Saturday, February 10, 2007

Transmission of Genital HPV Through the Hands:

A 1999 article reports:

Objective: To determine whether patients with genital warts carry human papillomavirus (HPV) DNA on their fingers.

Methods: 14 men and eight women with genital warts had cytobrush samples taken from genital lesions, finger tips, and tips of finger nails. Samples were examined for the presence of HPV DNA by the polymerase chain reaction.

Results: HPV DNA was detected in all female genital samples and in 13/14 male genital samples.

HPV DNA was detected in the finger brush samples of three women and nine men. The same HPV type was identified in genital and hand samples in one woman and five men.

Conclusion: This study has identified hand carriage of genital HPV types in patients with genital warts. Although sexual intercourse is considered the usual mode of transmitting genital HPV infection, our findings raise the possibility of transmission by finger-genital contact.

(Sex Transm Inf 1999;75:317–319)

I don't know whether the study has since been confirmed or undermined, though some casual searches suggested this possibility is being taken seriously, but the magnitude of the risk is unknown. If you know more than I do about this, please post something on the subject in the comments.

Likewise, while my casual assumption is that if hand-genital transmission is possible, hand-hand transmission followed by hand-genital transmission by the recipient (i.e., a woman shakes an HPV carrier's hand, and then transfers the HPV to her hand when touching her own genitals), I'm not sure whether that's right. Of course, even if it's not, this means that an HPV-positive parent could transmit the virus to an infant or a toddler when wiping, washing, or examining the child. (Mother-to-newborn transmission of HPV is also possible, though my vague sense from a few snippets I've seen is that it's not seen as a major likely source of serious disease.) In any case, given the recent debates about HPV immunization, I'd be happy to hear more about this from those who know.

The world seems to be an even ickier place than I had thought.


Branson's Climate Prize:

Richard Branson is offering a $25 million prize for the development of a technology capable of removing carbon dioxide from the atmosphere.

Related Posts (on one page):

  1. Branson's Climate Prize:
  2. Forget Subsidies, Try Prizes:

Salmon Baked in a Sea Salt Crust:

Reader Ethan Hahn reports:

I used your salt-encrusted salmon recipe over the summer for a big 8-person meal we were having ... — your recipe was absolutely perfect! It made a lot of food, tasted wonderful, and was extremely impressive looking too! And I just realized today that I never thanked you for posting it — Instapundit's post about the blog recipe book reminded me.
I take no credit for the recipe — I just pass along what I was given — but I thought it might be worth passing along again.


My Finger Is Well Off the Pulse of the Blogosphere:

I've been quite pleased by the mainstream media reception of my Parent-Child Jihadist Speech op-ed; it ran originally in the L.A. Times, but it's been reprinted in the Atlanta and St. Petersburg newspapers, as well as a couple of others (including this one); NPR Weekend Edition and a local NPR affiliate did something on this, too, as did a Philadelphia radio station and the conservative syndicated Lars Larson radio show.

On the other hand, I had expected there'd be more attention from various blogs and radio programs that often cover radical Islam and the law. I figured the case that my story had uncovered had it all: The First Amendment; jihadism; parental rights; child welfare. Yet I've had much less original posts yield much more interest among blogs and radio programs, especially conservative ones.

I'm not trying either to brag or to complain here; I'm pleased with the attention the story has gotten, and while I think it's interesting, I never expected it to cause a huge stir. Still, I wonder: Did I misjudge the likely interest? Did I just not publicize the story enough? Should I have taken heroic measures to keep Anna Nicole Smith alive for several more days? What can I do in the future to try to draw more attention to such matters? I'd love to hear any speculation or advice that people might have.


The Peninsula On-line:

My op-ed on the jihadist father gag order was rerun in "The Peninsula On-line." Question (no fair googling): Which peninsula? Hint below.


Climate report too quickly embraced by journalists:

So says my latest media analysis column in the Rocky Mountain News, which criticizes the press for its overly credulous reporting of the latest output from the UN's Intergovernmental Panel on Climate Change. The column also looks at media coverage of a bill to mandate HPV vaccines for 6th grade girls; the factoid that only 2% of rape accusations are false; and the lingering influence of Michael Bellesiles on "The Mini Page."


NPR Weekend Edition on the Jihadist Father Gag Order Case:

Hear Scott Simon's mellifluous voice, plus my voice, here. It's about 4.5 minutes, which is an eternity in national radio time; I was delighted that NPR was interested in the story.


"Scenes from the Climate Inquisition":

AEI's Steven Hayward and Kenneth Green defend their climate policy projects in the Weekly Standard. Here's a taste:

The irony of this story line is that AEI and similar right-leaning groups are more often attacked for supposedly ignoring the scientific "consensus" and promoting only the views of a handful of "skeptics" from the disreputable fringe. Yet in this instance, when we sought the views of leading "mainstream" scientists, our project is said to be an attempt at bribery. In any event, it has never been true that we ignore mainstream science; and anyone who reads AEI publications closely can see that we are not "skeptics" about warming. It is possible to accept the general consensus about the existence of global warming while having valid questions about the extent of warming, the consequences of warming, and the appropriate responses. In particular, one can remain a policy skeptic, which is where we are today, along with nearly all economists.

Of interest to those who have been following this story, Hayward and Green provide some backstory on their letter to Professors Schroeder and North at Texas A&M, and how this became a major story.

North declined our invitation on account of an already full schedule. Schroeder shared our letter with one of his Texas A&M colleagues, atmospheric scientist Andrew Dessler. Dessler posted our complete letter on his blog in late July, along with some critical but largely fair-minded comments, including: "While one might be skeptical that the AEI will give the [IPCC Fourth Assessment Report] a fair hearing, the fact that they have solicited input from a credible and mainstream scientist like Jerry North suggests to me that I should not prejudge their effort."

Dessler's story was linked on another popular environmental blog (, after which someone in the environmental advocacy community (the Washington Post suggests it was Greenpeace and the Public Interest Research Group) picked up the story and tried to plant it, with a sinister spin, somewhere in the media. Several reporters looked into it--including one from a major broadcast network who spent half a day talking with us in November about the substance of our climate views--but reached the conclusion that there was no story here. . . .

They further seek to place the episode in the context of a broader cliamte "inquisition":

The rollout of the IPCC report and the Guardian story attacking us coincide with the climax of what can be aptly described as a climate inquisition intended to stifle debate about climate science and policy. Anyone who does not sign up 100 percent behind the catastrophic scenario is deemed a "climate change denier." Distinguished climatologist Ellen Goodman spelled out the implication in her widely syndicated newspaper column last week: "Let's just say that global warming deniers are now on a par with Holocaust deniers." One environmental writer suggested last fall that there should someday be Nuremberg Trials--or at the very least a South African-style Truth and Reconciliation Commission--for climate skeptics who have blocked the planet's salvation.

Former Vice President Al Gore has proposed that the media stop covering climate skeptics, and Britain's environment minister said that, just as the media should give no platform to terrorists, so they should exclude climate change skeptics from the airwaves and the news pages. Heidi Cullen, star of the Weather Channel, made headlines with a recent call for weather-broadcasters with impure climate opinions to be "decertified" by the American Meteorological Society. Just this week politicians in Oregon and Delaware stepped up calls for the dismissal of their state's official climatologists, George Taylor and David Legates, solely on the grounds of their public dissent from climate orthodoxy. And as we were completing this article, a letter arrived from senators Bernard Sanders, Pat Leahy, Dianne Feinstein, and John Kerry expressing "very serious concerns" about our alleged "attempt to undermine science." Show-trial hearing to follow? Stay tuned.

Desperation is the chief cause for this campaign of intimidation. The Kyoto accords are failing to curtail greenhouse gas emissions in a serious way, and although it is convenient to blame Bush, anyone who follows the Kyoto evasions of the Europeans knows better. The Chinese will soon eclipse the United States as world's largest greenhouse gas emitter, depriving the gas-rationers of one of their favorite sticks for beating up Americans. The economics of steep, near-term emissions cuts are forbidding--though that's one consensus the climate crusaders ignore. Robert Samuelson nailed it in his syndicated column last week: "Don't be fooled. The dirty secret about global warming is this: We have no solution."


Friday, February 9, 2007

Errors in the Baltimore Sun's Coverage of the Maryland "Quick Take" Case:

Today's Baltimore Sun has a generally informative article about Mayor of Baltimore v. Valsamaki, the Maryland Court of Appeals decision limiting the power of local governments to engage in "quick take" condemnations. Unfortunately, the article also contains at least three serious errors.

Sun reporter Jill Rosen writes that Valsamaki "runs counter to the [US] Supreme Court's 2005 decision giving governments broad powers to take properties for private development." Presumably, Rosen is referring to Kelo v. City of New London. Unfortunately, her statement actually contains two separate errors.

First, Kelo only addressed the constitutionality "economic development" takings under the federal Constitution. It decided nothing about their permissibility under state constitutional or statutory law. As I explained in this post, Valsamaki was in fact decided on the basis of Maryland statutory law. Perhaps Rosen meant to say that Kelo, although not binding on state courts interpreting state law, still encourages them to interpret eminent domain power broadly. But even this conjecture is contradicted by the text of the Kelo decision. In his majority opinion for the Court, Justice John Paul Stevens wrote:

We emphasize that nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power. Indeed, many States already impose “public use” requirements that are stricter than the federal baseline. Some of these requirements have been established as a matter of state constitutional law, while others are expressed in state eminent domain statutes that carefully limit the grounds upon which takings may be exercised.

Second, even if Kelo could be interpreted as applying to state law, Valsamaki still wouldn't "run counter" to it. Kelo addressed the question of the purposes of condemnation, holding that takings for the purpose of promoting "economic development" are permissible. By contrast, Valsamaki addressed only the procedural device of "quick take" condemnations. It is perfectly consistent for the Maryland high court to hold (as indeed it has) that takings for "economic development" are permissible, but that they and other takings cannot - in most cases - be implemented through the quick take procedure. Wrong, in my view (because I disagree with the Court's 1975 decision holding that "economic development" condemnations are permissible), but not inconsistent. In addition, Valsamaki, unlike Kelo, turned on statutory issues, not constitutional ones.

Another important error in Rosen's article is her statement that the quick take procedure was "a tactic hardly tested in the legal system." In reality, numerous state and local governments have routinely used quick take condemnations for years, and courts have generally accepted the practice. As Institute for Justice attorney Dana Berliner stated in a quote elsewhere in the article, the decision will mark "a big change for a city [Baltimore] which basically has used quick take for all of its acquisitions." And Baltimore was certainly not alone.

A quick (and by no means exhaustive) Westlaw search reveals dozens of state cases addressing various aspects of "quick take" condemnations, many of them endorsing the permissibility of the procedure. For example, the Rhode Island Supreme Court upheld the constitutionality of its state's "quick take" law just last year in Rhode Island Economic Development Corp. v. Parking Company, 892 A.2d 87 (R.I. 2006)(a decision that also to some extent tightened Rhode Island's constitutional standards limiting the purposes of condemnation).

I realize that nonspecialist reporters working against short deadlines will necessarily make some mistakes. However, it seems to me that these particular errors - which might have been prevented simply by a cursory reading of Kelo and a quick Lexis-Nexis search - could have been avoided without great difficulty. If nonexpert journalists cannot be expected to do even this much, then the Post and other major papers should hire specialist reporters who focus on covering legal issues. Jan Crawford Greenburg is an excellent example of a specialist legal reporter who really knows her stuff.

NOTE: I do not mean to deny the possibility that U.S. Supreme Court decisions interpreting the federal Constitution can sometimes influence state court decisions interpreting similar provisions in state constitutions. That has certainly often happened in the past. In the case of Kelo, however, any such influence is likely to be diminished by Justice Stevens' explicit statement that Kelo's federal holding does not constrain state decisions. In any event, this possible effect of Kelo does nothing to validate Rosen's statement that Valsamaki (which did not even address a constitutional issue) "runs counter" to Kelo.


Our First Citation in Voir Dire?

Or at least it's the first one known to us. From Pachacutec (Huffington Post), blogging last month about the examination of potential jurors in the Libby trial, and quoting "one of the day's last potential jurors[,] a young defense attorney from one of the law firms in town":

He cites first among the blogs he read "Glenn Reynolds, Instapundit" before throwing in Josh Marshall's Talking Points Memo, DailyKos, Eugene Volokh, How Appealing and some other law related blog....


"Want, Take, Have" - Buffy the Vampire Slayer and "Quick Take" Condemnations:

The philosophy behind "quick take" condemnations, a particularly pernicious type of taking discussed in my last post, is well summarized in this classic dialogue from Buffy the Vampire Slayer. Faith, an unscrupulous fellow slayer, tries to persuade Buffy to adopt her amoral philosophy of life:

BUFFY: Okay, we got ten, maybe twelve bad guys and one big demon in desperate need of a Stairmaster.

FAITH: I say we take 'em all, hard and fast and now.

BUFFY: We need a little more firepower than none. Maybe we should go back to the library [where the slayers' weapons are stored].

FAITH: ....(looks around) I just... wish we had . . .(sees Meyer's Sport and Tackle shop) Ah. That is too good.

They break in. Faith finds the Archery counter.

FAITH: Ah. Score.

BUFFY: Think they're insured?

FAITH: Strangely, not my priority. When are ya gonna get this, B? Life for a Slayer is very simple: want... take... have.

BUFFY: Want... take... have. I'm gettin' it.

Because of a seemingly pressing immediate need, Buffy and Faith take the property of others without going through the usual procedures and without getting the consent of the owner. The rationale for "quick take" condemnations is exactly the same. Yes, unlike Buffy and Faith, governments that use quick take pay compensation; but that compensation is generally well below the true value of the property to the owner, and the latter still ends up losing his land, and often loses the structures built on the land even if it turns out that the condemnation was illegal.

The two slayers eventually learned the error of their ways. Not so with most of the state and local governments that use quick take.

UPDATE: Later on in the same episode, Faith argues that vampire slayers have the right to take things they need without paying for them because of all the benefits they provide to society by protecting the world from vampires and demons. This argument is very similar to Justice Brandeis' dissenting opinion in the famous takings case of Pennsylvania Coal v. Mahon, 260 U.S. 393 (1922), where he claimed that the government had the constitutional right to engage in uncompensated regulatory takings in part because it provides property owners with "the advantage of living and doing business in a civilized society."

Perhaps we Property professors should teach takings law by having the class watch BTVS episodes:)!

UPDATE #2: Somewhat surprisingly, several commenters have argued that Buffy and Faith wre actually justified in trying to steal the weapons. Maybe they would have been in if they were in imminent danger of being attacked by the vampires. In fact, however, it was the slayers who were planning to attack the vampires (who didn't know that B and F were there), not vice versa. Private citizens - and even police - have no legal or moral right to steal weapons in order to catch criminals unless they really are in immediate danger from them. A bounty hunter or private detective can't steal your gun and then claim that he was justified because it helped him track down and neutralize a fugitive criminal. Even if there were an immediate danger, the "necessity" defense would only allow the slayers to use the weapons to defend themselves in that particular encounter, not keep them permanently.

Finally, I think it's pretty clear that Faith's "Want, Take, Have" philosophy is not limited to the facts of this particular case. It applies to any situation where the slayers need something quickly - or even just think they do. It was that general principle - which is remarkably reminiscent of the way quick take condemnations are used in Baltimore and elsewhere - that I meant to criticize.


Utah Legislature Passes (Near-)Universal School Choice,

though with a scholarship amount that is likely to pay only for part of the tuition, and an amount that declines dramatically with the parents' income. The governor is apparently expected to sign it; here's a summary of the bill:

Student Eligibility:

All Utah students are eligible if they meet any one of the following criteria: 1) they are in public school, 2) they are entering kindergarten, 3) they have moved into the state in the previous year, or 4) they have family incomes at or below the eligibility level for free and reduced lunch programs. In effect, this means that the only Utah students not eligible are those from high-income families who are already in private schools. Students cannot receive vouchers under both this program and the Carson Smith voucher program for disabled students at the same time; students who qualify for both may choose which voucher to receive.

Voucher Value:

The dollar value of the voucher runs on a sliding scale from $500 per student (for high-income families) to $3,000 (for low-income families). This graphic from the Salt Lake Tribune shows the income scale.


Participating private schools must be located in Utah; must have a CPA review its finances upon entering the program and every four years thereafter; must comply with health, safety, and antidiscrimination laws; must administer a norm-referenced test and make results available to parents; must make aggregate test results for participants publicly available (consistent with student confidentiality); must employ teachers with college degrees or equivalent specialized training; and must have at least 40 students and not be located in a residence or state treatment facility.

Public School Funds:

When a student uses a voucher, that student’s public school district will continue to be funded as though that student were still attending school in that district until five years after the student left or when the student would have graduated, whichever comes first. During that time, a portion of the funding designated for that student will be returned to the state’s Uniform School Fund, and the remainder will be retained by the school district.

I generally — though tentatively, given that my view is based mostly on general principles rather than serious review of the research — support school choice, so I think this is a good plan, even if less ambitious than I would have liked. But more importantly it should prove an important experiment that may give some guidance for future plans (though I recognize that the results of such experiments are often hard to measure).

Related Posts (on one page):

  1. Education Week Online Survey on Utah School Choice Plan:
  2. Utah Legislature Passes (Near-)Universal School Choice,

Lesson #1 About the Law -- What You Did Was Against It;

Title #2 — "Ayn Rand Would Not Have Approved": reports:

An aspiring attorney is in trouble with the law, accused of trying to cheat his way into a better law school.

Kevin Siangchin, 30, of North Plainfield, N.J., was arrested Thursday and charged with trying to bribe an employee of the Law School Admissions Council in Newtown Township to sell him an advance copy of the Law School Admission Test for $5,000.

Siangchin allegedly took the standardized test, which is required to get into law school, twice before and wanted to take it again to improve his score....

Siangchin, an engineer, used the name John Galt on the e-mail [to an LSAC employee whom he was trying to persuade to leak him a copy of the test]. John Galt is a character in the Ayn Rand novel “Atlas Shrugged” ....

According to police, Siangchin told detectives [who eventually arrested him] that he knew he was doing something wrong but that he “really wanted a good score.” ...

After his arrest, Siangchin asked detectives for his money back, police reports said....

The story also reports that "Siangchin is charged with potential to change the world," but I'm pretty sure that this is because a block of text was inadvertently repeated. (By the time you read this, the glitch might have been fixed.)

Thanks to Sebastian (Snowflakes In Hell) for the pointer.


Maryland Supreme Court limits "Quick Take" Condemnations:

In Mayor of Baltimore v. Valsamaki an important decision issued yesterday, the Maryland Court of Appeals (that state's supreme court), ruled that cities can only condemn property through "quick take" procedures if they prove that there is an "immediate necessity" for doing so.

As Tim Sandefur of the Pacific Legal Foundation explains in his post on the case, "quick take" procedures essentially enable the government to take your property first and ask questions later:

"Quick take" is a procedure that allows government to take immediate possession of property without going through the usual procedure in an eminent domain case. They take your property and then later deal with whether they had the right to do so. As PLF argued [in an amicus brief]—and the court agreed—this unfairly means that a property owner could very well win his case only to find that his property has been destroyed in the meantime! This, the court recognized, is terribly unfair."

The decision is important because "quick take" condemnations often enable government to get away with legally dubious condemnations. Once whatever buildings originally existed on the property are destroyed, the owner has little incentive to continue to pay the costs of litigating the case instead of settling for the "fair market value" compensation provided by the government.

Valsamaki is based on state statutory law rather than the Maryland state Constitution, so it can potentially be reversed by the state legislature. The relevant law (as quoted in the decision) permits quick take condemnations only if the government has filed "a Petition under oath stating that it is necessary for the City to have immediate possession of, or immediate title to and possession of, said property, andthe reasons therefore," and "[i]f it appears from a Petition for Immediate Possession, with or without supporting affidavits or sworn testimony, that the public interest requires the City to have immediate possession of said property." Md. Code Public Local Laws of Baltimore City, Section 21-16. As the Court's opinion shows this language, combined with standard canons of interpretation provides strong justification for placing the burden of proof on the government rather than the property owner.

This is a strictly limited ruling. In addition to being based on statutory rather than constitutional law, it does not constrain the purposes for which government can condemn property, but merely requires it to prove that there is an "immediate necessity" for circumventing the usual procedural rules for takings (which include allowing the owner to challenge in court the government's claim that the taking is for a legitimate "public purpose" as required by the state constitution).

Maryland courts define "public purpose" extremely broadly, having upheld the condemnation of property for "economic development" purposes in a 1975 decision, Prince George’s County v. Collington Crossroads, 339 A.2d 278, 287 (Md. 1975). This case is, of course, Maryland's state constitutional equivalent of Kelo v. City of New London, which held that takings for economic development are permissible under the federal Constitution. As I have explained in numerous articles (e.g. - here), such condemnations provide tremendous scope for abuse, and rarely if ever succeed in fostering additional development that is worth its costs and is greater than what would have occurred through ordinary market transactions. Since Kelo, Maryland is one of fourteen states that have failed to enact any reform legislation at all, despite (or perhaps because of) the fact that the state is notorious for its dubious condemnations. In a forthcoming paper that I hope to post soon on SSRN, I include tentative data suggesting that Maryland makes greater use of condemnations that transfer property from one private owner to another then all but three or four other states. There is, therefore, still much work to be done to protect property rights in Maryland. But Valsamaki is a step in the right direction, though it remains to be seen whether the Maryland legislature will allow the decision to stand.


Where Are All the Nigels?

So here's one thing that has long puzzled me — the U.S. was founded mainly by English immigrants, which is why we speak English and use many of the same names that are used in England. But some names that seem not uncommon in England are very rare in the U.S. Nigel is the one that I notice whenever I hear it (almost invariably in reference to someone from England), but Sebastian, Clive, and Simon also qualify, and I'm sure others do as well. Simon is also a pretty common name in Russia, and I'd guess in other places as well; but not in the U.S., where its frequency (1990 data) is only 0.026%, roughly at the level of Roosevelt and Forrest.

What happened? Why did those names stop at the water? Am I exaggerating their popularity in England? Were they unpopular even in England at the time the main migrations to the U.S. took place? Is there something just plain un-American about them?

Bonus question: Sergey is a common name in Russian, and I believe Sergio is in Spanish and Serge in French; all stem from a Latin gens name. Why isn't there a not uncommon English equivalent, much as Claude, Julius, Anthony, and the like are English cognates of other Latin gens names?

UPDATE: Thanks to commenter Cornellian for pointing out that Clive, which I had originally omitted, fits the same pattern.


The Senatorial Inquisition of AEI:

Spurred by the allegations that the American Enterprise Institute sought to "buy scientists" to challenge the IPCC report, four Democratic Senators wrote to AEI President Chris DeMuth to challenge AEI's actions and demand an apology. In their letter, Senators Bernie Sanders, Patrick Leahy, Dianne Feinstein, and John Kerry, alleged that if the published reports that AEI sought to "bribe" scientists were accurate, "it would be both disappointing and inexcusable." The Senators further proclaimed that they "would not stand silently by while organizations attempt to undermine science through offers of significant amounts of money." The letter concludes:

We hope that you will respond to this letter by telling us that the news reports that you offered to pay scientists up to $10,000 are incorrect. If not, we trust that AEI will publicly apologize for this conduct and demonstrate its sincerity by properly disciplining those responsible.

In the meantime, it is clear that the Senators were not reserving judgement about AEI's alleged conduct. In a press release about the letter, Senator Sanders declared:

It's outrageous that a right-wing think tank with ties to Big Oil and the Bush Administration is trying to twist scientific findings for their political purposes on the pressing issue of climate change. . . . The IPCC report confirms the urgency of the problem and adds to the scientific consensus that global warming is happening now and is human-caused. Is there no limit to the lengths that some corporate-funded groups will go to protect their donors' short-term profits? Is the fate of the entire planet not important enough for them to put the common interest above their narrow self-interest? The truth is that this scandalous behavior on the part of AEI is just the latest example of how big money interests distort and undermine honest debate on the important issues facing our country in so many areas.

AEI President Chris DeMuth did not take this lying down. His strongly worded response (complete with attachments) is posted on AEI's website here. Writes DeMuth:

I am saddened that you would not only believe the reports but would seek to give them credence by repeating them in ways that are even more reckless than the original article published last Friday by the Guardian.

The accusations of the Guardian article, and of your letter, are false. I sent around a memorandum to my AEI colleagues the day the article was published, attaching the letters we had sent to various scientists and policy experts knowledgeable about climate change issues . . . . Relevant portions of these documents were in circulation on the Internet last weekend and in the press earlier this week; they were readily available to anyone on your staffs who had wished to look into the matter or to call me or anyone else at AEI about it. . . .

The accusations of your letter, while couched in the form of questions and insinuations, are as I said harshly worded, and are extremely serious coming from four members of the United States Senate. And they are leveled at a long-established research institution, familiar to all of you, which takes the integrity and independence of its research equally seriously . . . . So it is not a rhetorical question to ask whether you stand by your letter and think it was well-considered.

Finally, I must take exception to your pointed opening reference to “the depths to which some would sink to undermine the scientific consensus that human activity is the major source of global climate change.” I believe you have overstated the scientific consensus on the subject, but, even if you have not, I find it worrisome that four powerful political leaders would object to scientific dissent per se. Although you later give a formulaic nod to the right of dissent, you object to being paid a “significant” sum for dissenting research, which rather limits your conception of permissible dissent.

Consensus--and freedom to challenge consensus--are equally vital to the progress of science. History, including recent history, is replete with examples of expert consensus that turned out in the fullness of time to be mistaken. When I look over AEI’s publications and conferences on climate change issues, I can indeed find arguments against (as well as for) aspects of IPCC modeling and other matters where some have urged that public debate should cease. I want you to know that AEI will continue to sponsor research and host speakers on climate change issues whose views we regard as reasonable and worthy of attention--never seeking to undermine any consensus for its own sake, but also never paying heed to whether particular views are in or out of official favor. AEI scholars have stood in opposition to established orthodoxy many times; we cherish our intellectual freedom and are proud of the uses we have made of that freedom; we will not be silenced by threats to that freedom.

The Wall Street Journal editorializes on the exchange here.


Adler v. Mooney -- One Last Time:

Continuing the discussion over the alleged GOP "War on Science," Chris Mooney offers a surreply to my reply here. As I think we've both said most of what we have to say, I will only make a three quick, final points.

First, if Mooney's ultimate claim about the Bush Administration and embryonic stem cells is nothing more than Administration officials spun the science in their talking poitns to support the decision, then I don't see the big deal. Indeed, it reduces the difference between Bush abuses and those of others on this issue (e.g. John Edwards) to be little more than who was in power at the time. And on this count, it's very difficult to argue the Clinton Adminsitration was not just as guilty (as were prior Administrations). Carol Browner, for instance, used to exaggerate scientific claims related to the asthma-air pollution connection (and other things) all the time as EPA Administrator. I (and others who have reviewed the book) took Mooney to be making a stronger claim about the nature of the Bush Administration's actions in his book. If I was mistaken, I think the example loses much of its force.

Second, on the DQA, I agree that it creates opportunities for industry groups and others to challenge the scientific basis for government regulations. My point is that More precautionary alternatives make it easier for activist groups (and industry, which often seeks regulation as an anti-competitive measure), to spur government regulation when a sound scientific predicate is lacking. The ESA is a good example here. I believe the Act's use of the "best available" science is the right standard, but it certainly allows for the listing of species based upon preliminary evidence that may be subsequently shown to be erroneous.

Third, on whether precautionary principle adovcates seek to don the mantle of science, the first blurb promoting the book I cited proclaims the principle is "a rational, practical, fair-minded, powerful, science-based approach for making the world a safer, more livable place." The quote is from ecologist Sandra Steingraber, who has her own book advocating the precuationary principle. Other examples in the literature are equally easy to come by.


DC Circuit Upholds Injunction in Iraqi Transfer Case: Today the D.C. Circuit handed down a divided opinion in Omar v. Harvey, a case involving a planned transfer of a detainee in Iraq from U.S. forces to Iraqi officials. The case rests on some hypertechnical questions, but we may be hearing more about it in the future: it not only touches on the role of the courts in wartime, but it also features a dissent by Judge Janice Rogers Brown that is sure to draw attention if another vacancy arises at the Supreme Court.

  Shawqi Ahmad Omar was captured by U.S. forces during a raid on associates of Abu Musab al-Zarqawi. The two sides to the litigation present different stores of what Omar was doing when captured. The government believes Omar was an insurgent who is part of Zarqawi’s network, and states that weapons and IED-making materials were found in his Baghdad home. Omar contends this is wrong, and that he came to Iraq after the invasion simply to seek work and was about to leave the country before he was arrested by U.S. forces. Both sides seem to agree that Omar has dual American/Jordanian citizenship; he received U.S. citizenship after marrying a U.S. citizen, the former Sandra Kay Sulzle.

  Omar's family brought a habeas corpus action in the U.S. District Court asking the Court to order Omar's release from detention, or in the alternative to order Omar to be brought before a U.S. Court and not transfered out of U.S. custody to try to evade habeas corpus. Meanwhile, a military review panel in Iraq concluded that Omar was an enemy combatant, and the miltary decided to transfer him to the Central Criminal Court of Iraq, a Baghdad-based Iraqi criminal court. Omar's family sought a TRO and later a preliminary injunction ordering the military not to transfer Omar out of U.S. custody while the case was before the U.S. Courts. The district court agreed, entering a preliminary injunction stating that the government "shall not remove [Omar] from United States or MNF-I custody, or take any other action inconsistent with this court’s memorandum opinion."

  Today's decision is the appeal from the injunction and addressed two issues: first, was the injunction procedurally improper because detention of enemy combatants in wartime is a political question, and second, was the district court's preliminary injunction an abuse of discretion on the merits? All three Judges on the panel — Tatel, Edwards, and Brown — agreed that the legality of the detention was not a political question. However, they divided on whether the injunction was an abuse of discretion on the merits. Much of the decision is hypertechnical, for example, on what just what the District Court meant when it ordered that Omar could not be "removed." Did that mean that he could not be transfered out of U.S. custody, or did it actually mean that the Court was ordering that Omar could not be transfered or released?. Judge Tatel's majority opinion concludes that it meant only the former, and that the injunction is proper.

  Judge Brown dissented on the propriety of the injunction. Given that Brown is often mentioned as a future pick if the Bush Administration has another Supreme Court vacancy to fill, and that the President presumably is very interested in Judge Brown's views of Executive power — and that Judge Brown knows all of this — her dissent is particularly worth reading. As far as I know, this is the first opinion on a hot-button question that she has written as a federal Judge. Here are some excerpts that you can be sure will be read closely by the White House if another vacancy occurs:
  In addressing the propriety of this injunction, I note first that we heard arguments in this case on the portentous date of September 11, 2006, precisely five years after the terrorist attacks that so fundamentally altered this country’s attitude toward security. No longer could we sit back and consider ourselves safe from foreign enemies so long as no other nation wished us harm. The Founders envisioned wars in the paradigm of the time, with official declarations from heads of states announcing the beginning and end of hostilities. In today’s world, by contrast, global alliances of non-state actors can visit death and destruction on the American homeland without warning, on a scale equal to that seen in conventional wars. In such an environment, it would be dangerous folly to deny what this case involves: the capture of an alleged enemy combatant by American military personnel operating in a war zone.
  . . . .
  The majority’s logic proceeds as follows: (1) An injunction barring transfer is permissible. (2) Unrestricted intergovernmental communication could convert release into transfer. (3) Therefore, federal courts must have the power to limit intergovernmental communication, in order to give effect to the main injunction against transfer. Summarizing its position, the majority declares: "The United States may certainly share information with other sovereigns . . . , but it may not do so in a way that converts Omar’s 'release' into a transfer that violates a court order." Id. This is a striking conclusion. The majority in effect holds that, in the proper circumstance, a single unelected district court judge can enjoin the United States military from sharing information with an allied foreign sovereign in a war zone and may do so with the deliberate purpose of foiling the efforts of the foreign sovereign to make an arrest on its own soil, in effect secreting a fugitive to prevent his capture. The trespass on Executive authority could hardly be clearer.
  . . . .
  [FN] I do not make light of Omar’s assertion he will receive severe treatment as a result of Iraqi detention. To recognize that our courts lack the authority to dictate the actions of a foreign sovereign is not to sanction human rights violations. As part of a tripartite system of government, we need not assume the political branches are oblivious to these concerns. Indeed, the other branches possess significant diplomatic tools and leverage the judiciary lacks.
  Thanks to How Appealing for the link.

Dabney Friedrich To Be Nominated to District Court in DC: Via Confirm Them, I recently learned the terrific news that Dabney Friedrich is expected to be nominated to a seat on the United States District Court for the District of Columbia. I worked with Dabney when she was an Assistant U.S. Attorney in the Eastern District of Virginia, and she was top-notch; fair, thoughtful, and extremely sharp. She will make an outstanding judge, and I'm delighted that she is expected to be nominated.

Thursday, February 8, 2007

The New Anti-Blasphemy Laws:

Debra Saunders, an S.F. Chronicle columnist, writes:

This story starts with an "anti-terrorism rally" held last October on campus by the College Republicans. To emphasize their point, students stomped on Hezbollah and Hamas flags. According to the college paper, the Golden Gate (X)Press, members of Students Against War and the International Socialist Organization showed up to call the Republicans "racists," while the president of the General Union of Palestinian Students accused the Repubs of spreading false information about Muslims.

In November, the Associated Students board passed a unanimous resolution, which the (X)Press reported, denounced the California Republicans for "hateful religious intolerance" and criticized those who "pre-meditated the stomping of the flags knowing it would offend some people and possibly incite violence."

Now you know that there are students who are opposed to desecrating flags on campus — that is, if the flags represent terrorist organizations....

As to the disciplinary action contemplated by SFSU, and FIRE's reaction to it:
The university's response [to FIRE]? Spokesperson Ellen Griffin told me, "The university stands behind this process."

And: "I don't believe the complaint is about the desecration of the flag. I believe that the complaint is the desecration of Allah." ...

Sounds to me like SFSU is acknowledging that under SFSU rules, desecrating Allah — or, to be precise, desecrating religious symbols — is indeed prohibited. Everything old (here, blasphemy bans) is new again.


Christmas in February!

In the mail -- a review copy of John Scalzi's The Last Colony, his sequel to Old Man's War and The Ghost Brigades (both of which I liked very much). Boy oh boy oh boy.


Expressive Conduct:

I often hear people say that the First Amendment doesn't protect flagburning, because it's conduct rather than speech. My view is that burning a flag, like waving a flag, is a conventionally understood form of communication, and both should thus be treated as "speech" no less than, say, handwritten materials (which are literally neither "speech" nor "press"), elephant or donkey pins worn around campaign season, paintings that have no words, and the like.

Of course such conduct may often be restricted because it causes certain harms through its noncommunicative component -- an ordinance prohibiting fires in a brush zone could be used against flagburning. But this just reflects the analogy to literal "speech"; an ordinance prohibiting loud noises at night in a residential area could be used against the use of loudspeakers at 11 p.m. (even when the loudspeakers are used in the process of literal "speech"). When, however, either the loudspeaker use or the flag waving or the flag burning is banned because of its communicative effects, for instance because they convey offensive messages or supposedly diminish the emotional force of certain symbols, that is a speech restriction that should be evaluated under the First Amendment.

But for those who disagree, let me ask: SFSU is investigating (with the threat of administrative punishment) the College Republicans for, among other things, supposedly being "incivil" and creating a "hostile environment" by stepping on butcher-paper representations of Hamas and Hezbollah flags (which also contained the name of Allah in Arabic script). If you think that there's no First Amendment problem with banning flagburning, on the theory that it's not speech, I take it that you think there's no First Amendment problems with punishing (even criminalizing) the Republicans' actions, right?

Likewise, if SFSU tried to punish a student for waving a Confederate flag (assume no special circumstances such as the flag's being stolen, or the waving been intended and understood as a personal insult and invitation to fight addressed to one particular person), I take it you'd say "Sure, no First Amendment problem," right? Or is there a distinction here I'm missing?


State University Considering Discipline of Students for Walking on the Word "Allah":

The calls for suppression of speech that offends religion (see here and here) don't seem to be limited to purely academic arguments. Here's an e-mail from the San Francisco State University to the College Republicans:

I am writing to you as President of the College Republicans to follow-up with you regarding the letter of complaint that was received by the Office of Student Programs and Leadership Development on Thursday, October 26, 2006, notifying the office of alleged violations of University policy. The complaint is in regards to alleged actions at a College Republican sponsored event, "Anti Terrorism Rally," that occurred in Malcolm X Plaza from 12-2 PM on October 17, 2006. The complaint describes alleged actions of walking on a banner with the word "Allah" written in Arabic script. I am writing to inform you that the Office of Student Programs and Leadership Development has concluded its investigation into the events that occurred on October, 17, 2006 in Malcolm X Plaza. The investigation was put in place to review the following alleged violations of University Policy as were addressed in the written complaint:
1. Allegations of attempts to incite violence and create a hostile environment
2. Allegations of actions of incivility (Standards for Student Conduct Title V, 41301)

Resources presented by interviewees during interview process for review include: 1. Standards for Student Conduct Title V, 41301
2. CUSP II Strategic Plan
3. California penal code

The Investigative report has been forwarded to the Student Organization Hearing Panel for review. The chair of SOHP ... is your contact person should you have specific questions regarding this review.... (I have cc her on this message). She will also be in contact with you regarding any questions and specifics regarding the review. You may continue to contact me regarding any general questions regarding the SOHP process. You can find the process online at For a copy of the Code of Conduct, please see I have also attached a word copy of these documents, to this email for your convenience. To review CUSP II, please see

Please keep in mind Carl that you as a student organization have the right to have a representative at any stage of possible disciplinary proceedings. However, attorneys are not permitted as representatives in this process.

... Director
Office of Student Programs and Leadership Development
Student Services Building, Suite 105
San Francisco State University

FIRE (The Foundation for Individual Rights in Education) has more:

The College Republicans “offense” took place on October 17, 2006, when they held an anti-terrorism protest in SFSU’s Malcolm X Plaza. During the protest, several members of the group stepped on butcher paper they had painted to resemble the flags of Hamas and Hezbollah. Unbeknownst to the protestors, the flags they had copied contain the word “Allah” written in Arabic script.
As FIRE points out, burning the American flag, and stepping on it, "is without question a constitutionally protected act of political protest"; stepping on flags of Hamas and Hezbollah, even when they contain religious symbols on them — or for that matter deliberately stepping on religious symbols — is equally protected.

Note also that the university is not simply trying to prevent violence here (which it in any event should do by preventing and punishing the violent responses to offensive student speech, not by punishing the speech itself, at least unless it fits within the narrow category of individually addressed insulting "fighting words," which doesn't apply here). The university is expressly investigating (with the threat of formal sanctions behind the investigation) the possibility that the students' speech is ideologically offensive — creates a "hostile environment" and is "incivil[]." A clear First Amendment violation, it seems to me.

UPDATE: Here's a story about the rally in the campus newspaper.


Tenure Denial at MIT Leads to Hunger Strike:

Associate Professor James Sherley is the only African-American faculty member ever appointed in the Biological Engineering Department at the Massachusetts Institute of Technology. Much of his research focuses on adult stem cells. Last year he received a $2.5 million Pioneer Award from the National Institutes of Health for his work on the production of adult stem cells. More controversially, he opposes research on embryonic stem cells insofar as this requires the destruction of human emryos.

In 2005, MIT denied Sherley's application for tenure. Sherley appealed the result without success, and is now embarking on a hunger strike to protest the decision. His primary claim is not that the decision was political, but that it was racially biased and tainted by a conflict of interest among those involved in the tenure process.

A conservative activist group has rallied to Sherley's defense. At the same time, a number of MIT professors from other departments, including the anything-but-conservative Noam Chomsky, have signed a letters detailing alleged irregularities and other problems with the review of Sherley's tenure application. If the allegations are true, some of the irregularities and conflicts of interest are quite troubling. The allegations also suggest that MIT's efforts to recruit African-American faculty have been unserious and tokenistic. I should stress, however, that I do not know whether the allegations are true and whether there is more to the story. Those involved in the tenure review issued this statement claiming Sherley was treated fairly and denying race played any role in the decision. From the news accoutns I've seen, it seems that MIT is standing firm.


Chilling Climate Dissent:

Roger Pielke Jr. suggests comparing allegations against the Bush Administration made by James Hansen and other cliamte scientists who work in the Bush Administration with moves by state governors to oust state climatologists for expressing heterodox views on climate change.

UPDATE: The above link discusses the controversy in Orgeon. For information on the brewing controversy in Delaware, see here and here.


Many 1967-72 Spitting Incidents Are Documented in the Press.

Hundreds of Vietnam-era veterans have publicly claimed in recent decades that they were spat on by citizens or anti-war protesters because of their military status, either before they went to Vietnam, when they were on leave, or after their returned from overseas. Yet several journalists and at least one scholar, sociologist Jerry Lembcke of Holy Cross, think that such things never happened, that they are an “urban legend.” Lembcke claims: “Stories of spat-upon Vietnam veterans are bogus.”

In a 1998 NYU Press book, The Spitting Image; a 1999 scholarly conference paper of the same name; and two op-eds, Lembcke spins an elaborate tale to support his view. In this post I’ll take up just a few of Lembcke’s arguments (I’ll have much more on spitting over the next week):

[1] “For a book I wrote in 1998 I looked back to the time when the spit was supposedly flying, the late 1960s and early 1970s. I found nothing. No news reports or even claims that someone was being spat on.

[2] The stories started appearing about 1980.

[3] Stories about arriving back from Vietnam into San Francisco and Los Angeles “are implausible," and one of the storytellers lacks "credulity." According to Lembcke, “no returning soldiers landed at San Francisco Airport,” and “GIs landed at military airbases, not civilian airports, and protesters could not have gotten onto the bases and anywhere near deplaning troops.”

[4] “Many tellers of the spitting tales identify the culprits as girls, a curious quality to the stories that gives away their gendered subtext.”

“One clue is that many of the stories have it that it was women or young girls who were the spitters. Students of gender behavior are usually quick to point out that girls do not spit, at least not as a form of communication. That being the case, it seems all the more significant that defeated male warriors would make a point of giving the spitters a gender. One has to consider that the loss of war equates in the culture with a loss of manhood. Coupled with the tendency to alibi for defeat on the battle field, it is understandable that men might have fantasies involving hostility from women.”

The element of spit in the coming-home stories of veterans who feel betrayed reveals a binary, man-nature dichotomy that lies at the heart of our understandings of human existence. . . . Subconsciously, the individual feels a primal connection with the warmth and dampness of that in utero existence, and perhaps even desires to return to it, while consciously recognizing that life itself depends upon successful separation from the safety and comfort of that watery world. . . . The idiom of wetness in myth is also gendered in ways that help us understand why the stories of spat-upon veterans frequently tell of women or girls doing the spitting.”

I have been looking into these and other claims by Lembcke and they appear to hold about as much water as do his notions about a primal (wet) unconscious.

It is surprising that, without his having done an exhaustive review of published sources in the late 1960s and early 1970s, Lembcke would manufacture such a speculative argument, essentially treating hundreds of eyewitnesses as victims of “false memory” (at best).



Contrary to Lembcke’s claims, I quite easily found many accounts published in the 1967-1972 period claiming spitting on servicemen.

UPDATE: I just saw that Jerry Lembcke was kind enough to respond here. Next week I should have time to answer (if an answer is needed), though on a quick read, there appears to be nothing earth-shattering in his response.


Wednesday, February 7, 2007

Is Resistance to International Law Futile?

Over at Opinio Juris, prominent international law scholar Peter Spiro criticizes Eugene Volokh's and (by implication) my claim that U.S. should try to block the overriding of domestic law by international law norms. He argues that such resistance is futile, and that we should instead work to improve the substantive content of international law norms themselves:

I think this is a lost cause over the long run, which is to say nothing about the merits of hate-speech bans or any other particular international norm. There are too many ways in which international law now insinuates itself to mount this sort of centralized defense. For instance, if the states start to pick up on an international norm, it will eventually be indigenized, making its way upwards to the organs of the national government (think what's happening now with Kyoto). Ditto for non-state actors (think universities and hate-speech codes). I think the Supreme Court is likely to desist from the open use of IL sources for the moment, in the face of the push-back after Roper, but that won't stop justices from incorporating IL norms under cover. Over the long run resistance will be futile.

Which all might be by way of a call to arms of a different sort: to try to influence international norms at the international level, rather than wasting time trying to shut them at the border. The US is obviously a powerful actor in the making of international law. It won't win every battle (and this particular one may be a loss) but over the long run that will present the better strategy for protecting (and projecting) our conception of constitutional liberties.

I think that Spiro's conclusion is, at the very least, overdrawn. At most, he shows that we cannot stop all overriding of domestic law by international law. That doesn't mean that we can't stop at least some of it, perhaps even succeed in the vast majority of cases. Over the last several decades, the US has successfully resisted the domestic imposition of numerous international law norms, including "hate speech" laws, the 1977 Protocols to the Geneva Convention [which I originally mislabeled as the "Third Protocol"], the New World Information Order (mentioned in my last post), the Law of the Sea Treaty (which was eventually revamped as a result of US objections and the Reagan Administration's refusal to sign and follow the original version) and others.

Furthermore, Spiro's examples conflate two very different modes of incorporation of international law into domestic law: what John McGinnis and I call "raw international law" and the domestic incorporation of international law through ordinary domestic legislative processes. Raw international law consists of international law norms (e.g. - customary international law) that we have not ratified through congressional or state legislation or through the treaty ratification process. It is this kind of international law that McGinnis and I argue is likely to be systematically inferior to domestic law. By contrast, international law that has passed through the domestic lawmaking process is likely to be no worse, on average, than other domestic legislation. It is only the domestic incorporation of raw international law that should be categorically rejected. There is as yet no reason to believe that we can't resist successfully, and indeed we have done so on numerous past occasions.

Finally, I agree with Spiro that we should use our leverage to improve the substance of international law norms. Indeed, in my last post I suggested one possible strategy for doing so: denying funding to the UN Human Rights Council and other international organizations that promote international law norms that violate civil liberties.

However, the two strategies are not mutually exclusive. The United States should work to improve the content of international law, while simultaneously doing all we can to prevent the overriding of domestic law by harmful international law norms that may be enacted by others over our opposition. The two strategies may even be mutually reinforcing: international organizations and foreign powers may be less likely to try to create harmful new international law norms if they know that the US will refuse to follow them. Our chances of succeeding in both endeavors will, of course, increase if other liberal democracies adopt similar policies.

UPDATE: Peter Spiro briefly replies to this post here. He writes:

I want sometime soon to set out more detailed thoughts on the piece he's co-authored with John McGuinness on the incorporation of international law. For the moment, I'd just say that unlike Ilya and John I would take account of the many non-formal (or at least non-federal) channels through which IL is making itself felt in the US. Just because it's not working its way through the federal government doesn't make it illegitimate. Is there a process problem with California adopting Kyoto's standards? With a university adopting international standards on hate speech (again, leaving the merits aside)? My point is that this is where the action is. Formal incorporation (political or judicial) comes in the way of a mopping-up exercise or as an afterthought, after the real battles have been fought in the trenches.

Just to clarify, John McGinnis and I have no process objection to state legislatures incorporating international law norms into statutes, except in cases where doing so violates the US Constitution; such legislation is, on average, likely to be no worse than other state legislation. Our critique is directed at the claim that raw international law should override domestic law even in cases where no domestic legislation has been passed incorporating it and (as Professor Spiro has argued) even where the international law in question violates the US Constitution. Also, I do not agree that "formal incorporation" is just a "mopping-up exercise or . . . an afterthought." Passing legislation is costly and difficult and requires the support of key political actors and (often) of the general public. Ratifying a treaty or passing a constitutional amendment requires even broader support. Raw international law, by contrast, is often created with the support of only a coalition of relatively unaccountable international elites and authoritarian rulers of foreign states.


Juan Cole Again:

Just about every time I visit Cole's blog, which admittedly isn't very often, I find something that I just can't believe someone of his academic and public stature could write. Here's the latest, accusing Doug Feith of disloyalty to the United States: "Doug Feith betrayed the United States by getting up a false case for war with Iraq. He made it clear in 1996 that his motivations for an Iraq War had to do primarily with Israel..." Cole links to a document Feith signed in 1996, suggesting strategy for Israel (really, trying to get the Netanyahu government aboard the American neoconservative agenda). As noted, according to Cole Feith made it clear in that document that he wanted the U.S. to go to war with Iraq to benefit Israel. But here is what the document actually says, in total, about Iraq:

Israel can shape its strategic environment, in cooperation with Turkey and Jordan, by weakening, containing, and even rolling back Syria. This effort can focus on removing Saddam Hussein from power in Iraq — an important Israeli strategic objective in its own right — as a means of foiling Syria’s regional ambitions. Jordan has challenged Syria's regional ambitions recently by suggesting the restoration of the Hashemites in Iraq. This has triggered a Jordanian-Syrian rivalry to which Asad has responded by stepping up efforts to destabilize the Hashemite Kingdom, including using infiltrations. Syria recently signaled that it and Iran might prefer a weak, but barely surviving Saddam, if only to undermine and humiliate Jordan in its efforts to remove Saddam.

But Syria enters this conflict with potential weaknesses: Damascus is too preoccupied with dealing with the threatened new regional equation to permit distractions of the Lebanese flank. And Damascus fears that the 'natural axis' with Israel on one side, central Iraq and Turkey on the other, and Jordan, in the center would squeeze and detach Syria from the Saudi Peninsula. For Syria, this could be the prelude to a redrawing of the map of the Middle East which would threaten Syria's territorial integrity.

Since Iraq's future could affect the strategic balance in the Middle East profoundly, it would be understandable that Israel has an interest in supporting the Hashemites in their efforts to redefine Iraq, including such measures as: visiting Jordan as the first official state visit, even before a visit to the United States, of the new Netanyahu government; supporting King Hussein by providing him with some tangible security measures to protect his regime against Syrian subversion; encouraging — through influence in the U.S. business community — investment in Jordan to structurally shift Jordan’s economy away from dependence on Iraq; and diverting Syria's attention by using Lebanese opposition elements to destabilize Syrian control of Lebanon.

Most important, it is understandable that Israel has an interest supporting diplomatically, militarily and operationally Turkey’s and Jordan’s actions against Syria, such as securing tribal alliances with Arab tribes that cross into Syrian territory and are hostile to the Syrian ruling elite.

King Hussein may have ideas for Israel in bringing its Lebanon problem under control. The predominantly Shia population of southern Lebanon has been tied for centuries to the Shia leadership in Najf, Iraq rather than Iran. Were the Hashemites to control Iraq, they could use their influence over Najf to help Israel wean the south Lebanese Shia away from Hizballah, Iran, and Syria. Shia retain strong ties to the Hashemites: the Shia venerate foremost the Prophet’s family, the direct descendants of which — and in whose veins the blood of the Prophet flows — is King Hussein.

Note that there is nothing in here about an "Iraq War" (war is not the only way to help remove someone from power; indeed, Israeli commandoes had trained for a mission to assassinate Saddam in the early 1990s, that was later called off), much less an American invasion, much less any indication that Feith wanted an American invasion "primarily" to help Israel. At best, we can say that Feith argued as of 1996 it would have served Israel's interests if Saddam was removed from power, and replaced by a Hashemite monarch (which was almost certainly correct). From this, Cole makes the enormous leap, unsupported by the document he cites, to not only Feith's support of the Iraq War being "primarily" about Israel, but that Feith actually said this. Of course, this isn't the first time Cole has made scurrilous accusations against Feith.


Interesting Demographic Study:

Demographers have had a lot of trouble trying to accurately estimate the Jewish population of the United States. Researchers at Brandeis University have come out with a new study, which has somewhat higher estimates than previous studies. That in itself is likely not of interest to many readers, but the study nevertheless makes for fascinating reading for anyone interested in how demographers studying a population group not included in Census Bureau statistics go about their business, and the pitfalls they face. The fact that one important (NJPS) study claimed that 29% of American Jewish children attend day schools should have raised massive red flags, as that figure is obviously grossly exaggerated if one accepts the broad definition of "Jewish" used by demographers.

One interesting fact I gleaned from the study is that despite the prominence of the ba'al teshuva ("repentance") movement, the "missionizing" of Chabad, and the fact that some Orthodox day schools serve many non-Orthodox children (like me, who spent nine of my twelve pre-college years in Orthodox schools), over 80% of Orthodox Jews were raised Orthodox.


"100% Preventable by Behavioral Change":

Megan McArdle (Asymmetrical Information) posts about HPV immunization — she thinks it's good even if it's mandatory (which the Texas version apparently isn't) — and draws, among others, this comment:

HPV, like HIV and unlike Polio, Tetanus, Pertussis, etc is 100% preventable by behavioral change.

Let me stress it again: It is 100% preventable (setting aside rape and congenital transmission) by behavioral change — lifelong sexual abstinence. It is not preventable by only having sex within marriage, since your husband or husbands (even the most religious don't mind remarriage after a spouse's death) might have been infected with HPV when you married them, or might cheat on you after marriage, get infected, and reinfect you.

Having fewer sexual partners will decrease your chances of getting infected, but they won't decrease them by 100%, and the chances will remain pretty substantial, I'd wager, given that "At least 50% of sexually active people will get HPV at some time in their lives." Having one sexual partner and making sure that he was a virgin at the time decreases the chances further (if he doesn't cheat on you), but, you know, sometimes the person you fall in love with — even the person you think God may have meant for you, if you think about things that way — happens to have done some wrong things in the past. If "behavioral change" means "dumping the one person you've fallen in love with and want to spend the rest of your life with because they've had sex with some other people" (or even "because they fall within the 50% of the public that has been infected with HPV"), then it might be good to make that clear (though again even that won't give you 100% immunity unless you are 100% confident that your spouse won't cheat on you).

And of course on top of all this, we know that teenagers, even well-brought-up teenagers, aren't always the best at behavioral change. However moral you might be, and however moral you are bringing up your daughter, are you 100% sure that she's going to take that supposed 100% prevention approach? If your religion teaches that sin, and giving in to temptation, is part of human nature — and if you think our society has turned into a moral cesspool that constantly bombards young people with praise of sexual immorality — then why do you think that even well-intentioned, well-taught teenagers are going to be able to completely resist temptation and sin?

Look, if we're talking assumption of risk and "you could have prevented it yourself" in the context of skydiving or bungee-jumping, I can understand that. But if "100% preventable" means living an entirely asexual life, and "almost 100% preventable" means dumping the person you're in love with because he isn't a virgin (and maybe is even part of the 50% of the public that's HPV-infected), then we're way out of the range of normal assumption-of-risk talk. And when you add to that the fact that failure to immunize turns the unimmunized into unwitting but still dangerous vehicles of transmission of deadly disease — when a woman dies of HPV-related cervical cancer, the unimmunized people who helped spread the HPV to the woman helped cause her death — then the case for "never mind immunizing, people should prevent HPV themselves because it's 100% preventable by behavioral change" becomes very weak indeed.


GW Munich Summer Law Program: This coming July, I'll be teaching an abbreviated version of my Computer Crime Law class once again at the Munich Intellectual Property Summer Law Program in Munich, Germany. The program as a whole is IP-focused, but several of the courses (especially mine) are broader than strict IP. I'll be teaching from my casebook, and I'll end up covering about a third of the materials in the two-week course. I don't want to spam the blog with an extended pitch, but I enjoyed teaching in the program last year and wanted to flag it again for interested students at other schools who might not know of the program. Applications can be found here (.pdf).

"Confirmation Wars":

I read Benjamin Wittes' Confirmation Wars: Preserving Independent Courts in Angry Times a short while ago, and liked it a great deal.

Wittes, a Washington Post editorial writer, thoughtfully and dispassionately looks at how the federal judicial confirmation process has deteriorated over time (and he persuasively argues that it has indeed deteriorated), and what can be done about it. And while I'm not sure that his proposal -- accept ideological judgments about the nominees' record and likely views, but get rid of confirmation hearings and most other Senatorial questioning of the nominees -- is correct or politically feasible, I'm certainly not sure of the contrary, and I think his arguments have to be seriously considered.


The Effort to Ban "Defamation of Religion" and the Democracy Deficit of International Law:

The ongoing effort to establish an international law norm against "defamation of religion" - discussed in Eugene's excellent post - nicely exemplifies several of the shortcomings of international law discussed in my forthcoming Stanford Law Review article (coauthored with John McGinnis).

In the article, John and I contend that what we call "raw international law" - international law norms that have not been ratified through the domestic political process either by means of a congressional statute or through treaty ratification - suffers from a serious democracy deficit. Raw international law is formulated by international jurists and organizations that are largely free from democratic control; in addition, the content of raw international law is heavily influenced by authoritarian and totalitarian states and their representatives in international institutions such as the International Court of Justice and the United Nations. Obviously, the latter have little incentive to promote international law norms that benefit either their own people or those of democracies, and much incentive to promote interpretations of international law that cement their own grip on power by restricting civil liberties.

The attempt to create a binding international law norm against "defamation of religion" suffers from both of these weaknesses. It is striking that the effort is spearheaded by a coalition of unelected international jurists and bureaucrats (such as UN High Commissioner for Human Rights Louise Arbor) and authoritarian governments.

The key role of the latter is noted in this article by law professor Liaquat Ali Khan, a supporter of the ban. As Ali Khan points out, the recent UN General Assemby Resolution endorsing a ban on "defamation of religion" was passed by a coalition of mostly authoritarian nations over the opposition of most of the world's liberal democracies. It is no surprise that a coalition of international legal elites and domestic tyrants would favor a legal rule that increases their power and provides a license for censorship. These groups have a long history of promoting similar measures, such as the ultimately abortive New World Information Order initiative of the 1980s, which sought to create an international censorship regime.

Even strong defenders of the primacy of international law over domestic law do not claim that a UN General Assembly resolution does not in itself constitute binding law. However, as Ali Khan notes:

General Assembly resolutions may contain soft international law. With the passage of time and compliant state behavior, some resolutions pave the way for the formation of a multilateral treaty or customary international law. In almost all cases, these resolutions reflect the international community’s views, which cannot be dismissed as mere opinions. These views, even when they fall short of opinio juris, influence multilateral relations and compose the sociology of international law.

In sum, the General Assembly resolution does not in and of itself establish a binding legal rule, but it is an important step in that direction - at least if one accepts the views of strong advocates of the primacy of international law over domestic law.

I am no starry-eyed defender of domestic democratic processes. They have numerous weaknesses, some of which I have analyzed in detail in my academic work. However, as John and I argue in our article, democratic domestic lawmaking processes - especially if restrained by a strong domestic Constitution limiting government power - generally lead to much better outcomes than the undemocratic international lawmaking processes that result in such norms as the ban on "defamation of religion."

There is no need to be unduly alarmist. In the near future, international law initiatives such as this one are unlikely to seriously endanger our rights. At the same time, international law may pose more of a threat to liberty in some European and other nations where resistance to the domestic application of raw international law may be weaker than in the US.

Moreover, the effort to insinuate raw international law into domestic law has only recently begun, and as Eugene has often pointed out (see links here), it may over time gain momentum through slippery slope processes of various types. It is important to head this process off at an early stage.

The best way to do so, as John McGinnis and I (and also Eugene) contend, is for both courts and legislators to emphasize that international law is not binding on the United States unless it has been incorporated into domestic through standard legislative processes - such as enactment in a congressional statute or treaty ratification by a 2/3 majority of the Senate. International law norms that conflict with the Constitution can only bind us if they have been enacted through a constitutional amendment. Other democracies should pursue a similar approach.

In addition, the US and other liberal democracies should consider denying funds to the UN Human Rights Council (which is a strong supporter of the Defamation of Religion resolution, among other attacks on freedom of speech) and other international bodies that promote new international law norms that undermine freedom of speech and other civil liberties. The democracies of the developed world provide these bodies with the lion's share of their funding, and the power of the purse can be used to curb their depradations, even if it can't end them completely.


Baltimore Hebrew University Professor Supporting Legal Penalties for "Negative Depiction of Religion":

From a May 12, 2006 column by Dr. Robert O. Freedman, columnist for the Baltimore Jewish Times, professor of political science at Baltimore Hebrew University, former acting president of the university, and former visiting professor at Princeton (emphasis added):

As the crisis over the Danish cartoons depicting the Islamic prophet Muhammad appears to be dying down, it is time to create a system to prevent such a costly crisis from erupting in the future.

As a result of the crisis, lives were lost, embassies were attacked in the Muslim world, the loyalty of Muslims living in Europe was put into question, and the image of Islam in the West as a violent religion was reinforced, thus increasing the possibility of the "clash of civilizations" desired by Islamic radicals such as Osama bin Laden....

In order to rectify the situation, and to prevent a future crisis of this type from erupting, what is needed is a "code of conduct" for the newspapers and other media in both the Western and Muslim worlds. All governments must agree that the negative depiction of religion is "out of bounds," and penalties should be imposed on those who violate the code of conduct.

The problem, of course, is to determine the difference between legitimate criticism of someone who acts in the name of a religion, and the negative depiction of that religion.

To solve that problem, I propose the creation of an International Religious Court, composed of Christian, Muslim and Jewish clergymen with one clergyman representing each of the three religions. Anyone feeling that his or her religion was insulted could appeal to the International Religious Court for a ruling on the matter, and the court would then determine whether a penalty should be invoked. It would be the responsibility of the government on whose territory the action took place to impose the penalty....

[G]overnments may be reluctant, on grounds of sovereignty, to impose penalties required by such an international court. Nonetheless, there is a precedent wherein a number of states have, in certain cases, voluntarily agreed to abide by the decisions of the International Court of Justice, which could be a model for the International Religious Court....

As you might gather, my reaction to this is much the same as my reaction to the "Defamation of Religions" argument I criticized below. Interestingly, unlike Prof. Ali Khan's work, Dr. Friedman's argument doesn't even mention the possibility that the nation in which he lives might be constitutionally barred from going along with the orders of any such court.

Thanks to David Gerstman (Soccer Dad) for the pointer.


China and the "Dirty Secret" of Climate Policy:

China is currently the second-largest emitter of greenhouse gases, and will soon become Numero Uno. Its emissions are expected to surpass those of the United States within the next few years -- perhaps as early as 2009. But Chinese officials are unwilling to provide leadership on global climate change policy, as the New York Times reports.

Jiang Yu, a spokeswoman for the Foreign Ministry, said China was willing to contribute to an international effort to combat global warming but placed the primary responsibility on richer, developed nations that have been polluting for much longer.

“It must be pointed out that climate change has been caused by the long-term historic emissions of developed countries and their high per capita emissions,” she said, adding that developed countries have responsibilities for global warming “that cannot be shirked.

China is not opposed to emission reductions, it is just unwilling to let such concerns hamper its rapid industrialization.

China is hardly the only nation to take this view. While E.U. nations talk a good game about the need to control greenhouse gas emissions, they have yet to adopt and enforce meaningful emission controls, and most European nations appear unlikely to emit their emission reduction obligations under the Kyoto Protocol. This is the "dirty secret" of climate policy, as Robert Samuelson explains in today's Washington Post:

The dirty secret about global warming is this: We have no solution. About 80 percent of the world's energy comes from fossil fuels (coal, oil, natural gas), the main sources of man-made greenhouse gases. Energy use sustains economic growth, which -- in all modern societies -- buttresses political and social stability. Until we can replace fossil fuels or find practical ways to capture their emissions, governments will not sanction the deep energy cuts that would truly affect global warming. . . .

Anyone who honestly examines global energy trends must reach these harsh conclusions. In 2004, world emissions of carbon dioxide (CO2, the main greenhouse gas) totaled 26 billion metric tons. Under plausible economic and population assumptions, CO2 emissions will grow to 40 billion tons by 2030, projects the International Energy Agency. About three-quarters of the increase is forecast to come from developing countries, two-fifths from China alone. . . .

Nor will existing technologies, aggressively deployed, rescue us. The IEA studied an "alternative scenario" that simulated the effect of 1,400 policies to reduce fossil fuel use. Fuel economy for new U.S. vehicles was assumed to increase 30 percent by 2030; the global share of energy from "renewables" (solar, wind, hydropower, biomass) would quadruple, to 8 percent. The result: by 2030, annual carbon dioxide emissions would rise 31 percent instead of 55 percent. The concentration levels of emissions in the atmosphere (which presumably cause warming) would rise.

Samuelson's answer is more aggressive research and development of carbon-control technologies, and possibly an energy tax of some sort as well. I am skeptical of government subsidies -- and believe federal efforts to pick winners and losers in energy markets have already done too much to screw up energy markets -- so I think we should consider offering prizes instead. I have also argued that there is a strong case for developed countries to subsidize the deployment of low-emitting technologies and climate adaptation measures in developing countries (see here and here), assuming that such measures can be undertaken in a more effective manner than traditional foreign aid.


Nelson Polsby, R.I.P.:

I have just been informed that UC Berkeley political science professor Nelson W. Polsby passed away last night. I'm no political scientist, but I think it would be fair to say that Polsby was among the more important and influential political scientists of his generation. I often disagreed with his conclusions, and never had the pleasure of meeting him in person, but I nearly always found his work to be thoughful, provocative, and insightful. He will be missed. (I will post links to obituaries as they become available.)

UPDATE: UCLA Law Professor Daniel Lowenstein writes:

Nelson Polsby died last night. As many of you know, he was a political scientist who made his reputation at Yale in the 50s and 60s but finished his career at Berkeley. He ran the Institute of Governmental Studies there, and transformed it from a backwater into a model of an academic institution that maintains both close connection to the real world of politics and the highest standards of academic rigor.

His earliest work classified him with the pluralist school of thought, which was at its peak at the time he was at Yale. He went on to write extremely important work in many areas of American politics. For example, he was one of the leading scholars of our time on Congress and on political parties. His writing simply bubbles over with interesting ideas and insights. A lot of people with his bent of mind and in his generation became neo-conservatives. He never did and remained a fierce Democrat and (in recent years) a Bush-hater to the end. But he had no tolerance for the more cant-ish elements of the liberal left.

Finally, he was an extraordinary gracious person, with great wit and good humor. When he was at the top of his form, he was a sparkling speaker. And, as you can probably guess, he was a friend. He could not stand the reform work I did early in my career, but he was never anything but generous and good to me. The privilege of knowing such rare people is one of the things that makes life good.

UPDATE: UChicago law professor Lior Strahilevitz has posted a tribute to Polsby, "a giant of American political science, a leading academic authority on presidential elections, Congress, political party reform, and a host of other topics. . . . the greatest teacher I ever had and an extraordinarily sweet, generous, and funny man."

SECOND UPDATE: Here is an obit from the Contra Costa Times, and comments by John Podhoretz and Peter Robinson at NRO.

THIRD UPDATE: The Washington Post obituary is here.


A New International Law "Value" -- Freedom from "Defamation of Religions"?

Washburn University law professor Liaquat Ali Khan has an interesting article in The American Muslim called Combating Defamation of Religions:

A new value is emerging in the realm of the peoples' rights. Now two years in a row, the United Nations General Assembly has passed a resolution called, Combating Defamation of Religions. Although the Defamation Resolution applies to all religions, it highlights "the negative projection of Islam in the media and the introduction and enforcement of laws that specifically discriminate against and target Muslims." ...

The General Assembly resolutions may contain soft international law. With the passage of time and compliant state behavior, some resolutions pave the way for the formation of a multilateral treaty or customary international law. In almost all cases, these resolutions reflect the international community’s views, which cannot be dismissed as mere opinions. These views, even when they fall short of opinio juris, influence multilateral relations and compose the sociology of international law....

[T]he Defamation Resolution urges states to prevent political institutions and organizations from fomenting discrimination, hostility, and violence against religious groups....

The idea of combating the defamation of religions, though morally sound, is difficult from a legislative viewpoint and will pose serious drafting challenges. The idea, however, poses no greater problems than prohibiting hate speech against racial, ethnic, or religious groups — a law adopted in almost all countries of the world except the United States. One key function of law is to make distinctions and draw balance between competing rights. In the complex realm of human affairs, no right is absolute, not even free speech or the dignity of religion. Accordingly, the law against defamation of religions may be constructed in a way that does not abridge legitimate speech including artistic freedom and yet protects the dignity of religion....

I appreciate the article's acknowledgment that many criticize the resolution on free speech grounds — yet it seems to me hard to read the article as anything but an endorsement of the resolution, and an endorsement of some restrictions on "[il]legitimate speech" that undermines "the dignity of religion." Unfortunately, the article doesn't explain just how the "serious drafting challenges" are to be resolved; and though I e-mailed Prof. Ali Khan on Monday to ask him for his thoughts on the subject, I haven't yet heard back from him. It's therefore hard to figure out precisely what kind of speech Prof. Ali Khan and other backers of the Resolution would like to restrict. A good place to start, though, is one of the provisions of the resolution:

The Commission on Human Rights ... Urges States to take resolute action to prohibit the dissemination through political institutions and organizations of racist and xenophobic ideas and material aimed at any religion or its followers that constitute incitement to discrimination, hostility or violence.

Prohibiting the dissemination of xenophobic ideas aimed at any religion that constitute incitement to hostility — sounds like a pretty broad proposition. It would cover many atheist criticisms of religion generally; many secularist criticisms of fundamentalist Christianity (or Islam or Judaism); condemnation of religious groups that are alleged to be cults or scams; many theological criticisms of a wide range of religions; many pro-gay-rights or pro-women's-rights condemnations of religions that are seen as hostile to gays or women; and much more.

I think American law is correct in protecting even racist speech, or speech that advocates discrimination (even when limited to illegal discrimination) or violence. But the Resolution, and the very concept of "defamation of religions," suggests the suppression of much more speech than even that.

Two more thoughts:

1. Slippery Slopes: Note how Prof. Ali Khan relies on "The idea, however, poses no greater problems than prohibiting hate speech against racial, ethnic, or religious groups — a law adopted in almost all countries of the world except the United States." This is precisely what those who fear slippery slopes worry about.

A narrow exception for so-called racial or ethnic "hate speech" is adopted (often partly based on grounds that racial or ethnic hostility is illogical because it turns on irrelevant traits such as people's skin color). Then it's broadened to cover religious "hate speech," though religion is ideology and hostility to people based on their ideology is at least more sensible than hostility based on race. (Though I think that religious hostility is generally unjustified despite this, there is an important distinction between racial and religious hostility — but a distinction that many foreign hate speech laws disregard.)

Then this is used as an analogy to support proposed bans on "defamation of religion" generally, a category that's considerably broader than calls for discrimination or violence against the people who adhere to the religion. After all, almost all countries restrict "hate speech"; that broad acceptance suggests (the argument goes) that the restrictions are indeed sound; why not extend them a little further? And of course once we slip down to restrictions on defamation of religion, those restrictions in turn can be used as analogies to support further restrictions.

2. The Subtle Insinuation of International Law into Our Constitutional Law: Finally, this returns me to a Stanford Law Review article I read a few years ago. Signing treaties, the article said, may erode the Bill of Rights: American decisions to sign on to international treaties may erode the protections of the Bill of Rights, for instance the First Amendment.

Yes, the Supreme Court has supposedly said otherwise, in Reid v. Covert (1957): "[N]o agreement with a foreign nation can confer power on the [federal government] which is free from the restraints of the Constitution" (speaking of the Bill of Rights). But it turns out that this supremacy of the Bill of Rights really isn't that strong: The President and the Senate can, in the long run, "insinuat[e] international law" that would create "a partial displacement of constitutional hegemony" (for instance, with "an international norm against hate speech ... supply[ing] a basis for prohibiting it, the First Amendment notwithstanding"). "In the short term," international norms would and should be "relevan[t] ... in domestic constitutional interpretation." But "In the long run, it may point to the Constitution's more complete subordination."

These quotes are not from some anti-internationalist "The U.N. is coming to take away our liberties" conservatives. They are from Treaties, International Law, and Constitutional Rights, by Prof. Peter Spiro, one of the leading American international law scholars. Prof. Spiro is both defending the notion that treaties should be able to trump constitutional rights — "If some constitutional norms are more appropriately set at the international level" (and he believes they are), "that should justify a treaty power that, in some cases, overcomes even the Bill of Rights" — and predicting that treaties will over time do so. Courts, he acknowledges, would try to "maintain[] the formal hegemony of the domestic constitution," but "this formal hegemony may disguise a loss of domestic constitutional autonomy over the long run":

Constitutional rights "adjusted" by treaty norms are changed by them. The Constitution is read to conform with the treaty.

Of course, some people may be quite happy about this: They might well conclude that parts of the Bill of Rights should be superseded by "international" norms, both those explicitly mentioned in treaties and those created by authoritative organs such as the U.N. General Assembly (which themselves derive their legitimacy from treaties that crated them). They may think the international lawmaking community — mostly, I suspect, composed of European legal and political elites, plus of course those segments of American legal and political elites that are involved in this field — will indeed reach better results than those provided for by the current understanding of the U.S. Constitution.

But those of us who disagree should vigilantly watch for, and resist, the "displacement of constitutional hegemony" that the article welcomes. We should insist that the President and the Senate consistently stress in all the treaties they sign and ratify that our agreement to the treaty is constrained by our Constitution, and that the treaty should be read to conform to the Constitution, and not the other way around. We should be careful that none of the treaties that our elected representatives sign include language that broadly approves of "new value[s]" "in the realm of peoples' rights" such as freedom from "defamation of religions," or that authorizes international institutions to create such "new value[s]."

We should criticize judges who rely on international norms in interpreting American constitutional provisions (in this respect, reading Prof. Spiro's article has led me to reconsider some of my views in this post, and to view with much more alarm reliance on international law in American constitutional interpretation). And we should assiduously publicize the ways in which international rules are, in our view, worse than ours, for instance to show that foreign bans on "hate speech" actually end up banning (as American First Amendment thinking would have suggested) a good deal of speech that deserves to be protected (see, for instance, this post by David Bernstein).

Today, as Prof. Ali Khan points out, many foreign countries do not endorse the "emerging" "peoples' rights" "value" of freedom from "defamation of religion" (though enough endorse it to get General Assembly approval). But most foreign countries have endorsed values that aren't that far off, such as freedom from racial and religious "hate speech." It's quite plausible that in a few decades, Prof. Ali Khan's perspective will indeed be adopted by the great majority of foreign countries. I'd hate to see that undermining free speech in America — yet Prof. Spiro's arguments suggest that it might, especially (but not necessarily only) if the General Assembly Resolutions are embodied in future treaties.

Our Constitution is far from perfect, both as written and as interpreted. I think courts should indeed change their views on many issues, and people should try to press courts to do so. But this should be our decision as Americans. We should not cede our control over our constitutional rights to international bodies, international professional elites, or even to our own President and Senate.


Kontorovich on Serbia and the U.N.:

My GMU colleague Eugene Kontorovich is guest-blogging at Opinio Juris. His first post is on "Serbia's Territorial Integrity and the Limits of UN Power." Welcome to the blogosphere, Eugene!


GOP "War on Science" -- Mooney Responds:

Chris Mooney has posted a response to my review of his book, The Republican War on Science over at his blog, The Intersection. While Mooney and I often disagree, I consider his blog (along with Pielke’s Prometheus) to be among the few “must read” blogs on the intersection between science and policy. I also recommend Mooney's recent op-ed with Alan Sokal, even though I think it exhibits some of the same failings as his book (see also here), and look forward to his forthcoming book on hurricanes, Storm World.

With that said let me offer a not-so-brief rejoinder to Mooney’s response. While he and I clearly disagree, I consider this to be an important issue and believe there is value in continuing our exchange. So, with that in mind, go read his response, and then consider my comments below.

On the issue of embryonic stem cells, I think my characterization of Mooney’s discussion is fair. I should note, however, that Mooney is correct that I should have acknowledged he calls out John Edwards and others for exaggerating the promise of embryonic stem cell research. On the larger issue, however, I stand by my claim that Mooney “suggests that the number of cell lines, rather than ideological opposition to the destruction of embryos, drove Bush policy.” For instance, he writes the Bush Administration policy was “based on science fiction” and “a textbook example of how bad scientific information leads, inexorably, to bad policy.” (p. 3). These statements seem pretty clear to me. It is fair to criticize the President’s effort to spin the policy by relying upon questionable scientific claims, as Mooney does, but I believe Mooney also goes farther in an effort to make this episode a centerpiece in his argument.

On the question of whether Mooney confuses legitimate policy disputes with science abuse, his defense is that he acknowledges taking policy stances “against inappropriate legislative interferences with science and to advocate a strengthening of our government's science policy apparatus.” I don’t believe this gives Mooney the out he thinks it does. To claim that requiring a greater level of scientific certainty, peer-review, or critical examination before commencing government regulation constitutes an “inappropriate legislative interference with science” requires a prior policy judgment about whether the government should be more or less aggressive in responding to scientific uncertainty.

I reject Mooney’s argument that the Data Quality Act and proposed Endangered Species Act reforms uniquely “create (or would create) an environment in which further strategic attacks on, and misuses of, science will occur and, indeed, will be facilitated.” Under the ESA, for instance, there have been erroneous species listings, sometimes driven by an ideological desire to invoke the ESA’s regulatory provisions. This is “facilitated” by a more permissive scientific standard. Where as DQA-type rules create opportunities to attack scientific data to prevent policy action, precautionary approaches facilitate policy responses based upon erroneous scientific claims. The difference is not that one produces more science abuse than the other (indeed, Mooney acknowledges on page 31 that the emergence of precautionary regulation “spurred on scientific conflicts”), rather it is that each represents a different policy judgment about whether to err on the side of government action or inaction. Further, many environmental activists do sell the “precautionary principle” as a “science-based” approach to environmental risk. The precautionary principle literature is filled with such claims. (To take one example, that is how this volume edited by two prominent principle proponents is being marketed.) If Mooney is really concerned about how legal rules create a pressure for science abuse, he should have focused more on the institutional context (about which more below).

On whether “everybody does it,” I remain unconvinced that there is something “uniquely worrisome” about the Bush Administration or that conservatives “outdistance any competition” (p. 196) in science abuse. I think I’ve addressed the scientific abuses of liberals and prior administrations before, so I won’t do so here. Instead, let me note that there is evidence of science abuse by the Bush Administration in part because left-leaning activist groups, like the Union of Concerned Scientists and PEER, have sought to document these examples (and, as I noted here, have padded the list with bad examples). The question is not whether this administration has abused science – it has – but whether there is something “unique” here. For instance, if Mooney is to criticize the Bush Administration for rejecting a science advisory policy’s conclusion, as he does with Plan B, he should at least acknowledge that the Clinton Administration did the same (on creating embryos for research). Instead, he says there is not “much of a rap sheet for the Clinton Administration” (p. 254), and makes the astounding claim that environmental activist groups are a pro-science constituency. One cannot claim this is because liberal science abuse does not have policy consequences because it does, as it has in the context of genetically modified foods – something Mooney omits from his discussion of the subject.

Since I wrote my review, UCS has released a survey of government scientists that, more than anything else to date, might substantiate Mooney’s ultimate claim. It appears to demonstrate that a large number of government scientists have witnessed science abuse from during administration. I hope to engage the survey more fully at a later date because I think it bears further examination. Some on the Right have sought to dismiss it due to the low response rate, alleging some sort of selection bias, yet Mooney has correctly noted that the number of positive responses is itself significant (even if we don’t have a baseline against which the results can be compared). If the survey has a problem – and I have not yet examined it closely enough to say whether it does – it is because it classifies some policy disagreements and budgetary matters as “abuse" (as Roger Pielke Jr. notes here). If this accounts for a large proportion of the positive responses, then the survey would do less to substantiate Mooney’s claims.

As for whether Mooney’s solutions are adequate, I think my review’s conclusions stands. Mooney has made an effort to identify non-artisan solutions, but I do not find them very compelling. Recreating another source of official government science, in the form of a reconstituted Office of Technology Assessment, and encouraging greater activism by scientists don’t address the institutional context in which science abuse occurs. As I wrote in the original review:

Existing institutions and legal structures create hydraulic pressure to politicize science for political ends. Under many statutes, particular scientific findings automatically trigger given nondiscretionary regulatory responses. Under the Endangered Species Act, for example, the discovery of endangered species habitat can bar certain activities on federal land, even if other measures would be more effective at conserving the species. Such provisions, which exist in numerous environmental laws, create a tremendous incentive to influence scientific research and dictate outcomes, as the science is the primary determinant of the resulting policies.
Indeed, such legal rules also create pressure for the sorts of science policy reforms that Mooney assails. Yet both Mooney and those he criticizes fail to get to the heart of the issue.

Given the harshness of my initial review’s conclusion, let me end on a more positive note. Mooney has certainly performed a valuable service insofar as he has chronicled the extent to which science can be corrupted within the political process. His research was extensive, his writing is clear, and the larger problem is real. In all my comments on the book I have tried not to diminish the importance of science abuse, nor to excuse the Bush Administration where it truly deserves blame. If political abuse of science is to be controlled, however, one has to get beyond the fantasy that "our guys" are better than "their guys" (whichever side one is on) and recognize that broader institutional arrangements and a political culture that likes to pretend scientific research answers normative policy questions are the headwaters from which these problems spring. I believe Mooney is more sensitive to this concern than when he first wrote his book, and I look forward to the day he revisits the issue in greater depth – and an opportunity to spar with him again.


Tuesday, February 6, 2007

Online Libel and Retractions in Tennessee:

From our post on February 5:

[I]f Tennessee legislators want to do something about online libel and retractions [that's better than an earlier bill that I had criticized -EV], why not look at Tenn. Code Ann. § 29-24-103?

(a) Before any civil action is brought for publication, in a newspaper or periodical, of a libel, the plaintiff shall, at least five (5) days before instituting such action, serve notice in writing on the defendant, specifying the article and the statements therein which the plaintiff alleges to be false and defamatory.

(b)(1) If it appears upon the trial that the article was published in good faith, that its falsity was due to an honest mistake of the facts, and that there were reasonable grounds for believing that the statements in the article were true, and that within (10) days after the service of said notice, or in the next regular edition of such newspaper or periodical, if more than ten (10) days from date of notice, a full and fair correction, apology, or retraction was published in the same editions, and in the case of a daily newspaper, in all editions of the day of such publication, or corresponding issues of the newspaper or periodical in which the article appeared; and in the case of newspapers on the front page thereof, and in the case of other periodicals in as conspicuous a place as that of the original defamatory article, and in either case, in as conspicuous a plat or type as was the original article, then the plaintiff shall recover only actual, and not punitive, damages.

(2) The exemption from punitive damages shall not apply to any article about or affecting a candidate for political office, published within ten (10) days before any election for the office for which the person is a candidate.

This is an extra protection offered speakers, which encourages them to publish prompt retractions by offering to limit the liability to which they would otherwise be constitutionally exposed. The Tennessee legislature seems to think it's good enough for newspapers and periodicals. Why not make it clear that it applies to online publications as well?

Now, from HB420, introduced February 7, by Rep. Briley -- the same Representative who had proposed the earlier, much-criticized bill:

Tennessee Code Annotated, Section 29-24-103, is amended by deleting subsection (a) and substituting instead the following:

(a) Before any civil action is brought for publication of a libel, whether in a newspaper, periodical or posted on the Internet, the plaintiff shall, at least five (5) days before instituting such action, serve notice in writing on the defendant, specifying the article and the statements therein which the plaintiff alleges to be false and defamatory.

I'm a little puzzled by this. The point of the five-day warning requirement, I take it, is to give the publisher the opportunity to retract. But if only subsection (a) is changed to include "newspaper, periodical or posted on the Internet," and subsection (b) continues to mention only newspapers and periodicals, then it sounds like Internet retractions will be ineffectual: An Internet speaker will get the 5-day notice that may let him retract if a retraction is called for -- but then nothing in (b) would give any legal effect to this retraction. Just look at what the revised statute would look like (new material italicized, important portions boldfaced):

(a) Before any civil action is brought for publication of a libel, whether in a newspaper, periodical or posted on the Internet, the plaintiff shall, at least five (5) days before instituting such action, serve notice in writing on the defendant, specifying the article and the statements therein which the plaintiff alleges to be false and defamatory.

(b)(1) If it appears upon the trial that the article was published in good faith, that its falsity was due to an honest mistake of the facts, and that there were reasonable grounds for believing that the statements in the article were true, and that within (10) days after the service of said notice, or in the next regular edition of such newspaper or periodical, if more than ten (10) days from date of notice, a full and fair correction, apology, or retraction was published in the same editions, and in the case of a daily newspaper, in all editions of the day of such publication, or corresponding issues of the newspaper or periodical in which the article appeared; and in the case of newspapers on the front page thereof, and in the case of other periodicals in as conspicuous a place as that of the original defamatory article, and in either case, in as conspicuous a plat or type as was the original article, then the plaintiff shall recover only actual, and not punitive, damages....

What's more, while before the amendment Section 29-24-103 might have been read as covering blogs implicitly, on the theory that they are periodicals, the amendment to subsection (a) may be read as suggesting that Internet postings are not periodicals (since it treats the categories "newspaper," "periodical," and "posted on the Internet" as separate), and that (b) therefore doesn't apply to Internet postings. On the other hand, I doubt that this was the drafters' intention, since the amendment may also be read otherwise: After all, some newspapers are a type of periodical (and maybe all are, depending on how you define "periodical"), even though they're listed separately, so perhaps courts will conclude that material posted on the Internet can still be a periodical.

I wonder, then, if there might have been some mixup here: Might Rep. Briley's office have meant to cover Internet postings, but inadvertently proposed modifying only subsection (a) and not subsection (b)? Or if that wasn't they meant, what did they mean? (Or am I misanalyzing the statute here?)

Thanks to Volunteer Voters, which takes a somewhat more optimistic view of the statute than I do.


Bush II Libertarian-Leaning Judges:

Bush I and especially Ronald Reagan appointed a fairly large number of conservative judges with some libertarian sympathies, many of whom had been law professors. Offhand, Posner, Easterbrook, Boggs, Williams, Ginsburg, Thomas (!), Kozinski, Arnold, Bowman, Jerry Smith, and Loren Smith come to mind. Reagan also nominated Ginsburg to the USSC, and nominated Bernard Siegan, the most libertarian of the bunch, to the Ninth Circuit (he was defeated in the Senate). I haven't followed W's appointments that closely, but I haven't noticed similar judges being appointed by this Administration, other than Janice Rogers Brown. But I'll ask more informed readers: has the Bush II administration appointed any conservative judges with significant libertarian sympathies? If not, why not?


Alito Reflects on His First Year: In the latest Legal Times, Tony Mauro has a very interesting interview with Justice Alito about Alito's first year on the Court. Definitely worth reading. I think Alito's take on the Court's docket and role of the cert pool is exactly right, too. (LvHB)

  UPDATE: While I'm on the topic of agreeing with Justice Alito, let me point out this interesting comment from him after presiding over GW's moot court last week, as reported by the GW Hatchet:
  Alito said that the [moot court] case was very relevant to modern law. What constitutes a "search and seizure" online is a critical law debate and is constantly reshaping the Fourth Amendment, he said.
  "Now we're entering this new virtual world," Alito said, "and we have to translate the precedents and principles we have dealing with physical grounds to the world of electronic communication."

Bloor v. Falstaff:

As my contracts students will attest, Bloor v. Falstaff is one of my favorite contract law cases. For those who are as interested in the case as I am, check out this nifty website hat pays tribute to Ballantine and Falstaff beers.


Nebraska Navy:

You too can nominate someone for the post of Admiral of the Great Navy of the State of Nebraska. The commission provides, among other things, that the governor "do[es] strictly charge and require all officers, seamen, tadpoles and goldfish under [the Admiral's] command to be obedient to his orders as Admiral."

The news hook is that Dr. Ben Bernanke, Chairman of the Board of Governors of the Federal Reserve, has just been appointed to this august post, though I can't speak to exactly how he "contributed in some way to the state" and "promote[d] the Good Life in Nebraska." Thanks to Paul Gwilt for the pointer.


Parent-Child Speech and Child Custody Speech Restrictions:

My post on the jihadist father case led to various responses about what the right result should be, and more broadly about what the right First Amendment rule should be. Let me ask you folks this: Keep in mind the following (real) cases -- for citations and more details, see my NYU Law Review article on the subject -- and think about what First Amendment rule you would advocate, not just for the jihadist case but for those cases as well. Would it be "judges may impose whatever speech restrictions they think are in the best interests of the child, and allocate custody in whatever way they think best serves the interest of the child" (pretty much the current family law rule)? Would it be something else?

I'm not just asking which conceptual lines can be drawn; I'm asking which rule you think is likely to operate in our legal system, in which judges will often have different views from you, and will often apply fuzzy rules in ways differently than you would. (Of course, some judges will evade even clear rules, but let's assume that rules have at least some power to constrain judges in some cases.)

Here is the test suite:

  1. A parent is denied custody based partly on his “not regularly attend[ing] church and present[ing] no evidence demonstrating any willingness or capacity to attend to religion with [his children],” or having a “lack of religious observation.” Another parent is given custody but only on condition that he “will agree to present a plan to the Court of how [he] is going to commence providing some sort of spiritual opportunity for the [children] to learn about God while in [his] custody.” A court orders a mother to take her child to church each week, reasoning that “it is certainly to the best interests of [the child] to receive regular and systematic spiritual training.” Another court does the same, partly on the grounds that weekly church attendance, rather than just the once-every-two-weeks attendance that the child would have had if he went only with the other parent, provides superior “moral instruction.”

  2. Parents have custody rights limited or denied based on racist speech.

  3. ... based on advocacy of Communism (during the 1930s and 1950s).

  4. ... based on advocacy of polygamy (we're back to today, as we are on all the examples that don't have dates labeled).

  5. ... based on their defense of the propriety of homosexuality.

  6. ... based on their advocacy of (or inadequate condemnation of) nonmarital sex.

  7. ... based on their teaching of fundamentalism.

  8. ... based on their teaching of “non-mainstream” religions.

  9. ... based on their teaching of religious intolerance.

  10. ... based on their exposing their children to R-rated movies.

  11. ... based on their allowing their children unfiltered Internet access.

  12. ... based on their exposing their children to photos of men in women’s clothing.

  13. ... based on their exposing their children to music with vulgar sexual content.

  14. Parents are ordered not to say bad things about the other parent generally.

  15. When the other parent is homosexual, a parent is ordered to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic."

  16. When the parents are of different religions, a parent is ordered not to say that people who don't share the speaker's religion are damned to hell.

  17. When the other parent is a racist, a parent is ordered to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered harshly condemning of racists" (this is the one pure hypothetical in the whole list).

  18. When the parents are of different religions, a court orders “that each party will impress upon the children the need for religious tolerance and not permit any third party to attempt to teach them otherwise."

It's a long list, so don't feel obligated to discuss in detail each item -- but think about which rule you think would reach the right results not just in one case but in the whole range of cases.


Nazism, the Second Amendment, and the NRA:

Stephen Halbrook's excellent new article in Texas Review of Law and Politics is now on-line, in PDF.


Parent-Child Jihadist Speech:

I have an L.A. Times op-ed this morning about a fascinating parent-child speech case — one that to my knowledge no media outlet has yet discussed (probably because the facts were discussed in an unpublished opinion that likely no-one but the parties and I had read). Here are the opening paragraphs:

Meet Daniel P. and Allison B. and their children, Mujahid Daniel and Mujahid David, ages 13 and 11.... During their marriage, according to court documents, Daniel and Allison followed a "quasi-Muslim philosophy." They also "amassed a large quantity of weapons," and Daniel was imprisoned for illegal weapons possession and for making threats. Allison testified that Daniel abused her and that she went along with his actions only because she was afraid of him. The couple divorced in 1997, when Daniel was in prison.

Daniel, now out on parole, wants to see his children. Allison objects, based on Daniel's "violent felony conviction record ... domestic violence ... extremist views regarding religion, including ... jihad; and the letters written to the children while he was incarcerated, lecturing about religion and reminding the children that their names are Mujahid." ("Mujahid" means a soldier fighting for Islam; "mujahedin" is the plural.)

In December, a New York appellate court held that Daniel should be allowed supervised visitation after his parole expires this summer. But the court also upheld, in the name of "the best interest of the children," the trial court's order that Daniel not discuss with the children "any issues pertaining to his religion." ...

In the rest of the op-ed, I discuss the First Amendment implications of such orders, and point out that similar speech restrictions can arise in a wide range of other cases, involving racist speech, anti-gay speech, pro-gay speech, the teaching of religious intolerance, decisions not to teach religion at all, and more. Last year, I wrote an NYU Law Review article (Parent-Child Speech and Child Custody Speech Restriction) on this general subject.

For those who are interested, I also report the opinions below:

[New York family court decision, Oct. 28, 2005:]

The Petitioner, DANIEL [P.] (hereinafter, “father” or “Petitioner”) having filed a petition, pursuant to Family Court Act, Article 6, for an order, inter alia, granting him “visitation” with the children, MUJAHID DANIEL [P.], born October 30, 1993; and MUJAHID DAVID [P.], born June 1, 1995 (hereinafter “Daniel” and “David” or “the children”); and the Respondent, ALLISON [B.] (hereinafter “mother” or “Respondent”) having opposed such petition; and these matters, having come on before me for a trial, and the Petitioner having appeared via telephone testimony and by his attorney, John Zenir; and the Respondent having appeared in person and by her attorney, Steven A. Meisner, and the Law Guardian, Gail Jacobs, Esq., having appeared on behalf of the children; and the parties having presented witnesses, and exhibits to this Court; and upon all of the prior proceedings and pleadings had herein; and the parties having consented to this matter being heard and determined by Special Referee Dorothy A. Phillips; the petition is decided as follows:


Dungeons & Dragons as Religion:

From Kay v. Friel, 2007 WL 295556 (D. Utah Jan. 26), a prison religious freedom case (emphasis added):

Plaintiff's allegations are insufficient to make a prima facie showing that his beliefs are religious in nature, and that they are sincerely held. Plaintiff's Complaint does not include any facts to support his conclusory assertion that he is a "sincere and devout" practitioner of the Wicca religion. More importantly, however, Plaintiff has not alleged any facts showing that the items being withheld from him--tarot cards, Dungeons and Dragons game, and metal religious symbol--are necessary to the practice of the Wicca religion. [FN: It appears that Plaintiff is permitted to possess a plastic religious symbol. Plaintiff's Complaint does not state how the composition (i.e. metal versus plastic) of the unidentified religious symbol is relevant to Wiccan religious beliefs or practice.] Similarly, Plaintiff has not clearly described the nature of the "religious ritual" he was prevented from conducting, or its relevance to the Wiccan religion. In the absence of such basic factual allegations the Court cannot conclude that the restrictions challenged by Plaintiff amount to a burden on his exercise of religion. Thus, the Court concludes that Plaintiff's Complaint is insufficient to state a Free Exercise claim under the First Amendment.


Must Judges Avoid "Appearance" Problems?

The American Bar Association commission tasked with revising the Model Code on Judicial Conduct is proposing to weaken the ethical requirements for sitting judges. Specifically, according to this New York Times report the rule that judges avoid "impropriety and the appearance of impropriety" would become a nonbinding aspiration and would no longer provide sufficient basis for disciplining judges.

Supporters of the change say disciplining judges for violating a concept as vague as “the appearance of impropriety” is unfair. Opponents denounce any retreat from the longstanding and widely embraced standard, . . .

Mark I. Harrison, the chairman of the A.B.A. commission, said the “appearance of impropriety” standard was vague and added nothing to the rules prohibiting specific conduct that remain mandatory.

“We think it’s a step forward,” Mr. Harrison said of the commission’s decision. “It is important as a matter of due process and fairness to make clear what would be the basis for disciplinary enforcement without ambiguity and without confusion.”

The article cites many critics of the proposed change, including some judges, who dispute the claim that the existing standard is unworkable or too vague. There is no doubt that a prohibition on appearance problems can, at times, be difficult to apply, it serves as a helpful prophylactic rule. Moreover, as with any rule that is sufficiently general or abstract, the application to specific instances is facilitated by the accumulation of precedent and the interpretations of various judicial organizations.

Here's more from the story:

Jonathan Lippman, New York’s chief administrative judge, disagreed, saying the “appearance of impropriety” standard was sensible and workable. “I don’t think this is nuclear science,” he said. “Judges overwhelmingly approve of that standard as a basis on which to go about their daily business.” . . . .

Victoria Henley, the president of the Association of Judicial Disciplinary Counsel, whose members hear and consider complaints against judges, said the recent revisions were unlikely to gain wide acceptance. “If they basically gut the ‘appearance of impropriety’ standard,” Ms. Henley said, “it’s unlikely that the A.B.A. will continue to be responsible for drafting a model code that will be used by any state.”


Monday, February 5, 2007

Immigrant Students and the Tension Between Two Rationales for Affirmative Action:

This recent article in Higher Ed News summarizes a recent study showing that first or second generation immigrants (primarily from Africa and the Caribbean) make up 27% of the black students at a sample of "selective" universities, including over 40% at Ivy League schools (Hat tip: David Bernstein, who pointed out this article to me). While the article does not say how many of the black immigrant students were admitted under affirmative action programs, it is likely that at least some substantial number were, since the author notes that their average grades and test scores were only slightly higher than those of their native-born black classmates, of whom a large proportion were admitted to elite universities as a result of affirmative action programs. For example, a well-known pro-affirmative action study by William Bowen and Derek Bok found that the abolition of affirmative action would reduce the percentage of black students at the "most selective" universities from 7.9% to 2.1%.

The large number of immigrants in the sample highlights a tension between the two major rationales for affirmative action in college admissions: diversity and compensatory justice. Under the compensatory justice rationale, affirmative action is defensible because it helps compensate for the disadvantages inflicted on certain minority groups by centuries of discrimination and (in the case of African-Americans) enslavement. By contrast, the diversity rationale holds that we need affirmative action in order to expose students to the perspectives of minority groups whose views they might not otherwise encounter.

Obviously, the compensatory justice argument implies that affirmative action should be limited to native-born members of discriminated-against minority groups. Immigrants may well have suffered from injustice in their own countries, but in most cases they have no moral claim for compensation from the United States. By contrast, the diversity rationale implies that immigrants may actually be preferable to native-born minorities; on average, an immigrant from Africa or the West Indies has had life experiences that are more different from the American mainstream than those of any native-born citizen.

Naturally, affirmative action defenders will want to argue that we need not pick between the two rationales and instead pursue both. However, given a limited number of affirmative action admissions slots, any seat that goes to a compensatory justice candidate will be unavailable to diversity applicants and vice versa. Thus, universities will inevitably face tradeoffs between the two goals.

In my view, the compensatory justice rationale provides a much stronger normative case for affirmative action than does diversity. I am skeptical that the latter provides sufficient justification to override the presumption against using racial classifications in admissions decisions. My view is almost the opposite of that taken by the Supreme Court majority in cases such as Grutter v. Bollinger, where they largely rejected the compensatory justice argument, but embraced diversity. But those who disagree with my position still must face the tradeoffs involved.

NOTE: To avoid the inevitable misunderstandings that a statement this subject is likely to attract, I should emphasis that this is not a post about the legality or constitutionality of affirmative action. For what it's worth, I believe that private institutions should have the legal right to practice as much affirmative action as they want. The case of public universities such as George Mason is more complex, but I ultimately agree with the Supreme Court's holding in Grutter that public affirmative action is not categorically unconstitutional.

In this post, however, I am setting aside these well-worn legal issues in order to focus on the policy tradeoffs, and I encourage commenters to do likewise. The legal issues have been debated so often over the last thirty years that it is hard to say anything new about them.

Lastly, it should go without saying that I am not opposed to universities admitting immigrant students. I was one such admittee myself! However they - or rather we - should not benefit from affirmative action preferences.


When Astronauts Attack: NASA recently announced that it hopes to go back to the Moon and then on to Mars. If NASA officials are serious about manned space exploration, perhaps they should start by decommissioning any astronaut who tries to kidnap another astronaut's girlfriend with a knife, pepper spray, rubber tubing and a BB gun while wearing a wig and a trench coat. Just a thought.

Libertarianism and Communicable Disease:

Given Texas's conscientious objector exemption, the vaccine seems not to be really mandatory. (I say "seems" because I'm not positive how the exemption, which is on its face very broad, is applied in practice.) But what if it were mandatory? Should we oppose that on broadly libertarian grounds? When I say "we," I'm referring not just to hard-line libertarians (of which I'm not one) but also to those who have general Millian "free to do what I please so long as I don't hurt others" sympathies, even if those sympathies can sometimes be trumped by other concerns.

My tentative sense is that immunizations against communicative diseases are often quite proper, even as a libertarian matter. I say "tentative" because I'm sure others have thought about the subject in much more depth than I have, and perhaps they can prove me mistaken. But let me quickly lay out my thinking.

It is a sad fact of biology that we can spread communicable diseases without any conscious decision on our parts, even without knowing that we are infected. Any time we do this, we are indirectly causing harm to someone else. Say Alan has sex with Betty, who then has sex with Carl, who then has sex with Denise; say Alan is infected with HPV, and each sexual act would (absent immunization) spread HPV; and say Betty isn't immunized against HPV. Betty's failure to get immunized would lead to her unwittingly spreading the virus, which ends up hurting Denise. She hasn't intentionally harmed Denise, but she has harmed her -- you might categorize the harm as negligent (in that it flows from negligent failure to get immunized) or not, but it is indeed the infliction of harm.

Now it's true that the harm also flowed from Denise's voluntary decision to have sex with Carl. But, as I noted in an earlier post, it's hard to see why this should excuse the harm caused by Betty, any more than Denise's voluntary decision to get on the road excuses the harm that someone imposes on Denise by crashing into her with a car (or, if you prefer, that Betty imposes on Denise by crashing into Carl's car, which then crashes into Denise's).

Even if you think that some people's having many sexual partners should affect the analysis, remember that HPV can be spread even among people who are about as sexually constrained as can be expected. The Alan-Betty-Carl-Denise connection can happen even if Betty was a virgin when she married Alan; if she then didn't have sex with Carl until she married him (assume Alan had died, or had left Betty); and if Denise was a virgin when she married Carl (again, assume Betty had died, or had left Carl). This very scenario might be rare -- but lots of other scenarios in which people had led fairly safe lives, but find themselves getting HPV, are also quite plausible. And more broadly, even if people are leading somewhat riskier lives than this, participating in spreading a disease to them may still be quite rightly seen as harming them, despite their own role in choosing risky behavior.

Of course, if HPV immunization were 100% reliable, and 100% available, then this analysis wouldn't apply with quite the same strength: Presumably any person who remains at risk of HPV infection would be at risk because of her own refusal to get the vaccine. Yet while the immunization is supposed to be extremely reliable for 9-to-26-year-olds, it hasn't been tested on over-26-year-olds, and thus isn't recommended for them. Moreover, some people won't get the vaccine, possibly because they can't afford it. ($360 isn't chopped liver for many, especially for people who aren't in America.) Even an "assumption of risk" presumptive libertarian may reasonably conclude, I think, that refusing to get immunized is wrongful behavior, because it may lead to one's becoming a vehicle for transmitting a dangerous and sometimes deadly disease to third parties, and thus harming those third parties (in a way that an "assumption of risk" argument would not excuse).

Finally, recall that the question here is whether to immunize girls who are under 18, girls who may well get infected before 18 if the immunization is delayed until then. Even if it was just their own health on the line, and not the health of others whom they might indirectly infect, we could rightly say that they don't have the maturity to refuse this protection, and that their parents shouldn't be entitled to refuse this protection on their behalf. But since the question of what kinds of modest physical risks parents should be free to have their children run is thorny, contested, and old hat enough that I'm not sure I can add much to the subject, I thought I'd focus primarily on how parents' refusal to immunize their daughters may hurt others, and not just the daughters themselves.

So a brief summary: There may well be practical problems with truly mandatory immunization, and it may well be that herd immunity would mean that 90% immunization is good enough to reduce the risk to a level that doesn't merit regulation. There may of course also be practical objections to immunization if the immunization seems unduly risky (a question I set aside in the first post in this chain). But as a moral matter of individual liberty, it seems to me that there's little support for a claimed freedom from getting immunized -- and especially a claimed freedom from getting your underage children immunized. A requirement that people not allow their bodies to be media for unwitting transmission of deadly diseases strikes me as quite compatible with a generally libertarian perspective on the world.


HPV Immunization and Risky Personal Choices:

I've heard some argue that HPV is different, and a less proper candidate for a government-mandated (or even government-strongly-pressured) immunization, because HPV is acquired through risky, and usually personally chosen, behavior. This, though, strikes me as mistaken.

Though having multiple sexual partners increases one's risk of getting HPV, all it takes is one sexual partner. Nearly every woman will have sex at some point in her life. Even if she is a virgin bride, she can get HPV from her husband on her wedding night. True, if she marries a virgin, and her husband never cheats on her, then she's not at risk (setting aside the possibility of rape). But even the most moral behavior on her part, under any definition of morality short of lifelong abstinence from sex (including marital sex), won't protect her. The vaccine, on the other hand, likely will protect her.

There's also a very different kind of risky behavior argument: I'm told that regular pap smears, and the medical procedures used when the pap smears show a dangerous result, are very reliable in preventing even HPV-infected women (about 50% of the population, I have read) from developing cervical cancer. In a sense, then, actually getting cervical cancer may be said to be the woman's "fault" not because of her sexual behavior but because of her medical laxness. (That sounds harsh, but I take it that we do say that in some measure, though not without sympathy, in other contexts: If someone dies of untreated pneumonia -- consider, for instance, Jim Henson -- we might think that this death was in some measure his fault.)

Yet that seems to me to be a not very good argument against immunization. Many women don't get pap smears because they're fairly poor. Even those that could easily get them but don't seem to deserve some protection. And even for those who get them and thus don't get cervical cancer, the treatment used to avoid death from cervical cancer is expensive, unpleasant, and emotionally distressing -- and it can lead to infertility.

Of course, all this then raises the broader libertarian objection: Why should some people be forced to be immunized (assuming the Texas law mandated immunization, which this one seems not to, given its broad exemption for parents with conscientious or religious objections) in order to protect others? I'll turn to that in the next post.


Perverse Effects of HPV Immunizations?

Some argue that vaccinating girls for HPV would give them a false sense of security, and will thus lead to young teens' having more sex. I'm pretty skeptical about that.

Those girls who think about the risks of sex (and who knew in the first instance that sex can cause cervical cancer) will still realize that sex can spread AIDS — which kills roughly 2300-2500 American women per year, which causes over 5000 more per year to fall ill, and which strikes me as a much more publicly focused on risk than is HPV. They'll also recognize that sex can cause pregnancy; and those who blithely have sex without paying much attention to these remaining risks likely would have blithely ignored the risk of cervical cancer, too. "I wasn't going to have sex, because I was afraid of getting cervical cancer or AIDS, but now that I know that I'll only be at risk of AIDS, I'll go ahead and do it" strikes me as an implausible reaction.

In principle, I'm open to arguments that legal requirements that seem to increase safety will lead to riskier behavior that will eliminate much of the safety benefit. That's certainly a danger that sound policy analysis should take into account. But in this particular situation, it just doesn't seem very plausible.


Cost-Effectiveness of HPV Immunizations:

Not everything that improves health, or even saves lives, is worth mandating or even strongly pressuring (even if your philosophy is social welfare maximization; I'll speak later about how those with a more libertarian bent might view this). Saving a few lives at the costs of billions of dollars may end up not being cost-effective, especially given that the expense could reduce people's ability to spend on much more cost-effective health improvements.

But my very rough back-of-the-envelope calculation suggests that the HPV vaccination is pretty cost-effective. The CDC reports that the retail price of the HPV vaccine is about $360; let's assume this ends up being roughly the cost, setting aside bulk discounts, extra labor costs for administering the vaccine and the like. About 2500 American women die of HPV each year, which means that the lifetime risk for a typical American woman is roughly 2500 x 75 / 150,000,000 = one in a thousand.

Given that most estimates of value of life saved I've seen run in the $5 million to $10 million range, avoiding a 1/1000 risk of premature death for $360 sounds pretty cost-effective. Of course a more full analysis would have to include many other factors: It should consider years of life lost rather than just deaths. It should consider the possibility that the people who die of cervical cancer are also the ones least likely to get the immunizations; cervical cancer can largely be avoided through regular pap smears, so it stands to reason that women who get it tend to be ones who are least likely to have good health insurance coverage, and they may be the ones who are most likely not to get immunized when they are girls. It should also consider, as a factor countervailing to this one, the possibility that herd immunity provided by very broad immunization will benefit even those who aren't immunized. And it should doubtless consider a bunch of other things, too.

Still, given that $360,000 is way under $5 to $10 million, it seems safe to say that include all the other factors will still yield a judgment that the HPV immunization is likely cost-effective.


HPV Immunization in Texas:

Last Friday, Texas Governor Rick Perry issued an executive order requiring that "[t]he Health and Human Services Executive Commissioner shall adopt rules that mandate the age appropriate vaccination of all female children for HPV prior to admission to the sixth grade," though allowing parents to refuse on conscientious grounds. (The relevant state statute, Health & Safety Code § 161.004(d), provides that "A child is exempt from an immunization required by this section if ... a parent, managing conservator, or guardian states that the immunization is being declined for reasons of conscience, including a religious belief.")

The governor's action has led to a good deal of objection, from both social conservative and libertarian circles. I thought I'd pass along a few tentative thoughts of my own. Because the aggregate of the thoughts is long, I'll break it up into a few posts; in this one I'll just set out the key facts:

HPV (Human Papillomavirus) apparently causes about 70% of cervical cancers; there are about 10,000 new cases of cervical cancer in the U.S. per year, and 3700 deaths, which means that HPV kills about 2500 American women each year. HPV is sexually transmitted; the vaccine, the CDC reports, has been tested on 9-to-26-year-olds and appears to be nearly 100% effective if administered before a woman acquires HPV. It has not, however, been tested on women over 26, and thus is not recommended for them.

I can't speak to how safe the vaccine is, though I have no reason to doubt the CDC's view that it is safe. If it is indeed too risky, that would of course be a plausible objection to it, but I'll set that aside for now. Rather, in coming posts, I'll discuss whether the vaccine is likely cost-effective; whether it might be counterproductive because it will lead to more risky sex and thus more diseases that stem from it; whether HPV is different enough from other diseases that government-mandated or even government-strongly-suggested HPV vaccination is improper; and how we might think about truly mandatory vaccination (which this doesn't seem to be) more generally.


On Ad Hominem Arguments:

In the discussion over whether there is something scandalous about AEI's effort to commission analyses of the IPCC report and proposed climate report, more than one commenter sought to defend the use of ad hominem arguments. For instance, "Justin" commented:

The "ad hominen criticism is wrong" argument is thorougly erroneous, as I have discussed before. When the reader, either because the evidence is withheld or too complex for him to understand, on a particular challenged argument, is expected to agree by trusting or distrusting the source, an ad hominen attack/ab hominen defense is all you have to go by.
In a bit of snark, I paraphrased this claim as "Ad hominem arguments are convenient for the lazy and uninformed." Even put this way, the claim has some truth, but all it means is that ad hominem evaluations have some utility as a time-saving, filtering device for those who lack the time or ability to evaluate the substance of a claim on its merits. It does not say anything at all about the truth or falsity of the claim itself. In other words, it does not establish that ad hominem arguments are valid arguments.

Put another way: While it may be reasonable in some contexts to say: "I trust information and arguments from X more than from Y because Y is [corrupt/bought/of the wrong ideology/etc.]", it is a logical fallacy to say "Y's argument is wrong" for the same reasons. The strength or weakness of Y's argument can be evaluated independently of Y's personal failings.

So, if I want to know something about the health risks of smoking, and lack the time, inclination, or ability to research the question for myself in any detail, I may decide to trust the word of a medical professional over that of a tobacco lobbyist — and I will make this decision because one is a medical professional who is concerned about encouraging good health and preventing sickness, while the other may have a financial incentive to gloss over the harms caused by his product. The truth or falsity of each person's claims, however, are independent of my evaluation. In this context, ad hominem information serves as a time-saving heuristic device, but that is all.

In the context of blog comment threads, I think it reasonable to presume that those who rely upon ad hominem arguments typically do so because they lack the time, inclination or ability to mount more substantive critiques. This is particularly the case where the argument is utilized for purposes beyond the dismissal of an appeal to authority. [After all, if one person in a debate wants to take the short-cut of appealing to an authority instead of spelling out an argument, it is reasonable to point out why the authority in question might not be so authoritative.] Blogs like this one aspire to be forums for reasoned discussion of various questions. Whether or not we succeed in our aims, that discussion requires engaging subjects on their merits, not resort to logical fallacies like the standard ad hominem.


Has the FBI Turned to a "Broad New Wiretap Method"? It's pretty rare for a law school conference to generate news that draws links from Slashdot and the Drudge Report. But the digital search and seizure conference I recently attended at Stanford generated such a story: Declan McCullagh's CNet News report, "FBI turns to broad new wiretap method".

  Here's what Declan reported:
  The FBI appears to have adopted an invasive Internet surveillance technique that collects far more data on innocent Americans than previously has been disclosed.
  Instead of recording only what a particular suspect is doing, agents conducting investigations appear to be assembling the activities of thousands of Internet users at a time into massive databases, according to current and former officials. That database can subsequently be queried for names, e-mail addresses or keywords.
  Such a technique is broader and potentially more intrusive than the FBI's Carnivore surveillance system, later renamed DCS1000. It raises concerns similar to those stirred by widespread Internet monitoring that the National Security Agency is said to have done, according to documents that have surfaced in one federal lawsuit, and may stretch the bounds of what's legally permissible.
  Call it the vacuum-cleaner approach. It's employed when police have obtained a court order and an Internet service provider can't "isolate the particular person or IP address" because of technical constraints, says Paul Ohm, a former trial attorney at the Justice Department's Computer Crime and Intellectual Property Section. (An Internet Protocol address is a series of digits that can identify an individual computer.)
  That kind of full-pipe surveillance can record all Internet traffic, including Web browsing--or, optionally, only certain subsets such as all e-mail messages flowing through the network. Interception typically takes place inside an Internet provider's network at the junction point of a router or network switch.
  The technique came to light at the Search & Seizure in the Digital Age symposium held at Stanford University's law school on Friday. Ohm, who is now a law professor at the University of Colorado at Boulder, and Richard Downing, a CCIPS assistant deputy chief, discussed it during the symposium.
  The Justice Department responded to Declan's story with an e-mail which was reprinted in a post over at the ZDNet blog:
  Nothing has changed from our long-standing practice in implementing court-authorized law enforcement interception orders. The FBI records and retains only that data which it is authorized under law to record and retain — namely, the communications associated with court-approved targets.
  …[Wh]at law enforcement does is isolate the communications associated with the target facility and record only those communications. After law enforcement collects the targeted communications, as specified in the court order, we "minimize" the captured information by sorting it into relevant and non-relevant material (i.e., depending on whether the contents relate to the criminal activity specified in the court's order).
  Such after-the-fact minimization is done with explicit authorization from the court, and no further use may be made of minimized (non-relevant) communications.
  On rare occasions involving technical obstacles, we perform real-time filtering on large data connections carrying the traffic of multiple unrelated facilities, but only using automated filters that isolate and retain only the communications associated with the facility identified in the order. All data not relating to the targeted facility is instantly and irreversibly deleted. This data is therefore never read or comprehended by anyone in law enforcement.
  The bottom line: Nothing has changed. We believe that Professor Ohm, quoted in the article, either was misquoted or misspoke.
  So what's going on? I was at the conference and heard the exchange between Paul Ohm and DOJ's Richard Downing. My conclusion at the time was that this was probably nothing of significance for two different reasons.

  First, implementing wiretap orders always requires "minimization," and it wasn't clear to me whether Paul was just talking about the usual minimization procedures. Minimization is a fancy name for screening through the collected data to distinguish which data falls within the scope of the warrant and which doesn't. If a warrant seeks e-mails relating to narcotics trafficking, for example, someone has to go through the e-mails to identify which of the e-mails intercepted actually relate to narcotics trafficking. The idea is to protect privacy by making sure that only communications that relate to the crime are obtained by investigators. It wasn't clear to me if Paul was referring to this kind of common minimization procedure or something else.

  Second, whatever the FBI is doing, it seems that they're doing only in the 10-15 cases a year in which the government obtains a full-content wiretap order to intercept electronic (that is, non-voice computer) communications. The legal issue that Paul and Richard discussed at the conference involved how to implement very-hard-to-obtain "super warrants," which can only be obtained based on a showing of probable cause, necessity, predicate felonies, and all the rest. Further, the implementation of Title III orders requires considerable disclosure to the courts as to what information was intercepted — as well as disclosure to third-parties whose communications were intercepted. Given all of this judicial oversight, the chances that the FBI and DOJ would try to abuse that authority strikes me as pretty low.

  When you add in DOJ's response — which unfortunately hasn't received a lot of attention — it suggests to me that Declan's story is inaccurate. DOJ not only says that its practices haven't changed, it discusses the two types of minimization it has long performed to implement Wiretap orders: minimization within a particular target, and use of a tool (such as a descendant of the privacy-enhancing Carnivore) to screen for particular traffic.

  Although we can't be entirely sure, as it's always hard to figure out the details of surveillance systems without all the facts, my sense is that this is much ado about nothing.

Professor Robert Nagel Criticizes My Medical Self-Defense Article,

in the Weekly Standard. I like the piece, and I'm delighted that Professor Nagel thought my work worthy of public disagreement.

Naturaly, I don't agree with the article, but that's because I don't share its minimalist view of judicial authority. (I say minimalist because Professor Nagel is criticizing not only unenumerated rights — apparently including a right to abortion as self-defense — but also enumerated ones: He criticizes, for instance, the Court's cases upholding protection for "vulgar speech" or for flag desecration.) As I noted in my article, those who do take such a view would understandably reject my constitutional position, though I hope they can still agree that legislatures ought to enact my proposals.


WaPo on AEI Funding Climate Critiques:

Today's Washington Post reports on the controversy over the American Enterprise Institute's effort to solicit analyses and critiques of the IPCC report and proposed climate policies.

Advocacy groups such as Greenpeace and the Public Interest Research Group questioned why the American Enterprise Institute (AEI) has offered $10,000 to academics willing to contribute to a book on climate- change policy, an overture that was first reported Friday in London's Guardian newspaper.

Greenpeace spokeswoman Jane Kochersperger, who noted that AEI has received funding from Exxon Mobil in recent years, said yesterday that the think tank "has clearly hit a new low . . . when it's throwing out cash awards under the rubric of 'reason' to create confusion on the status of climate science. Americans are still suffering the impacts of Hurricane Katrina, and it's clearly time for policymakers on both sides of the aisle to take substantive action on global warming and ignore Exxon Mobil's disinformation campaign via climate skeptics."

AEI visiting scholar Kenneth Green — one of two researchers who has sought to commission the critiques — said in an interview that his group is examining the policy debate on global warming, not the science.

"It's completely policy-oriented," said Green, adding that a third of the academics AEI solicited for the project are interested in participating. "Somebody wants to distort this."

Set aside the irony of citing Hurricane Katrina in the context of complaining about those who "create confusion on the status of climate science." The Greenpeace complaint ultimately amounts to nothing more than opposition to critical perspectives on the need for the sort of climate policies Greenpeace supports. Whether or not one likes AEI's work on climate change — some of which has endorsed carbon taxes and other serious measures — this is hardly a substantive argument that AEI did anything unseemly.

One interesting tidbit in the story provides insight on why Steven Schroeder of Texas A&M declined to participate in the AEI project, and further undermines the most outrageous claims against AEI. In particular, the story reports that Schroeder did not believe AEI would have "skewed his results":

Schroeder, who has worked with Green in the past and has questioned some aspects of traditional climate modeling, said in an interview that he did not think AEI would have skewed his results. But he added that he worried his contribution might have been published alongside "off-the-wall ideas" questioning the existence of global warming.

"We worried our work could be misused even if we produced a reasonable report," Schroeder said. "While any human endeavor can be criticized, the IPCC system greatly exceeds the cooperation, openness and scientific rigorousness of the process applied to any other problem area that has significant effects on society."

Faced with such resistance, AEI modified its proposal last month and sent out a new round of offers, asking academics to contribute to a book examining the broad policy options for dealing with global warming.

I have a copy of the model letter Ken Green and Steven Hayward used for the second round of solicitations noted in the WaPo story and, because some have requested it, I am posting it below (even though I don't think it laters the bottom line). So others can judge for themselves, here it is:

This is Steven Hayward and Ken Green writing from the American Enterprise Institute in Washington. We are writing to solicit your thoughts about, and hopefully your participation in, an AEI project on climate change policy. Between the forthcoming Fourth Assessment Report of the IPCC due later this year, the Stern Review, and the close of the Kyoto Protocol’s first commitment period on the intermediate horizon, the time seems propitious for a fresh round of discussion of climate policy. AEI would like to commission a series of essays from a broad range of experts on various general and specific aspects of the issue, around which we should like to organize several conferences in Washington and ultimately a book.

Two general thoughts dominate our thinking about the structure of a useful project. First, in the public mind at least (which is to say, the news media) climate change has tended to be caught in a straightjacket between so-called “skeptics” and so-called “alarmists,” with seemingly little room left in the middle for people who may have reasonable doubts or heterodox views about the range of policy prescriptions that should be considered for climate change of uncertain dimension. This perception is mistaken, of course, as Andrew Revkin’s recent New York Times article on “an emerging middle ground” on climate change made evident. Nonetheless, we would like to attempt to break out of this straightjacket and see if it is possible to create a space for an identifiable “third way” of thinking about the problem that is similar to the various “third way” approaches to other social policy problems that were popular in the 1990s.

Our second general thought is that the chief difficulty of carving out a “third way” on climate change is due to the unwieldy size and complexity of both the scientific inquiry and policy approaches to the problem. We had thought to produce a series of essays to review and critique the forthcoming IPCC FAR, early drafts of which are circulating, but have been persuaded that an IPCC-focused project is too limited. Although some commentary on the IPCC FAR is in order, our latest thinking is broaden our scope. One idea is to solicit essays in two categories. The first category would be along the lines of a blue-sky essay on “What Climate Policies Would I Implement If I Was King for a Day.” The second category would be specific critiques of existing or proposed policy responses such as will appear in Working Group III or have been put forward in reports such as the Stern Review. (Such essays might take as their focus a single chapter from Working Group III, or an aspect of the Stern Review.)

Above all we want to have a diverse collection of pre-eminent thinkers on this subject, which is why we are keen to include you in the project. AEI is willing to offer honoraria of up to $10,000 for participating authors, for essays in the range of 7,500 to 10,000 words, to be completed by September 1, and we are keen to work with you to refine an appropriate topic.

As I noted before, I don't think there is much of a story here: A think tank is commissioning work from people who are likely to produce reports that will support the think tank's general mission. When those reports are produced, they can be evaluated on their merits. Insofar as there is now controversy, I understand why the WaPo ran its piece. My point is that there should not have been any controversy in the first place.

UPDATE: According to this report, ExxonMobil was not involved, or even aware, that AEI was soliciting critiques and analyses of the IPCC report and climate policy proposals.


Online Libel and Retractions in Tennessee:

InstaPundit (who's a constitutional law professor at the University of Tennessee and his fellow Tennesseean Bill Hobbs have been criticizing a proposed bill imposing special retraction obligations on Web speakers:

An owner or licensee of a web site or web page shall have fifteen (15) days to remove any defamatory statements about a person from such web site or web page; however if the owner or licensee has been given notice that such statements are defamatory then that owner or licensee shall have two (2) days from the date of the notice to remove the statements from the web site or web page, whichever is less. Failure to remove defamatory statements as provided in this section shall create a presumption of malice intent.

The bill was then withdrawn but its backer is saying he'll bring back something else having to do with online libel. It's hard to tell exactly what this bill would do, but it seems likely that it would violate the First Amendment and probably 47 U.S.C. § 230, the federal statute that immunizes web page operators from liability for material posted to their pages by others. (Jack Balkin agrees on the § 230 question.)

But if Tennessee legislators want to do something about online libel and retractions, why not look at Tenn. Code Ann. § 29-24-103?

(a) Before any civil action is brought for publication, in a newspaper or periodical, of a libel, the plaintiff shall, at least five (5) days before instituting such action, serve notice in writing on the defendant, specifying the article and the statements therein which the plaintiff alleges to be false and defamatory.

(b)(1) If it appears upon the trial that the article was published in good faith, that its falsity was due to an honest mistake of the facts, and that there were reasonable grounds for believing that the statements in the article were true, and that within (10) days after the service of said notice, or in the next regular edition of such newspaper or periodical, if more than ten (10) days from date of notice, a full and fair correction, apology, or retraction was published in the same editions, and in the case of a daily newspaper, in all editions of the day of such publication, or corresponding issues of the newspaper or periodical in which the article appeared; and in the case of newspapers on the front page thereof, and in the case of other periodicals in as conspicuous a place as that of the original defamatory article, and in either case, in as conspicuous a plat or type as was the original article, then the plaintiff shall recover only actual, and not punitive, damages.

(2) The exemption from punitive damages shall not apply to any article about or affecting a candidate for political office, published within ten (10) days before any election for the office for which the person is a candidate.

This is an extra protection offered speakers, which encourages them to publish prompt retractions by offering to limit the liability to which they would otherwise be constitutionally exposed. The Tennessee legislature seems to think it's good enough for newspapers and periodicals. Why not make it clear that it applies to online publications as well?

The retraction statute already might cover bloggers, if you read "periodical" to include blogs, as a California Court of Appeal decision does. But given that the matter is not completely clear, it would be good if Tennessee legislators — and legislators in other states that have similar laws — made it clear.


Civilian Casualties in Lebanon:

During the Lebanon War last Summer, and ever since, just about every media source has reported that "most" (sometimes "the vast majority") of the 1,200 people killed in Lebanon during the Hezbollah-Israel war were civilians. At the time, I pointed out that reporters actually had no way of knowing this, and that their sources--Hezbollah and the Lebanese government--had the incentive to inflate civilian casualties and (especially with regard to Hezbollah) downplay terrorist casualties.

My GMU colleague Peter Berkowitz notes in a completely different context (i.e., not discussing the media at all) that Israeli military analysts believe that 750 Hezbollah fighters were killed in the war. That figure is consistent with analyses I've read in various Israeli media outlets, in all cases just discussing the successes and failures of the war, not indulging in media criticism.

If Israeli military and intelligence estimates are correct, a slew of corrections is in order. Moreover, it's an extraordinary achievement by the Israeli military: if indeed Israel managed to battle a non-uniformed force hiding in civilian urban areas for a month, with an extremely supportive civilian population, with this low a military-civilian casualty ration, I believe this would be unprecedented in modern warfare. Quite a difference from the (as yet unretracted?) claims of the Juan Coles of the world that Israel was intentionally terrorizing the civilian population the better to permanently depopulate southern Lebanon, not to mention the Amnesty and Human Rights Watch claims of massive war crimes by Israel.

I'm not going to open comments because they will inevitably turn, at best, into a rehashing of last Summer's debate over the war, but if readers email me links that seem to rebut the 750 figure, I'll be glad to link to them.

UPDATE: Michael Totten posted an interview yesterday with an active duty Israeli soldier who seems reasonably well-informed. That soldier gives the figure of 700-800 Hezbollah killed. The soldier also gives a lot of information of the sort the Israeli government should have gotten out, but didn't, such as Hezbollah firing missing from mosques.

Note that I have no way to vouch for the Israeli statistics, but they do seem to be the product of Israeli post-war analysis, not a propaganda campaign (the time to do that would have been last Summer, but Israelis seem almost incapable of managing p.r.) Regardless, these figures are certainly not less plausible than the figures the media obtained last Summer from "Lebanese sources," which they repeated uncritically.

Sunday, February 4, 2007

NRO Super Bowl Symposium:

National Review Online asked a few folks to provide their thoughts on the Super Bowl. My contribution was the following:

The Super Bowl is supposed to be an epic clash of titans. Unfortunately, the game itself often fails to live up to the hype. Blowouts and snoozers are as common as nailbiters. The New England Patriots have put in some memorable performances, winning games with fourth quarter heroics, but don’t forget about the Baltimore Ravens pasting the New York Giants in Super Bowl XXXV, or the Dallas Cowboys’ back-to-back shellacking of the Buffalo Bills in XXVII and XXVIII. As a Philadelphia Eagles fan, I am forced to endure memories of the Iggles’ collapse in Super Bowl XV against the Oakland Raiders. (What a week to play their worst game of the year!) In past years we’ve still had much to look forward to besides the game: Super Bowl commercials! Given the stratospheric cost of gametime spots, many advertisers pull out all the stops, debuting new campaigns and their best promotional efforts. In the past few years I’m not sure the ads have quite measured up, but there’s still hope that if the game is a snoozer, capitalist spirits will provide some excitement (at least until all the beer’s gone).

The full symposium is here.

UPDATE: I knew it! Robert Goulet has been messing with my stuff! [Kudos to Emerald Nuts for the funniest ad of the night.]


Ohio Legislators File Sunday Suit:

On Friday, Ohio Republican legislative leaders in Ohio filed suit challenging the validity of newly elected Governor Ted Strickland's veto of a bill outgoing Governor Bob Taft sought to let become law without his signature. According to the suit, technically filed against the new Secretary of State, Jennifer Brunner, Strickland could not have vetoed the bill because it became law before he took office. As I detailed here, at issue is how to count the number of days after the end of the legislative session for a bill to become law without the Governor's signature.

instead of suing Strickland for his veto on his first day in office, Jan. 8, House Speaker Jon A. Husted and Senate President Bill M. Harris took on Brunner, arguing that she did not have the power to return the bill to him after former Gov. Bob Taft filed it with the secretary of state’s office Jan. 5.

Husted and Harris are asking the Supreme Court to force Brunner to change her records to show the bill was not vetoed and allow it to take effect 90 days after it was filed.

"Brunner failed to carry out the secretary of state’s constitutional and statutory duties to maintain, preserve and keep safe (the bill) as filed by Governor Taft," the lawsuit said. . . .

[Brunner's] position is that the 10-day window for a governor to sign a bill, veto it or allow it to become law without his signature had not expired when Strickland asked her to return the bill.

Here is additional coverage of the suit from the Cleveland Plain Dealer and Associated Press.

Related Posts (on one page):

  1. Ohio Legislators File Sunday Suit:
  2. Are Sundays "Days"?

Sunday Song Lyric: The Clash's London Calling is among the greatest rock albums of all time. (Rolling Stone ranked it number eight.) The album is chock full of great songs, but this morning I'm thinking about "The Guns of Brixton."
When they kick out your front door
How you gonna come?
With your hands on your head
Or on the trigger of your gun

When the law break in
How you gonna go?
Shot down on the pavement
Or waiting in death row.
Written in 1979, the song foreshadowed Brixton's later racial unrest, largely brought about by police brutality and poor economic conditions. Re-reading the lyrics today, the song makes me think of folks like Cory Maye (about whom Orin blogged here). Windypundit's Mark Draughn, who suggested this lyric, has more thoughts on the song here.

Back to the music, this isone of the few Clash classics written by Clash bassist Paul Simonon. It became a staple of their live performances (like this one). Snippets of this song, and virtually everthing ever recorded by the Clash, are available here.


N.Y. Times Issues Correcton re American Jewish Committee:

An article in The Arts on Wednesday about an essay titled "'Progressive' Jewish Thought and the New Anti-Semitism" on the Web site of the American Jewish Committee referred incorrectly to the committee. Its stance on issues ranges across the political spectrum; it is not "conservative."

Well, that's better, and given that the AJC identifies itself as "centrist," it's about all we can expect. But don't be fooled, as Ilya pointed out previously, the AJC's stance on issues does not "range across the political spectrum"; it is consistently mainstream liberal, including on Israel-related matters.