelo, whereas rural (Dean/Sanders) and lower-income Democrats (and minorities in particular, if Waters is representative), are very concerned. So, in addition to the left-right coalition that the article notes, perhaps there is an interesting rural-urban coalition at work here as well.

This may simply reflect who expects to be the likely winners and losers from tossing homeowners into the maw of local political processes. As Waters indicates, upper middle-class homeowners are not likely to bear the cost of the ability to take property for private development, but may favor the amenities that such development may produce, whereas lower-income and working class neighborhoods are more likely to be simply "run over" (to use Waters's expression) with little direct benefit in exchange.


I call readers attention to some thoughtful posts on the Comment Board, several from self-identified liberals who also express little love for Kelo as well. (See this one, for instance.) As they note, Rep. Pelosi's statement is somewhat ambiguous (which is why I used the phraseology "seems to be" in my original post as well). It may be that dislike for the ruling really is quite widespread across ideologies and class, with only a small handful of supporters even among liberals. I was just guessing that there must be some support for Kelo somewhere out there, but it really may be that I am wrong about that. Anyway, click over to the Comment Boards for some interesting thoughts.


Simon Baron-Cohen on "The Male Condition":

Simon Baron-Cohen of Cambridge, has this interesting column on the differences between male and female brains in the New York Times.


A Commenter points me to this post and discussion on Althouse on this column. Some interesting stuff there.


Publishing While Practicing:

Kaimi Wenger (Prawfsblawg) gives some tips.

William Pitt the Younger, "Boy Premier":

A very interesting column by Max Boot.


Brief Followup About Academic Legal Writing:

Yesterday's e-mail brought five orders for the book, and the following kind note:

Just wanted to add my e-mail to those you've already received re Academic Legal Writing.

I bought your book and read it before law school and used it extensively my first year. I was selected for law review and have gotten rave reviews on my writing from my employer. I've even gotten an offer from my firm for employment after law school; I understand that's pretty rare for a 1L. They told me the primary reason for my early offer was my writing.

Thanks again for your excellent book; it's made a great difference in my legal career so far. I plan to recommend it to all the members of law review at my school.

[Name omitted]

P.S. Please feel free to publish this on your site if you'd like, but please remove my name if you do, because I mention employment details.

OK, now I promise to pipe down about the book for a while.

Related Posts (on one page):

  1. Brief Followup About Academic Legal Writing:
  2. Do You Have a Friend or Relative in Law School?

Interesting Article on Housing Ad Discrimination:

It how somehow escaped my attention that the Fair Housing Center of Greater Boston sue several parties for carrying ads with phrases such as: "all of your neighbors in this loft building are professionals"; "great location for Medical area or Northeastern students"; "four bed ... great for four or five people"; "owner lives in the building and is older so not a place for partying."

Is it illegal to discriminate against non-professionals? non-Northeastern students? people who like to sleep one in a bed? loud partiers? I suppose these are supposed to be "code words" for discriminatory classfications, but you'd have to be smarter than I am to figure out what, as it strikes me that professionals, partiers, medical workers, etc., come from all groups. This is right out of You Can't Say That! (chapter 1 has a lengthy discussion of overzealous fair housing rules.)

I'm quoted in the piece, noting that I was annoyed when a realtor told me she couldn't infomrm me where the local synagogues were (this was pre-Internet). The reporter quotes Eric Bove, attorney for the Holyoke, Mass., Housing Discrimination Project, as stating: "If we know someone is Jewish and say a place is near a synagogue, there's a not-so-subtle message that's where we think Jewish people should move." But what if the Jewish person wants to know where the synagogues are? What if the African American househunter wants to know whether there are any other black people in the neighborhood? Information can be used for good or ill purposes, and the government has no business prohibiting the dissemination of truthful information.

The Fantasy Version Is Much Better: NBC has cancelled its reality TV show The Law Firm. Hat tip: Howard.

[Puzzleblogger Kevan Choset, August 9, 2005 at 12:51pm] Trackbacks
Fill in the Blank:

..., New York Rangers, New York Yankees, Sammy Sosa, New York Yankees, ________, New York Yankees, New York Yankees.

For a hint, click below:


UPDATE: Some more hints:





Kahan on Cultural Cognition and Self-Affirmation: Guestblogging at Balkinization, Yale lawprof Dan Kahan has an interesting post on tactics for building political coalitions behind policy solutions. As I see it, Kahan's argument boils down to a combination of two basic points:
  1. People are more likely to believe in solutions that appeal to their cultural worldview.
  2. People are reluctant to identify a problem as a problem unless they believe a viable solution exists.
  Kahan then puts these two points together. If you frame a solution to a problem that appeals to someone's cultural worldview, he reasons, you have a better chance than otherwise of getting political support for it. People may actually believe in the solution and thus be more willing to acknowledge the problem. According to Kahan, this dynamic reveals how policymakers can harness "the phenomemon of cultural cognition" to foster a "political analog of the Cohen self-affirmation effect." (For more, see Kahan's recent paper, Cultural Cognition and Public Policy.)

  I wonder, isn't this also the basic idea behind being a salesman? If you are trying to sell a product, you try to figure out your potential customers' worldview and values. You then use that to pitch your product as the answer to an unmet and perhaps unrecognized need. A good salesman can persuade a customer that they have a problem they didn't realize that they had, and that the salesman's product is the best solution to the problem. The product (and the salesman's pitch) is designed to create the perception of a problem the product solves. Am I missing something, or is Kahan's framework a somewhat similar idea applied to selling policy solutions?

Radio Program on Computers and the Fourth Amendment: Susan Brenner and I will be appearing together on Albany, New York's National Public Radio station at about 9:35 EST Tuesday morning discussing my forthcoming article, Searches and Seizures in a Digital World, which we are debating this week over at the Legal Affairs Debate Club. You can get the live streaming audio feed from here.

Monday, August 8, 2005

[Andrew Morriss (guest-blogging), August 8, 2005 at 10:18pm] Trackbacks
Compression in LSATs, a good thing?

Some of the comments to my initial post suggested that compression in LSAT scores (for which I have only anecdotal evidence) is not necessarily a bad thing. For example, some folks noted that there is a signalling value that makes it easier to apply to schools where you are likely to get in. This is true, although I also tend to agree with the comment that the application cost is such a small part of the cost of law school that this is not a major factor.)

There are some reasons to be concerned about compression.

1) The LSAT measures the ability to take timed multiple choice tests very well. (My coauthor, Bill Henderson, has an excellent paper on this subject.) Having a law school that is homogeneous in this dimension may not be a great thing. Or it may not matter.

2) A school with a compressed LSAT range is going to find it increasingly hard to move its median LSAT up (conversely, it won't slip much). Since schools put a lot of weight on the median LSAT, a lot of resources are going to end up being spent on trying to get even a very small shift. (I suspect that a rational strategy for many schools would be to focus on the GPA numbers rather than the LSAT numbers; although GPA is weighted less than LSAT by US News, there may be a much greater ability to move the numbers.

3) The shift to the 25/75 percentile numbers (or, more precisely, the average of the 2) means schools are now going to be paying a lot more attention to the keeping their 25th percentile up. That is likely to make it less likely that someone with LSATs below this year's 25th percentile is going to get in next year.

4) Compression has consequences for how law schools allocate scholarship money - one strategy is to spread money around among the people just above your median, in hopes of pulling it up. This means the people paying full freight, i.e. those below the median, are subsidizing the people above the median (assuming the school gets most of its revenue from tuition).


[Andrew Morriss (guest-blogging), August 8, 2005 at 9:50pm] Trackbacks
The segmented market in legal education:

We found very strong evidence that there is a difference between the top tier of law schools and the rest of the market. This may seem obvious (of course Harvard is different from a 4th tier school) but it is important nonetheless.

Our basic regression model predicted change in median LSAT as a function of the law school’s starting position (i.e. its quartile ranking in 1992), whether it was a public law school or not, average student loan debt, the change in Am Law 200 jobs in the metropolitan statistical area, and some strategic behavior variables (change in 1L class size, change in % of 1L class in part time program), and changes in academic and lawyer/judge reputation ranks. (We also tried some other variables, the full details are in the paper.)

When we ran the regressions separately for the top quartile (the top quartile is roughly “Tier 1” in current U.S. News terminology – the paper explains in more detail about why we used quartiles rather than tiers) and quartiles 2-4, we found that the coefficients were quite different for the two groups. Here’s one set of our results so you can see this:

Quartile 2-4Quartile 1
Constant.396 (.730)-1.296 (.943)
US News Quartile 21.704** (.380)
Top 16.845 (.537)
Avg. Loan Debt ($000)-.034** (.011).031* (.015)
Chg in Am Law 200 Lawyers (1000) in MSA, 93-03.167* (.065)-.014 (.094)
% chg in proportion of 1L FT to 1L FT & PT, 92-04-5.405* (2.219)
% chg in 1L FTE, 92-04-3.697 (2.086)
Adj R2.269.211

My apologies for the ugly table - I haven't quite mastered the powerblogs table function. See Regression Model 2 in the paper for a clearer version (you can download the paper here.)

* indicates significance at the 5% level, ** at the 1% level. Standard errors are in ().

Take a close look at average student loan debt. We used this as a proxy for the real cost of a legal education, although it is far from perfect for these purposes. One problem is that this is not a change variable (we just had data for 2004 graduates), while most of our other variables (including our dependent variable) were change variables. We wish we had had better data, but sometimes in empirical work you have to use what you have. The interesting result here is that the sign changes. Larger average student debt meant a larger (more positive) change in median LSAT for schools in the top quartile but had the opposite impact for schools in quartiles 2-4.

We don’t think schools in the top quartile can move up just by raising their tuition. There are some excellent schools in the top quartile that don’t charge an arm and a leg (although tuition everywhere seems to be higher than the $4/credit hour I remember paying to attend the University of Texas in the 1980s.) What we do think is happening here is that the top quartile schools are selling something that students think is worth paying top dollar for, and as a result, the schools are able to charge for it. This also doesn’t mean that quartile 2-4 schools are cheap. But prospective students are engaging in some shopping among the schools where they receive offers – if it means moving up into a top quartile school (or up within the top quartile), they will pay more. But among the quartile 2-4 schools, students are more price sensitive.

As I’ll discuss later in the week, Bill and I think that one of the main things the top schools are selling is access to their on-campus interview programs that include many more top legal employers (= large firms) than lower ranked schools.

This relative price insensitivity among the top quartile schools gives them several advantages over the rest of the schools. First, it means the top schools have more money. Money matters – it buys lots of things that makes a school desirable, from top faculty to library books to improved facilities. It means the top schools have more money to buy students with high LSATs. Most importantly, it means that there are two quite different markets for law schools (or law students). Different strategies are needed to survive/rise in the top quartile than in the rest of the pack; different considerations are at work for students in choosing among schools in the two segments. More on this later in the week.


Knowing How to Use an AK-47:

British intelligence is warning the British government about the risk of an Islamist insurgency in Britain; thanks to Michael Totten [guestblogging at InstaPundit]) for the pointer, and for the cautionary words: "Seems a bit overstated to me, but then I’m not an intelligence chief."

Here's my one observation on the subject -- consider this excerpt:

As police and the security services work to prevent another cell murdering civilians, attention is focusing on the pool of migrants to this country from the Horn of Africa and central Asia. MI5 is working to an estimate that more than 10,000 young men from these regions have had at least basic training in light weapons and military explosives.

A well-connected source said there were more than 100,000 people in Britain from "completely militarised" regions, including Somalia and its neighbours in the Horn of Africa, and Afghanistan and territories bordering the country. "Every one of them knows how to use an AK-47," said the source. "About 10 per cent can strip and reassemble such a weapon blindfolded, and probably a similar proportion have some knowledge of how to use military explosives. That adds up to tens of thousands of men." . . .

I too am worried about people who would want to violently revolt against the British government -- but does the point that "[e]very one of them knows how to use an AK-47" really mean much? Using guns is not rocket science. I don't personally know how to use an AK-47, but I'm pretty sure it's not tremendously difficult. Some of our commenters doubtless know more about this, but I suspect that stripping and reassembling it isn't that hard to learn, either. I can't speak confidently about the use of military explosives, but my sense is that those too are designed to be relatively easy to use. (Fighting effectively as a disciplined, trained, and well-led military unit is a different story, but that's not really a matter of knowing how to use an AK-47.)

If there are indeed many thousands of people who want to fight the British government, who are willing to kill many civilians, and who are willing to die doing so (since very many will die), that surely is a problem. But it would be a problem even if they had never touched an AK-47 in their lives. Conversely, I'll bet that very many Americans know all about how to use an AK-47 -- but we needn't worry too much about an Islamist revolt here.


Texas Family Lawyers:

Texas, I've recently learned, leaves child custody questions to juries — an unusual practice. I'd like to talk to a Texas family lawyer who's acquainted with how this practically works out.

Fortunately, my interest is purely academic; this is for my Parent-Child Speech and Child Custody Speech Restrictions piece. (The more family law cases I read, the more resolved I am to stay married.) If you're a Texas family lawyer who is willing to talk to me about this, or can recommend a friend who fits that description, please let me know at volokh at, so we can set a time that's convenient for you. Many thanks!


Testing the Influence of a Chief Justice:

The Federalist Society's report from the ABA Convention included this partial summary of one panel:

Supreme Court Review

Ken Starr was one of three panelists at the ABA convention's Supreme Court Review. He was joined by Yale Professor Drew Days and Susan Bandes of Chicago Law School. The panel summarized and commented on the biggest cases to face the Supreme Court this year. "The conservative majority held together on only five of the twenty-five major cases," said Prof. Days. The panel seemed in agreement with Starr that the explanation for this could be found in the ascendancy of John Paul Stevens.

Leave aside the incongruity that Orin mentioned a few weeks ago of referring to a "conservative majority" that prevailed in only 5 out of 25 major cases. It strikes me that this past term might provide some raw data for an interesting empirical test. It is often wondered whether the Chief Justice is somehow "more important" than the other justices in the sense that for procedural or other reasons the Chief may have greater influence over outcomes than just one vote. Others say no, that the Chief has no greater influence than anyone else.

Here's an empirical test that might be interesting--compare the outcomes of major cases over which Rehnquist presided and deliberated versus those cases over which Stevens served as Acting Chief. I have no idea what this would find, but it might be a revealing test of whether the Chief has any sort of disproportionate influence compared to others. It is possible that Chief Justice Rehnquist's absence from the bench in some major cases explains the failure of the so-called "conservative majority" to hold together during the past term?

Has anyone collected data from the past term that cross-references outcomes in cases with whether Rehquist or Stevens presided? (Sounds like a good project for some summer associates in an appellate shop somewhere...).

As an example, I have heard at least one veteran court-watcher speculate that perhaps the balance in Kelo could perhaps have been swung by the fact that Rehnquist did not participate, thereby enabling Stevens to preside over the internal deliberations and to perhaps exercise agenda control and swing Kennedy. As Orin sagely observed after the case came out, O'Connor's Kelo dissent reads like it may have started as a majority opinion, but then Kennedy switched over to and O'Connor had the dissent instead.

Related Posts (on one page):

  1. Testing the Influence of a Chief Justice:
  2. Testing the Influence of a Chief Justice:

How to Read a Case -- A Guide For New Law Students: Some of you may recall my post a few months ago about wanting to create a free online guide for new law students to help them navigate their way through law school. I didn't get around to writing it this summer, but I have decided to post a short excerpt I did write a while back that I hope will some day be a part of the guide.

  The new document is How to Read a Judicial Opinion: A Guide for New Law Students (7 pages, .pdf). Here is the intro:
  This essay is designed to help entering law students understand how to read cases for class. It explains what judicial opinions are, how they are structured, and what you should look for when you read them. Part I explains the various ingredients found in a typical judicial opinion, and is the most essential section of the essay. Part II discusses what you should look for when you read an opinion for class. Part III concludes with a brief discussion of why law schools use the case method.
  I wrote the first draft of this in 2002, and distributed it to the students in my first-year criminal law class. Since then, legal writing instructors at a few schools have found out about it and distributed it to their first-year students. I'm not sure if students have found it useful, but in case they have I wanted to distribute it as widely as I could.

  Finally, if readers have any thoughts on how I could improve, change, shorten, or expand the document, please leave them in the comment thread. I'm not sure I'll have time to rework the document soon, but I would like to improve on the current version in the future. Thanks!

John Roberts, Collegiality, and the Romer v. Evans Moot Court:

Romer, recall, is the case in which Judge Roberts -- then a partner in Hogan & Hartson -- helped out the gay rights side by participating in a moot court for their Supreme Court argument, apparently because a partner at his firm was involved in the case and wanted Roberts' help. People wonder whether you can tell much from this incident about what Roberts thinks about the underlying issue. I think the answer is "no," and here's a quote that I think helpfully explains why:

"John was building an appellate practice at our firm. And he wanted to be able to have the freedom to bring cases into the firm that were of interest to him. John therefore was open to being helpful to other partners and their clients. Pretty standard for a big law firm practice."

-- Mr. David Leitch, Former Partner with John Roberts at Hogan & Hartson (1987-1990, 1993-2001).

Seems to me that this is precisely how lawyers at big firms -- especially lawyers with Roberts' reputation for affability and collegiality -- operate. I got the quote from a Republican source, but I have no reason to doubt the quote's genuineness.


NARAL Advertisement: Via How Appealing, I just watched NARAL Pro-Choice America's new advertisement opposing the Roberts nomination. If I'm not mistaken, it seems to be suggesting that John Roberts favors blowing up abortion clinics.

  Over at Bench Memos, Edward Whelan offers some context. You can hear John Roberts arguing the case that forms the basis of the NARAL advertisement from this site, starting at 16:10.

Legal Affairs Debate Club: The first round of this week's Legal Affairs Debate Club has been posted, and is available here. As I mentioned a few days ago, the topic this week is how the Fourth Amendment should apply to searches of computer hard drives, and the debaters are Professor Susan Brenner and myself.

Hamilton College Alumni Election:

According to the Chronicle of Higher Education, Hamilton alumni have received a letter from the college's chairman of the board endorsing the official candidates, while enforcing limits on communications by the petition candidates (story available here):

Trustee candidates, who seek to join Hamilton's board, were allotted 100 words for a written statement that accompanies the ballot. They may also send mail to Hamilton's 17,000 alumni at their expense, but they may not send mass e-mail messages or mention Web sites in the written statements.


Ms. Neal said the officially nominated candidates had received a boost from a recent letter to alumni, signed by the chairman of Hamilton's board, that encouraged alumni to vote for the three candidates named by the Alumni Council. Ms. Barrie acknowledged that such a letter had been mailed.


Ms. Barrie denied that the rules had been created to influence the election. For example, she said, e-mail messages are banned to prevent spamming and because Hamilton has e-mail addresses for only 60 percent of its alumni. Surface mail is a more thorough way to contact alumni, she said, because the college has a higher percentage of their street addresses.

Of course, Barrie's explanation applies only to email, not to web sites, which do not spam anyone. It alsohas been reported that the referenced endorsement letter was even sent on Hamilton College letterhead. The Alumni Council Executive Committee also sent out an endorsement letter on college letterhead.

An informative article on the campaign restrictions from the Syracuse Post-Staandard is available here.

FIRE comments favorably on the free speech position of one of the petition candidates here.

The Hamilton College Alumni for Governance Reform website that contains links to many of the documents is here.

Hamilton alumni who wish to vote must be sure that their completed ballots are received by next Monday August 15.


Do You Have a Friend or Relative in Law School?

In my entirely unbiased opinion, my Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review is a thoughtful and useful back-to-school gift for such people:

  1. First-year students can use it to help them get onto a law journal, and can also use some of the tips in the Writing section for their first-year writing class.
  2. Second-year students can use it to write a law journal note.
  3. Both second-year and third-year students can use it to write seminar papers, and to do independent writing projects.

You can find some reader reviews at amazon, but I thought I'd also pass along several unsolicited messages I got from readers over the past two months:

Cory Olson: "I'll keep this quick. Your book is excellent and I will recommend it to everyone. In fact, I'm going to recommend that we require everyone on my journal (Minnesota Journal of Law, Science and Technology) be required to buy a copy. I read your book just before grading/reviewing this year's petitions to get on the journals. Everything the book said couldn't be more obvious when you saw the difference the techniques made. You can also tell that many people had read your book before writing their petition." "Your book will be the first place I turn before starting my next article. . . . I've found that the ideas have helped my non-academic work as well."

[Name omitted at my correspondent's request, but I assure you it isn't "Volokh"]: "I bought your book a few months ago and I just wanted to let you know that I think the advice you gave about the writing competition is a major reason why I earned a spot on the law review at my school. I look forward to reading the part about writing student notes. Thanks for writing the book."

Leslie Reed: "Looks like your Academic Legal Writing book has proven highly useful yet again. Danny Pouladian and I won an award from UCLA for our published paper. It's called the Aaron Award and comes with not only the honor but also a nice little sum of cash to split! We didn't even know we were up for it, but we received word this week that our paper had been awarded the honor."

Anthony Ciolli: "Tonight I received an offer to have my career placement paper published in the upcoming volume of Jurimetrics; another journal has also solicited an additional article from me. I just wanted to thank you . . . for your wonderful book that inspired me to write this article. If I had not read it, I would never have even thought of writing the paper as a lowly 1L, let alone submitting it for publication."

How can you get this fabulous late-August stocking-stuffer? The book should be available from amazon. Make sure you order the Third Edition (that's the link to which I just pointed).

For the Third Edition, the publisher is no longer sending me author's copies for signing and resale; but if you'd like me to send you a free personalized bookplate (basically just a label) to be pasted inside the book, just e-mail me at and tell me (1) the name and address to which you want the bookplate sent, and (2) the inscription you'd like me to use.

You can go to Legal Books Distributing, which offers prompt shipment; you can also get it at amazon, but they threaten shipping within 12 to 14 days, sorry to say.

You can also get a personalized copy from me; the publisher was good enough to send me a box of 50. Just send to a paypal draft for $27.99, which is what amazon charges (given the cover price and shipping). Please include (1) the name and address to which you want the book sent, and (2) the inscription you'd like me to use. Or, if you prefer snail-mail, just send a check and those two all-important pieces of information to:

Eugene Volokh
UCLA School of Law
405 Hilgard Ave.
Los Angeles, CA 90095

Related Posts (on one page):

  1. Brief Followup About Academic Legal Writing:
  2. Do You Have a Friend or Relative in Law School?

A Whole Concurring Opinion, Just About Numerical Agreement:

From Oakland Raiders v. NFL, a California Court of Appeal decision filed on July 28:


The Raiders are a diverse group of athletes. But despite such pluralism, the Raiders is a singular football team, and because of this, I must concur in the technical propriety of such phrases as “the Raiders asserts,” “the Raiders does not contend,” and “the Raiders was discriminated against,” which appear in the main opinion. However, although these phrases may be sound, their sound, to me, is personally foul and deserves dissent, if not a 15-yard penalty and loss of down. This is especially so when the phrases are read out loud.

I have long been a loyal fan of grammatical agreement. The natural harmony between subject and verb is usually euphonious. But my boosterism has not deafened me. Though the merits of agreement may be great, here it is grating. The phrases noted above are like blasts from an air horn or plastic trumpet, blaring technical correctness.

Obviously, with a subject like “the Raiders,” the writer enters the challenging zone of subject-verb agreement. And in this appellate opinion, I do not think we should have simply agreed to “disagreement.” However, I believe we could have reached our goal of meaning and avoided fumbling dissonance with a judicial substitution: pulling “the Raiders” and going with a second-stringer like “the plaintiff.”

Interesting -- but, is it just me, or does the above sound like more fitting for a blog post than for a court opinion?

Or could it be that some concurring or dissenting opinions have long been just official-looking blog posts?


[Andrew Morriss (guest-blogging), August 8, 2005 at 1:51pm] Trackbacks
Median LSAT scores and law school rankings:

Thanks to Eugene for inviting me to participate and talk about one of my favorite topics: legal education. Bill Henderson (Indiana) and I are dissecting the components of the U.S. News rankings in a series of papers, the first of which is now available on SSRN, and which we presented at a symposium at Indiana on rankings last spring. (There were a number of excellent papers presented there and anyone interested in the topic should read them all.) In this post I’ll give a quick summary of our data and methodology. Later today I’ll discuss the first of our findings, the strong evidence of market segmentation in legal education.

U.S. News began ranking law schools in 1987 with a “top 20” list based on a survey of law school deans, a method it repeated in 1988 and 1989. In 1990 and 1991 the magazine used a variety of data to generate a top 25 list. Starting in 1992, U.S. News began giving data on all the ABA-accredited law schools, although only the top 25 were ranked numerically.

It is hard to compare ranks across time because of a variety of data issues. One of the consistent inputs, and a particularly important one, is the median LSAT of entering law students. Bill and I decided to tackle this part of the rankings first, largely because it is something to which faculty members seem to pay a great deal of attention. (This past year U.S. News switched to using the 25th and 75th percentiles of entering class LSATs, in part because the magazine suspected schools were fudging the median numbers they reported. Since the 25/75th percentile numbers are reported to the American Bar Association, U.S. News thought that schools might be more honest in their reporting of those numbers.)

(A good discussion of some of these issues is in Alex Wellen's New York Times magazine story, which discusses our research, from this past Sunday.)

We used data on the law schools themselves (public/private, religious/secular, the number of large law firms (those on the American Lawyer 200 list) interviewing on campus, the percentage of the entering class in the full time program, average student loan debt, and so forth), data from the U.S. News rankings (academic reputation, lawyer-judge reputation) and the metropolitan statistical area (MSA) in which the school was located (how many law schools were in the same MSA, large firm jobs in the MSA, demographic trends in the MSA).

There are huge problems with the U.S. News rankings but there is no question that they are important. For example, a friend recently told me that she had been called by a law review about one of her manuscripts. The articles editor apologized for rejecting the manuscript and explained that the rejection had been made without reading the paper because the editors had mistakenly misclassified my friend’s school as being in a lower tier law school. Now that they realized their error, the editor told her, they wanted to consider the article on the merits. I don’t know how widespread this type of screening is, but that it occurred at a well-ranked, but not top journal is at least moderately disturbing.

The U.S. News rankings also have consequences for students – several admissions directors have told both Bill and me that they are noticing a compression in the LSAT scores of applicants, with a strong clustering around the median scores reported in U.S. News. Whether applicants are relying on the overall rankings, or as Brian Leiter suggests, on individual components of the rankings, U.S. News is clearly having an impact on legal education.

The question I would like to throw out for Volokh Conspiracy readers is not whether U.S. News rankings are good or bad in aggregate, but how the competition for students with LSAT scores above each school’s median (and, now, 25th and 75th percentiles) is affecting legal education.

Later today I will post a summary of our results on the segmentation of the market for legal education between the “top tier” and everyone else.


Free Speech and Non-Citizens:

People occasionally ask me what the U.S. government may do with respect to the speech of noncitizens. (See also this post by Megan McArdle, guestblogging at InstaPundit, which raises the same issue.) Here's a summary of current First Amendment law on the subject. Note that I report here on what is the law (and what the uncertainties in the law are), rather than opining on what it should be.

1. "Noncitizens," not "immigrants." First, a simple but often-forgotten note: The question here is not about the speech of immigrants; it's about the speech of noncitizens. The millions of immigrants who are citizens (for instance, me) are treated exactly the same way for First Amendment purposes as any other citizens. More broadly, we are legally like native-born U.S. citizens in virtually all respects.

There are a few exceptions: We can't be President or Vice-President; if we lied on our naturalization applications, we could be stripped of our citizenship (this is how some former Nazis ended up being stripped of citizenship); and I suspect that in practice we may arouse more scrutiny during security checks, especially if our country of former citizenship is an enemy of the U.S., or harbors many enemies of the U.S. But those are narrow exceptions, and the rule is that immigrant citizens have the same rights, including the same free speech rights, as native-born citizens.

2. Criminal punishment and traditional civil liability: The government may not criminally punish noncitizens — or presumably impose civil liability on them — based on speech that would be protected if said by a citizen. See Bridges v. Wixon (1945).

3. Entry: The government may bar noncitizens from entering the United States because of what they've said or are likely to say, even if the speech would have been constitutionally protected if said by a citizen. See Kleindienst v. Mandel (1972).

4. Deportation for speech alone: The rule is unclear. The leading case, Harisiades v. Shaugnessy (1952), which upheld Harisiades' deportation for being a Communist, speaks about nearly unlimited Congressional power over deportation, but that language is in the section holding that the deportation of Harisiades didn't violate the Due Process Clause. The Court's conclusion that the deportation of Harisiades didn't violate the Free Speech Clause (Harisiades had argued that the deportation violated both clauses) rested on the conclusion that active membership in the Communist Party was substantively unprotected by the First Amendment — both for citizens and noncitizens. (This view that the First Amendment doesn't protect Communist Party membership was the law at the time,)

Lower court cases are likewise mixed. For the view that Harisiades doesn’t generally let the government act based on otherwise protected speech by aliens, see American-Arab Anti-Discrim. Comm. v. Reno, 70 F.3d 1045 (9th Cir. 1995), reversed on other grounds, 525 U.S. 471 (1999); Parcham v. INS, 769 F.2d 1001 (4th Cir. 1985). For the view that Harisiades gives Congress nearly unlimited immigration power over aliens, see Price v. INS, 941 F.2d 878 (9th Cir. 1991).

5. Deportation for technical immigration law violation, motivated by the noncitizen's speech: The Court has, however, squarely held that if the government tries to deport someone who has violated immigration law — for instance, by overstaying his visa, or working without authorization — the person may not challenge the deportation on the grounds that he was selectively prosecuted based on his otherwise protected speech. See Reno v. American-Arab Anti-Discrim. Comm. (1999). Outside the immigration context, such selective prosecution claims may generally be made (though they aren't easy to make), and, if they're successful, they can lead courts to throw out the case against the speaker. See Wayte v. United States (1985).

6. Citizenship: It’s likewise unclear whether Congress can deny noncitizens citizenship based on speech that would be protected if said by a citizen. For a lower court's argument in favor of such power, see Price: “While a resident alien may not participate in the process of governing the country, naturalized citizens may. Naturalization decisions, therefore, deserve at least as much judicial deference as do decisions about initial admission.”

7. Noncitizens may also have statutory rights. I've spoken here just of constitutional rights, which noncitizens have no matter what Congress might do. Noncitizens, and especially permanent residents, also have statutory rights to remain in the country unless they've done (or there's sufficient reason to think they've done) certain bad things — at least until Congress revises the statutes to broaden the grounds for deportation (which it may even do retroactively, since the Ex Post Facto Clause only bars retroactive criminal punishment, and deportation is not treated as criminal punishment).

So if the Executive Branch decides to deport someone, it has to have statutorily authorized grounds, and it has to provide hearings at which an immigration judge decides whether the conditions for deportation are met. (These hearings are required both by federal statute, and, at least as to permanent residents, by the Due Process Clause, on the theory that deprivation of a permanent resident's rights to live here is tantamount to a deprivation of liberty or property.) This last paragraph is just a sketch of the statutory landscape; I am not an expert in immigration law, and can thus speak in detail and with some confidence only about the specifically First Amendment issues.


New Article Posted on SSRN:

My article, Learning the Wrong Lessons from "An American Tragedy": A Critique of the Berger-Twerski Informed Choice Proposal, forthcoming in the Michigan Law Review, is now available for download from SSRN. Comments are welcome. Here is the abstract:

This paper is a critique of Margaret Berger and Aaron Twerski, "Uncertainty and Informed Choice: Unmasking Daubert," forthcoming in the Michigan Law Review. Berger and Twerski propose that courts recognize a cause of action that would allow plaintiffs who claim injury from pharmaceutical products, but who do not have sufficient evidence to prove causation, to recover damages for deprivation of informed choice. Berger and Twerski claim inspiration from the litigation over allegations that the morning sickness drug Bendectin caused birth defects.

Considering the criteria Berger and Twerski suggest for their proposed cause of action in the context of Bendectin, it appears that a pharmaceutical manufacturer could be held liable for failure to provide informed choice: (a) even when there was never any sound scientific evidence suggesting that the product caused the harm at issue, and there was an unbroken consensus among leading experts in the field that the product did not cause such harm; (b) when the product prevented serious harm to a significant number of patients, and prevented substantial discomfort to a much greater number, even when there were no available alternative products; (c) when a plaintiff claims that she would not have taken the product had she been informed of an incredibly remote and completely unproven risk; and (d) when the defendant is unable to prove a negative - that the product in question definitely did not cause the claimed injury.

No rational legal system would allow such a tort. Putting the Bendectin example aside, the informed choice proposal has the following additional weaknesses: (1) it invites reliance on unreliable junk science testimony; (2) it ignores the fact that juries are not competent to resolve subtle risk assessment issues; (3) it reflects an unwarranted belief in the ability of juries to both follow limiting instructions and ignore their emotions; (4) it ignores the problems inherent to multiple trials - even if defendants were to win most informed choice cases, safe products could still be driven off the market by a minority of contrary verdicts; (5) it ignores the inevitable costs to medical innovation as pharmaceutical companies scale back on researching product categories that would be particularly prone to litigation; (6) to preempt litigation, pharmaceutical companies would overwarn, rendering more significant warnings less useful; and (7) FDA labeling requirements would arguably preempt the proposed cause of action.

[Puzzleblogger Kevan Choset, August 8, 2005 at 11:58am] Trackbacks
Popular Vote:

After the 2004 Presidential election, when Bush supporters said that their candidate had received the most votes of any candidate in history (59.5 million), Kerry supporters often responded by pointing out that Kerry himself had gotten the second highest number of votes in history (55.9 million).

Who received the third highest popular vote in history?


Who received the fourth and fifth highest popular votes in history?


I'll leave this third one as an open question: Who received the third most votes of any candidate in any race in the 2004 elections? (Bush and Kerry were obviously first and second.)

NOTE: I'm having problems enabling comments. Check back shortly.

UPDATE: Comments are working.


Andy Morriss, Guest-Blogging on Law School Rankings:

I'm delighted to say that lawprof Andy Morriss (Case Western Law School) will be guest-blogging here for the next several days. Andy is an economist as well as a lawyer and generally writes about property rights and the environment, employment law, public choice and the law, and the legal history of the American west. But he also does empirical research on the law and on the topic he’ll be guest-blogging here about, legal education.

In “Student Quality as Measured by LSAT Scores: Migration Patterns in the US News Rankings Era” (coauthored with William Henderson of Indiana University), an empirical analysis of changes in median LSATs from 1992 to 2004, Andy and Bill take a close look at the winners and losers in what has been called “the LSAT arms race.” US News rankings are widely reviled in the law school community, but are nonetheless avidly watched by students and faculty alike. This paper finds that much of the change in one of the key components, entering class LSAT scores, is beyond the control of individual schools. Quite a bit of the change in median LSAT scores is related to trends in the legal job market, strategic behavior by schools, and whether or not the schools are part of the top tier of law schools.

Andy and Bill have six key findings and Andy will blog about one a day for the next six days, as well as raise some questions about the future of the market for legal education. The paper was discussed, by the way, in an article in the July 31 New York Times.

Columbia's $15 Million Diversity Initiative:

Professor KC Johnson comments on a new $15 million diversity initiative at Columbia. Here's the most amazing part to me:

In addition to recruiting minority and female professors, especially in the sciences, the university could use the money to hire white men "who, through their scholarship and teaching and mentoring, in some way promote the diversity goals of the university," she said.

The obvious question arises--what exactly does Columbia mean by including only those whose views "in some way promote the diversity goals of the university"? How will Columbia interpret this? It is hard to see how this is not an ideological litmus test; if it is not an ideological litmus test, it is hard to see what it could otherwise reasonably be read to mean.

Johnson asks:

Columbia’s initiative goes beyond Harvard’s. It will recruit women, minorities, and white men—but only white men who, in Howard’s words, “through their scholarship and teaching and mentoring, in some way promote the diversity goals of the university.” Let’s take, then, the example of a white male professor, of distinguished scholarship and teaching, in political science or sociology. Let’s say, further, that this professor has publicly argued that a color- and gender-blind legal code is the best way to sustain a diverse society. Columbia’s academic freedom policy “guarantees that [its faculty] will not be penalized for expressions of opinion or associations in their private or civic capacity.” But does anyone seriously believe a white male who has taken such a position would pass Howard’s “diversity” test? How, then, can the pro-diversity white men aspect of this initiative be reconciled with Columbia’s academic freedom policy?

The announcement of the initiative itself partially answers Johnson's query by suggesting the range of opinions that will qualify as views that "promote the diversity goals of the university":

Deepening and Extending the University Dialogue:

The investment also allows for continued expansion of University-sponsored events on diversity matters. Last year's guest speakers included Princeton President Shirley Tilghman, who spoke about the hurdles of recruiting and retaining women in science; MIT Biology Professor Nancy Hopkins, who described the institutional transformation around gender issues that occurred at MIT; and Georgetown University Law Professor Chuck Lawrence, who spoke about the continuing need for affirmative action.

One important effect of imposing this sort of ideological litmus test for hiring, is that it makes it increasing difficult to protect academic freedom from bad ideas such as David Horowitz's Academic Bill of Rights. The objection to the Academic Bill of Rights--an objection that I share--is that it improperly infringes on academic freedom. But if Columbia is going to override its academic freedom policy for these political purposes, then there seems to be no principled reason not to override academic freedom for the political purposes favored by David Horowitz and other advocates of the Academic Bill of Rights. What can Columbia say in response to Horowitz now?

Moreover, if Columbia is indeed imposing an ideological litmus test that excludes conservatives from consideration for these 15-20 positions, this is somewhat ironic to say the least. According to one study of departements of Economics, English, History, Philosophy, Political Science and Sociology, Democrats already outnumber Republicans 14-to-1 at Columbia, and the study finds only 6 Republicans on the entire faculty in the departments surveyed (see update below) and not a single Republican in the history, political science, and sociology departments. (For those who haven't been following this issue, political party identification turns out to be a strong and easily-measurable proxy for ideological viewpoint--compare this study with this.) I also did a brief review of some of the science departments at Columbia, and although there are substantially more men than women faculty members in those departments, it appears that the imbalance is substantially less than 14-to-1. Moreover, women seem to be represented in much greater numbers at the more junior professor levels, suggesting that the imbalance is narrowing over time, unlike the ideological imbalance in the academy, which appears to be widening over time. Thus, the ironic result of Columbia's ideologically-laden "diversity" initiative will almost certainly be to reduce the ideological diversity of the university and reinforce the prevailing orthodoxy. Nor is it responsive that there are an inadequate number of qualified candidates, as part of Columbia's charge is to "strengthen the pipeline bringing women and minority students into the University's undergraduate, graduate, and postdoctoral programs."

According to the press release, the $15 million expenditure was approved by the Columbia Board of Trustees.


A Commenter correctly noted that the underlying study that I link to found that there were only 6 Republicans in the departments of Economics, English, History, Philosophy, Political Science and Sociology, not on the entire faculty as I originally stated. My apologies and I have corrected the original text of the post.


Peter Jennings Has Passed Away: Sad news — former ABC news ancher Peter Jennings has died from lung cancer. In the days before the Web, I used to watch Jennings every night on ABC World News Tonight. He was 67. Way too young.

Sunday, August 7, 2005

"The Rise of the Digital Thugs": A good piece on Internet extortion schemes from the New York Times.

What Passes for Hilarity for Some Left Bloggers:

A blogger named "Mithras" several days ago posted a "Conservative Blog Taxonomy" making fun of, and criticizing, ten purportedly "conservative" blogs, including this one. In general, Yaaaawn...

But Mithras's post was linked to favorably by many others, including Atrios. Let's consider what Mithras writes about Michelle Malkin: "Far-right affirmative action hire who is so bigoted she'd arrest herself for trying to cross a border.... If she didn't have tits, she'd be stuck writing at"

Malkin (with whom I often, but hardly always, disagree), has propelled herself to blogger superstardom, with approximately eighty thousand daily Sitemeter hits. Given that no one is forcing, subsidizing, or even encouraging readers to go to her website on the basis of either her race or sex, on what possible grounds would Mithras claim that she's an "affirmative action hire" or that her sex ("tits") has anything to do with her success? Seems to me she's acquired her readers the same way other bloggers do: by writing posts that they want to read.

It doesn't trouble me (much) that Mithras, whoever that is, would crudely and stupidly insult Malkin. There's one in every crowd, as they say. But when so many other folks on the left, including Brian Leiter, jump in to endorse his post, one wonders what is going on. Indeed, not a single one of the 465 Atrios readers who commented on his link to Mithras post complained about the Malkin crack; in fact, several of them praised it, and added their own prejudiced elaborations (e.g., "She always reminded me of one of those 14 yo Bangkok whores my globe trotting friend would (unfortunately) tell me about (in way to [sic] much detail)".

Is it suddenly (or maybe not so suddenly, if I recall the attacks on figures ranging from Thomas Sowell to Condi Rice) okay to denigrate someone based on their race and sex if they happen to be conservative? And to use especially offensive language while doing so? Attacking Malkin in this way comes with especially poor grace from the left blogger community, which--dare I note--includes, as far as I'm aware, no female, nonwhite blogger nearly as prominent as Malkin.

Anyway, a whole bunch of people, including Atrios, owe Malkin an apology.

UPDATE: Here is Atrios's response:

Judging from all the link cooties I've been sensing, the entire right wing of the blogosphere has leapt to the defense of the racist Michelle Malkin. Fascinating. There's rarely a bigot they won't defend. Here's a reminder for them all:

Just so we all understand, in the year 2004 Michelle published a book justifying an act that Ronald Reagan apologized for - the mass arrest of Japanese immigrants and Japanese-American citizens of America based on nothing other than their ethnic background. Anyone who links to her or promotes her in anyway may as well be promoting the Klan or That includes you Chris Matthews.

The publication of that book, which she did to appeal to the Little Green Snotball brigade, will be a stain on her soul for all eternity. I intend to remind the world of it at every opportunity.

Atrios provides no link to my post, so his readers can't see that it wasn't defending Malkin, as such, but criticizing him an other for linking favorably to a prejudiced, misogynistic attack on Malkin. Atrios's response comes down to "if I think someone's a racist, no type of attack on him or her is beyond the pale." This is just plain stupid. I was going to give example of individuals whom we'd all agree are evil, but who still shouldn't be attacked because they are black, Jewish, Arab, etc., but instead, I'll just state the point. Atrios's post, by the way, attracted yet more vile and hateful comments from his "progressive" readers. (But please, no more comments about how this proves that the entire left is racist, which is also just plain stupid.)

FURTHER UPDATE: Eric Muller wonders if Malkin gets "so much attention" from the right, precisely because she's a nonwhite woman who defends Japanese internment, opposes immigrant rights [not sure exactly what he's referring to], etc. I can't say I've studied Malkin's career, but there is certainly nothing remarkable about a Fillipina (as I've learned Malkin is) not being overly sympathetic to WWII Japanese [clarification: I'm not claiming that Malkin's views on internment are, in fact, related to her ethnicity. I'm just pointing out the vacuousness of stating that they are remarkable because she too is "Asian" and thus should have special sympathy for the Japanese]. And given that just about all of us are descended from immigrants, I don't see anything any more remarkable about Malkin not being overly sympathetic to immigrants (if that's true) than I would if she were Irish, Italian, Polish, etc. I suspect Malkin's conservative readers, who are not likely to buy into the whole "people of color in solidarity with each other" notion, are not especially likely to find her views remarkable.

To the extent that Malkin's ethnicity gives her a certain amount of immunity from the typical "you only believe that because you're a white male" attack, that only forces opponents to deal with her arguments directly, as Eric has indeed done. But if her arguments didn't resonate for whatever reason, she wouldn't be getting eighty thousand daily hits. Conservative readers are rather unlikely to put her on their reading list just so they can say to themselves, "I'm a good person--I read a "woman of color blog" today."