Tuesday, May 13, 2008We're a Googlewhack,
it turns out, for skill/et counter/intuitions (slashes added to avoid breaking the google hack; commenters, please act accordingly). My guess is that blogs are particularly likely to be googlewhacks, because they tend to aggregate generally unrelated topics on one page. Congratulations to Kristina Ackerman. Seattle School District Eliminates "Office of Office of Equity, Race and Learning Support":
Whether this will have any effect on policy, or even the District's pronouncements, is hard to tell. Still, it seemed worth noting, especially given my comments two years ago on one aspect of the Office's work: Seattle Public Schools' Web Site Says Individualism is a Form of "Cultural Racism":(The definition was taken down following complaints that were seemingly spurred by media coverage of the Web page.) Thanks to Rick Thiel for the pointer. Could This Be the Anthem of RICO?
Seen on the song list of this CD set: "The march of racketeers" (plus "The rackets are always at the post"). Of course, this is another example of the translator's false friends. In Russian, "rockets" (as in "the rockets' red glare") are "rakety," and "rocketeer," in the sense of a soldier in charge of firing rockets, is "raketchik." (No, "-chik" is not always a diminutive; don't let "boychik" fool you.) So a poor translator of the song list -- the disk set is "Patriotic Songs," by the Alexandrov Song and Dance Ensemble of the Soviet Army -- translates "raketchikov" as "of racketeers." How embarazada. Copyright's Paradox:
The paradox referenced in my book’s title is that copyright serves both as an “engine of free expression” and silencer of free expression. Copyright law provides a vital economic incentive for the creation and distribution of much of the literature, commentary, music, art, and film that makes up our public discourse. Yet copyright also burdens speech. We often copy or build upon another’s words, images, or music to convey our own ideas effectively. We can’t do that if a copyright holder withholds permission or insists upon a license fee that is beyond our means. And copyright doesn’t extend merely to literal copying. It can also prevent parodying, remolding, critically dissecting, or incorporating portions of existing expression into a new, independently created work. Both sides of that equation are much more complicated than that simple description, as are the ways in which we might try to solve the paradox and what the First Amendment should, therefore, say about copyright law. (At least, I think they are much more complicated; that’s why I wrote a whole book about the copyright-free speech paradox!) I’ll consider the “engine of free expression” side first. Copyright’s economic incentive for the creation and dissemination of original expression is just one way that copyright promotes speech. Copyright’s effect is qualitative, not just quantitative. It supports a sector of authors and publishers who look to the market, not government patronage, for financial sustenance and who thus gain considerable independence from government influence. Moreover, copyright does not further free speech merely by providing pecuniary incentives and support. It also symbolically reinforces certain values and understandings that underlie our commitment to free speech. By encouraging authors, copyright gives the law’s imprimatur to the social and political importance of individuals’ new original contributions to public discourse. A basic understanding that copyright promotes what we today think of as “First Amendment values” has been central to copyright law since the Founding. The Constitution gives Congress the authority to enact a copyright law “To Promote the Progress of Science,” meaning learning in general. And the Framers were animated by a belief that copyright’s support for the diffusion of knowledge was essential to individual liberty democratic government. In his address in support of the first copyright law, the Act of 1790, President George Washington declaimed that copyright’s promotion of learning would help to secure a “free constitution … [b]y convincing those who are entrusted with public administration that every valuable end of government is best answered by the enlightened confidence of the public.” It is for at least some of those reasons, that in 1985 the Supreme Court denominated copyright as “the engine of free expression.” But in the digital age does copyright law still serve as the engine of free expression? The Internet features a rich cacophony of original expression, much of which is distributed without any claim of copyright by its author (or at least without any effort to use copyright to prevent copying). Many Internet speakers are volunteers, happy to converse and express their views without any expectation of monetary remuneration. Others make their creative expression available for free to enhance their reputation or sell related products. Bottom line: If Congress repealed the Copyright Act tomorrow, we would still have more speech that we could possibly absorb in a lifetime available on the Internet. So the claim that copyright is “engine of free expression” must rest on an argument about copyright’s incremental free speech benefits. If we are to believe that copyright continues to be necessary to promote free speech, we must posit that (1) the copyright incentive generates the creation and dissemination of original expression over and above the rich array of speech that would be available even without copyright and (2) this additional copyright-incented expression has independent First Amendment value. As I argue in my book, copyright does have this incremental benefit. Many works require a material commitment of time and money to create. Examples include numerous full-length motion pictures, documentaries, television programs, books, products of investigative journalism, paintings, musical compositions, and highly orchestrated sound recordings constitute such sustained works of authorship. It is generally far too expensive and time-consuming to create such works, let alone create with the considerable skill, care, and high quality that the best of such works evince, to rely on volunteer authors. Nor are alternative, noncopyright business models necessarily more desirable than copyright. For example, we might not want our cultural expression to be populated with product placement advertising or devalued by treating it as a mere give-away for selling other products. Many of these types of works have considerable First Amendment value. And, as I wrote in yesterday’s post in relation to the press, copyright’s role in support a sector of media that is both financially robust and independent from dependency on government subsidy also remains of great importance in the digital age. So in sum, while copyright is no longer THE engine of free expression (if it ever was the sole engine), it remains a vital underwriter of free speech. Norman Levitt on Nadia Abu el Haj and "Science Studies":
Professor Levitt, coauthor of the highly recommended Higher Superstition: The Academic Left and its Quarrels with Science, has the following thoughts on the Abu el Haj controversy, reprinted with the permission of Prof. Levitt:
I don't know enough about "science studies" to endorse Prof. Levitt's take, though to the extent I have encountered sociology of science in my work on scientific evidence I have not, to say the least, been impressed overall. But Prof. Levitt's critique raises a broader issue. There are lots of methodologies and modes of thought that are widely acceptable within at least some circles of academia, but would strike an uninitiated outside observer as nonsensical, academically dishonest, or otherwise discreditable. For the most part, the outside world ignores the academics who indulge in these flights of fancy, leaving them to their own echo chambers. However, when a group with an interest in a particular issue--for example, pro-Israel activists--encounter academics who are doing such work, they denounce it as obviously biased and unworthy of the academy. And they're right! The other side responds, this work is perfectly respectable within the discipline in question, and you're only complaining because your ox is being gored. And they're also right! Related Posts (on one page):
Monday, May 12, 2008"Rather Elitist" To Prefer Data Over Intuition and Casual Observation?
The House of Representatives Committee on Oversight and Government Reform held a hearing "Assessing the Evidence of Domestic Abstinence-Only [Sex Education] Programs," at which various public health experts opined that scientific studies don't show any benefit to such abstinence programs. (See here for the witness statements.) Rep. Duncan (R-Tenn.) responded, among other things, that polls show that parents support abstinence-only education, and that
(See this video, starting at around 72:00.) People thinking that because they've studied a subject — based, they claim, on attempts to actually measure the effectiveness of particular educational programs — they know better than those who just have intuition, casual observation, and anecdote? How elitist! Next thing you know, doctors will think that because they've studied the effectiveness of various treatments for childhood illnesses, they know better than the parents what is best for treating those illnesses. I mean, why not just rely on parents' intuitions about what medical approaches (or educational programs) work? After all, they are parents who love their children, and you don't need a fancy-pants M.D. to do that. How could parents' intuitions about what will actually work in keeping children safe possibly be wrong? Look, if you want to challenge the reliability of various studies, by all means please do that. Many such studies are indeed junk science; and education is an area where good studies are notoriously hard to conduct. For all I know, maybe the studies that the witnesses are referring to are unsound. Likewise, if you want to make an argument based on pure morality or democratic theory about what should be done and shouldn't, that's fine, if you make clear that you're focused on what's moral or democratic, rather than on what actually helps children. But if you're going to talk about what's actually "best for ... children" — which is to say what's actually effective in preventing harmful behavior — then don't claim that parents have some sort of innate insight into a process that they've never systematically studied, and as to which they have at best a couple of observations (and far from perfect ones, since they may not know that much about their children's sex lives). It's not that parents are less inherently "elite" than public health Ph.D.s. It's just that, on the question of what sorts of educational programs work in this area, only people who have indeed studied the subject in a systematic way are likely to have a trustworthy opinion on what will actually work. Thanks to InstaPundit for the pointer. UPDATE: I should mention something that I had thought was implicit, but that on reflection I should make explicit: Even if parents may know better what programs work for their particular children, given their knowledge of their children (which isn't necessarily so) — or even if parents have some a moral or political theory entitlement to opt out of certain such programs (which may well be so) — the question is what education programs the government should fund for children at large. Even if ten years from now my special knowledge of my boys' personalities and behavior will give me a better sense of what sex education will work for them (I hope it will, but I'm not sure), it won't give me a particularly good sense of what sex education will work for children generally. Life in the Holodeck:
Australian science fiction writer John Birmingham has an interesting discussion of the possibility that we might all end up living in a holodeck forever (HT: Instapundit). If advancing technology ever allows us to create a virtual reality environment that truly felt "real" (as Star Trek's fictional Holodeck does), it would be easy to program experiences that are far more stimulating and pleasurable than anything we could get in the material world. Would the vast majority of humanity then choose to spend all their time in the holodeck? I don't know. But it's an interesting possibility. The issue is not a new one. Political philosopher Robert Nozick raised a similar question back in 1974, when he considered the possibility of an "experience machine" - effectively the same thing as the holodeck, except that the participants might not know that they weren't in the "real" world. Nozick argued that living your life in an experience machine would be undesirable. But I suspect that a lot of people won't be deterred by his and other arguments against it. The issue is not immediately urgent. Despite the eager hopes of Trekkies and others, we don't yet have a working holodeck. But advances in virtual reality technology make it a more pressing concern than it was back when Nozick wrote about it. On balance, I tend to think that there is enough diversity of preferences that we won't ever have Birmingham's nightmare scenario under which we all "end up Matrixing ourselves in very short order." Some people would stay out because they are achievement-oriented, and others for ethical or religious reasons. But it's hard to say for sure. Well-Forgotten Old:
The "lame" post reminded me of a Russian saying my father mentioned to me: "Everything new is well-forgotten old." Lame:
I'd always thought that "lame" as in "lame argument" or "lame excuse" was relatively modern youth slang. Then I ran across it in a 19th-century source, and so decided to check the OED. It turns out that the definition of "[m]aimed, halting; imperfect or defective, unsatisfactory as wanting a part or parts," "[s]aid esp[ecially] of an argument, excuse, account, narrative, or the like" dates back at least to Chaucer's Troilus and Cressida: "blame me not if any word [of my work] be lame." Then there's Shakespeare, in Othello, speaking of a "most lame and impotent conclusion." Most lame, dude! And Swift, in Gulliver's Travels, "The theory of comets, which at present is very lame and defective." On reflection, it shouldn't be surprising — why shouldn't earlier centuries think of the same figurative usages that modern Americans use? Still, I didn't expect it. Fifth Circuit Finds Victims' Rights Violated ... But No Remedy
I have been working on a pro bono crime victims' rights case, involving the Texas City oil refinery disaster. Criminal negligence by BP Products led to an explosion that killed 15 workers and injured more than 170. The Justice Department and BP reached a plea agreement under which the company would plead to a felony and pay $50 million. The victims of the crime have objected to the plea, arguing that the fine was inadequate given the harm frmo the crime and that the plea failed to provide sufficient assurance for the future safety of workers at the refinery. The Fifth Circuit has now ruled on the victims appeal (available here), finding that the crime victims' rights were violated by the U.S. Attorney’s Office when it reached a plea bargain without conferring with the victims. The Fifth Circuit, however, refused to block the plea deal, remanding to the district court for further proceedings. In its decision, the Fifth Circuit found that the U.S. Attorney’s Office had violated the Crime Victims Rights Act (CVRA) in reaching the agreement. In October 2007, the U.S. Attorney’s Office had obtained an ex parte order from the district court relieving the Office of any need to notify the victims before reaching the plea. The Fifth Circuit held that “it was contrary to the provisions of the CVRA for the [district] court to permit and employ the ex parte proceedings that have taken place – proceedings that have no precedent, as far as we can determine.” Instead, the Fifth Circuit stated that the U.S. Attorney’s Office “should have fashioned a reasonable way to inform the victims of the likelihood of criminal charges and to ascertain the victims’ views on the possible details of a plea bargain.” The Fifth Circuit concluded that “the unfortunate fact is that the plea agreement was reached without the victims’ being able to participate by conferring in advance.” However, the Fifth Circuit remanded the case to the district court for further proceedings in which the district court “will fully consider the victims’ objections [to the proposed plea bargain] and concerns in deciding whether the plea agreement should be accepted.” Along with the other attorneys working on the case, I will filing a petition for rehearing en banc with the Fifth Circuit in light of "circuit split" that the decision deepens. The Fifth Circuit concluded that it did not have to give the victims any relief — even though their rights were violated — because the CVRA provides for relief by way of a mandamus petition. The Fifth Circuit, citing a Tenth Circuit decision, held that mandamus petitions are subject to review only for "clear and indisputable" errors. Even then, mandamus relief is purely prudential, concluded the Fifth Circuit. But the Second and Ninth Circuits have reached the opposite conclusion — that crime victims are entitled to ordinary appellate protection of their rights. The Second and Ninth Circuit conclusions are obviously correct if one looks at the legislative history of the CVRA. One of the two co-sponsors of the CVRA stated the law would create
150 CONG. REC. S4262 (statement of Sen. Feinstein) (emphases added). Rejecting the cornerstone of the panel’s holding that the decision whether to grant relief for a victim is prudential one, the other of the CVRA’s two co-sponsors stated that:
150 CONG. REC. at S10912 (statement of Sen. Kyl) (emphases added). Surprisingly, the panel of the Fifth Circuit did not discuss this legislative history in deciding that it did not have give the victims any relief. Hopefully the full Fifth Circuit will see things differently on the petition for rehearing. Crime victims deserve the same protection in the appellate courts as criminal defendants and other litigants receive. Related Posts (on one page):
Bilski, Business Method Patents, and the Problem of the Second Step:
Last week the en banc Federal Circuit heard argument in Ex Parte Bilski, an important case on the patentability of so-called "business method" patents. You can read the many briefs in the case here, and find links to the oral argument here.
Back before I started teaching, I was very interested in patent law and wrote a short essay on the topic of business method patents. In light of Bilski, I decided to post it on SSRN: Computers and the Patent System: The Problem of the Second Step, 28 Rutgers Computer & Tech. L.J. 47 (2002). From the introduction: Why have computers created such a headache for the patent system? My argument is that the invention of the general purpose computer has baffled the patent system by breaking down the traditional one-step analytical framework of new inventions into two analytical steps. Unlike traditional machines and processes, general purpose computers divide the brains of the operation (the algorithm) from the brawn (the hardware). Patent law is ill-equipped to respond to this bifurcation. Instead, patent law's one-step conceptual framework forces us to confront an all-or-nothing choice between two unsatisfying alternatives: either we can grant computerized algorithms too much protection, or too little. Either every algorithm is patentable subject matter, or none are.I haven't dabbled in patent law since writing that essay, but I figured it might be of possible interest to those following the Bilski case. Knock-and-Announce Violations in Alaska:
The Alaska Court of Appeals handed down an interesting opinion on remedies for knock-and-announce violations last week in Berumen v. Alaska. The knock-and-announce rule requires officers to knock and announce their presence when executing a warrant. The Alaska court held that suppression is the proper remedy for knock-and-announce violations under the Alaska knock-and-announce statute even though the Fourth Amendment does not impose suppression under Hudson v. Michigan.
Here are the facts of the case. Officers came to Berumen's hotel room to serve an arrest warrant on him. They knocked on the door for about 20 seconds, and when no one answered, they used a hotel pass key to open the door. The officers rushed inside, announcing their identity as police officers as they entered. Inside the room they found four men and a stash of marijuana and cocaine out in the open. The officers arrested Berumen, who was one of the men, and they used the marijuana and cocaine against him at trial. In this appeal, Berumen argued that the cocaine and marijunana should have been suppressed because the officers violated the Alaska state knock and announce statute. The Alaska statute states: A peace officer may break into a building or vessel in which the person to be arrested is or is believed to be, if the officer is refused admittance after the officer has announced the authority and purpose of the entry.First, the Court concluded that the officers had violated the statute: [A]lthough the officers identified themselves as police officers, they never announced the authority for, and the purpose of, their entry into Berumen’s hotel room. Moreover, the officers never requested or demanded entry into the room. Because of this, no one ever refused them admittance, nor could the officers have reasonably interpreted the lack of response from inside the hotel room as a tacit refusal of admittance.The Court then ruled that the proper remedy for the violation was suppression based on an earlier state decision called Harker v. State, 637 P.2d 716 (Alaska App. 1981). Harker apparently required the court to consider (1) whether the statutory requirement or restriction is “clear and widely known”; (2) whether the statute is primarily “designed to protect the personal rights” of individual citizens, as opposed to being intended more “for the benefit of the people as a whole”; (3) whether admission of evidence obtained in contravention of the statute would require the court to “condone ‘dirty business’”; and (4) whether it appears that the police have engaged in “widespread or repeated violations” of the statute. Of particular interest is the Court's discussion of the fourth factor, whether the police have appeared in widespread or repeated violations of the statute. The fact that there are several Alaska appellate decisions that discuss the meaning and application of AS 12.25.100 suggests that this issue comes up more than occasionally in criminal litigation. And yet, despite this, it appears that police officers may not be paying sufficient attention to this statute. During the evidentiary hearing in this case, one of the officers could not remember that one of the reasons for the “knock and announce” statute is to protect citizens’ privacy, and a second officer testified that he had no idea why the officers failed to abide by the requirements of the statute when they entered Berumen’s hotel room. Given this history and this record, we cannot ignore the possibility that there may be widespread or repeated violations of the statute.The analysis of the last factor seems pretty speculative, but Alaska judges would have a much better sense than I do of whether Alaska police follow the Alaska statute. If you're interested in whether the analogous federal statute should be interpreted the same way, see my long blog post on the topic from 2006 over at my now-defunct solo blog. Oh, and if you read that post and you're interested in knowing how the bet would have gone with Professor Moran, so far I would have lost, as no circuit has adopted my position. On the other hand, one Sixth Circuit decision stated in dicta that "there is room for disagreement" on the issue and stated that the issue was "murky," generously citing my blog post along the way. See United States v. Ferguson, 252 Fed.Appx. 714 (6th Cir. 2007). Thanks to FourthAmendment.com for the link. PJ O'Rourke's Commencement Address:
Here. "Don't moan. I'm not going to "pass the wisdom of one generation down to the next." I'm a member of the 1960s generation. We didn't have any wisdom." Via (Joe Malchow). Big-Name Universities That Don't Have Law Schools:
It recently occurred to me that there are several big-name universities that don't have law schools, even though a law school established at any of those institutions would probably do well. Princeton arguably heads this list, along with Brown, Johns Hopkins, Rice, and Tufts. Brandeis University also doesn't have a law school (ironically, for a prominent university named after a Supreme Court justice). Why these universities haven't established law schools is a bit of a mystery (at least to me). Law schools tend to bring in net revenue for the university. This is even more likely to be true at a big-name institution that can quickly attract good faculty and students. If Princeton were to establish a law school tommorrow, appoint a credible dean, and provide adequate initial financial backing, they could very quickly turn it into a highly successful (and profitable) enterprise. Many good students would come just because of the Princeton name, and most outstanding scholars who are not already at top 20 or top 30 institutions might well be willing to move to Princeton if asked. Why have these schools in effect left money lying on the table? I don't know for sure (and the reasons may differ from school to school). But here are a few conjectures: 1. ABA accreditation requirements. ABA accreditation requirements artificially raise the costs of establishing a new law school. However, wealthy institutions like Princeton or Brown can surely meet these expenses and still make a profit on the school. So I doubt this is a crucial factor. 2. Institutional inertia. This probably is a factor, as in most large bureaucracies. Still, many universities (including George Mason in 1979) have established new law schools, so one would have to explain why Princeton, Brown, et al., have more inertia than other schools. 3. The inefficiency of non-profit institutions. If a for-profit firm increases its revenue, the stockholders will benefit directly. This gives them an incentive to exploit new profit opportunities to the hilt. In a nonprofit such as a university, by contrast, there are no residual claimants to additional revenue. If the university establishes a new law school and increases its revenue as a result, the administration won't get a pay raise or otherwise directly benefit. That reduces their incentive to exploit opportunities to increase revenue, and may account for the failure to create what might well be highly profitable law schools. That said, universities surely do take all sorts of actions to increase revenue streams. And some have even established law schools for this purpose. So this factor too can't explain why several specific institutions have failed to establish law schools even though most of their peers have. Ultimately, I suspect that the initial failure to establish a law school may have resulted from chance factors that were then reinforced by a combination of 2 and 3 above. If you know more about the real reasons why these big-name universities have no law schools, feel free to comment. UPDATE: Various commenters suggest that these universities choose not to have a law school because of their desire to focus on undergraduate education. That may indeed be the right explanation, though several of these institutions (including Johns Hopkins, Tufts, and Rice) have other professional schools on campus. But it doesn't strike me as a very compelling reason not to establish a law school. If the law school were to drain resources away form undergrad education, there might indeed be a conflict between the two. In fact, however, a law school is likely to bring in net revenue that could be used to improve undergraduate education. Moreover, some law school professors (especially at elite schools) teach courses that undergraduates might be interested in taking, as sometimes happened at Yale, when I was a law student there. Even if a law school adds resources to undergrad education instead of draining them, it's possible that its presence could detract from undergraduate education in some other, more subtle way. But it's hard for me to see how. If Yale Law School were closed down tommorrow, would undergraduate education at Yale improve? Are undergraduates at Yale currently worse off than at Princeton in some way traceable to the fact that Yale has a law school and Princeton doesn't? Possibly. But I remain skeptical. I'm not arguing that Princeton or any other institution that doesn't yet have a law school should necessarily create one. But the undergraduate education rationale for not doing so seems dubious. Online Journalism versus Newspapers:
I greatly appreciate the invitation to guest blog on Volokh Conspiracy about my new book, Copyright's Paradox. A central theme of my book is that copyright law is no less a part of national media and information policy than are the Telecommunications Act and the First Amendment. In particular copyright serves as a major battleground between digital and traditional media. Media lawsuits against Google are a prime example. Newspapers have sued the multi-billion dollar upstart over Google News, book publishers have sued over Google Book Search, movie studios over Google’s YouTube, and adult magazines over Google Image Search. The outcomes will profoundly impact the shape of the media, how we receive and impart information, news, and opinion, and what types of speech are most salient to the public. Depending on how copyright law is configured, the new media may supplant the old or the traditional incumbents may stifle the new. I will expand upon copyright's role in a later post. Here I want to focus on newspapers and ask whether we should care about their demise. In a recent article in The New Yorker, Eric Alterman surveys the evidence and concludes that "it no longer requires a dystopic imagination to wonder who will have the dubious distinction of publishing America's last genuine newspaper." As he demonstrates, a primary cause for newspapers' rapid decline in advertising, readers, market value, and, indeed, sense of mission is the Internet. The Internet makes the daily newspaper look slow and unresponsive. Young people in particular (only 19 percent of Americans under 34 even claim to look at a daily newspaper) prefer to surf the Web and log in to social network sites for up-to-date, easily digestible news bites. Even aside from lost readership, the Internet erodes newspaper advertising revenue. Craigslist has wiped out classified advertising. Online news aggregators, like Google News, usurp much other advertising. And for newspapers, moving online is no panacea; newspaper Web sites benefit from the growth of online advertising, but not nearly enough to replace revenue losses from circulation and print ads. Not all bemoan newspapers' decline. Many news bloggers and other self-styled online journalists trumpet their superiority over the mass media. Arianna Huffington, co-founder of the Huffington Post "Internet Newspaper," has been particularly relentless in attacking the mainstream news media for what Huffington characterizes as the media’s purported prolonged servile acceptance of the Bush Administration's invasion of Iraq and domestic war on terror. And in his seminal book, The Wealth of Networks, Yochai Benkler argues that peer reporting from a multitude of online speakers does better than traditional news media both at bringing information and opinion to the fore and engendering an activist, autonomous citizenry. Peer reporting and opinion no doubt form an invaluable component of public discourse, both in and of themselves and for calling traditional news media to brook for its failings. But so-called “news blogs” are valuable primarily as media gadflies and commentators. They do not and cannot substitute for institutional news media in performing the still vital Fourth Estate function. The blogosphere is largely parasitic on media coverage. Blogs from the Huffington Post on down engage in little original reporting and link to stories from the mainstream press far more than to other blogs. Online opinion also appears to be highly fractured and balkanized. Conservative and liberal bloggers, for example, rarely link to blogs across the political divide -– and even when they do, views from opposing camps can generally be found only by following a link; unlike newspaper op-eds and letters to the editor, they are not interspersed side by side. Bloggers also lack the financial resources for investigative reporting and fact-checking that mass media enjoy. Even the relatively well-heeled, The Huffington Post removes erroneous blog posts only after the fact if it receives a round of reader complaints. It does not commit to reviewing posts before posting (except perhaps for the posts on its home page). There are exceptions, like the largely user-contribution-financed Talking Points Memo, but I don't see these as a scalable model to take the place of the institutional press. I wholeheartedly (but sadly) agree with media critics that the press miserably fails to live up to its fourth estate ideal. But the judgment we must make in evaluating flawed instititions is always "As compared to what?" Even with its flaws, the institutional press has the ability to serve — and aspires to serve — fourth estate functions that individual bloggers do not and cannot. So while bloggers make an invaluable contribution to public discourse, their contribution is different than that of the institutional press. I think we need both. FTC Workshop on "Consumer Information and the Mortgage Market":
The FTC is hosting a one-day Workshop on "Consumer Information and the Mortgage Market" on May 29, 2008. The program looks great and the list of participants is outstanding. Full info is here. An Example of a Certain Academic Mindset:
Guest-blogger Kathy G. at Crooked Timber, protesting Washington University's plan to award an honorary degree to Phyllis Schlafly, manages to express a certain academic mindset (all emphases added):
Not that this mindset is limited to academics, of course, nor, do most academics have such juvenile ideas regarding politics, but it's sufficiently common in academia that it's little wonder that bright young conservatives will think twice before going into the academy and potentially putting their career fates into the hands of those who think that they are presumptively "hateful," "lunatics," who are not "sane" and are attempting to thwart all that is good and just. Pirate Economics:
An interesting article that discusses my GMU Economics Department Pete Leeson's forthcoming book, "The Invisible Hook: The Hidden Economics of Pirates." Update: Commenter UW2L (who obviously is supposed to be studying for exams), poses an an important question about pirate spelling. From Voter ID to Proof of Citizenship:
The State of Missouri may adopt a state constitutional amendment requiring proof of citizenship for voting. As the New York Times reports, the stated purpose of this requirement is to prevent voting by illegal immigrants and other non-citizens.
Welcome to the next round of debate and litigation over voter identification. Where Energy Subsidies Go:
Today's WSJ reports on an Energy Information Administration study detailing current federal energy subsidies.
UPDATE: I consulted the EIA report upon which this editorial is based, and it confirms (as some commenters suggested) that the size of subsidies for non-electricial energy production was overstated. The figures originally quoted are per million BTUs, not per BTU (see Table ES6). The Next Justice Department:
The Legal Times takes a look at what the Justice Department might look like, and focus on, during the next Administration. Neil Netanel, Guest-Blogging:
I'm delighted to report that my colleague Neil Netanel will be guest-blogging this week about his new book, Copyright's Paradox. Netanel is one of the top copyright scholars in the country, probably most famous for Copyright and a Democratic Civil Society, 106 Yale Law Journal 283 (1996), and Locating Copyright Within the First Amendment Skein, 54 Stanford Law Review 1 (2001). His new book continue his work on the tension between copyright and free speech, a topic I've long been interested in; I much look forward to seeing his posts. A Puzzling Omission:
I don't think it's a secret that The New York Times tends to be particularly one-sided when reporting on matters of concern to The New York Times. Given that, perhaps everyone expects that a Times story on conservative support for a federal reporter's privilege is going to be as much a work of advocacy as a work of reporting.
Still, isn't it a bit odd that Saturday's story on the reporters' privilege doesn't disclose that both of the credited authors, Eric Lichtblau and Philip Shenon, have been personally involved recently in high-profile DOJ leak investigations? Lichtblau was himself a target after he co-authored the 2005 NSA surveillance story. And Philip Shenon was one of the two reporters who had his phone records subpoened in the Valerie Plame leak investigation (the other was Judith Miller). I don't know the official standards for journalistic ethics, but it seems pretty fishy to me that Lichtblau & Shenon didn't disclose their background in the story. Sunday, May 11, 2008Open Thread:
We haven't had an open thread in a while. So what's on your mind? As always, please keep it civil.
Obama on Lebanon:
I hope Sen. Obama doesn't seriously believe that the conflict in Lebanon comes down to electoral reform, a fair distribution of services, and the patronage system. Or that shouting "hey, Hezbollah, what you're doing violates UN resolution 1701" is going to have any meaningful effect on the situation. H/T Michael Totten, who thinks that Obama's expressed sentiments potentially spell disaster for Lebanon. UPDATE: Noah Pollack writes: "In the Lebanon crisis, Obama is rhetorically cornered. Since his prescription for the Middle East is diplomatic engagement, every disease gets re-diagnosed as something curable through talking." Revesz on Rehabilitating Cost-Benefit Analysis:
NYU Law Dean Richard Revesz has written an interesting essay for Grist arguing that environmentalists should reconsider their opposition to cost-benefit analysis of regulations. It is based upon his new book, Retaking Rationality: How Cost Benefit Analysis Can Better Protect the Environment and Our Health, co-authored with Michael Livermore. While CBA is largely viewed as an "anti-regulatory" tool, Revesz argues cost-benefit analysis, if conducted properly, can support a pro-regulatory environmental agenda. In his view, environmentalists have been wrong to oppose the use of CBA in regulatory review, and should now seek to mend, not end, its use in regulatory policy. Since Ronald Reagan placed cost-benefit analysis at the center of his deregulatory agenda in 1981, environmentalists have developed a strong allergy to economic analysis. They rarely participate in the debates over how cost-benefit is conducted, and do not place economic analysis at the center of their arguments for new and stronger regulation. On the other hand, antiregulatory groups like trade associations representing industrial polluters and conservative think tanks have embraced cost-benefit analysis. They argue that economic analysis shows deregulation is a good thing.The environmentalist antipathy to cost-benefit analysis is somewhat ironic because environmentalists once championed the use of CBA for public works projects. Applying cost-benefit principles to dams, reclamation projects, and the like, they argued, would reveal these projects to be as economically wasteful as they were environmentally harmful. This idea worked for a time, until the Bureau of Reclamation, Corps of Engineers, and other agencies hired their own economists and learned to use the process to their advantage. Revesz is certainly correct that CBA, neutrally applied, is not inherently "anti-regulation." During the Bush Administration, the reliance upon CBA led OMB to issue several "prompt letters" urging agencies to adopt additional regulatory measures that appeared to be cost-justified. True CBA devotees follow the numbers, not their own preference for or against regulatory interventions. While CBA is often used to criticize regulations, in some instances CBA methodology has an inherently pro-interventionist bias, insofar as it elevates collective net welfare maximization over consideration of individuals' subjective value preferences. Just because a given project or regulation is "net-beneficial" does not mean it makes for good policy. We also must be wary of overly precise cost-benefit calculations that understate uncertainties or gloss over the difficulties of quantifying important variables. There is little doubt that more complete information about the likely consequences of government action should improve government decision-making. Just as the National Environmental Policy Act (NEPA) can foster improved public decision-making by forcing government agencies to consider the environmental consequences of their actions, CBA requirements can foster a more complete consideration, and public accounting, about the pros and cons of regulation. CBA can inform public debate, but it cannot resolve all regulatory policy disputes. Even the best CBA is no substitute for discussion and debate over competing policy agendas and the normative preferences upon which they rest. Democrats Oust the Dannimal:
The Ohio Democratic Party officially withdrew its 2006 endorsement of Marc Dann for Attorney General. (The official resolution is reproduced here.) Though largely symbolic, this move strips Dann of the privileges of an elected official within the party, and officially changes his status from that of a Democratic officeholder, to an "Independent elected as a Democrat." The Ohio AFL-CIO, a key Democratic constituency, has also called for Dann to resign. Meanwhile, new revelations about Dann and his cronies keep coming, and the state legislature is poised to authorize an Inspector General investigation of the AG's office as it prepares for impeachment proceedings. Dann stubbornly holds onto his position, seeking personal and professional vindication. He claims he can still serve the Ohio people effectively, but there are doubts he was ever particularly good at his job -- either as AG or in private practice. When Dann was elected as Ohio's top lawyer in 2006, he had practiced at a small Youngstown law office handling divorces, business filings and routine criminal cases. His record included a reprimand from the Ohio Supreme Court for mishandling a divorce case and the lowest rating in a respected law directory. Sunday Song Lyric - Mother's Day Edition:
Happy Mother's Day! Let's celebrate with a lyric or song. What are your favorite songs or lyrics for, about, or otherwise related to mothers and motherhood? Celebratory songs are certainly nice -- and perhaps preferred -- but not required. Saturday, May 10, 2008CNBC stock contest: Is winning a weekly prize worse than losing?
If it’s late spring, it’s time once again for the CNBC stock trading challenge. First prize is $500,000 and the runner-up wins $250,000. Even after taxes, that's a lot of money. But the non-cash weekly prizes carry such a hefty income tax liability that I don’t think I’d want to win most of them. If you are in a combined 37% federal and state income tax marginal tax bracket, in week 8 you could win 2 nights in a Bentley (with chauffeur) and pay only $3,700 in income taxes on a prize that retails for $10,000. Because I could rent an ordinary luxury car without a chaffeur for a couple nights for a few hundred dollars, something I'm not inclined to do in any event, I can't imagine why I'd want to rent a Bentley for several thousand dollars, the amount of taxes I would have to pay if I won a "free" prize. Or you could win week 4’s prize of a private jet to Jamaica for a 3-night vacation for only $12,000 in taxes. Because one can be a guest in many of the world’s best hotels for under a $1,000 a night, $12,000 for 3 nights seems like a lot to spend for a “free” vacation –- one that comes complete with a 1099 showing income of $32,500. If your tax bracket is a lot lower, then the tax cost would not be so high, but if you live in NYC or other high-tax locales, you would be paying a much higher amount than would be owed in the 37% bracket I used for my hypotheticals. What do families do when they win a new house on Extreme Makeover: Home Edition? The producers of that show must pay a mint to build a house in a week; I wonder how generously those houses are valued on 1099s. [UPDATE (from "Another Roger" in the comments below): Extreme Makeover recommends a tax dodge.] Hillary Clinton and the Pro-gun Vote
In a Thursday article for Town Hall, titled "Gun Owners for Hillary?", I examine Senator Clinton's success in winning gun-owner votes in the recent Democratic primaries. Susan Faludi's op-ed in the New York Times examines some of the changes in Mrs. Clinton's style which have made her more attractive to white males; my guess is that these changes are also particularly appealing to gun owners, who tend to place a high value on self-reliance and grit. Brigadier General Hartmann Removed from Role in Military Tribunals:
As covered in prior posts, Col. Morris Davis, the former chief prosecutor at Guantanamo, resigned his post alleging, among other things, that military officers, including Brigadier General Thomas Hartmann, were exercising undue influence over the conduct of the trials of detainees and compromising the impartiality and fairness of the military commissions. Now it appears that at least one military judge concurs with Col. Davis' assessment. As the NYT reports:
Related Posts (on one page):
Draft Insurance for College Hoopsters:
My colleagues Tom Hazlett and Josh Wright have a proposal for responding to the incentives for college basketball players to leave college early and to to turn pro--draft insurance for college underclassmen paid for by the university. They admit that for athletes from financially poor backgrounds this won't provide much of an incentive to stay, but for others it might. The premise is that there are some athletes who would like to stay, but simply can't afford it. For many top basketball players (such as Kevin Love), the marginal benefit of staying is relatively small in the sense that he may work up a few slots in the draft order but the marginal cost is quite high in the sense that a poor season could reduce his draft stock substantially. Right now the NCAA allows players to buy insurance for major career-ending injuries but not for minor injuries or performance declines that reduce draft position. Current rules also prohibit the insitution from paying for the insurance. Here's Tom and Josh's wrap up:
Friday, May 9, 2008More on Obama's View of the Constitution:
Via Bench Memos, I recently came across what appears to be a transcript of Senator Obama's address to the Planned Parenthood Action Fund on July 17, 2007, in which he spoke about the law and the Constitution. An excerpt:
I think the Constitution can be interpreted in so many ways. And one way is a cramped and narrow way in which the Constitution and the courts essentially become the rubber stamps of the powerful in society. And then there’s another vision of the court [sic] that says that the courts are the refuge of the powerless. Because oftentimes they can lose in the democratic back and forth. They may be locked out and prevented from fully participating in the democratic process.Sounds like a case for Kirby Kyle. Arrested for a Turn Signal Violation:
From Melissa, Texas, via Don't Tase Me Bro,
Mark Robinson was driving through downtown Melissa last week when he was pulled over for failing the use his turn signal. Which Does America Need More,
a gated community of Ron Paul supporters or the return of the Gong Show? (Hat tip for the first link: Sua Sponte)
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